Karnataka High Court
Smt Zahira Nasreen vs Jamshed Jah on 22 October, 2024
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RFA No. 2045 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 2045 OF 2017 (SP)
Between:
1. Smt. Zahira Nasreen,
W/o Late Dr. Nissar Ahamed Siddique,
Major by Age
2. Rehan Ahamed Siddique
S/o Late Dr. Nissar Ahamed Siddique,
Aged about 43 years,
3. Arman Haseeb Siddique,
D/o Late Dr. Nissar Ahamed Siddique,
Aged about 36 years,
4. Bayan Kateeb Siddique,
Digitally signed by S/o Late Dr. Nissar Ahamed Siddique,
VEERENDRA
KUMAR K M Aged about 27 years,
Location: HIGH
COURT OF 5. Emaan Ahamed Siddique,
KARNATAKA
S/o Late Dr. Nissar Ahamed Siddique,
Aged about 26 years,
Appellants No.1 to 5 are
Residing at D.No.34, 7th Cross,
Shivaji Road, N.R.Mohalla,
Mysuru-570007.
- Appellants
(By Smt. Anandita Srinivasan, Advocate)
And:
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RFA No. 2045 of 2017
1. Jamshed Jah S/o Late Abdul Lathif,
Major by age, R/at No.16,
New Bannimantap Extension, Mysuru-570015.
And also working as Asst. Engineer,
PWD Revenue Division, Raichur
2. B.S.Puttaraj S/o B.C.Shivanna,
Major by Age, R/at D.No.13, 60 Feet Road,
Amarjyothi Nagar, Bengaluru-560040.
3. Shell India Markets Private Limited,
A Company registered under the
Provisions of the Companies Act 1956
Having its registered office
at No.12(Old No.22), 1st Cross Street,
Ramakrishna Nagar, Chennai-600028.
- Respondents
(By Sri Dilip Kumar, Advocate for R1;
R2 is served and unrepresented;
Smt. Tejaswini B.R. and
Smt. Smitha R.B., Advocates for R3)
This RFA is filed under section 96 of CPC, 1908 against
the judgment and decree dated 02.08.2017 passed in
O.S.No.286/2008 on the file of the III Additional Senior Civil
Judge, Mysuru, dismissing the suit for specific performance and
etc.,
Date on which the appeal was
28.08.2024
reserved for judgment
Date on which the judgment was
22.10.2024
pronounced
This appeal, pertaining to Bengaluru Bench, having been
heard and reserved, coming on for pronouncement this day at
Dharwad Bench, judgment was delivered therein as under:
HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
CORAM:
and
HON'BLE MR JUSTICE UMESH M ADIGA
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RFA No. 2045 of 2017
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
The III Additional Senior Civil Judge, Mysuru
dismissed the suit for specific performance,
O.S.No.286/2008 holding that the plaintiffs failed
to prove their readiness and willingness and that
the suit was time barred. Hence this appeal by the
plaintiffs.
2. Substance of pleaded facts are that the
first defendant who was a family friend of the first
plaintiff and her husband requested them to buy
the suit property that belonged to him as he was in
need of money. They agreed for the same, and in
this regard an agreement of sale came into
existence on 30.03.1995. The total sale
consideration agreed was Rs.16,00,000/-. Much
before agreement was executed, the first plaintiff's
husband had made certain payments to the first
defendant on several dates, which amounted to
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Rs.12,75,000/-, and this amount was adjusted
towards earnest money. It was agreed that upon
payment of balance of sale consideration, the first
defendant should execute the sale deed and put
the plaintiffs in possession.
2.1. The first plaintiff's husband was a doctor.
He could not obtain sale deed from the first
defendant due to his busy schedule. He died on
22.08.2006. The first plaintiff went into shock
because of sudden death of her husband and she
could not take any action in that state of mind.
But when she met and requested the first
defendant to execute the sale deed, he went on
postponing. Thereafter the first defendant was
transferred to Raichur and his address could not be
traced for a long time. After the address was
traced, she made a complaint to police who
refused to interfere in a civil matter. Resultantly
the first plaintiff and her children instituted the
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suit. Before the suit was instituted the first
defendant had sold the suit property to the second
defendant who in turn sold it to the third
defendant.
