Karnataka High Court
Ashwathanarayan vs K. P. Mahesh on 7 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.1326/2022 (SP)
BETWEEN:
1. ASHWATHANARAYAN
S/O. LATE C.H.CHIKKANNA
AGED ABOUT 56 YEARS
R/AT GEDARE VILLAGE, HOSUR HOBLI
GOWRIBIDANUR TALUK-561 208
CHIKKABALLAPURA DISTRICT. ... APPELLANT
(BY SRI. CHETHAN A.C., ADVOCATE)
AND:
1. K.P.MAHESH
S/O. LATE PUTTAPPA
AGED ABOUT 60 YEARS
R/AT KALKERE VILLAGE
HORAMAVU POST
K.R. PURAM HOBLI
BENGALURU EAST TALUK
BENGALURU-560 043.
2. THE BRANCH MANAGER
VIJAYA BANK, RAILWAY STATION ROAD
GOWRIBIDANUR TOWN-561 208
CHIKKABALLAPURA DISTRICT. ... RESPONDENTS
(BY SRI. HARISH KUMAR M.R., ADVOCATE FOR R1;
VIDE ORDER DATED 22.02.2023,
APPEAL DISMISSED AS NOT PRESSED AGAINST R2)
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.08.2022
PASSED IN R.A.NO.6/2020 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 06.10.2018 PASSED IN O.S.NO.10/2016
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
GOWRIBIDANUR.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.10.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellant and learned
counsel for respondent No.1.
2. This second appeal is filed against concurrent finding
of the Trial Court in O.S.No.10/2016 dated 06.10.2018 directing
the defendant No.1 to execute the registered agreement of sale
in terms of Ex.P7 and the same is confirmed in R.A.No.6/2020
vide judgment dated 10.08.2022.
3. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of specific performance, it
is averred in the plaint that defendant No.1 being the absolute
owner and in possession of 2 acress, 20 guntas of land which is
morefully described in the schedule, the same was acquired by
him in the family partition and he has executed the sale
agreement on 07.07.2014 for sale consideration of
Rs.8,00,000/- and received advance amount of Rs.3,00,000/-
and the same is paid by way of Demand Draft and by way of
cash. It is the case of the plaintiff that the period mentioned in
the agreement is 1½ year to perform the contract and
subsequent to execution of agreement also, defendant No.1 has
received another advance amount of Rs.1,00,000/- on
30.10.2014 by way of cash and assured him to execute the sale
deed. But, inspite of his demand, he did not perform his part of
contract. Hence, issued legal notice on 02.12.2015 to defendant
No.1. He gave untenable reply and did not come forward to
execute the sale deed. Hence, he was constrained to file the suit.
It is also his case that though he waited on 04.01.2016 at Sub-
Registrar Office by arranging the amount towards balance
consideration, he did not come forward to execute the sale deed.
4. In pursuance of the suit summons, the defendant
Nos.1 and 2 appeared through their counsel. The defendant No.1
filed the written statement that he is ready to repay the
borrowed amount of Rs.4,00,000/- with interest, since he is not
intending to execute the agreement of sale and instead of
executing the document of mortgage, the said agreement of sale
was executed and denied all other averments made in the plaint.
He denied the averment that plaintiff is always ready and willing
to perform his part of contract. It is his contention that land
originally belongs to his grand-father and he bequeathed the
said land to his mother Nanjamma under the registered gift deed
dated 23.01.1984 and the same was 'Stridana' property.
Thereafter, her 5 children have allotted the same and he was
allotted 2 acres, 20 guntas. It is also contended that suit land to
an extent of 2 acres, 20 guntas became joint family property,
since he is having wife and child. Hence, prayed the Court to
dismiss the suit.
5. The Trial Court having considered the pleadings of
the parties, framed the following issues:
"1) Whether the plaintiff proves that the defendant
No.1 has executed agreement of sale on
07.07.2014 in his favour and received an
advance amount of Rs.3,00,000/- and another
advance amount of Rs.1,00,000/- on
30.10.2014 in total Rs.4,00,000/- out of sale
consideration amount of Rs.8,00,000/-?
2) Whether there is a liability under the mortgage
dated 27.09.2013 in respect of the landed
property in favour of defendant No.2?
3) Whether the plaintiff proves that he has been
then and now ready and willing to perform his
part of contract?
4) Whether the defendant No.1 proves that the
suit document is created one?
5) Whether the defendant No.1 further proves
that the schedule landed property is ancestral
and joint family property?
