[Cites 2, Cited by 0]
Karnataka High Court
Sri K K Karthikeyan vs Smt Jayadharmarajan on 12 December, 2025
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HRRP No. 266 of 2008
C/W RFA No. 1530 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
HOUSE RENT REV. PETITION NO. 266 OF 2008
C/W
REGULAR FIRST APPEAL NO. 1530 OF 2011 (SP)
IN HRRP NO.266/2008
BETWEEN:
1. SRI K K KARTHIKEYAN
AGED ABOUT 70 YRS
S/O. KUNJIVELUM,
R/AT. KALLUPALAM HOUSE
INCHAMUDY POST,
TRICHUR DISTRICT
KERALA STATE
2. SRI K K SANTHOSH KUMAR
AGED ABOUT 46 YEARS
S/O. KARTHIKEYAN
R/O.NO.157, 1ST CROSS
4TH MAIN, INDUSTRIAL TOWN,
Digitally signed
by PRASHANTH BANGALORE - 560 044
NV
Location: High ... PETITIONERS
Court of
Karnataka
(PETN 1 & 2 - SD/-)
AND:
SMT JAYADHARMARAJAN
AGED ABOUT 50 YEARS
W/O SRI K V DHARMARAJAN
R/AT.NO.484-A, 1ST STAGE,
WEST OF CHORD ROAD,
6TH PHASE, BANGALORE-560044
... RESPONDENT
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HRRP No. 266 of 2008
C/W RFA No. 1530 of 2011
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(BY SRI. UMESHA, ADVOCATE FOR
SRI. B. JANARDHAN, ADVOCATE)
THIS HRRP IS FILED UNDER SECTION 46 OF KARNATAKA
RENT CONTROL ACT AGAINST THE ORDER DATED: 24.07.2008
PASSED IN HRC.NO.473/2006 ON THE FILE OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES, BANGALORE, ALLOWING THE PETITION
FILED U/S 27(2)(R) OF THE KR ACT AND DISMISSING THE PETITION
FILED U/S 27(2)(A)(D)(I) AND (L) OF THE KR ACT FOR EVICTION.
IN RFA NO.1530/2011
BETWEEN:
SMT. JAYADHARMARAJAN
W/O SRI. K.V. DHARAMARAJAN,
AGED ABOUT 54 YEARS,
RESIDING AT NO.484-A,
1ST STAGE, WEST OF CHORD ROAD,
BANGALORE-44. REPRESENT BY
HER SPECIAL POWER OF ATTORNEY
HOLDER SRI. K.V. DHARMARAJAN
S/O SRI K R VELAYUDHAN
AGED ABOUT 60 YEARS,
RESIDING AT NO.484-A,
1ST STAGE, WEST OF CHORD
ROAD, BANGALORE - 560 044.
... PETITIONER
(BY SRI. UMESHA, ADVOCATE FOR
SRI. B. JANARDHANA, ADVOCATE)
AND:
SRI. K K SANTHOSH KUMAR
S/O K K KAKARTHIKEYAN
AGED ABOUT 47 YEARS
RESIDING AT NO.157,
1ST CROSS, 4TH MAIN,
INDUSTRIAL TOWN
BANGALORE - 560 044
... RESPONDENT
(BY SRI. VASANTH V. FERNANDES, ADVCOATE)
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HRRP No. 266 of 2008
C/W RFA No. 1530 of 2011
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THIS RFA IS FILED U/SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED:5.8.2011 PASSED IN
O.S.NO.6580/2006 ON THE FILE OF THE 17TH ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE, (CCH 16), DECREEING THE SUIT
FOR SPECIFIC PERFORMANCE.
THESE HRRP AND RFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 27.11.2025 COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE M G UMA
CAV COMMON ORDER
The revision petitioners being the respondents in HRC
No.473/2006 on the file of the learned Chief Judge of Small
Causes at Bengaluru (hereinafter referred to as 'the Tribunal'
for short) have filed HRRP No.226/2008 seeking to set aside
the judgment and order dated 24.07.2008, passed by the Trial
Court allowing the petition directing the respondents to vacate
and put the petitioner in vacant possession of the petition
schedule premises within two months from the date of order.
