Karnataka High Court
Smt. Jyoti W/O Ajay Dabolkar vs Shri Bandopant Bharma Badavanache on 26 July, 2024
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NC: 2024:KHC-D:10673
RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5234 OF 2008 (SP)
C/W
REGULAR SECOND APPEAL NO. 5651 OF 2010 (PAR)
REGULAR SECOND APPEAL NO. 100966 OF 2023 (POS)
IN RSA.NO.5234/2008
BETWEEN:
1. SHRI BANDOPANT
S/O. BHARMA BADAVANACHE,
AGE: 57 YEARS, OCC: BUSINESS,
R/O.4196/1A/1, KACHERI ROAD,
BELGAUM.
2. SHRI PRASHANT
S/O. BANDOPANT BADAVANACHE,
AGE: 32 YEARS, OCC: BUSINESS,
R/O.4196/1A/1, KACHERI ROAD,
Digitally
signed by BELGAUM.
BHARATHI S
Location: 3. SHRI PRAMOD
HIGH
COURT OF S/O. BANDOPANT BADAVANACHE,
KARNATAKA AGE: 29 YEARS, OCC: BUSINESS,
R/O.4196/1A/1, KACHERI ROAD,
BELGAUM.
...APPELLANTS
(BY SRI. B.S. KAMATE, ADVOCATE)
AND:
SMT. SHAILAJA W/O. LAXMIKANT KAMAT,
SINCE DECEASED BY HER LR'S.
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RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
1. SMT. JYOTI
W/O. AJAY DABOLKAR,
AGE: 40 YEARS, OCC: SERVICE,
R/O. BUDHAWARPETH, TILAKWADI,
BELGAUM-590001.
2. SMT. DEEPA @ TRUPTI
W/O. SANJAY DARESHWAR,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O. BUDHAWARPETH, TILAKWADI,
BELGAUM-590001.
...RESPONDENTS
(BY SRI. SACHIN P. BICHU ASSOCIATES, FOR R1 & R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 08.09.2008 PASSED BY THE LEARNED I ADDITIONAL
DISTRICT JUDGE, BELAGAVI IN R.A.NO.21/2007 AND THE
JUDGMENT AND DECREE DATED 06.03.2007 PASSED BY THE
LEARNED I ADDITIONAL CIVIL JUDGE (SR.DN.), BELAGAVI IN
O.S.NO.139/2003 AND FURTHER THE SUIT OF THE PLAINTIFFS IN
O.S.NO.139/2003 MAY KINDLY BE DECREED AS PRAYED FOR BY
ALLOWING THIS RSA WITH COSTS.
IN RSA NO. 5651/2010
BETWEEN:
1. BANDOPANT BHARMA BADVANNACHE,
AGE: 59 YEARS,
OCC: BUSINESS,
2. PRASHANT BANDOPANT BADVANNACHE,
AGE: 32 YEARS,
OCC: BUSINESS,
3. PRAMOD BANDOPANTH BADVANNACHE,
AGE: 30 YEARS,
OCC: BUSINESS,
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RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
ALL RESIDENTS OF CTS NO.4196/1A/1,
KACHERI ROAD,
BELGAUM-590001.
...APPELLANTS
(BY SRI. GIRISH B. MANGANNAVAR, ADVOCATE)
AND:
1. DR. JYOTI AJAY DABHOLKAR,
AGE: MAJOR, OCC: SERVICE,
R/O. BHUDAWAR PETH,
THILKAWADI-590006.
2. MRS. TRUPTI SANJAY DHARESHWAR,
AGE: MAJOR, OCC: SERVICE,
R/O. 94, STEPHENSENS ROAD,
MOUNT WAVERLEY, MELBORNE,
AUSTRALIA THROUGH HER GPA HOLDER,
DR. JYOTI AJAY DABHOLKAR.
...RESPONDENTS
(BY SRI. SACHIN P. BICHU ASSOCIATES FOR C/R1 AND 2)
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC.,
ALLOW THE ABOVE R.S.A. SET ASIDE THE IMPUGNED JUDGMENT &
DECREE DATED: 25-06-2010 PASSED BY THE LEARNED II ADDL.
