Karnataka High Court

M Rafiq S/O Late S/O Late M D Khaleel Sab vs Sathyanarayana Jannu S/O Madhukarappa on 16 September, 2025

Author: S.R. Krishna Kumar

Bench: S.R. Krishna Kumar

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                                                    RFA No. 100294 of 2024


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                        IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
                         DATED THIS THE 16TH DAY OF SEPTEMBER, 2025
                                          PRESENT
                        THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
                                             AND
                            THE HON'BLE MR. JUSTICE C.M. POONACHA
                        REGULAR FIRST APPEAL NO. 100294 OF 2024 (SP)


                   BETWEEN:

                   M. RAFIQ S/O. LATE M.D.KHALEEL SAB
                   AGE: 63 YEARS, OCC: CONTRACTOR,
                   R/O. CHITAWADAGI-583211,
                   TQ: HOSAPETE, DIST: VIJAYANAGAR.

                                                                ...APPELLANT
                   (BY SRI. SHRIHARSH A.NEELOPANT, ADVOCATE)

                   AND:

Digitally signed
                   1.   SATHYANARAYANA JANNU
by SAMREEN              S/O. MADHUKARAPPA,
AYUB
DESHNUR                 SAIBABA JEWELERS, JEWELRY SHOP,
Location: HIGH          BASAVESHWARA BAZAAR,
COURT OF
KARNATAKA               HAGARIBOMMANAHALLI-583212,
DHARWAD
BENCH                   TQ: HAGARIBOMMANAHALLI,
                        DIST: VIJAYANAGAR.

                   2.   SHAHID BASHA NANDI BEVOORU
                        S/O. YAKUBSAB,
                        R/O. MILITARY BAYALU, RAMANAGARA,
                         HAGARIBOMMANAHALLI-583212,
                        TQ: HAGARIBOMMANAHALLI,
                        DIST: VIJAYANGAR.
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                                  RFA No. 100294 of 2024


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3.    SMT. M. KAVERI W/O. RAMESH
      R/O. HOUSE NO.8, KVOR COLONY,
      NEAR PRASIDDHI SCHOOL,
      HAGARIBOMMANAHALLI-583212,
      TQ: HAGARIBOMMANAHALLI,
      DIST: VIJAYANAGAR.

4.    SMT. M.MEENAKSHI W/O. M. DURGESH
      R/O. 15TH WARD, NEAR
      SAIBABA TEMPLE, KVOR COLONY,
      HAGARIBOMMANAHALLI-583212,
      TQ: HAGARIBOMMANAHALLI,
      DIST: VIJAYANAGAR.

                                           ...RESPONDENTS
(NOTICE TO RESPONDENTS - SERVED)


       THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 05.03.2024 PASSED IN
O.S.NO.49/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE,
AND        JUDICIAL     MAGISTRATE       FIRST      CLASS,
HAGARIBOMMANAHALLI, DECREEING         THE SUIT   FILED   FOR
SPECIFIC PERFORMANCE OF CONTRACT.


       THIS APPEAL COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:    THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
           AND
           THE HON'BLE MR. JUSTICE C.M. POONACHA
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                                                 RFA No. 100294 of 2024


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                             ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present appeal is filed under Section 96 of Code of

Civil Procedure, 1908, by the defendant No.1 calling in

question the judgment and decree dated 05.03.2024 passed

in OS No.49/2020 by the Senior Civil Judge and JMFC,

Hagaribommanahalli1, whereunder, the suit for specific

performance filed by the respondent No.1/plaintiff has been

decreed by the Trial Court.

2. The parties are referred to as per their ranking

before the Trial Court for the sake of convenience.

3. It is the case of the plaintiff that the defendant

No.1 is the absolute owner of the property bearing

Sy.No.388/B measuring 0-95 cents situated at Chintrapalli

Village, Ballari District2. That the defendant No.1 agreed to

sell the suit property in favour of the plaintiff for a total sale

consideration of Rs.71,00,000/-. Accordingly, the plaintiff

Hereinafter referred to as 'the Trial Court'

Hereinafter referred to as 'suit property'

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and defendant No.1 entered into an agreement of sale

dated 11.09.2018, wherein the plaintiff paid an advance of

Rs.10,10,000/- and agreed to pay the balance amount of

Rs.60,90,000/- within five months from the date of the

agreement and agreed to execute the sale deed consequent

to receipt of balance sale consideration.

