Karnataka High Court

Smt.N.C.Shashikala vs Sri C.S.Chandrashekaraiah on 4 February, 2025

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF FEBRUARY, 2025

                         PRESENT

        THE HON'BLE MRS. JUSTICE ANU SIVARAMAN

                           AND

       THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

       REGULAR FIRST APPEAL NO.1358 OF 2014 (SP)

BETWEEN:

SMT. N.C. SHASHIKALA
W/O C. RAMAKRISHNAIAH
AGED 38 YEARS
R/AT. SHREE MATHRU NILAYA
DOOR No.231, II FLOOR, 6TH CROSS
1ST MAIN ROAD, SHIVANAGAR
RAJAJINAGAR
BENGALURU-560 010
                                           ...APPELLANT

(BY SRI. K.N. NITISH, ADVOCATE)

AND:

SRI. C.S. CHANDRASHEKARAIAH
S/O SIDDALINGAPPA
AGED 64 YEARS
R/AT. No.3407, SHANTHINAGAR
MUTYALAMMA TEMPLE ROAD
DODDABALLAPURA-561 203
                                          ...RESPONDENT

(BY SRI. M.V. VEDACHALA, ADVOCATE)

     THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 23.06.2014 PASSED IN
O.S.No.55/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC, DODDABALLAPURA, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE AND ETC.
                                  2




      THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON   20.01.2025  AND COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:

CORAM:      HON'BLE MRS. JUSTICE ANU SIVARAMAN
            and
            HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

                         CAV JUDGMENT

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

The defendant is before this Court, in this RFA,

assailing the legality and correctness of the judgment and

decree dated 23.06.2014 passed in O.S.No.55/2010 on the

file of Senior Civil Judge and JMFC at Doddaballapura

(hereinafter referred to as 'the trial Court' for short).

2. For the sake of convenience, the parties are

referred to as per the rankings before the trial Court.

3. Brief facts of the case are as follows:-

      The      learned      counsel      appearing       for     the

appellant/defendant         would        submit        that      the

respondent/plaintiff instituted O.S.No.55/2010 before the

Senior Civil Judge and JMFC at Doddaballapura, seeking

specific performance of an agreement to sell dated

17.05.2007 - Ex.P2. The suit properties comprising of six

items of property were owned by the appellant/defendant,

who as the absolute owner, entered into an agreement to

sell for a sale consideration of Rs.47,50,000/-. As per the

agreement, the sale deed was to be executed within 14

months. It was stated, the amount which is stated in the

plaint that the defendant had agreed to furnish additional

documents as detailed in clause 9 of the agreement within

three months and that a sum of Rs.32 Lakhs was paid to the

defendant by way of cheques on various dates towards the

part payment of the sale consideration.

4. Subsequently, on 04.03.2008, a supplementary

agreement - Ex.P3 was executed, wherein further advance

amount of Rs.9,29,000/- was paid leaving a balance of

Rs.6,21,000/-. The plaintiff alleged that despite his

readiness and willingness to perform his part of the contract,

the defendant delayed execution of the sale deed. A legal

notice issued by the plaintiff to the defendant did not yield

any result, prompting him to seek a decree for specific

performance.

5. The defendant in her written statement denied

the execution of any agreement to sell and contended that

the transaction was purely a financial arrangement and

relied on a later agreement dated 12.05.2008, wherein the

plaintiff acknowledged that the transaction was monetary in

nature and agreed that Ex.P2 would stand cancelled upon

repayment of the amount by the defendant. The defendant

alleged suppression of the material fact by the plaintiff and

sought dismissal of the suit asserting that it was not

maintainable.

6. The trial Court based on the pleadings, framed

the following issues for its consideration:-

• Whether plaintiff proves that defendant had agreed to sell the suit schedule property for valuable consideration amount of Rs.47,50,000/- and executed agreement for sale by receiving an amount of Rs.32,00,000/- advance?

• Whether plaintiff further proves that defendant had received further advance amount of Rs.9,29,000/- and executed supplementary agreement dated 04- 03-2008?

