Karnataka High Court
Mohanasa Nagusa Chawan vs Narayansa Takkusa Raibagi on 21 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:14982
RFA No. 100004 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.100004/2015(SP)
BETWEEN:
MOHANASA NAGUSA CHAWAN,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: GAJENDRAGAD, TQ: RON,
NOW AT MAIN ROAD MANVI,
TQ: MAANVI, DIST: RAICHUR,
TILAKWADI, BELAGAVI.
...APPELLANT
(BY SRI S. H. MITTALKOD, ADVOCATE)
AND:
1. NARAYANSA TAKKUSA RAIBAGI,
AGE: 69 YEARS,
VIJAYALAKSHMI OCC: BUSINESS AND WEAVING,
M KANKUPPI
R/O: GANJIPETH GAJENDRAGAD,
Digitally signed by
VIJAYALAKSHMI M
TQ: RON, THROUGH THEIR GENERAL
KANKUPPI
Date: 2023.12.22 POWER OF ATTORNEY
11:21:46 +0530
MAHONARSA NARAYANASA RAIBAGI
AGE: 32 YEARS,
OCC: BUSINESS AND WEAVING,
R/O: GAJENDRAGAD, TQ: RON.
SINCE DECEASED BY HIS LR'S.
1A. SMT. PRABHAVATIBAI
W/O. NARAYANSA RAIBAGI,
AGE: 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O: 5TH WARD, BESIDE RAGHAVENDRA
HARWARE, OPP BUS STAND,
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NC: 2023:KHC-D:14982
RFA No. 100004 of 2015
GAJENDRAGAD,
TQ: RON, DIST: GADAG.
1B. SMT. SAVITRIBAI
W/O. NARAYANASA RAIBAGI,
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: 5TH WARD,
BESIDE RAGHAVENDRA
HARWARE, OPP BUS STAND,
GAJENDRAGAD,
TQ: RON, DIST: GADAG.
1C. MANOHAR
S/O. NARAYANSA RAIBAGI,
AGE: 30 YEARS, OCC: HOUSE HOLD WORK,
R/O: 5TH WARD, BESIDE RAGHAVENDRA
HARDWARE, OPP BUS STAND,
GAJENDRAGAD,
TQ: RON, DIST: GADAG.
1D. GOVIND
S/O. NARAYANSA RAIBAGI,
AGE: 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O: 5TH WARD, BESIDE RAGHVENDRA
HARWARE, OPP. BUS STAND,
GAJENDRAGAD,
TQ: RON, DIST: GADAG.
...RESPONDENTS
[BY SRI LAXMAN T. MANTAGANI, ADVOCATE FOR R1(A - D)]
THIS RFA IS FILED U/S.96 R/W ORDER 41 RULE 1 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
06.12.2014 PASSED BY THE SENIOR CIVIL JUDGE, AND JMFC, RON,
IN O.S.NO.39/2010 AND ETC.,
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:14982
RFA No. 100004 of 2015
JUDGMENT
The appeal is filed by the defendant challenging the
judgment and decree passed in OS No.39/2010 dated
06.12.2014 by Senior Civil Judge and JMFC., RON.
2. For the purpose of easy reference, ranking of the
parties is referred as per their rankings before the trial
court.
3. The plaintiffs-respondents have filed a suit for
specific performance of contract praying to decree the suit
directing the defendant to receive balance sale
consideration of Rs.42,300/- and execute the sale deed in
favour of the plaintiff. The suit is contested by the
defendant. The suit is decreed directing the defendant to
execute an absolute sale deed in favour of plaintiffs by
receiving balance sale consideration amount of
Rs.42,300/- within a period of three months from the date
of decree. Being aggrieved by this judgment and decree,
the defendant has preferred present appeal.
NC: 2023:KHC-D:14982
4. The learned counsel for the appellant-defendant
submitted that now the market value of the property is
more than rupees eighty lakhs and directed the defendant
to receive balance sale consideration of Rs.42,300/- is
wholly unjust, arbitrariness and harsh to the defendant
and therefore, decree for specific performance of contract
cannot be granted. Further, submitted that whatever the
sale consideration amount received by the defendant, the
defendant is ready to reimburse the said sale
consideration amount to the plaintiffs. Further submitted
that the plaintiffs are in possession of the suit property
and they are receiving rent of Rs.1,20,000/- per year.
Therefore, submitted that the decree of specific
performance of contract granted by the trial court is
unjust, arbitrariness, harsh and causing hardship to the
defendant. Hence, prays to allow the appeal by setting
aside judgment and decree passed by the trial court.
5. On the other hand, learned counsel for the plaintiffs
-respondents submitted that execution of agreement of
NC: 2023:KHC-D:14982
sale is proved and the defendant has received sale
consideration amount and therefore, trial court is correct
in decreeing the suit and there is no merit in the appeal.
Hence, prays to dismiss the appeal.
6. Ex.P.7 is agreement of sale between plaintiffs and
defendant that the defendant has agreed to sell the suit
property for total consideration of Rs.15,00,000/- and
plaintiffs have paid Rs.14,57,700/- to the plaintiff. The
agreement of sale is dated 29.11.2001.
7. Section 20 of the Specific Relief Act is a discretionary
relief. Just because, the agreement of sale is proved and is
lawful that cannot be the reason to decree the suit in toto.
When granting decree of Specific Performance of Contract
causes undue hardship to the defendant and is
unreasonable and arbitrary then relief of Specific
Performance cannot be granted. But, in the present case,
directing the defendant to receive balance sale
consideration amount of Rs.42,300/- from the plaintiffs
and execute absolute sale deed in favour of the plaintiffs is
NC: 2023:KHC-D:14982
amounting to undue hardship to the defendant not only
arbitrary and unreasonable. Therefore, the decree of
Specific Performance of Contract cannot be granted.
Therefore, the appeal filed by the defendant is liable to be
allowed by directing the defendant to reimburse amount of
Rs.14,57,700/- to the plaintiffs.
8. The learned counsel for the respondents-plaintiffs
submitted that the said amount be reimbursed by
calculating the interest at the rate of 9% per annum to the
plaintiffs. It is submitted that the plaintiffs are in
possession over the suit property and is receiving rent of
Rs.1,20,000/- per annum. Plaintiffs are receiving such rent
amount from twenty years in possession over the property
and have received more than sum of Rs.24,00,000/-. But,
if it is ordered to pay interest even at 6% on the above
said amount by the defendant, then it would be
Rs.17,49,240/-. Therefore, by making balance in these
two that the plaintiffs have possession over the suit
property and is receiving rent, the plaintiffs are
NC: 2023:KHC-D:14982
at advantageous position. Hence, considering this, interest
is not awarded. Therefore, it is directed the defendant-
appellant to reimburse a sum of Rs.14,57,700/- to the
plaintiffs.
9. Accordingly, I proceed to pass the following:
ORDER
i) Appeal is allowed.
ii) The judgment and decree passed in
O.S.No.39/2010 dated 06.12.2014 by the Senior
Civil Judge and JMFC., Ron is hereby set aside.
iii) Appellant-defendant is directed to re-
imburse an amount of Rs.14,57,700/- to the
respondents-plaintiffs within a period of six
months.
iv) Draw decree accordingly.
SD/-
JUDGE
HMB
CT-ASC
