Dr. P. Vishwanatha Nayak vs P Shrinivasa Pai
2022 Latest Caselaw 5433 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MARCH 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA

            R.S.A.No.2138/2021 (DEC/INJ)

BETWEEN:

1.     DR. P. VISHWANATHA NAYAK,
       AGED 61 YEARS,
       S/O LATE P.VARADARAYA NAYAK,

2.     P.VENUGOPAL NAYAK,
       AGED 56 YEARS,
       S/O LATE P.VARADARAYA NAYAK,

       BOTH ARE RESIDING AT 18-137,
       V.V.NIVESHAN, MAIN ROAD,
       PANEMANGALORE,
       BANTWAL TALUK,
       D.K.DISTRICT - 574 231.        ... APPELLANTS

(BY SRI. ANANDARAMA.K. ADV0CATE)

AND:

1.     P.SHRINIVASA PAI,
       AGED 77 YEARS,
       S/O LATE ACHYUTHA
       @ JOGAPPA PAI,
       No.202, CHITRA APARTMENT,
       KODIYALAGITTU,
       MANGALURU - 574 231.

2.     KAVITHA MAURYA,
       AGED 49 YEARS,
       W/O RAJANIKANTA MARYA AND
                           2



     D/O P.SRINIVASA PAI,
     C/O P. SRINIVASA PAI,
     No.202, CHITRA APARTMENT,
     KODIYALAGITTU,
     MANGALURU - 574 231.

3.   ANITHA KINI,
     AGED 45 YEARS,
     W/O SUDHIR KINI,
     C/O P.SRINIVASA PAI,
     No.202, CHITRA APARTMENT,
     KODIYALAGITTU,
     MANGALURU - 574 231.

4.   AJITH @ ACHUYUTA PAI,
     AGED 37 YEARS,
     C/O P.SRINIVASA PAI,
     No.202, CHITRA APARTMENT,
     KODIYALAGITTU,
     MANGALURU - 574 231.

     No. 2 TO 4 ARE REPRESENTED BY THEIR,
     GPA HOLDER, No.1 P.SRINIVASA PAI,
     WHO IS NOW RESIDING AT OPPOSITE
     ART PALACE, KOTTARA ROAD, BEJAI KAPIKAD,
     MANGALURU - 574 231.

5.   P.GOVINDA PAI,
     AGED 82 YEARS,
     S/O LATE P.UPENDRA PAI,
     R/AT PAI COMPOUND MAIN ROAD,
     PANEMANGALORE,
     BANTWAL TALUK,
     D.K.-574 231.           ... RESPONDENTS


     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.04.2021
PASSED IN R.A.No.50/2019 ON THE FILE OF THE PRINCIPAL
DISTRICT   AND   SESSIONS    JUDGE,   D.K.MANGALURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
                                3



AND DECREE DATED:26.09.2019 PASSED IN O.S.No.7/2012
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
JMFC, BANTWAL D.K.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.02.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                         JUDGMENT

1. This is a second appeal by the plaintiffs who had sought

for a decree of specific performance of a contract of sale,

which has however, been refused by both the Courts.

2. The facts leading to the filing of this second appeal are

as follows:

3. The suit schedule 'A' properties bearing Sy.No.18/19

measuring 0.20 acres and Sy.No.18/20 measuring 0.04 acres

situate at Panemangalauru village of Bantwal taluk, were the

joint properties of defendant Nos.1 to 4.

4. On 06.03.2002, the plaintiffs entered into a contract of

sale with defendant No.1 in respect of 'A' schedule properties

(as per Ex. P-9) and they proceeded to pay a sum of

Rs.2,25,000/-, by way of a cheque to the 1st defendant. This

cheque was however not encashed. It was also the case of

the plaintiffs that they had paid the balance sale

consideration of Rs.7,35,000/- to defendant No.1 through a

Bankers Cheque 28.03.2002 and the same had also been

encashed.

5. It was stated that on 17.05.2004, in respect of a

portion of the property, which was the subject matter of the

contract of sale, a registered sale deed was executed in

favour of Pramod K. by defendant Nos.1 to 4 and the

remaining extent of land was retained by the defendants

(which was described as plaint 'B' Schedule properties).