2. The appellant being the defendant in
OS.No.6580/2006 on the file of the learned 17th Additional City
Civil and Sessions Court, (CCH-16) Bengaluru (hereinafter
referred to as 'the Trial Court') has preferred RFA
No.1530/2011, impugning the judgment dated 05.08.2011
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decreeing the suit for specific performance of contract directing
the defendant to vacate the schedule premises, execute the
registered sale deed in favour of the plaintiff by receiving the
balance consideration amount.
3. The schedule appended to plaint describes the
property as the piece and parcel of the property bearing site
No.157 and house list No.338/295 of Saneguruvanalli village,
Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru
boundaries on the East by property No.156, West by road,
North by house No.261 and South by road, measuring East to
West 24 feet, North to South 39 feet, with one square
A.C.sheet roofed house having electric facility.
4. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
5. It is the contention of the plaintiff that the
defendant is the owner of the suit schedule property and he
entered into an agreement to sell dated 24.12.2004 agreeing to
sell the property in favour of the plaintiff for a total
consideration of Rs.5,00,000/-. An advance of Rs.2,00,000/-
was paid by the plaintiff at the time of entering into the
agreement - Ex.P1 dated 24.12.2004 and the balance amount
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of Rs.3,00,000/- was agreed to be paid within six months from
the date of agreement. It is contended that the time was not
the essence of contract. The plaintiff was ready and willing to
perform his part of the contract by paying the balance
consideration amount and get the sale deed registered. But the
defendant had not cleared the tax payable on the schedule
property. He has also not delivered the vacant possession of
the schedule property as agreed. The plaintiff paid an additional
advance amount of Rs.50,000/- to the plaintiff on 25.03.2005.
Inspite of that, the defendant has not executed the registered
sale deed.
6. It is contended that the defendant has issued letter
dated 25.05.2006 forfeiting the advance amount and also
calling upon the plaintiff to vacate the premises by returning
the documents. The plaintiff has issued a reply on 27.05.2006
informing the defendant that the plaintiff is ready and willing to
perform his part of the contract and calling upon the defendant
to furnish the original documents and to execute the sale deed.
Defendant has issued a rejoinder as per Ex.P5 on 12.06.2006
insisting to vacate the premises and to pay the arrears of rent.
The plaintiff has issued the reply as per Ex.P6 dated
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21.07.2006 seeking execution of the sale deed. Since the
defendant has not came forward to execute the sale deed, the
plaintiff has filed the suit seeking specific performance of the
contract.
7. The defendant has appeared before the Trial Court
and filed the written statement denying the contentions taken
by the plaintiff. The defendant has admitted the execution of
the agreement to sell dated 24.12.2004. The defendant
admitted that he is the owner of the schedule property and in
his capacity as owner, executed the agreement to sell dated
24.12.2004 to sell the schedule property for total consideration
of Rs.5,00,000/-. He also admits that the plaintiff had paid the
advance amount of Rs.2,00,000/- and has agreed to pay the
balance amount of Rs.3,00,000/-, to get the sale deed
registered within six months from the date of the agreement.
All other averments made in the plaint are denied. It is denied
that the time was not the essence of contract.
8. The defendant admitted issuance of legal notice on
25.05.2006, as the plaintiff has failed to pay the balance
consideration amount and to get the sale deed registered
inspite of repeated reminders. It is also admitted that the
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plaintiff has issued the reply as per Ex.P3. The defendant has
issued the rejoinder as per Ex.P5 and again the plaintiff has
issued reply as per Ex.P6. It is contended by the defendant that
the plaintiff was never ready and willing to perform his part of
the contract by paying the balance consideration amount. The
plaintiff had approached the defendant and pleaded his inability
to pay the balance consideration amount of Rs.2,50,000/-. It is
also contended that the plaintiff had verified the documents of
title of defendants before entering into agreement for sell. After
long lapse of time, the plaintiff has contended that he is ready
and willing to perform his part of contract taking into
consideration, there is raise in the price of the immovable
property in and around Bengaluru.
