Karnataka High Court
M/S Ballal Motor Fuel And vs Sri. G Anantha Rao on 21 February, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
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RFA No. 1373 of 2009
C/W RFA No. 1634 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1373 OF 2009 (SP)
C/W
REGULAR FIRST APPEAL NO. 1634 OF 2023
IN RFA No. 1373/2009
BETWEEN:
1. M/S BALLAL MOTOR FUEL AND
SERVICE STATION
KANKANADY, MANGALORE
REPRESENTED BY ITS PARTNERS
1. SRI. K. RAJAVARMA BALLAL
S/O LATE SRI. PANDYARAJA BALLAL
Digitally signed
by SHAKAMBARI AGED 62 YEARS
Location: HIGH RESIDING AT "JAYARAJ BAREBAIL"
COURT OF KUNTIKANA, MANGALORE TALUK
KARNATAKA
D.K.-575 001
2. SMT. K. VIJAYALAXMI ARIGA
D/O LATE PANDYARAJA BALLAL
W/O DR. P.N. ARIGA
AGED 79 YEARS
RESIDING AT VIJAYA MAHAL
KADRI, MANGALROE TALUK
D.K.-575 001
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RFA No. 1373 of 2009
C/W RFA No. 1634 of 2023
3. SMT. K. HEMALATHA BALLAL
D/O LATE SRI. PANDYARAJA BALLAL
W/O SRI. VRASHABHARAJA CHOWTA
AGED 67 YEARS
RESIDING AT DEVAKI SADAN
NEW BALMATTA ROAD
MANGALORE TALUK
D.K-575 001
4. SMT. SUMATHI R BALLAL
W/O DR. K. RATHNARAJ BALLAL
AGED 68 YEARS
RESIDING AT KELLAGUTHU HOUSE
SHIVABAGH, KADRI
MANGALORE TALUK
D.K-575 001
5. SMT. VINAYA J BALLAL
W/O SRI. JAYAVARMA BALLAL
AGED 62 YEARS
RESIDING AT JAYAMAHAL, LADY HILL
MANGALORE TALUK
D.K-575 001
6. SMT. M. VANAMALA BALLAL
W/O LATE SRI. K. MANIKYARAJA BALLAL
AGED 65 YEARS
RESIDING AT "SABARABAIL"
SHIVABAGH, KADRI
MANGALORE TALUK
D.K-575 001
...APPELLANTS
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)
AND:
1. SRI. G. ANANTHA RAO
S/O SRI. G. SOMASHEKARA RAO
AGED ABOUT 76 YEARS
RESIDING AT "RAVIKIRAN"
KADRI, MANGALORE TALUK
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RFA No. 1373 of 2009
C/W RFA No. 1634 of 2023
D.K-575 001
SINCE DECEASED BY LRs
1(A). SMT. VASANTHI A. RAO
W/O LARE G. ANANTHA RAO
AGED ABOUT 65 YEARS
1(B). MR. RAVINDRA GOLLARAKERI
AGED 42 YEARS
1(C). MR. RAJEEV GOLLARAKERI
AGED 39 YEARS
R1(B) AND R1(C) ARE THE SON OF
LATE G. ANANTHA RAO
R1(A) TO R1(C) ARE RESIDING AT
"RAVIKIRAN"
KADRI, KAMBLA ROAD
MANGALORE TALUKD.K-575 004
...RESPONDENTS
(BY SRI. AJITH KALYAN, ADVOCATE FOR R1[A-C])
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 31.08.2009 PASSED IN
OS.NO.166/2006 ON THE FILE OF THE II ADDL. CIVIL JUDGE,
(SR. DN.), MANGALORE, D.K, DISMISSING THE SUIT FOR
SPECIFIC PERFORMANCE.
IN RFA NO. 1634/2023
BETWEEN:
1. M/S BALLAL MOTOR FUELS AND SERVICE STATION
KANKANADY, MANGALORE,
REPRESENTED BY ITS PARTNERS.
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RFA No. 1373 of 2009
C/W RFA No. 1634 of 2023
2. MRS. VANAMALA M. BALLAL,
W/O. LATE SRI K.M BALLAL,
AGED ABOUT: 60 YEARS,
R/AT SABARBAIL, KADRI,
SHIVABAGH, MANGALORE, D.K.
3. MRS. SHARMILA BALLAL,
D/O. LATE SRI K M BALLAL,
AGED ABOUT: 40 YEARS,
R/AT SABARBAIL, KADRI,
SHIVABAGH, MANGALORE, D.K.
4. MR.K. GAUTHAM BALLA
S/O.LATE. SRI. K.M.BALLAL,
AGED ABOUT: 39 YEARS,
R/AT SABARBAIL, KADR,
SHIVABAGH, MANGALORE, D.K.
5. MR.K. RAJAVARMA BALLAL
AGED ABOUT 62 YEARS,
S/O. LATE K PANDYARAJA BALLAL,
R/AT JAYARAJ, BAREBAIL,
KUNTIKANE, MANGALORE, D.K.
6. MRS. K. VIJAYALAXMI ARIGA
AGED: 79 YEARS,
W/O DR.P.N. ARIGA,
R/AT VIJAYA MANAL, KADRI,
MANGALURU TALUK, D.K.
7. MRS. HEMALATHA BALLAL
AGED: 67 YEARS,
D/O LATE K. PANDYARAJA BALLAL,
R/AT DEVAKI SADAN, BALMATTA ROAD,
MANGALORE TALUK, D.K.
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RFA No. 1373 of 2009
C/W RFA No. 1634 of 2023
8. MRS. SUMATHI R. BALLAL
AGED ABOUT 58 YEARS,
W/O DR.K. RATHNARAJA BALLAL,
R/AT KELLAGUTHU HOUSE,
SHIVABAGH, KADRI, MANGALURU TALUK, D K.
9. MRS. VINAYA J. BALLAL
AGED ABOUT: 53 YEARS,
W/O. JAYAVARMARAJ BALLAL,
R/AT JAYA MAHAL, LADY HILL,
MANGALORE, D.K.
...APPELLANTS
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)
AND:
1. MR.G. ANANTHA RAO
S/O SRI. G. SOMASHEKAR RAO,
AGED ABOUT 70 YEARS,
R/AT RAVI KIRAN, KADRI, MANGALORE, D.K.
REPRESENTED BY HIS ATTORNEY SRI. G. RAJEEV
GOLLARKERI,
S/O. G. ANANTHA RAO,
AGED ABOUT: 35 YEARS,
R/AT RAVI KIRAN, KADRI,
MANGALORE, D.K.
...RESPONDENT
(BY SRI. AJITH KALYAN, ADVOCATE)
THIS RFA HAVING BEEN ARSIEN OUT OF RA
NO.105/2009 PASSED BY III ADDITIONAL DISTRICT
JUDGE, MANGALROE PREFERRED AGAINST JUDGMENT AND
DECREE OS NO.166/2006 IS REGISTERED AS RFA
N0.1634/2023 BY ORDER DATED 03.08.2023 AND AFTER
HAVING BEEN WITHDRAWN FROM THE COURT BELOW.
