Karnataka High Court
Smt. Ningarsultana W/O Yusufkhan ... vs Modinbhi W/O Fakrusab Tahasildar on 6 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100406 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100406 OF 2017 (SP/DE/IN)
BETWEEN:
SMT. NINGARSULTANA W/O. YUSUFKHAN BALLARY
AGE:47 YEARS,
OCC:AGRICULTURE AND HOUSE WIFE,
R/O:TABEEB LAND, HUBBALLI,
DIST:DHARWAD-580001.
...APPELLANT
(BY SRI. KALEEMULLAH SHERIFF, ADVOCATE)
AND:
MODINBHI W/O. FAKRUSAB TAHASILDAR
SINCE DECEASED BY HER LR.,
Digitally signed
by K M
SOMASHEKAR
Location: HIGH
1. JAINUBI D/O. ALLABAKSHA TAHASILDAR
COURT OF
KM KARNATAKA
SOMASHEKAR DHARWAD
BENCH
@ LATEMMANAVAR,
Date:
2023.12.13
11:44:11
AGED ABOUT 65 YEARS,
+0530
OCC: HOUSEHOLD AND AGRICULTURE,
R/O: NARENDRA VILLAGE,
TQ: DHARWAD-580001.
2. CHANNABASAPPA S/O. GURAPPA KARDANNAVAR
AGED ABOUT 60 YEARS, OCC:AGRICULTURE,
R/O:KERI ONI, SATTUR VILLAGE,
TQ: AND DIST: DHARWAD-580001.
3. MAHADEVI W/O. CHANNABASAPPA KARDANNAVAR
AGED ABOUT 60 YEARS, OCC:HOUSE WIFE,
R/O:KERI ONI, SATTUR VILLAGE,
TQ: AND DIST: DHARWAD-580001.
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RFA No. 100406 of 2017
4. VIRUPAXAPPA S/O. BASAPPA MUTTAGI
AGED ABOUT 75 YEARS,
OCC:AGRICULTURE,
R/O:CHAVADI ONI, SATTUR VILLAGE,
TQ: AND DIST: DHARWAD-580001.
...RESPONDENTS
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1;
SRI PRAKASH UDIKERI AND SRI M.H. PATIL ADVOCATE FOR R2 TO
R4)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DTD:03.07.2017 PASSED IN O.S.NO.300/2015 ON THE FILE OF THE
III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, AND GRANT THE
RELIEF OF SPECIFIC PERFORMANCE AND MANDATORY INJUNCTION
AS PRAYED IN THE SUIT IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellants counsel and also the counsel
appearing for respondent.
2. This appeal is filed challenging the judgment
and decree passed in O.S.No.300/2015 dated 03.07.2017
by the III-Additional Senior Civil Judge, Hubballi (for short
"Trial Court") questioning non-grant of relief of specific
performance.
3. The factual matrix of the case of plaintiff before
the Trial Court is that, defendant No.1 agreed to sell the
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suit schedule property for Rs.32,00,000/- and entered into
an agreement of sale dated 23.12.2006 and received
earnest money of Rs.6,00,000/-. It is also the case of the
plaintiff that she is always ready and willing to perform her
part of contract. It is also the contention of the plaintiff
that the sale deed executed by defendant No.1 in favour of
defendants 2 to 4 is not binding on the plaintiff.
4. The defendants 2 to 4 in their written statement
took the specific defence that they are bonafide
purchasers of the suit schedule property for valuable
consideration. The Trial Court taking note of the
averments made in the plaint and also in the written
statement, framed following issues:
1. Whether the plaintiff proves that defendant No.1 by
agreeing to sell the suit property for Rs.32,00,000/-
entered into a sale agreement dated 23-12-2006 and
received Rs.6,00,000/- as part consideration?
2. Whether the plaintiff proves that he is always ready
and willing to perform his part of contract?