• Whether plaintiff proves that he is always ready and willing to perform his part of contract?

• Whether defendant proves that she is having money transaction with plaintiff?

• Whether plaintiff is entitled for the relief sought by him?

7. In order to substantiate their claim,

Dr.N.Rajashekar, the GPA holder of plaintiff examined

himself as PW1 on behalf of the plaintiff and got marked the

documents as Exs.P1 to P6. On the other hand, defendants

neither adduced any evidence nor produced any documents.

8. Based on the pleadings, oral and documentary

evidence, the trial Court decreed the suit with costs,

directing the defendant to execute a registered sale deed in

respect of the suit schedule property in favour of the plaintiff

upon receipt of the balance sale consideration amount of

Rs.6,21,000/-. In the event of defendant's failure to

execute the registered sale deed, the plaintiff was given

liberty to have sale deed executed through the process of

Court. Upon execution of the sale deed, the defendant shall

deliver possession of the suit schedule property to the

plaintiff, failing which, the plaintiff is entitled to recover

possession through the process of the Court.

9. It is contended by Shri. K.N. Nitish, learned

counsel appearing for the appellant/defendant that PW.1,

Shri.N.Rajashekhar, the GPA holder of the plaintiff is not a

competent witness to depose on behalf of the plaintiff as he

lacks personal knowledge of the alleged agreement. He

admitted that the plaintiff could transact independently with

the aid of hearing device and does not require assistance of

PW.1 for managing transactions. Consequently, deposition of

PW.1 is irrelevant in proving the alleged agreement. No

other witnesses to the alleged suit agreement or the scribe

of the agreement were examined, rendering the agreement

unsubstantiated. Additionally, the pleadings state that

Rs.32,00,000/- was paid on the date of the alleged

agreement (Ex.P2). However, the cheques referred to are

dated 12.02.2007, and it is stated that Rs.28,00,000/- had

been paid under an earlier agreement, which contradicts

pleadings and oral evidence. The agreement dated

12.02.2007, referred to in Ex.P2, was neither been pleaded

nor produced. Further, there is no evidence of cheque

handover or encashment, as plaintiff's account details have

not been furnished.

10. It is further contended that PW.1 admitted that

the plaintiff did not verify the defendant's title documents

before entering into an agreement. The plaintiff solely relied

on the defendant's verbal assurance which is improbable

wherein the huge amount of Rs.32,00,000/- was involved.

The agreement set 14 months period for obtaining public

documents, which seems unreasonably long and undermines

the plaintiff's contention. Moreover, there was no necessity

or explanation for entering into supplementary agreement

before completion of 14 months. PW.1 also stated that on

the date of entering into an agreement as per Ex.P2, a sum

of Rs.15,00,000/- had been paid by way of cheque and

remaining by cash.

11. It is contended that on 12.05.2008, an "Eduru

Kararu Pathra" was executed, acknowledging the transaction

as a loan. Although PW.1 was confronted with this

document, the trial Court erred by not marking it in

evidence. After issuing a notice on 10.02.2009, the plaintiff

remained silent until filing of the suit on 06.04.2010. This

delay remains unexplained, demonstrating laches on the

part of the plaintiff. Despite the defendant's inability to

appear before the trial Court due to head injury in November

2013, she was not given sufficient opportunity to present

evidence. Medical records were submitted on 18.12.2013.

Evidence was closed as NIL on 07.03.2014, ignoring her

adjournment requests on 31.05.2014 and 10.06.2014. The

trial Court is erred in considering the readiness and

willingness of the plaintiff. The trial Court drew adverse

inferences against the appellant, disregarding her health and

failing to grant her reasonable opportunities to present

evidence and arguments, which amounts to violation of

principles of natural justice.

