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2003 DIGILAW 919 (KAR)

Sarfunnisa v. Vijayalakshmi

2003-11-03

K.SREEDHAR RAO

body2003
JUDGMENT K. Sreedhar Rao, J.--The appeal filed against the Judgment and decree passed in RA No. 56 of 1995 on the file of Additional District Judge, Dharwad arising out of the Judgment and decree in O.S. No. 118 of 1991 on the file of Additional Civil Judge, Hubli. 2. The Appellant is the Plaintiff filed a suit for specific performance of the contract of sale. The Plaintiff entered into an agreement with the first Defendant for purchase of the suit house under registered agreement Ex. P.1 dated 28.11.1988 it is stipulated that the property will be sold for Rs.90,000/-. A sum of Rs.10,000/- was paid, a balance of Rs.80,000/- was to be payable on or before 15.11.1989. The Plaintiff did not offer to pay the balance and take registration. A legal notice was issued as per Ex. P.3 dated 16.1.1989 finally granting time till 7 days to pay the balance and to obtain the registered sale deed. The Plaintiff issued a reply at Ex. P.4 contending that subsequent to the registration of Ex. P.1 she has come to know that there is encumbrance to the extent of Rs.60,000/- payable to the Karnataka Housing Board, a sum of Rs.3,000/- and odd payable towards deficit of stamp duty towards registration of the sale deed in favour of the first Defendant and also that the building completion certificate is not obtained. Plaintiff under the reply insisted that the encumbrance mentioned has to be cleared and thereafter the Plaintiff would purchase the property. The first Defendant sells the property under registered sale deed to Defendants 2 and 3 who are the Respondents 2 and 3. The suit came to be filed on 5.7.1989 seeking relief of specific performance. The trial Court held that the time was the essence of the contract. The Plaintiff having failed to obtain the registered sale deed by paying the balance of consideration is not entitled to seek relief of performance. 3. The first Defendant contended that the Plaintiff undertook to discharge the encumbrance of Karnataka Housing Board, in addition to the payment of consideration agreed under Ex. P.1. The trial Court upheld the contention that as per the agreement it was the Plaintiff's duty to discharge the encumbrance of Karnataka Housing Board and that the Plaintiff had knowledge of the encumbrance of the Karnataka Housing Board even at the time of execution of Ex. P.1. P.1. The trial Court upheld the contention that as per the agreement it was the Plaintiff's duty to discharge the encumbrance of Karnataka Housing Board and that the Plaintiff had knowledge of the encumbrance of the Karnataka Housing Board even at the time of execution of Ex. P.1. The trial Court also found that the Plaintiff was not ready and willing to perform his part of the contract. Accordingly, the suit of the Plaintiff is dismissed. The appellate Court has confirmed the findings in the Judgment of the trial Court and dismissed the appeal. 4. Aggrieved by the dismissal, the second appeal is filed. 5. The following substantial questions of law are framed for consideration: 1. Whether the findings of the appellate Court that the Plaintiff was not ready and willing to perform his part of the contact is perversely contrary to law and evidence on record ? 2. Whether the appellate Court was not justified in law in declining the relief of specific performance to the Plaintiff by directing the Defendants to execute the sale deed. There is a concurrent finding of fact that the time is the essence of contract. Sri S.V. Shastry the Counsel for the Appellant strenuously contended that the conduct of the first Defendant in suppressing the encumbrance is totally a dishonest act and unless the encumbrances is cleared no obligation would arise on the part of Plaintiff to tender balance of consideration and to obtain the registered sale deed. 6. Assuming for the sake of argument that there was no obligation on the part of Plaintiff to clear the encumbrances of Karnataka Housing Board, under Ex. P.1 but I find that it was open to the Plaintiff to invoke his rights under Section 13(c) of the Specific Relief Act by offering to discharge of the encumbrance from the unpaid consideration amount and insist the Defendant to receive the balance and to execute the registered sale deed within the time stipulated under Ex. P.1. Further immediately the suit should have been filed. In the instant case almost two years after the expiry of time under Ex. P.1 the suit is filed. It is obvious that the first Defendant who was in financial crisis offered to sell the property. In law the Plaintiff could have offered to clear the encumbrance and assisted the Defendant to clear the encumbrance to enable to secure a valid registration. P.1 the suit is filed. It is obvious that the first Defendant who was in financial crisis offered to sell the property. In law the Plaintiff could have offered to clear the encumbrance and assisted the Defendant to clear the encumbrance to enable to secure a valid registration. Therefore I find the Plaintiff did not justly conducted himself in the manner expected in the context of facts and situation. The attitude of the Plaintiff adversely reflects on him to hold that he was ready and willing to perform his part of contract throughout. 7. It is not in dispute that first Defendant has sold the property to Respondents 2 and 3 under registered sale deed and they came to be impleaded for the first time in the first appeal. It is obvious from Ex. P.1 that the time stipulated for sale in favour of Plaintiff had expired and sale was not effected, there is nothing unreasonable on the part of Respondents 2 and 3 to have purchased the property when the claim of the Plaintiff was a debatable one. There are no allegations made against Defendants 2 and 3 that the sale in their favour is collusive one. In that view of the matter, I find that rejection of the relief of specific performance is fully justified. No grounds to interfere with. Evaluation of facts and appreciation of evidence by the Courts below is sound and proper. The questions of law are answered in the negative. 8. The first Respondent (Defendant in Original suit) however undertake that she would refund the advance amount of Rs. 10,000/- with interest at 6 percent per annum from the date of Judgment and decree in O.S. No. 118 of 1991 till this day. In view of the submissions made a decree be drawn against the first Respondent for refund of advance amount as indicated above to facilitate easy execution in the event of default on the part of the first Respondent.