6) Whether the plaintiff is entitled for the relief of
specific performance of contract?
7) What decree or order?"
6. The plaintiff, in order to prove his case, examined
himself as P.W.1 and examined two witnesses as P.W.2 and
P.W.3 and got marked the documents as Exs.P1 to P31. On the
other hand, defendant No.1, in order to substantiate his defence,
examined himself as D.W.1 and also examined one witness as
D.W.2 and got marked the documents as Exs.D1 to D10.
7. The Trial Court having considered both oral and
documentary evidence, answered issue Nos.1 to 3 that sale
agreement was executed and defendant No.1 received
substantial amount of sale consideration and there was liability
in favour of the defendant No.2 and plaintiff was always ready
and willing to perform his part of contract and the defence of the
defendant No.1 that document was created was not accepted
and the other contention that granted property is an ancestral
and joint family property is not accepted and granted the relief
of specific performance.
8. Being aggrieved by the judgment and decree of the
Trial Court. An appeal was filed before the First Appellate Court
in R.A.No.6/2020 and the First Appellate Court also having
considered the grounds urged in the appeal memo and also the
contention of learned counsel for the appellant formulated the
points whether the plaintiff has proved execution of sale
agreement and payment of sale consideration and he was always
ready and willing to perform his part of contract and whether the
findings of the Trial Court is perverse and it requires interference
of this Court. The First Appellate Court also having reassessed
both oral and documentary evidence, answered point Nos.1 and
2 as 'affirmative' and comes to the conclusion that finding is not
perverse and it does not require any interference by answering
point Nos.3 and 4. Hence, the present regular second appeal is
filed before this Court.
9. This Court having considered the grounds urged in
the second appeal and having heard learned counsel for the
appellant and learned counsel for respondent No.1, vide order
dated 22.02.2023, framed the following substantial question of
law, which reads as hereunder:
"(i) Whether the Trial Court and also the First
Appellate Court have erred in answering issue
No.3 that the plaintiff was always ready to
perform his part of contract with regard to
readiness and willingness?".
10. The main contention of learned counsel for the
appellant in this second appeal is that sale agreement is dated
07.07.2014 and time stipulated in the agreement is 1½ year and
balance amount payable was Rs.4,00,000/- in terms of the
agreement of sale. Learned counsel would submit that the
defendant No.1 was in need of money and hence, he borrowed
the money and he was not having any intention to sell the
property. The counsel also would contend that, even though
legal notice was issued and the same is not produced before the
Court. The counsel also would vehemently contend that plaintiff
relies upon Ex.P31-Statement of account and the same does not
disclose that from the date of agreement till the filing of the suit,
the plaintiff was having money to pay the amount. Hence, he
was not having any capacity to pay the balance sale
consideration, though amount is disclosed in Ex.P31 and the
same is not from the date of agreement of sale. The First
Appellate Court in detail though discussed in paragraph Nos.26
to 30, but failed to take note of the fact that plaintiff was not
ready and even not shown the capacity. The counsel also
vehemently contend that though the Trial Court also discussed in
detail in paragraph Nos.25 to 30 with regard to capacity is
concerned and finding given by the Trial Court is also erroneous
and ought not to have granted the relief of specific performance,
since the plaintiff was not always ready and willing to perform
his part of contract.
11. Learned counsel for the appellant in support of his
argument relied upon the judgment in SRI PUNNY AKAT
PHILIP RAJU, SINCE DEAD BY HIS LRS. V. SRI DINESH
REDDY reported in ILR 2016 KAR 2252 and brought to notice
of this court paragraph Nos.50, 51 and 52, wherein discussion
was made with regard to capacity to make the payment and in
paragraph No.51, it was observed that the copies of the
registered sale deeds which are produced would only show that
prior to entering into agreement of sale, the plaintiff and his
brothers had purchased immovable properties. Though that
shows financial capability of the plaintiff and his brothers, it also
shows that they had already made investment in purchase of
those properties and therefore, it was obligatory on the part of
the plaintiff to demonstrate before the Court even after such
investment, still he was possessed of the balance sale
consideration which is required to complete the sale transaction.
In paragraph No.50, it is observed that balance sale
consideration payable by the plaintiff within 45 days from the
date of the agreement was Rs.65 lakhs. It is settled law that if
the plaintiff wants specific performance, then he has to
demonstrate his readiness and willingness from the date of the
suit till the date of judgment and decree.