6. It was stated that on 16.03.2011, a sale deed was

executed by defendant Nos.1 to 4 in respect of 'B' Schedule

properties in favour of defendant No.5. It was also stated that

a legal notice dated 21.04.2011 was issued by the plaintiffs

calling upon defendant No.1 to execute the sale deed and to

this notice, a reply was also given on 28.04.2011 to which a

rejoinder was also issued on 25.05.2011.

7. Ultimately, on 04.06.2011, the suit was filed seeking for

specific performance and to enforce the contract of sale dated

06.03.2002.

8. The Trial Court on consideration of the evidence

adduced before it came to the conclusion that an agreement

of sale had been executed on 06.03.2002 by defendant No.1,

whereby he had agreed to sell 'A' Schedule properties to the

plaintiffs. The Trial Court, however, held that the plaintiffs

had not proved that they were ready and willing to perform

their part of the contract and it also recorded a finding that

the possession of the 'B' Schedule properties had not been

handed over to the plaintiffs. The Trial Court also held that

the suit was barred by time and defendant No.5 was a bona

fide purchaser for value without notice. The Trial Court,

accordingly, dismissed the suit.

9. In appeal, the Appellate Court on re-appreciation of the

entire evidence came to the conclusion that appreciation of

evidence by the Trial Court could not be found fault with and

its judgment and decree, dismissing the suit was justified. It

accordingly dismissed the appeal.

10. From the impugned judgments, it is seen that the Trial

Court, as well as the Appellate Court have come to the

conclusion that though a contract of sale had been entered

into between the plaintiffs and defendant No.1 on

06.03.2002, but, the assertion that a sum of Rs.2,25,000/-

was paid under the contract of sale, had not been established

by the plaintiffs. A finding is also recorded that the cheque of

Rs. 2,25,000/-, given at the time of the contract of sale had

not been presented for encashment and the plea that the

plaintiffs had paid cash in lieu of the cheque was not proved.

11. Both the Courts have also held that the Bankers cheque

of Rs.7,35,000/- was handed over to defendant No.1 and the

said Bankers cheque had also been encashed.

12. The Courts have, however, held that defendant No.1

had issued a cheque for Rs.5,29,380/- to the plaintiffs on

28.02.2006 and this had been established by the production

of the challan under which, the said cheque was deposited

into the account of the plaintiffs. It has been recorded that

the plaintiffs in to prove that the said payment of Rs.

5,29,380/- related to another transaction had not placed any

material to show that there was some other transaction which

had resulted in the payment of the said sum of Rs.5,29,380/

and further there was no pleading of the plaintiffs regarding

any separate transaction also.

13. It is also noticed by the Courts that if the entire sale

consideration of Rs.9,60,000/- had been paid in 2002, the

question of defendant Nos.1 to 4 being allowed to receive a

further sum of Rs.1,95,000/-, when all of them had sold a

portion of the property to defendant No.1 on 17.05.2004 to

which the 1st plaintiff was a consenting witness, was

inconceivable and thus it could be concluded that the balance

sale consideration had not been paid in 2002.

14. Both the Courts have also found that since admittedly,

a sale deed was executed by the defendants in favour of

defendant No.5 on 17.05.2004, to which the plaintiff No.1

was an attesting witness, the execution of that sale deed in

favour of a third party, clearly amounted to a refusal to

convey the remaining property to him and therefore, the suit

ought to have been filed within three years from that date.

15. Both the Courts have taken notice of the fact that

though the plaintiffs claimed that the entire sale consideration

was paid in the year 2002, for nine years i.e., till 2011, there

was no demand made by the plaintiffs for the execution of

the sale deed and this conduct indicated that there was no

intention of the parties to enter into a sale transaction.

16. Thus, essentially both the Courts, on appreciation of the

oral and commentary evidence have recorded a finding that

the sale consideration as alleged in the contract of sale had

not been paid and the suit was barred by limitation.

17. The learned counsel for the appellants contended that

the entire approach of both the Courts was incorrect. He

contended that the evidence on record, especially, the fact

that defendant No.1 admitted the receipt of Rs.7,35,000/-

clearly established that the entire sale consideration had been

paid and since the entire consideration had been paid, both

the Courts had erred in refusing to grant a decree for specific

performance. He also contended that since the terms of the

contract of sale only stipulated time for payment of balance

sale consideration, time was never the essence of the

contract and the findings of the Courts that the date on which

the sale deed had been executed in favour of the defendant

No.5 i.e., on 17.05.2004 could not be considered as the date

on which there was a refusal on the part of defendant No.1 to

execute the sale deed. He also contended that the refusal to

grant a decree of specific performance by exercising the

discretion vested in the Courts would also amount to a

substantial question of law, which was required to be

considered by this Court.