9. It is contended by the defendant that the plaintiff is
in possession and enjoyment of the schedule property as tenant
since 1981 and is carrying on his business therein. Pursuant to
entering into the agreement for sell i.e., since 24.12.2004, the
plaintiff never paid the rent as agreed. Therefore, the
defendant has filed HRC No.473/2006 before the Small Cause
Court, Bengaluru. Accordingly, the defendant prayed for
dismissal of the suit.
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10. On the basis of these pleadings, following issues
came to be framed by the Trial Court:
1. Whether the plaintiff proves that he was
ready and willing to perform his part of
contract?
2. Whether the defendant proves the time was
essence of contract?
3. Whether the plaintiff is entitled for the relief
of specific performance of contract U.s.20 of
the Specific Relief Act?
4. What order or decree?
11. Plaintiff examined himself as PW1 and got marked
Exs.P1 to P9 in support of his contention. The defendant
examined her husband as General Power of Attorney holder
DW1 and got marked Exs.D1 to D4 in support of his defence.
The Trial Court after taking into consideration all these
materials on record, decreed the suit. Being aggrieved by the
same, the defendant has preferred RFA No.1530/2011.
12. The defendant in OS.No.6580/2006 being the owner of
the schedule property filed HRC No.473/2006 against the
plaintiff seeking eviction. Similar contentions were raised by
both the parties in HRC. The plaintiff has examined himself as
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PW1 and got marked Exs.P1 to P7 in support of his contention.
Respondent examined his son as RW1 and got marked Ex.R1 to
R43 in support of his defence. The Tribunal after taking into
consideration all these materials on record, allowed HRC
No.473/2006 and directed the respondent - tenant to vacate
the premises. Being aggrieved by the same, HRRP
No.266/2008 is filed.
11. The owner of the property being defendant in
OS.No.6580/2006 is the appellant in RFA No.1530/2011 and
respondent in HRRP No.266/2008. The plaintiff in
OS.6580/2006 is the petitioner in HRRP 266/2008 and
respondent in RFA No.1530/2011.
12. Heard Sri Umesha, learned counsel Sri B
Janardhana, learned counsel for the appellants in RFA
No.1530/2011 and for the respondent in HRRP No.266/2008
and Sri Vasanth V Fernandes, learned counsel for the
respondent in RFA No.1530/2011. Learned counsel
representing the respondent in RFA.1530/2011 specifically
stated that he was not instructed to represent the revision
petitioners in HRRP.No.266/2008 and he is not addressing the
arguments in the same. Hence, the arguments of revision
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petitioners in HRRP.No.266/2008 is taken as NIL. Perused the
materials including the Trial Court records.
13. Learned counsel for the appellant in RFA
No.1530/2011 contended that admittedly, the appellant is the
owner of the schedule property, which consists of godown and
factory with AC sheet, measuring 24/39 feet. The respondent
was the tenant in respect of the same and was paying the rent.
On 24.12.2004, plaintiff and defendant entered into an
agreement to sell as per Ex.P1. The appellant agreed to sell the
same in favour of the plaintiff for a sum of Rs.5,00,000/- at the
time of executing the sale deed, an advance of Rs.2,00,000/-
was paid by the plaintiff. It was agreed between the parties
that within six months, the plaintiff shall pay the balance
consideration amount and get registered the sale deed. On
25.03.2005, the plaintiff paid additional advance of Rs.50,000/-
. Inspite of repeated reminders, plaintiff was not ready and
willing to pay the balance consideration of Rs.2,00,000/- and to
get the sale deed registered.
14. It is contended that, the defendant has issued legal
notice as per Ex.P2 on 25.05.2006 canceling the agreement to
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sell and calling upon the plaintiff to handover the vacant
possession of the schedule property and to pay the rent.
Plaintiff issued the reply as per Ex.P3 on 27.05.2006 pleading
that she is ready and willing to pay the balance amount and to
get the sale deed registered. But however, balance amount was
never paid. Therefore, defendant has issued the rejoinder as
per Ex.P5 on 12.06.2006 insisting for vacating the premises
and pay the arrears of rent. Plaintiff again sent another reply as
per Ex.P6 on 21.07.2006 seeking execution of the sale deed.
