Karnataka High Court
Rajesh S/O Mohan Devgiri vs The Bijapur Minorities And Weaker ... on 27 June, 2024
-1-
NC: 2024:KHC-K:4339-DB
RFA No.200028 of 2016
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.200028 OF 2016 (SP)
BETWEEN:
RAJESH
S/O MOHAN DEVGIRI,
AGED ABOUT 46 YEARS,
OCC: BUSINESS,
R/O: AMBIKA NIVAS, KALYAN NAGAR
GACHCHINKATTI COLONY, VIJAYAPUR.
THROUGH HIS G.P.A. HOLDER
VIJAYKUMAR S/O SADASIV KOVALLI,
AGED ABOUT 47 YEARS,
R/O: VIJAYPUR.
Digitally signed by ...APPELLANT
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH
(BY SRI SANJEEVKUMAR C.PATIL, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. THE BIJAPUR MINORITIES AND
WEAKER SECTION,
EDUCATION ASSOCIATION
CHALUKYA NAGAR, SOLAPUR ROAD,
VIJAYAPUR.
BY ITS CHAIRMAN
SMT. B.T.L MARY DAS,
AGED ABOUT 67 YEARS,
OCC: HEAD MISTRESS,
-2-
NC: 2024:KHC-K:4339-DB
RFA No.200028 of 2016
R/O: ST. THERESA ENGLISH MEDIUM
HIGH SCHOOL, CHALUKYA NAGAR
SOLAPUR ROAD, VIJAYPUR - 586 101.
2. SHAMSHUDDIN PATEL
S/O MODIN PATEL PATIL,
AGED ABOUT 63 YEARS,
OCC: BUSINESS,
R/O: S.R.COLONY,
VIJAYPUR - 586 101.
3. ABDULKHADIR
S/O MOHENMMADSAB TAHASILDAR,
AGED ABOUT 36 YEARS,
OCC: SECRETARY OF
DEFENDANT NO.1 ASSOCIATION,
R/O: BAGALKOT ROAD, JALANAGAR,
VIJAYPUR - 586 101.
4. MOHAMMAD YASEEN
S/O RAMASANSAB BELLARY,
AGED ABOUT 33 YEARS,
OCC: BUSINESS,
R/O: TADKE GALLI,
VIJAYPUR - 586 101.
5. VIRUPAXI
S/O MALLIKARJUN MAGI,
AGED ABOUT 41 YEARS,
OCC: BUSINESS,
R/O: VENKATESH NAGAR,
VIJAYPUR - 586 101.
...RESPONDENTS
(BY SRI R.J.BHUSARE, ADVOCATE FOR R2;
NOTICE TO R3 AND R4 ARE SERVED;
V/O. DTD. 12.07.2018 SERVICE OF NOTICE
TO R1 AND R5 ARE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF C.P.C., PRAYING TO CALL FOR RELEVANT RECORDS AND
-3-
NC: 2024:KHC-K:4339-DB
RFA No.200028 of 2016
SET ASIDE THE JUDGMENT AND DECREE PASSED IN
O.S.NO.151/2007 DATED 01.03.2016 ON THE FILE OF THE II-
ADDITIONAL SENIOR CIVIL JUDGE, VIJAYAPURA, BY
ALLOWING THIS APPEAL AND DECREE THE SUIT OF THE
APPELLANT AS PRAYED FOR.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING,
THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the appellant
challenging the judgment and decree dated 01.03.2016
passed in O.S.No.151/2007 by II-Additional Senior Civil
Judge, Vijaypur (for short, hereinafter referred to as 'Trial
Court').
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial court.
Appellant is the plaintiff and respondents are the
defendants.
3. Brief facts of the case are that, the plaintiff filed
a suit for specific performance of contract against the
NC: 2024:KHC-K:4339-DB
defendants. The case of the plaintiff is that, defendant
No.1-Chairman of the Association put the suit property
bearing R.S.No.68/2A measuring 02 acres 06 guntas
situated at Mahalbagayat, Vijaypur, for sale. The plaintiff
offered to purchase the said land for consideration of
Rs.25,00,000/-. Accordingly, the plaintiff has paid earnest
money of Rs.15,00,000/- on 12.09.2003 and remaining
amount was agreed to be paid at the time of execution of
registered sale deed. Time was fixed within 04 years from
the date of the execution of the agreement of sale.
