Sri N C Nanje Gowda vs M/S Brahmana Vaidika Bharma ...
2023 Latest Caselaw 3509 Kant

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                                                        NC: 2023:KHC:21339
                                                        RFA No. 1359 of 2008




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 20TH DAY OF JUNE, 2023

                                            BEFORE

                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

                        REGULAR FIRST APPEAL NO. 1359 OF 2008 (SP)

                   BETWEEN:

                   1.    SRI N C NANJE GOWDA
                         S/O CHANNE GOWDA, HINDU,
                         AGED ABOUT 40 YEARS
                         R/AT NO 30/3-1, DEVANATHACHAR STREET
                         CHAMARAJPET
                         BANGALORE-560018

                   2.    SMT H J CHANDRAKALA
                         W/O N C NANJE GOWDA, HINDU,
                         AGED ABOUT 29 YEARS
                         R/AT NO 30/3-1, DEVANATHACHAR STREET
                         CHAMARAJPET
                         BANGALORE-18
                                                                ...APPELLANTS
Digitally signed
by                 (BY SRI. S GANGADHARA AITHAL, ADVOCATE)
DHANALAKSHMI
MURTHY
Location: High     AND:
Court of
Karnataka
                   1.    M/S BRAHMANA VAIDIKA DHARMA SAHAYA SABHA
                         REP BY ITS SECRETARY, VISHWANATH
                         S/O LATE R V SHASTRY,
                         AGED ABOUT 80 YRS.,
                         NO 23, WEST ANJANEYA TEMPLE STREET
                         BASAVANAGUDI,
                         BANGALORE-560004

                   2.    J S PRAKASH
                         S/O B JAYASHANKAR
                         AGED ABOUT 55 YEARS,
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                                               NC: 2023:KHC:21339
                                               RFA No. 1359 of 2008




       HINDU, No. 755, 13TH CROSS,
       22ND MAIN, II PHASE, JP NAGAR
       BANGALORE-560078
                                                   ...RESPONDENTS
(BY SRI. R1-M/S BRAHMANA VAIDIKA, ADVOCATE)

     THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 19/04/2008 PASSED IN
O.S.NO.1850/2003 ON THE FILE OF THE VIII ADDL. CITY CIVIL
JUDGE, BANGALORE, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE OF SALE DEED.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                              JUDGMENT

This appeal is filed by defendants 2 and 3 challenging

the judgment and decree dated 19.04.2008, passed by

VIII Additional City Civil Judge, Bangalore in

O.S.No.1850/2003, whereby the suit filed by the plaintiff

is decreed with costs.

2. For the sake of convenience, parties are referred

to as per their ranking before the trial Court.

3. The case of the plaintiff is that plaintiff is an

association registered under the Karnataka Societies

Registration Act and they are the owners of the suit

NC: 2023:KHC:21339 RFA No. 1359 of 2008

schedule property and have executed sale deed in favour

of defendant No.1 by registered sale deed dated

18.05.1996, with a condition that in the event of the

purchaser intending to sell, they must sell the said

property to the plaintiff only at the rate at which they have

purchased it. Defendant No.1 sold the suit schedule

property in favour of defendants 2 and 3 by registered sale

deed dated 12.06.2000. When the sale made in favour of

defendants 2 and 3 came to the knowledge of the plaintiff,

they have issued legal notice on 09.10.2002, for necessary

compliance and they have filed the above suit with the

following reliefs:

a) the sale made by the 1st defendant in favour of 2nd defendant dated 29.6.2000 is in contravention of the sale deed dated 18.5.1996.

b) directing the defendants to receive a sum of Rs.4,03,200/- from the plaintiff Sabha, and to execute the sale deed in favour of the plaintiff Sabha, with respect to suit schedule property. That, in the event of defendants fail to execute the sale deed inspite of decree, this

NC: 2023:KHC:21339 RFA No. 1359 of 2008

Hon'ble Court be pleased to execute the sale deed through the agency of this Hon'ble Court on plaintiff Sabha depositing the said sum.

c) for costs and such other reliefs as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case.

4. On service of summons, defendant No.1 remained

unrepresented. Defendants 2 and 3 are represented

through their counsel and filed written statement

contending that the suit filed for specific performance is

not maintainable. The only contention raised in the plaint

is for enforcement of pre-emptive clause in the sale deed

dated 18.05.1996. It is contended that to enforce the pre-

emptive clause in the sale deed, they have to file a suit

within one year from the date of knowledge. It is further

contended that though the plaintiff is aware of the

execution of sale deed dated 12.06.2000, the suit is filed

in the year 2003 and hence the suit itself is barred by

limitation. Further they have contended that in the sale

deed, the vendor has no right to impose such a condition

NC: 2023:KHC:21339 RFA No. 1359 of 2008

which is contrary to the provisions of the Specific Relief

Act.

