M K Rahim Baig vs D T Rajesh
2024 Latest Caselaw 5984 Kant

Karnataka High Court

M K Rahim Baig vs D T Rajesh on 28 February, 2024

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                                                           NC: 2024:KHC:8402
                                                         RSA No. 583 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 28TH DAY OF FEBRUARY, 2024

                                            BEFORE

                          THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                        REGULAR SECOND APPEAL NO. 583 OF 2014 (SP)

                   BETWEEN:

                         M K RAHIM BAIG
                         S/O LATE M.V. KHASIM BAIG,
                         SINCE DEAD BY LEGAL REPRESENTATIVES

                   1.    SMT. AKTHARMUNNISA,
                         AGED ABOUT 62 YEARS,
                         W/O M.K.RAHIM BAIG,

                   2.    M.R. ANSAR BAIG,
                         AGED ABOUT 50 YEARS,
                         S/O M.K.RAHIM BAIG

                   3.    M.R. SUHANA BAIG
                         AGED ABOUT 41 YEARS,
Digitally signed
by R DEEPA               S/O M.K.RAHIM BAIG
Location: HIGH
COURT OF                 APPELLANTS 1 TO 3 ARE R/AT
KARNATAKA                ZAMBA MANZIL, RUSSEL LAYOUT,
                         NEAR CAUVERY BRIDGE
                         KUSHALNAGAR, SOMWARPET TALUK,
                         KODAGU DISTRICT-571236

                   4.    SMT.M.R. FOUZIA
                         MAJOR, D/O M.K. RAHIM BAIG
                         W/O RAZWAMN AHAMAD,
                         R/O RAMANAGARAM,
                         TOWN & DISTRICT-571511
                                                               ...APPELLANTS
                   (BY SRI. A RAVISHANKAR, ADVOCATE)
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                                                   NC: 2024:KHC:8402
                                              RSA No. 583 of 2014




AND:

1.   D T RAJESH
     AGED ABOUT 51 YEARS,
     S/O K.S.THIMAIAH SHETTY
     R/O NO.X-61,
     MAHADESWARA BLOCK,
     SOMWARPET TOWN AND TALUK
     KODAGU DISTRICT-571236

2.   SMT.P. VANITHA
     AGED ABOUT 35 YEARS,
     W/O N.S.JAYARAM,
     R/O H.174,
     MAHADESHWARA BLOCK,
     SOMWARPET TOWN AND TALUK,
     KODAGU DUSTRICT-571236
                                                    ...RESPONDENTS

(BY SRI. M E NAGESH, ADVOCATE FOR R1
    V/O DATED 24.07.2018 NOTICE TO R2 IS D/W)

     THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 5.12.2013 PASSED IN
R.A.NO.25/2013 ON THE FILE OF THE DISTRICT JUDGE AT
MADIKERI, DISMISSING THE APPEAL FILED AGAINST THE
JUDGEMENT AND DECREE DTD 17.1.2013 PASSED IN
O.S.NO.103/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MADIKERI.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This second appeal is filed by the appellants

challenging the judgment and decree dated 05.12.2013,

passed in R.A.No.25/2013 by the District Judge, Madikeri,

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confirming the judgment and decree dated 17.01.2013

passed in O.S.No.103/2007 by the Senior Civil Judge at

Madikeri.

2. For the sake of convenience, parties are referred

to as per their ranking before the trial Court. Appellant

Nos.1 to 5 are defendant Nos.1 to 5 and respondents

Nos.1 and 2 are the plaintiff and defendant No.6.