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RFA No. 1373 of 2009
C/W RFA No. 1634 of 2023
THESE REGULAR FIRST APPEALS HAVING BEEN
RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT
OF THIS DAY, RAMACHANDRA D. HUDDAR J.,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
These two appeals are directed against the common
judgment passed in two suits i.e., O.S.No.166/2006 and
O.S.No.195/2007 dated 31.08.2009 passed by the II
Additional Civil Judge (Jr.Dn.), Mangalore, Dakshina
Kannada. Initially RFA.No.1373/2009 was filed by the
appellants and being aggrieved by the said common
judgment, RA.No.105/2009 was filed by the appellant
therein before the III Additional District and Session
Judge, Mangalore. There was an order passed in
C.P.No.64/2003 by this Court dated 15.09.2014
withdrawing said R.A.No.105/2009 from the file of III
Additional District Judge, Mangalore and transferred to this
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Court. Though there was an order so passed but, no steps
were taken to withdraw the said appeal and subsequently
as per the orders passed by this Court dated 03.08.2023,
the said R.A.No.105/2009 was withdrawn and transferred
to this Court and renumbered as RFA No.1634/2023 and
connected with this Appeal i.e., RFA No.1373/2009. As
both these appeals are directed against the common
judgment passed in the aforesaid suits, common
arguments are heard and common judgment is passed.
2. Plaintiffs in O.S.No.166/2006 filed their suit
against the defendant who is plaintiff in OS No.195/2007
seeking the relief of the specific enforcement of the
agreement of sale in between themselves and defendant,
directing them to execute the registered sale deed in
respect of plaint schedule property by receiving the
balance consideration of Rs.24,72,720/- with an
alternative prayer to refund the advance amount of
Rs.15,00,000/- paid by the plaintiffs to the defendants
together with the interest at the rate of 15% per annum
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with damages and costs. Whereas, defendant in
O.S.No.166/2006 being the plaintiff in O.S.No.195/2007
filed the suit seeking the relief of possession, mesne
profits etc., against the plaintiffs in O.S.No.195/2007. The
plaintiffs in O.S.No.166/2006 are the defendants in
O.S.No.195/2007 and vice-versa. As parties to both the
suits are one and the same, as O.S.No.166/2006 is a
comprehensive suit for specific performance of the
contract between the same parties, parties to these
appeals are referred to as per the rank in
O.S.No.166/2006 to avoid any confusion.
3. That the plaintiffs in the aforesaid
O.S.No.166/2006 state that, it is a partnership firm having
its registered office at Kankanadi, dealing in fuel business.
The plaintiff firm was a tenant in respect of the immovable
property i.e., more fully described in the plaint having
obtained from one Sri G.Somashekhar Rao under
registered term lease dated 14.06.1972 for a period of 20
years which expired on 30.04.1992. The said lease was
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further renewed for a period of five years after expiry of
the initial 20 years period with mutual understanding of
the plaintiff-firm with a defendant.
4. It is specifically alleged by the plaintiffs that,
the defendant proposed to sell the suit schedule property
to the plaintiff for a valuable consideration of
Rs.39,73,750/- at the rate of Rs.85,000/- per cent.
Plaintiff firm accepted the offer and made an advance
payment of Rs.15,00,000/- in part performance of the
contract by issuing a cheque dated 05.02.2001 drawn on
Syndicate Bank, Hampanakatta Branch, Mangalore. There
was a stipulation of condition that, on defendant getting
conversion of the property under the provisions of Section
95 of the Karnataka Land Revenue Act, the sale deed
would be executed in respect of the schedule property and
the plaintiffs have to bear the cost of conveyance. Even
the defendant agreed to get the clearance from the
Income Tax Department. To that effect, a sale agreement
was entered into between the parties on 05.02.2001.
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Thus, on the date of agreement of sale, plaintiff remained
in possession of the schedule property by virtue of the said
agreement of sale and not as a lessee under the
defendant. As the plaintiff remained in the schedule
property as intending purchaser, no rent was paid to the
defendant. As per the agreement of sale, plaintiff put
enclosures and began to use the same as a garage for the
vehicles. He also carried out necessary leveling, alteration
and filling up of the lands and also made several
arrangements for the purpose of erection of petrol pump.
5. It is the specific assertion and stand of the
plaintiff-firm that, it was always ready and willing to
perform its part of the contract by paying the balance
amount and also meet the expenses of conveyance.
Though the plaintiff-firm repeatedly through its partners
requested the defendant to get the clearance from the
Income Tax Department and seek a conversion as agreed,
but, defendant did not respond properly. Defendant went
on promising to comply the terms of the agreement. The
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plaintiff-firm remained in possession with a hope that, the
defendants would comply the terms and conditions of the
sale agreement. But, to the utter surprise of the plaintiff
firm, defendant issued a quit notice dated 08.08.2003
terminating the tenancy and filed a suit in
O.S.No.644/2003 on the file Additional Civil Judge (Jr.
Dn), Mangalore, claiming possession and mesne profits
based on landlord-tenancy relationship though the said
jural relationship stood expired on the date of agreement
of sale.
6. It is alleged that, the plaintiff in the suit filed by
defendants i.e. OS 195/2007 filed written statement by
put-forthing the pleadings with regard to the protection
under Section 53-A of the Transfer of Properties Act. As
the said suit was filed before the Court which had no
pecuniary jurisdiction, the said suit was withdrawn from
the said Court and transferred to the Court where this
original suit filed by the plaintiff- firm was pending and
renumbered. It is stated that even till date the plaintiff-
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firm is ever ready and willing to perform their part of the
contract. To the notice issued by the defendants, plaintiff
issued a reply dated 17.09.2003 and called upon the
defendants to execute the sale deed. But, defendant did
not execute the sale deed. Therefore, the plaintiff-firm
filed suit as stated above seeking the relief of the specific
performance of the contract.
7. Pursuant to the suit summons, defendant
appeared and filed written statement admitting the
contentions with regard to the lease so renewed on
30.04.1992, so also, admitted about execution of the
agreement of sale in favour of plaintiff to sell the
scheduled property for a valuable consideration of
Rs.39,75,750/-. Admitted that plaintiff-firm in part
performance of the contract, has paid Rs.15,00,000/-. It
is contended by the defendant that he got the suit
schedule property converted from the Revenue Authorities
dated 21.01.2002 and 15.02.2002. The said order was
passed by the Tahasildar, Mangaluru. The said fact was
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informed by the defendant to plaintiff-firm. The defendant
is the title holder of the schedule property. As the plaintiff
did not come forward to get the sale deed executed,
defendant issued the quit notice to the plaintiff-firm calling
upon it to vacate and surrender the schedule property. Till
filing of a suit in O.S.No.644/2003, the partners of the
plaintiff-firm have not issued any reply to the quit notice.