5. On the basis of pleadings of the parties, the trial

Court framed the following issues:

1) Whether the plaintiff proves that defendant No.1 executed sale deed in favour of defendant No.2 against the terms and conditions of the sale deed dated 18.05.1996?

2) Whether the plaintiff proves that the defendants are liable to execute sale deed in favour of the plaintiff on receiving Rs.4,03,200/- in respect of suit schedule property?

3) Whether the defendant proves that the plaintiff has to pay separate Court fee for the Relief A and B?

4) Whether plaintiff is entitled for the relief as prayed for?

5) What order or decree?

6. To prove the case of the plaintiff, plaintiff has

examined it's Secretary, Vishwanath as PW-1 and got

marked 23 documents. Defendants have examined

NC: 2023:KHC:21339 RFA No. 1359 of 2008

defendant No.2, Nanje Gowda as DW-1 and got marked 6

documents. On appreciation of the oral and documentary

evidence, the trial Court has decreed the suit with costs

and directed the plaintiff to deposit Rs.4,03,200/- in the

Court on or before 6 months from the date of judgment

and defendants are directed to execute the sale deed in

respect of the suit schedule property within 2 months from

the date of deposit of the said amount. Being aggrieved

by the same, defendants 2 and 3 have filed this appeal.

7. Sri. Gangadhara Aithal, learned counsel for the

appellants / defendants 2 and 3 has firstly contended that

the suit is filed by the plaintiff for enforcement of pre-

emptive clause in the sale deed dated 18.05.1996. To

seek such a relief, they have to file the suit within one

year from the date the instrument is registered. To that

effect, he has relied on Article 97 of the Limitation Act,

1963. The sale deed has been executed on 12.06.2000,

and the suit is filed in the year 2003, and hence the suit is

barred by limitation. Inspite of the defendants taking such

NC: 2023:KHC:21339 RFA No. 1359 of 2008

a specific contention, the trial Court has failed to consider

this aspect of the matter. Secondly, he has contended

that the suit is filed for specific performance of contract.

In fact, the relief sought by the plaintiff is for enforcement

of pre-emptive clause in the sale deed dated 18.05.1996.

Hence the trial Court has erred in decreeing the suit for

specific performance, when the suit itself is not

maintainable. Lastly, he has contended that there is a

specific direction by the trial Court that the plaintiff shall

deposit a sum of Rs.4,03,200/- in the Court on or before 6

months from the date of judgment. As per Section 28 of

the Specific Relief Act, if such a direction is not complied,

the suit itself has to be dismissed. Hence, he sought for

allowing the appeal.

8. Respondents are served. Respondent

No.1/plaintiff was represented through their counsel.

Later the counsel has issued notice to respondent No.1 to

retire from the case and filed a memo for retirement from

the case. This Court vide order dated 12.06.2012,

NC: 2023:KHC:21339 RFA No. 1359 of 2008

permitted the counsel for the plaintiff to retire from the

case. Plaintiff has not engaged the services of any other

counsel.

9. Heard learned counsel for defendants No. 2 & 3.

10. The points for consideration before this Court

are,

1) Whether the judgment and decree passed by the trial Court is erroneous, perverse, arbitrary and calls for interference of this Court?

2) What order?

11. It is not in dispute that the plaintiff-Society is

the owner of the suit schedule property. It is also not in

dispute that the plaintiff has sold the suit schedule

property by registered sale deed dated 18.05.1996 in

favour of defendant No.1. There is a specific condition in

the sale deed that "in the event of purchaser intending to

sell, he shall sell it to plaintiff - BVDS Sabha only at the

Government rate". Later, defendant No.1 has sold the suit

schedule property in favour of defendants 2 and 3 by

NC: 2023:KHC:21339 RFA No. 1359 of 2008

registered sale deed dated 12.06.2000. The plaintiff has

filed the suit for specific performance of contract. By

going through the pleadings of the parties, it is very clear

that the suit filed by the plaintiff is for enforcement of pre-

emptive clause in the sale deed dated 18.05.1996. For

enforcement of the right of pre-emption under Article 97

of the Limitation Act, the suit has to be filed within one

year from the date of registration of the instrument. The

sale deed is executed in favour of defendants 2 and 3 by

defendant No.1 on 12.06.2000. The plaintiff has filed the

suit in the year 2003. As per Article 97 of the Limitation

Act, the suit itself is barred by limitation.

12. The defendants 2 and 3 have taken a specific

contention in the written statement that the suit filed by

the plaintiff for specific performance of contract is not

maintainable. As per the pleadings of the parties, it is

very clear that the suit is filed only to enforce the right of

pre-emption in the contract. The trial Court, contrary to

the evidence of the parties and material available on

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NC: 2023:KHC:21339 RFA No. 1359 of 2008

record, has wrongly decreed the suit for specific

performance of contract. Therefore the judgment and

decree passed by the trial Court is perverse.

