Karnataka High Court

Sri V K Ramegowda vs Sri T Shankara on 11 June, 2025

Author: S.G.Pandit

Bench: S.G.Pandit

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JUNE 2025

                      PRESENT

        THE HON'BLE MR. JUSTICE S. G. PANDIT
                        AND
         THE HON'BLE MR. JUSTICE T.M.NADAF


      REGULAR FIRST APPEAL NO.2084/2010 (MON)


BETWEEN:

SRI V.K. RAMEGOWDA
S/O LATE KALEGOWDA
SINCE DECEASED BY HIS LR'S

(A)    SMT. SOUBHAGYAMMA
       W/O LATE V.K. RAMEGOWDA
       AGED ABOUT 60 YEARS

(B)    SRI R SATISH
       S/O LATE V.K. RAMEGOWDA
       AGED ABOUT 42 YEARS

(C)    SMT. R PUSHPALAKSHMI @ R NANDA
       D/O LATE V.K. RAMEGOWDA
       W/O KRISHNAMURTHY
       AGED ABOUT 39 YEARS


ALL ARE RESIDING AT NO.38
M.I.G., 80 FEET ROAD
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KENGERI SATELLITE TOWN
BANGALORE-560060.
                                       ... APPELLANTS
(BY SRI. RAJESH MAHALE, SR. ADV. A/W
 SRI PARIKSHITH MALIYE, ADV. FOR
 SRI G NARAYANA RAO, ADV.)


AND:

1.   SRI T SHANKARA
     S/O SRI CHIKKATHIMMEGOWDA
     AGED ABOUT 58 YEARS

2.   VIVEK
     S/O SRI T SHANKAR
     AGED ABOUT 26 YEARS

3.   KUMARI. POOJA
     D/O SRI T SHANKAR
     AGED ABOUT 24 YEARS

4.   KUMARI. TEJASWINI
     D/O SRI T SHANKAR
     AGED ABOUT 18 YEARS

ALL ARE RESIDING AT NO.65
VANIVILAS ROAD
BASAVANAGUDI
BANGALORE-560004.

5.   THE SUB-REGISTER
     OFFICE OF THE SUB-REGISTER
     KANAKAPURA
     RAMANAGARA DISTRICT.
                                   ...RESPONDENTS
(BY SRI GOPALA GOWDA H.K., ADV. FOR R1 TO R4)
                             3



     THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.08.2010
PASSED IN O.S.92/2008 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE, RAMANAGARA, PARTLY DECREEING
THE SUIT AND REJECTING THE PRAYER FOR RELIEF OF
SPECIFIC PERFORMANCE OF CONTRACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 03.06.2025 COMING ON FOR PRONOUNCEMENT THIS
DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:


CORAM:    HON'BLE MR JUSTICE S.G.PANDIT
          and
          HON'BLE MR JUSTICE T.M.NADAF

                   CAV JUDGMENT

(PER: HON'BLE MR JUSTICE S.G.PANDIT)

This first appeal by the plaintiff under Section 96

of the Code of Civil Procedure, 1908 is directed

against the judgment and decree dated 15.09.2010 in

O.S.No.92/2008 on the file of Additional Senior Civil

Judge at Ramanagara (for short, 'Trial Court'), by

which, the Trial Court directed refund of Rs.5,00,000/-

with interest at 12% p.a., refusing the relief of specific

performance of contract against the respondents/

defendants.

2. Parties would be referred to as they stand

before the Trial Court. Appellant herein was the

plaintiff and respondents herein were defendants

before the Trial Court.

3. Brief facts of the case are that, defendant

No.1 is the absolute owner of the agricultural lands

i.e., suit schedule properties and in the month of

February 2006, defendant No.1 approached the

plaintiff with a proposal to sell the suit schedule

properties on his behalf as well as on behalf of

defendant Nos.2 to 4. Accordingly, it is stated that the

plaintiff and defendants entered into sale agreement

dated 27.02.2006 for a sale consideration of

Rs.36,00,000/-, out of which, plaintiff paid to

defendants an amount of Rs.5,00,000/- through

cheque bearing No.597750/- drawn on Canara Bank,

Chamarajapet Branch, Bengaluru dated 24.02.2006,

which was realized by defendant No.1. It is further

stated that the agreement of sale dated 27.02.2006

was signed by plaintiff and defendant No.1 and the

agreement was not signed by defendant Nos.2 to 4.