3. The first defendant admitted the
agreement and receipt of Rs.12,75,000/-, but
contended further that on 30.03.1995, two
agreements of sale were executed in respect of
suit property. In the agreement drafted in
English, sale consideration was shown as
Rs.16,00,000/-, and in the other agreement
drafted in Kannada language, the sale
consideration was shown as Rs.22,00,000/-. In
fact the first plaintiff's husband received back
entire money from the first defendant and only
thereafter the first defendant sold the suit
property to the second defendant on 08.06.2005.
This sale was known to the first plaintiff and her
husband. They did not object for the same. The
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first defendant contended that the plaintiffs
suppressed these facts. In addition he pleaded
that the plaintiffs were not ready and willing to
perform their part of contract and that the suit was
time barred, as in the agreement drafted in
Kannada language, i.e., original agreement, 7
months time was stipulated and the suit having
been filed in the year 2008 was time barred.
4. The issues upon which the suit was
dismissed were the main issues in the suit.
5. The respondents filed an application
under Order 41 Rule 27 of CPC to produce an
agreement of sale dated 30.03.1995 by way of
additional evidence. This application is ofcourse
opposed by the appellants by filing statement of
objections.
6. Smt. Anandita Srinivasan, learned
advocate for the appellants/plaintiffs contended
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that dismissal of the suit was erroneous inasmuch
as the balance of sale consideration to be paid by
the plaintiffs was not a huge sum when compared
to sum of Rs.12,75,000/- which had already been
paid by them. Though there was delay in filing the
suit, it was for valid reasons that the first
plaintiff's husband died and on account of his
death, the first plaintiff suffered a shock which she
found it difficult to overcome. The first defendant
was transferred to Raichur, and the plaintiffs could
not trace the address for quite a long time. All
these facts are pleaded and proved by the
plaintiffs.
6.1. She further argued that no time limit has
been stipulated in the agreement, but the trial
court has wrongly held that suit was filed beyond
prescribed time. The cause of action arose only
when the plaintiffs came to know about sale of the
suit property to the second defendant; the right to
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sue arose after this sale which was nothing but
breach of contract. Without appreciating the
evidence properly the trial court dismissed the suit
erroneously. Hence appeal deserves to be allowed
and, specific performance granted in favour of the
plaintiffs.
7. The counsel for the first defendant, Sri
Dilip Kumar argued that though the agreement of
sale is not disputed, the plaintiffs were not ready
and willing to perform their part of contract. The
agreement was executed on 30.03.1995, the suit
was filed in the year 2008. The conduct of the
plaintiffs in keeping quite for about 13 years is
sufficient to deny the relief. Two agreements
came into existence on the same day. The
agreement produced before the court as per Ex.P1
does not depict agreed consideration, it is found in
another agreement written in Kannada. Total sale
consideration was Rs.22,00,000/-. The plaintiffs
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being unable to pay the balance did not come
forward. The plaintiffs were aware of property
being sold to the second defendant. In fact the
first plaintiff's husband while going to his nursing
home used to pass through in front of suit
property, and he knew developmental activities
undertaken by subsequent purchasers. He did not
take any objection which showed that he did not
want to purchase the suit property. When he
requested for refund of earnest money, the first
defendant paid a sum of Rs.12,75,000/-, and took
back the original agreement drafted in Kannada.
This agreement is produced by way of additional
evidence and if this document is considered, the
defendants' contentions would get probabalised as
the agreement would be left with purchaser in
normal course and if the first defendant had the
original in his possession, it would indicate money
being returned to the plaintiffs. Therefore appeal
is devoid of merits.
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8. The counsel for third defendant argued
that he was a bonafide purchaser without
knowledge of past transactions. The third
defendant having bought the suit property
constructed a petrol bunk and is carrying on
business. In this kind of a situation if specific
performance is granted, the third defendant will
face hardship.
9. Smt. Anandita Srinivasan replied that
application under Order 41 Rule 27 of CPC cannot
be allowed for the reason that the first defendant
has not given proper reasons for its non-
production during trial. Though the plaintiffs deny
another agreement, while PW1 was being cross
examined, the first defendant's counsel confronted
PW1 with a copy of the agreement in Kannada
language and PW1 did not admit it. Therefore
production of original does not serve any purpose
now.
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10. The points to be answered are on the
issues which have been held against the plaintiffs
as have been noted in the beginning.