12. Per contra, learned counsel for respondent No.1-
plaintiff would submit that though defendant No.1 denies the
agreement of sale dated 07.07.2014, the same is a registered
document and false defence was taken in the written statement
that the same is an ancestral property and the fact that property
was gifted in favour of the mother and among the legal heirs,
got divided the same and the present property is allotted in
favour of defendant No.1 in a family partition is not in dispute.
The counsel also brought to notice of this Court Ex.P7-
agreement of sale and the defendant No.1 owes money to
defendant No.2-Bank, since he had availed loan from the bank
and in order to clear the said loan only, he has executed the said
agreement and received the sale consideration of Rs.3,00,000/-
on the date of agreement and even though, balance amount of
Rs.5,00,000/- was payable at the time of registration, but
subsequently, received an amount of Rs.1,00,000/- and having
received the same, executed the document of Ex.P29. The
counsel also would submit that plaintiff has substantiated that he
was having money in terms of Ex.P31. The counsel also would
submit that plaintiff had paid substantial amount i.e., 50% of the
amount payable in terms of the agreement of sale and even the
plaintiff was having money to pay the balance amount, however
the defendant No.1 got issued the legal notice. Apart from that,
even when the Court directed to deposit the amount, amount
was deposited before the Court. The counsel also would submit
that the bank filed an application in the Execution Petition filed
by the respondent and out of the amount which was deposited
by the plaintiff, bank loan was also cleared as per the directions
of the Court. The defendant No.1, inspite of receiving the
amount of Rs.4,00,000/- and also agreed to clear the bank loan
of defendant No.2 did not clear the bank loan. Even, during the
pendency of the suit also, did not clear the loan and the bank
loan was cleared only from the money received from the
plaintiff. Hence, the very contention that plaintiff was not always
ready and willing to perform his part of contract cannot be
accepted.
13. Having heard learned counsel for the appellant and
learned counsel for respondent No.1, though agreement of sale
dated 07.07.2014 is disputed by taking the defence that it was
only a loan amount which the defendant No.1 had borrowed, the
Court has to take note of the very document of agreement of
sale which is marked as Ex.P7. On perusal of document Ex.P7, it
clearly discloses that there is a recital in the agreement of sale
that he got the property by way of family partition dated
11.12.2012 which was allotted in favour of defendant No.1. In
the agreement, it is specifically mentioned that he was in need
of money, hence he had agreed to sell the property for an
amount of Rs.8,00,000/- and received Demand Draft for an
amount of Rs.2,00,000/- and an amount of Rs.1,00,000/- by
way of cash and in all received the amount of Rs.3,00,000/-. The
recital of the document is also very clear that remaining amount
was payable at the time of registration within a period of 1½
year and the defendant No.1 has agreed to furnish all the
documents for the registration. It is also mentioned in the
document itself that he was in need of money to clear the bank
loan which he has availed from Vijaya Bank and property was
also mortgaged in favour of the bank and he had undertaken to
get release the mortgage and agreed to execute the sale deed in
favour of the plaintiff or to the nominee of the plaintiff. The
defendant No.1 also categorically agreed to receive the balance
amount at the time of registration.
14. Having taken note of the recitals of the document, it
is very clear that, in order to clear the bank loan itself, the
defendant No.1 entered into an agreement of sale with the
plaintiff. However, inspite of receiving an amount of
Rs.3,00,000/- to clear the bank loan, he did not clear the loan.
Apart from that, though there was no recital to make the
balance payment, but defendant No.1 demanded for additional
money and executed the document of Ex.P29 acknowledging
receipt of additional amount of Rs.1,00,000/-, wherein also he
reiterated that document of agreement of sale was registered
earlier. Hence, both the Courts accepted the case of the plaintiff
that there was an agreement of sale and really, if the plaintiff is
not ready to purchase the property and not having financial
capacity, the document Ex.P29 would not have come into
existence. Since, the defendant No.1 was in need of money, he
had executed the document Ex.P29 acknowledging receipt of
additional amount of Rs.1,00,000/-.
