Sri K Naganaika vs Smt Lakshmamma
2023 Latest Caselaw 3637 Kant

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                                                        NC: 2023:KHC:21877
                                                            RSA No. 216 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 23RD DAY OF JUNE, 2023

                                               BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                            REGULAR SECOND APPEAL NO.216 OF 2022 (SP)
                      BETWEEN:

                      SRI K.NAGANAIKA
                      S/O LATE KARINAYAKA,
                      AGED ABOUT 62 YEARS,
                      R/AT NO.964, 3RD DIVISION,
                      16TH WARD, JANATHA COLONY,
                      GUNDLUPET - 571 111.
                                                                   ...APPELLANT
                      (BY SRI. RUPESH KUMAR S., ADVOCATE)

                      AND:

                      1.    SMT.LAKSHMAMMA
                            W/O LATE KRISHNASHETTY,
                            AGED ABOUT 61 YEARS.

                      2.    SRI K. RAVICHANDRAN
Digitally signed by         S/O LATE KRISHNASHETTY,
THEJASKUMAR N               AGED ABOUT 48 YEARS.
Location: HIGH
COURT OF              3.    SMT. R. MAMATHA
KARNATAKA                   WO SRI K. RAVICHANDRAN
                            AGED ABOUT 39 YEARS,

                            ALL ARE R/O DA. RA. BENDRE NAGAR,
                            GUNDLUPET - 571 111.
                                                                ...RESPONDENTS
                      (R1 TO R3 ARE SERVED)

                           THIS REGULAR SECOND APPEAL IS FILED UNDER
                      SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.

                           THIS APPEAL IS COMING ON FOR FURTHER HEARING,
                      THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                                 NC: 2023:KHC:21877
                                                      RSA No. 216 of 2022




                             JUDGMENT

Sri.S.Rupesh Kumar., learned counsel for the appellant

has appeared in person.

2. This is an appeal from the Court of Addl. District &

Sessions Judge, Chamarajanagara (sitting at Kollegala).

3. For the sake of convenience, the status of the

parties shall be referred to as per their rankings before the Trial

Court.

4. The plaint averments are these.

It is said that defendant No.1 is the owner of the suit

property measuring 100 X 44 feet bearing Assessment

No.1719/11/1. He has sold out some portions to one

B.N.Sathyanarayana Shetty and his wife and the remaining

property is 100 X 36 feet, out of which the Town Municipality

has formed the road. It is said that defendant No.1 has set up a

petrol bunk and he needed money to repair the petrol bunk.

Hence, he intended to sell the property. Therefore, he

negotiated with the plaintiff and agreed to sell the suit schedule

property to the plaintiff for a sale consideration of

Rs.10,00,000/- (Rupees Ten Lakh only). As per the agreement,

NC: 2023:KHC:21877 RSA No. 216 of 2022

the plaintiff paid an amount of Rs.4,50,000/- (Rupees Four

Lakh Fifty Thousand only) and an agreement for the sale of the

property was executed, five months' time was fixed to execute

a registered sale deed from the date of execution of an

agreement of sale. As per the agreement the defendants had to

give all the documents, but they did not do so. The plaintiff

specifically contended that he was always ready and willing to

perform his part of the contract for the payment of the balance

consideration of Rs.5,50,000/- (Rupees Five Lakh Fifty

Thousand only). The plaintiff requested the defendants to give

the documents in respect of the suit schedule property. But in

vain. Hence, the plaintiff issued a notice on 29.10.2015 calling

upon the defendants to receive the balance consideration and

execute the registered sale deed. After receipt of the notice,

the defendants gave an untenable reply on 18.11.2015

contending that they have received only Rs.3,00,000/- (Rupees

Three Lakh only). It is said that the defendants approached the

plaintiff and expressed that they are ready and willing to

perform their part of the contract and execute the sale deed by

receiving the balance consideration amount and requested the

plaintiff to get the draft sale deed. The defendants handed over

NC: 2023:KHC:21877 RSA No. 216 of 2022

a Xerox copy of their identity card and assessment register

extract for the purpose of drafting the sale deed. But the

defendants did not keep up their promise. Hence, the plaintiff-

initiated action against the defendants for the relief of specific

performance.