12. It is contended that the trial Court deprived her of

a fair opportunity to defend her case. The trial Court

correctly framed issues No.1 and 2, placing the burden on

the plaintiff to prove agreements at Ex.P2 and Ex.P3, the

plaintiff failed to substantiate his claims. Neither the scribe

nor the attesting witnesses to the agreements were

examined, leaving the agreements unproved. The testimony

of PW.1, the alleged GPA holder of the plaintiff, lacked

credibility and competence. PW1 was neither a party to the

agreements at Ex.P2 and Ex.P3 nor present when they were

executed. His testimony regarding the agreements and

alleged consideration was untrustworthy and insufficient to

establish the plaintiff's claims.

13. It is contended that the plaintiff failed to

demonstrate his financial capacity to pay the consideration

amount and prove his willingness to perform his contractual

obligations. The trial Court also had failed to mark the

agreement dated 12.05.2008, which was confronted to PW.1

during his cross-examination; this impacted defendant's

ability to contest the plaintiff's claim effectively. The trial

Court unjustly drew adverse inference against the

defendant, disregarding her health condition and failing to

grant her reasonable opportunity to present evidence and

arguments.

14. In support of the contentions, the reliance was

placed in the following decisions:-

• H.M. Mahadevappa and another v. P. Lokesha by order dated 28.06.2024 passed in RSA No.139/2018(SP); and

• Rajesh Kumar v. Anand Kumar and Others in Civil Appeal No.7840/2023 dated: 17.05.2024.

15. Per contra, Shri. M.V. Vedachala, learned counsel

appearing for the respondent/plaintiff contends that on

17.04.2007, the defendant executed a registered agreement

of sale in favour of the plaintiff, agreeing to sell the suit

properties for a consideration of Rs.47,50,000/-. The

agreement was registered on 23.04.2007 as Document

No.2578/2007-08 stored in CD No.DBPD113 at the office of

the Sub-registrar, Doddaballapur. As per the terms of the

agreement, the defendant agreed to execute a registered

sale deed within 14 months from 17.04.2007 and to furnish

additional documents within three months from that date.

The plaintiff had paid a sum of Rs.32,00,000/- as an

advance through cheques. However, the defendant failed to

fulfil her obligations within the stipulated time.

16. It is contended that in March 2008, the defendant

requested further advance of Rs.9,29,000/- and sought an

extension of 12 months to perform her obligations.

Consequently, a supplementary agreement was executed on

12.05.2008 which was registered as Document

No.559/2008-09, stored in CD.No.DBPD146 at the office of

the Sub-Registrar, Doddaballapur. With this, the plaintiff had

paid a total advance of Rs.41,29,000/-. Despite this, the

defendant wilfully failed and neglected to execute the

registered sale deed as per the terms of the original and

supplementary agreement.

17. It is further contended that on 10.02.2009, the

plaintiff issued a legal notice to the defendant, urging her to

fulfil her part of obligation under the agreement. The

plaintiff was ever been ready and willing to perform his part

of the agreements since their execution. However, the

defendant has repeatedly postponed the execution of the

registered sale deed and has even threatened to alienate the

suit properties to third parties to deprive the plaintiff's

legitimate rights.

18. It is contended that the execution of the

registered agreement to sell on 17.04.2007 and the

supplementary agreement on 04.03.2008 was not

specifically denied by the appellant in her written statement.

Further, the fact that an amount of Rs.32 Lakhs had been

paid by the plaintiff as consideration towards sale of six

items of property and that a further advance amount of

Rs.9,29,000/- was paid in March, 2008 had also not been

specifically denied by the appellant. The only case of the

appellant was that the transactions were financial

transactions and that there was a separate agreement on

12.05.2008, which provided that on repayment of the

amounts barrowed the properties would be re-conveyed to

the appellant. It is submitted that though ample opportunity

had been given to the appellant she did not adduce any oral

or documentary evidence and that in the light of the stand

taken by the appellant in the written statement, the trial

Court was perfectly justified in decreeing the suit.

19. In support of the contentions, reliance was placed

on the following judgments:-

• Iswar Bhai.G.Patel @ Bachu Bhai Patel v. Harihar Behera and Another reported in AIR 1999 SC 1341; and

• P.Ramasubbamma v. V.Vijayalakshmi & Others reported in 2022 Live Law (SC) 375.