It is contended that, as the defendant has already
obtained the conversion order and informed the plaintiff, it
is plaintiff firm which is guilty of committing the breech of
the contract. The plaintiff firm was neither ready nor
willing to perform its part of the contract by paying the
balance consideration and get the sale deed executed.
Under the agreement of sale, the time stipulated was one
year to get the sale deed executed which was expired on
05.02.2002 itself. Till filing of a suit in O.S.No.644/2003,
the plaintiffs did not come forward to get the sale deed
executed. Thus, the reply given by the plaintiff-firm itself
shows the pathetic approach of the plaintiff-firm and it is
guilty of breach of agreement. It is contended that in view
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of non - performance of its part of the contract by the
plaintiff-firm, whatever the advance paid shall have to be
adjusted towards the damages, so also, the arrears of
rent. The claim of the plaintiff-firm to grant the relief of
the specific performance is barred by law of limitation. As
the performance of the agreement in a stipulated period
expired on 05.02.2002, Section 55 of the Indian Limitation
Act comes into operation. Thus, it is contended that
absolutely the plaintiff-firm cannot claim any relief much
less claimed in the plaint. Hence, it is prayed by the
defendant in the said suit, to dismiss the suit of the
plaintiff-firm.
8. As per the plaint averments in
O.S.No.195/2007, it was filed by the plaintiff therein i.e.,
defendant in the earlier suit seeking the relief of recovery
of the possession of the plaint schedule property together
with mesne profits on the ground that, originally the
schedule property was belonging to one Late. G.
Somashekar Rao, i.e. the deceased father of the plaintiff.
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The schedule property was granted on lease to this firm
being the first defendant represented by its Managing
Partner i.e., defendant No.2 as per the lease deed dated
14.06.1972. The contents of written statement in earlier
suit are the plaint averment in O.S.No.195/2007 with
regard to the lease, then entering into agreement of sale,
renewal of the lease etc. It is contended that, though the
plaintiff-firm in the suit agreed to sell the schedule
property at the rate of Rs.85,000/- per cent subject to
terms and conditions of the agreement of sale, but, the
plaintiff firm did not come forward to get the sale deed
executed. Therefore, as there was breach of contract, the
defendants being the owner of the schedule property
issued a quit notice dated 08.08.2003 terminating tenancy
by giving 15 days time to quit and surrender the schedule
property. But, the plaintiff-firm did not respond. It is
contended that, the plaintiff-firm is liable to pay the mesne
profits at the rate of Rs.1,000/- per month from the date
of termination of the tenancy till surrendering of the
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schedule property. Thus, it is prayed by the landlord-
defendant to dismiss the suit.
9. To this the plaintiff firm appeared as they are
defendant. It was defendant No.1, 3 to 7 filed written
statement and during the pendency of the suit, defendant
No.2 was reported to be dead. LR of second defendant
filed independent written statement. It is contended by
defendant Nos.1, 3 to 7 in their written statement that,
there was no subsistence of any tenancy from the date of
agreement of sale. Defendants are in peaceful and lawful
possession of the schedule property as a prospective
purchasers. Because of this agreement of sale so
executed by the plaintiff in the present suit, there was end
of land lord tendency relationship between the parties. It
is submitted that, defendants being the prospective
purchasers of the schedule property, they are still ready to
perform their part of the contract. As the landlord was
expected to get the conversion of the schedule property
and get the clearance from the Income Tax Department,
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there was a delay on the part of the landlord to execute
the sale deed by receiving the balance consideration
amount. The fault is on the part of the landlord that is the
defendant in the suit. Defendant No.2(a) contends that
the provisions of the Karnataka Rent Control Act,1999
were not applicable to facts of the case. There is no plea
of exemption from this said Act. The plaintiff's suit has to
be rejected. It is contended that, they are entitled to
protect their possession over the schedule property.
Further contended that, the suit of the plaintiff seeking
possession and mesne profits is not maintainable in the
eyes of law. The plaintiff is not entitled for any mesne
profits. Thus, the defendants in O.S.No.195/2007 prayed
to dismiss the suit.
10. Based upon the rival pleadings of both the
parties, the learned trial Court framed issues and
additional issues in O.S.No.195/2007 as under:
"Issues in O.S.NO.166/2006:
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1) Whether the plaintiff proves that the plaintiff is
a registered partnership firm and plaintiffs are
the partners?
2) Whether the plaintiff proves that they are in
possession of the property in pursuance of the
agreement for sale?
3) Whether the plaintiff proves that they are
always ready and willing to perform their part
of contract?
4) Whether the plaintiff is entitled for reliefs as
prays for?
5) What Order or Decree?
Issues in O.S.NO. 195/2007:
1) Whether the plaintiff proves that the
defendants are tenants?
2) Whether the defendants prove that under part
performance of sale agreement there exists no
landlord and tenant relationship and they are
protected under Section 53A of Transfer of
Property Act?
3) Whether the plaintiff proves that he has validly
terminated the tenancy against all defendants
by issuing notice?
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4) Whether the plaintiff is entitled for mesne
profits /If so, to what rate per day?
5) Whether the valuation of the suit made for the
purpose of Court fee and jurisdiction is correct
and proper Court fee is paid?
6) What Order or decree?
Addl. Issue:
1) Whether the suit of the plaintiff is barred in
view of Sec.27 of the Karnataka Rent Act.
1999 as contended by the defendant No.2A?"
11. To prove the case so made out by the plaintiffs
in O.S.No.166/2006, the plaintiff No.1 entered the witness
box as PW.1 and got marked Exs.P1 to P36. The GPA
holder of the defendant entered the witness box as DW.1
and got marked Exs.D1 to D4. Likewise, independent
evidence is adduced in O.S.No.195/2007 by examining the
GPA holder of the plaintiff in the said suit as PW.1 and
Exs.P1 to P15 were marked. To prove the defence of the
defendant in the said suit, defendant No.2 entered the
witness box as DW.1 and got marked Ex.D1 and D2.
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12. The learned trial Court on hearing the
arguments and on evaluation of the evidence, dismissed
the suit in O.S.No.166/2006 and decreed the suit in
O.S.No.195/2007 with a direction to the defendant in
O.S.No.195/2007 to vacate and hand over the vacant
possession of the suit schedule property to the plaintiff-Sri
G. Ananth Rao within two months. Further, it is held that
the plaintiff therein is entitled for the mesne profits at the
rate of Rs.1,000/- per day together with the interest at the
interest of 6% per annum from 06.09.2003 till handing
over of the possession of the schedule property with no
additional cost.
13. As stated supra, now being aggrieved by the
respective judgment and decree passed in the aforesaid
suits, these appeals are filed challenging the impugned
common judgment.
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14. Trial Court records are secured. Heard the
arguments.