CIVIL JUDGE (SENIOR DIVISION), BELGAUM IN R.A.NO.183/2008
AND ALSO THE JUDGMENT AND DECREE DATED DATED:13-08-2008
PASSED BY THE LEARNED III ADDITIONAL CIVIL JUDGE (JUNIOR
DIVISION) BELGAUM AS ILLEGAL; AND THUS DISMISS THE SAID
SUIT FILED BY THE RESPONDENTS-PLAINTIFFS.
IN RSA NO. 100966/2023
BETWEEN:
1. SMT. JYOTI W/O. AJAY DABOLKAR,
AGE: 56 YEARS, OCC: SERVICE,
R/O. BHUDWAR PETH, BELAGAVI,
DIST: BELAGAVI-590006.
2. SMT. TRUPTI W/O. SANJAY DHARESHWAR,
AGE: 53 YEARS, OCC: SERVICE,
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RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
R/O. P/O. 94, STEPHENSENS ROAD,
MOUNT WAVERLEY, MELBOURNE,
AUSTRALIA,
(THROUGH HER G.P.A. HOLDER
DR. JYOTI AJAY DABHOLKAR)
...APPELLANTS
(BY SMT. AFSHAN A. SHABASHKHAN &
SRI. AMEERAHMED BAGALI, ADVOCATES)
AND:
1. SHRI. BANDOPANT BHARMA BADAVANACHE,
AGE: 72 YEARS, OCC: BUSINESS,
2. SHRI. PRASHANT BANDOPANT BADVANACHE,
AGE: 45 YEARS, OCC: BUSINESS,
3. SHRI PRAMOD BANDOPANT BADVANACHE,
AGE: 43 YEARS, OCC: BUSINESS,
ALL ARE R/O. CTS NO.4196/1A/1,
KACHERI ROAD,
BELAGAVI-590002.
...RESPONDENTS
(BY SRI. B.S. KAMATE, ADV. FOR R1-R3)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, PRAYING TO SET ASIDE/MODIFY TO THE EXTENT OF
THE FUTURE MESNE PROFIT WHICH HAS BEEN REDUCED FROM
RS.2500/- TO RS.300/P.M. BY THE II ADDITIONAL CIVIL
JUDGE(SR.DN) BELAGAVI IN R.A.NO.183/2008 DATED 25-06-2010
AND ENHANCE/GRANT THE MESNE PROFIT OF RS.15,000/-P.M.
SINCE NOVEMBER 2002 TILL HANDING OVER THE VACANT
POSSESSION OF THE SUIT PROPERTY TO THE
PLAINTIFFS/APPELLANTS IN THE ENDS OF JUSTICE AND EQUITY
AND ETC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
JUDGMENT
1. RSA No.5234/2008 is filed under Section 100 of
the Code of Civil Procedure, 19081 by the plaintiffs
challenging the judgment and decree dated 08.09.2008
passed in R.A.No.21/2007 by the I Additional District
Judge, Belgaum2 and the judgment and decree dated
06.03.2007 passed in O.S.No.139/20033 by the I Addl.
Civil Judge (Sr.Dn.), Belgaum4, whereunder the suit for
specific performance filed by the plaintiffs has been
dismissed by the Trial Court which has been affirmed by
the First Appellate Court.
2. RSA No.5651/2010 is filed under Section 100 of
CPC by the defendants challenging the judgment and
decree dated 25.06.2010 passed in R.A.No.183/2008 by
the II Addl. Civil Judge (Sr.Dn.), Belgaum2 and the
judgment and decree dated 13.08.2008 passed in
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'first appellate Court'
Hereinafter referred to as the 'Suit for Specific Performance'
Hereinafter referred to as the 'Trial Court'
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O.S.No.295/20075 by the III Addl. Civil Judge (Jr.Dn.),
Belgaum3, whereunder the suit for possession and
recovery of rent has been decreed by the Trial Court and
in the first appeal, the First Appellate Court has modified
the judgment of the Trial Court with regard to the
quantum of mesne profits.
3. RSA No.100966/2023 is filed under Section 100
of CPC by plaintiff No.1 in the suit for possession
challenging the judgment and decree dated 25.06.2010
passed in R.A.No.183/2008 by the II Addl. Civil Judge
(Sr.Dn.), Belgaum2 reducing the mesne profits awarded by
the Trial Court.