20. We have considered the contentions advanced

and also given our anxious consideration to the pleadings

and the materials on record. The questions, which arise for

consideration before us are:-

(i) Whether the findings of the Trial Court require any interference?

(ii) Whether the agreement stands proved and whether the GPA holder of the plaintiff was a competent witness to prove the agreement to which he is not a party?

(iii) Whether the appellant who was a defendant in the suit was given proper opportunity to adduce evidence?

21. We notice that the suit averments were to the

effect that the agreement for sale was executed on

17.04.2007 in respect of six items of property measuring

about 79 and a 1/2 guntas in total. The agreed sale

consideration was Rs.47,50,000/- out of which

Rs.32,00,000/- was paid as advance, the balance was

agreed to be paid when the Sale Deed was being registered.

The time for registration of Sale Deed was fixed at 14

months from the date of agreement to sell. It was

contended that on 04.03.2008, an additional amount of

Rs.9,29,000/- was paid and the time for executing the Sale

Deed stood fixed as 12 months from the said date.

Thereafter, notice was issued on 10.02.2009 and the suit

was filed on 06.04.2010. The defendant had set up a

defense that the transaction in question was a loan

transaction and the agreement was executed only as a

security for the said loan. It is submitted that a

supplementary agreement or an 'Eduru Kararu Patra' was

executed between the parties on 12.05.2008. The appellant

contends that the agreement for sale is not proved in view

of the fact that the GPA holder of the plaintiff had given

evidence as PW.1 and the plaintiff chose not to take the

stand. However, we notice from the evidence of PW.1 that

it is specifically contended that PW.1 was present at the

time of the discussions between the parties leading up to

the agreement and that though he was not a signatory to

the agreement, he was aware of the terms of the

agreement.

22. Further, the learned counsel for the appellant

would contend that the agreement itself would show that

there was an earlier agreement for sale dated 12.02.2007

which did not fructified the amount paid as consideration in

respect of that agreement was agreed to be taken as part of

advance consideration amount for the subject agreement

dated 17.04.2007. It is contended that there is no such

averments in the plaint. It is contended that though Ex.P4 -

notice was issued on 10.02.2009, the suit itself was filed

only on 06.04.2010 and there is no explanation for the delay

in approaching the Court. It is stated that since specific

performance is a discretionary remedy, even without

evidence having been adduced by the defendant, the trial

Court ought to have found that the agreement was not

proved since the plaintiff was not examined; and adverse

inference ought to have been drawn against the plaintiff. It

is further contended that though PW.1 had been confronted

with 'Eduru Kararu Patra' dated 12.05.2008, the same was

omitted to be marked by the trial Court at-least subject to

proof, in which case the said document would have been

available in the records for consideration by this Court.

23. The relevant contentions in the written statement

filed by the defendant are as follows:-

"20. Defendant states that during third week of April, 2007 she had approached the plaintiff and appraised her about the economical crises faced by her family and requested plaintiff to help her economically. The defendant has also requested plaintiff for the hand loan. Defendant states that the plaintiff has accepted to lend the money in the form of hand loan to the defendant. Defendant states that later while giving the cash amount as hand loan, plaintiff has insisted and demanded defendant to execute a document before the Sub- Registrar's office, Doddaballapur. Defendant states that on 17.04.2007, she had appeared before the Sub- Registrar's office and after going through the document, she came to know that plaintiff has prepared the document as an agreement to sell. Defendant resisted the act of the plaintiff and appraised him that she is availing the loan on the schedule properties and the

transaction is a mortgage and the document has to be executed as a mortgage only. Defendant states that plaintiff has given an evasive reply and insisted defendant to execute the agreement to sell in his name. Plaintiff has also given an undertaking to cancel the agreement to sell immediately after the payment of the cash amount. Defendant believing the words of the plaintiff has executed the agreement to sell.

