Karnataka High Court
Sri. Mansoor Nazeer vs H R Rehaman, S/O Abdul Nafeez, Since Dead ... on 30 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 403 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.403 OF 2024 (SP)
BETWEEN:
SRI. MANSOOR NAZEER
S/O LATE NAZEER AHMED
AGED ABOUT 63 YEARS
R/AT NO.16, ASLAM BUILDING,
P H COLONY,
TUMAKURU 572102
...APPELLANT
(BY SRI RAMESH K R, ADVOCATE)
AND:
Digitally signed
by DEVIKA M H R REHAMAN,
Location: HIGH S/O ABDUL NAFEEZ,
COURT OF SINCE DEAD BY LRS
KARNATAKA 1. SMT. MEHAR TAJ
W/O REHAMAN
AGED ABOUT 85 YEARS,
2. SMT NOWSIN TAJ
W/O DADAPEER
AGED ABOUT 56 YEARS,
3. SRI R FAYAZ AHMED
S/O REHAMAN
AGED ABOUT 52 YEARS,
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RSA No. 403 of 2024
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RESPONDENTS NO.1 TO 3 ARE
R/AT NO.191A, 7TH CROSS,
JAYAPURA MAIN ROAD,
P H COLONY,
TUMAKURU 572102
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.12.2023
PASSED IN R.A.NO.214/2022 ON THE FILE OF THE VII
ADDITIONAL DISTRICT JUDGE, TUMAKURU AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This appeal is listed for admission. Heard the learned
counsel for the appellant. This appeal is filed against the
concurrent finding of the Trial Court as well as the First
Appellate Court.
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2. The factual matrix of the case of the plaintiff
before the Trial Court that the defendant entered into an
agreement of sale dated 04.10.2007 agreeing to execute
the sale deed for sale consideration of Rs.6,50,000/- and
as on the date of agreement, he has received an amount
of Rs.1,01,000/- and agreed to pay the remaining amount
within three months subject to furnishing of the
documents for registration by the defendant and also he
has to clear the bank loan and he will come forward to
execute the sale deed for him or any nominee and inspite
of providing the documents, he took additional amount of
Rs.50,000/- on 25.10.2007 as well as an amount of
Rs.1,00,000/- on 04.11.2007 and in all he has received an
amount of Rs.2,51,000/- but the defendant did not come
forward to execute the sale deed, hence, legal notice was
issued and when he did not execute the sale deed, filed
the suit for the relief of specific performance based on the
sale agreement dated
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3. The Trial Court having considered the pleadings
of the parties, framed the Issues as well as additional
Issue that whether he was always ready and willing to
perform his part of the contract. The Trial Court allowed
the parties to lead their evidence. In order prove the case
of the plaintiff, the plaintiff himself examined as PW1 and
also one witness as PW2 and got marked the document at
Ex.P1 to P3. On the other hand, defendant himself
examined as DW1 but not produced any documentary
evidence. The Trial Court having considered both oral and
documentary evidence placed on record, answered Issue
No.1 as negative since the defendant took the defence
that time is an essence of contract and the trial court also
considered Additional Issue No.1 with regard to ready and
willingness and answered the same as affirmative having
considered that admittedly as on the date of the
agreement, an amount Rs.1,01,000/- was paid and out of
remaining amount, a sum of Rs.1,50,000/- as additional
amount was also paid and in paragraph 17, the trial court
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taken note of the fact that DW1 categorically admitted
that he has not cleared the bank loan and he has not
produced any document as stipulated in the agreement
and it is further observed that it is crystal clear that the
said three months time is not for the plaintiff but it is for
the defendant to clear the loan at Sharada Mahila Co-
operative Bank and the trial court also taken note of the
fact that an additional amount was also received to the
tune of Rs.1,50,000/- on two dates immediately after
execution of the sale agreement. Hence, the trial court
comes to the conclusion that the plaintiff was always ready
and willing to perform his part of contract and time is not
essence of the contract and the defendant though received
the additional amount as well as advance amount, he did
not clear the loan amount. Hence, it is fault on the part of
the defendant in not coming forward to execute the sale
deed and hence, the trial court grant the relief of specific
performance.
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4. Being aggrieved by the judgment and decree of
the Trial Court, an appeal was preferred in
R.A.No.214/2022. The First Appellate Court having
considered the grounds urged in the appeal, formulated
the points and on re-appreciation of both oral and
documentary evidence placed on record answered the
point as negative taking note of the additional payment as
well as advance payment and in paragraph 19, it is held
that the time is the essence of contract and plaintiff is
ready and willing to perform his part of contract and on re-
appreciation of material on record, the first appellate court
comes to the conclusion that inspite of payment of
additional amount also the defendant did not produce the
documents and not clear the loan in the bank thus,
confirmed the judgment of the Trial Court. Being
aggrieved by the concurrent finding of both the Courts, the
present appeal is filed before this Court.
5. The main contention of the learned counsel for
the appellant that both the Courts have committed an
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error in considering the document of agreement of sale
wherein three months time was stipulated and the
respondent did not comply with the terms and the counsel
also would vehemently contend that both the Courts are
not justified in decreeing the suit even though respondent
has failed to establish that he was ready and willing to
perform his part of contract. Even though the respondent
has not adduced evidence on additional issue after
remanding the matter, the trial court erroneously comes to
the conclusion that the plaintiff was always ready and
willing to perform his part of contract. Hence, the very
reasoning given by both the Courts are erroneous. Thus,
this Court has to frame the substantive question of law
admitting the appeal.
6. Having heard the learned counsel appearing for
the appellant and also on perusal of the reasoning given
by both the Courts it discloses that both the Courts have
relied upon the document of Ex.P1. No doubt, sale
consideration was fixed at Rs.6,50,000/- and earnest
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money of Rs.1,01,000/- was received on the date of
agreement itself and recital in the agreement is very clear
that defendant has to furnish the documents for
registration as well as he has to clear the loan which he
had availed and the sale of the property is also for the
purpose of clearing the loan amount and the document is
also very clear that the agreement was dated 04.10.2007,
advance amount was received on the same day and within
a period of 20 days, an additional amount of Rs.50,000/-
was received and within one month also, again an amount
of Rs.1,00,000/- was received and though in the
agreement, no such recital with regard to the payment is
concerned, but the plaintiff himself made the payment
when the demand was made to the tune of Rs.1,50,000/-
as an additional amount. Hence, it is clear that the
plaintiff was always ready and willing to obtain the sale
deed but the appellant/defendant did not clear the loan as
well as not furnished any document and to that effect
there is an admission on the part of DW1 in the cross-
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examination and the same has been considered by both
the Courts while appreciating both oral and documentary
evidence placed on record. When such being the case, the
very contention of the counsel for the appellant, this Court
has to frame substantive question of law regarding plaintiff
was not ready to perform his part of contract does not
arise since both oral and documentary evidence placed on
record is very clear that the plaintiff was always ready and
willing to perform his part of contract and time is also an
essence of contract subject to the defendant has to furnish
the documents as well as to clear the loan. Hence, rightly
taken note of question of fact as well as question of law
hence, I do not find any error in the judgment of the Trial
Court as well as the First Appellate Court regarding re-
appreciation of material on record particularly taking into
note of the contents of Ex.P1. When such being the case,
the question of framing any substantive question of law
does not arise and hence, I do not find any ground to
admit the appeal.
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7. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