15. Learned counsel for the plaintiff firm relying
upon the pleadings and evidence, both oral and
documentary, submits that, plaintiff-firm being the tenant
under the defendant because of the offer made by the
defendant agreed to purchase suit schedule property for a
valuable consideration of Rs.39,73,750/- at the rate of
Rs.85,000/- per cent. Having accepted the said offer,
plaintiff paid an advance sale consideration amount of
Rs.15,00,000/- in part performance of the contract by way
of a cheque dated 05.02.2001 drawn on Syndicate Bank,
Hampanakatta Branch, Mangalore. It was stipulated
between both the parties that defendant has to execute
the sale deed in respect of the schedule property within
one year by bearing the cost of conveyance including the
stamp duty, registration etc., It was agreed by the
defendants to get the clearance certificate from the
Income Tax as well as conversion order from the Revenue
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Authorities. To that effect, a sale agreement came to be
entered into on 5.2.2001. He would further submit that, as
per the agreement between the plaintiff-firm and the late
G.Somashekhar Rao, the plaintiff-firm was in possession of
the suit schedule property as tenant by virtue of registered
term lease dated 14.6.1972 for a period of 20 years which
expired on 30.4.1992, subsequently, it was renewed for a
period of five years again with mutual consent. By virtue
of said agreement of sale dated 5.2.2001, plaintiff - firm
remained in possession of the schedule property as an
intending purchaser. Therefore, as agreed between both
the parties, the plaintiff did not pay any rent because of
the said agreement of sale. He would further submit that,
right from the date of agreement even till this day, plaintiff
is ever ready and willing to perform his part of contract by
tendering balance consideration amount but, because of
lapse on the part of the defendants to get the conversion
from the revenue authorities under the Land Revenue Act
as well as has failed to get the clearance from the Income
Tax Department, it was defendants who went on
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postponing to get the clearance and conversion and
continued his promise to comply the terms of the
agreement.
16. As the plaintiff continued in possession in good
faith, he would submit that, to the utter surprise of the
plaintiff, defendant terminated the tenancy of the plaintiff
by issuing a quit notice dated 8.8.2003 and thereafter,
filed a suit for possession before the III Additional Civil
Judge (Jr.Dn), Mangalore in O.S.No.644/2003 and also
claimed mesne profits. He would submit that, because of
entering into agreement of sale in between plaintiff-firm
and defendants as on the date of the agreement itself, the
jural relationship of landlord and tenant came to an end
and plaintiff became intending purchaser. He would
submit, because of breech of agreement committed by
defendant, he has got a protection under Section 53-A of
the Transfer of Property Act. He fairly admits that, in the
said suit so filed by the defendants, the plaintiff has not
pleaded any counter claim. He would submit that, trial
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Court has not appreciated the evidence lead by the
plaintiff-firm to prove its readiness and willingness to
perform the contract on its part and has wrongly
dismissed the suit. He would submit that, the findings of
the trial Court are quite erroneous and because of such a
finding of the trial Court, very rights of the plaintiff to
claim the relief so claimed in the plaint are frustrated. He
would submit that, most of the factual features so pleaded
by the plaintiffs are admitted by the defendants. The only
grievance of the defendants is that, it is plaintiff who
committed breach of the contract and not the defendant.
He would submit that, this defence of the defendant is not
proved in accordance with law. In support of his
submissions, as stated supra he relied upon pleadings,
both oral and documentary evidence and also relied upon
the following judgments:
i. "2006 (6) SCC 351- Indian Financial Association of
Seventh Day Adventists V/s Unneerikutty and
Another Μ.Α.
ii. 2008 (11) SCC 45- Silvey and Others V/s Arun
Varghese and Another
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iii. 2011(1) SCC 429- J.P.Builders and Another V/s
Ramadas Rao and Another
iv. R.F.A. 4132/2012 -D.D.11.01.2017- Maruti s/o
Fakirappa Chivagol V/s Shri. Shrishailappa and
others
v. 1979 (4) SCC 393- Prakash Chandra V/s Angadlal
and Others
vi. ILR 1998 KAR 3230 (FB)- Narasimha Setty V/s
Padma Setty
vii. 2002 (3) SCC 676- Shrimant Shamrao Suryavanshi
and Another V/s Pralhad Bhairoba Suryavanhi
(Dead) By LRs. and Another
viii. 2004 (5) SCC 88- Mahadeva and Others V/s Tanabai
ix. 2004(8) SCC 614- Ram Bhan N. Gajre V/s Narayan
Bapuji Dhotre
x. AIR 1975 SC 824- Roshan Lal and Others V/s Mohan
Singh Oberai
xi. 2002 (5) SCC 481 -Nirmala Anand V/s Advend
Corporation Pvt.Ltd.
xii. 2008 (12) SCC 67- Pratap Lakshman Muchandi and
Others V/s Shamlal Uddavadas Wadhwa
xiii. 2015(1) SCC 597 -K.Prakash V/s B. R.Sampath
Kumar
xiv. 2004 (8) SCC 689-Swarnam Ramachandran V/s
Aravakkod Chakungal Jayapalan
xv. AIR 1949 Madras 265- Arjuna Mudaliar V/s Laxmi
Ammal and Others".
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17. In addition to the grounds urged in the appeal
memo, by relying upon the aforesaid evidence lead by the
parties, he craves to set aside the impugned judgment and
prayed to decree the suit for specific performance of
contract and also prayed to dismiss the suit seeking
possession and mesne profits.
18. Per contra, the learned counsel for the
defendants refuting all the submissions made by the
learned counsel for the plaintiffs submits that though most
of the factual features are admitted by the defendants as
well as his LRs, as per the agreement of sale was entered
into on 05.02.2001, the defendant has complied the terms
and condition of the agreement. He got the conversion
order, clearance from the Income Tax Department and
orally informed the plaintiff that, they have complied the
terms and conditions of the agreement. He would submit
that, only after issuance of the quit notice dated
08.08.2003 terminating the tenancy of the plaintiff, the
plaintiff became aware and thereafter, filed written
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statement to the suit filed by the defendant seeking
possession and mesne profits but has not pleaded any
counter claim seeking the relief of a specific performance
and ventured to file a separate suit. The plaintiff was
never, ever ready and willing to perform his part of the
contract by sending any notice. He would submit that, he
issued a reply notice to the quit notice dated 08.08.2003
and there, he had expressed his readiness and willingness
to perform the contract without any basis. The plaintiff
had not brought to the notice of the defendant about his
financial capacity, so also, his preponderance to get the
sale deed executed. He would submit that, conduct of the
plaintiff in not expressing his readiness and willingness
even after expiry of one year, itself shows that, it was not
intending to purchase the property at any point of time
and simply postponed its expression of readiness and
willingness. He would submit that, as a matter of course,
he issued a reply notice and then expressed his willingness
to perform its part of the contract. He would submit that,
the learned trial Court has rightly based upon the title of
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the defendants, decreed the suit of the defendant for
possession, mesne profits and dismissed the suit of the
plaintiff seeking relief of specific performance. He too
relied upon both oral and documentary evidence lead by
the parties to both the suits and prays to dismiss the
appeal of the appellant/defendant.