4. Since in all the appeals, parties are the same
and property which is the subject matter of appeals is the
same, all the appeals are taken up for consideration
together.
5. The relevant facts necessary for consideration
of the present appeals are that one Laxmikanth
Hereinafter referred to as the 'Suit for eviction and mesne profits'
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Vishnupant Kamat6 was the owner of first floor of property
bearing No.4196/1/A/1 at Kacheri Road, Belgaum
consisting of three rooms7. That one Bandopant Bharma
Badavanache8 was a tenant in occupation of the suit
property from the year 1989 on a monthly rent of
Rs.300/- and was running a business under the name and
style of Laxmi Printing Press in the suit property.
6. That the deceased owner and the tenant along
with his sons Prashant Bandopant Badavanache and
Pramod Bandopant Badavanche9 entered into an
Agreement of Sale dated 01.07.1997 whereunder the
deceased owner agreed to sell the suit property to the
Agreement holders for a total sale consideration of
Rs.70,000/- and an advance of Rs.15,000/- was paid as
on the date of the said Agreement. That the said sale
transaction was required to be completed within four
months. It is specifically stipulated that the tenant is not
Hereinafter referred to as 'deceased owner'
Hereinafter referred to as 'suit property'
Hereinafter referred to as 'tenant'
Hereinafter referred to as 'Agreement holders'
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liable to pay rent for the said period of four months and in
the event the transaction extends beyond the stipulated
period, the tenant will be liable to pay the rent.
7. It is further forthcoming that the deceased
owner had issued a legal notice dated 08.10.2002 to the
tenant calling upon him to quit, vacate and handover the
vacant possession of the suit property. A reply notice
dated 27.11.2002 was issued in response to the legal
notice dated 08.10.2002. The deceased owner died on
13.10.2002. Thereafter, the legal representatives of the
deceased owner10 filed HRC No.36/2003 against the tenant
for vacant possession. The Agreement holders filed a suit
for specific performance on 31.05.2003. HRC No.36/2003
having been dismissed the legal representatives of the
deceased owner filed O.S. No.295/2007 on 19.04.2007
seeking for vacant possession and mesne profits.
8. It is the case of Agreement holders in the
suit for specific performance that pursuant to the
Hereinafter referred to as the 'present owners'
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Agreement and the advance of `15,000/- paid on the said
Agreement, a further sum of `9,000/- as advance sale
consideration has been paid, these amounts have been
paid after the expiry of four months from the Agreement.
That Agreement holders were always ready and willing to
complete the sale transaction and that the deceased
owner, on one pretext or the other was not coming
forward to execute the Sale Deed due to various reasons
including his ill health.
9. It is the case of the present owners that
the further amount of `9,000/- paid after the expiry of
four months from the date of the Agreement was rent
paid by the tenants for use and occupation of the premises
having regard to the specific stipulation contained under
the said Agreement regarding the same. It is the further
contended that the tenancy having been terminated, the
Agreement holders are liable to quit, vacate and handover
the vacant possession of the suit property.
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10. Oral and documentary evidence have been
adduced by both the parties in both suits.
11. The trial Court dismissed the suit for
specific performance which was affirmed by the first
appellate Court. Being aggrieved, the Agreement holders
have filed RSA No.5234/2008.
12. The suit for possession and mesne profits
has been decreed by the trial Court directing the
defendants therein/Agreement holders to handover vacant
possession of the suit property within 60 days and it was
further held that they are liable to pay mesne profits @
`300/- per month from November 2002 till date of decree
and further mesne profits @
`2500/- from the date of the decree till the date of
handing over of the vacant possession. In the appeal filed
by the Agreement holders challenging the decree for
possession awarded by the trial Court, the first appellate
Court modified the decree of the trial Court by confirming
the order to vacate and handover the vacant possession of
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the suit property. However, the order directing payment
of mesne profits was modified and it was held that the
defendants therein are liable to pay mesne profits @
`300/- per month from November 2002 till date of handing
over the possession of the suit property. Being aggrieved,
the defendants therein/tenants have filed RSA
No.5651/2010. The present owners have filed RSA
No.100966/2023 challenging the finding of the first
Appellate Court interfering with the order of mesne profit
made by the Trial Court.
