Karnataka High Court
Sri. Mallappa vs Sri. Irappa on 6 March, 2025
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NC: 2025:KHC-K:1479
RFA No. 200163 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 200163 OF 2019 (SP-)
BETWEEN:
SRI. MALLAPPA
S/O SATAPPA HULASUR,
AGED ABOUT: 56 YEARS,
OCC: AGRICULTURE,
R/O: MANNUR,
TQ: SINDAGI,
DIST: VIJYAPUR - 586 101.
...APPELLANT
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
Digitally signed by 1. SRI. IRAPPA V/O DATED 30.05.2024
BASALINGAPPA S/O MANAPPA BADAGER,
SHIVARAJ SINCE DECEASED BY
DHUTTARGAON AGED ABOUT: 28 YEARS, LRS R1 (A) TO R1 (C)
Location: HIGH OCC: AGRI & BUSINESS
COURT OF R/O: MANNUR, TQ:SINDAGI
KARNATAKA
DIST: VIJAYAPUR - 586 101.
1A. SMT. ANJALI
W/O IRANNA BADAGER
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
1b. SRI SRINIVAS
S/O IRANNA BADAGER
AGE: MAJOR,
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NC: 2025:KHC-K:1479
RFA No. 200163 of 2019
OCC: NIL,
1c. VAISHNAVI
D/O IRANNA BADAGER
AGE: MAJOR,
OCC: NIL,
ALL ARE R/O: MANNUR,
TQ: SINDAGI,
DIST: VIJAYAPURA.
...RESPONDENTS
(BY SMT. RATNA N.SHIVAYOGIMATH, R1(A);
R1(B) AND R1(C) - ABSENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW
THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 27.08.2018 PASSED BY THE HON'BLE ADDITIONAL
SENIOR CIVIL JUDGE AND J.M.F.C., SINDAGI, IN
O.S.NO.96/2017, IN THE INTEREST OF JUSTICE.
THIS REGULAR FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
1. Heard the learned counsel for the appellant, as
well as learned counsel appearing for the respondents.
2. This appeal is against a decree for refund of
earnest money of Rs.12,50,000/- with interest at the rate of
18% per annum, from the date of agreement for sale, till the
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repayment. The relief of specific performance sought for by
the plaintiff is rejected on the premise that, the plaintiff has
not established readiness and willingness to perform his part
of contract.
3. The appellant/defendant is before this Court
contending that, the decree passed is an ex-parte decree
and the same has to be set aside and the matter has to be
remanded to the trial Court.
4. Learned counsel for the appellant/defendant
would also submit that, there was no agreement for specific
performance, but there was only a loan transaction between
the plaintiff and the defendant, and as a security for the said
transaction, the defendant has executed agreement of sale.
Thus, he would contend that, the decree for refund of
earnest money has to be set aside.
5. Learned counsel for the plaintiff/respondents
(L.Rs of original defendant), on the other hand would
contend that, the agreement for sale is duly registered.
Despite service of summons, the defendant did not appear
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and contest the matter and no case is made out to remand
the matter on account of default on the part of defendant to
contest the matter.
6. It is also her contention that, when the defendant
raises a defence that the said transaction is not a sale
transaction, but only a loan transaction, and the agreement
was entered into as a security for the loan, the defendant
unless makes out a case that he repaid the loan amount, he
is not entitled to make a prayer to remand the matter to the
trial Court.
7. This Court has considered the contentions raised
at the Bar and perused the records.
8. Following point arises for consideration:
"Whether the defendant/appellant has made out
a case to remand the matter to the trial Court for fresh
consideration?"
9. As already noticed, decree for specific
performance is declined and the trial Court has granted a
decree for refund of earnest money with interest at the rate
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of 18% per annum from the date of agreement, till
repayment.
10. Now the defendant is before this Court, raising a
contention that, the transaction was not a sale transaction,
but a loan transaction. It is noticed that, the agreement for
sale is duly registered and the agreement for sale would also
reveal that, Rs.12,50,000/- is paid to the defendant. The
defendant has neither filed written statement nor led
evidence, despite service of notice. Even before this Court,
the defendant has not raised the contention that, he has
repaid the loan amount.
11. Under the circumstances, this Court does not find
any justifiable ground to remand the matter to the trial
Court, when the trial Court has passed a decree based on the
evidence i.e. registered agreement for sale. However, it is
noticed that, the trial Court has also passed a decree for
interest at the rate of 18% per annum.
12. The agreement is of the year 2013. Keeping this
aspect in the mind, this Court is of the view that, the interest
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at the rate of 18% is higher as rightly argued by the learned
counsel for the appellant. Hence, the following order:
ORDER
(i) The appeal is allowed in-part;
(ii) The impugned Judgment and decree
passed by the trial Court are modified, reducing
interest from 18% per annum to 12% per annum
from the date of agreement, till realization of the
entire amount.
(iii) The decree for refund of Rs.12,50,000/-
is sustained.
(iv) No order as to costs.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
SVH