3. The brief facts leading rise to filing of this appeal

are as under:

Plaintiff filed a suit for specific performance of

contract or alternatively for refund of advance amount. It

is the case of the plaintiff, that defendant No.1 was the

absolute owner in possession of the suit schedule

property, who was in need of money to start textile

business for his sons i.e., defendant Nos.3 and 4 and in

order to settle down in Kushalnagar Town and to discharge

certain handlooms offered to sell the suit schedule

property to the plaintiff. Defendant No.1 along with his

wife and defendant Nos.2 to 5 jointly executed an

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agreement of sale dated 19.04.2006 agreeing to sell the

suit schedule property for total consideration of Rs.13.50

lakhs and as on the date of execution of agreement, the

defendants received a sum of Rs.2,50,000/- towards

advance amount and agreed to receive the balance

consideration amount at the time of execution of

registered sale deed. The plaintiff requested the

defendants to accept the balance consideration amount to

execute a sale deed. On 28.06.2006 the defendant Nos.1

to 5 demanded for further advance of Rs.2 lakhs and on

16.09.2006 they demanded for further Rs.3 lakhs. The

plaintiff paid a sum of Rs.3,00,000/- through cheques

bearing Nos.00770070 and 00770071 dated 16.09.2006

and 23.09.2006 respectively drawn on State Bank of

Mysore, Somwarpet each for Rs.1.50 lakhs and defendant

Nos.1 to 5 extended time for performance of agreement

up to 16.10.2006 and also acknowledged by executing

receipt-cum-supplementary endorsement. Subsequently,

the defendants demanded for a sum of Rs.20,000/-. The

plaintiff paid the amount through cheque bearing

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No.051396 dated 12.12.2006 drawn on Karnataka Bank,

Rs.10,000/- in cash on 31.01.2007, Rs.10,000/- through

cheque bearing No.026000 dated 23.02.2007 and

Rs.10,000/- in cash. The plaintiff got issued a legal notice

on 17.03.2007 to defendant Nos.1 to 4 calling upon them

to execute a registered sale deed. Defendant Nos.1 to 4

replied to the legal notice denying the execution of

agreement of sale. Thus, the plaintiff in all paid a sum of

Rs.7,90,000/- to defendant Nos.1 to 5. The plaintiff is/was

ready and willing to perform his part of contract, but the

defendants are not willing to perform their part of

contract. Hence, cause of action arose for the plaintiff to

file a suit for specific performance of contract.

Defendant No.1 filed written statement denying the

averments made in the plaint and also denied the

execution of agreement of sale in favour of the plaintiff

and also receiving part of the consideration amount. It is

contended that the plaintiff has fabricated the agreement

of sale and it does not bare signature. It is contended that

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defendant Nos.1 to 5 have sold the suit schedule property

in favour of defendant No.6 under a registered sale deed

dated 20.07.2007. Hence, prayed to dismiss the suit.

Defendant Nos.2 to 5 filed a memo for adopting the

written statement filed by defendant No.1.

Defendant No.6 filed written statement denying the

averments made in the plaint. It is contended that on

20.07.2007, defendant Nos.1 to 5 executed a registered

sale deed in respect of suit schedule property in her favour

and she was put in possession of the suit schedule

property in favour of defendant No.6 and she is the

bonafide purchaser. Hence, prayed to dismiss the suit.

4. The Trial Court, on the basis of the above said

pleadings, framed the following issues:

1) Whether the plaintiff proves that defendant No.1 to 5 executed sale agreement on 19.04.2006 in favour of plaintiff agreeing to sell suit schedule property of Rs.13.50 lakhs and received sum of Rs.2,50,000/-

on the same date and agreed to receive balance sale consideration amount and

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execute the sale deed on or before 31.08.2006?

2) Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?

3) Whether the defendants prove the averments made in para 6 and 7 of written statement?

4) Whether the plaintiff is entitled for relief of specific performance of contract?

5) Whether in the alternative plaintiff is entitled for refund of advance amount as preyed for?

6) What decree or order?