13. Vide order dated 07.09.2012, RSA
No.5234/2008 and RSA No.5651/2008 have been
admitted and following substantial questions of law has
been framed:
a. Whether the Lower Appellate Court has
committed an error in dismissing the appeal by
confirming the findings of the trial Court on the issue
of readiness and willingness though it has clearly
held that the time was never intended to be made as
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essence of contract and the suit filed by the plaintiffs
is in time?
b. Whether the Courts below have committed an
error in holding that the plaintiffs have failed to
prove their readiness and willingness to perform their
part of agreement on the ground that the payments
made subsequent to the agreement of sale on
different dates are not out of the balance sale
consideration of Rs.55,000/-?
c. Whether the Courts below are justified in law
in holding that the amount of Rs.9,000/- paid
subsequent to the sale agreement are not the part of
sale consideration amount even through the
defendants failed to prove that the said payments
were towards rent of the premises by adducing any
evidence on record?
d. Whether the Lower Appellate Court is justified
in law in dismissing the appeal filed by the
Appellants/Plaintiffs and confirming the judgment
and decree passed by the trial Court?
e. That under the facts and circumstances of the
case whether the Courts below are justified in
dismissing the suit filed by the appellants/plaintiffs?
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1. Whether the court below is justified in law and on
facts in directing the defendants-appellants to hand
over vacant possession of the suit schedule property
to the respondents-defendants without noticing that
the proceedings for specific performance of the
agreement of sale dated 1.7.1997 is now pending in
RSA No.5234/2008 on the file of this Hon'ble Court?
2. Whether court below is justified in law and on facts is
awarding mesne profits at the rate of Rs.300/- p.m.
from November 2002 even though it is recited in the
agreement of sale dated 1.7.1997 that from that day
onwards, the rental agreement has been cancelled?
14. Vide order dated 23.07.2024 RSA No.100966/2023
has been admitted to consider the following substantial
question of law:
"Whether the reduction by the First Appellate Court
of their future mean profits of `2500/- awarded by
the Trial Court is erroneous and contrary to the
material available on record?"
15. Learned counsel, Sri.B.S.Kamate appearing for the
Agreement holder who is the appellant in RSA No.5651/2010
and RSA No.5234/2008 contends that the execution of the
Agreement of Sale and payment of advance amount of `
15,000/- are undisputed. It is further contended that in
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addition to the said advance amount of `15,000/-, the
Agreement holders have paid further sum of `9,000/- on
various dates which, in terms of the finding of the First
Appellate court is towards partial consideration. Hence, it is
vehemently contended that the Agreement holders were always
ready and willing to complete the sale transaction and due to
the ill-health of the deceased owner, the sale transaction could
not be completed. Hence, it is contended that the suit for
specific performance is liable to be decreed and the suit for
possession is liable to be dismissed. He further contends that
the termination of tenancy by the present owners is not proper
and the suit for eviction is liable to be dismissed. Hence, he
seeks for allowing of the above appeals and granting of the
relief sought for.
16. Per contra, Smt.Afshan A Shabashkhan learned
counsel appearing for the present owners justifies dismissal of
the suit for specific performance and decreeing of the suit for
possession and submits that the Agreement of Sale having
been executed on 01.07.1997 and the sale transaction having
been required to be completed within four months, the
deceased owner issued notice on 08.01.2002 and only
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consequent to the same, the Agreement holders issued notice
dated 27.11.2002. The said fact itself demonstrates that the
suit is barred by time and the agreement holder was not ready
and willing to complete the sale transaction. It is further
contended that additional amount of `9,000/- paid is not
towards further sale consideration and is towards rent having
regard to the specific clause mentioned in the agreement in
that regard. It is further contended that the tenancy has been
terminated in accordance with law and the decree granted in
the suit for eviction is just and proper. With regard to mesne
profits, it is contended that the reduction of mesne profits by
the First Appellate Court is erroneous and the same is liable to
be set aside.
17. The submissions of both the learned counsels have
been considered and the material on record including the
records of the Trial Court and the First Appellate Court in both
the suits have been perused.
