Karnataka High Court
Nazmeen W/O Jahangir Patel vs Arun @ Chandu Mahadev Shirodkar By Lrs on 4 June, 2024
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RSA No. 100215 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100215 OF 2016 (SP-)
BETWEEN:
NAZMEEN W/O JAHANGIR PATEL
AGE: 43 YEARS, OCC: BUSINESS
R/O: PLOT NO.34, IIIRD CROSS,
II STAGE, HANUMAN NAGAR,
BELAGAVI-590001.
(THE ADDRESS OF THE APPELLANT IS DIFFERES FROM
R.A. NO.390/2010 AS THE APPELLANT LEFT THE EARLIER
RENTED HOUSE AND RESIDING WITH HER FATHER IN HER
FATHERS HOUSE AS MENTIONED ABOVE)
...APPELLANT
(BY SRI LAXMIKANT K. GURAV, ADVOCATE)
AND:
Digitally signed
by SAROJA 1. SHRI. ARUN @ CHANDU MAHADEV SHIRODKAR
HANGARAKI
(DEFENDANT NO.1 BEFORE TRIAL COURT AND
Location: HIGH DURING PENDENCY OF REGULAR APPEAL NO.390/2010
COURT OF
KARNATAKA EXPIRED LEAVING HIS FOLLOWING LEGAL HEIRS
DHARWAD AND SAME IS AMENDED ON 06.03.2015)
BENCH
DHARWAD SMT. KAMAL W/O ARUN SHIRODKAR
1A. AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: 2429 KACHERIGALLI,
SHAHAPUR, BELAGAVI.
1B. SHRI. SACHIN S/O ARUN SHIRODKAR
AGE: 43 YEARS, OCC: NOT KNOWN
R/O: 2429 KACHERIGALLI,
SHAHAPUR, BELAGAVI.
1C. SMT. SWATI W/O PARASHARAM @ BALU BIDIKAR
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RSA No. 100215 of 2016
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O-C1, 29/30, SAMBHAJI NAGAR,
APPAR DHANAKAWADI, PUNE-43.
1D SMT. SANGEETA W/O SACHINDRA
C/O SMT. VASANTI SITARAM,
AGE: 39 YEARS, OCC: NOT KNOWN
R/O-1ST CROSS, TILAKNAGAR,
SHIVAMOGGA.
1E. SMT. DEEPALI W/O RAKESH KAREKAR
AGE: 37 YEARS, OCC: HOUSEHOLD
WORK, R/O: BLOCK NO.6,
TRIMURTI APARTMENT,
UBHA-BAZAAR, SAVANTWADI,
MAHARASHTRA.
THE RESPONDENT NO. 1A TO AE ARE THE RESPONDENTS
NO.1A TO 1E BEFORE THE FIRST APPELLAT COURT IN
R.A.NO.390/2010 AND THEY WERE NOT PARTY BEFORE
THE TRIAL COURT AS THE DECEASED RESPONDENT NO.1
ARUN WAS DEFENDANT NO.1.
2. SHRI DILEEP MAHADEV SHIRODKAR
AGE: 62 YEARS, OCC: BUSINESS,
R/O: BLOCK NO.6,
TRIMURTI APARTMENT,
UBHA-BAZAAR, SAVANTWADI,
MAHARASHTRA.
3. SHRI VILAS MAHADEV SHIRODKAR
SINCE DECEASED R/B HIS LEGAL HEIRS
3A SMT. VANDANA W/O VILAS SHIRODKAR,
AGE: 47 YEARS, OCC: PVT. SERVICE,
R/O: ZATAPAT NAGAR ANGOL,
TQ AND DIST: BELAGAVI.
3B KUMAR SWAPNIL S/O VILAS SHIRODKAR
AGE: 27 YEARS, OCC: STUDENT,
R/O: ZATAPAT NAGAR ANGOL,
TQ AND DIST: BELAGAVI.
3C SNEHAL D/O VILAS SHIRODKAR
AGE: 25 YEARS, OCC: STUDENT,
R/O: ZATAPAT NAGAR ANGOL,
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RSA No. 100215 of 2016
TQ AND DIST: BELAGAVI.
(THE RESPONDENT NO.3A TO 3C ARE THE RESPONDENTS
NO. 3A TO 3C BEFORE THE FIRST APPELLATE COURT IN
R.A.NO.390/2010 AND RESPONDENTS NO.3A TO 3C ARE
THE DEFENDANTS NO.3A TO 3C BEFORE THE TRIAL
COURT IN O.S.NO.137/2000 AS LEGAL HEIRS OF
DECEASED VILAS SHIRODKAR)
4. SHRI. ASHOK MAHADEV SHIRODKAR
SINCE DEAD R/B HIS LEGAL HEIRS
4A SMT. SHOBHA W/O ASHOK SHIRODKAR
AGE: 60 YAERS, OCC: HOUSEHOLD WORK,
R/O-2429 KACHERIGALLI,
SHAHAPUR, BELAGAVI.
