Karnataka High Court
Shantabai W/O Sidaraya Harakari vs Rajendra Govind Daivdnya on 29 February, 2024
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RSA No. 7220 of 2009
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.7220 OF 2009 ()
BETWEEN:
1. SHANTABAI W/O SIDARAYA HARAKARI
AGE: MAJOR, OCC: H.H.WORK,
R/O KASAGERI ONI,
BIJAPUR-586101.
2. MURIGEMMA W/O SIDARAYA HARAKARI
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
3. YAMANAKKA W/O MAHADEV INCHAGERI
Digitally signed AGE: MAJOR, OCC: H.H.WORK,
by KHAJAAMEEN
L MALAGHAN R/O NEAR MICRO OFFICE,
Location: HIGH SIDDESHWAR COLONY,
COURT OF BAGALKOT ROAD,
KARNATAKA
BIJAPUR-586101.
4. KAMALA W/O SIDDU MANVE
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
5. RENUKA W/O MALLINATH NIMGBARAGI
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
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RSA No. 7220 of 2009
6. SRIDEVI W/O MAHADEV MAMADAPUR
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
7. JAVAHAR SIDARAYA HARAKARI
AGE: MAJOR, OCC: AGRICULTURE,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
8. VIVEKANAND SIDARAYA HARAKARI
AGE: MAJOR, OCC: STUDENT,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
9. BABU S/O SIDARAYA HARAKARI
AGE: MAJOR, OCC: STUDENT,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
...APPELLANTS
(BY SRI UMESH V. MAMADAPUR, ADVOCATE)
AND:
RAJENDRA GOVIND DALVADYA
AGE: MAJOR, OCC: SERVICE,
R/O BIJAPUR-586101.
...RESPONDENT
(BY SRI AJAYAKUMAR A.K., ADVOCATE APPEARED FOR
SMT.RATNA N. SHIVAYOGIMATH, ADVOCATE
FOR C/RESPONDENT)
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RSA No. 7220 of 2009
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 13.07.2009 MADE IN R.A.NO.177/2005
PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE,
BIJAPUR AND CONFIRMING THE JUDGMENT AND DECREE
DATED:28-07-2005 PASSED BY LEARNED PRINCIPAL CIVIL
JUDGE (SR. DN.) BIJAPUR IN O.S.NO.221/1995, ALLOW THIS
APPEAL THEREBY DISMISSING THE SAID SUIT IN
O.S.NO.221/1995 FILED BY THE RESPONDENT BEFORE THE
TRIAL COURT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and the
respondent.
02. This appeal is filed by the defendants aggrieved
by the judgment and decree passed in O.S.No.221/1995
dated 28.07.2005 on the file of Prl. Civil Judge (Sr. Dn)
Bijapur, which is confirmed by the Prl. District Judge in
R.A.No.177/2005 dated 13.07.2009.
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03. The parties will be referred to as per their ranks
before the Trial Court for the sake of convenience.
04. The factual matrix that is relevant for the
purpose of this second regular appeal are that the plaintiff
had filed a suit against the defendants for specific
performance of contract of agreement of sale dated
14.05.1993 in respect of a site measuring 60 x 40 feet out
of R.S.No.490/1B of Mahalabhagayat Bijapura. In the
alternative he sought for refund of earnest money of
Rs.25,000/- with interest at 18% p.a. It was contended
that the deceased - Sidaraya, who was the owner of the
entire land measuring 05 acres 33 guntas, had converted
the said land into Non-Agricultural Land and was intending
to form a layout as per the private survey. The said
Sidaraya had executed an agreement of sale in favour of
the plaintiff, agreeing to sell the above mentioned site
which is falling in the said land for a consideration of
Rs.50,000/-. A sum of Rs.25,000/- was paid as a earnest
money. Later, the layout was got approved by the ADLR.
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Thereafter, even though the plaintiff was ready and willing
to perform the part of the contract, the Sidaraya went on
postponing the execution of the sale deed on the ground
that he had to pay the development charges and has to
get other developmental work of the plots done. During
the first week of December - 1994, the plaintiff met the
said Sidaraya along with Rs.25,000/-, but the said
Sidaraya said that he would receive the amount later.
Unfortunately, the said Sidaraya died on 19.12.1994
leaving behind the defendants. It is contended that the
plaintiff was always ready and willing to perform his part
of contract and it was only that the defendants who had
refused to accept the same and execute the registered
sale deed. Therefore, the plaintiff sought for specific
performance of the contract of agreement of sale.
