Sri. K. R. Venkatesh vs B. C. Lalitha
2023 Latest Caselaw 488 Kant

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6th DAY OF JANUARY, 2023

                       BEFORE

        THE HON'BLE MR.JUSTICE H.P.SANDESH

     REGULAR SECOND APPEAL NO.1591/2022 (MON)

BETWEEN:

SRI.K.R.VENKATESH,
S/O LATE RAJANNA SHETTY,
AGED ABOUT 75 YEARS,
R/O WARD NO.22, NEAR KITHURU
RANICHANNAMMA CIRCLE,
HIRIYUR TOWN - 577 598.
                                       ...APPELLANT

(BY SRI.RAVI H.K., ADVOCATE)


AND:

1.     B.C.LALITHA,
       W/O ANNAPPA,
       AGED ABOUT 33 YEARS,

2.     ANNAPPA,
       S/O LATE SHARANAPPA,
       AGED ABOUT 43 YEARS,

       BOTH THE RESPONDENTS ARE
       RESIDING AT
       SRI.DEVI WIE PARADISE,
       VEDAVATHI NAGAR,
       HIRIYUR TOWN - 577 598.
                                   ... RESPONDENTS
                              2



      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 03.08.2022 PASSED IN R.A. NO.62/2019
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
HIRIYUR, CHITRADURGA, DISMISSING THE APPEAL AND
CONFIRMING     THE    JUDGMENT      AND   DECREE       DATED
14.08.2019 PASSED IN O.S. NO.14/2016 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND JMFC, HIRIYUR.


      THIS REGULAR SECOND APPEAL COMING ON FOR
ORDERS,    THIS    DAY,   THE     COURT   DELIVERED      THE
FOLLOWING:
                        JUDGMENT

This matter is listed for orders on I.A. No.1/2022 for

stay of the Judgment and Decree passed by the Trial Court

as well as the Appellate Court.

2. Heard learned counsel for the appellant.

3. The factual matrix is that the plaintiff who

entered into an agreement with the appellant herein filed

the suit for recovery of money for a direction to the

defendant to refund the amount of Rs.50,000/- along with

interest which he received by entering into an agreement

and on the date of the agreement while in fact he was not

the owner and one Sri. Krishnamurthy was the owner of

the property. The Trial Court after considering both the

oral and documentary evidence decreed the suit and

directed the defendant to pay Rs.50,000/- along with 12%

interest per annum considering that he was not the owner

and he was only an agreement holder and one

Sri. Krishnamurthy was the owner of the property.

The same was challenged by the appellant before the

First Appellate Court and First Appellate Court on re-

appreciation of the material available on record, dismissed

the appeal. Now the plaintiff has filed the Execution

Petition and enforced the Judgment and Decree which has

been confirmed by the First Appellate Court and as such,

the present appeal is filed by the appellant.

4. I have perused the material on record.

Admittedly on the date of entering into agreement, this

appellant was not the owner and one Sri. Krishnamurthy

was the owner and main contention of the learned counsel

is that even the said Sri. Krishnamurthy is also ready to

execute the sale deed by receiving the balance sale

consideration for the same price and respondent is not

coming forward to obtain the sale deed and hence matter

requires to be considered. Substantive question of law is

involved in the matter as the plaintiff entered into

agreement knowing fully well that Sri. Krishnamurthy is

the owner of the property and later repudiated and hence

it requires that substantive question of law be framed to

consider the matter.

5. Having heard the learned counsel for the

appellant and perused the material, it is not in dispute that

at the time of sale of property admittedly the appellant

was not the owner and only an agreement holder and this

Court when enquired as to whether he entered into an

agreement as an absolute owner or in the capacity of

agreement holder, learned counsel submits that

agreement was executed stating that he was an absolute

owner of the property. When such being the material and

both the Courts have not committed any error in ordering

for refund of the amount which has been received by the

appellant as earnest money, I do not find any error

committed by the Trial Court as well as the Appellate Court

and hence, question of framing substantial question of law

does not arise and both the Courts have come to correct

finding.

6. Learned counsel submits that the plaintiff

entered into agreement knowing fully well that

Sri. Krishnamurthy was the owner and even

Sri. Krishnamurthy was ready to execute the sale deed but

the respondent - plaintiff was not willing to the same and

hence framing of substantive question of law arises. Said

contention of the appellant cannot be accepted for the

reason that he entered into an agreement of sale as

absolute owner and not as agreement holder.

7. Learned counsel would further submit that

interest part has to be reduced. Having considered the

material on record that he has received the amount as on

the date of agreement and amount is lying with him,

question of reducing the interest from 12% per annum to

8 or 6 percent per annum does not arise since it was

involved in respect of sale transaction and not a loan

transaction and hence, I do not find any force in the said

contention also.

In view of the foregoing discussions, the appeal is

dismissed. Consequently I.A. No.1/2022 seeking stay,

does not survive for consideration.

Sd/-

JUDGE

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