13. The last point raised by the defendants 2 and 3 /

appellants is that the trial Court has decreed the suit

directing the plaintiff to deposit a sum of Rs.4,03,200/- in

the Court on or before 6 months from the date of

judgment. So far, the plaintiff has not deposited the

decreetal amount either before the trial Court or before

this Court. The same is contrary to Section 28 of the

Specific Relief Act.

14. The Hon'ble Apex Court in the case of P.

SHYAMALA VS. GUNDLUR MASTHAN REPORTED IN 2023 SCC

ONLINE SC 184, has held as under:

"22. Now so far as the reliance placed upon the decision of this Court in the case of Kishor Ghanshyamsa Paralikar (D) through Lrs. (supra),

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NC: 2023:KHC:21339 RFA No. 1359 of 2008

relied upon on behalf of the respondent is concerned, it is required to be noted that in the said case before this Court, the total sale consideration was Rs.8,78,500/-. The vendee paid a sum of Rs.7,31,000/- immediately. He was required to pay the remaining amount of Rs.1,47,500/- within a period of one month from the date of the compromise decree. There was a delay of five days only in paying the remaining amount of Rs.1,47,500/-. Therefore, in exercise of powers under Section 28 of the Specific Relief Act, this Court allowed the extension of time in favour of the decree holder to deposit the balance sale consideration. In the said decision, in paragraph 11, it is observed as under:

'11.This section gives to the vendor or the lessor the right to rescission of the contract for the sale or lease of the immovable property in the same suit, when after a suit for specific performance is decreed, if the vendor or the lessor fails to pay the purchase money within the period fixed. This section seeks to provide complete relief to both the parties in terms of a decree of specific performance in the said suit without having resort to a separate proceeding. Therefore, a suit for specific performance does not come to an end on the passing of a decree and the court which

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NC: 2023:KHC:21339 RFA No. 1359 of 2008

has passed the decree for specific performance retains control over the decree even after the decree has been passed. Section 28 not only permits the judgment-debtors to seek rescission of the contract but also permits extension of time by the court to pay the amount. The power under this section is discretionary and the court has to pass an order as the justice of the case may require. It is also settled that time for payment of sale consideration may be extended even in a consent decree. This Court in Smt. Periyakkal Vs. Smt. Dakshyani1, speaking through Chinnappa Reddy, J. observed that even in a compromise decree, the court may enlarge the time in order to prevent manifest injustice, and to give relief to the aggrieved party against a forfeiture clause. The Court observed the following:

4.............. The parties, however, entered into a compromise and invited the court to make an order in terms of the compromise, which the court did. The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted

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NC: 2023:KHC:21339 RFA No. 1359 of 2008

in rare cases to prevent manifest injustice. True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause; And, where the contract of the parties has merged in the order of the court, the court's freedom to act to further the ends of justice would surely not stand curtailed.'

23. Therefore, as observed by this Court, the power under Section 28 of the Specific Relief Act is discretionary and the Court has to pass an order as the justice may require.

24. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and considering Section 28 of the Specific Relief Act, we are of the opinion that the trial Court erred in exercising the discretion in favour of the plaintiff and erred in extending the time in favour of the plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- by condoning the huge delay of 853 days, which as observed hereinabove has not been explained sufficiently at all. As observed hereinabove, after the plaintiff was directed to deposit the balance sale consideration of Rs. 15,00,000/- within a period of two weeks from the date of ex-parte judgment and decree dated 12.10.2013, which the plaintiff failed to deposit/pay,

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NC: 2023:KHC:21339 RFA No. 1359 of 2008

even no application for extension of time under Section 148 CPC and Section 28 of the Specific Relief Act was made thereafter within a reasonable time and was made after a period of 853 days. Nothing is on record that in between any notice was given to the defendant to execute the sale deed as per the judgment and decree on deposit of the balance sale consideration. The application filed by the plaintiff under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time to deposit the balance sale consideration was hopelessly delayed. As observed hereinabove, Section 28 of the Specific Relief Act seeks to provide complete relief to both the parties in terms of a decree of specific performance. Therefore, the trial Court failed to exercise the discretion judiciously in favour of the defendant and erred in exercising the discretionary power in favour of the plaintiff, that too with a delay of 853 days. The High Court has erred in confirming the same and dismissing the revision applications. Under the circumstances, the order passed by the trial Court allowing the application of the plaintiff being I.A. No. 732/2016 seeking extension of time to deposit the balance sale consideration deserves to be dismissed and I.A. No. 914/2017 filed by the defendant - appellant under Section 28 of the Specific Relief Act to rescind

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the agreement to sell dated 9.5.2012 deserves to be allowed."

15. In view of the above said reason, I answer point

No.1 in affirmative.

16. Accordingly, I proceed to pass the following:

ORDER

The appeal is allowed.

The judgment and decree dated 19.04.2008, passed by the VIII Addl. City Civil & Sessions Judge, Bangalore in O.S.No.1850/2003 is set aside. Consequently, the suit filed by the plaintiff is rejected.

SD/-

JUDGE

RD