4. It is the further case of the plaintiff that he was

ready and willing to complete the sale transaction and, in

fact, he was waiting at the Sub-Registrar Office, however,

the defendant No.1 did not turn up on the date fixed. That

on 16.02.2019, the defendant No.1 issued a notice calling

upon the plaintiff to complete the sale transaction, which

was duly replied by the plaintiff vide a reply dated

07.05.2019. It is the further case of the plaintiff that, he

was ready and willing to pay the balance sale consideration

of Rs.60,90,000/-, and that the defendant No.1 has

committed breach of agreement. Subsequently, the

defendant No.1 has sold sites formed in the suit property to

defendant Nos.2 to 4 vide registered Sale Deeds dated

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27.06.2019 and 30.06.2019.That the plaintiff got issued a

legal notice dated 28.08.2020, calling upon the defendant

No.1 to receive the balance sale consideration and complete

the sale transaction in terms of the agreement dated

11.09.2018. Since the defendant No.1 failed to comply with

the demand vide the legal notice dated 28.08.2020, the

plaintiff has filed the suit seeking specific performance of

the agreement of sale.

5. The defendant Nos.1 to 4 entered appearance

through their counsel and contest the suit by filing their

written statement. The execution of the agreement and the

receipt of advance amount of Rs.10,10,000/- was admitted.

It is the specific case of defendant No.1 that, since he was

in urgent need of money, he entered into the agreement of

sale dated 11.09.2018, and despite lapse of five months

mentioned in the agreement, since the plaintiff did not

come forward to pay the balance sale consideration and

complete the sale transaction, he got issued a legal notice

dated 16.02.2019, despite which the plaintiff did not come

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forward to pay the balance sale consideration and complete

the sale transaction. That having no other option, the

defendant No.1 alienated the portions of suit property in

favour of defendant Nos.2 to 4. Hence, the defendant No.1

sought for dismissal of the suit.

6. The Trial Court consequent to the pleadings of

the parties framed the following issues:

"ISSUES

1) Whether the plaintiff proves that, the 1st defendant being the owner of the schedule property agreed to sell the same for a valuable consideration of Rs.71,00,000/-

and executed unregistered agreement of sale dated: 11.09.2018 by receiving an advance consideration amount of Rs.10,10,000/-?

2) Whether the defendant No.1 proves that, the alleged agreement of sale dated:

11.09.2018 is only for need of urgent money to discharge the sundry debts as contended in the written statement?

3) Whether the plaintiff proves his readiness and willingness perform his part of contract?

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4) Whether the plaintiff is entitled for the relief as sought for?

          5)    What order or decree?


                              RECAST ISSUES

1) Whether the defendant No.1 proves that, the plaintiff was not ready and willing to perform his part of contract with balance sale consideration amount, hence he got issued legal notice to plaintiff and sold suit schedule property to defendant No.2 to 4?

2) Whether the plaintiff is entitled for the relief as sought for?

3) What order or decree?"

7. The plaintiff examined himself as PW1 and two

witnesses were examined as PW2 and PW3. The

documentary evidence at Ex.P1 to P38 was marked. The

defendant No.1 examined himself as DW1 and got marked

Ex.D1.

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8. The Trial Court by its judgment and decree dated

05.03.2024, decreed the suit of the plaintiff and pass the

following order:

"Suit of the plaintiff is decreed with cost. Consequently, the defendants 1 to 4 are hereby directed to execute the registered sale deed in favour of the plaintiff with respect to suit schedule property (which is now in the form of sites) in pursuance of the agreement of sale dated 11.09.2018 within 60 days from the date of this judgment by receiving the balance sale consideration amount of Rs.60,90,000/-.

In default, the plaintiff is at liberty to deposit the balance sale consideration amount in this Court and to proceed to get the registered sale deed with regard to suit schedule property through due process of law.

Draw decree accordingly."

9. Being aggrieved, the defendant No.1 has filed

the present appeal.

10. Heard learned counsel for the

appellant/defendant No.1. The respondents are served and

unrepresented.

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11. Learned counsel for the appellant/defendant No.1

assailing the judgment and decree passed by the Trial Court

contends that admittedly the plaintiff did not complete the

sale transaction within the stipulated period of five months

as contemplated under the agreement of sale dated

11.09.2018. That despite the legal notice dated 16.02.2019,

issued by defendant No.1, the plaintiff did not come forward

to complete the sale transaction and the said notice was

responded to by the plaintiff vide reply dated 07.05.2019.

That, since the plaintiff did not complete the sale

transaction within the time stipulated and since the

defendant No.1 was in need of money, the defendant No.1

alienated portions of the suit property on 13.06.2019 and

27.06.2019 to defendant Nos.2 to 4. That after lapse of

more than one year i.e., on 28.08.2020, the defendants got

issued legal notice. Hence, it is submitted that the suit filed

by the plaintiff for specific performance ought not to have

been decreed by the Trial Court.

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12. Learned counsel for the appellant/defendant No.1

further submits, on instructions, that the

appellant/defendant No.1 is ready and willing to refund a

total sum of Rs.15,00,000/-, and has filed an affidavit dated

11.09.2025, to that effect.