The plaint averments would further indicate that the

plaintiff in the month of April 2006 requested

defendant No.1 to produce the original documents

pertaining to the suit schedule properties so as to get

the sale deed registered. But, the defendants replied

that the original sale deeds in respect of the suit

schedule properties have been lost and requested him

to proceed further on the basis of certified copies. As

such, the plaintiff got published paper publication in

'Ee Sanje' Kannada daily newspaper on 25.06.2006,

his intention to purchase the properties and with

regard to loss of title deeds by the defendants.

Further, it is stated that a legal notice came to be

issued by defendant Nos.2 to 4 dated 05.08.2006,

informing the plaintiff not to purchase the suit

schedule properties from defendant No.1 since they

have interest in the suit schedule properties.

4. The plaint averments would also state that

the suit schedule properties were acquired by

defendant No.1 in his individual capacity, out of his

self-earnings and it is not the joint family properties

as indicated by defendant Nos.2 to 4 in their legal

notice. At that juncture, plaintiff is said to have asked

defendant No.1 to get the signatures of defendant

Nos.2 to 4 and defendant No.1 expressed his inability

to get the signatures of defendant Nos.2 to 4 on the

sale agreement. It is stated that the plaintiff has not

committed any breach of terms and conditions of the

sale agreement and plaintiff was always ready and

willing to comply with all the terms and conditions of

the sale agreement.

5. Plaintiff further stated that he got issued

legal notice on 10.08.2006 by Registered Post

Acknowledgement Due to defendant Nos.1 to 4 to

perform their part of obligation under the sale

agreement dated 27.02.2006, as the plaintiff is ready

and willing to perform is part of contract. The said

notice returned un-served with postal endorsement

that 'person left the address' and the plaintiff is stated

to have got published notice through paper publication

in 'Ee Sanje' Kannada Daily Newspaper. It is further

stated that the legal notice dated 10.08.2006

categorically states the readiness and willingness of

the plaintiff to take the conveyance deed and it also

states that the defendants have not made available

the relevant documents including title deeds even

after notice. As the defendants tried to alienate the

properties to one Sri.Brahmaiah, plaintiff was

constrained to file a suit in O.S.No.402/2006 on the

file of the Civil Judge (Jr.Dvn)., Kanakapura for

injunction not to alienate the properties during the

subsistence of the agreement to sell the suit schedule

properties. Plaintiff further submits that defendants

were required to produce the title deeds and revenue

records and get the boundaries fixed by the Survey

Department and also to get the necessary rectification

deed which they failed to do. As the defendants failed

to perform their part of the contract, plaintiff filed suit

in O.S.No.92/2008 against the defendants for a

direction to the defendants to execute and register the

absolute sale deed in favour of the plaintiff in respect

of the suit schedule properties.

6. The defendant No.1 on appearance is said

to have filed written statement denying the execution

of sale agreement in favour of the plaintiff, but

admitted the relationship of defendant Nos.2 to 4 who

are his children. It is contended that the plaintiff has

created the agreement of sale in order to knock off

the properties from the defendants.

7. The Trial Court on the basis of the

pleadings of the parties framed the following issues:

1) Does the plaintiff proves that, the defendants have agreed to sell the suit schedule properties for sale consideration of Rs.36 Lakhs and that, defendant No.1 has executed an agreement of sale on 27th February 2006 and received a sum of Rs.5 Lakhs from the plaintiff as stated in the plaint?

2) Does the plaintiff proves that he was ready and willing to perform his part of contract?



    3)    Whether the plaintiff is entitled for the
          relief    of      specific     performance       of
          contract?


    4)     What order or decree?

8. The plaintiff examined himself as PW1 and

got marked 23 documents as Ex.P1 to Ex.P23. The

defendants have neither led any evidence or cross-

examined PW1.

9. The Trial Court on appreciation of the

material on record has given a finding that the plaintiff

would not be entitled for the relief of specific

performance of contract since defendant Nos.2 to 4

cannot be called upon to execute the sale deed in the

absence of any contract. Consequently, the Trial Court

directed refund of Rs.5,00,000/- with interest at the

rate of 12% p.a., to the plaintiff from the date of suit

till realization.

10. Learned counsel for the respondents/

defendants submitted that in pursuance of the decree,

the defendants have deposited a sum of Rs.8,05,000/-

before the Trial Court on 03.09.2013 itself.

