Karnataka High Court
Sri Ramachandra vs Sri Byregowda on 4 November, 2024
-1-
NC: 2024:KHC:44044
RSA No. 1749 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1749 OF 2023 (SP)
BETWEEN:
SRI RAMACHANDRA
S/O LATE BOREGOWDA
AGED ABOUT 53 YEARS,
R/AT CHHINDENAHALLI GATE
FARM HOUSE, GANDSI HOBLI,
ARASIKERE TALUK,
HASSAN DISTRICT - 573103.
...APPELLANT
(BY SRI. LEELADHAR H P., ADVOCATE)
AND:
Digitally SRI BYREGOWDA
signed by R S/O LATE BOREGOWDA,
DEEPA AGED ABOUT 58 YEARS,
Location: R/AT BYREGOWDANAHALLI VILLAGE,
HIGH COURT GANDASI HOBLI, ARASIKERE TALUK,
OF HASSAN DISTRICT - 573103.
KARNATAKA ...RESPONDENT
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 04.08.2023 PASSED IN
RA NO.4/2020 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, ARASIKERE DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 18.11.2019 PASSED IN
OS NO.354/2011 ON THE FILE OF PRINCIPAL CIVIL JUDGE,
AND JMFC ARASIKERE.
-2-
NC: 2024:KHC:44044
RSA No. 1749 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed challenging the
judgment and decree dated 04.08.2023 passed in
R.A.No.4/2020 by the Senior Civil Judge and JMFC,
Arasikere and the judgment and decree dated 18.11.2019
passed in O.S.No.354/2011 by the Principal Civil Judge
and JMFC, Arasikere.
2. For convenience, parties are referred to as per
their ranking before the trial Court. The appellant is the
plaintiff, and respondent is the defendant.
3. The brief facts leading rise to filing of this
appeal are as under:
Plaintiff filed a suit against the defendant for specific
performance of contract. It is the case of the plaintiff that
defendant is the absolute owner of the suit schedule
property and agreed to sell the suit schedule property for
NC: 2024:KHC:44044
a consideration of Rs.1,45,000/- (Rupees One Lakh Forty
Five Thousands only). Accordingly, the plaintiff paid a sum
of Rs.1,40,000/- (Rupees One Lakh Forty Thousands only)
on 28.10.2008 as an advance amount and it was agreed
that the balance consideration to be paid at the time of
registration of sale deed. It was agreed that the defendant
to execute a registered sale deed whenever called upon by
the plaintiff. After the said transaction, plaintiff being the
brother of the defendant called upon the defendant to
produce the original title deeds except exchange deed,
which was already produced at the time of execution of
agreement of sale in the Office of the Sub Registrar,
Arasikere.
4. It is contended that the plaintiff was/is always
ready and willing to perform his part of contract by paying
the balance consideration amount and get the registered
sale deed executed. The defendant failed to discharge his
obligation of contract. The plaintiff got issued a legal
notice to the defendant calling upon the defendant to
NC: 2024:KHC:44044
receive the balance consideration amount and execute
registered sale deed. The said notice was duly served on
the defendant. Despite of service of legal notice, the
defendant did not complied the terms and conditions of
agreement of sale. Thus, the defendant committed breach
of contract. Hence, a cause of action arises for the plaintiff
to file specific performance of contract. Accordingly, prays
to decree the suit.
5. The defendant filed a written statement
admitting the relationship of the plaintiff and the
defendant, but denied the execution of alleged agreement
of sale dated 28.10.2008 and receiving of advance amount
of Rs.1,40,000/-. It is denied that the defendant agreed to
sell the suit schedule property in favour of plaintiff for
consideration of Rs.1,45,000/-. It is contended that the
defendant never agreed to sell the suit schedule property
in favour of the plaintiff. It is contended that the plaintiff
created the alleged agreement of sale and filed the
present suit. It is contended that the suit schedule
NC: 2024:KHC:44044
property is a joint family property, and the defendant has
no right to execute agreement of sale without obtaining
the signatures of other coparceners. Hence, prays to
dismiss the suit.
6. The trial Court based on the aforesaid pleadings
framed the relevant issues.
7. Plaintiff to prove his case examined himself as
PW-1, examined one witness as PW-2 and marked six
documents as Exhibits Ex.P.1 to P.6. In rebuttal defendant
examined as DW-1 and no documents were produced.
8. After recording the evidence, the trial Court, on
the assessment of oral and documentary evidence decreed
the suit of the plaintiff in part. It is ordered that the
defendant or anybody claiming through him is hereby
directed to refund Rs.1,40,000/- along with 6% interest
per annum from the date of filing of the suit till realization
of the decreetal amount. Specific performance of the
contract in respect of agreement of sale dated 28.10.2008
NC: 2024:KHC:44044
was rejected. The plaintiff aggrieved by the judgment and
dismissal of the suit in respect of specific performance of
the contract preferred an appeal in R.A. No.4/2020 on the
file of learned Senior Civil Judge and JMFC, Arsikere.