15. It has to be noted that there was no recital in the
sale agreement to pay balance amount in between, however, the
plaintiff made the payment. Hence, it is the very contention of
the appellant-defendant No.1 that plaintiff was not always ready
and willing to perform his part of contract. Section 16(c) of the
Specific Relief Act is very clear that he has to plead and
substantiate the said fact and document of Ex.P29 substantiates
the same. It is also the case of the plaintiff that he was having
money to pay the balance amount and also the fact that legal
notice was issued before the expiry of time stipulated in the
agreement of sale i.e., 1½ year on 02.12.2015 is not in dispute
and the sale agreement is dated 07.07.2014 and untenable reply
was also given by defendant No.1 to the said legal notice
acknowledging the amount received from him. But, in the
agreement of sale, he has specifically averred that he was in
need of money and borrowed Rs.4,00,000/- with an intention to
create a mortgage. But the fact is that already there was a
mortgage in favour of the bank is not disputed. The document of
Ex.P14 also clearly disclose that there was mortgage in favour of
Vijaya Bank and this mortgage was made immediately after
property came to him in the year 2012, but mortgage deed was
executed on 25.09.2013 in favour of the bank. Hence, the recital
of the agreement of sale is also clear that he was in need of
money to clear the bank loan and he did not got released the
property from the bank as agreed.
16. Apart from that, learned counsel for the respondent
No.1/plaintiff also brought to notice of this Court by placing
certified copy of the order sheet in Execution Petition
No.46/2018. When he had filed Execution petition before the
court, an application is filed on behalf of JDR No.2 and the same
was allowed permitting to get release a sum of Rs.1,82,755/-
out of the deposited amount of Rs.4,00,000/- by DHR in the case
and the same substantiates that the mortgage money payable in
favour of the bank is not cleared out of the amount received
from the plaintiff by the defendant No.1 and got cleared the
bank loan which was deposited before the Court as directed by
the Trial Court and counsel would submit that belated payment
is made. But, counsel for appellant did not make any submission
that defendant No.1 made any payment in favour of the bank
i.e., to defendant No.2, though he had agreed to get it release
the mortgage deed executed by him in favour of the bank. The
very contention that he was not having money also cannot be
accepted.
17. The plaintiff also relied upon the document of Ex.P31
that he was having money. But, learned counsel for the
appellant would vehemently contend that the said statement of
account not substantiates that the plaintiff was having money
from the date of agreement till the date of decree. The suit was
filed in 2016 and statement of account is placed before the Court
for the period from 31.10.2017 to 26.02.2018 and the judgment
and decree was passed on 06.10.2018 and the statement of
account also disclose that he was having money of Rs.4,52,592/-
even on 26.02.2018 and balance amount payable is only
Rs.4,00,000/- and the very contention of the learned counsel
that plaintiff was not having money also cannot be accepted and
the judgment was passed after marking of document Ex.P31.
Hence, the judgment referred supra which was relied upon by
learned counsel for the appellant will not come to the aid of the
appellant. The Division Bench of this Court in paragraph Nos.50
to 52 of the judgment has taken note that balance sale
consideration payable by the plaintiff within 45 days from the
date of the agreement was Rs.65 lakhs. But in the case on hand,
the amount payable at the time of registration is Rs.5,00,000/-,
but made additional payment of Rs.1,00,000/-, even though not
liable to make payment and substantial payment is made and
the same is observed by both the Courts.
18. I have already pointed out that in terms of Ex.P29,
even though there was no condition to pay the balance amount,
additional amount of Rs.1,00,000/- was also paid and Ex.P31-
statement of account discloses that the plaintiff was having
money and substantial amount i.e., 50% was already paid by
the plaintiff. No doubt, in paragraph No.50 of the judgment of
the Division Bench of this Court, it is observed that, it is settled
law that if the plaintiff wants specific performance, then he has
to demonstrate his willingness and willingness from the date of
suit till the date of judgment and decree. In the case on hand,
before filing the suit, legal notice was issued and the same is not
disputed. The defendant No.1 also gave untenable reply that
agreement was not executed and from the date of suit, till the
judgment and decree, the plaintiff was having money in terms of
Ex.P31. When such being the case, the very contention of the
appellant that plaintiff was not having capacity to make the
balance payment cannot be accepted and the material available
on record is very clear that time stipulated for performance of
contract is 1½ year and legal notice was issued before 1½ year
which was the time stipulated for performance of the contract
and the plaintiff also made additional payment, though the same
was not required. The statement of account also discloses that
the plaintiff was having financial capacity to make payment.
Hence, the very contention of the appellant that plaintiff was not
having capacity to make the balance amount cannot be accepted
and the material clearly discloses that he was always ready and
willing to perform his part of contract and the same is pleaded
and substantiated before the Trial Court and the First Appellate
Court. Hence, I answer the substantial question of law framed by
this Court accordingly that the Trial Court and the First Appellate
Court have not erred in answering issue No.3 that the plaintiff
was always ready and willing to perform his part of contract.
Therefore, the appellant fails in this second appeal and there is
no perversity with regard to readiness and willingness also.
19. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