19. We have given our anxious consideration to the
argument of both the side and perused the record.
20. In view of rival submissions of both the side,
the points that would arise for our consideration are:
1) "Whether the plaintiff-firm proves its
readiness and willingness to perform its
part of contract and get the sale deed
executed as prayed?
2) If so, whether the trial Court has
committed any factual and legal error in
refusing such a relief to the plaintiff-firm
while dismissing the suit?
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3) Whether the trial Court has committed
any error in decreeing the suit of the
defendants in granting relief of possession
and mesne profit and thereby it requires
interference by this Court?"
Points Nos.1 to 3 are discussed together.
21. These three points require common discussion
as they are inextricably mixed up with each other for the
simple reason that, parties to the litigation are same,
pleadings in both the suits are one at the same, though
prayers are different. That means, the findings to be
given on one point have got a direct bearing on another
point.
22. As narrated in the foregoing paragraphs,
plaintiff-firm came in possession as a tenant of the
schedule property by virtue of the registered sale deed
dated 14.06.1972 for a period of 20 years, which expired
on 30.04.1992 and thereafter, it was renewed with mutual
understanding for a further period of five years. This fact
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is fairly admitted by the defendant. It is also admitted
that, defendants proposed to sell the schedule property to
the plaintiff-firm for a valuable consideration of
Rs.39,73,750/- at the rate of Rs.85,000/- per cent. The
plaintiff having accepted the offer, agreed for the said
consideration amount and paid Rs.15,00,000/- as an
advance for the said consideration in part performance of
the contract by issuing the cheque dated 5.2.2001 drawn
on Syndicate Bank, Hampanakatta Branch, Mangalore
which was encashed by the defendants. These facts are
also admitted by the defendants.
23. The only grievance of the plaintiff-firm is that,
though the defendants were expected to get the
conversion and clearance from the Income Tax
Department from the competent authorities, not informed
the plaintiff-firm to that effect. Plaintiff waited for the
response from the defendant though it was ready and
willing to perform the contract at any point of time.
Therefore, now the defendant cannot find any fault with
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the plaintiff. He would submit that even till date, the
plaintiff is ready and willing to perform his part of the
contract, but, though the defendant knew about the
readiness and willingness of the plaintiff, filed a false suit
seeking possession based on title so as to deprive the
rights of the plaintiff to get the relief of specific
performance of the contract.
24. Now in view of these factual aspects, the only
moot point that is to be decided in this case is:
Readiness and willingness
25. Section 16 of the Specific Relief Act, 1963
provides for personal bars to relief. This Provision reads
as under:
"16. Personal bars to relief.--
Specific performance of a contract cannot be
enforced in favour of a person--
(a)who would not be entitled to recover compensation
for its breach; or
(b)who has become incapable of performing, or
violates any essential term of, the contract that on his
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part remains to be performed, or acts in fraud of the
contract, or wilfully acts at variance with, or in
subversion of, the relation intended to be established
by the contract; or
(c)who fails to aver and prove that he has performed
or has always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than terms the performance
of which has been prevented or waived by the
defendant.
Explanation.--For the purposes of clause (c),--
(i)where a contract involves the payment of
money, it is not essential for the plaintiff to actually
tender to the defendant or to deposit in Court any
money except when so directed by the Court;
(ii)the plaintiff must aver performance of, or
readiness and willingness to perform, the contract
according to its true construction."
26. Among the 3 clauses stated supra, now we are
very much concerned about clause (c). "Readiness and
willingness" as enshrined in clause (c) which was not
present in the old Act of 1877. However, it was later
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inserted with a recommendation of the 9th Law
Commission Report. This clause provides that, the person
seeking specific performance must prove that he has
performed or ready and willing to perform the essential
terms of the contract which has to be performed by him.
27. On scrupulous reading of this provision, the
words "ready" and "willing" imply that, the person was
prepared to carry out the terms of the contract. The
distinction between "readiness'' and ''willingness" is that
the former refers to financial capacity and latter to the
conduct of the plaintiff wanting to perform. Generally, as
held in the catena of judgments the Hon'ble Apex Court
and co-ordinate benches of this Court, readiness is backed
by willingness. Thus, is held in N.P.Thirugnanam (D) By
Lrs. v/s Dr.R.Jagan Mohan Rao and Ors reported in
AIR 1996 SC 116 and P.D'souza v/s Shondrilo Naidu
reported in AIR 2004 SC 4472 that,
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"Section 16(c) of the Act envisages that plaintiff must
plead and prove that he had performed or has always
been ready and willing to perform the essential terms
of the contract which are to be performed by him,
other than those terms the performance of which has
been prevented or waived by the defendant. The
continuous readiness and willingness on the part of
the plaintiff is a condition precedent to grant the relief
of specific performance. This circumstance is material
and relevant and is required to be considered by the
Court while granting or refusing to grant the relief. If
the plaintiff fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff is ready
and willing to perform his part of the contract, the
Court must take into consideration the conduct of the
plaintiff prior and subsequent to the filing of the suit
alongwith other attending circumstances. The amount
of consideration which he has to pay to the defendant
must of necessity be proved to be available. Right
from the date of the execution till date of the decree
he must prove that he is ready and has always been
willing to perform his part of the contract. As stated,
the factum of his readiness and willingness to perform
his part of the contract is to be adjudged with
reference to the conduct of the party and the
attending circumstances. The Court may infer from
the facts and circumstances whether the plaintiff was
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ready and was always ready and willing to perform his
part of contract."
28. Law says that there is no straight jacket
formula laid down in this behalf and it depends upon the
question as to whether the defendant did everything which
was required of him to be done in terms of the agreement
of sale. In this regard, the Hon'ble Apex Court in
R.C.Chandiok and Another vs. Chuni Lal Sabharwal
and Others reported in AIR 1971 SC 1238 has
considered this fact of "Readiness and willingness cannot
be treated as a straight jacket formula. These have to be
determined from the entirety of facts and circumstances
relevant to the intention and conduct of the party
concerned."
29. It is settled law that, even in the absence of
specific plea by the opposite party, it is the mandate of the
statute that the plaintiff has to comply with Section 16(c)
of the Specific Performance Act and when there is non-
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compliance with this statutory mandate, the Court is not
bound to grant specific performance and is left with no
other alternative but to dismiss the suit. It is also clear
that readiness to perform must be established throughout
the relevant points of time.
30. In the light of the aforesaid principles, let us
consider whether the plaintiff has established his case for
decree for specific performance or otherwise.
31. The learned counsel for the plaintiff vehemently
contended that, plaintiff has proved its case to grant the
decree for specific performance of contract and hence, the
plaintiff's suit has to be decreed. He would submit that,
Ex.P1 the agreement of sale is proved in accordance with
law. Thus plaintiff has fulfilled the obligations under the
said agreement of sale Ex.P1.