Defendant No.1 required some time for resolution from the
committee. Defendant No.1 in the second week of
December 2006 gave a photocopy of the resolution that
was passed on 01.11.2006 which reveals that defendant
No.1 is empowered to dispose of the suit land. The plaintiff
requested defendant No.1 to execute the registered sale
deed, but defendant No.1 on one or the other pretext went
on protracting. Finally, the plaintiff got issued legal notice
on 16.04.2007 calling upon defendant No.1 to execute the
registered sale deed. Defendant No.1 neither replied to the
NC: 2024:KHC-K:4339-DB
legal notice nor executed the register sale deed. Hence,
the cause of action arose for the plaintiff to file the suit for
specific performance of contract.
4. Defendant No.1 filed written statement
admitting that she was the Chairman of the Association,
but denied the execution of an agreement of sale. It is
contended that she borrowed some hand loan from one
Raju Hiremath and Vijay Kowalli, for security, they have
taken her signature on blank paper and the same has
been misused for this suit. It is contended that defendant
No.1 has already repaid the loan amount of
Rs.11,93,500/- through cheque to the said persons.
Hence, pray to dismiss the suit.
5. Defendant No.2 also filed written statement and
the same has been adopted by the other defendants. They
have also denied the execution of the agreement of sale.
It is contended that defendant No.1 had no authority to
execute the alleged agreement of sale in favour of the
plaintiff. It is contended that, by resolution dated
NC: 2024:KHC-K:4339-DB
02.04.2007 they have become member of the institution.
Defendant No.1 in O.S.No.182/2007 has admitted that she
is no longer the Chairman of the institution and because of
her mismanagement, she was removed from the
Chairmanship. On these grounds, pray to dismiss the suit.
6. On the basis of the pleadings of the parties, the
Trial Court framed the following issues:
i. Whether plaintiff proves that on
12.9.2003 defendants agreed to sell
suit land for Rs.25,00,000/- and by
receiving earnest money of
Rs.15,00,000/- entered into contract
with him?
ii. Whether plaintiff further proves that
defendant agreed to execute
registered sale deed in respect of suit
land within 4 years by receiving
balance amount from him?
iii. Whether plaintiff further proves that
he is ready to perform his part of
NC: 2024:KHC-K:4339-DB
contract, but defendant failed to
perform their part of contract?
iv. Whether defendant No.1 proves that
she had taken loan of Rs.6,75,000/-
from Raju Hiremath and Vijay Kowalli
during the year 2002-03 and for
security of said loan she issued plain
bond paper to above said persons in
good faith?
v. Whether the defendant No.1 further
proves that plaintiff colluding with
Raju Hiremath and Vijay Kowalli
created bogus agreement of sale to
extract money from her?
vi. What order or decree?
7. The plaintiff in order to prove his case got
examined his power of attorney holder as P.W.1 and
examined two witnesses as PWs.2 and 3 and got marked
12 documents as Exs.P.1 to Ex.P12. On the other hand,
defendant Nos.2 and 1 examined themselves as DWs.1
NC: 2024:KHC-K:4339-DB
and 2 and got examined one witness as D.W.3 and got
marked 04 documents as Exs.D-1 to Ex.D-4.
8. After recording the evidence, hearing on both
side and on assessment of the oral and documentary
evidence, the Trial Court answered issue Nos.1 to 3 in the
affirmative and issue Nos.4 and 5 in the negative and
issue No.6 as per final order and the suit of the plaintiff
was partly decreed with costs. It is ordered and decreed
that the plaintiff is entitled for recovery of earnest money
of Rs.15,00,000/- with interest at the rate of 6% per
annum from the date of the suit till realization from
defendant No.1 only. The suit against defendant Nos.2 to
5 was dismissed and defendant No.1 was directed to
refund the earnest money with accrued interest thereon at
the rate of 6% per annum within three months from the
date of decree to the plaintiff, failing which, the plaintiff is
entitled to recover the same in accordance with law.
NC: 2024:KHC-K:4339-DB
9. The plaintiff, aggrieved by the judgment and
decree passed by the Trial Court dismissing the suit for
specific performance of contract, has filed this appeal.
10. Heard the learned counsel for the plaintiff and
also learned counsel for defendant No.2.
11. Learned counsel for the plaintiff submits that,
defendant No.1 being the Chairman of Bijapur Minorities
and Weaker Section Education Association had entered
into agreement to sell the suit schedule property in the
capacity as a Chairman. He further submits that the
association has passed the resolution authorizing
defendant No.1 to enter into an agreement to sell the suit
schedule property. On the basis of the resolution passed
by the association, the Chairman had entered into an
agreement of sale with the plaintiff and agreed for
consideration of Rs.25,00,000/- and the plaintiff has paid
a sum of Rs.15,00,000/- towards earnest money out of
the sale price of Rs.25,00,000/-. He submits that the
plaintiff has produced photocopy of the resolution passed
- 10 -
NC: 2024:KHC-K:4339-DB
by the association. But, the Trial Court has committed an
error in dismissing the suit for specific performance of
contract on the ground that the Chairman had no authority
to execute the registered agreement of sale in favour of
the plaintiff.
