G M Virupakshappa vs Y Shivanna
2023 Latest Caselaw 7232 Kant

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                                                         NC: 2023:KHC:37252
                                                       RSA No. 1061 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 12TH DAY OF OCTOBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1061 OF 2019 (SP)

                   BETWEEN:

                   1.    G.M. VIRUPAKSHAPPA
                         S/O MAHESHWARAPPA
                         AGED ABOUT 55 YEARS
                         RESIDING AT D.NO.1778/9,
                         VINAYAKA BADAVANE,
                         2ND CROSS, VIDYANAGARA
                         DAVANGERE - 577 002.
                                                            ...APPELLANT
                   (BY SRI HIREMATHAD MAHESHIAH RUDRAYYA, ADVOCATE)

                   AND:

                   1.    Y. SHIVANNA
                         S/O DODDAKENCHAPPA
                         AGED ABOUT 85 YEARS
Digitally signed
by SHARANYA T            R/AT NO.5, 3RD CROSS,
Location: HIGH           2ND MAIN, VIJAYANAGAR
COURT OF                 TUMKUR - 577 302.
KARNATAKA                                                    ...RESPONDENT

                        THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
                   THE JUDGMENT AND DECREE DATED 20.02.2019 PASSED IN
                   R.A.NO.119/2018 ON THE FILE OF THE PRINCIPAL SENIOR
                   CIVIL JUDGE AT DAVANGERE DISMISSING THE APPEAL AND
                   CONFIRMING THE JUDGMENT AND DECREE DATED 27.08.2018
                   PASSED IN O.S.NO.461/2009 ON THE FILE OF THE ADDL.CIVIL
                   JUDGE AT DAVANGERE.

                        THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                             NC: 2023:KHC:37252
                                          RSA No. 1061 of 2019




                            JUDGMENT

This matter is listed for admission. The junior counsel

seeks time. On the previous occasion also, through proxy

counsel, learned counsel for the appellant sought time on the

ground that he is is not keeping well and not assisting the

court.

2. Having perused the records and grounds, this

appeal is filed against the concurrent finding of the Trial Court

and the First Appellate Court. The case of the plaintiff before

the Trial Court is that he has executed a sale agreement dated

20.09.2008 and he had given advance of Rs.1 lakh on

19.09.2008 to the defendant. Even though, he was ever ready

and willing to perform his part of contract, the defendant did

not come forward to execute the sale deed. Hence, he had

filed the suit before the Trial Court in O.S.No.461/2009.

3. The defendant appeared through counsel and filed

the written statement denying the allegations made in the

plaint. It is contended that, he acted upon in terms of

agreement dated 20.09.2008 but, the plaintiff has not turned

up to obtain the sale deed as per the agreed terms and denied

NC: 2023:KHC:37252 RSA No. 1061 of 2019

the allegations made against him. The defendant has

approached the plaintiff with the cheque issued by the plaintiff

dated 19.09.2008 issued in his favour seeking for revalidation

of the cheque or in the alternative for issuance of another

cheque and specifically denied the averments made in the

plaint.

4. The plaintiff, in order to prove his case, examined

himself as P.W.1 and also examined one witness as P.W2 and

got marked the documents as Exs.P1 to P8 and closed his side.

On behalf of the defendant, one witness is examined as D.W.1

and another witness as D.W.2 and got marked the documents

as Exs.D1 to D7.

5. The Trial Court, having considering both oral and

documentary evidence placed on record, answered issue No.1

partly in affirmative and partly in negative considering the

material on record and the sale consideration is fixed as

Rs.3,58,000/- and in the presence of D.W.2, cash of

Rs.55,000/- was paid and cheque for Rs.45,000/- was issued.

The defendant did not present the cheque Ex.D7 and encashed

it within three months from the date of issuance of cheque.

NC: 2023:KHC:37252 RSA No. 1061 of 2019

The plaintiff also admitted in the cross-examination that the

defendant has not encashed the cheque Ex.D7 and only

received the cash of Rs.55,000/-. Having taken note of the

said material on record, the Trial Court answered issued No.2

as negative that the plaintiff was not ready and willing to

perform his part of contract and hence, ordered that he is not

entitled for any relief.

6. Being aggrieved by the judgment and decree of the

Trial Court, the plaintiff has filed an appeal before the First

Appellate Court in R.A.No.119/2018 and the First Appellate

Court also, on re-assessing the material on record, formulated

the point that whether the plaintiff has made out sufficient

ground that the Trial Court has not properly appreciated the

documents and the evidence and the judgment of the Trial

Court is opposed to law and whether the appellant has made

out sufficient grounds that there are sufficient material to

intervene in the judgment and decree passed by the Trial

Court.

7. The First Appellate Court also, on re-appreciation of

both oral and documentary evidence placed on record, taken

NC: 2023:KHC:37252 RSA No. 1061 of 2019

note of the fact that it is not in dispute that Ex.P1 is executed

by respondent by receiving cash of Rs.55,000/- and cheque for

Rs.45,0000/- and also it is the case of the plaintiff that though

he was ready and willing to perform his part of contract,

respondent has not come forward to execute the sale deed. It

is an undisputed fact that sale transaction held at Tumakuru

and amount fixed for Rs.3,58,000/- in respect of the suit

schedule property. It is also an undisputed fact that as per the

recital of Ex.P1, the appellant should take regular sale deed

within four months. On the basis of these admissions, one

thing is clear that the respondent has executed Ex.P1 in respect

of the suit schedule property. The legal notice was issued by

the appellant on 18.03.2009 and though agreement was

executed on 20.09.2008, legal notice was issued by the

appellant on 18.03.2009 and not within 4 months and the

notice was issued almost after 7 months and these are the

factors taken note of by the First Appellate Court and also with

regard to the remaining amount of Rs.45,000/-, cheque was

issued and the same was not encashed and also when the

cheque was not encashed, plaintiff did not put any efforts to

NC: 2023:KHC:37252 RSA No. 1061 of 2019

see that the cheque is presented and all these factors are taken

note by the First Appellate Court also.

8. When such finding is given by the Trial Court and

the First Appellate Court, the question of granting any specific

relief does not arise. The plaintiff has filed this appeal before

this Court for praying for an order for specific performance and

when both the Courts have taken note of the material on record

and when the appellant was not ready to perform his part of

contract in terms of the agreement, both the Courts have taken

note of the agreement dated 20.09.2008 and also taken note of

part payment and with regard to the advance amount, cheque

was given and cheque was not presented and legal notice was

issued almost after 7 months, though date is fixed as four

months to complete the transaction. Hence, there is no error

committed by the Trial Court and the First Appellate Court in

rejecting the prayer for specific performance. Hence, no

grounds are made out to admit the appeal and frame any

substantial question of law.

Accordingly, the appeal is dismissed.

NC: 2023:KHC:37252 RSA No. 1061 of 2019

In view of dismissal of the appeal, pending I.As., if any

do not survive for consideration and the same stand

disposed of.

Sd/-

JUDGE

ST