Karnataka High Court
Smt. D N Usha Devi vs Sri.D.S.Anjaneya Murthy on 9 October, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:36722
RSA No. 428 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 428 OF 2020
BETWEEN:
1. SMT. D.N. USHA DEVI
W/O. D.P.BHOOPAL
AGED ABOUT 54 YEARS
R/O. KODLIPET TOWN,
SOMWARPET TALUK
KODAGU DISTRICT-571 231.
...APPELLANT
(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. SRI D.S.ANJANEYA MURTHY
S/O. LATE D.H.SANNAPPA,
AGED ABOUT 75 YEARS,
MARUTHI NILAYA,
# 1, 11TH 'A' CROSS ROAD,
Digitally signed SWIMMING POOL EXTENSION,
by SHARANYA T
MALLESHWARAM.
Location: HIGH
COURT OF BENGALURU-560 003.
KARNATAKA
2. GANGADHAR
S/O. BASAVARAJU,
AGED ABOUT 48 YEARS,
HOUSE NO.52,
4TH 'A' MAIN ROAD
NAGARABHAVI
KALYANA NAGAR
BANGALORE.
...RESPONDENTS
(BY SRI S. CHANDRASHEKAR &
SRI DHARMAPRAKASH K.R., ADVOCATE FOR R1 & R2)
-2-
NC: 2023:KHC:36722
RSA No. 428 of 2020
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 16.08.2019 PASSED IN
R.A.NO.41/2016 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, KODAGU, MADIKERI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.08.2016
PASSED IN O.S.NO.66/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MADIKERI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellant's counsel and also the respondents
counsel.
2. This appeal is filed challenging the judgment and
decree of the Trial Court and also the First Appellate Court
refusing to grant the relief of specific performance and ordering
for refund of amount with 6% interest from the date of
judgment. The counsel would vehemently contend that when
the Trial Court comes to the conclusion that there is an
agreement of sale ought to have ordered for specific
performance.
3. On the other hand, counsel appearing for the
respondent would submits that ready and willingness has not
been proved and hence, the Court has ordered for refund. It is
also not in dispute that both plaintiffs as well as defendant have
NC: 2023:KHC:36722
RSA No. 428 of 2020
filed an appeal in R.A.Nos.41/2016 and 45/2016 and the First
Appellate Court dismissed the appeal filed by the plaintiff and
allowed the appeal filed by the defendant in modifying the
judgment and decree and instead of granting the interest from
the date of sale agreement, the First Appellate Court fixed the
date of interest from the date of judgment and hence, the
appellant has filed the second appeal before this Court for
specific performance and against the modification.
4. Having heard the respective counsel and also on
perusal of the material available on record, it is not in dispute
that, an agreement was came into existence on 4.12.2007 and
also there was a clause for refund of Rs.3,80,000/- forfeiting
only Rs.20,000/- in case of defendant and hence, the Trial
Court ordered to refund the amount of Rs.3,80,000/- with 6%
interest. When both the Courts comes to the conclusion that
the plaintiff/appellant was not ready and willing to perform his
part of contract and the concurrent finding was given, I do not
find any ground to admit and frame substantial questions of
law as contended by the appellant's counsel regarding specific
performance.
NC: 2023:KHC:36722
RSA No. 428 of 2020
5. However, the First Appellate Court committed an
error in modifying the judgment of the Trial Court allowing the
interest from the date of judgment instead of from the date of
agreement dated 4.12.2007 and Trial Court also committed an
error in taking the date as 4.3.2008 considering the default
clause to pay the interest, since payment was made on
4.12.2007 i.e. date of agreement, it requires to be modified.
Hence, the judgment and decree of the Trial Court as well as
the First Appellate Court is modified directing the respondent to
pay the interest at 6% from 4.12.2007 of Rs.3,80,000/- to
plaintiff/appellant.
Accordingly, this appeal is disposed of.
Sd/-
JUDGE
AP
