Karnataka High Court
Shri.Mahaveer S/O Shankarlal Mehta vs Shri.Dattu And Ors on 27 June, 2024
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RFA No. 200073 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 200073 OF 2019 (SP)
BETWEEN:
SHRI. MAHAVEER
S/O SHANKARLAL MEHTA
AGE: 54 YEARS, OCC: BUILDER & DEVELOPER,
R/O OPP: KORALLI PETROL PUMP,
OLD ADAT BAZAR, VIJAYAPURA.
...APPELLANT
(BY SRI. ARUN CHOUDAPURKAR , ADVOCATE)
AND:
Digitally signed by
BASALINGAPPA 1. SHRI.DATTU
SHIVARAJ
DHUTTARGAON S/O GURUWAJI AVARNGE ALIAS GOULI
Location: HIGH
COURT OF SINCE DECEASED BY HIS LR'S
KARNATAKA
1.A MALABAI W/O AVARANGE @ GOULI
SINCE DECEASED BY HER LR'S
RESPONDENT NO.1(B)1, 1(B)2, 1(C), 1(D), 1(E),
AND 1(F) AND 1(G) LR'S OF DECEASED
RESPONDENT NO.1(A) ALREADY ON RECORD.
1.B RAMESH
S/O DATTU AVARANGE @ GOULI,
SINCE DECEASED BY HIS LRS
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RFA No. 200073 of 2019
1.B1 SMT. MALAN W/O RAMESH GOULI @ AVARANGE
AGE: MAJOR, OCC: HOUSEHLD
1.B2 APPU S/O RAMESH GOULI @ AVARANGE
AGE: MAJOR, OCC: AGRICULTURE,
BOTH R/O KAWALI GATE,
NEAR SHIVAJI CHOWK, VIJAYAPURA -586 101.
1.C SURESH S/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, NEAR SHIVAJI CHOWK,
VIJAYAPURA- 586 101.
1.D ASHOK S/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, NEAR SHIVAJI CHOWK,
VIJAYAPURA - 586 101.
1.E RAJU S/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, SHIVAJI CHOWK,
VIJAYAPURA- 586 101.
1.F SHAKUNTALA D/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, SHIVAJI CHOWK,
VIJAYAPURA - 586 101.
1.G NAGU D/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, SHIVAJI CHOWK,
VIJAYAPURA - 586 101.
...RESPONDENTS
(NOTICE TO R1 SERVED;
NOTICE TO R1(B1), R1(B2), R1(C), R1(E), R1(F), R1(G) ARE
HELD SUFFICIENT,
R1(B1), R1(B2), R1(C), R1(D), R1(E), R1(F), AND R1(G)
TREATED AS LR'S OF DECEASED R1(A)
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RFA No. 200073 of 2019
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THE APPEAL, CALL FOR RECORDS AND SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE IN O.S.NO.40/2011
DATED 17.01.2019 ON THE FILE OF THE II ADDL. SENIOR
CIVIL JUDGE AT VIJAYAPURA BY DISMISSING THE PLAINTIFF'S
SUIT. THE APPELLANT PRAYS TO AWARD THE COSTS
THROUGHOUT FROM THE RESPONDENTS, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed challenging the
judgment and decree dated 17.01.2019 passed in
O.S.No.40/2011 by the II Additional Senior Civil Judge,
Vijayapura.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellant is the plaintiff. The respondents are the legal
representatives of the original defendants.
