Karnataka High Court
Sri. Shankrappa S/O Shantappa ... vs Sri. Naganagouda S/O Sankanagouda ... on 15 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:6368
RSA No. 100889 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.100889 OF 2022 (SP)
BETWEEN:
SRI. SHANKRAPPA S/O. SHANTAPPA TAVANAPPANAVAR,
AGED ABOUT: 72 YEARS,
OCC: AGRICULTURE,
R/O: YATTINAHALLI,
TQ: SHIGGAON,
DIST: HAVERI - 581 193.
...APPELLANT
(BY SRI. S.R.HEGDE, ADVOCATE)
AND:
SRI. NAGANAGOUDA S/O. SANKANAGOUDA PATIL,
AGED ABOUT: 63 YEARS,
OCC: NIL, R/O: YATTINAHALLI,
TQ: SHIGGAON,
DIST: HAVERI - 581 193.
...RESPONDENT
(NOTICE SERVED - UNREPRESENTED)
Digitally THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
signed by 100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET
SUJATA
SUBHASH ASIDE THE JUDGMENT AND DECREE 20.12.2021 PASSED IN
PAMMAR R.A.NO.7/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
Location: JUDICIAL MAGISTRATE FIRST CLASS, SHIGGAON, DISMISSING THE
HIGH
COURT OF APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
KARNATAKA 09.11.2017, PASSED IN O.S.NO.139/2010 ON THE FILE OF THE
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT
SHIGGAON, DISMISSING THE SUIT FILED FOR RELIEF OF SPECIFIC
PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100889 of 2022
JUDGMENT
This Regular Second Appeal is filed by the plaintiff
challenging the judgment and decree dated 20.12.2021
passed in R.A.No.7/2018 by the Senior Civil Judge and JMFC,
Shiggon (First Appellate Court) and the judgment and decree
dated 09.11.2017 passed in O.S.No.139/2010 by the Civil
Judge and JMFC, Shiggon (trial Court).
2. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
3. The plaintiff has filed suit for specific performance
of contract. It is the case of the plaintiff that the defendant is
the owner of the property and there was agreement for sale
executed on 31.05.1989 between the plaintiff and the
defendant for a total sale consideration of Rs.10,000/- on the
allegation that defendant has not executed registered sale
deed in favour of the plaintiff, therefore, plaintiff has filed
suit for specific performance of contract. The trial Court
dismissed the suit which is affirmed by the First Appellate
Court. It is the finding of fact by both the trial Court and the
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First Appellate Court that execution of agreement of sale on
31.05.1989 for Rs.10,000/- is not proved and this proves
that plaintiff was not ready and willing to perform his part of
contract, therefore, dismissed the suit which is affirmed by
the First Appellate Court.
4. Notice issued to the respondent-defendant is
served, but the respondent-defendant inspite of receiving the
notice has not made representation in this appeal.
5. Learned counsel for the appellant submitted that
though, both the trial Court and First Appellate Court have
exercised their discretionary power in rejecting the prayer of
the plaintiff for grant of decree for specific performance of
contract but ought to have decreed suit for refund of earnest
amount which was paid by the plaintiff to the defendant but
for this relief of refund of amount, both the trial Court and
First Appellate Court have not made any order for refund of
earnest amount. Therefore, requested at least pass an order
for refund of earnest amount.
6. Upon considering the appeal to find out whether
there were any substantial questions of law involved in the
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case to consider the case on its merit, it is revealed that the
suit properties are agricultural land to the extent of 1 acre 28
guntas situated at Yettinahalli Village of Shiggaon Taluk. It is
the case of the plaintiff that he had paid Rs.5,000/- as
earnest money to the defendant and defendant has received
the same. Though in the evidence, it is revealed that
defendant has received the said sum of hand-loan, defendant
is liable to repay the said amount of Rs.5,000/- to the
plaintiff. There is no evidence that as rightly observed by the
trial Court and the First Appellate Court, plaintiff was ready
to perform his part of contract, hence, as per Section 16(c)
of the Specific Relief Act, 1963, the plaintiff is not entitled to
the relief of decree for specific performance of contract.
Furthermore, as per Section 20 of the Specific Relief Act, the
relief of grant of decree for specific performance of contract
is discretionary one considering the factor that full sale
consideration of Rs.10,000/- to the entire extent of 1 acre 28
guntas as per agreement of sale dated 31.05.1989 and in
the event decree is passed, then certainly it is arbitrary.
Further if discretion is not exercised properly, then it is
amounting to unfair advantage on the plaintiff over the
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defendant. Besides, it is only the land to the defendant for
his livelihood. Therefore, both the trial Court and the First
Appellate Court are correct in exercising discretionary power
in not granting decree for specific performance of contract.
To this extent, both the trial Court and the First Appellate
Court are correct.
7. However, defendant admitted receipt of
Rs.7,100/- from the plaintiff. Therefore, the plaintiff is
entitled refund amount of Rs.7,100/- earnest money with
interest at the rate of 6% per annum from 31.05.1989. To
this extent, appeal filed by the plaintiff is allowed in part by
decreeing the suit so far as making direction to the
defendant to refund the amount of Rs.7,100/- as ordered.
Therefore, the appeal is allowed in part.
Hence, I proceed to pass the following:
ORDER
i) Appeal is allowed in part.
ii) The Judgment and Decree dated
20.12.2021 passed in R.A.No.7/2018 by
the Senior Civil Judge and JMFC, Shiggon
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(First Appellate Court) and Judgment and
Decree dated 09.11.2017 passed in
O.S.No.139/2010 by the Civil Judge and
JMFC, Shiggon (trial Court) are modified
directing the defendant to refund the
amount of Rs.7,100/- to the plaintiff with
interest at the rate of 6% per annum from
the date of agreement for sale i.e., from
31.05.1989 till realization.
iii) No order as to costs.
Sd/-
JUDGE
KGK,SRA
CT: ANB