18. The following is the admitted fact situation:
i) That the tenant has been in occupation of
the suit property from 1.1.1989 under the
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deceased owner on a monthly rent of
`300/-;
ii) That the deceased owner and the tenant
and his sons entered into an Agreement of
Sale dated 01.07.1997, agreeing to sell
the suit property for a total sale
consideration of `70,000/- and he received
an advance of `15,000/- on the date of the
said Agreement. The balance sale
consideration payable was `55,000/-;
iii) The original owner died on 13.10.2002;
iv) The deceased owner got issued legal
notice dated 08.10.2002 (Ex.P21 in OS
No.139/2003) which was replied by the
tenant and his sons/agreement holders
vide reply notice dated 27.11.2012
(Ex.P22 in OS No.139/2003).
19. Apart from advance amount of `15,000/-, the
agreement holders have paid the following amounts:
a) `2,000/- on 11.12.1998
b) `2,000/- on 12.09.1999
c) `1,000/- on 14.10.1999
d) ` 2,000/- on 22.12.1999 by cheque No.085764
e) `2,000/- on 12.02.2004 by cheque No.086403
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Total `9,000/-
20. It is pertinent to notice the relevant clauses in the
Agreement dated 31.05.2003 (Ex.P1) which are extracted
herein below for ready reference:
"Party No. I had taken out the above said
premises for sale and Party No. II has readily come
forward to purchase the said premises. The sale
consideration agreed to between Party No. I and II is Rs.
70,000/- (Rupees seventy thousand only) out of the
total consideration of Rs.70,000/- Party No. II has today
paid an earnest money of Rs.15,000/- (Rupees Fifteen
thousand only) to Party No.I the payment of Rs.15,000/-
of earnest money is acknowledged by the Party No. I
under this Agreement of Sale and therefore no separate
receipt is passed.
From the month of July, 1997 Party No. II is not
liable to pay any rent to Party No. I since their
possession is not as a tenant provided payment is made
within the said period as agreed under this Agreement of
Sale.
The Municipal Tax of the said CTS No. will have to
be got by Party No. I proportionately in respect of the
premises involved in this case and pay it to the City
Corporation of Belgaum. The responsibility of payment of
Corporation Tax is entirely on Party No. II.
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There is already a Water Tap connection and
electric connection to the said premises which are
standing in the name of Party No. II. Henceforth Party
No. II has to pay tap water charges and electric charges
separately. No responsibility in this regard is cast on
Party No. I.
The period for completion of the Sale Deed is fixed
at 4 months from today when Party No. II has to pay the
balance sale consideration amount and get the sale deed
executed at his own cost, namely Stamp Duty,
Registration Fees, writing charges etc."
(emphasis supplied)
21. The legal notice dated 08.10.2022 (Ex.P21 in O.S.
No.139/2003) has been issued by the deceased owner to the
Agreement holders notifying that the balance sale consideration
of `55,000/- has not been paid under the Agreement. That the
deceased owner is ready to repay the advance amount of
`15,000/- upon the Agreement being returned. The deceased
owner has further terminated the said Agreement of Sale dated
01.07.1997.
22. A legal notice dated 08.10.2022 (Ex.P3 in O.S.
No.295/2007) has been issued by the deceased owner to the
tenant terminating the tenancy as on 31.10.2002 and called
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upon him to handover the vacant possession of the property
under his occupation on 1.11.2002. The said legal notice
(Ex.P3) has returned with postal endorsement as "not claimed".
23. Reply notice dated 25.11.2022 (Ex.P22 in O.S.
No.139/2003) has been issued by the Agreement holders to the
legal notice (Ex.P21) denying that they were not ready and
willing to pay the balance sale consideration and further
contending that they had paid of `9,000/- as further sale
consideration. It is further contended that they were ready and
willing to complete the sale transaction.
24. Reply notice dated 26.11.2022 (Ex.P9 in
O.S.No.295/2007) has been issued in reply to the notice dated
08.10.2022 (Ex.P3 in O.S. No.295/2007).