12. He submits that B.T.L. Mary Das (for short,
'Mary Das') had authority to execute the agreement of
sale. Learned counsel for the plaintiff submits that the
plaintiff has submitted an application seeking direction to
the defendants to produce the copy of the resolution
authorizing Mary Das to sell the suit land. Said application
came to be allowed. In spite of it, the defendants have
not produced the resolution. Hence, the Trial Court ought
to have drawn an adverse inference against the
defendants under Section 114(g) of the Indian Evidence
Act. Hence, on these grounds, he prays to allow the
appeal.
13. Per contra, learned counsel for the defendant
No.2 supports the impugned judgment and submits that
- 11 -
NC: 2024:KHC-K:4339-DB
Mary Das is not authorized to alienate the suit schedule
property and further she was removed from the post of
Chairman because of her mismanagement and she has
admitted the same in the suit in O.S.No.182/2007. Hence,
he submits that Mary Das taking undue advantage of the
post, she has misused the powers. Hence, any illegal act
done by the Chairman is not binding on the association.
Anyhow, the Trial Court ordered for refund of earnest
money. Hence, on these grounds, he prays to dismiss the
appeal.
14. Perused the records and considered the
submissions of the learned counsel for the parties.
15. The points that arise for our consideration are:
1) Whether the plaintiff proves that Mary Das
in the capacity as a Chairman of Bijapur
Minorities and Weaker Sections Education
Association has agreed to sell the suit
schedule property for a total sale
consideration of Rs.25 lakh and received
- 12 -
NC: 2024:KHC-K:4339-DB
earnest money of Rs.15 lakh and executed
an agreement of sale on 12.09.2003?
2) Whether defendant No.1 proves that Mary
Das had no authority to enter into
agreement of sale with the plaintiff and the
same is not binding on the defendant No.1
- Association?
3) Whether the plaintiff proves that, the
impugned judgment and decree is
arbitrary and erroneous?
4) What order or decree?
16. Point No.1: The plaintiff in order to
substantiate his case got examined his General Power of
Attorney as P.W.1 and he has reiterated the plaint
averments in the examination-in-chief and he has deposed
that Mary Das in the capacity as a Chairman of defendant
No.1 agreed to sell the suit schedule property for a total
consideration of Rs.25 lakh and the plaintiff accepted the
offer of Mary Das and received earnest money of Rs.15
lakh and it was agreed that the defendant No.1 shall get
- 13 -
NC: 2024:KHC-K:4339-DB
execute the registered sale deed within 04 years from the
date of execution of agreement of sale. Accordingly, the
plaintiff requested Mary Das to execute the registered sale
deed. But the Mary Das went on postponing on one or the
other reason. The plaintiff being fed up with the delay got
issued legal notice as per Ex.P.4. The plaintiff has
produced the General Power of Attorney as per Ex.P1.
Ex.P.2 is the Record of Rights pertaining to suit land which
disclose that the defendant No.1 - Association is the
owner of the suit schedule property. Ex.P.3 is the original
Agreement of Sale alleged said to have been executed by
Mary Das in favour of plaintiff which disclose that the Mary
Das had received a part consideration amount of Rs.15
lakh and it was agreed that the balance amount to be paid
at the time of registration of sale deed and time was fixed
for execution of registered sale deed. Ex.P.4 is the copy of
the legal notice issued to the defendant No.1, calling upon
her to receive the balance consideration amount and
execute the registered sale deed. Ex.P.5 is the Postal
Receipt. Ex.P.6 is the copy of the Record of Rights in
- 14 -
NC: 2024:KHC-K:4339-DB
respect of suit schedule property. Ex.P.7 is the written
statement of defendant No.1 filed by the defendant No.1
in this suit. The written statement was confronted to
P.W.1 and the same is marked as Ex.P.7 and the signature
of defendant No.1 is marked as P.W.7(a). Ex.P.8 is the
Vakalatnama executed by the Mary Das. Ex.P.9 is the
verifying affidavit enclosed to the written statement.
Ex.P.10 is the Record of Rights. Ex.P.11 is the Intimation
Letter issued by Tahsildar. Exs.P.12 and 13 are the Record
of Rights.
