Karnataka High Court
Ms Sandya C K vs Smt Savitha Rao R on 11 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 433 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 433 OF 2022 (SP)
BETWEEN:
MS. SANDYA C.K,
AGED ABOUT 55 YEARS,
D/O LATE C.S. KESHAVAMURTHY,
RESIDING AT NO.191, 100 FEET RING ROAD,
FIRST BLOCK, 3RD PHASE, BSK 3RD STAGE,
3RD PHASE, BANGALORE - 560 085.
...APPELLANT
(BY SMT. SOHANI A. HOLLA, ADVOCATE)
AND:
1. SMT. SAVITHRI RAO R,
AGED ABOUT 60 YEARS,
W/O R. RAMA RAO,
Digitally signed RESIDING AT NO.81/122,
by SUMA B N
SURVEYORS STREET, BASAVANAGUDI,
Location: High
Court of BANGALORE DISTRICT - 560 004.
Karnataka
2. THE MANAGER,
SYNDICATE BANK,
YEDIYUR BRANCH,
7TH BLOCK, JAYANAGAR,
BANGALORE - 560 011.
3. SRI. S.H. FIAZ,
S/O W.S. HAMEED,
AGED ABOUT 46 YEARS,
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RSA No. 433 of 2022
RESIDING AT NO.964,
39TH CROSS, 4TH T BLOCK,
JAYANAGAR - 560 01.
4. SMT. MAITHALY T.U,
W/O T.N. UTTAIAH BHALHAJI,
AGED ABOUT 59 YEARS,
RESIDING AT NO.C47,
HEAVY WATER COLONY,
TUTICORIN, TAMILNADU - 628 001.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 29.10.2021 PASSED IN
RA.No.5054/2018 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, ANEKAL, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 03.10.2018 PASSED IN OS No.707/2007 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC, ANEKAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/plaintiff is before this Court aggrieved
by the judgment and decree dated 03.10.2018 passed in
O.S.No.707/2007 on the file of the Senior Civil Judge and
JMFC, Anekal, Bangalore Rural District (for short 'Trial
Court') dismissing the suit for specific performance filed by
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the plaintiff, which has been confirmed by the judgment
and order dated 29.10.2021 in R.A.No.5054/2018 on the
file of the III Additional District and Sessions Judge,
Bengaluru Rural District, sitting at Anekal (First Appellate
Court).
2. Facts that are relevant for the purpose of this
appeal are that, the above suit in O.S. NO.707/2007 is
filed by the plaintiff for specific performance of an oral
agreement which she claimed to have entered with
defendant No.1 in respect of suit schedule property
namely Site bearing No.1712/B formed in Nandanavana
Layout, situated at Bukkasagara and Harappanahalli
Village, Jigani Hobli, Anekal Taluk, Bangalore Urban
District, measuring North to South 30 ft and East to West
40 ft. In that, it is contended that the plaintiff in response
to an advertisement issued by one M/s. Nirman Shelters
Private Limited calling for applications for allotment of
sites had applied for suit schedule property by paying
Rs.501/-. That the sale consideration amount payable in
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respect of the suit schedule property was Rs.2,30,000/-
and an additional amount of Rs.27,000/- towards
registration cost, of which the plaintiff had paid a sum of
Rs.9,500/- by way of cash. That she had also entered into
a formal agreement with the said M/s. Nirman Shelters
Private Limited, making defendant No.1 as a formal
purchaser to the said agreement, as the plaintiff required
financial assistance to pay the sale consideration and that
the defendant No.1 had agreed to facilitate plaintiff in
obtaining loan from a bank. It is further contended that
Defendant No.1 had obtained loan of Rs.2,25,000/- from
Syndicate Bank/Defendant No.2 and has paid the entire
sale consideration. It is further case of the plaintiff that
the said M/s. Nirman Shelters Private Limited had however
executed the sale deed only in the name of Defendant
No.1. It is further contended that the defendant No.1 had
promised and assured to execute the necessary
documents including the General Power of Attorney in
favour of the plaintiff till plaintiff repaid the entire loan
amount in Equal Monthly Installments to Defendant No.2
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on behalf of Defendant No.1. That after execution and
registration of sale deed by M/s. Nirman Shelters Private
Limited in favour of Defendant No.1, despite several
requests by the plaintiff, defendant No.1 declined to keep
up her promise in executing necessary documents,
constraining the plaintiff to approach the Karnataka State
Legal Services Authority and during the pendency of the
matter before the Legal Service Authority, the Defendant
N.1 had sold the schedule property in favour of defendant
No.3 on 24.03.2007. Finding no other alternate, the
plaintiff approached the Trial Court by filing above original
suit in O.S.No.707/2007.