11. Heard the learned senior counsel Sri.Rajesh

Mahale along with learned counsel Sri.Parikshith

Maliya for Sri.G.Narayana Rao, learned counsel for the

plaintiff, learned counsel Sri.Gopala Gowda.H.K., for

respondent Nos.1 to 4 and learned Additional

Government Advocate Sri.V.Shiva Reddy for

respondent No.5. Perused the entire appeal papers as

well as Trial Court records.

12. Learned senior counsel Sri.Rajesh Mahale

for plaintiff/appellant would submit that the Trial Court

committed grave error in not granting the relief of

specific performance of contract while ordering refund

of earnest money of Rs.5,00,000/- with interest to the

plaintiff. Learned senior counsel would submit that

when the Trial Court has come to the conclusion that

the plaintiff has proved the agreement of sale dated

27.02.2006 (Ex.P1) and also receiving of

Rs.5,00,000/- as advance by defendant No.1 and in

the absence of contest by the defendants except filing

written statement by defendant No.1, the Trial Court

ought to have granted the relief of specific

performance of contract. Learned senior counsel

submits that Ex.P10 and Ex.P11 are placed on record

under which, defendant No.1 had purchased the suit

schedule properties to establish that the suit schedule

properties are the self-earned properties of defendant

No.1 and he is competent to enter into agreement of

sale in respect of the suit schedule properties, who

has signed Ex.P1 agreement of sale. Learned senior

counsel would submit that the Trial Court could not

have refused the relief of specific performance of

contract solely on the ground that the defendant

Nos.2 to 4 have not signed the agreement who

claimed interest in the suit schedule properties.

13. Further, learned senior counsel would

submit that defendant Nos.2 to 4 have not filed any

written statement and have neither led their evidence

nor cross-examined PW1. In the absence of any

material to establish their interest or undivided

interest in the suit schedule properties, the Trial Court

could not have refused the relief to the plaintiff.

Further, it is submitted that defendant Nos.2 to 4

have no manner of right over the suit schedule

properties. Learned senior counsel would invite

attention of this Court to legal notice dated

10.08.2006 (Ex.P13) and submits that the plaintiff got

issued legal notice calling upon the defendants to

come forward to execute the sale deed and that the

plaintiff is ready and willing to perform his part of the

contract. Learned senior counsel would submit that in

the notice, plaintiff has made it clear that the plaintiff

is ready to pay the balance sale consideration amount

of Rs.31,00,000/- and to get the sale deed registered

in respect of the suit schedule properties. When the

plaintiff has clearly indicated in his notice that he is

ready to pay the balance sale consideration amount of

Rs.31,00,000/-, the plaintiff need not further establish

his financial capacity, that too in the absence of

contest or cross-examination in that aspect by the

defendants. Thus, it is prayed to allow the appeal and

to grant the relief of specific performance of

agreement at Ex.P1.

14. On the other hand, learned counsel for the

defendants support the judgment and decree passed

by the Trial Court. Further, learned counsel for the

defendants would submit that the defendant No.1

could not have entered into agreement to sell the suit

schedule properties in favour of the plaintiff and that

defendant Nos.2 to 4 by issuing legal notice to the

plaintiff made it clear that defendant No.1 cannot sell

the suit schedule properties. Further, learned counsel

submits that at any point of time, plaintiff was not

ready and willing to perform his part of the contract.

Except making averment that he is ready to pay the

balance sale consideration, he has not produced any

document to establish his financial capacity to pay the

balance sale consideration. Further, learned counsel

would submit that though the legal notice was issued

in the year 2006 calling upon the defendants to

execute registered sale deed, the suit was filed only in

the year 2008, which itself is sufficient to come to the

conclusion that the plaintiff was not ready and willing

to perform his part of the contract during the relevant

period. Thus, he prays for dismissal of the appeal.

15. Having heard the learned counsel for the

parties and on perusal of the appeal papers as well as

the Trial Court records, the following points would

arise for our consideration:

(i) Whether the plaintiff proves the execution of agreement of sale dated 27.02.2006 (Ex.P1) by defendant No.1 and the payment of Rs.5,00,000/- by plaintiff as advance?

(ii) Whether the plaintiff was ready and willing to perform his part of the contract?

(iii) Whether interference is required with the impugned judgment and decree at the hands of this Court?

15. Answer to the above point No.1 in the

affirmative and point Nos.2 and 3 in the negative, for

the following reasons:

16. Since all the points are interlinked, the

same are taken up together.