11. On the issue of limitation, definitely the
trial court's findings are unsustainable. In Ex.P1,
the agreement of sale, no time is stipulated for
completion of contract. Even if time is fixed, the
general rule is that time is not essence of contract
with respect to the immovable property unless the
parties intended to adhere to time. Limitation
period has to be reckoned from the date of
knowledge of breach of contract. The plaintiffs
state that they came to know of breach only when
they came to know of sale of suit property in
favour of second defendant. Though an effort is
made to prove that the plaintiffs as also the first
plaintiff's husband had the knowledge of sale in
favour of defendant No.2, the questions to that
effect are mere suggestions which do not have any
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bearing. PW1 has stated that she came to know of
sale in June 2006. If this date is considered, suit
filed in the year 2008 was in time. Smt. Anandita
Srinivasan has relied on a judgment of Privy
Council in BOLO V. KOKLAN AND OTHERS 1 where
it is held that suit cannot be filed until accrual of
right asserted in the plaint or at least clear and
unequivocal threat to infringe that right by the
defendant. This principle is aptly applicable here.
12. Despite the fact that suit was not barred
by time the other side of the case i.e., delay of 13
years in instituting the suit reflects on the conduct
of the plaintiffs. The agreement came into
existence on 30.03.1995. The first plaintiff's
husband died in the year 2006. There is no
explanation as to what the first plaintiff and her
husband were doing till 2006. There is no iota of
probability in whatever that has been stated in the
M A N U / P R/ 0 0 5 4 / 1 9 3 0
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plaint for delay and latches. Then, after the death
of the first plaintiff's husband in the year 2006,
the plaintiffs appear to have kept quite. Mere
issuance of notice is of no use, the conduct of the
plaintiffs must appear to be blemishless from the
beginning. While readiness indicates one being
ready meet the material aspects, willingness is
related to mind; the surrounding circumstances
and conduct help assess one's willingness.
Balance money to be paid to first defendant being
Rs.3,25,000/-, the plaintiffs might be ready when
they instituted the suit, but were they ready with
balance within a reasonable time after the
execution of agreement matters much. It is here
the plaintiffs' fail. Therefore finding of the trial
court on the issue relating to plaintiff's readiness
and willingness cannot be said to be incorrect.
13. The next question is whether the first
defendant can be directed to refund the earnest
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money. The first defendant has made an
application under Order 41 Rule 27 CPC for
producing a sale agreement written in Kannada
language. The first defendant seeks permission to
produce it for two purposes, firstly for the purpose
of proving that sale consideration was
Rs.22,00,000/- and secondly to prove that since he
paid back Rs.12,75,000/- to the plaintiffs, the said
agreement was returned to him, and therefore
there remains nothing to be repaid.
14. The application cannot be granted. The
first purpose cannot be accepted, he might have
given some reason for non production of that
agreement written in Kannada, but while PW1 was
being cross examined, it's copy was confronted to
her and she did not admit it. Now even if original
agreement is taken on record, it serves no
purpose.
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15. So far as the second purpose is
concerned, if really the first defendant returned
Rs.12,75,000/- that he had received from the first
plaintiff's husband and for that reason the
plaintiffs returned the original agreement drafted
in Kannada language, they should have taken back
Ex.P1 also at that time. But Ex.P1 was with the
plaintiffs. There is no explanation as to why the
first defendant left Ex.P1 with the plaintiffs.
Therefore no purpose would be served even if
application is allowed.
16. Though there is no case for granting the
relief of specific performance, the earnest money
of Rs.12,75,000/- can be ordered to be refunded to
the plaintiffs. When the suit was filed, the
plaintiffs had not claimed the alternative relief of
refund of earnest money, but in the appeal plaint
was permitted to be amended for claiming refund
of the earnest money. The first defendant has
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admitted that he received Rs.12,75,000/-.
Therefore he has to repay that sum to the
plaintiffs with interest which can be fixed @ 8%.
Usually interest is ordered from the date of suit,
but the first defendant sold the suit property on
08.06.2005. It was the date of repudiating the
contract and therefore interest can be awarded
from 08.06.2005.
17. With the above discussion, appeal is
allowed in the following terms.
(i) Judgment dated 02.08.2017 in
O.S.No.286/2008 is modified,
(ii) Alternative relief of refund of
Rs.12,75,000/- is granted.
(iii) The first defendant is hereby directed
to refund Rs.12,75,000/- to the
plaintiffs with interest at the rate of
8% per annum from 08.06.2005 till
date of repayment of entire sum.
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(iv) The plaintiffs/appellants are also
entitled to costs of the suit and the
appeal.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
KMV/bvv