3. Defendant No.1 in her written statement,
denied the case of the plaintiff. It is contended that
plaintiff was working for the defendant and that in
response to an advertisement issued by the said Housing
Development Company, the defendant No.1 had requested
the plaintiff to obtain the application for allotment of site
by paying Rs.500/- towards the application. It is
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contended that the plaintiff obtained the application in her
name though the amount was paid by Defendant No.1. It
is further contended that the plaintiff being an employee
had misused it and got her name included in the
agreement. But the defendant No.1 had paid the entire
sale consideration amount. Accordingly, the Builder had
executed the sale deed in favour of defendant No.1.
Defendant No.1 has borrowed the loan amount of
Rs.2,25,000/- from defendant No.2/Bank and has paid the
entire sale consideration amount. Thus, it is contended
that the plaintiff taking advantage of the receipt of which
she had obtained in her name, had a created a false and
fabricated story which led to filing of the suit.
4. Defendant No.3 in her written statement
contended that she is a bonafide purchaser of the property
as on the date of the purchase of the said property, the
property stood in the name of Defenant No.1 and
Defendant No.3 also had taken contention of she being the
bonafide purchaser and invested the money acting upon
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the documents which is executed in the name of defendant
No.1. Trial Court framed the following issues for
consideration :
(i) Whether the plaintiff proves that defendant
No.1 expressed her desire to sell the property
executed and agreement dated 16.04.2005 by
agreeing to sell the site in favour of the plaintiff
for Rs.2,25,000/-?
(ii) Whether plaintiff further proves that inspite of
repeated request and demand the defendants
No.1 and 2 colluding with each other avoided to
execute the sale deed?
(iii) Whether the 1st defendant proves regarding
concoction and created of the agreement by
the plaintiff?
(iv) Whether the 1st defendant proves for having
paid the sale consideration amount to the GPA
holder of M/s. Nirman Shelters and got
registered the property on 18.08.2005?
(v) Whether the plaintiff is entitled for the relief of
specific performance of contract?
(vi) What Order or Decree?
5. The plaintiff examined herself as PW1 and got
marked 19 documents as Exs.P1 to P19. The defendant
No.4 examined and got marked 6 documents as Exs.D1 to
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D6. On appreciation of pleadings, oral and documentary
evidence on record, the Trial Court answered Issue No.1 in
the 'Affirmative' and Issue Nos.2 to 5 in the 'Negative'
and consequently dismissed the suit. Being aggrieved by
the same, the plaintiff had approached the First Appellate
Court by filing regular appeal in R.A.No.505/2018.
Considering the grounds urged in the appeal memo, the
First Appellate Court framed the following points for
consideration :
(i) Whether the plaintiff has successfully
established that the Defendant No.1 had
agreed to sell the suit schedule property by
virtue of oral agreement as contended by the
Plaintiff in her plaint?
(ii) Whether the plaintiff has proved that she has
paid the entire sale consideration from her
pocket?
(iii) Whether the plaintiff has proved that she has
been paying the loan installments to the
defendant No.1 in view of loan borrowed for
the purpose of purchasing the suit schedule
property?
(iv) Whether the plaintiff is entitled for the relief of
specific performance of oral agreement as
pleaded by the plaintiff in her plaint?
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(v) Whether the impugned judgment and decree
passed by the trial court calls for interference
by this court on any of the grounds urged by
the plaintiff?
(vi) What Order or Decree?
6. The First Appellate Court after re-appreciating
the material on record has answered point No.1 'in the
Affirmative' and points No.2 to 5 'in the negative' and
consequently dismissed the appeal by confirming the
judgment and decree passed by the Trial Court. Being
aggrieved by the same, the plaintiff is before this Court.