17. In the course of cross-examination of P.W.1,
except denying the execution of agreement of sale by the
defendant No.1 i.e., Association, it was suggested to
P.W.1 that Mary Das had no authority to enter into an
agreement of sale on behalf of the Association without
resolution. The said suggestion was denied by P.W.1.
Further, in order to prove the execution of agreement of
sale, the plaintiff also examined the attesting witnesses to
Ex.P.3. P.Ws.2 and 3 are the attesting witnesses to Ex.P.3
- 15 -
NC: 2024:KHC-K:4339-DB
and the said witnesses have deposed that Mary Das
entered into agreement of sale with the plaintiff and
agreed to sell the suit schedule property for a total sale
consideration of Rs.25 lakh and the earnest money was
paid in the name of Mary Das and the Mary Das had
executed an agreement of sale as per Ex.P.3. Even from
the perusal of the evidence of P.Ws.1 to 3, which discloses
that the alleged part sale consideration amount was paid
in favour of Mary Das, but not to the Association. Though
it is the case of the plaintiff that Mary Das was the
Chairman at the time of execution of agreement of sale,
she has entered into an agreement of sale in the capacity
as a Chairman of the Association. Hence, any act done by
the Chairman is binding on the association. As could be
seen from the records that Mary Das had entered into
agreement for sale with the plaintiff, but the plaintiff has
paid part sale consideration amount to the Mary Das but
not in favoaur of the Association. There is no privity of
contract between defendant No.1 and plaintiff.
- 16 -
NC: 2024:KHC-K:4339-DB
18. From the perusal of the entire evidence, it is
clear that the defendant No.1-Association have not passed
any resolution authorizing the Mary Das to alienate the
suit schedule property. The said Mary Das without therein
being a resolution has entered into an agreement of sale
with the plaintiff and received the amount in her own
name and the same was not credited to the account of
defendant No.1. Thus, the Mary Das has executed an
agreement of sale not in the capacity as a Chairman of
Bijapur Minorities and Weaker Section Education
Association. The agreement alleged to have been
executed by Mary Das in favour of plaintiff is not binding
on the defendant No.1. The plaintiff has failed to prove
that Mary Das executed agreement of sale in the capacity
as a Chairman of defendant No.1-Association. Though the
burden is upon the plaintiff to establish that the plaintiff
has paid a sum of Rs.15 lakh to defendant No.1, but the
plaintiff has not produced any record to establish that the
plaintiff has paid part sale consideration of Rs.15 lakh as
advance money to the defendant No.1 - Association. For
- 17 -
NC: 2024:KHC-K:4339-DB
the above discussions, we answer the point No.1 in the
Negative.
19. Point No.2: It is the defence of the
defendants that the Mary Das had no authority to enter
into an agreement of sale in favour of the plaintiff on
behalf of the Association as there is no resolution is passed
authorizing Mary Das to alienate the suit schedule
property. Though the plaintiff has filed an application
seeking direction to the defendant No.1 to produce the
alleged resolution, the defendant No.1 - Association stated
that no such resolution is passed by the defendant No.1 -
Association. As we have already recorded finding that
Mary Das had no authority to execute agreement of sale
with the plaintiff as there is no resolution was passed
authorizing her to execute agreement of sale in favour of
the plaintiff. Any illegal act done by the Mary Das is not
binding on the Association. Admittedly, the plaintiff had
paid the part consideration amount to the Mary Das and
the plaintiff is entitled to recover the same from the Mary
- 18 -
NC: 2024:KHC-K:4339-DB
Das. Defendant No.1 proved that Mary Das had authority
to enter into agreement. Accordingly, we answer point
No.2 in the Affirmative.
20. Point No.3: The Trial Court, considering the
entire material on record was justified in passing the
impugned judgment. Hence, we do not find any error in
the impugned judgment and decree passed by the Trial
Court. Accordingly, we answer point No.3 in the Negative.
21. Point No.4: In view of above discussions, we
proceed to pass the following:
ORDER
i. The Regular First Appeal is party
allowed.
ii. Mrs. B.T.L. Mary Das is directed to
refund the earnest money of
Rs.15,00,000/- (Fifteen Lakh only)
within three months from the date of
this judgment along with accrued
- 19 -
NC: 2024:KHC-K:4339-DB
interest at the rate of 6% per annum
from the date of filing of suit till the
realization, failing which the plaintiff is
entitled to recover the same in
accordance with law.
Sd/-
JUDGE
Sd/-
JUDGE
NB/BL
Ct;Vk