05. The defendants appeared before the Trial Court
and filed the written statement contending that the entire
agreement is false and frivolous and denying the execution
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of the agreement as well as receipt of the earnest money
of Rs.25,000/-. They have also denied the agreement of
sale contending that the said agreement is false, forged
and fabricated one. They are not liable to execute the sale
deed. According to the defendant, the land was converted
into non-agricultural use in January 1993 and the
measurement was done on 06.04.1994 and 16.04.1994 by
the ADLR. The plot numbers were given thereafter.
Therefore, they sought for dismissal of the suit.
06. On the basis of the above pleadings, the Trial
Court has framed the following issues :-
1. Whether plaintiff proves that the deceased
Siddaraya has executed a deed of
agreement of sale on 14.5.1993 In
respect of Plot No.74 measuring 60' x 40'
Sq.Ft out of RS No. 490/1B subsequently
re- numbered as 490/C in favour of him
(plaintiff) after receiving Rs.25,000/- as
an earnest money from him (plaintiff) out
of total consideration of Rs.50,000/-?
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2. Whether plaintiff proves that he is ready
and willing to perform his part of contract?
3. Whether plaintiff further proves his lawful
possession over the suit plot on the date
of suit?
4. Whether plaintiff proves obstruction by
the defendants?
5. Whether plaintiff is entitled to a decree of
Specific Performance of contract? Or In
the alternative whether the plaintiff is
entitled to earnest money of Rs.25,000/-
out of total consideration of Rs.50,000/-
together with interest at the rate of 18%
p.a. till realization of entire amount as
prayed by him in para No.14 (c) of the
plaint?
6. What order of decree?
07. After the evidence was led and after the
arguments were heard, the Trial Court has answered the
issues No.1, 2 and 5 in the affirmative and issues No.3
and 4 in the negative and the decreed the suit.
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08. Being aggrieved by the said judgment and
decree, the defendants filed the R.A.No.177/2005 before
the learned Prl. District Judge, Bijapur. After hearing the
parties, the First Appellate Court has framed the following
points for consideration :-
1. Whether the plaintiff has proved the execution
of the agreement of sale dated 14.5.1993 by
late Sidaraya in his favour in respect of suit
property and passing of consideration of
Rs.25,000/-?
2. Whether the plaintiff is entitled for the specific
performance of contract?
3. Whether the trial Court was justified in
decreeing the suit of the plaintiff?
4. Whether the impugned judgment and decree
passed by the trial Court calls for interference
from his Court?
5. What order?
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09. The First Appellate Court had answered the
points No.1 to 3 in the affirmative and the point No.4 in
the negative, by the impugned judgment confirming the
judgment and decree passed by the Trial Court.
10. Being aggrieved by the concurrent findings of
the Trial Court and the First Appellate Court, the
defendants have approached this Court in the Regular
Second Appeal.
11. On issuance of notice, the plaintiff has appeared
through his counsel before this Court. While admitting this
appeal, this Court has framed the following substantial
question of law :-
"Whether both the Courts below were justified in
granting a decree for specific performance
ignoring the Provisions of Section 20 of specific
Relief Act?"
12. The arguments of the learned counsel for the
appellants and the respondent are heard.
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13. The learned counsel appearing for the
appellants would submit that the Trial Court as well as the
First Appellate Court have not addressed the mandatory
requirement under Section 20 of the Specific Relief Act. It
is submitted that the provisions of Section 20 of the
Specific Relief Act, before the amendment, require the
Courts to consider the judicial discretion to be exercised
while granting the relief of specific performance. It is
submitted that though both the Courts below had come to
the conclusion that the agreement of sale has been proved
by the plaintiff and the defendants are liable to pay the
balance of consideration of amount of Rs.25,000/-, they
should have considered as to why the judicial discretion
has to be exercised in favour of the plaintiff.
14. It is submitted that agreement of sale at Ex.P.1
do not mention the plot number, but it was the plaint
alone which mention the plot number as 74. In the
agreement the boundaries are not mentioned. It is
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submitted that when the description of the plot was not
mentioned in the agreement, the said fact should have
been held in favour of the defendants in denying the
specific performance. The Trial Court and the First
Appellate Court would have ordered for refund of the
earnest money. He further submitted that in the
agreement itself it is mentioned that the deceased -
Sidaraya has received a sum of Rs.25,000/- for the
purpose of development of the layout. This clearly
indicates that even prior to demarcation of the plots, the
agreement was entered into. It is submitted that the
provisions of Section 20 of the Specific Relief Act, as stood
earlier were not properly considered by both the Courts.