21. Defendant states that plaintiff has summoned defendant on 04.03.2008 and insisted her to execute another document before the Sub-Registrar's office towards the amount availed by the defendant. Defendant believing the words of plaintiff, has gone to the Sub-Registrar's officer and on enquiry, she learnt that plaintiff has prepared a supplementary agreement asserting the agreement to sell dated 17.04.2007. Defendant resisted the act of the plaintiff. Plaintiff has given a reply alleging that the interest was calculated and the additional supplementary agreement was prepared which included the principal amount paid on 17.04.2007 and the interest accrued to it. Defendant believing the words of plaintiff, has signed the document. x x x x x."

24. We notice from a consideration of the written

statement filed on behalf of the appellant before the trial

Court that the execution and registration of the agreement

dated 17.04.2007 is not seriously disputed. The

supplementary agreement is not specifically denied. There

is also no specific denial of the fact that amounts had

changed hands between the parties. Though a contention

was raised that the transaction was a loan transaction, there

was no offer to repay the loan with interest.

25. With regard to an unregistered document, which

is styled as 'Eduru Kararu Patra', the same had been

rejected by the Court since it was an unregistered

document. The defendant had not adduced any evidence in

the case. No attempt was made to take the stand or mark

any document including the alleged agreement dated

12.05.2008.

26. The Power of Attorney holder of the plaintiff has

given evidence on behalf of the plaintiff with regard to the

agreement and the contents thereof. The agreement is a

registered agreement for sale and there is no contention

raised in the written statement that is fraudulent one or that

the execution is specifically denied. We are of the opinion

that the contentions raised by the appellant that the

agreement dated 07.04.2007 is not duly proved, cannot be

accepted. The agreement was proved by the Power of

Attorney of the plaintiff acting on his behalf. He was the

son-in-law of the plaintiff and has spoken of having personal

knowledge of the transactions between the parties. It is

also pertinent to note that there is no specific denial of the

execution of the agreement for sale and the passing of the

consideration in the written statement.

27. In the above view of the matter, we are of the

opinion that the finding of the trial Court that the agreement

stood proved cannot be found fault with. Having not denied

the execution of the agreement or the money transactions

between the parties, it was for the defendant to have

adduced evidence in support of his contentions that the

transaction was only a loan transaction even if that were to

be accepted. We also notice that there was absolutely no

offer made to repay the amount to the plaintiff. Though it is

contended in the written statement that the consideration is

totally inadequate, no evidence is on record to prove the

said aspect. The decisions relied on therefore cannot help

the appellant.

28. In the above circumstances, we are of the opinion

that the contention that the suit which was filed within the

period of limitation was hit by delay and laches also, cannot

be accepted. Further, with regard to the contention that the

defendant was denied an opportunity to adduce evidence,

we notice that PW.1 was examined on 06.08.2013.

Thereafter, the matter stood posted on several occasions for

the defendant's evidence. Thirteen adjournments appeared

to have been granted for the defendant to adduce evidence.

Even if all the contentions of the defendant with regard to

her undergoing motor vehicle accident are accepted in full, it

appears that the accident had occurred in the month of

November 2013 and the injuries mentioned would not have

presented adducing of evidence by the defendant. No

application to examine the defendant on commission has

also been made. It is also contended that the defendant's

husband was a Government Servant and was perfectly well

aware of the consequences of not adducing evidence in a

suit for specific performance.

29. Having considered the contentions advanced, we

are of the opinion that the trial Court was therefore well

justified in arriving at a conclusion that the agreements

stood proved in the light of lack of counter evidence by the

defendant. We also find that the defendant had been

provided ample opportunity to adduce evidence which was

not availed of. The reliance placed on the evidence adduced

by the plaintiff, therefore, cannot be said to be unfounded.

30. In the above factual situation, we are of the

opinion that the judgment and decree of the trial Court does

not require interference. The appeal fails and the same is

accordingly dismissed.

In the facts and circumstances of the case, there is no

order as to costs.

Sd/-

(ANU SIVARAMAN) JUDGE

Sd/-

(VIJAYKUMAR A. PATIL) JUDGE cp*