4B. SHRI. MANOJ S/O ASHOK SHIRODKAR
AGE: 40 YAERS, OCC: BUSINESS,
R/O-2429 KACHERIGALLI,
SHAHAPUR, BELAGAVI.
4C. SHRI. CHETAN S/O ASHOK SHIRODKAR
AGE: 38 YAERS, OCC: BUSINESS,
R/O-2429 KACHERIGALLI,
SHAHAPUR, BELAGAVI.
4D SHRI. YOGESH S/O ASHOK SHIRODKAR
AGE: 36 YAERS, OCC: BUSINESS,
R/O-2429 KACHERIGALLI,
SHAHAPUR, BELAGAVI.
4E. SMT. KIRTI W/O SHIDHARTH JAMSANDEKAR
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R.O: SOMAWARPETH, MALWAN,
TQ AND DIST: SINDHADURGA, MAHARASHTRA.
(THE RESPONDENTS NO.4A TO 4E ARE THE
RESPONDENTS 4A TO 4E BEFORE THE FIRST APPELLANT
COURT IN R.A.NO.390/2010 AND RESPONDENTS NO.4A
TO 4E ARE THE DEFENDANTS NO.4A TO 4E BEFORE THE
TIRAL COURT IN O.S.NO.137/2000 AS LEGAL HEIRS OF
DECEASED ASHOK MAHADEV SHIRODKAR)
5. SMT. SHALAN W/O ARAVIND POTADAR
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
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RSA No. 100215 of 2016
R/O: PLOT NO.7, VISHWAKARMA
HOUSING SOCIETY, JAWAN NAGAR,
KOLHAPUR, MAHARASHTRA.
THE RESPONDENT NO.5 BEFORE THIS HONOURABLE
COURT, RESPONDENT NO.5 BEFORE THE FIRST
APPELLATE COURT AND DEFENDANT NO.5 BEFORE THE
TRIAL COURT.
6. SHRI. RAJU S/O MAHADEV SHIRODKAR
AGE: 52 YEARS, OCC: BUSINESS,
R/O: PLOT NO.7, VISHWAKARMA
HOUSING SOCIETY, JAWAN NAGAR
KOLHAPUR, MAHARASHTRA.
THE RESPONDENT NO.6 BEFORE THIS HONOURABLE
COURT, RESPONDENT NO.6 BEFORE THE FIRST
APPELLATE COURT AND DEFENDANT NO.6 BEFORE THE
TRIAL COURT.
...RESPONDENTS
(BY SRI DEEPAK S. KULKARNI, ADVOCATE FOR C/R4(A) TO R4(D))
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING THAT THE
JUDGMENT AND DECREE PASSED IN ORIGINAL SUIT NO.137/2000
DATED 18.10.2010 PASSED BY THE PRINCIPAL CIVIL JUDGE,
SENIOR DIVISION COURT BELAGAVI IN RESPECT OF DISMISSAL OF
SUIT FOR SPECIFIC PERFORMANCE PRODUCED AT ANNEXURE-A MAY
KINDLY BE SET ASIDE AND THE JUDGMENT AND DECREE PASSED BY
THE I ADDITIONAL DISTRICT JUDGE BELAGAVI IN R.A.NO.390/2010
DATED 25.11.2015 PRODUCED AT ANNEXURE-B MAY KINDLY BE SET
ASIDE AND THE SUIT OF THE PLAINTIFF BEARING O.S.NO.137/2000
FOR SPECIFIC PERFORMANCE OF CONTRACT AGAINST THE
DEFENDANTS MAY KINDLY BE DECREED WITH COSTS BY ALLOWING
THE APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100215 of 2016
JUDGMENT
The above second appeal is filed under Section 100
of the Code of Civil Procedure1, by the plaintiff challenging
the Judgment and decree dated 18.10.2010 passed in
O.S.No.137/2000 by the Principal Civil Judge Senior
Division, Belagavi, at Belagavi2, and the Judgment and
decree dated 21.11.2015 passed in R.A.No.390/2010 by
the I Additional District Judge, Belagavi, at Belagavi3,
wherein the trial Court partly decreed the suit for specific
purpose filed by the plaintiff and ordered for refund of a
sum of Rs.2,00,000/- along with interest at the rate of
10% per annum, which has been affirmed by the first
appellate Court.