3. The brief facts leading rising to filing of this
appeal are that:
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The plaintiff filed suit for specific performance of
contract against the original defendants. It is the case of
the plaintiff that, plaintiff is a builder and developer who
also deals with real estate business and also an
agriculturist. The plaintiff being a builder and developer,
also deals in real estate in Karnataka as well as
Maharashtra and he was in search of some land in and
around Vijayapura city in order to develop the same for
residential and commercial purpose. The plaintiff
approached original defendant and requested to sell the
suit schedule property. The defendant offered to sell the
suit land to the plaintiff for consideration of Rs.8,15,000/-
per acre and plaintiff agreed to purchase the suit land for
the said price. Accordingly, on 30.09.2008, a written
agreement of sale was executed between plaintiff and the
defendant, and on the said date the plaintiff paid a sum of
Rs.2,50,000/- cash towards earnest money at the time of
execution of agreement of sale. The legal representatives
of the defendant were also present at the time of
execution of an agreement of sale. As per the terms and
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conditions of the agreement of sale, another Rs.2,50,000/-
was supposed to be paid by the plaintiff to the defendant
after fifteen days of Deepavali festival of that year and
thereafter within 9 months, the defendant was to get
separate PT sheet and extent of land in his name and
execute a registered sale deed in favour of the plaintiff. On
07.11.2008, the defendant's son by name Ashok came to
the office of the plaintiff and requested for payment of
remaining balance consideration amount i.e.,
Rs.1,00,000/- since the defendant's family was in urgent
need. The plaintiff had paid a sum of Rs.1,00,000/- to
Ashok and again on 07.01.2009, Rs.1,50,000/- was paid
through cheque in the name of Ashok, Raju and Suresh.
On 07.01.2009, the plaintiff paid a sum of Rs.5,00,000/-
to the defendant and his sons. After making payment, the
plaintiff started asking the defendant to get PT sheet
separate and to execute a registered sale deed by
receiving the balance consideration amount. The
defendant promised to execute a registered sale deed, but
there was no progress took place. Hence, the plaintiff got
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issued a legal notice through his advocate and the said
notice was duly served on the legal representatives of the
defendant. The legal representatives of defendant neither
replied to the legal notice nor received the balance
consideration amount and executed a registered sale
deed. Thus, the cause of action arose for the plaintiff to
file a suit for specific performance of contract.
4. The defendant No.1(c) filed written statement
denying the averments made in the plaint. However,
admitted that the defendant is the owner of the suit
schedule property and the said suit schedule property is
the ancestral property of the defendant and his brothers
and the said land has not yet been partitioned for separate
possession and a suit for partition and separate possession
is pending before the trial Court in FDP No.25/2010. It is
contended that defendant is having only 1/4th joint share
in the suit agricultural land bearing Sy.No.836 along with
other family properties. It is denied that, the plaintiff
offered to purchase the suit land for sale consideration of
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Rs.8,15,000/- per acre and the defendant accepted the
offer of the plaintiff and the plaintiff paid a sum of
Rs.2,50,000/- as advance payment as on the date of
execution of an agreement of sale and also denied that the
plaintiff has made payment on different occasions in the
name of Ashok, Raju and Suresh. It is contended that the
plaintiff taking an undue advantage of the illiteracy of the
defendant has obtained signatures on the blank papers
and misused the blank papers and got filed the present
suit.
5. It is contended that the defendant's neighbour
agreed to sale the suit schedule property for the aforesaid
sale consideration. It is contended that they have
borrowed a sum of Rs.50,000/- from the plaintiff and it is
the loan transaction and it is not a sale consideration.
Hence, there is no cause of action to file the suit. The
cause of action shown in the plaint is false and imaginary.
Hence, on these grounds prayed to dismiss the suit.
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6. The trial Court on the basis of the pleadings of
the parties framed the following issues:
i. Whether the plaintiff proves that, deceased
defendant No.1 executed an agreement of
sale dated 30.09.2008 agreeing to sell the
suit property or the consideration amount of
Rs.8,15,000/- per acre as alleged ?
ii. Whether plaintiff further proves that, he has
paid substantial amount out of the total
consideration as earnest money under
deferent dates as being alleged?
iii. Whether Plaintiff proves that he is ever ready
and willing to perform his part contract?
iv. Whether defendants prove that their
signatures are obtained by the Plaintiff on
blank stamp paper in connection with hand
loan of Rs.50,000/- which is already repaid
to the plaintiff as being contented?
v. What order or decree?