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3. Whether the plaintiff proves that the sale deed
executed by defendant No.1 in favour of defendants
No.2 to 4 is not binding on the plaintiff? Deleted.
4. Whether the defendant No.1 proves that the Court
fee paid is insufficient?
5. Whether defendants No.2 to 4 prove that they are
the bonafide purchasers of the suit property for
valuable consideration? Deleted.
6. Whether the plaintiff is entitled for the reliefs claimed
in the suit?
7. What order?
5. The Trial Court deleted issue No.3 and 5 and
allowed the parties to lead their evidence. Accordingly, the
plaintiff examined as PW1, her husband is examined as
PW2, one witness is examined as PW3 and also Advocate
Notary is examined as PW4. Ex.P1 to Ex.P15 are marked
on behalf of the plaintiff and through PW4 Ex.C1 and
Ex.C1(a) are also marked. Defendant No.1 examined as
DW1 by filing her affidavit. Defendant No.2 is also
examined as DW2. However, no documents are marked on
their behalf.
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6. The Trial Court having considered the oral and
documentary evidence placed on record, answered issue
No.1 and 2 in affirmative. However, the Trial Court only
ordered to refund the amount of Rs.6,00,000/- with
interest @ 12% per annum from the date of institution of
suit till actual realization.
7. Being aggrieved by the judgment and decree of
the Trial Court, the present appeal is filed by the plaintiff
questioning the judgment and decree.
8. The counsel for appellant would vehemently
contend that when the Trial Court has answered issue
No.1 and 2 in affirmative, it ought to have granted the
relief of specific performance, instead it ordered for refund
of earnest money with interest @12% per annum from the
date of institution of suit till actual realization. The Trial
Court has recorded a categorical finding to the effect that
defendants have failed to prove that Ex.P1 and Ex.P2 were
executed as security documents for repayment of loan.
Learned counsel would also vehemently contend that when
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issue No.1 and 2 regarding readiness and willingness of
the plaintiff to perform her part of contract are answered
in affirmative, the Trial Court ought to have granted the
relief of specific performance. The Trial Court has
committed an error in not considering both oral and
documentary evidence in proper perspective. The very
approach of the Trial Court in ordering refund of amount of
Rs.6,00,000/- with interest @12% per annum from the
date of institution of suit is erroneous. The counsel would
also vehemently contend that when the agreement was
executed, no doubt a suit was pending, and only on the
ground of hardship the Trial Court declined to grant the
relief of specific performance. Learned counsel would
submit that there is no pleading with regard to hardship
and also no issue has been framed with regard to
hardship. Under such circumstances, the Trial Court ought
not to have rejected the prayer of specific performance.
9. The learned counsel in support of his arguments
relied upon the judgment of the Hon'ble Apex Court in the
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case of Gobind Ram v. Gian Chand1. The counsel while
referring this judgment would vehemently contend that
when the plaintiff proves that defendants have not come
forward to execute the sale deed and the suit is filed for
specific performance of contract and the appellants offered
to pay money to the respondent to cancel the contract and
respondent deposited the balance consideration, not
taking any unfair advantage over appellant and the
appellants trying to wriggle out of contract in view of
escalation of price of real estate properties, however to
mitigate the hardship, respondent is directed to pay
further amount to the appellant on his giving possession of
the property. The counsel would also rely on the judgment
of the Hon'ble Apex Court in Civil Appeal No.9974/2014
between Zarina Siddiqui and A.Ramalingam alias
R.Amarnathan. At paragraph 39 of the said Judgment
the Hon'ble Apex Court has also taken note of factual
circumstances of the case and considering the phenomenal
AIR 2000 SC 3106
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increase in price during the period the matter remained
pending in different courts, we are of the considered
opinion that the impugned order under appeal be set aside
with a condition imposed upon the appellant to pay a sum
of Rs.15,00,000/- in addition to the amount already paid
by the appellant to the respondent. Counsel also relied on
the judgment of this Court in the case of K.Gajendran v.