However, till date, balance consideration amount was never
paid by the plaintiff. Readiness and willingness on the part of
the plaintiff was not proved. Under such circumstances, the
Trial Court has committed an error in decreeing the suit for
specific performance of the contract.
15. Learned counsel also submitted that the appellant
had filed HRC No.473/2006 seeking eviction of respondent
herein. The said HRC was allowed directing the respondent to
vacate the premises and handover the possession. The
respondent has preferred HRRP No.266/2008 before this Court
without any basis. When the plaintiff has not proved readiness
and willingness to perform his part of contract, the Trial Court
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committed an error in decreeing the suit. Hence, he prays for
allowing the RFA and dismissing HRRP in the interest of justice.
16. Per contra, learned counsel for the respondent in
RFA No.1530/2011, opposing the appeal submitted that
agreement to sell is dated 24.12.2004. As per the terms of
agreement, the sale deed is required to be executed within six
months and at the time of registration, the balance
consideration amount of Rs.3,00,000/- was required to be paid.
The defendant being the owner is required to hand over vacant
possession of the schedule property in favour of the plaintiff by
clearing all the dues in respect of the same, he is required to
hand over the original documents to the plaintiff. Therefore, the
defendant was required to make sure that the schedule
property is vacant and ready to hand over the possession in
favour of the plaintiff, he is required to pay the taxes and keep
the original documents ready. It is not the contention of the
defendant that he was ready to comply with all these
conditions. A portion of the schedule property was in the
possession of a tenant and no steps were taken to evict him.
Moreover, the tax in respect of the property was also not
cleared and the original documents were not handed over to
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the plaintiff. Under such circumstances, it cannot be said that
the defendant was ready and willing to perform his part of the
contract.
17. Learned counsel contended that the plaintiff has
made it very clear that he was having cash of Rs.3,00,000/-
with him and he is ready to pay the same. He has replied to the
notice that was issued by the defendant calling upon him to fix
a date for execution of the sale deed. In-spite of that, no such
date was fixed. Therefore, it is to be held that even though the
plaintiff was ready and willing to perform his part of contract,
the defendant himself was not ready to execute the sale deed
by complying with the conditions mentioned in Ex.P1.
18. Learned counsel contended that even though it is
stated that the sale deed is to be executed within six months
by accepting the balance consideration amount, the time was
not the essence of the contract. Ex.P1 is dated 24.12.2004. The
marriage of the daughter of the plaintiff was held in the month
of January, 2005. During March, 2005, defendant demanded for
additional advance amount and received Rs.50,000/-.
Therefore, the contention of the defendant that he had agreed
to sell the schedule property in favour of the plaintiff only to
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arrange funds for the marriage of his daughter cannot be
accepted. When the marriage of the daughter of the plaintiff
was already performed during January, 2005, it cannot be said
that the time was essence of the contract.
19. Learned counsel contended that when the plaintiff
categorically stated that he was ready with the balance
consideration amount to be paid to the defendant, it is
sufficient to accept the readiness and willingness on his part. It
is not the requirement of law that the plaintiff should deposit
the said amount before the Court nor he is required to tender
such amount to the defendant unless he is ready to execute the
sale deed as agreed. He further submitted that the plaintiff
need not have to produce the passbook or any other
documents unless called upon by the defendant. Learned
counsel places reliance on the decision of the Hon'ble Apex
Court in Basavaraj Vs. Padmavathi and Anr.1, in support of
his contention. Under such circumstances, the defendant has
failed to establish his defence as taken in the written
statement. The materials on record clearly discloses that the
defendant was at fault and he never came up to execute the
1
2023 LiveLaw (SC) 17
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sale deed by complying with the conditions mentioned in Ex.P1.
Under such circumstances, the plaintiff is entitled for the
decree. The Trial Court rightly decreed the suit of the plaintiff
and there are no reasons to interfere with the same. Hence, he
prays for dismissal of the appeal.
20. In view of the rival contentions urged by the
learned counsel for both the parties, the points that would arise
for my consideration are:
"i) Whether the petitioners in HRRP.No.266/2008
has made out any grounds to set aside the judgment
and decree dated 24.07.2008 passed in
HRC.No.473/2006?
ii) Whether the appellant in RFA.No.1530/2011
has made out any grounds to allow the appeal?"