13. The submissions of learned counsel for the

appellant/defendant No.1 has been considered and the

material on record has been perused.

14. The question that would arise for consideration

is:

Whether the Trial Court was justified in decreeing the suit and ordering specific performance?

15. The relevant factual matrix is undisputed

inasmuch as, the agreement of sale dated 11.09.2018

(Ex.P1) is admitted. It is also admitted that, vide the

agreement of sale dated 11.09.2018, the plaintiff paid an

advance of Rs.10,10,000/- and that the sale transaction

was required to be completed within five months i.e., on or

before 11.02.2019 when the balance sale consideration of

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Rs.60,90,000/- was to be paid by the plaintiff and

defendant No.1 was required to execute the sale deed

conveying the suit property.

16. It is forthcoming that between the dates of

execution of the agreement i.e., 11.09.2018 and the

aforementioned 11.02.2019, there was no correspondence

between the parties. The appellant/defendant No.1 vide

legal notice dated 16.02.2019 (Ex.P7) intimated the plaintiff

that the period for completion of the sale transaction had

lapsed on 11.02.2019, called upon the plaintiff to appear

before the Sub-Registrar Office on 22.02.2019, with the

balance sale consideration of Rs.60,90,000/-, and complete

the sale transaction, failing which the advance amount of

Rs.10,10,000/- paid by the plaintiff would be forfeited by

cancelling the agreement of sale.

17. The plaintiff vide reply dated 07.05.2019 (Ex.P8),

responding to the notice dated 16.02.2019 (Ex.P7),

intimated the defendant No.1 that he was waiting at the

Sub-Registrar Office on 22.02.2019, and the defendant

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No.1 did not turn up. Hence, the plaintiff called upon the

defendant No.1 to fix a date for execution of the sale deed

by receiving the balance sale consideration of

Rs.60,90,000/-.

18. It is forthcoming from the record that the

defendant No.1 vide registered sale deeds dated

27.06.2019 (Ex.P3) and 13.06.2019 (Ex.P4) alienated the

portions of the suit property i.e., sites formed in the suit

property to defendant Nos.2 to 4. Thereafter, the plaintiff

issued a legal notice dated 28.08.2020 (Ex.P13) calling

upon the defendant No.1 to execute the sale deed on

07.09.2020. Subsequently, the plaintiff has filed the suit.

19. It is clear and forthcoming from the

aforementioned that during the period within which the sale

transaction was required to be completed under the

agreement of sale dated 11.09.2018, the plaintiff did not

pay the balance sale consideration or call upon the

defendant No.1 to complete the sale transaction. Further, it

is pertinent to note that vide notice dated 16.02.2019

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(Ex.P7), the defendant No.1 had called upon the plaintiff to

complete the sale transaction, failing which the advance

amount of the sale of Rs.10,10,000/- paid under the

agreement of sale date 11.09.2018 (Ex.P1) would be

forfeited and the said agreement should be cancelled.

Despite receipt of the said notice, the plaintiff after a lapse

of nearly three months, responded to the same vide reply

dated 07.05.2019 (Ex.P8) by stating that he was waiting at

the Sub-Registrar Office on the date fixed and reiterated his

demand that he was ready to complete the sale transaction.

Thereafter, it was only after a lapse of more than one year

i.e., vide legal notice dated 28.08.2020 (Ex.P13), the

plaintiff called upon the defendant No.1 to execute the sale

transaction, by which time the defendant No.1 had already

alienated portions of the suit property by vide registered

sale deeds dated 27.06.2019 and 13.06.2019 (Ex.P.3 and

P4).

20. It is also forthcoming that the plaintiff has not

adduced any evidence to demonstrate that he was ready

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and willing to complete the sale transaction during the

period as contemplated under the agreement of sale dated

11.09.2018 (Ex.P1). It is also pertinent to note that after

receipt of the legal notice dated 16.02.2019 (Ex.P7),

wherein the defendant No.1 had clearly intimated to the

plaintiff to complete the sale transaction on 22.02.2019,

failing which the advance amount would be forfeited and

agreement would be cancelled, apart from merely stating

that it was the defendant No.1 who did not turn up to

complete the sale transaction on the date fixed, merely

reiterated his demand by issuance of the reply dated

07.05.2019 (Ex.P8). It is also pertinent to note that, even

if it was the defendant No.1 who was not present on the

date fixed i.e., on 22.02.2019, there is no explanation on

behalf of the plaintiff for the delay of nearly three months

before the legal notice dated 07.05.2019 (Ex.P8) was

issued. Further, the plaintiff has not done any act until

issuance of the legal notice dated 28.08.2020 (Ex.P13),

more than 15 months after issuance of Ex.P8.

