Smt Lingarajamma vs Sri N Sathish Kumar
2023 Latest Caselaw 3379 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 16TH DAY OF JUNE, 2023

                          BEFORE

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

                  R.S.A. NO.1437/2017 (SP)
BETWEEN:

1.     SMT. LINGARAJAMMA
       W/O SRI N. SRINIVASA,
       AGED ABOUT 46 YEARS,
       R/O. SRI VENKATESHWARA NILAYA,
       S.J. ROAD, JANNAPURA,
       BHADRAVATHI-577 301.

2.     SRI N. SRINIVAS
       S/O LATE NINGAPPA,
       AGED ABOUT 55 YEARS,
       R/O SRI VENKATESHWARA NILAYA,
       S.J. ROAD, JANNAPURA,
       BHADRAVATHI-577 301.                  ... APPELLANTS

             (BY Ms. MANJULA D., ADDVOCATE FOR
            SRI MR. L.SRINIVASA BABU, ADVOCATE)

AND:

1.     SRI N. SATHISH KUMAR
       S/O NAGARAJA MUDALIYAR,
       AGED ABOUT 35 YEARS,
       DOCUMENT WRITER
       R/O. SEEGEBAGI EXTENSION,
       BHADRAVATHI-577 301.                  ... RESPONDENT

              (BY MR.LOKANATHA R., ADVOCATE)
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     THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 27.03.2017
PASSED IN R.A.NO.33/2014 ON THE FILE OF THE IV ADDL.
DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING AT
BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 05.06.2014 PASSED IN
O.S.NO.13/2012 ON THE FILE OF THE C/C PRL. SENIOR CIVIL
JUDGE AND JMFC, BHADRAVATHI.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    08.06.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                       JUDGMENT

This appeal is filed challenging the judgment and decree

dated 27.03.2017 passed in R.A.No.33/2014 on the file of the IV

Additional District and Sessions Judge, Shimoga, Sitting at

Bhadravathi and also the judgment and decree dated

05.06.2014 passed in O.S.No.13/2012 on the file of the Principal

Senior Civil Judge and JMFC., at Bhadravathi.

2. The factual matrix of the case of the plaintiff before

the Trial Court is that the defendants have executed the sale

agreement in terms of Ex.P1 for a sum of Rs.6,35,000/- and

received an advance amount of Rs.6 Lakhs and the balance was

payable at the time of registration. The defendants did not come

forward to execute the Sale Deed. Hence, notice was issued in

terms of Ex.P13, the same was also served on the defendants

and no reply was given and without any other alternative

remedy, the plaintiff has filed a suit for the relief of Specific

Performance.

3. The defendants in terms of the written statement

contended that the second defendant is a businessman and he

was not able to concentrate in agricultural activities. So, he has

sold the same, but not site or house properties. To expand his

business, the second defendant requested the document writer

Govinda to arrange certain amount. The plaintiff was introduced

to the second defendant by the said Govinda. The plaintiff

informed that unless security is given to him, he is not prepared

to advance any loan. The second defendant was in need of

money for immediate business purpose. So, he agreed to

execute the document as desired by the plaintiff. After the

execution of the document the plaintiff has paid only

Rs.2,00,000/- and agreed to pay the balance within short period.

The second defendant is regularly paying interest of Rs.2.5 per

month to the bank account of Govinda and Chandrashekhar.

The present market value of the suit property is not less than to

Rs.40 to 45 lakhs. Even as on the date of the alleged sale

agreement, the suit property was valued more than to Rs.30 to

35 lakhs. The defendants have no occasion to sell the suit

property for Rs.6,35,000/-. The plaintiff has misused the

confidence and filed the false suit.

4. The Trial Court having considered the contentions of

both the parties framed the issues with regard to whether an

agreement of sale was executed and received an earnest money;

whether the second defendant borrowed a sum of Rs.2,00,000/-

from the plaintiff and the document was executed as security.

The Court also framed an issue that whether the plaintiff was

ever ready and willing to perform his part of the contract and

entitled for the relief of specific performance.

5. The plaintiff has examined himself as P.W.1 and also

examined PWs.2 and 3, who are the independent witness and

attesting witness to the sale agreement, respectively and got

marked the documents as Exs.P1 to P16. The GPA holder of the

defendants has been examined as D.W.1 and got marked the

document as Ex.D1.