Chikkathimma and others2. At paragraph 17 of the said
judgment, Court has discussed with regard to having
made the payment already and willing to pay the
defendant's sale consideration at the rate of 300 per sq.ft
or at the rate as may be reasonably fixed by considering
the facts of the case. Counsel would also submit that even
the appellants are ready to pay more consideration and
the Court has to grant the relief of specific performance.
10. The counsel for appellant has also relied upon
the judgment in the case of A.Maria Angelena (Dead)
ILR 2007 KAR 4440
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and others v. A.G.Balkis Bee3 and brought to the notice
of this Court that in paragraph 3 and 4 of the said
judgment the Hon'ble Apex Court has held that in any
event of the matter, no hardship as now stated was
pleaded in the written statement, further no issue was
framed that the plaintiff-respondent could be compensated
in terms of money in lieu of the decree for specific
performance. Counsel also relied upon the recent
judgment of the Hon'ble Apex Court in the case of
R.Hemalatha v. Kashthuri4 and brought to the notice of
this Court regarding observation made by the Hon'ble
Apex Court that High Court rightly held that the
unregistered agreement to sell was admissible in evidence
in the suit for specific performance as per Proviso to
Section 49 of the Registration Act.
11. Per contra, learned counsel appearing for the
respondents would vehemently contend that prior to the
(2002) 9 SCC 597
AIR 2023 SC 1895
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subject matter of agreement dated 23.12.2006, earlier
there was an agreement of sale dated 05.10.2006. He
would also bring to the notice of this Court that in terms of
earlier agreement dated 05.10.2006, the sale
consideration was Rs.76,59,350/- and after lapse of two
months an agreement came into existence for sale
consideration of Rs.32,00,000/- and therefore, the Court
has taken note of the same and the same is not sale
transaction. Counsel in his argument would vehemently
contend that, the plaintiff, who filed the suit is not aware
of anything and throughout the cross-examination, she
has stated that she is not aware of anything about the
transaction and only her husband is aware of the same.
Counsel would also submit that the husband is also
examined as PW2 and other witnesses have also been
examined. Counsel has also brought to the notice of this
Court the answer elicited from the mouth of PW1 in the
cross-examination with regard to two documents i.e.
agreement of sale of the month October-2006 as well as in
the month of December-2006. Apart from that, the
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counsel would bring to the notice of this Court that PW1
has categorically admitted that her husband was doing
financial transaction and it is clear that it is not the case
for exercising the discretion invoking section 20 of the
Specific Relief Act and the plaintiff has not made out any
grounds to grant the relief of specific performance and
hence, prayed the Court to dismiss the appeal.
12. Having heard the arguments advanced by the
learned counsel for appellant and the learned counsel
appearing for respondents, the points that would arise for
our consideration are as under:
i) Whether the Trial Court has committed an error
in not granting the relief of specific
performance and whether it requires
interference by this Court?
ii) What order?
13. Having heard the respective counsels, the
material on record discloses that there is an agreement
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between the parties. The respondents also do not dispute
the fact that there are two documents one in the month of
October-2006 and another in the month of December-
2006. It is also important to note that during the course of
evidence also, it is emerged that earlier sale agreement
was for sale consideration of Rs.76,59,350/- and the same
is also admitted in the cross-examination of PW.1 in
paragraph No.3. No doubt it is suggested to PW.1 that
subsequent document is created only in order to knock of
the property and the said suggestion was denied. But
PW.1 says that she does not know anything about the
same and her husband is aware of the same.