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

himself as PW.1 and examined one witness as PW.2 and

got marked 23 documents as Exs.P1 to P23. In rebuttal,

defendant No.3 examined as DW.1, but no documents are

marked. The trial Court after assessing the oral and

documentary evidence of the parties, answered issue

Nos.1, 2 and 5 in the affirmative, issue Nos.3 and 4 in the

negative and issue No.6 as per final order. The suit of the

plaintiff is decreed with costs and directed to pay a sum of

Rs.7,90,000/- with interest at 10% p.a., to the plaintiff

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from the date of suit till the date of realization and the

claim of the plaintiff for specific performance of agreement

to sell was dismissed.

6. Defendant Nos.1 to 5 aggrieved by the judgment

and decree passed in the above said suit, filed an appeal

in R.A.No.25/2013. The First Appellate Court, after hearing

the parties, has framed the following points for

consideration:

1) Whether the suit did not survive against defendants-1 to 5 after it was dismissed against the sixth defendant?

2) Whether the suit against the sixth defendant should have been continued despite the compromise?

3) Whether the plaintiff should have amended the plaint seeking only the relief of earnest money after he got the suit dismissed against the sixth defendant?

4) Whether he should have filed a cross appeal or cross objection against finding on issue-4 relating to the entitlement to a decree for specific performance in the negative?

5) Whether the plaintiff has proved payment of advance money to defendants -1 to 5?

6) Whether he is entitled to a decree for refund of the same?

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7) Whether sufficient stamp duty is not paid on the suit agreement?

8) Whether interference is called for in the judgment and decree of the trial Court?

7. The First Appellate Court, on re-assessing the oral

and documentary evidence, answered point No.1 as the

suit did survive against defendants 1 to 5 even after

dismissal of the suit against the sixth defendant, point

Nos.2 to 4 and 8 in the negative, point Nos.5 and 6 in the

affirmative and point No.7 as the suit agreement is

sufficiently stamped and consequently, dismissed the

appeal with costs, confirming the judgment and decree

passed by the trial Court. Defendant Nos.1 to 5,

aggrieved by the judgments and decrees passed by the

courts below, have filed this second appeal.

8. Heard learned counsel for defendant Nos.2 to 5.

9. Learned counsel for defendant Nos.2 to 5 submits

that the plaintiff has failed to prove the execution of

agreement of sale and payment of earnest money. He

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NC: 2024:KHC:8402

submits that defendant Nos.1 to 5 executed a registered

sale deed in favour of defendant No.6. Hence, when the

plaintiff has failed to establish the part payment of the

consideration amount, the trial Court could not have

granted an alternate relief of refund of earnest money.

Hence, he submits that the trial Court committed an error

in decreeing the suit of the plaintiff for refund of earnest

money with interest is arbitrary and erroneous. He also

submits that the First Appellate Court has not properly

re-assessed the material on record and simply confirmed

the judgment and decree passed by the trial Court. Hence,

on these grounds, the impugned judgments and decrees

passed by the Courts below are perverse and arbitrary and

prays to allow the appeal.

10. Perused the records and considered the

submissions of learned counsel for defendant Nos.2 to 5.

11. It is the case of plaintiff that defendant No.1 is

the absolute owner of the suit schedule property and he

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was in need of money to establish textile shop for his sons

and to discharge handloom obtained by defendant No.1

agreed to sell the suit schedule property for consideration

amount of Rs.13,50,000/-. The plaintiff paid Rs.50,000/-

on 08.03.2006 through cheque drawn on Karnataka Bank,

Rs.1,40,000/- on 19.04.2006 drawn on State Bank of

Mysore, Somwarpet and Rs.60,000/- in cash. It was

agreed that the plaintiff to pay the balance consideration

amount at the time of execution of the registered sale

deed and defendant Nos.1 to 5 agreed to execute a

registered sale deed in favour of plaintiff on or before

31.08.2006. Defendant Nos.1 to 5 went on demanding the

balance consideration amount. The plaintiff went on

paying the balance consideration amount to defendant

Nos.1 to 5 through cheques drawn on cheque dated

16.09.2006 and 23.09.2006 and accordingly, defendant

Nos.1 to 5 executed a receipt and the plaintiff also issued

cheques drawn on Karnataka Bank dated 12.12.2006,

31.01.2007 and 23.02.2007. Even after the payment of

consideration amount, defendant Nos.1 to 5 went on

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avoiding to execute a registered sale deed. The plaintiff

