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2012 DIGILAW 241 (KAR)

T. N. Arun Kumar v. Shivanna

2012-03-15

K.GOVINDARAJULU, K.L.MANJUNATH

body2012
Judgment :- 1. The appellants are questioning the legality and correctness of the judgment and decree passed by the Civil Judge (Sr.Dn). Devanahalli in OS No.314/2007 dated 23rd March 2010. The appellants were defendants in the suit. The respondent Nos.1 and 2 were the plaintiffs before the Court below. 2. Facts leading to this case are as hereunder: Under an agreement dated 16.06.2006 the defendants agreed to sell the suit property in favour of the plaintiffs for a sum of Rs.25,50,000/-and Rs.10,00,000/-was paid as advance sale consideration and that the plaintiffs agreed to pay remaining consideration of Rs.15,50,000/-one day prior to the registration. 90 days was stipulated to complete the transaction. In order to enforce the agreement of sale dated 16.06.2006 the suit was instituted by the plaintiffs with a request to direct the defendants to execute the sale deed by receiving the balance sale consideration contending that the plaintiffs were ready and willing to pay the entire sale consideration and that the defendants have failed to execute the same. 3. The defendants contested the suit. They admit their ownership to the suit property. They deny that the plaintiffs were allowed to cultivate the land as tenants and they assured that they are going to pay the sale consideration. They admit the execution of the agreement of sale and also the receipt of Rs.10,00,000/-as advance. According to them plaintiffs did not pay the balance sale consideration of Rs.15,50,000/-a day prior to the expiry of ninety days as stipulated under the agreement of sale. Therefore, it was contended that they have forfeited for the advance amount of Rs.10,00,000/-by cancelling the agreement. They also raised several other defences and ultimately they requested to dismiss the suit. 4. Based on the above pleadings the following issues were framed by the Court below: Issues: 1.) Whether the Plaintiffs prove that, the defendants being the owners of suit schedule property have agreed to sell the same to the plaintiffs for a sum of Rs.25,50,000/-and that they have received the advance amount of Rs.10,00,000/-under sale agreement dated 16.06.2006? 2.) Whether the plaintiffs prove that, they are always ready and willing to perform their part of contract? 3.) Whether the plaintiffs prove that, they are entitled for an order of permanent injunction, restraining the defendants from alienating the suit schedule property in favour of 3rd parties? 2.) Whether the plaintiffs prove that, they are always ready and willing to perform their part of contract? 3.) Whether the plaintiffs prove that, they are entitled for an order of permanent injunction, restraining the defendants from alienating the suit schedule property in favour of 3rd parties? 4.) Whether the plaintiffs prove that, they are entitled for the relief of specific performance against the defendants as prayed for? 5.) Whether the defendants prove that, the time is essence of contract and the plaintiffs are violated the same? 6.) Whether the defendants prove that, they have approached the plaintiffs on several occasions to get the sale deed executed by paying balance sale consideration amount within stipulated period and to get the sale deed executed from them and there is breach of sale agreement on the part of plaintiffs themselves as contended in their written statement? 7.) Whether the defendants prove that, the suit is mis-joinder of cause of action? 8.) What order or decree? 5. In order to prove their respective contentions the second plaintiff Rajanna was examined as PW1 and he relied upon evidence of PWs.2 to 5 and Exs.P1 to P10. The first defendant T.N.Arun Kumar was examined as DW1. The Trial Court after appreciating the entire evidence let in by the parties held issue Nos.1 to 4 in affirmative, issue No.5 Party in affirmative and issue Nos.6 and 7 in negative and ultimately the suit of the plaintiffs has been decreed on 23rd March 2010 directing the plaintiffs to pay the balance sale consideration of Rs.15,50,000/-and further directed the defendants to receive the said amount and execute the sale deed in favour of the plaintiffs. The Court also permitted the plaintiffs, if the defendants fail to execute the sale deed by receiving balance sale consideration of Rs.15,50,000/-within three months, to deposit the balance sale consideration amount of Rs.15,50,000/-into Court and to get the registered sale deed executed. This judgment and decree is called in question in this appeal. 6. The appellants preferred this appeal on 13th May 2010. The matter had come up before this Court for admission on 01.06.2010 on which date the appeal was admitted and no stay was granted. On the contrary emergent notice was ordered in regards to granting of stay. 7. This judgment and decree is called in question in this appeal. 6. The appellants preferred this appeal on 13th May 2010. The matter had come up before this Court for admission on 01.06.2010 on which date the appeal was admitted and no stay was granted. On the contrary emergent notice was ordered in regards to granting of stay. 7. The appeal also came to be dismissed for non prosecution on 26.11.2010 and on an application filed by the appellants the order of dismissal for non prosecution was recalled and the appeal was restored on 05.08.2011. 8. The main contention of the appellant counsel are two fold: One that the Trial Court has committed an error in holding that the plaintiffs were ready and willing to perform their part of contract and they had balance sale consideration that they have to get the sale deed registered in their favour. According to him the evidence adduced by the parties has not been appreciated properly by the Court below which requires to be reconsidered by this Court. 9. He further contends that even though the suit was decreed to pay balance sale consideration of Rs.15,50,000/-, till today the said amount is neither deposited in the Court below nor offered to the appellants. According to him even to execute the decree no execution petition is filed by the respondent which only shows that the respondents – plaintiffs have no money to deposit the balance sale consideration and to get the sale deed registered in their favour. Therefore only on this ground the judgment and decree has to be set-aside. 