My answer to the above point No.1 in the 'Negative' and
point No.2 in the 'Affirmative' for the following:
REASONS
21. It is pertinent to note that the respondent in
HRRP.No.266/2008 and the appellant in RFA.No.1530/2011 are
one and the same. The petitioner in HRC.No.473/2006 had filed
the petition under Section 27(a)(d)(i) and (r) of Karnataka Rent
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Act (for short, 'the K.R. Act'), much is said about arrears of rent
on the part of the tenant for invoking Section 27(2)(a) of K.R.
Act. It is specifically contended that since February, 2005 till
May, 2006, the rents were not paid by the tenant and therefore
he is liable to be evicted under Section 27(2)(a) of K.R. Act. It
is also contended that the petitioner requires the schedule
property for expanding her business as the same is very
convenient to her and therefore the respondent is liable to be
evicted under Section 27(2)(r) of KR Act.
22. The respondent even though contested the matter,
admitted the jural relationship of 'landlord' and 'tenant', denied
that the respondent is in arrears of any rent and also denied
the requirement of the schedule property by the petitioner for
expansion of the business.
23. PW.1 is the husband of the petitioner and he is the
Power of Attorney Holder. A technical defence was raised
before the Tribunal that no notice as required under Section
27(2)(a) of K.R. Act was issued calling upon the tenant to
deposit the arrears of rent. This fact was not in serious dispute
as that the petitioner had never issued such a notice calling
upon the tenant to pay the arrears of rent. Under such
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circumstances, the Tribunal had not granted the relief of
evicting the tenant under Section 27(2)(a) of K.R. Act.
However, with regard to the requirement of the petitioner to
get the vacant possession of the schedule property to expand
the business, it is spoken to by PW.1. It is stated that the
petitioner is running the business under the name and style as
"M/s Perfect Industries and Products" and she wanted to
expand the industry. PW.1 speaking for the petitioner
specifically stated that, initially the said industry was being run
in Tavarekere and later it was shifted to Sunkadakatte since the
premises in Tavarekere was sold. It is also stated that the
industry that is being run in Sunkadakatte is a rented premises.
Respondent No.2 who is examined as RW.1 during cross-
examination, categorically admits that the petitioner is running
the industry under the name and style as "M/s Perfect
Industries and Products". The evidence of PW.1 that industry at
Sunkadakatte is being run in a rented premises is not disputed.
When the petitioner owns a premises of her own, she cannot be
compelled to run her industry in a rented premises. Therefore, I
am of the opinion that the petitioner is entitled for eviction of
the respondent under Section 27(2)(a)(r) of KR Act.
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24. I have gone through the impugned order passed by
the Tribunal allowing the petition under Section 27(2)(r) of the
K.R. Act. I do not find any illegality or perversity in the said
order. Hence, the same is liable to be confirmed by dismissing
the rent revision petition. Accordingly, I answer point No.1 in
the 'negative'.
25. The defendant in O.S.No.6580/2006 being the
owner of the premises is impugning the judgment and decree
passed by the Trial Court decreeing the suit of the plaintiff for
specific performance of contract and directing him to execute
the sale deed within four months and to hand over the vacant
possession of the schedule property. The relationship of the
parties that the appellant being the owner and the respondent
being the tenant is not in dispute. HRC.No.473/2006 filed by
the owner against the tenant was allowed and the tenant was
ordered to be evicted under Section 27(2)(r) of the K.R. Act. In
the meantime, the tenant has filed the suit for specific
performance of contract based on the agreement to sell dated
24.12.2004.
26. Ex.P1 is the agreement to sell and execution of this
document is not in dispute. As per the terms of Ex.P1, the
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defendant has agreed to sell the schedule property in favour of
the plaintiff for a total consideration of Rs.5,00,000/-, out of
which, Rs.2,00,000/- was paid in advance on the date of
agreement. The balance amount was agreed to be paid within
six months. The registration charges and stamp duty was
agreed to be borne by the buyer i.e. the plaintiff. The
defendant undertook to sell the property free from all
encumbrance and put the buyer in vacant possession of the
premises. The defendant agreed to clear all the dues including
the taxes before registration of the sale deed. It was agreed
between the parties that if the buyer i.e. the plaintiff does not
complete the sale transaction within the stipulated period, the
advance paid is to be forfeited by the defendant.