18. Lastly, the learned counsel submitted that even if the

plaintiffs were held not entitled for a decree of specific

performance, having regard to the fact that defendant No.1

had admitted that the receipt of the entire sale consideration,

this was an appropriate case whereby the Courts ought to

have directed repayment of the amount paid with interest or

even without interest.

19. He relied upon a series of judgments to put forth

various contentions regarding time being the essence of the

contract:

Sl.             Case Law                  For the proposition
No.
(i)     CHAND RANI (SMT)            There was no presumption
        (DEAD) BY LRs., vs.
        KAMAL RANI (SMT)            as to time being the essence
        (DEAD) BY LRs.,             of the contract in case of the
        [(1993) 1 SCC 519]          sale of immovable property

(ii)    NANJAPPAN vs.               Even if the plaintiff was held
        RAMASAMY AND
        ANOTHER,                    not    entitled        to    specific
                                    performance, the Courts are
        [(2015) 14 SCC 341]
                                    required      to       refund    the
                                    advance amount paid by the
                                    plaintiff

(iii)   GOVIND PRASAD               Time is not of the essence in
        CHATURVEDI vs. HARI
        DUTT SHASTRI AND            cases of agreements of sale
        ANOTHER,                    of immovable properties
        [(1977) 2 SCC 539]

(iv)    SUSHEELA M.PAREKH vs.       Testing the readiness and
        M.S.MANOHARAN,
                                    willingness of the plaintiff by
        [(2021) 4 KCCR 3208]
                                    asking him to deposit the
                                    money into court

(v)     ALEX JOSEPH vs.             Even if the sale agreement
        MADHAVAN NAIR
                                    was    held       to   be   a   loan
        [(2005) 12 SCC 378]
                                    transaction, the direction to
                                    refund      the    sums     received
                                    can be passed




(vi)     P.MEENAKSHISUNDARAM        Recovery     of    money        paid
         vs. P.VIJAYAKUMAR AND
         ANOTHER,                   without      interest          when
                                    warranted
         [(2018) 15 SCC 80]

(vii)    SHANKER SINGH vs.          Regarding       factors   to        be
         NARINDER SINGH AND
         OTHERS,                    considered      for   refund         of
                                    earnest    money      when          the
         [(2014) 16 SCC 662]
                                    plaintiff was held not entitled
                                    for specific performance

(viii)   VIJAY KUMAR AND            Regarding the obligation of
         OTHERS, vs. OM
         PARKASH,                   the seller to refund the sale
                                    consideration on refusal to
         [(2019) 17 SCC 429]
                                    decree the suit for specific
                                    performance of the buyer

(ix)     RAJESHWARI vs. PURAN       What      would    constitute        a
         INDORIA,
                                    substantial question of law
         [(2005) 7 SCC 60]
                                    under S. 100 of the CPC

 (x)     BHAGWAN BALA               Regarding     dismissal        of    a
         MAHANAVAR vs.
         SANDIPAN LAXMAN            second appeal summarily by
         SHINDE AND OTHERS,         the High Court
         [(2002) 9 SCC 532]

(xi)     R.LAKSHMIKANTHAM      vs. Mere delay in filing of the
         DEVARAJI,
                                    suit   cannot     lead    to        the
         [(2019) 8 SCC 62]
                                    inference that the plaintiff
                                    was not ready and willing




(xii)    MADEMSETTY                  Regarding    the   exercise   of
         SATYANARAYANA         vs.
         G.YELLOJI  RAO       AND discretion under S. 20 of the
         OTHERS,                     Specific Relief Act
         [AIR 1965 SC 1405]

20. There can be no quarrel with the propositions of law

laid down by the Apex Court in the above judgments but it is

to be stated that none of them would apply to the facts of this

case.

21. The case put forth by the plaintiffs was that they had

entered into a contract of sale and had also paid the entire

sale consideration within thirty days of the contract of sale in

adherence to the term stipulated in the contract and they

were therefore entitled for a decree of specific performance.

This plea, on the face of it, appears rather simple and

plausible, but on closer scrutiny, would reveal that the plea is

untenable.