7. Counsel for the appellant reiterating the
grounds urged in the memorandum of appeal, submitted
that the Trial Court even while answering Issue No.1 in the
'Affirmative' upholding the contention of the plaintiff with
regard to oral agreement having been entered into
between the plaintiff and defendant No.1, ought not to
have dismissed the suit. She also submits that the Trial
Court refused to grant the relief merely on the premise
that the relief being discretionary and in the facts and
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circumstances of the case, the said relief ought to have
been granted in her favour. She also submits that the
plaintiff had earlier approached the District Legal Services
Authority and District Legal Services Authority had caused
issue of notice to defendant No.1. That when the matter
was pending consideration before the Legal Services
Authority, the defendant No.1 could not have alienated the
property in favour of defendant No.3 and the same is hit
by provisions of Section 52 of Transfer of Property Act.
Thus she submits, the same given rise to a substantial
question of law to be considered by this Court.
8. Heard and perused records.
9. Though the plaintiff had claimed that there is no
written agreement of sale between the plaintiff and
defendant No.1 and that the agreement was an oral
agreement, the Trial Court has answered Issue No.1 'in
the Affirmative' by drawing adverse inference only for the
reason of defendant No.1 not entering into the witness box
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to refute the claim of the plaintiff. Since the contention of
the plaintiff has not been controverted in the evidence, the
Trial Court seems to have drawn inference in that regard.
Be that as it is, even though the plaintiff contended that
there was an oral agreement in terms of which defendant
No.1 had agreed to execute a General Power of Attorney in
favour of the plaintiff till the plaintiff repaid the entire loan
amount borrowed by defendant No.1 from the Bank and
thereafter to execute the deed of conveyance conveying
the suit schedule property in her favour, the plaintiff has
not produced any piece of acceptable evidence to show her
readiness and willingness to pay the sale consideration
much less she having offered to pay any amount. Records
reveal that not even a notice has been issued by the
plaintiff to defendant No.1 either indicating her willingness
to pay the sale consideration in the form of repaying the
loan to the Bank or calling upon defendant No.1 to execute
the document as allegedly agreed and assured by the
defendant No.1. However, there seems to be some notice
caused issued through Karnataka State Legal Services
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Authority to the defendant No.1 and a communication to
the Sub-Registrar not to register the deed of conveyance
in respect of the suit schedule property. The said two
communications/Notices would not satisfy the requirement
of the plaintiff pleading and proving her readiness and
willingness to pay the sale consideration purportedly
agreed between the plaintiff and defendant No.1.
10. The sale deed was admittedly executed by M/s.
Nirman Shelters Private Limited in favour of defendant
No.1 on 18.08.2005. The suit in question has been filed on
21.06.2007. The sale consideration was paid to M/s.
Nirman Shelters Private Limited admittedly by the
defendant No.1 by borrowing the loan from defendant
No.2/Bank. If at all, the plaintiff had agreed to purchase
the Schedule property or if defendant No.1 had merely
been arrayed as nominal purchaser for the purpose of
facilitating finance to the plaintiff, nothing prevented the
plaintiff to bring on record the material evidence to justify
her contention. No material evidence is brought on records
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with regard to any events between the date of sale deed
executed by M/s. Nirman Shelters Private Limited in favour
of defendant No.1 and the date of filing of the suit and
even thereafter. Mere initiation of proceedings by the
plaintiff before the District Legal Services Authority or
Communication to the Sub-Registrar requesting not to
execute the sale deed would not meet the requirement of
pleading proof regarding the plaintiff's readiness and
willingness to perform the contract if any. This being the
requirement to consider the case of plea of specific
performance of suit property and plaintiff not having
pleaded or proved her readiness or willingness to perform
contract, no irregularity, infirmity or illegality can be found
with the reasons assigned by the Trial Court as well as the
First Appellate Court.
11. Further as rightly taken note of by the Trial
Court and the First Appellate Court in terms of Section
19(b) of Specific Relief Act, specific performance of a
contract can be enforced against any person except a
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transferee for value who has paid his money in good faith
and without notice of original contract. In the instant case,
the defendant No.1 purchased the suit schedule property
under deed of sale dated 18.08.2005 and defendant No.3
purchased the same under deed of sale dated 24.03.2007,
much prior to filing of the suit before the Court of
competent jurisdiction. The purported agreement between
plaintiff and defendant No.1 being oral, there is nothing on
record to attribute either knowledge of the same or any
malafides on the part of defendant No.3.
12. In that view of the matter, no substantial
question of law would arise for consideration and the
appeal is dismissed.
Sd/-
JUDGE
SNC
CT: BHK