After the issuance of the summons, defendants 1, 2 & 4

appeared through their counsel and filed a common written

statement. Defendant No.3 was placed ex-parte. Defendants 1,

2 & 4 denied the plaint averments. They contended that they

never agreed to sell the suit property to the plaintiff at any

point in time. It is contended that the first defendant had filed a

suit against the TMC, Gundlupet which was decreed, and the

review filed by TMC was withdrawn and the first defendant was

having a habit of receiving hand loans from the plaintiff and

returning the same with interest quite often. In this connection,

he obtained a hand loan of Rs.3,00,000/- (Rupees Three Lakh

only) from the plaintiff in the year 2015. But the plaintiff

misused the said transaction and created a document styling as

an Agreement of sale and filed a false suit seeking the relief of

specific performance. They specifically contended that the

plaintiff is not entitled to the discretionary relief of specific

NC: 2023:KHC:21877 RSA No. 216 of 2022

performance. Among other grounds, they prayed for the

dismissal of the suit.

5. Based on the above pleadings, the Trial Court

framed Issues. To substantiate the claim, the respective parties

led evidence, and documents were marked and exhibited. On

the trial of the action, the relief of specific performance was

rejected and the defendants were jointly and severally held

liable to pay an amount of Rs.4,50,000/- (Rupees Four Lakh

Fifty Thousand only) along with interest at the rate of 9% per

annum from the date of agreement till realization. Aggrieved by

the Judgment & Decree of the Trial Court, the plaintiff preferred

an appeal before the First Appellate Court. On appeal, the

Judgment & Decree of the Trial Court was confirmed. Hence,

the plaintiff has filed this Regular Second Appeal under Section

100 of CPC.

6. Sri.S.Rupesh Kumar., learned counsel for the

appellant submits that both Courts have not appreciated the

case of the plaintiff by examining oral and documentary

evidence. The Courts have come to the wrong conclusion in

allowing the suit of the plaintiff in part.

NC: 2023:KHC:21877 RSA No. 216 of 2022

Next, he submits that both Courts have erred in

concluding that the plaintiff was not ready and willing to

perform his part of the contract. He also submitted that the

very fact of issuing legal notice and initiation of the action

against the defendant itself is conclusive proof to show that the

plaintiff was and is ready & willing to perform his part of the

contract.

A further submission is made that the finding given by

the Trial Court to negate Issue No.2 is illogical and beyond

imaginary. He further submitted that the balance consideration

that was to be paid was only Rs.5,50,000/- (Rupees Five Lakh

Fifty Thousand only) which is a very small amount and that the

plaintiff had every capacity to pay the same as it is evident

from the conduct of the plaintiff.

Learned counsel Sri.S.Rupesh Kumar., vehemently

contended that the Trial Court rightly concluded that the

plaintiff has proved the execution of the agreement and the

part payment of the sale consideration, But the finding about

readiness and willingness is illegal.

NC: 2023:KHC:21877 RSA No. 216 of 2022

Lastly, he submits that viewed from any angle, the

Judgments & Decrees of the Trial Court and the First Appellate

Court are erroneous and lack judicial reasoning and hence the

substantial question of law may be answered in favor of the

appellant and the appeal may be allowed.

To substantiate the contention, learned counsel has

placed reliance on the following decisions:

1. BASAVARAJ VS. PADMAVATHI & ANOTHER -

CIVIL APPEAL NOS.8962-8963 OF 2022.

2. GADDIPATI DIVIJA & ANOTHER VS. PATHURI SAMRAJYAM & OTHERS - CIVIL APPEAL NO.4206-4207 OF 2011.

      3. SUGHAR          SINGH    VS.       HARI   SINGH      (DEAD)
           THROUGH LRS. & OTHERS - CIVIL APPEAL
           NO.5110 OF 2021.

7. Heard, the contentions urged on behalf of the

appellant and perused the records with utmost care.

8. The facts have been sufficiently said and the same

does not require reiteration. The suit giving rise to this appeal

was filed by the plaintiff seeking the relief of specific

performance. To substantiate the contention, the plaintiff

examined himself as PW1. The Trial Court has framed as many

NC: 2023:KHC:21877 RSA No. 216 of 2022

as five Issues and the first issue relates to the proof of

execution of sale agreement. Based on the material evidence

on record, the Trial Judge has affirmed that the plaintiff has

proved the execution of the sale agreement.