2. The parties will be referred to as per their
ranking before the trial Court for the sake of convenience.
3. It is the case of the plaintiff that, the defendant
Nos.1 to 6 offered to sell a plot bearing No.646
Hereinafter referred to as 'the CPC'.
Hereinafter referred to as 'the trial Court'.
Hereinafter referred to as 'the appellate Court'.
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corresponding to CTS No.8386 measuring 50 feet X 80
feet situated at Mal Maruti Extensionm Belgaum4, for a
total sale consideration of Rs.2,90,000/- and hence,
entered into an agreement of sale dated 22.09.1995 and
received an advance amount of Rs.1,00,000/- by cash as
on the date of the said agreement. Further a sum of
Rs.50,000/- was paid and the balance amount of
Rs.1,40,000/- was agreed to be paid as on the date of the
execution of the sale deed, which was to be done after
obtaining permission under Urban Land Cealing Act5.
4. It is the further case of the plaintiff that, he has
taken necessary steps for securing permission under ULC
Act and the documents in that regard were collected and
handed over to the defendants for filing the applications.
That the defendants are trying to drag on the matter. That
the plaintiff was ready and willing to perform her part of
contract. Hence, the plaintiff filed a suit for specific
performance.
Hereinafter referred to as 'the suit property'.
Hereinafter referred to as 'ULC Act'.
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5. The defendant Nos.1, 2 to 4, 6 and 7 appeared
through their counsel and filed written statement
contesting the case of the plaintiff. The defendants have
admitted the execution of the agreement and receipt of
Rs.1,00,000/- as a sale consideration. However, it is
contended that, the plaintiff did not pay further sum of
Rs.50,000/- which was required to be paid by them within
a month from the date of the agreement. It is further
specifically contended that, they submitted an application
for ULC permission and after a lapse of 60 days there was
a deemed permission for defendant Nos.1 to 6 which fact
was intimated to the said defendant Nos.1 to 6 by the
plaintiff vide notices dated 04.08.1997 and 25.08.1997.
Despite the receipt of the said notices, the plaintiff did not
respond. That the plaintiff vide notice dated 03.04.2000
called upon the defendants to complete the sale
transaction which notice was immediately replied on
13.04.2000. It is further specifically contended that, the
plaintiff was never ready and willing to perform his part of
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contract. Hence, the defendants sought for dismissal of
the suit.
6. The trial Court, consequent to the pleadings of
the parties, framed the following issues:
(i) Whether the plaintiff proves that
defendant No.1 to 6 agreed to sell the suit
property and executed an agreement of sale dated
22.09.1995 as alleged in the plaint?
(ii) Whether the plaintiff proves that,
defendant 1 to 6 have received the earnest money
of Rs.2,50,000/- paid by the plaintiff in pursuance
of agreement of sale dated 22.09.1995 and on
subsequent occasion as alleged in the plaint? (Re-
casted)
(iii) Whether the plaintiff proves that he
was ready and willing to perform his contract but
the defendant refused to execute the registered
sale deed ?
(vi) Whether the suit is properly valued
and proper court fee is paid?
(vii) Whether the suit is barred by time?
(viii) What relief the parties are entitled ?
(ix) What order or decree?
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7. The plaintiff examined herself as P.W.1 and
marked Ex.P.1 to P.23. The defendant No.2 was examined
as D.W.1 and a witness was examined as D.W.2. Ex.D.1 to
Ex.D.3 have been marked in evidence. The trial Court, by
its Judgment and decree dated 18.10.2010 partly decreed
the suit and passed the following order:
"ORDER
Suit of the plaintiff is decreed in part
with costs.
Suit of the plaintiff for the relief of
specific performance of contract is
dismissed.
The defendant No.1 to 6 are directed
to refund the earnest money of
Rs.2,00,000/- with interest @ 10% p.a. from
the date of receipt of earnest money to till
its realization.
Draw decree accordingly."
8. Being aggrieved, the plaintiff preferred
R.A.No.390/2010. The defendants entered appearance
before the first appellate Court and contested the same.
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The first appellate Court by its Judgment and decree dated
21.11.2015 dismissed the appeal filed by the plaintiff and
affirmed the Judgment and decree passed by the trial
Court. Being aggrieved the present second appeal is filed.
9. It is the contention of the learned counsel
appellant that, the plaintiff has paid a sum of
Rs.2,50,000/- and the finding of willingness and readiness
is erroneous and liable to be interfered with. Hence, he
seeks for allowing of the appeal and granting of the reliefs.
10. The submissions of the learned counsel for the
appellant has been considered and the material on record
has been perused.