6. The Trial Court after considering both oral and

documentary evidence available on record, answered issue Nos.1

and 2 as affirmative in coming to the conclusion that there was a

sale agreement and received an earnest money of Rs.6 Lakhs

out of Rs.6,35,000/- and answered issue No.3 as negative in

coming to the conclusion that he has received only an amount of

Rs.2,00,000/- and executed the document as security. The Trial

Court come to the conclusion that the plaintiff was ever ready

and willing to perform his part of contract and granted the relief

of specific performance. Being aggrieved by the judgment and

decree of the Trial Court, an appeal was filed before the First

Appellate Court. The First Appellate Court considering the

grounds urged in the appeal memo in paragraph No.5 and also

considering the judgments which have been referred in the

Court, considered the same and on re-appreciation of both oral

and documentary evidence confirmed the finding of the Trial

Court and dismissed the appeal. Hence, the second appeal is

filed before this Court by the defendants.

7. The main contention of the appellants in this second

appeal is that both the Courts have committed an error in

appreciating both oral and documentary evidence placed on

record and the very judgments are perverse, capricious, unjust

and unsustainable. The plaintiff has failed to prove his case by

adducing sufficient both oral and documentary evidence and

failed to consider the defense of the defendants which has

resulted in miscarriage of justice. The First Appellate Court also

committed an error in accepting the reasoning given by the Trial

Court; the same is not appreciated in a proper perspective. The

judgment and decree of both the Courts are contrary to the

cardinal principles of law and ought to have dismissed the suit

and failed to consider the very contention of the defendants that

it was only a security document and not a sale agreement.

8. This Court having considered the grounds urged in

the appeal memo while admitting the second appeal formulated

the following substantial question of law:

"Whether the finding by both the Courts that the appellants have executed the sale agreement dated 16.09.2010 intending to transfer the subject property and the respondent-plaintiff has established ready and willingness is based on the evidence on record?"

9. The learned counsel appearing for the appellants

would vehemently contend that the plaintiff was doing job typing

and defendant No.2 was in financial crisis. He was in need of

money. For obtaining the loan amount he has executed the

document for security purpose. The learned counsel would

vehemently contend that he has received only an amount of Rs.2

lakhs and not paid the amount of Rs.6 Lakhs. The plaintiff also

not sought any alternative relief. The learned counsel would

submit that the market value of the property was also increased

from Rs.290/- to Rs.640/-. The Trial Court failed to take note of

these facts into consideration and the First Appellate Court also

failed to consider the very defense and the evidence adduced

before the Court and erroneously come to the conclusion that

there was a sale agreement and an amount of Rs.6 Lakhs was

paid as earnest money.

10. Per contra, learned counsel appearing for the

respondent would vehemently contend that, it is not in dispute

that the agreement of sale dated 16.09.2010 was executed and

also the sale consideration was fixed at Rs.6,35,000/- and

acknowledged an amount of Rs.6 Lakhs in terms of the

registered sale agreement. The learned counsel also would

vehemently contend that the time fixed was 18 months. When

the defendants did not come forward to execute the Sale Deed,

a legal notice was issued and the same was served, but no reply

was given. Hence, the plaintiff has proved that he was ever

ready and willing to have the Sale Deed. The learned counsel

also would submit that the Trial Court has granted the decree,

an appeal was filed and the same was also dismissed and

already the Sale Deed was also executed through the Court. The

learned counsel also would contend that the Trial Court has

given the finding that there was a sale agreement and the

execution of sale agreement was also proved and both the

Courts have given the finding that it is not a loan agreement but

it is only a sale agreement. The very contention that only

Rs.2,00,000/- was paid is a false contention and the same has

not been proved. The learned counsel also would vehemently

contend that the second defendant is also a businessman and he

has sold 8 to 10 properties in order to clear his loan, which he

had availed since he has suffered loss in the business. The

learned counsel also would submit that on deposit of the balance

amount of Rs.35,000/-, the Sale Deed was executed. The

learned counsel would submit that no perversity in the findings

of both the Trial Court as well as the First Appellate Court.