Appellate Court, on reassessment of oral and documentary
evidence dismissed the appeal with cost and confirmed the
judgment and decree passed in O.S.No.354/2011.
9. The plaintiff aggrieved by the impugned
judgments, filed this Regular Second Appeal.
10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that
the defendant agreed to sell the suit schedule property for
consideration of Rs.1,45,000/- and the plaintiff paid a sum
of Rs.1,40,000/- towards advance amount and it was
agreed that the balance consideration amount to be paid
at the time of registration of the sale deed. He further
submits that time was not the essence of contract. He
submits that plaintiff was/is ready to perform his part of
NC: 2024:KHC:44044
contract. He further submits that the defendant has not
taken defence in the written statement that the
transaction between the plaintiff and defendant is a loan
transaction. In the absence of a pleading, finding recorded
by both the Courts below is arbitrary and erroneous.
Hence, on these grounds, he prays to allow the appeal.
12. Perused the records and considered the
submissions of the learned counsel for the plaintiff.
13. The plaintiff to prove his case examined himself
as PW-1. He reiterated the plaint averments in the
examination-in-chief and to establish that the defendant
had executed an agreement of sale in favour of the
plaintiff produced at Ex.P.1, original agreement of sale
which discloses that defendant agreed to sell suit schedule
property for consideration of Rs.1,45,000/- and plaintiff
paid a sum of Rs.1,40,000/- towards the part of
consideration amount, and it was agreed that the
remaining balance consideration amount to be paid at the
time of registration of sale deed. It was agreed that the
NC: 2024:KHC:44044
defendant shall execute/register sale deed as and when
called upon by the plaintiff. Plaintiff got issued a legal
notice calling upon the defendant receiving balance
consideration amount of Rs.5,000/- and executed a
registered sale deed. The said legal notice is marked as
Ex.P.3. Plaintiff produced exchange deed Ex.P.2 which
discloses plaintiff and defendant wants to exchange the
properties. Ex.P.4 is the RTC extract, Ex.P.5 is the postal
receipt, Ex.P.6 is the acknowledgement.
14. During cross-examination a suggestion was
made to PW-1 that there was a monitory transaction taken
place between the plaintiff and defendant to the tune of
Rs.1,40,000/- and Ex.P.1 is executed for the security. The
said suggestion was admitted by the plaintiff. The plaintiff
in order to prove the execution of Ex.P.1 also examined
attested witness as PW-2, who has deposed that the
defendant agreed to sell the suit schedule property for
consideration of Rs.1,45,000/- and the same was paid
near the house itself. PW-2 during cross-examination has
NC: 2024:KHC:44044
not supported the case of the plaintiff in regard to the
passing of advance consideration amount of Rs.1,40,000/-
.
15. From the perusal of the entire evidence of PW-1
and PW-2 does not inspire the confidence of the Court that
the defendant had executed an agreement of sell agreed
to sell the suit schedule property in favour of the plaintiff.
The plaintiff has failed to prove the execution of an
agreement of sale and payment of alleged consideration
amount. Both the Courts below have come to the
conclusion that it is not a sale transaction. It is a loan
transaction, and rightly answered issue No.5 and decreed
the suit in part, directing the defendant to refund the
amount of Rs.1,40,000/- along with interest of 6% per
annum from the date of filing of suit till the realization of
the decreetal amount.
16. The Appellate Court, on reassessment of oral
and documentary evidence has recorded its finding that
defendant in the written statement has specifically denied
- 10 -
NC: 2024:KHC:44044
the execution of an agreement of sale. Plaintiff except
examining PW-2 has not taken any steps to refer the
signature to hand writing expert, and plaintiff failed to
prove Ex.P.1 and also recorded a finding of the signature
at Exs.P.1 and P.2 of defendant are not similar, has
executed Ex.P.2 which is the exchange deed executed
between the plaintiff and the defendant and said document
is the admitted document. plaintiff has failed to prove the
agreement of sale as per Ex.P.1. Both the Courts below
have categorically recorded the finding of facts and the
suit for specific performance of contract was rejected.
17. I do not find any error in the impugned
judgments or any substantial question of law that arises
for consideration in this appeal.
Accordingly, I proceed to pass the following:
ORDER
(i) Appeal is dismissed.
- 11 -
NC: 2024:KHC:44044
(ii) The judgments and decrees passed by the
Courts below are hereby confirmed.
No order as to the costs.
In view of the dismissal of main appeal,
I.A.No.1/2023 does not survive for consideration.
Sd/-
(ASHOK S.KINAGI)
JUDGE
BVK