25. It is relevant to note that the original owner died on
13.10.2002 and prior to his death, he got issued a legal notice
dated 08.10.2002 (Ex.P.21 in O.S.No.139/2003), whereunder it
is stated regarding giving the suit property on monthly rent of
`300/- from 01.01.1989, as also regarding execution of the
Agreement of Sale dated 01.07.1997 for a total sale
consideration of `70,000/- and receipt of advance of `15,000/-.
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That the balance sale consideration of `55,000/- was to be paid
within four months. It is further stated that if the said amount
was not paid, then the Agreement holders would pay rent after
four months and accordingly, the rent has been paid up to
June-1998. It is further stated in the said notice that the
balance sale consideration `55,000/- has not been paid and
that the Agreement holder was not ready and willing to pay
balance sale consideration as per the said agreement and
hence the owner intends to terminate the agreement and repay
the advance amount of `15,000/- on the Agreement holders
returning the original agreement. Hence, the agreement dated
01.07.1997 has been terminated and the Agreement holders
have been called upon to return the original agreement and
take `15,000/- from the owner within 15 days.
26. It is further relevant to note that in the reply notice
dated 27.11.2002 (Ex.P.22 in O.S. No.139/2003) the
Agreement holders have stated that they are ready and willing
to perform their part of agreement by paying the balance sale
consideration. It is further stated that the Agreement holders
have paid further amounts out of the balance sale consideration
of `55,000/- and they are ready to pay the remaining amount.
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It is further stated that the Agreement holders had approached
the owner for the purpose of completing the sale transaction;
however, he expired. It is further stated that the termination of
Agreement of Sale dated 01.07.1997 is not proper and hence
the present owners were called upon to receive the balance
sale consideration and execute the registered Sale Deed within
7 days.
27. It is also pertinent to note that the deceased owner
had also got issued a legal notice dated 08.10.2002 (Ex.P.3 in
O.S.No.295/2007), whereunder he intimated first the tenant
regarding the fact that the premises was under his occupation
on monthly rent of `300/- and the rent has been paid up to
June-1998. Hence, the rent for the period from June-1998 to
September-2002 that is for the period of 51 months has been
demanded. It is further stated in the said notice that the
tenancy has been terminated and the tenant has been called
upon to handover possession of the suit property to the owner
on 01.11.2002. The postal receipt for having dispatched the
said notice is marked as Ex.P.4 and the returned postal cover
with the endorsement as "not claimed" is marked as Ex.P.5.
The present owners filed HRC No.36/2003 was filed on
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07.04.2003 as is forthcoming from a copy of petition (Ex.P.18
in O.S. No.295/2007). Subsequently, the said HRC petition
having been dismissed, the present owners have filed
O.S.No.295/2007 on 19.04.2007 for eviction and for mesne
profits.
28. The Agreement holders filed O.S No.139/2003 on
31.05.2003 for specific performance of the agreement of sale.
The suits having been contested, as noticed above. The Trial
Court has dismissed the suits for specific performance, which
has been affirmed by the First Appellate Court.
29. The suit for eviction having been decreed, and the
defendants have been ordered to pay mesne profits at `300/-
per month from the date of suit till date of decree and
thereafter, `2,500/- from the date of decree till date of vacant
possession. In the appeal filed by the Agreement holders, the
First Appellate Court has partly allowed the appeal modifying
the order for payment of mesne profits by holding that the
mesne profits is payable at the rate of `300/- from the month
of November-2002, till handing over of vacant possession of
the suit property.
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30. It is clear and forthcoming from the aforementioned
that the agreement of sale (Ex.P1) has been admittedly
executed on 01.07.1997 and an advance of `15,000/- has been
paid on the said date. Although, it is the contention of the
Agreement holders that a further amount of `9,000/- has been
paid on the subsequent dates, having regard to the specific
clause in the agreement (Ex.P1), the exemption for the tenant
to pay rent was only for the agreed term for completion of the
agreement i.e., four months.
31. After execution of the agreement, the five
payments that have been made are, on 11.12.1998,
12.09.1999, 14.10.1999, 22.12.1999 and 12.2.2004. It is
relevant to note that the last date on which the said payments
are made was a payment of `2,000/- on 12.02.2004. However,
the payment prior to the same was made on 22.12.1999 of
`2,000/-. It is further relevant to note that there are no
material on record that the said amounts have been received
by the owner as part sale consideration.