11. Having considered the grounds urged in the second

appeal and also the contentions urged by the respective counsel

and when the concurrent finding is given; the scope of the

second appeal is very limited. If both the Courts have not

considered the material on record and passed any perverse

judgment, under such circumstances only in the second appeal,

the Court can exercise the power under Section 100 of CPC, or

otherwise if materials are considered and the judgment of the

Trial Court as well as the First Appellate Court is based on the

material on record, there is no scope for second appeal. Having

conscious about the same, this Court has to consider the

material available on record.

12. The plaintiff in order to prove his case, he has

examined himself as P.W.1 and also examined PWs.2 and 3, who

are the independent and attesting witnesses, respectively and

got marked the documents as Exs.P1 to P16. On the other

hand, the defendants have also examined one witness as D.W.1,

who is none other than the son of the defendants and got

marked the document as Ex.D1-GPA.

13. Having re-assessed both oral and documentary

evidence placed on record, admittedly, the sale agreement dated

16.09.2010, is a registered sale agreement and both defendants

No.1 and 2 have affixed their signatures on the document.

Those signatures of the plaintiff as well as the defendants also

marked as Exs.P1(a) to (e). The contention of the defendants

was that the property was worth more than Rs.30 to 35 Lakhs as

on the date of the Sale Agreement. In order to rebut the same,

the plaintiff has also produced the document-Ex.P2-Certified

Copy of valuation of properties as on the date of the agreement.

The SR value of the property as on the date of the agreement is

Rs.290/- and not as contended by the defendants. No doubt,

the same has been increased subsequently from Rs.290/- to

Rs.640/- as contended by the learned counsel for the

respondent. When the document-Ex.P2 discloses the valuation

of the properties, the contention of the defendants is that the

property is more than Rs.30 to 35 Lakhs cannot be accepted.

14. It is important to note that the plaintiff has also

relied upon the documents Exs.P4 to P12 for having sold the

properties on different dates from 2004 onwards to different

prospective purchasers by the defendants and the same is also

not in dispute. It is also important to note that Ex.P5 is the Sale

Deed dated 03.09.2010 and the Sale Agreement, which is in

dispute before the Court is 16.09.2010. It is also important to

note that Exs.P6 to P12 are subsequent to the execution of the

sale agreement in the months of January, August and November

2011, and also executed several sale deeds subsequent to

entering into the disputed sale agreement. There is no any

explanation on the part of the same, but categorically admitted

that they have sold all these properties. It is also important to

note that D.W.1, in his cross-examination, he categorically

admitted before filing of the suit, the plaintiff has issued the

legal notice in terms of Ex.P13 to defendant Nos.1 and 2.

Defendant No.1 had acknowledged the said notice in terms of

Ex.P15. But unserved postal cover in respect of defendant No.2

is also marked as Ex.P16 and the same was not claimed after

the first defendant had acknowledged the notice in terms of

Ex.D15 and the Court has to take note of the conduct of the

parties also.

15. It is also important to note that when the notice was

issued and the same was served, no reply was given and kept

quiet and only while filing the written statement set up a new

theory that it was only a security document and not the sale

agreement. What prevented if it is a security document to give

any reply and the same was in the mind of the defendants that it

was only a security document, no such reply was given. It is an

after thought only.

16. The other contention is that only they paid an

amount of Rs.2 lakhs and the document - Ex.P1 is a registered

Sale Agreement. On perusal of the entire documents, there is a

recital that Rs.6 Lakhs was paid and defendant No.2 is a

businessman and not an illiterate and the contention that only

paid an amount of Rs.2 Lakhs and agreed to pay the balance

amount and ought to have given the reply, since they have

received the notice, but they kept quiet and not given any reply.

The Trial Court having taken note of the evidence of P.Ws.1 to 3

and also the evidence of D.W.1 and the documentary evidence

discussed in paragraph No.11, that the burden lies on the

plaintiff to prove that there was a sale agreement and paid the

amount of Rs.6 Lakhs out of sale consideration of Rs.6,35,000/-.

In order to prove the document, examined P.W.2, the same has

been discussed in paragraph No.12 and also discussed the cross-

examination portion in paragraph No.13, and also taken note of

the evidence of P.W.3, who is also an attesting witness to Ex.P1.

Having considered the evidence came to the conclusion that the

testimony of PWs.2 and 3, establishes that the defendants have

executed Ex.P1 and received an amount of Rs.6 Lakhs. The

defendants failed to prove that they have received an amount of

Rs.2 lakhs and not Rs.6 Lakhs.