In the present case, the issue revolves around the factum

of readiness and willingness.

Learned counsel Sri.S.Rupesh Kumar., in presenting his

argument strenuously urged that the plaintiff was ever ready

and willing to perform his part of the contract and he had every

ability to pay the balance amount and get the sale deed

executed in his favor. He argued by saying that both Courts

ought to have decreed the suit for specific performance.

The contentions about the plaintiff's readiness and

willingness are noted with utmost care. Before I answer about

the same, let us quickly glance through the concept of

readiness and willingness.

The person, seeking specific performance of the contract,

must file a suit wherein he must aver and prove that he has

performed or has been ready and willing to perform the

essential terms of the contract, which are to be performed by

NC: 2023:KHC:21877 RSA No. 216 of 2022

him. The words 'ready and willing' imply that the plaintiff was

prepared to conduct those parts of the contract to their logical

end as far as they depend upon his performance. The terms of

a contract performable by the plaintiff may be of two kinds.

(i) Those that have to be performed before the other side can be called upon to fulfill his promise; and

(ii) Others that may have to be subsequently performed.

The actual performance of, or a readiness to perform, the

former must be shown and an offer to perform the latter must

be made. The words mean that the person claiming

performance has kept the contract subsisting with

preparedness to fulfill his obligation and accept performance

when the time for performance arrives. The plaintiff's readiness

and willingness must be in accordance with the terms of the

agreement.

The law is well settled that in considering whether a

person is willing to perform his part of the contract, the

sequence in which the obligations under the contract are to be

performed must be taken into account, and if under the terms

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NC: 2023:KHC:21877 RSA No. 216 of 2022

of the contract the obligations of the parties have to be

performed in a certain sequence, one of the parties to the

contract cannot require compliance with the obligations by the

other without, in the first instance, performing his own part of

the contract which, in the sequence of obligations, is

performable by him earlier.

The distinction between readiness and willingness is that

the former has reference to financial ability and the latter on

the conduct of the plaintiff wanting performance.

While 'willingness' is merely a mental process, 'readiness'

is something to do with translating that will into action and is

preceded by the necessary preparation of being in a position to

be ready. In other words, while 'willingness' may be something

to do with a person's mental process to do an act, his readiness

implies proximity to such willingness and its ultimate physical

manifestation. 'Readiness' must, in all cases, be backed by

'willingness' and its imminent physical action is proved when it

is about to be put into action.

Turning to the facts of the case, the plaintiff contended

that he was ever ready and willing to perform his part of the

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NC: 2023:KHC:21877 RSA No. 216 of 2022

contract, and even before this court also the plaintiff has

adhered to the said contention. The plaintiff tries to contend

that the issuance of the notice and the initiation of the action

against the defendants is itself proof of readiness and

willingness. I find myself quite unable to accept this contention

and I have no doubt at all that the issuance of the legal notice

and the initiation of the action by the plaintiff does not amount

to readiness and willingness. I should mention one further

consideration which appears to me to be of possible

significance, that the evidence on record comes nowhere near

proving the plaintiff's readiness and willingness.

9. In the present case, except for saying that he has

issued a legal notice, the plaintiff has done nothing. I am quite

clear of the opinion that it is not right to say that the issuance

of the legal notice and filing a case amounts to readiness and

willingness. This appeal seems to me to turn entirely on a

question of fact and in my view, it is equally clear that the

element of readiness and willingness are absent.

I am completely satisfied that the Trial Judge extenso

referred to the material on record and concluded that the

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NC: 2023:KHC:21877 RSA No. 216 of 2022

plaintiff is not entitled to the relief of specific performance. The

Appellate Judge reappraised the material proof from the right

perspective. I find no infirmity in the findings. Furthermore, the

findings of facts by both Courts are neither vitiated by non-

consideration of material evidence on record nor is there a

mistaken approach to the matter.

Learned counsel for the appellant placed reliance on

several decisions, but I do not think that the law is in doubt.

Each decision turns on its facts. The present case is also tested

in light of the aforesaid decisions.

10. The substantial question of law framed by this Court

is answered accordingly.

11. Resultantly, the Regular Second Appeal is

dismissed.

Sd/-

JUDGE

TKN