27. It is the contention of the plaintiff that defendant
was not ready and willing to perform his part of the contract.
But Ex.P2 is the notice dated 25.05.2006 issued by the
defendant addressed to the plaintiff, highlighting that as per
the terms of agreement, the plaintiff was not ready to perform
the contract. On the other hand, he expressed inability of the
plaintiff to meet the terms of agreement. Therefore, called
upon him to return the original and copies of the documents
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and vacate the premises. It is only thereafter on 27.05.2006,
the plaintiff has issued the notice as per Ex.P3, expressing his
readiness to pay the outstanding amount as agreed, requesting
to arrange for original documents and give a date for
registration. Ex.P5 is the notice sent on behalf of the defendant
highlighting that Rs.2,00,000/- is due from the plaintiff since
the plaintiff was not ready and willing to pay the said amount,
the advance amount was forfeited and the agreement is
cancelled. Hence, the plaintiff was again called upon to vacate
the premises. It is also highlighted in the said reply that there
is arrears of rent since from December, 2004 and called upon
the plaintiff to pay the same. There is one more reply by the
plaintiff as per Ex.P6.
28. In view of the above, there is no dispute about
execution of the agreement as per Ex.P1, payment of advance
amount of Rs.2,00,000/- at the time of executing Ex.P1 and
Rs.50,000/- at a later date. It is also admitted that a sum of
Rs.2,50,000/- is due to be paid under the agreement by the
plaintiff and the defendant is required to execute the sale deed
by accepting the balance consideration amount.
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29. It is contended by the learned counsel for the
plaintiff that a portion of the schedule property was in the
possession of the plaintiff, but a small portion was in the
possession of another tenant. But it is the specific contention of
the defendant that at the time of execution of the agreement
and also at the time of filing the suit, it was only the plaintiff
who was in possession of portion of premises and no tenant
was in occupation of the same. Under such circumstances,
there is no question of taking any steps by the defendant to
hand over the entire possession to the plaintiff. Regarding
payment of tax, it is not the contention of the plaintiff that the
defendant was not in a position to clear off any dues, if any.
Regarding handing over the original documents, it could only be
at the time of execution of the sale deed, but not in advance.
Therefore, virtually the defendant was not required to comply
with any conditions, which may take sometime for him. On the
other hand, the plaintiff is required to pay Rs.2,50,000/- to the
defendant, keep the draft sale deed ready and call upon the
defendant to execute the sale deed.
30. The materials placed before the Court disclose that
the plaintiff states that he was having cash with him in his
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house. Under such circumstances, there is no question of
calling upon to produce the passbook as tried to be contended
by the learned counsel for the plaintiff by relying on the
decision in Basavaraj (supra). It is pertinent to note that
during the cross-examination of PW.1, he categorically stated
that he was not having sufficient cash with him. His father has
paid Rs.1,50,000/- and his brother who is at abroad paid
Rs.1,00,000/-. There is no such pleading to that effect nor
there is any material to substantiate the same. During 2006,
keeping an amount Rs.2,50,000/- in the house is something
unusual. There is no reason for the plaintiff to keep the said
amount in cash without offering to pay to the defendant and
calling upon him to execute the sale deed. When it is the
contention of the plaintiff that his father and brother have paid
the amount to enable him to pay the balance consideration
amount, he could have examined anyone of them. Even after
the decree of the suit by the Trial Court, the plaintiff never
deposited the said amount till today before the Court to prove
his bonafide and to show his readiness and willingness to
perform his part of contract.
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31. I am not satisfied with the contention taken by the
plaintiff that he was ready to perform his part of the contract.
Admittedly, he has not made any efforts to get the draft sale
deed to be approved by the defendant for finalizing the sale
deed. The bonafides on the part of plaintiff regarding his
readiness and willingness to pay the balance consideration
amount is also not proved.