32. So far as agreement of sale and its execution as
on 5.1.2001 is concerned, it is not in dispute. PW.1 being
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the partner of the plaintiff-firm by name K.Rajavarma
Ballal has reiterated the plaint averments. He speaks
about the entering into partnership so also entering into
agreement with the defendant in his chief examination as
well as in the cross-examination. It is elicited that, the
plaintiff had obtained the legal opinion to know whether
the defendant had any title and saleable interest to sell the
suit schedule property then only the plaintiff would enter
into agreement of sale. It is stated by him that, after
agreement of sale, it was requested to the scribe to
incorporate about non-payment of rent in respect of the
schedule property as they became the intending
purchasers but, admits that the said agreement of sale
Ex.P1 does not have such a recital with regard to the non-
payment of rent. The fact which is admitted is that
plaintiff-firm was in possession initially as a tenant for a
period of 20 years and thereafter it was extended for a
period of five years and then as per Ex.P1 they became
intending purchasers. To prove the fact of non-payment of
rent or otherwise, Ex.P1 is very much silent. It is the case
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of the defendant that, plaintiff has committed default in
payment of rent. It was not informed to any of the
revenue authorities by the plaintiff that they are in
possession of schedule property by virtue of Ex.P1. It is
stated that, plaintiff-firm had submitted an application
permitting them to establish the petrol bunk in the suit
schedule property. The plaintiff has not enquired with the
defendant as to what was the expenditure to be borne for
conversion of schedule property into non-agriculture. This
PW.1 categorically admits that as per the agreement of
sale, plaintiff had to pay the balance consideration amount
as per the condition so stipulated and no money was paid
as agreed by the plaintiff. For non-payment of the said
amount, the explanation of PW.1 is that, as the defendant
did not provided the documents, the plaintiff did not pay
the balance consideration. He admits that, as per the
condition so stipulated, no request was made to the
defendant to receive the balance consideration amount
and execute the sale deed in writing. This PW.1 further
admits categorically that, prior to issuance of notice as per
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Ex.P9, no attempt was made by the plaintiff requesting the
defendant to receive the balance consideration amount
and execute the sale deed and no such request was made
in writing. He admits that, after termination of tenancy,
the notice was sent to the defendant as per Ex.P9.Further,
he states that, now at the time of giving his evidence,
there was no provision for taking clearance certificate from
the IT Department. He denied a suggestion that it is the
plaintiff-firm who has committed the breach of contract.
Even after filing the suit, no attempt was made by the
plaintiff to deposit any money and even after termination
of the tenancy. According to PW.1, defendant has
terminated the tenancy of the plaintiff.
33. To show that plaintiff had financial capacity, in
the cross-examination dated 13.12.2007 directed to PW.1,
he states that, at Madras there is a Hotel called Ashoka
Pvt.Ltd., in which the plaintiff has got share to the extent
of 3 lakhs as per Ex.P13, so also invested Rs.15,50,000/-
with Balram Tourist Hotel Pvt.Ltd., as shown in Ex.P14 so
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also invested Rs.15,47,154/- with Tourist Hotel Pvt.Ltd.,
as per Ex.P15 and further states that there is a deposit of
17,75,309/- with Tourist Hotel invested by the plaintiff
firm as per Ex.P16 and this fact is known to the Managing
Director of plaintiff-firm. But, the said Managing Director
of the firm is not examined. Mere production of these
documents about the investments so made do not mean
that, the plaintiff-firm has got financial capacity to pay the
balance consideration amount. PW.1 has also produced
Ex.P17 to show about investment of Rs.16,10,745/- with
Tourist Hotel on 31.3.2001 and also plaintiff No.6 has
deposited Rs.4 lakhs on 31.3.2001 as stated in Ex.P18.
Likewise, plaintiff No.6 has deposited Rs.4,15,676/- as per
Ex.P19 in his name so also Rs.4 lakhs on 31.3.2000 as
recited in Ex.P20. He further states about deposit of 4
lakhs as per Ex.P21. It is stated that, plaintiff-firm could
withdraw such amount so stated at any time. But, there
was no expression or intentions shown by the plaintiff-firm
by informing the defendant that, these are the amounts
which are in deposit and plaintiff can very well withdraw
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the said deposits and pay the balance consideration
amount. The conduct of the plaintiff plays an important
role to prove the factum of readiness and willingness to
perform its part of contract. PW.1 further states that,
plaintiff-firm is running a petrol bunk at Kankanady,
Mangalore and an application is already filed for shifting
the said petrol bunk addressing a letter to the Sr.Regional
Manager HPC Ltd., as per Ex.P26. What action was taken
on that letter, whether permission was granted to shift the
same is not stated by PW.1. So many documents are
produced given by the Politicians and Officers of the
various Departments.
34. It has come in the evidence of PW.1 that, to run
the partnership business and also to comply the personal
obligations, the partners of the firm had to use their
personal money also. According to him, he also has
contributed his own money and utilized the money from
various sources for the purpose of complying the
obligations of the partnership firm. There are instances of
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advancing money by partnership firm. If that is so, what
made the plaintiff-firm to keep mum for a year without
expressing their willingness to perform their part of
contract and even after that and what made them to wait
till termination of tenancy and then, express their
willingness to perform their part of contract is not
explained by this PW.1. Thus, throughout the evidence of
PW.1, there is no proper and acceptable evidence to prove
that, the plaintiff-firm was ever ready and willing to
perform its part of contract. Most of the documents so
produced by the plaintiff are not denied by the defendants.
35. DW.1 the Power of Attorney of defendant being
his son had come before the trial Court and reiterated the
contents of the written statement and he emphasized that,
it was plaintiff who defaulted in payment of rents, so also
plaintiff has committed breach of contract. Therefore, as
plaintiff has failed to perform its part of contract and was
squatting on the property without payment of any rent,
the defendant issued a notice terminating the tenancy. He
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specifically states that, defendant had not committed any
breach of contract. The defendant also relied upon various
documents with regard to the lease deed. He admits that,
after the agreement of sale, when the defendant received
the cheque for Rs.15 lakhs, it was encashed by the
defendant. He further states that, his father did not inform
the plaintiff about getting the conversion etc., in writing.
Further, he states that, even after agreement of sale, the
plaintiff was in possession of the schedule property and
even prior to that, it was using the same. He admits that,
his father permitted the plaintiff to put up the construction
in the schedule property during the lease period and
plaintiff had retained the said constructions which were
very much available and they were vacant. He being the
son of the defendant has come before the Court and
stated about the so called default being committed by
plaintiff-firm. This DW.1 admits that, the Ballal family is
having so many business concerns so also have possessed
so many landed properties. It is admitted that, the plaintiff
firm has got properties wherein the Vijaya Clinic is being
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run in the adjacent building. The said property was owned
by the defendant and it was sold. He denied other
suggestions so directed to him.
