Karnataka High Court
Mr K M Govindaiah vs Mr Rajanna on 15 September, 2023
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1961 OF 2018 (SP)
BETWEEN:
1. MR. K.M.GOVINDAIAH
S/O MUDALAIAH,
R/AT NO.643, 12TH CROSS
M.C.LAYOUT, VIJAYANAGAR,
BANGALORE-560 040.
...APPELLANT
(BY SRI RAMANANDA A.D., ADVOCATE)
AND:
MR. RAJANNA
S/O LATE MUDDAVEERAIAH,
AGED ABOUT 53 YEARS
SINCE DECEASED R/BY HIS LRS
1. MRS. UMA
Digitally signed
by SHARANYA T W/O LATE M.RAJANNA,
Location: HIGH AGED ABOUT 55 YEARS,
COURT OF
KARNATAKA
2. MRS. ANITHA
D/O LATE M.RAJANNA,
AGED ABOUT 35 YEARS
3. MR. JAGADISH
S/O LATE M.RAJANNA,
AGED ABOUT 38 YEARS
ALL ARE R/AT NO.15/5,
CORPORATION NO.62
12TH MAIN ROAD, SHIVANAGAR,
BANGALORE-560 010.
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4. MR.NAGARAJ
S/O LATE MUDDAVEERAIAH,
AGED ABOUT 55 YEARS
5. MR.RAVI
GRANDSON OF LATE MUDDAVEERAIAH,
AGED ABOUT 41 YEARS
ALL ARE R/AT KUDUR HOBLI,
ANDHARANGI POST,
BANGALORE RURAL-571 511.
6. MRS.GANGAMMA
W/O PARASHIVAMURTHY
D/O SIDDALINGAPPA,
AGED ABOUT 53 YEARS
7. MR.VINOD KUMAR
S/O PARASHIVAMURTHY
AGED ABOUT 30 YEARS
8. MR.DARSAN
S/O LATE PARASHIVAMURTHY
AGED ABOUT 28 YEARS
RESPONDENTS NO.4 TO 6
R/AT HEBBUR HOBLI,
NIDWALLI POST,
KARNAKUPPA
TUMKUR TALUK-572 101.
9. MRS.MANGALAMMA
W/O LATE MUDDAGANGAIAH,
AGED ABOUT 75 YEARS
10. MR.RAVIKUMAR
S/O LATE MUDDAGANGAIAH,
AGED ABOUT 49 YEARS
11. MRS. SUMA
W/O LATE MUDDAGANGAIAH,
AGED ABOUT 69 YEARS
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RESPONDENT NOS.7 TO 9 ARE
R/AT ANDHARANGI
MAGADI TALUK, KUDUR HOBLI,
BANGALORE RURAL-571 511.
12. MRS.CHINNAMMA
W/O HONNAGANGAIAH
D/O MUDDAGANGAIAH,
AGED ABOUT 69 YEARS
SHIVAGANGA ROAD,
KUDUR, MAGADI TALUK,
BANGALORE RURAL-571511.
13. MRS.SUNANDA
D/O MUDDAGANGAIAH,
AGED ABOUT 52 YEARS
SIDDAGANGA NEW QUOTAS
DEVARAYAPATNA ROAD,
BANDEPEPALYA
TUMKUR-572 101
...RESPONDENTS
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD.04.07.2018 PASSED IN
R.A.NO.64/2014 ON THE FILE OF THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD.
03.07.2014 PASSED IN O.S.NO.8/2014 (OLD NO.201/2002)
ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC., MAGADI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. I have heard the
learned counsel for the appellant.
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2. The factual matrix of the case of the plaintiff before
the Trial Court that the father of defendant had entered into an
agreement of sale for an amount of Rs.2,00,000/- and paid an
amount of Rs.1,50,000/- and he was always ready and willing
to have the same rate, but defendant did not come forward
since the original executor of the sale agreement passed away.
Defendant appeared and filed written statement denying the
very sale agreement and contended that they are residing at
Bengaluru since 35 to 40 years. The first defendant is a retired
KSRTC conductor and the plaintiff has given false and incorrect
address of the defendant in the plaint and also contend that the
plaintiff is not the agriculturist and has not desired to purchase
the suit property and father Muddaveeraiah has not executed
the sale agreement dated 21.09.2000 and not agreed to the
suit property to sell the same and not paid 75% of the sale
consideration amount as contended and also not agreed to
receive the balance amount within 11 months and totally
denied the very transaction between the said Muddaveeraiah
and also took the contention that on 11.9.2001 itself he passed
away. The Trial Court considering the pleadings of the plaintiff
and also the defendant framed the issues with regard to the
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sale transaction is concerned and also readiness and willingness
and the Trial Court considering both oral and documentary
evidence available on record comes to the conclusion that there
was an agreement of sale and ordered to repay the amount of
Rs.1,50,000/-. The amount was not paid, it carries interest at
12% from the date of judgment. Being aggrieved of the
judgment and decree of the Trial Court, an appeal is filed in
R.A.No.64/2014 and the First Appellate Court on re-
consideration of the material available on record including the
grounds urged in the appeal formulated the points, whether the
appellant is entitled for the relief of specific performance of
contract and whether the Trial Court committed an error in
ordering to refund the amount, whether it requires interference
and the First Appellate Court on re-appreciation of both oral
and documentary evidence answered all the points as negative
and confirmed the judgment of the Trial Court for refund of
amount of Rs.1,50,000/-. Being aggrieved by the said
judgment and decree, the present second appeal is filed.