11. It is forthcoming that, the trial Court while
considering issue Nos.1 and 2 have recorded the following
finding:
(i) D.W.1 in his cross-examination admitted the
receipt of Rs.1,00,000/- towards part sale consideration.
D.W.1 further admitted his signature at Ex.P.3 and Ex.P.4
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i.e., receipt for having received Rs.70,000/- and
Rs.30,000/-. Thus, in all it is clear that, the defendants
have received a total sum of Rs.2,00,000/-.;
(ii) There is no material on record to show that,
defendant Nos.1 to 6 received Rs.2,50,000/- and the
plaintiff has not produced any cogent material to show the
payment of Rs.50,000/- in addition to Rs.2,00,000/-.
12. While considering issue No.3, the trial Court has
recorded the following findings:
(i) The agreement of sale (Ex.P.1) has been
entered on 22.09.1995. The defendants issued notices on
04.08.1997 and 25.08.1997 (Ex.D.2 and Ex.D.3,
respectively) to the plaintiff intimating that ULC deemed
permission has been accorded, requesting the plaintiff to
complete the sale transaction, but the plaintiff has not
made any efforts to complete the sale transaction since
the said date;
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(ii) The plaintiff got issued a legal notice on
03.04.2000 (Ex.P.13). Hence, it is clear that from August,
1997 up to April 2000, the plaintiff has not made any
efforts to pay the balance sale consideration and get the
sale deed executed;
13. Hence, the trial Court has answered issue No.3
in the negative that the plaintiff was not ready and willing
to perform his part of contract and has ordered to refund
of the advance amount paid.
14. The first appellate Court while considering the
appeal filed by the plaintiff framed the following points for
consideration:
(i) Whether the impugned judgment and
decree in O.S.No.137/2000 dated 18.10.2010
passed by the Principal Civil Judge (Sr. Dn.)
Belagavi is illegal, perverse, contrary to the law and
evidence and liable to be set aside as prayed in the
appeal ?
(ii) Whether the interference of this Court
in the impugned judgment and decree passed in
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O.S.No.137/2000 dated 18.10.2010 by the Principal
Civil Judge (Sr. Dn.) Belagavi is necessary?
(iii) What order?
15. While considering the said points, the first
appellate Court has adequately re-appreciated the oral and
documentary evidence on record and has recorded a
finding that, only an amount of Rs.2,00,000/- has been
received by the defendant Nos.1 to 6.
16. Further, the first appellate Court has noticed
that, vide legal notices dated 04.08.1997 and 20.08.1997
i.e. Ex.D.2 and Ex.D.3, the defendants have intimated the
plaintiffs regarding the filing of the application for grant of
ULC permission and that due to lapse of 60 days the same
is to be treated as deemed permission. The postal receipts
for issuance of Ex.D.2 and Ex.D.3 have also marked. That
the plaintiff got issued legal notice on 03.04.2000 at
Ex.P.13, calling upon the defendants to get ULC
permission and execute the sale deed. Hence, the first
appellate Court has also recorded a finding that, the
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plaintiff has remained silent from 1997 to 2000 and has
not taken any steps for completing the sale transaction.
The first appellate Court has dismissed the appeal of the
defendant and affirmed the Judgment and Decree passed
by the trial Court.
17. It is clear from the aforementioned that, both,
the trial Court and the first appellate Court have
adequately appreciated and re-appreciated the oral and
documentary evidence on record. Concurrent findings of
fact have been recorded that the defendants have received
a sum of Rs.2,00,000/- pursuant to the agreement of sale
dated 22.09.1995. It has been further noticed by both the
Courts that, granting of deemed permission has been
communicated by the defendants to the plaintiff vide legal
notices dated 04.08.1997 and 20.08.1997 (Ex.D.2 and
Ex.D.3) and only vide notice dated 03.04.2000 (Ex.P.13),
i.e. after lapse of more than nearly two years and eight
months, the plaintiff called upon the defendant No.1 to
complete the sale transaction.
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18. Having regard to the concurrent finding of facts
as noticed above, the Judgment and decree passed by the
trial Court which has been affirmed by the first appellate
Court decreeing the suit of the plaintiff in part and
ordering for refund of the advance amount paid, is just
and proper. The appellant has failed in demonstrating that
the said findings recorded by both the Courts are contrary
to any specific material on record.
19. Hence, the appellant has failed in
demonstrating that, any substantial question of law arises
for consideration in the above appeal.
20. In view of the aforementioned, the above
appeal is dismissed as being devoid of merit at the state of
admission itself.
Sd/-
JUDGE
SVH
CT:GSM