32. In this regard, the Hon'ble Apex Court in
U.N.Krishnamurthy (since deceased) Thr. LR's V/s A.M.
Krishnamurthy2, while rejecting the prayer for specific
performance, held that, it is the bounden duty of the plaintiff to
prove his readiness and willingness by adducing evidence. This
crucial facet has to be determined by considering all
circumstances including availability of funds and mere
statement or averment in plaint of readiness and willingness
would not suffice. Under such circumstances, the plaintiff is not
entitled for the relief of specific performance of contract.
Moreover, prejudice would be caused to the defendant if he is
directed to execute the sale deed in favour of the plaintiff for a
paltry sum agreed under Ex.P1 during 2004, when admittedly,
2
2022 Livelaw (SC) 588
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now the property fetches huge sum of money, even if not more
than a crore, as contended by the learned counsel for the
defendant.
33. The schedule property, which is the subject matter
of Ex.P1, is situated at Saneguruvanahalli of Yeshwanthpura
Hobli which is now in the prime locality of Bengaluru City.
During 2004, the property was agreed to be sold for
Rs.5,00,000/-. Learned counsel for the defendant contends
that, today the value of the schedule property is more than a
Crore.
34. There is huge escalation in the value of the property
in and around Bengaluru and the same cannot be denied. The
reality arising from such drastic economic changes cannot be
ignored in deciding cases relating to specific performance.
Thus, steep increase in prices is a circumstance which will make
it completely inequitable to grant the relief of specific
performance, especially in cases where the purchaser does not
take steps to complete the same within the agreed period, and
the vendor has not been responsible for any delay or non-
performance. Thereby, it must be noted that the principle of
time not being the essence of contract relating to immovable
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properties took shape in an era when market values of
immovable properties were stable and did not undergo drastic
changes over few years. However, inflation has skyrocketed by
leaps and bounds in the recent past and we have now arrived
in an era where the property prices are no longer stable. I
have to take judicial notice of this phenomenon. Under such
circumstances, it is not just and proper to direct the defendant
to execute the sale deed by receiving the balance consideration
amount after this length of time.
35. It is settled position of law that even if the plaintiff
proves his readiness and willingness to perform his part of the
contract, the discretion lies with the Court either to grant the
relief of specific performance or to deny the same based on the
conduct of the parties to uphold fairness and equity. This
discretion is to be exercised judiciously. Considering the facts
and circumstances of the case, I am of the opinion that
exercise of such judicial discretion would lean in favour of the
defendant being the owner of the property, rather in favour of
the plaintiff who is only a tenant and the agreement holder as
per Ex.P1. In the absence of clinching proof regarding the
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readiness of the plaintiff to perform the terms of the
agreement-Ex.P1, the plaintiff is not entitled for such relief.
36. I have gone through the impugned judgment
passed by the Trial Court. The Trial Court has ignored all these
facts and circumstances and placed reliance only on the terms
of Ex.P1 which is an admitted document and proceeded to
decree the suit. It has not taken into consideration the fact that
the plaintiff has failed to prove his readiness and willingness in
performing his part of the contract by paying the advance
amount. If at all, the plaintiff was ready with the cash as
contended by him to be paid as the balance consideration
amount, definitely he would have issued notice calling upon the
defendant to execute the sale deed. In view of all these facts
and circumstances, I am of the opinion that, the Trial Court has
committed an error in decreeing the suit of the plaintiff. Hence,
the same calls for interference by this Court. Accordingly, I
answer point No.2 in the 'affirmative' and proceed to pass the
following:
ORDER
i) HRRP No.266/2008 is dismissed with costs.
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ii) RFA No.1530/2011 is allowed with costs.
iii) The judgment and decree dated 05.08.2011 passed in
OS.No.6580/2006 by the learned 17th Additional City Civil and
Sessions Court, (CCH-16) Bengaluru is set aside.
iv) Consequently, the suit of the plaintiff in
OS.No.6580/2006 is dismissed.
SD/-
(M.G. UMA)
JUDGE
MKM/BH
List No.: 1 Sl No.: 11