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21. It is also pertinent to note that although in the

legal notice dated 16.02.2019 (Ex.P7), the defendant No.1

intimated the plaintiff to complete the sale transaction on

22.02.2019, failing which, the advance amount of

Rs.10,10,000/-, would be forfeited by cancelling the

agreement of sale dated 11.09.2018, the plaintiff neither in

the reply notice dated 07.05.2019 (Ex.P8) nor the legal

notice dated 28.08.2020 (Ex.P13), has either referred to or

contraverted the assertion of defendant No.1 regarding

forfeiture and cancellation as noticed above, by taking a

stand that the same is untenable in law. It is also pertinent

to note that, in the legal notice dated 28.08.2020 (Ex.P8),

the alienations of portions of the suit property have been

noticed. However, in the suit filed by the plaintiff no relief is

sought with regard to the alienations made by the

defendant No.1 to defendants No.2 to 4.

22. Having regard to the factual matrix as noticed

above, the Trial Court clearly erred in decreeing the suit and

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ordering for specific performance of the agreement dated

11.09.2018.

23. At this juncture, it is pertinent to note that the

appellant/defendant No.1 has offered to deposit a sum of

Rs.15,00,000/- and to that effect an affidavit dated

11.09.2025 has been filed, which reads as under;

"AFFIDAVIT Herein M. Rafiq, S/o. Late M. D. Khaleel Sab, Age: 63 years, Occ: Contractor, R/o. Chitawadagi, Tq:

Hosapete, Dist: Vijayanagar, today at Dharwad do hereby state on solemn affirmation as under:

1. I am the appellant in the above appeal. I know facts of the case and well conversant about the case.

Hence I am swearing to this affidavit.

2. For the purpose of avoiding repetition, the facts and grounds urged in the memorandum of appeal may kindly be treated as part and parcel of this affidavit.

3. I state that I have preferred the above appeal challenging the impugned judgment and decree dated: 05.03.2024 passed in O.S No. 49/2020 passed by the court of Senior Civil Judge and JMFC, Hagaribommanahalli, thereby decreeing the suit, the respondent No.1/plaintiff for specific performance.

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4. I submit that, I voluntarily depositing sum of Rs. 15,00,000-00 payable to the respondent / plaintiff by virtue of demand draft bearing No.000170 dated: 10.09.2025 drawn on Axis Bank Ltd, Hagaribommanahalli Branch in the name of Registry which the respondent/plaintiff is entitled to withdraw the said amount.

5. I submit that, I am making the above deposits voluntarily before this Hon'ble Court. I further submit that, the respondent / plaintiff can withdraw the said amount at any time. The said amount is with regard to advance amount under the agreement of sale in question.

Hence, this affidavit.

     Place: Dharwad                                   Sd/-
     Date: 11.09.2025                              Deponent

     Identified by me
           Sd/-
        Advocate"


     24.     Along    with     the        affidavit,   the     appellant   has

deposited a sum of Rs.15,00,000/- vide the Demand Draft

bearing No.000170 dated 10.09.2025 drawn in favour of

Additional Registrar General of the High Court of Karnataka,

Dharwad Bench, Dharwad.

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25. In the aforementioned facts and situation, the

agreement having been admitted and the plaintiff

admittedly not having taken any steps during the period of

validity of the agreement to complete the sale transaction,

and the defendant having alienated portions of the suit

property as noticed above, having regard to the voluntary

offer made by the appellant/defendant No.1 to deposit a

sum of Rs.15,00,000/-, it is just and proper that the

judgment and decree passed by the Trial Court ordering

specific performance be interfered with and the

appellant/defendant No.1 be directed to refund the advance

amount of Rs.10,10,000/- together with appropriate

interest.

26. In view of the aforementioned discussion, the

question framed for consideration is answered in the

negative.

27. In the result, we pass the following:

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ORDER

(i) The appeal is partly allowed with

costs;

(ii) The judgment and decree dated

05.03.2024 passed in OS No.49/2020 by the

Senior Civil Judge and JMFC,

Hagaribommanahalli, is modified to the extent

of setting aside the order directing specific

performance of the agreement of sale dated

11.09.2018 and holding that the

appellant/defendant No.1 shall pay the plaintiff

a sum of Rs.10,10,000/- together with

appropriate interest, which cumulative amount

is quantified at Rs.15,00,000/-;

(iii) The Registry shall encash the

Demand Draft bearing No.000170 dated

10.09.2025 of Rs.15,00,000/- filed along with

the affidavit dated 11.09.2025 by the

appellant and the said amount shall be kept in

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a fixed deposit in any the nationalised bank

with the automatic renewal clause.

(iv) The Registry shall send a

communication to respondent No.1/plaintiff