7. In order to substantiate his case, the plaintiff
examined himself as PW.1 and got marked 4 documents
as Ex.P1 to P4. In rebuttal, the defendant No.1 got
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examined himself as DW.1 and got marked 2 documents
as Exs.D1 and D2. The trial Court after recording the
evidence, hearing on both sides and on the assessment of
oral and documentary evidence answered issue Nos.1 to 4
in the negative and issue No.5 as per the final order. The
suit of the plaintiff was dismissed. The plaintiff aggrieved
by the dismissal of suit, filed this regular first appeal.
8. In-spite of service of notice, none appears for
the respondents in this appeal.
9. Heard the learned counsel appearing for the
plaintiff.
10. Learned counsel appearing for plaintiff submits
that the trial Court could have considered the admission of
defendant No.1(c) in the written statement that the
defendants have clearly admitted that they have taken a
loan from the plaintiff for a sum of Rs.50,000/- by Ashok,
Raju and Suresh and plaintiff issued a cheque in the name
of Ashok, Raju and Suresh. The trial Court ought to have
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granted the alternative relief, on the contrary, the trial
Court has dismissed the entire suit. Hence, the trial Court
has committed an error in dismissing the entire suit.
Accordingly, he prays to decree the suit by granting an
alternative relief. Hence, on these grounds he prays to
allow the appeal.
11. Perused the records and considered the
submissions of the learned counsel for the parties. The
points that arise for our consideration are;
(1) Whether the plaintiff proves that the
defendants have executed an agreement of
sale in favour of the plaintiff agreeing to sale
the suit scheduled property?
(2) Whether the plaintiff proves that he had paid
a sum of Rs.50,000/- each to Ashok, Raju and
Suresh through cheque?
(3) Whether the plaintiff proves that the
judgment and decree passed by the trial
Court is arbitrary and erroneous?
(4) What order or decree?
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12. Point Nos.1: In order to substantiate his case,
plaintiff examined himself as PW.1 and he deposed that he
is carrying real estate business. He approached the
defendant and requested to sell the suit scheduled
property for a sale consideration of Rs.8,15,000/- per acre
and the defendant agreed to sell the suit scheduled
property for a sale consideration of Rs.8,15,000/- per
acre. Accordingly, the defendant executed an agreement
of sale on 30.09.2008 and plaintiff has paid a sum of
Rs.2,50,000/- as an advance amount and defendants
executed an agreement of sale. In order to establish that
the defendant executed an agreement of sale, the plaintiff
has produced agreement of sale marked as Ex.P1, which
discloses that the defendant had agreed to sell the suit
scheduled property for a sale consideration of
Rs.8,15,000/- per acre and that the plaintiff has paid a
sum of Rs.2,50,000/- as an advance amount to the
defendants. Further it was agreed that the sale deed to be
executed after the defendants got prepared a PT sheet.
Further, in order to establish that the plaintiff has paid a
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sum of Rs.50,000/- each to Ashok, Raju and Suresh, the
plaintiff has produced the statement of accounts of the
plaintiff which discloses that on 10.02.2009, the plaintiff
got issued a cheque bearing No.GT1328263 in the name of
Ashok, on 10.02.2009 cheque bearing GT1328264 in the
name of Raju and on the same day cheque bearing
No.GT1328265 in the name of Suresh and the said
cheques were honored. Further, though the defendants
have denied the execution of agreement of sale in favour
of plaintiff, but the plaintiff except oral testimony of PW.1,
plaintiff has not examined any attesting witnesses to the
agreement of sale. Hence, the oral testimony of the
plaintiff does not prove that the defendant had executed
an agreement of sale in favour of the plaintiff. Further the
plaintiff has not taken any steps to prove thumb
impression of defendant on Ex.P1. The defendant denied
his thumb impression on Ex.P1. Hence, the plaintiff has
neither taken any steps to examine the attesting witnesses
nor has taken any steps to refer Ex.P1 to the thumb
impression to the expert. Thus, the plaintiff has failed to
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establish that the defendant had executed an agreement
of sale in favour of plaintiff by virtue of Ex.P1. In view of
the above discussion, we answer point No.1 in the
negative holding that the plaintiff has failed to prove that
defendant had executed an agreement of sale in favour of
plaintiff agreeing to sell the suit scheduled property for
sale consideration of Rs.8,15,000/- per acre.