22. It is to be stated at the very outset, that it would be

most unnatural for a purchaser to pay the entire sale

consideration within thirty days of executing the contract of

sale and yet did not seek to secure the execution of a sale

deed for nearly a decade i.e., for more than nine years

thereafter.

23. Further, if it is also noticed that the

purchasers/plaintiffs, had two years after paying the entire

sale consideration, not only consented to the sale of a portion

of the property by the defendant Nos. 1-4, but had also

consented for the appropriation of a further sum of

Rs.1,95,000/-(the sale consideration stipulated in the said

sale deed executed by the defendants in respect of a portion

of the property)by the seller-defendant No. 1 is very strange.

If it is also noticed that the plaintiffs had thereafter not

sought for conveyance of the remaining portion of the

property for which he had already paid the consideration, is

not only strange but perplexing. This conduct makes it

manifestly clear that the plaintiffs were never really

interested in purchasing the suit property and the transaction

was not a genuine sale transaction.

24. The further fact that the plaintiffs/purchasers for 7

years thereafter i.e., from 2004 till 2011, did not even make

a demand for execution of the sale deed, though they claimed

that they had paid the entire sale consideration way back in

the year 2002 renders the entire transaction dubious sand

completely unreal.

25. These above-mentioned sequences of events, as

admitted by the plaintiffs themselves, viewed in the light of

the timeline of the transactions involving the suit property,

belies the case of the plaintiffs that they really intended to

purchase the suit property and had indeed paid the sale

consideration.

26. Notwithstanding the doubtful nature of the entire

transaction, it will have to be examined whether the case

pleaded by the plaintiffs was tenable and they were entitled

to a decree of specific performance.

27. As regards the execution of the agreement of sale, the

1st defendant does not dispute the execution of the same and

therefore the matter would have to be examined on the basis

that an agreement of sale had been executed.

28. The first step which followed the execution of the

agreement of sale was the assertion of the plaintiffs that they

had paid a sum of Rs.2,25,000/- as advance. The Appellate

Court has noticed that the 1st plaintiff (PW-1) had admitted

during his deposition that he did not have cash of Rs. 2.25

lakhs as on the date of execution of the agreement of sale. In

fact, this is the exact deposition of the plaintiff during his

cross-examination has stated as follows:

"PÀgÁj£À ¢£ÁAPÀzÀ MAzÀÄ wAUÀ¼ÉƼÀUÉ ¸ÀA¥ÀÆtð ºÀt ¥ÁªÀw¹ £ÉÆAzÀt ªÀiÁrPÉƼÀî¨ÉÃPÀÄ JA§ ±ÀvÀð EzÉ. F ¸ÀAzÀ¨sÀð JgÀqÀÄ ®PÀë E¥ÀàvÉÊzÀÄ ¸Á«gÀ£ÀÄß ²æäªÁ¸À ¥ÉÊgÀªÀjUÉ ZÉPï£À ªÀÄÆ®PÀ ¤ÃrgÀÄvÉÛãÉ. D ZÉPï £ÀUÀ¢ÃPÀgÀtUÉÆArgÀĪÀÅ¢®è. JgÀqÀÄ ¢ªÀ¸ÀzÀ°è £Á£ÀÄ £ÀUÀzÁV ºÀt PÉÆlÖzÀÝjAzÀ CzÀÄ £ÀUÀ¢ÃPÀgÀtªÁVgÀĪÀÅ¢®è. D ZÉPÀÌ£ÀÄß »AzÀPÉÌ £Á£ÀÄ ¥ÀqÉzÀÄPÉÆArgÀĪÀÅ¢®è."

He has also further stated as follows:

"¸ÁQëUÉ MAzÀÄ ZÉPÀÌ£ÀÄß vÉÆÃj¹zÀÄÝ ¸ÀzÀj ZÉPÀÌ£ÀÄß vÁ£ÀÄ 1£Éà ¥ÀæwªÁ¢ gÀÆ.2,25,000/- PÉÆnÖgÀÄvÉÛÃ£É JAzÀgÉ ºËzÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. CzÀ£ÀÄß ¤r 1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¤r 1 ZÉPÀÌ£ÀÄß £À£Àß SÁvÉAiÀÄ°è ºÀt E®èzÀ PÁgÀt £ÀUÀ¢ÃPÀgÀt DV®èªÉAzÀgÉ ¸ÀjAiÀÄ°è. ¤r 1 ZÉPÀÌ£ÀÄß DgÀÄ ¨Áj £ÀUÀ¢ÃPÀgÀtPÉÌ ¸À°è¹zÀ ¸ÀAzÀ¨sÀð £Á£ÀÄ ¥sÉÆãÀ ªÀiÁr ¸Àé®à ¸ÀªÀÄAiÀÄ ©lÄÖ ¸À°è¸ÀĪÀAvÉ PÉÆÃjPÉÆArzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ºÉüÀÄvÁÛgÉ vÁ£ÀÄ 1£Éà ¥ÀæwªÁ¢ ªÀÄ£ÉUÉ ºÉÆÃV gÀÆ.2,25,000/- PÉÆnÖgÀĪÀÅzÁV £ÀÄrAiÀÄÄvÁÛgÉ ¸ÀzÀj ªÉÆvÀÛªÀ£ÀÄß £Á£ÀÄ vÁ¬ÄAiÀĪÀgÀ SÁvɬÄAzÀ vÉUÉzÀÄPÉÆnÖgÀÄvÉÛãÉ."

29. These admissions of the 1st plaintiff establish, firstly,

that he did not have the funds to pay the advance of Rs.

2,25,000/- and that the cheque given by him and had

remained with the 1st defendant uncashed. Secondly, it also

establishes that he had withdrawn the sum of Rs. 2,25,000/-

from his mother's account and paid the said sum by way of

cash to the 1st defendant. The 1st plaintiff could have thus

established his assertion that he had paid Rs. 2,25,000/- to

the 1st defendant by simply producing an extract of the Bank

statement of his mother's account. Since this has admittedly

not been done, the Appellate Court was justified in concluding

that the advance amount of Rs. 2,25,000/- was never paid to

the 1st defendant.

30. It is also to be kept in mind that in a case, where the

plaintiffs had entered into a written agreement of sale and

had given a cheque for Rs. 2,25,00/- as advance, it is

inconceivable that when this very advance sum of Rs. 2.25

lakhs was paid by way of cash in lieu of the cheque which was

not encashed, neither the return of the cheque had been

obtained nor a receipt had been obtained for the payment of

cash.

31. In fact, the Appellate Court has also noticed that when

a legal notice demanding the execution of the sale deed was

made in 2011, the said notice was silent about the mode of

payment. In my view, having regard to the totality of

circumstances stated above, both the Courts were compelled

to take the view that the advance sum of Rs. 2.25 lakhs was

not paid by the plaintiffs.

32. As regards the second step following the execution of

the agreement of sale i.e., the assertion that the entire

balance sale consideration of Rs. 7,35,000/- was paid within

30 days by the issuance of a Bankers cheque is concerned,

the Appellate Court has noticed that the 1st defendant did

admit that he had received this cheque and had also

encashed it. The 1st plaintiff in the course of his cross-

examination has stated as follows:

"¸ÀzÀj ªÉÆvÀÛªÀ£ÀÄß £Á£ÀÄ ¸ÉÖmï ¨ÁåAPï D¥ï EArAiÀiÁ¢AzÀ ¸Á® ¥ÀqÉzÀÄ ºÁUÀÆ £À£Àß°èzÀÝ ºÀtªÀ£ÀÄß MlÄÖ ªÀiÁr gÉr EnÖzÉÝ. ¸ÀzÀj ¸Á®ªÀ£ÀÄß £Á£ÀÄ zÁªÁ D¹ÛAiÀÄ£ÀÄß CqÀªÀiÁ£À ªÀiÁr ¥ÀqÉzÀÄPÉÆArgÀĪÀÅ¢®è. PÀgÁj£À DzsÁgÀzÀ ªÉÄÃ¯É ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛãÉ."

33. It is thus clear that the 1st plaintiff had to raise a loan

from SBI to pay the balance sale consideration. However, no

document evidencing the sanction of a loan was produced. If

this admission is viewed in the background of the fact that

the 1stplaintiff, as per his earlier admission, did not have cash

of Rs. 2,25,000/- just about 22 days before he entered into

an agreement of sale, it would clearly prove that the 1st

plaintiff did not have the funds to pay the balance sale

consideration of Rs. 7,35,000/-.