32. Subsequent to the agreement dated 01.7.1997
(Ex.P1), although it has been stated that the Agreement
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holders have been repeatedly contacting the owner of the suit
property to complete the sale transaction, there is no material
on record to indicate that any written notice was issued by the
Agreement holders to the owner calling upon him to complete
the sale transaction. The first written notice after execution of
the agreement dated 01.07.1997 (Ex.P1), is the notice dated
08.10.2002 (Ex.P21), whereunder, the owner has terminated
the agreement and called upon the Agreement holders to
return the original agreement and take refund of an advance
amount of `15,000/-, as well as the notice dated 08.10.2002
(Ex.P3), whereunder, the tenancy of the tenant was
terminated. It is only consequent to the said notices dated
08.09.2002 that the notice dated 25.11.2002 (Ex.P22) has
been issued by the Agreement holders.
33. It is further forthcoming that after filing of HRC
No.36/2003, which was filed on 08.04.2003, the Agreement
holders filed the suit for specific performance in O.S
No.139/2003 on 31.05.2003. There is no explanation
whatsoever by the Agreement holders as to what steps were
taken to complete the sale transaction between the dates of
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the agreement i.e., 01.07.97 up to the date of issuance of the
legal notice i.e., 25.11.2002.
34. The Trial Court in the suit for specific performance
held that the suit is barred by limitation. However, the First
Appellate Court recording a finding that further payments of
total sum of `9,000/- was paid after the expiry of four months
has held that the time was not intended to be made as the
essence of the contract and the refusal of performance of the
contract was on the issuance of notice dated 08.10.2002 and
hence, the suit is filed on 06.08.2003 within the period of
limitation. Hence, the First Appellate Court has held that the
suit is within time. However, the First Appellate Court has held
that there was no readiness and willingness and hence, did not
interfere with the finding of the Trial Court.
35. The Trial Court after noticing the oral and
documentary evidence on record has dismissed the suit.
However, directed refund of the advance amount of `15,000/-
together with interest at the rate of 18% per annum.
36. It is clear and forthcoming from the aforementioned
that the concurrent findings recorded by both the Courts with
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regard to readiness and willingness is just and proper and there
is no material to demonstrate that the said finding is recorded
without considering any specific, oral or documentary evidence
on record.
37. The vehement plea made by the learned counsel for
the appellants that the Agreement holders were always ready
and willing to complete their part of a sale transaction is not
liable to be accepted in the absence of any material on record
indicating the same as noticed above. The first notice was
issued after the agreement dated 11.07.1997 was the notice
dated 08.10.2002 by the owner of the property and only
thereafter the Agreement holders have got issued the notice
dated 25.11.2002.
38. With regard to the finding of the Trial Court in
respect of termination of tenancy, it is relevant to note that the
notice dated 08.10.2002 (Ex.P3), has been served on the
tenant, as it is forthcoming from the postal receipt (Ex.P4) and
the returned postal cover (Ex.P5). The tenancy have been
terminated and the suit having been filed thereafter, the finding
that there has been termination of tenancy is just and proper.
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39. The vehement contention of the learned counsel for
the appellants that a total amount of `9,000/- was paid as
further sale consideration, is also not liable to be accepted,
having regard to the fact that there is no material on record to
indicate the same. In fact there was a specific stipulation in the
agreement (Ex.P1) that the tenant is not liable to pay rent only
for a period of the agreement of sale which is four months.
Further, the deceased owner vide his notice dated 08.10.2002
(Ex.P21), has specifically asserted that the rent has not been
paid from June-1998. In view of the same, the contention of
the agreement holder that the further amount of `9,000/- paid
is towards further sale consideration is not liable to be
accepted.
40. The reliance placed by the learned counsel for the
appellants on the finding of the First Appellate Court that, by
virtue of further payments, time was not the issuance on the
contract, would not enure to the benefit of the Agreement
holder for the purpose of recording a finding regarding
readiness and willingness as already noticed hereinabove, as
also by the Trial Court and the First Appellate Court that there
was no material on record that the Agreement Holders notified
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the deceased owner that they were ready and willing to pay the
balance sale consideration and complete the sale transaction.
