Karnataka High Court
T G Prasad S/O T.G.Satyanarayan vs Smt Malepati Subratamma W/O Ramaiaha ... on 29 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 6102 of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 6102 OF 2010 (SP)
BETWEEN:
T.G. PRASAD S/O T.G.SATYANARAYAN,
AGED ABOUT : 50 YEARS, NO.8, BLAJI RAO ROAD,
BELLARY, TQ & DIST: BELLARY-583101.
...APPELLANT
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
1. SMT. MALEPATI SUBRATAMMA
W/O RAMAIAHA SETTY,
AGE: MAJOR, OCC: HOUSE WIFE,
R/O D.NO.87/23, MAIN ROAD,
COWL BAZAR, BELLARY-583101.
2. SMT. T.G.GEETA W/O T.G.PRASAD
W/O T.G.EARANNA AGE: 52 YEARS,
Digitally signed 3. SRI T.G.VIJEYANDRA S/O T.G.PRASAD
by YASHAVANT AGED ABOUT : 32 YEARS,
NARAYANKAR THE RESPONDENTS 2 & 3 ARE R/O NO.8,
Location: HIGH BALAJI RAO ROAD, BELLARY,
COURT OF
KARNATAKA TQ & DIST: BELLARY-583101.
DHARWAD ...RESPONDENTS
BENCH (R1 TO R3 ARE SERVED AND UNREPRESENTED)
DHARWAD
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED IN R.A.NO.18/2008 DATED
02.08.2010 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE,
BALLARY, CONFIRMING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.170/1999 DATED 26.07.2007 BY THE PRINCIPAL SENIOR
CIVIL JUDGE (SR.DN.), AND CJM, BALLARI AND ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 6102 of 2010
ORAL JUDGMENT
This regular second appeal is filed by the defendant
challenging the judgment and decree dated 02.08.2010,
passed in R.A.No.18/2008, by the II Additional District
Judge, Ballari (First Appellate Court), which confirmed the
judgment and decree dated 26.07.2007, passed in
O.S.No.170/1999, by the Principal Senior Civil Judge
(Sr.Dn.) and CJM Ballari (trial Court), thereby the suit filed
for specific performance of contract is decreed in part,
thereby directing defendants No.1(a) to 1(c) jointly and
severally to pay the advance amount of Rs.1,45,000/- with
interest at the rate of 6% per annum from 02.11.1996 till
realisation.
2. Both the Courts below have not granted the relief
of specific performance of contract, but have granted only
alternate prayer of refund of advance money.
3. For the purpose of convenience, the ranking of
the parties is referred to as per their status before the trial
Court.
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4. It is stated that the defendant is the owner of the
suit property and he has formed lay-out under the name and
stile of "Durga Nagar Colony". Thereafterwards, there was an
agreement of sale executed between plaintiff and defendant
offering suit scheduled property to plaintiff by defendant for
total sale consideration of Rs.1,50,000/- and the agreement
of sale is dated 02.11.1996. It is stated that the plaintiff has
paid advance money of Rs.1,45,000/- to the defendant. But,
later defendant No.1 has not executed sale deed. Therefore,
the plaintiff has filed suit for specific performance of
contract.
5. The defendants have appeared in the suit and
denied to execute the sale deed and also denied that the
plaintiff has paid an amount of Rs.1,45,000/- to the
defendants. Therefore, prayed to dismiss the suit.
6. The trial Court after appreciating the evidence on
record has decreed the suit in part thereby directed the
defendants to refund the advance amount of Rs.1,45,000/-
to the plaintiff with interest at the rate of 6% p.a. from the
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date of agreement till realization. The trial Court has not
granted the relief of specific performance of contract.
7. Being aggrieved by directing the defendants to
refund earnest amount as stated above, they have preferred
regular appeal before the First Appellate Court. The First
Appellate Court has dismissed the appeal.
8. Against this concurrent finding of fact, the
defendants have preferred this second appeal.
9. This Court on 08.04.2014 while admitting the
appeal has framed the following substantial questions of law.
"Whether the First Appellate Court as well
as the trial Court have committed a serious error
in decreeing the suit for specific performance by
ignoring the material evidence placed on record,
more particularly, the document relating to
earlier financial transactions between the plaintiff
and defendants and thus the judgments of the
First Appellate Court and the trial Court are
perverse and illegal?"
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10. The plaintiff has filed the suit for specific
performance of contract. It is not disputed by the plaintiff
that the defendants have formed a layout by name Durga
Nagar Colony and formed sites. The plaintiff has stated that
there was agreement of sale as per Ex.P.1 dated 02.11.1996
and total sale consideration was Rs.1,50,000/-, out of which
the plaintiff has paid Rs.1,45,000/- to the defendants, but
the defendants have not executed the sale deed to the
plaintiff though the plaintiff was willing to perform his part of
contract. Ex.P.1 agreement of sale is dated 02.11.1996. Both
the trial Court and the First Appellate Court have
concurrently held that execution of Ex.P.1 agreement of sale
is proved. Therefore, though the main relief of specific
performance of contract is refused, but have granted the
alternative relief of refunding the advance amount to the
plaintiff. When the agreement for sale is proved to have
been executed between the plaintiff and the defendants,
then the plaintiff is entitled for refund of earnest amount by
the defendants. Therefore, in this regard the trial Court has
exercised its discretion in dismissing the suit for specific
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performance of contract and by decreeing the suit for
alternative relief, which is rightly confirmed by the First
Appellate Court. Therefore both the trial Court and the First
Appellate Court have exercised the discretion as per section
20 and 22 of the Specific Relief Act and have rightly granted
the relief of refund of amount only, which needs no
interference by this Court. Therefore, the substantial
question of law is answered in the negative. Hence, appeal is
liable to be dismissed. Accordingly it is dismissed.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
AC-para 1 to 5.
MRK-para 6 to end.
CT:GSM