17. The plaintiff's prayer is for a direction to

the defendants to execute sale deed in respect of the

suit schedule properties on the basis of agreement of

sale dated 27.02.2006 (Ex.P1) executed by defendant

No.1, the father of defendants No.2 to 4. In terms of

Ex.P1, the sale agreement dated 27.02.2006, the sale

consideration is Rs.36,00,000/- and it also indicates

payment of Rs.5,00,000/- towards advance amount

by way of cheque bearing No.597750 dated

24.02.2006 drawn on Canara Bank, Chamarajapet

Branch, Bengaluru. The said cheque is said to have

been realized by defendant No.1, whereas the plaintiff

was liable to pay balance sale consideration of

Rs.31,00,000/- at the time of registration of sale

deed, on completion of other formalities. Ex.P10 and

Ex.P11/sale deeds would indicate that defendant No.1

purchased the suit schedule properties and it is his

self-acquired property. Defendant Nos.2 to 4 have

admittedly not signed Ex.P1/Agreement of sale, but

they claimed interest in the suit schedule properties.

The defendants 2 to 4 got issued notice dated

05.08.2006 communicating their objection for

sale/purcahse of suit schedule properties by plaintiff.

Admittedly, defendants 2 to 4 have not filed their

written statement and they have also not cross-

examined P.W.1/plaintiff. There is no material

whatsoever to support their contention. Though

defendant No.1 in his written statement denied the

execution of Ex.P1/Agreement of sale, no evidence is

adduced in support of his contention. In the absence

of cross-examination or leading evidence to

substantiate their contentions, the case of the plaintiff

with regard to execution of agreement of sale and

payment of advance amount of Rs.5,00,000/- through

Cheque which is realized by defendant No.1 is to be

believed and it is held that the plaintiff has proved

execution of Ex.P1/agreement of sale dated 27.2.2006

as well as payment of advance amount of

Rs.5,00,000/-.

18. Learned senior counsel for the

plaintiff/appellant contended that the trial court

committed a grave error in not granting specific

performance of agreement, directing the defendants

to execute the sale deed in favour of the plaintiff. It is

also submitted that only on the ground that

defendants No.2 to 4 have not signed the agreement,

the trial Court could not have denied the relief of

specific performance.

19. It is true that when defendant No.1 is the

owner of suit schedule properties, having purchased

under Ex.P10 and Ex.P11 sale deeds, only because

defendants No.2 to 4 have not signed Ex.P1/

agreement to sell, the trial Court could not have

denied the relief of specific performance. But, this

Court being fact finding Court in statutory first appeal

has to examine whether the plaintiff was always ready

and willing to perform his part of the contract and

whether the plaintiff has established his financial

capacity to pay the balance sale consideration. Unless

the plaintiff proves his readiness and willingness to

perform his part of contract by producing cogent

material, the plaintiff would not be entitled for relief of

specific performance. Merely because, the defendants

have not cross-examined the plaintiff on that aspect

and that the defendants have not lead their evidence,

let alone would not entitle the plaintiff for relief of

specific performance in the absence of proving his

readiness and willingness to perform his part of the

contract. In the absence of leading evidence by

defendants and cross-examining PW.1., Court has

responsibility and duty bound to examine as to

whether the plaintiff was ever ready and willing to

perform his party of contract in view of Section 16(c)

of the Specific Relief Act, 1963. In terms of Ex.P1,

agreement to sell dated 27.02.2006, the plaintiff has

paid a sum of Rs.5,00,000/- to defendant No.1 out of

sale consideration of Rs.36,00,000/-. Major amount

of Rs.31,00,000/- was due from the plaintiff to the

defendants towards sale consideration.

20. The plaintiff in his legal notice placed on

record as Ex.P13 has averred that from the date of

sale agreement till issuance of notice at Ex.P13, the

plaintiff is ready to pay the balance sale consideration

amount of Rs.31,00,000/- and to get the sale deed

executed. The plaintiff has not established his

financial capacity or indicated his financial capacity as

on the date of Ex.P13 or subsequently. As held by the

Hon'ble Apex Court, readiness and willingness are not

one, but two separate elements. Readiness means,

capacity of the plaintiff to perform the contract which

would include financial position to pay the purchase

price, whereas the willingness refers to the intention

of the plaintiff, as a purchaser to perform his part of

the contract.