41. At this juncture, it is relevant to notice the
judgment of the Honble Supreme Court in the case of P.
Daivasigamani v. S Sambandan11 which states as follows:
"21. Readiness and willingness are not one, but two
separate elements. Readiness means the capacity of
the plaintiff to perform the contract, which would
include the financial position to pay the purchase
price. Willingness refers to the intention of the
plaintiff as a purchaser to perform his part of the
contract. Willingness is inferred by scrutinising the
conduct of the plaintiff purchaser, including attending
circumstances [ See para 2 in Ganesh Dassji v. Sita
Ram Thapar, (1996) 4 SCC 526] . Continuous
readiness and willingness on the part of the plaintiff
purchaser from the date the balance sale
consideration was payable in terms of the agreement
to sell, till the decision of the suit, is a condition
precedent for grant of relief of specific performance [
See para 5 in N.P. Thirugnanam v. R. Jagan Mohan
Rao, (1995) 5 SCC 115. Also see Ardeshir Mama v.
Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-28)
55 IA 360 : AIR 1928 PC 208]."
(emphasis
supplied)
42. It is clear from the settled position of law as noticed
above that readiness and willingness are two separate aspects.
Readiness being financial capacity of the Agreement holder to
(2022) 14 SCC 793
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complete the transaction and willingness relating to the mental
aspect as to his willingness to complete the sale transaction. In
view of the factual matrix as noticed above, the findings
recorded by both the Courts holding that the Agreement
holders were not ready and willing to complete the sale
transaction is just and proper.
43. Reliance placed by the learned counsel for the
appellant on the judgment of the Division Bench of this Court in
the case of L.R.Ananth v. Dr.S.Jayaramachandran &
Ors.,12 will not aid the case of the appellants since in the facts
of the said case the Trial Court had dismissed the suit as being
barred by time. This Court, noticing the further payment made
recorded a finding that since no date was fixed for performance
in the agreement, the suit was within time and remanded the
matter to the Trial Court to record its finding on other issues.
The fact situation in the said case and the fact situation in the
present case is entirely different and the said judgment is
wholly inapplicable to the facts of the present case.
Judgment dated 19.4.2024 passed in RFA No.707/2016 (SP)
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44. With regard to the mesne profits, it is the vehement
contention of the present owners that the interference in the
order of mesne profits by the First Appellate Court is
erroneous.
45. It is noticed that there is no document produced by
the owners to indicate that they are entitled to claim mesne
profits in excess of agreed rental amount of `300/-. However, it
is relevant to note that the agreed rental amount of `300/-
was agreed between the parties in the year 1989. In view of
the lapse of time, it is just and proper that a higher amount
would be payable towards rent by the tenants.
46. In view of the aforementioned, the judgment and
decree passed by the Trial Court in the suit for eviction is
required to be affirmed and the judgment passed by the First
Appellate Court to be set aside.
47. In view of the discussion made above, the
substantial questions of law are answered as follows:
i. In RSA No.5234/2008 the substantial questions of
law (a) to (e) are answered in the negative;
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ii. In RSA No.5651/2010 the substantial questions of
law Nos.1 and 2 are answered in the affirmative;
and
iii. In RSA No.100966/2023 the substantial question of
law is answered in the affirmative.
48. Hence, the following:
ORDER
i. RSA No.5234/2008 and RSA No.5651/2010 are
dismissed.
ii. RSA No.100966/2023 is allowed.
iii. The judgment dated 08.09.2008 passed in R.A
No.21/2007 by the I Additional District Judge,
Belgaum and the judgment and decree dated
06.03.2007 passed in O.S No.139/2003 by the I
Additional Civil Judge (Sr.Dn), Belgaum, are
affirmed.
iv. The judgment and decree dated 25.06.2010
passed in R.A No.183/2008 on the file of II
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Additional Civil Judge (Sr.Dn), Belgaum, is set
aside and the judgment and decree dated
13.08.2008 passed in OS No.295/2007 by the
III Addl.Civil Judge (Jr.Dn), Belgaum, is
affirmed.
v. Ordered accordingly.
SD/-
(C.M. POONACHA)
JUDGE
BS/SH/PMP