14. Learned counsel for the appellant brought to
the notice of this Court that PW.2 has explained the same
in his evidence in paragraph No.4 of the examination-in-
chief affidavit, wherein it is stated that as there was an
agreement of sale executed on 23.12.2006 after the
cancellation of the earlier agreement of sale dated
05.10.2006 only on the ground that information is
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mentioned about the suit between her and defendants
No.2 to 4. In that agreement of sale of cancellation as well
as the continuation of the new agreement of sale executed
by Smt.Modinbhi and in the same Smt.Jainubi, daughter
signed on the said agreement of sale and she is the
witness. Hence, there is explanation on the part of PW.2
with regard to mentioning amount and variance with
regard to the earlier document and subsequent document
with regard to price is concerned.
15. Counsel would also vehemently contend that
when the plaintiff approached the defendants to return the
amount, under such circumstances, defendant No.1 herself
has come forward to execute the subject matter of the
second agreement agreeing to sell the property for an
amount of Rs.32,00,000/- and hence the same is
explained by PW.2 in his evidence and the same has not
been taken note of by the trial Court and hence it requires
interference.
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16. But on overall consideration of the evidence of
PW.1, there is clear admission that the husband of the
plaintiff only knows about variance of the amount
mentioned in document Ex.P.1 and Ex.P.2 and it is also
important to note that within a span of two months the
amount was reduced to Rs.32,00,000/- as against
Rs.76,59,350/- and apart from that in the cross-
examination, PW.1 has categorically admitted with regard
to the fact that the husband of the plaintiff was also doing
financial transaction earlier and now from last ten years he
is not doing the same. The admission given by PW.1 is
also very clear that when suggestion was made that
property is worth about one crore in respect of
surrounding area of agricultural land of Sutagatti village,
the same has been admitted in the cross-examination of
defendants counsel.
17. Having considered these admissions available
on record and also the evidence of PW.1, it is admitted
that she is not aware of anything about the sale
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transaction is concerned and only her husband knows
about the sale transaction. When such materials are
available before the Court, it is not a fit case to grant the
relief of specific performance. Even assuming that the
transaction is lawful and the Court has to exercise its
discretion under Section 20 of the Specific Relief Act. It is
also settled law that even though the agreement is lawful
and valid agreement, the Court has to assess the overall
evidence available on record before the Court while
exercising discretion under Section 20 of the Specific Relief
Act.
18. The trial Court having considered the material
on record, has rightly comes to the conclusion that it is a
case for refund of earnest money, however failed to take
note of the fact that when amount of Rs.6,00,000/- was
received and though respondents contend that the
transaction is not of sale transaction and when the
document was executed within a span of two months i.e.
in the month of October-2006 and another agreement in
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the month of December-2006, considering the factual
material available on record, we do not find any error
committed by the trial Court in granting the relief of
refund of earnest money and in refusing the relief of
specific performance.
19. Having given our anxious consideration to both
oral and documentary evidence, no doubt the
respondents-defendants have not placed any documents
before the Court but once the material discloses that even
the husband of the plaintiff was also doing financial
transactions, it is not a case for granting the relief of
specific performance. Further, PW.1 also categorically
admitted that worth of the property is one crore
surrounding the area of Sutagatti village. When all these
materials are taken note of, the judgment and decree of
the trial Court do not require any interference. However,
considering the transaction of the year 2006 and the fact
that an amount of Rs.6,00,000/- was received in terms of
the agreement, it is appropriate to modify the judgment
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and decree of the trial Court by enhancing the interest
from 12% to 18%.
20. The trial Court has also committed an error in
granting interest from the date of institution of the suit
and the very judgment and decree of the trial Court is
erroneous and it ought not to have granted the amount
with interest from the date of the suit and it ought to have
been granted the interest from the date of the agreement
i.e. 05.10.2006. Hence, we answer the above point in
negative by modifying the judgment and decree.
21. In view of the discussions made above, we pass
the following:
ORDER
The appeal is allowed in part.
The impugned judgment and decree passed by the
trial Court is modified granting refund of earnest money of
Rs.6,00,000/- with 18% interest from the date of first
agreement i.e. 05.10.2006 till realization.
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Registry is directed to return the trial court records
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
YAN, SH