got issued a legal notice dated 17.03.2007. Defendant

Nos.1 to 5 replied to the said legal notice denying the

execution of an agreement of sale and receipt of part

consideration amount. The plaintiff in order to substantiate

his case, examined himself as PW.1 and examination-in-

chief is the replica of plaint and produced the documents

i.e., Exs.P1 and P2 are the jamabandhi, Ex.P3 is the sale

agreement dated 19.04.2006, Ex.P4 is the certified copy of

the registered sale deed dated 20.07.2007 executed by

defendant Nos.1 to 5 in favour of defendant No.6, Ex.P5 is

the copy of legal notice got issued by plaintiff to defendant

Nos.1 to 5, Exs.P6 and P7 are the postal acknowledgment,

Ex.P8 is the postal receipt and UCP receipt, Exs.P9 and

P10 are undelivered letters, Ex.P11 is the reply notice,

Ex.P12 is the copy of notice, Exs.P13 to 16 are the

statement of accounts, Ex.P17 is the tax register book,

Ex.P18 is the U.P.C, Ex.P19 is complaint to TMC by the

plaintiff, Ex.P20 is the endorsement, Ex.P21 is the notice

copy, Ex.P22 is the endorsement and Ex.P23 is the copy of

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letter dated 31.08.2007. Further, the plaintiff also

examined PW.2 who is the attesting witness to Ex.P3.

PW.2 has deposed that defendant Nos.1 to 5 have entered

into an agreement of sale when the plaintiff agreeing to

sell the suit schedule property and the plaintiff paid a sum

of Rs.2,00,000/- as an advance sale consideration

amount. On going through the evidence of this witness,

nothing is elicited to say that no sale transaction took

place between the plaintiff and defendant Nos.1 to 5.

Defendant Nos.1 to 5 have denied the execution of

agreement of sale, but defendant Nos.1 to 5 have not

explained the reasons when defendant Nos.1 to 5 have

received amount from the plaintiff through above referred

cheques. From the perusal of the records, it discloses that

defendant Nos.1 to 5 have received the part consideration

amount from the plaintiff on the date of execution of the

agreement of sale and on subsequent dates, the plaintiff

has paid in all a sum of Rs.7,90,000/-. Further, the

plaintiff got issued a legal notice calling upon defendant

Nos.1 to 5 to receive the balance consideration amount

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and to execute a registered sale deed. But defendant

Nos.1 to 5 did not comply with the terms and conditions

and committed a breach of contract.

12. During the pendency of the suit, defendant

No.1 sold the suit property in favour of defendant No.6

and defendant No.6 in turn has sold the suit schedule

property in favour of the plaintiff. Hence, the question of

granting relief of specific performance would not arise.

However, defendant Nos.1 to 5 have received the part

consideration amount of Rs.7,90,000/-. Defendant Nos.1

to 5 are liable to refund the said amount received from the

plaintiff towards consideration amount. The trial Court

considering the subsequent events took place between the

plaintiff and defendant No.6, decreed the suit granting an

alternate relief of refund of amount with interest at the

rate of 10% p.a. The trial Court was justified in decreeing

the suit of the plaintiff. The First Appellate Court on re-

appreciation of material on record was justified in

upholding the judgment and decree passed by the trial

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Court. Hence, I do not find any substantial questions of

law that arise for consideration in this appeal and I do not

find any error in the impugned judgments.

13. In view of the aforesaid facts and circumstances,

I proceed to pass the following:

ORDER

The appeal is dismissed.

The impugned judgments and decrees passed by the Courts below are hereby confirmed.

No order as to the costs.

Sd/-

JUDGE ssb