21. In the instant case, except stating that he

is ready to pay the balance sale consideration amount

of Rs.31,00,000/- which is substantial amount as on

2006, the plaintiff has failed to establish his financial

capacity to pay the balance sale consideration. The

plaintiff in his evidence has not uttered a single word

about his financial capacity or placed on record any

document to indicate his financial position.

Establishing financial position or financial capacity

would not mean that the plaintiff shall keep ready the

cash or amount in his account as on the relevant date,

establishing the financial capacity.

22. Financial position would mean that the

plaintiff/purchaser has to establish that he has the

capacity to garner the necessary finance or balance

sale consideration as on the relevant date.

23. The Hon'ble Apex Court in a decision

reported in (2022) 14 SCC 793 in the case of

P.DAIVASIGAMANI VS. S.SAMBANDAN while

considering Section 16(c) of the Specific Relief Act,

1963 explained the meaning of readiness and

willingness. Readiness would mean that capacity of

plaintiff to perform the contract which would include

financial position to pay the purchase price and

willingness refers to the intention of plaintiff as a

purchaser to perform his part of contract including the

conduct of plaintiff/purchaser and attending

circumstances. Relevant paragraphs 21 and 22 of the

above decision reads as follows:

"21. Readiness and willingness are not one, but two separate elements. Readiness means the capacity of the plaintiff to perform the contract, which would include the financial

position to pay the purchase price. Willingness refers to the intention of the plaintiff as a purchaser to perform his part of the contract. Willingness is inferred by scrutinising the conduct of the plaintiff purchaser, including attending circumstances [See para 2 in Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526]. Continuous readiness and willingness on the part of the plaintiff purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance [See para 5 in N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115. Also see Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-28) 55 IA 360 : AIR 1928 PC 208].

22. The expression "readiness and willingness" used in Section 16(c) of the said Act, has been interpreted in a catena of decisions by this Court, in the light of facts and circumstances of the cases under consideration for the purpose of granting or refusing to grant the relief of specific performance of a contract. The said expression cannot be interpreted in a

straitjacket formula. In a very apt decision of this Court in Syed Dastagir v. T.R. Gopalakrishna Setty [Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337] , a three-Judge Bench of this Court, construing a plea of "readiness and willingness to perform"

in view of the requirement of Section 16(c) and its Explanation, observed as under : (SCC p. 341, para 9)

"9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and

law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language

in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness"

has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.

       (vii). In     terms      of    Section        16-(c)       of
Specific    Relief     Act,     1963,       readiness         and

willingness on the part of the plaintiff is a condition precedent for grant of specific performance of agreement. Unless and until the plaintiff proves by producing cogent evidence that he was always ready and willing to perform his part of the contract from the date of entering into agreement till conclusion of the suit, the plaintiff would not be entitled for relief of specific performance. The readiness and willingness to perform his part of

the contract shall be throughout. The readiness refers to the financial capacity and willingness refers to conduct of the plaintiff to perform his part of the contract."

24. The material on record would not remotely

suggest readiness and willingness on the part of the

plaintiff to perform his part of the contract i.e., to pay

the balance sale consideration. The plaintiff at least

shall show his inclination to get the sale deed

executed by offering to pay the balance sale

consideration by showing his financial status or he had

the capacity to garner required balance sale

consideration. It is not the case of the plaintiff that he

was ready with the balance sale consideration. On the

hand, the only averment in Ex.P13 notice dated

10.08.2006 is to the effect that the plaintiff is ready to

pay the balance sale consideration. However, PW1 has

not adduced anything about the willingness or

financial capacity in his evidence.

25. It is also settled position of law that the

plaintiff has to succeed on his own merits not on the

weakness of the defendant. In the above

circumstances, this Court on the material on record

has come to the conclusion that the plaintiff was not

ready and willing to perform his part of the contract to

pay the balance sale consideration. Moreover,

Ex.P13-notice is dated 10.08.2006 whereas the plaint

is presented before the trial Court only on 24.03.2008,

nearly 2 years later from the date of issuance of legal

notice, which itself shows the plaintiff's interest or

readiness and willingness in getting the sale deed

executed.

26. For the reasons recorded above, there is no

merit in any of the contentions raised by the

plaintiff/appellant. Hence, the following order:

The appeal stands dismissed. The judgment and

decree dated 15.09.2010 in O.S.No.92/2008 on the

file of Additional Senior Civil Judge at Ramanagara

stands confirmed.