36. The learned counsel for the plaintiff much relies
upon the cross-examination directed to this DW.1 that, as
defendant did not provide the survey sketch and also other
title documents so also conversion order, there is a delay
but, this DW.1 denies it.
37. On scrupulous reading of the evidence spoken
to by PW.1 and DW.1 and the documents so produced by
both the side, though PW.1 reiterated and in fact asserted
that, plaintiff was ever ready and willing to perform its
part of contract and was ready with the consideration
amount but, in view of the conduct of the plaintiff with
regard to the readiness and willingness, apart from
specific plea in the plaint, no evidence is placed on record
through PW.1 about financial capacity and withdrawal of
the money from the various business concerns belonging
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to family of Ballal. Plaintiff has not informed it is ever
ready and willing to perform its part of contract. In other
words, the assertion of plaintiff firm remained as assertion
and no correspondence was made by plaintiff showing its
ready and willingness till receipt of termination notice.
Therefore, it can very well be stated that, the mandate so
provided under Section 16(c) of Specific Relief Act is not
complied by the plaintiff.
38. The defendant has demonstrated by placing
oral and documentary evidence that, though as per Ex.P1
he has received Rs.15 lakhs advance on 5.2.2001, but,
pointed out that, till receipt of the termination notice,
plaintiff did not wake up and thereafter, only, had come
forward stating that, plaintiff is ever ready. In order to
prove that, plaintiff had sufficient means of finance,
though the plaintiff has produced certain documents stated
supra, but, willingness of the said concerns to permit the
plaintiff-firm to withdraw the money and part with the
funds, there is no evidence placed on record. Therefore, if
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we analyse the said documents, they are only the
documents showing the deposits and investment and
concerned head of business as stated by PW.1, have not
furnished any consent letter. That means, except the self-
serving evidence of PW.1 with regard to sufficient means
of finance, absolutely there is no evidence as to any
demand made by the plaintiff to the defendant to receive
the balance consideration amount and execute the sale
deed. As stated supra, though the defendant admits about
receipt of Rs.15 lakhs but, the very conduct of the plaintiff
in delaying its action to get the specific performance into
action, there is no evidence though the plaintiff is
endowed with so called means to pay the sale
consideration.
39. On the other hand, the defendant had issued a
termination notice, as per the documents produced, has
collected the documents from the revenue authorities
about conversion of the property to non-agriculture, so
also had obtained clearance certificate. DW.1 states that,
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orally it was informed to the plaintiff. This fact is not
properly denied by the plaintiff. As rightly pointed out by
the trial Court, it is not clear as to, why the other persons
who are responsible in entering into agreement avoided to
enter the witness box is not explained. The plaintiff had
failed to lead oral evidence of an independent witness, so
also other partners in support of its claim. Though plaintiff
asserts that defendant admits about the agreement of sale
but, it is incorrect and unacceptable that the plaintiff was
ever ready to perform the part of the contract. Therefore,
as rightly submitted by the counsel for the defendant, the
plaintiff has not proved about the readiness and
willingness to perform its part of the contract.
40. Though the learned counsel cited number of
judgments, each case is to be decided based upon the
facts of each case. With great respect to the principles laid
down, we do not feel that, they are applicable to the facts
of this case in view of the peculiar facts and circumstance
brought on record by both the parties. So far as grant of
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relief of specific performance is concerned, it is the
discretion of the Court. Learned counsel for the plaintiff-
firm submits that, as the discretion is vested with the
Court to grant the relief of specific performance, this Court
can very well exercise its discretion and grant such a
relief. He would submit that ordinarily the rule is that,
specific performance should be granted. It ought to be
denied only when equitable consideration for its refusal
and the circumstances show that, damages would
constitute an adequate relief. In support of his submission,
learned counsel for the plaintiff Sri Chandranath Ariga
relied upon the judgment of Hon'ble Apex Court in
Prakash Chandra vs. Angadlal and others reported in
(1979) 4 SCC 393. In the said judgment, at para.9, it is
held that based upon the equitable considerations with
regard to the refusal of such a relief can be made by the
Court depending upon the circumstances and held that
"the ordinary rule is that, specific performance should be
granted."
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41. In the present case, the conduct of the plaintiff
if scrupulously perused, right from the date of agreement
of sale, it shows that plaintiff was not diligent in enforcing
the contract. So far as enforcement of the contract is
concerned, the law is that, existence of a contract is sine
qua non or the grant of relief of a specific performance.
The entire provisions of the Specific Relief Act contained in
Chapter-II refer to the contract which can be specifically
enforced or otherwise. As per the provisions of Section
2(h) of the Contract Act "an agreement enforceable by law
is a contract". Even an oral agreement can be valid and
enforceable contract. Therefore, in the strict sense, it is
not essential that a contract must be in writing. Where the
parties contemplate a writing to complete the contract or
when the contract is required by law or otherwise to be in
writing, it will be necessary that the contract is reduced to
writing. Further, where the specific terms have been
agreed upon and reduced into writing, the mere fact that it
is stated that a formal contract will be executed does not
render the writing in the first instance to be of no avail.
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These are certain general principles regarding formation of
contracts. Thus, the relief of specific performance is a
discretionary relief. The Apex Court in Smt.Mayawanti
vs. Smt.Kaushalya Devi reported in (1990) 3 SCC 1
has explained about the discretion by relying upon the
observations of the learned author "Fry in his Specific
Performance, 6th Edn. P. 19,it is said, as per the learned
Author, hence the discretion is said to be not arbitrary or
capricious but judicial; "hence, also, if the contract has
been entered into by a competent party, and is
unobjectionable in its nature and circumstances, specific
performance is as much a matter of course, and therefore
of right, as are damages."
42. In this case, as per the agreement between
both the parties, the defendant had to obtain the
conversion order from the competent authorities so also
obtain the clearance certificate from the Income Tax
Department.
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43. The plaintiff-firm has not taken any steps or
attempted to get such a conversion though an application
was filed by the defendant. In one of the judgments of the
Bombay High Court in A.H. Mistry and Co. v. Awadh
Narayan Singh Shiv Nayak Singh, reported in 2010
SCC OnLine Bom 1009, the learned Single Judge
observed that, "a judicial notice is required to be taken of
the fact that, the defendant/vendors would not be
expected to pursue their application for permission of the
competent authority once they agreed to sell the suit land
to the plaintiff".