34. It is also to be kept in mind that the original agreement

of sale dated 06.03.2002 was not produced by the 1st plaintiff

and though it was stated that the said agreement was given

to the Bank at the time of availing the loan, no documents

were produced to show that a loan had been availed and as

collateral this agreement had been handed over to the Bank.

This also reinforces the fact that the plaintiffs did not have a

sum of Rs. 7,35,000/- at their disposal within 28 days of the

execution of the agreement of sale.

35. The Trial Court has recorded a finding that the 1st

defendant had taken a specific contention that he had

returned a sum of Rs. 5,29,380/- by way of the deposit of a

cheque into the Bank account of the 1st plaintiff, which had

been established by the production of Ex D-2, the Bank

Challan.

36. It is to be noticed here that this cheque was deposited

into the plaintiff's Bank account vide Ex D-2 on 28.02.2006

i.e., nearly 4 years after the agreement of sale and more

importantly 2 years after the sale of a portion of the property

that had been agreed to be sold under the agreement of sale,

to which the 1st plaintiff was a witness. The Trial Court has

noticed that the plaintiff had not placed any material to show

in respect of which transaction the said sum of Rs. 5,29,380/-

had been paid to the 1st plaintiff and thus this payment of Rs.

5,29,380/- proved the contention of the 1st defendant that

this was the amount paid towards the return of the sale

consideration of Rs. 7,35,000/-.

37. Admittedly, the 1st defendant was paid a sum of Rs.

1,95,000/- by means of a demand draft when a portion of the

property was sold in 2004. If the plaintiff had already paid the

entire sale consideration of Rs. 9,60,000/- payable under the

agreement of sale, the 1st defendant would not be permitted

to be paid this sum of Rs. 1,95,000/- as that would mean that

he was getting a sum in excess of the agreed sale

consideration which had been paid 4 years ago. It is in this

context, that the finding of both the Courts that the payment

of Rs. 5,29,380/- was towards the repayment of the sum of

Rs. 7,35,000/- paid under the Bankers cheque is to be

viewed. This finding of the Courts regarding repayment

cannot, therefore, be said to be improper or irrational.

38. Thus, since both the Courts have held that the payment

of the advance amount of Rs. 2,25,000/- had not been

established and the payment of Rs. 5,29,380/- by the 1st

defendant to the plaintiff had been proved and had thereby

established that it was towards repayment of the sum of Rs.

7,35,000/-, the plaintiffs would not be entitled to a decree of

specific performance.

39. The argument of the Learned Counsel that the finding

of the Courts that the suit was barred was erroneous cannot

also be accepted. The agreement of sale contains the

following recital:

"vÀ¥À²Ã®£É D¹ÛAiÀÄ §UÉÎ, F ¢£À¢AzÀ MAzÀÄ wAUÀ¼À M¼ÀUÁV, MAzÀ£Éà ¥ÁnðAiÀĪÀjAzÀ, JgÀqÀ£Éà ¥ÁnðAiÀĪÀgÀÄ PÀæAiÀÄ zÀ¸ÁÛªÉÃdÄ §gɬĹPÉƼÀîvÀPÀÌzÀÄÝ. ºÁUÉà §gɬĹPÉƼÀÄîªÀ ªÉÆzÀ®Ä G½PÉ ºÀt

gÀÆ¥Á¬Ä 7,35,000/- (J¼ÀÄ ®PÀëzÀ ªÀÄĪÀvÉÛöÊzÀÄ ¸Á«gÀ gÀÆ¥Á¬Ä) UÀ¼À£ÀÄß MAzÀ£Éà ¥ÁnðAiÀĪÀjUÉ JgÀqÀ£Éà ¥ÁnðAiÀĪÀgÀÄ PÉÆqÀ®Ä §zÀÝjgÀÄvÁÛgÉ. F ¸ÀAzÀ¨sÀðzÀ°è JgÀqÀ£Éà ¥ÁnðAiÀĪÀjUÉ CxÀªÁ CªÀgÀÄ vÉÆÃj¹ PÉÆlÖªÀgÀ ºÉ¸ÀjUÉ vÀ¥À²®£À D¹ÛAiÀÄ£ÀÄß gÉrAiÀiÁV AiÀiÁ ¥ÀævÉåÃPÀªÁV PÀæAiÀÄ ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄPÉÆqÀ®Ä MAzÀ£Éà ¥ÁnðAiÀĪÀgÀÄ §zÀÝjgÀÄvÁÛgÉ."