17. It is also important to note that the defendants No.1

and 2-parents have not entered into the witness box and they

gave the power of attorney to their son and the admissions

which have been given in the cross-examination, admitting the

registered sale agreement and shown as Rs.6 Lakhs was paid

out of Rs.6,35,000/- and also categorically admitted the issuance

of legal notice and his father is also a businessman and admitted

that certain properties are sold since his father was having

commitment and also admitted that certain cases are registered

against his father under Section 138 of the Negotiable

Instruments Act and also he categorically admits that his father

might have given cheques for the amount he has received and

also taken note of the fact that though they contend that the

property was valued more than Rs.30 to 35 Lakhs, no

documents are placed before the Court. On the other hand, the

plaintiff himself produced Ex.P2-the actual valuation of the

properties as on the date of the sale agreement and also the

Trial Court taken note of Section 20 of the Specific Relief Act

with regard to exercise the discretion and rightly came to the

conclusion that the sale agreement was executed and received

an earnest money of Rs.6 Lakhs out of Rs.6,35,000/- and always

he was ready to pay the amount.

18. The First Appellate Court on re-appreciation of both

oral and documentary evidence available on record in paragraph

No.14, extracted the evidence of P.W.1 and also considered the

evidence of PWs.2 and 3 in paragraph No.15 and also

considering the evidence of D.W.1 in paragraph No.16 and in

detail discussed both oral and documentary evidence available

on record in paragraph No.17 also discussed with regard to the

very contention that it was only a security document and he has

received only an amount of Rs.2 Lakhs and came to the

conclusion that no evidence is placed before the Court to

substantiate the contention that it was only a security document

and he has received an amount of Rs.2 Lakhs only.

19. Having considered both oral and documentary

evidence placed on record in detail in paragraph Nos.19 and 20,

and also considered Section 20(1) and 20(2) of the Specific

Relief Act and having re-analyzed both oral and documentary

evidence placed on record, concurred with the findings of the

Trial Court. Hence, I do not find any error committed by the First

Appellate Court also on re-appreciation of both oral and

documentary evidence.

20. Having perused both oral and documentary evidence

available on record and I have already pointed out that this

Court can exercise Section 100 of CPC. If both the Courts

ignored the material available on record, under such

circumstances, the Court can exercise the powers under Section

100 of CPC. Hence, I do not find any error committed by the

Trial Court as well as the First Appellate Court considering both

oral and documentary evidence available on record. Having

given the anxious consideration to the evidence of PWs.1 to 3 as

well as D.W.1 and the documentary evidence, particularly,

Exs.P1 to P16, both the Courts have given the findings based on

the material on record and not ignored any material evidence.

The Court also while granting the relief of specific performance

taken note of the conduct of the parties, having considered

Exs.P4 to P12, which are the documents of Sale Deeds executed

in favour of other prospective purchasers subsequent to the sale

agreement and rightly come to the conclusion that the

defendants are in financial crisis. Hence, executed the sale

agreement and even no reply was given by the defendants when

the legal notice was given and also admitted in the evidence that

such notice was received but only the contention is that after the

receipt of notice they went and met the plaintiff. In order to

substantiate the same, no material is placed before the Court to

prove the same. On the other hand, the plaintiff examined the

independent and attesting witnesses as PWs.2 and 3 in respect

of the very sale agreement, which is marked as Ex.P1 and

substantiated his contentions that the defendants are in need of

money. Hence, they have executed the sale agreement and the

same is not a loan document as contended by the defendants.

Hence, I do not find any error on the part of the Trial Court as

well as the First Appellate Court in appreciating and re-

appreciating the material on record. Apart from that, already

the Sale Deed was also executed in favour of respondent

through the Court. No ground is made out to interfere with the

findings of the Trial Court as well as the First Appellate Court.

Hence, the concurrent finding given by both the Courts cannot

be disturbed. Hence, I answer the substantial question of law as

'affirmative'. The appellants have executed the sale agreement

with an intention to transfer the subject property and the

respondent/plaintiff has also established his ready and

willingness to perform his part of the contract in terms of the

agreement. Both the Courts have not committed any error.

21. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

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