3. The counsel for the appellant would vehemently
contend that both the Courts have committed an error in not
appreciating the material on record and the counsel would
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vehemently contend that from the agreement of sale which is
not disputed and proved that as per the date of sale agreement
dated 21.9.2000, late Muddaveeraiah had agreed to complete
the contract of sale within 11 months from 21.9.2000 that
concludes on 20.8.2001. The Trial Court committed an error in
coming to the conclusion that notice was not issued within
three months and when the time was fixed for 11 months, the
Trial Court committed an error in coming to such a conclusion
that notice ought to have been issued within three months. The
counsel also would vehemently contend that the First Appellate
Court also not properly appreciated both oral and documentary
evidence and hence, this Court has to frame the substantive
question of law as to whether it is mandatory that sale
agreement should be completed within three months after
entering into an agreement of sale and when the parties have
mutually agreed to be concluded at the discretion of parties,
ought not to have given such direction and also to frame the
substantive question of law that time is fixed for 11 months and
not three months and hence, this Court has to admit and frame
substantive question of law.
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4. Having heard the appellant's counsel and also on
perusal of the material, no doubt the original executant of sale
agreement Sri. Muddaveeraiah is no more and suit is also filed
against the legal representatives of said Muddaveeraiah seeking
relief of specific performance and defendant appeared and filed
written statement denying the very execution of agreement.
However, the Trial Court having taken note of the evidence and
also the material on record and also the proof of document,
considering the opinion of the expert comes to the conclusion
that there was a sale agreement. However, the Trial Court
taking into note of the conditions of the sale agreement i.e.
condition No.3, he had agreed to give the physical possession
of the suit schedule property to the purchaser that means to
the plaintiff on demand in writing within three months from the
date of receipt of notice from the purchaser. The sale
agreement referred to dated 21.9.2000 is clear that after the
date of agreement and as per the available document, the
plaintiff has issued a legal notice to the said Muddaveeraiah as
per Ex.P4 and when the said document was referred, it does
not contains the date of issue of said notice and it also does not
contain the signature of the Advocate as to who has issued the
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notice. The alleged reply notice Ex.P7 bears the date as
18.7.2001 and in the said notice it has been mentioned that as
per Ex.P4 refers to dated 14.6.2001 and having taken note of
this notice dated 14.6.2001, the Trial Court comes to the
conclusion that admittedly not issued any legal notice of the
said Muddaveeraiah within three months, since condition No.3
is very specific that agreed to give the physical possession of
the suit schedule property to the purchaser i.e. on demand in
writing within three months from the date of receipt of the
notice and also the Trial Court taken note of condition Nos.4
and 5 in paragraph No.22 and paragraph No.24 with regard to
condition No.5 wherein 11 months time is fixed for conclusion
of the said transaction and Trial Court also taken note of
condition No.6 in paragraph No.25 comes to the conclusion that
plaintiff was not always ready to have the sale deed and hence,
answered issue No.2 as negative and answered issue No.1 as
affirmative with regard to that there was confusion between the
parties and for non performing his part answered issue No.2 as
negative and hence ordered to refund the amount. The First
Appellate Court also having reconsidered the grounds urged in
the appeal with regard to the very contention of the appellant's
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counsel that he was always ready and the same was also
discussed in paragraph No.17 of the judgment of the Trial Court
and comes to the conclusion that Trial Court has not committed
any error in not granting the relief of specific performance and
not a case for granting the specific performance in view of non
compliance of condition Nos.3 to 6 which have been mentioned
in the agreement and hence I do not find any error committed
by the Trial Court in appreciating both oral and documentary
evidence and particularly answering issue No.2 as negative in
coming to the conclusion that appellant was not ready in terms
of condition Nos.3 to 6 and apart from that the First Appellate
Court also on re-appreciation of both oral and documentary
evidence confirmed the findings of the Trial Court. The very
contention of the counsel appearing for the appellant that 11
months time was stipulated in the agreement and no dispute
with regard to the condition No.5 is concerned, 11 months was
stipulated, but condition Nos.3, 4, 5 and 6 also has to be read
together and having considered the condition No.3 in detail
discussed by the Trial Court given the finding that not a case
for granting the relief of specific performance and hence I do
not find any perversity in the finding of the Trial Court as well
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as the First Appellate Court in declining the relief of specific
performance and hence in the absence of any perversity in the
finding of the Trial Court and well reasoned order has been
passed by the Trial Court, even considering each of the
conditions mentioned in the document of sale agreement.
Hence, no ground to admit and frame any substantive question
of law.
5. The counsel for the appellant would submits that
interest ought to have been awarded from the date of receipt of
the amount, but committed an error from the date of decree
and also the Trial Court ordered to pay the amount within three
months or otherwise interest from the date of decree at 12%
and having taken note of interest allowed at 12% in the year
2014 and transaction was taken place in 2001 and direction
was given in 2014, but interest was allowed at 12% is on the
higher side and the Trial Court ought to have allowed the
interest from the date of payment of the earnest money i.e.
date of agreement 21.9.2000 and hence, the interest is
modified as 9% from the date of agreement i.e. 21.9.2000.
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6. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
AP