13. Point Nos.2 and 3: These two points are
interlinked with each other and hence they are taken up
together for common discussion in order to avoid
repetition of facts.
14. It is the case of the plaintiff that the plaintiff
has paid a sum of Rs.2,50,000/- towards advance amount
and thereafter paid Rs.1,00,000/- to Ashok on
07.11.2008, and Rs.1,00,000/- on 07.01.2009 and
Rs.50,000/- each in favour of Ashok, Raju and Suresh on
07.01.2009 and the said cheques was got encashed by
Ashok, Raju and Suresh on 10.02.2009. In order to
substantiate the contention of the plaintiff, the plaintiff has
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produced the statement of accounts of ING Vysya Bank
marked as Ex.P2 wherein the plaintiff is having an account
in the said bank, which discloses that the plaintiff had
issued three cheques separately in the name of Ashok,
Raju and Suresh and they got encashed the said cheques.
The trial Court has not considered Ex.P2 and further the
defence of the defendant No.1(c) in the written statement
stated that defendants have borrowed hand loan from the
plaintiff for Rs.50,000/-. The admission of the defendant in
the written statement is sufficient to hold that the
defendant Nos.1(c), 1(d) and 1(e) i.e., Ashok, Raju and
Suresh have taken amount from the plaintiff. At least, the
trial Court ought to have granted relief to the extent of
Rs.1,50,000/- on the contrary, the trial Court has
dismissed the suit holding that the plaintiff has failed to
establish the payment of earnest amount. The said finding
recorded by the trial Court is contrary to Ex.P2. The
plaintiff by producing Ex.P2 has proved that he has paid a
sum of Rs.50,000/- each to Ashok, Raju and Suresh. But
the plaintiff has not produced the records to show that he
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has paid a sum of Rs.2,50,000/- and as on the date of
execution of agreement of sale on 07.01.2009, he has
paid a sum of Rs.1,00,000/- to Ashok and Rs.1,00,000/-
to Suresh. The trial Court was justified in recording a
finding that the plaintiff has failed to establish that in all
he has paid a sum of Rs.5,00,000/-. From the perusal of
Ex.P2, plaintiff has proved that he has paid a sum of
Rs.1,50,000/- to Ashok, Raju and Suresh. Thus, the
plaintiff has proved that that he has paid a sum of
Rs.1,50,000/- to Ashok, Raju and Suresh and the said
transaction is not a sale transaction, but it is loan
transaction as alleged by the legal representatives of the
defendant. Further no document is produced to show the
amount of Rs.1,50,000/- was paid to the plaintiff. It is not
the case of the defendant that legal representatives of the
defendant repaid the amount. The trial Court ought to
have granted relief of recovery of money of Rs.1,50,000/-
instead of dismissing the entire suit. In view of the above
discussion, we answer point No.2 partly affirmative.
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15. As we have already recorded point No.2 in
favour of the plaintiff holding that the plaintiff has
established that he has paid a sum of Rs.1,50,000/- to
Ashok, Raju and Suresh. The trial Court committed an
error in dismissing the entire suit. In view of the above
discussion, we answer Point No.3 partly affirmative.
16. Point No.4: In view of the above discussion, we
proceed to pass the following:
ORDER
(a) The appeal is allowed with cost.
(b) The judgment and decree dated
17.01.2019 passed in
O.S.No.40/2011 by the II Addl.
Senior Civil Judge Vijayapura, is set
aside.
(c) The suit of the plaintiff is partly
decreed.
(d) The legal representatives of the
defendant are directed to refund the
amount of Rs.1,50,000/- with
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interest @ 6% p.a. from the date of
suit till realization of amount.
No order as to the costs.
Sd/-
JUDGE
Sd/-
JUDGE
CT;BN
Paragraph Nos.1 to 3 HKV
4 to 16 MSR