15. Per contra, the learned counsel appearing for
the plaintiff submits that at the most the agreement could
be construed to be a contingent contract and at most it
can be construed to be a vague contract. It is submitted
that the defendant has received the earnest money from
the several vendors. There were several such suits filed by
the agreement holders against the said Sidaraya and the
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defendants. He submits that the Ex.D.3 shows that a
similar suit was filed wherein the defendants were directed
to execute the sale deed. It is submitted that non-
mentioning of the description of the site in the agreement
cannot be a ground to deny the specific performance. On
this ground, the learned counsel for the plaintiff has
defended the impugned judgment. He further submitted
that there is absolutely no material on record to show
which would require the judicial discretion to be exercised
in favour of the defendants. The question of hardship,
inadequate consideration or any such circumstances is not
found either in the pleadings or in the evidence. Therefore,
he submits that the appeal is bereft of any merits, as such
the same may be dismissed. The learned counsel has also
placed reliance on the decision the case of Gobind Ram
vs. Gian Chand reported in 2000 (4) KCCR 2737
rendered by the Hon'ble Supreme Court to contend that to
mitigate the hardship, the Hon'ble Supreme Court had
directed that the purchaser should deposit the further
amount of Rs.3,00,000/- in addition to the balance of the
sale consideration amount.
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16. The perusal of the agreement at Ex.P.1 shows
that it was entered into between the parties when the
layout was not yet formed. The land owner has clearly
mentioned that the layout is in formation stage and the
purchaser would be given a site measuring 60 x 40 feet for
a total consideration of Rs.50,000/-. The agreement also
shows that a sum of Rs.25,000/- was paid as advance.
The First Appellate Court as well as the Trial Court have
categorically come to the conclusion that the said
agreement of sale at Ex.P.1 has been proved. Therefore,
the concurrent findings of fact by the Trial Court and the
First Appellate Court, cannot be interfered with in the
Regular Second Appeal, which is filed under Section 100 of
CPC.
17. The perusal of the written statement of the
defendants would show that except denial there is
absolutely no mention about the hardship that would be
meted with the defendants if the specific performance is
ordered. So also, in the testimony of the PW.1, there is no
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mention about the hardship that would be faced by the
defendants, if the specific performance is ordered. As such
that could have been suggested to the PW.1 in the cross-
examination. Thus, it is evident that there is absolutely no
evidence which would show as to how the defendants
would be put to a great hardship if the specific
performance is ordered by the Court.
18. In the absence of any evidence in this regard,
the Trial Court as well as the First Appellate Court were
left with absolutely no evidence regarding the question of
hardship or the circumstances which show the mitigating
circumstances to the defendants. The circumstance left to
both Courts was to take judicial note of certain facts. The
perusal of both the judgments shows that there was no
submission in this regard by learned counsel appearing for
both the sides. Thus, it is evident that the question of
hardship and the judicial discretion is urged for the first
time before this Court. It is only the lapse of time which
need to be considered. Evidently, the agreement was
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entered into between the parties on 14.05.1993. At the
relevant point of time i.e., on 11.06.1993 another
agreement was also entered into as per Ex.D.3 with one
Mahantesh Patil. Therefore, it is evident that such
agreements were executed by the deceased - Sidaraya
during the year 1993. Now, this Regular Second Appeal is
heard in the year 2024. The lapse of time and deprivation
of the balance consideration amount to the defendants and
the escalation of the price and the market value is also a
circumstance, but the explanation to Section 20 (2) of the
Specific Relief Act, reveals that inadequacy of the
consideration is not a ground.
19. The judgment of the Hon'ble Supreme Court in
the case of Gobind Ram vs. Gian Chand reported in
2000 (4) KCCR 2737, lays down that in order to render
the justice, an additional sum of Rs.3,00,000/- was
ordered to be paid by the purchaser. Further in the recent
judgments, the Hon'ble Supreme Court has also noticed
this aspect and certain reliefs were granted.
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20. Keeping in view the observations and the delay
which has occurred, it is necessary to exercise the judicial
discretion. The above said circumstances, even though the
defendants are not entitled to seek for refund of the
earnest money as contended, it would be proper to impose
interest on the balance consideration amount.
21. The learned counsel appearing for both the
sides plead no information as to whether the balance sale
consideration amount of Rs.25,000/- has been deposited
before the Trial Court or the First Appellate Court.
Therefore, in view of the above discussion, the substantial
question of law is answered accordingly in the negative.
Hence, the following;
ORDER
I. The appeal is dismissed.
II. The plaintiff is directed to pay the balance
consideration amount of Rs.25,000/- to the
defendants along with interest at the rate of 9% p.a.
from the date of agreement till the date of deposit.
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III. If the defendants fail to execute the sale deed, the
plaintiff is at liberty to get execute the sale deed by
the process of the Court.
Sd/-
JUDGE
KJJ
CT:PK