40. The said clause clearly states that the sale deed was

required to be executed within a month and before the said

period the balance sum of Rs. 7,35,000/- was required to be

paid. The fact that a specific time of 30 days was stipulated

for obtaining the registration of the sale deed by itself makes

it clear that a time frame was fixed for the performance of

the contract and time was of the essence in the contract.

41. It may also be pertinent to state that there was a

specific recital regarding the consequence of the 1st defendant

not executing a sale deed in the agreement of sale. The said

Clause 9 reads as follows:

"F ¢£À vÀ¥À²Ã®£À D¹ÛAiÀÄ£ÀÄß MAzÀ£Éà ¥ÁnðAiÀĪÀgÀÄ JgÀqÀ£Éà ¥ÁnðAiÀĪÀgÀ SÁ¸Á ¸Áé¢üãÀPÉÌ ©lÄÖ PÉÆlÖzÀÄÝ, JgÀqÀ£Éà ¥ÁnðAiÀĪÀgÀÄ ¸Áé¢üãÀ ºÉÆA¢gÀÄvÁÛgÉ."

42. As could be seen from the said clause, if the 1st

defendant did not execute the sale deed within 30 days,

within which time the balance sale consideration was to be

paid, the plaintiff was required to sue for specific performance

and would also be liable for the cost of the said action and

damages not exceeding a sum of Rs. 4,50,000/-. This clause

leaves no room for doubt that time was fixed for the

performance of the contract and that penal consequences

would visit the 1st defendant if he did not execute the sale

deed.

43. However, despite a specific time frame fixed under the

agreement, admittedly, neither a demand was made from

2002 till 2011 nor was any action was brought before a Court

of Law for specific performance for more than 9 years and

this was despite the fact that the plaintiffs paid the entire sale

consideration in 2002 itself. This goes to show that the suit

was time-barred.

44. Both the Courts have also noticed that the 1st plaintiff

was a consenting witness to the sale deed executed by the

defendants 1 to 4on 17.5.2004in respect of a portion of the

suit schedule 'A' property which the plaintiff had contracted to

buy and this also amounted to a refusal on the part of the 1st

defendant to abide by the terms of the contract. Since the 1st

plaintiff was admittedly a witness to the sale deed executed

on 17.5.2004, it cannot be in dispute that the 1st plaintiff was

aware that a portion of the property for which he had paid the

entire sale consideration was sold. If the holder of an

agreement of sale had consented for sale of a portion of the

property for which he had paid the entire sale consideration

and yet did not seek for the execution of a sale deed in his

favour in respect of the remaining portion, both the courts

were justified in coming to the conclusion that assuming time

was not fixed for performance of the contract, the day on

which a portion of the property had been sold would

constitute the starting point of limitation to sue for specific

performance in respect of the remaining portion.

45. It is also to be noticed here that if an agreement of sale

holder consents for a sale of a portion of the property that he

had contracted to buy and thereafter does not make a

demand for execution of a sale deed in respect of the

remaining portion for 8 years thereafter, it is obvious that he

had abandoned or waived his rights under the agreement of

sale by virtue of his conduct.

46. The last argument of the learned counsel for the

appellant that the Appellate Court was not justified in refusing

to permit the production of additional evidence, cannot also

be accepted. The Appellate Court has found that all the

documents sought to be produced were in relation to a period

from 2001 to 2003, while the suit was filed only in 2011.

Since the Appellate court has found that the documents

sought to be produced were not required to enable it to

pronounce its judgment, it was justified in rejecting the same

since.

47. In conclusion, in my view, entertaining a suit filed for

specific performance in 2011 for enforcing an agreement of

sale of the year 2002 after the entire sale consideration was

allegedly paid in 2002 itself would neither be just or

equitable.

48. The prayer of the appellant for a refund of the earnest

money cannot also be accepted since both the Courts have

recorded a finding of fact that the plaintiff had failed to

establish that he had paid the advance and that he had

received a sum of Rs.5,29,380/- from the 1st defendant in

2006 itself as repayment of the sum of Rs.7,35,000/- that he

had paid on 28.3.2002.

49. I am therefore of the view that there is no question of

law, much less a substantial question of law involved in this

second appeal and the same is dismissed.

Sd/-

JUDGE

RK CT:SN