44. In this case also, the plaintiff has not pursued
the said application though the defendant had filed the
application seeking conversion and clearance from the IT
Department. That means, the plaintiff would be expected
to do the ministerial acts. This is evident from the clauses
mentioned in the agreement that the defendant had
agreed to get the conversion as well as clearance from the
revenue authorities and Income Tax Department and it
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was within the knowledge of the plaintiff. When the
plaintiff has not attempted to do any ministerial acts, it
was not to be considered as default on the part of the
vendor i.e. defendant. Therefore, as held in the catena of
judgments of the co-ordinate Benches of this Court as well
as Apex Court, in a case of present nature, when no
attempt was made by the plaintiffs to enforce the contract
and opened their eyes only when the defendant issued the
notice of termination of the tenancy itself, shows the
conduct of the plaintiff. From the cross-examination, it is
however clear that, the only hitch on the part of the
defendant in performing the agreement was, plaintiff has
not come forward and has not taken any steps though the
plaintiff was in possession of the property. That means,
the plaintiff has not come forward to pay the balance
consideration amount though states in the evidence about
investments made by it at various business concerns. It is
clear from the evidence that, though the defendant was
fully aware of existence of the contract but, plaintiff did
not come forward. The defendant did not dispute the
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existence of contract, as such. Therefore, the Court cannot
exercise its discretion to grant a decree. When the
defendant had issued the notice of termination of the
tenancy, he had expressed his intention and must have
been under the impression that, he could get out of the
deal by terminating the tenancy of the plaintiff and for that
reason, he had issued the quit notice which was duly
received by the plaintiff. Thereafter, issued the reply
notice expressing its intention to pay the balance
consideration amount and get the sale deed registered.
The very issuance of the notice by the defendant amounts
to expression of intention of the defendant to wriggle out
from the said contract to sell the suit property to the
plaintiff. That means, the intention of issuing the quit
notice itself amounts to coming out of the deal. In this
case, the time was essence of the contract. Within one
year, the plaintiff had to pay the balance consideration
amount and register. But, no attempts were made by the
plaintiff till receipt of the quit notice. Therefore, it can
never be stated that, the plaintiff has made out acceptable
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grounds so as to exercise discretion and grant relief as
claimed by it. Therefore, as a matter of right, plaintiff is
not entitled for the discretionary relief of specific
performance.
About the original suit filed by the defendant
seeking possession and mesne profits
45. It is relevant to note that, much prior to filing of
the suit by the plaintiff, the defendant filed a suit for
possession in OS No.644/2003 on the file of III Addl.
District and Sessions Judge, Mangaluru which was
subsequently renumbered after transfer to the Sr. Civil
Judge, renumbered as OS No.195/2007. The plaintiff-firm
filed the suit seeking relief of specific performance of a
contract before the Civil Judge, Mangaluru in OS
No.166/2006. That, means after three years of filing the
suit by the defendants, the plaintiff-firm filed the aforesaid
suit seeking the relief of specific performance. This
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conduct of the plaintiff shows that he was not inclined to
enforce the said agreement of sale.
46. We have already adverted to the facts leading
to the filing of two civil suits and two regular first appeals
by the parties to the litigation. It is not in dispute that in
both the suits as well as appeals, the facts are one and the
same. It is also not in dispute that the subject matter of lis
and property is one and the same. As both the suits are
decided by common judgment based upon the facts
pleaded, now the question arises as to whether defendant
is entitled for possession of the schedule property. When
jural relationship of plaintiff and defendant is admitted
prior to the agreement of sale and even after agreement
of sale, the plaintiff has not come forward to enforce the
agreement of sale i.e. even after lapse of one year, though
information was given to the plaintiff about getting
conversion order as well as clearance from the Income Tax
Department. It shows that, the defendant had issued the
quit notice understanding the conduct of the plaintiff that,
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plaintiff-firm was not ready to enforce the agreement of
sale and has not paid any balance consideration amount.
47. The argument is advanced by the counsel for
the plaintiff that even till date, plaintiff is ready to pay the
balance consideration amount and get the sale deed
registered, as discussed above, the plaintiff-firm has failed
to prove the continuous and readiness and willingness to
get the sale deed executed which is a condition precedent
to grant the relief of specific performance as held by the
Apex Court in various judgments. It is the plaintiff-firm
who has to prove its readiness and willingness in a suit of
present nature and this fact must be proved. Even the
plaintiff has to prove that, he had capacity to pay the
balance consideration amount. Simply narrating the
investments with various business concerns is not
sufficient. Therefore, as rightly observed by the learned
trial Court, though the suit of the plaintiff is not barred by
law of limitation as per the events that have taken place
but, the Court cannot exercise its discretion and grant the
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relief. The defendant being the owner of the schedule
property had issued the quit notice which was received by
the plaintiff-firm without any demur and thereafter filed
the suit seeking the relief of specific performance
disentitled the plaintiff to remain in possession as an
intending purchaser or a tenant. When quit notice is
issued, as per the provisions of 106 of Transfer of Property
Act, and when the plaintiff admits the title of the
defendant, so also tenancy prior to the agreement of sale,
the only option for the defendant is to seek possession,
which is rightly granted by the trial Court. Now the plaintiff
cannot contend that, by virtue of provisions of Section 53-
A of Transfer of Property Act, it be continued his
possession as an intending purchaser and it shall be
protected under the said provision. When the plaintiff has
utterly failed to prove about grant of relief of specific
performance, its possession would be `tenant holding
over' after the expiry of the lease period. When
agreement of sale is not enforced, the Court cannot
exercise the discretion to grant the relief. Then the only
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option for the plaintiff-firm is to vacate and surrender the
suit schedule property to the defendant as rightly held by
the Court below.
48. So far as cost and mesne profits is concerned, it
is not the case of the plaintiff - firm that, it has tendered
any rent as it was paid prior to the agreement of sale. The
only grievance of the plaintiff is that, it was an intending
purchaser and Section 53-A of Transfer of Property Act is
applicable and there was an oral agreement not to pay any
rent. But, this fact is denied by DW.1. No documentary
evidence is produced about tendering of any amount by
the plaintiff after 5.2.2001. From that date onwards, the
plaintiff had made use of the schedule property without
making any payment to the defendant. According to
plaintiff, there was establishment of the petrol bunk in the
schedule property. If that is so, for this use and
occupation of schedule property by the plaintiff-firm, it has
to compensate the defendant right from 5.2.2001 till it
vacates and surrender the schedule property. In a case of
present nature, it is just and proper to award mesne
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profits as well as cost. The learned trial Court had granted
the relief with regard to the mesne profits with interest at
the rate of 6% from 6.9.2003 till handing over of the
vacant possession of the suit schedule property and of
refund of the said amount along with the mesne profits.
We do not find any factual or legal error committed by the
trial Court in passing such a decree. Therefore, the points
raised supra have to be answered against the plaintiff-firm
and in favour of the defendant. Consequentially both the
appeals filed by the plaintiff-firm are liable to be dismissed
with no orders as to costs.
49. Resultantly, we pass the following:
ORDER
i. RFA No.1373/2009 and RFA
No.1634/2023 are dismissed with no
order as to costs.
ii. The common judgment dated
31.8.2009 passed in OS No.166/2006
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and 195/2007 by the II Addl.Civil
Judge Sr.Division Mangaluru DK are
hereby confirmed.
iii. Send back the trial Court records
along with a copy of this judgment
forthwith.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
