Karnataka High Court
Mr T R Sathish Heggade vs Munishappa on 14 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:40612
RSA No. 45 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 45 OF 2024 (SP)
BETWEEN:
1. MR.T.R. SATHISH HEGGADE
AGED ABOUT 63 YEARS,
S/O LATE T.G. RAMANNA HEGGADE,
R/AT FLAT NO G-8,
PALACE ORCHID APARTMENT,
9TH MAIN, SADASHIVANAGAR,
BANGALORE - 560094
...APPELLANT
(BY SRI. MOHANA CHANDRA P.,ADVOCATE)
AND:
Digitally signed
by DEVIKA M MUNISHAPPA DEAD BY LRS
Location: HIGH
COURT OF SMT.JAYALAKSHMAMMA
KARNATAKA AGED ABOUT 68 YEARS
1.
W/O LATE MUNISHAMAPPA
2. MR.M.MANJUNATH
AGED ABOUT 48 YEARS,
S/O LATE MUNISHAMAPPA
3. SMT. M. MANJULA
AGED ABOUT 46 YEARS
D/O LATE MUNISHAMAPPA
-2-
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RSA No. 45 of 2024
HC-KAR
4. MR.M.RAMESH
AGED ABOUT 43 YEARS
S/O LATE MUNISHAMAPPA
R1 TO R4 ARE
R/AT KUDUVATHI VILLAGE,
NANDI HOBLI,
CHIKKABALLAPURA TALUK - 562101
5. SMT.SHANTHAMMA
AGED ABOUT 50 YEARS
D/O LATE MUNISHAMAPPA
W/O LATE RAJANNA
R/AT SHETTIGERE VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK - 562157
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 06.10.2023 PASSED IN
R.A.NO.71/2023 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, CHIKKABALLAPURA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
20.06.2020 PASSED IN OS NO.109/2014 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, CHIKKABALLAPUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This appeal is listed for admission. Heard the
learned counsel for the appellant. This second appeal is
filed against the concurrent finding of the Trial Court.
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2. The factual matrix of the case of the plaintiff
before the Trial Court is that defendant executed a sale
agreement dated 21.10.2005 agreeing to sell the plaint
schedule property for a consideration of Rs,4,50,000/- and
received an amount of Rs.60,000/- as advance. It is the
contention that plaintiff always ready and willing to
perform his part of contract. The defendant appeared and
filed a written statement contending that suit is barred by
limitation and hence allowed the parties to lead evidence
and plaintiff examined himself as P.W.1 and got marked
document Ex.P.1 to Ex.P.7 and also examined one witness
as P.W.2. On the other hand defendant No.1 got examined
himself as D.W.1, but has not produced any documentary
evidence. The Trial Court having considered both oral and
documentary evidence, comes to the conclusion that the
agreement is proved but, answered the Issue No.2 as
negative in coming to the conclusion that the plaintiff was
not always ready and willing to perform his part of
contract. While answering Issue No.2, the Trial Court
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comes to the conclusion that in order to pay the balance
amount is concerned, not produced any documentary
proof even though considered the statement of the year
2005 and suit was filed in the year 2014 and with regard
to the amount in his account is concerned, comes to the
conclusion that not placed any documentary proof and also
taken note of the fact that notice was issued on
21.10.2011 as per Ex.P.2 and not produced any document
to show that notice is served on the defendant and for that
reason, limitation cannot be calculated and ordered to
refund of amount with 7% interest per annum for the date
of execution of the agreement of sale till its realization,
the same is challenged before the Appellate court.
3. The Appellate court having considered the
grounds which have been urged as against the finding of
Issue No.2 in paragraph No.29, comes to the conclusion
that this Court doesn't find any error committed by the
Trial Court in appreciating with regard to the readiness
and willingness on the part of the plaintiff is concerned
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and taken note of even after issuance of notice as per
Ex.P.2 in the year 2011, suit was filed after lapse of 2½
years and plaintiff never pressurized the defendant to get
remove the prohibition clause entered in clause No.11 of
RTC. If really the plaintiff is ready and willing to perform
his part of contract, he would not have remained silent for
nearly 9 years of execution of agreement of sale as per
Ex.P.1. Therefore, the reasoning of the Trial Court is not
erroneous and confirmed the judgment of the Trial Court.
4. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court. The
counsel appearing for the appellant in his argument would
vehemently contend that both the Courts have committed
an error. The counsel brought to notice of this Court the
deposition that when the suggestion was made and
answer was given that it was not correct. But, taken note
of only portion of the suggestion that he has not produced
any document with regard to his capacity is concerned to
pay the balance amount. No doubt the said observation is
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erroneous and the entire sentence was not extracted while
answering Issue No.2. But, Court has to take note of the
material available on record. Admittedly, agreement was
executed in the year 2005 and notice was issued in the
year 2011 i.e., after lapse of 6 years. Even after the
issuance of notice in terms of Ex.P.2 also, not filed the suit
immediately. Suit was filed in the year 2014 i.e., almost
after 9 years of the sale agreement and the same was
taken note of by the Trial Court as well as First Appellate
Court and by making a part payment of Rs.60,000/- as
against Rs.4,50,000/-, the plaintiff who seeks for the relief
of specific performance cannot keep quiet for years, that
too for a period of 9 years, even after causing of legal
notice also, not rushed to the Court for the relief of
specific performance. There was a delay, not only in filing
the suit and while seeking the relief of specific
performance, it is very clear under Section 16(c) of the
Specific Relief Act that always he must be ready and
willing to have the sale deed. When such pleading is
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made, but the same has to be proved by conduct for
seeking the relief of specific performance and the same is
not forthcoming. Hence, the Trial Court and also the
Appellate Court comes to the conclusion that not a case
for granting the specific relief. Hence, I do not find any
error on the part of the Trial Court and also the Appellate
Court. Though the Trial Court discussed with regard to the
capacity to pay the money, but the Appellate Court while
considering the issue of readiness and willingness in
paragraph Nos.29 and 30 taken note of non-filing of the
suit immediately.
5. It is also important to note that in terms of the
sale agreement, time is stipulated only for 120 days and
immediately after 120 days, even if the documents are not
furnished by the defendant, plaintiff has not taken any
action when the time is the essence of contract. Hence, no
reasons to reverse the finding of the Trial Court or for
admitting and framing of substantive question of law. Both
the Courts considered the question of fact and question of
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law, particularly with regard to the readiness and
willingness on the part of the plaintiff is concerned.
6. Now, the counsel would vehemently contend
that interest was only ordered for 7%, but, there is a
clause in the agreement that in case of any default is
concerned, interest ought to have been awarded as 24%.
But, I have already pointed out that when the plaintiff
himself was not ready and willing to perform his part of
contract, the said clause cannot be insisted to award an
interest at the rate of 24% p.a. There is a delay and
latches on the part of the plaintiff himself in not
approaching the Court for the relief of specific
performance that too suit filed almost after lapse of 9
years of entering into an agreement when the time is
essence of the contract. Hence, the said contention of the
counsel appearing for the appellant also cannot be
accepted. Hence, no grounds are made out to admit and
frame substantive question of law.
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7. In view of the discussions made above, I pass
the following:
ORDER
Second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