10. Per contra, Ram Mohan, learned counsel for the respondents – plaintiffs submits that the findings of the Court below on the question of readiness and willingness of the plaintiffs is based on proper appreciation of the evidence let in by the parties. According to him the plaintiffs have proved before the Court that they are ready and willing to perform the contract and they had balance sale consideration with them. He further submits that sofar as non depositing of the balance amount within three months of the decree is concerned, the plaintiffs did not deposit the amount because of the pendency of this appeal and that even now they are ready and willing to deposit the same. In the circumstances, he requests the Court to dismiss the appeal. 11. He further submits that sofar as non depositing of the balance amount within three months of the decree is concerned, the plaintiffs did not deposit the amount because of the pendency of this appeal and that even now they are ready and willing to deposit the same. In the circumstances, he requests the Court to dismiss the appeal. 11. Having heard the counsel for the parties following points have to be considered by us in this appeal; (i) Whether the appeal is required to be allowed for non payment of balance sale consideration of Rs.15,50,000/-within three months from the sate of judgment and decree passed by the Court below? (ii) Whether the finding of the Trial Court that the plaintiffs were ready and willing to perform their part of contract is just and proper? 12. The following points are not in dispute in this appeal that the parties are not disputing the execution of agreement of sale dated 16.06.2006. The defendants are also not disputing the receipt of Rs.10,00,000/-by them as advance sale consideration from the plaintiffs. They are also not disputing the time stipulated for completion of the agreement as 90 days from the date of agreement. But their main contention before the Court below was that the defendants were required to pay the balance sale consideration of Rs.15,50,000/-a day prior to completion of 90 days and that the plaintiffs did not pay the amount. Now we have to examine whether the plaintiffs were ready to pay the balance sale consideration within the time stipulated. 13. The PW1 in his cross examination admitted as hereunder: “that the plaintiffs did not issue any notice in writing that within 90 days from the date of agreement stating that they are having the balance sale consideration of Rs.15,50,000/-with them and to receive the same and execute the sale deed”. 14. He has further stated that the balance sale consideration of Rs.15,50,000/-was not in their bank accounts. But what he has deposed before the Court below is that the entire Rs.15,50,000/-was ready that they had cash at home. He further admits that legal notice was got issued on 04.03.2007 nine months after the agreement of sale. 14. He has further stated that the balance sale consideration of Rs.15,50,000/-was not in their bank accounts. But what he has deposed before the Court below is that the entire Rs.15,50,000/-was ready that they had cash at home. He further admits that legal notice was got issued on 04.03.2007 nine months after the agreement of sale. When three months time was stipulated for making the balance sale consideration when there is nothing on record to show that they were ready to pay the balance sale consideration within the period of three months and when they have not even called upon the defendants to execute the sale deed by receiving the balance sale consideration within three months, the only inference that can be drawn would be that the plaintiffs were not ready to take the sale deed as agreed upon in the sale agreement. 15. Be that as it may. When the PW1 has stated that he had balance sale consideration of Rs.15,50,000/-as cash, it would be difficult for any Court to believe the said statement that an ordinary agriculturist would keep the aforesaid amount at home even without keeping it in the Bank and we have also seen Ex.P5 the legal notice. In the legal notice what he says is that the khatha was standing in the name of Anil Kumar and not in the name of others. Therefore, the sale deed could not be executed but this version of the plaintiffs cannot be believed by any Court because when it is a joint family property the khatha will always stands in the name of one of the coparcenars and khatha will not be standing in the name of all the members of the family. Even if the khata was standing in the name of Anil Kumar, eldest son of Nagaraju who was examined as DW1, there was no difficulty for the plaintiffs to take the sale deed by paying the balance sale consideration. 16. Therefore, we are of the view that the findings of the Trial Court is incorrect with regard to the readiness and willingness of the plaintiffs. 17. Be that as it may. 16. Therefore, we are of the view that the findings of the Trial Court is incorrect with regard to the readiness and willingness of the plaintiffs. 17. Be that as it may. Even if we accept the contention of the plaintiffs that they were ready and willing to take the sale deed by paying the balance sale consideration, atleast it was for the plaintiffs to deposit the amount of Rs.15,50,000/-immediately after the decree, since the Trial Court has directed the plaintiffs to pay the balance sale consideration and obtain the sale deed by paying the defendants within three months to receive the balance sale consideration and to get the sale deed at their cost and even otherwise atleast the plaintiffs were required to deposit Rs.15,50,000/-before the Court below immediately after completion of three moths from the date of decree. But such an attempt has not been made by the plaintiffs to deposit the money. Only reason assigned by Mr. Rama Mohan, learned counsel for the respondent is that since the matter was pending before this Court, they did not deposit the amount. But the said submission cannot be accepted by this Court on 01.06.2010 and on which date notice was ordered in regards to consider the application of the appellants for grant of stay. The Court notice issued by this Court in this appeal has been received by the respondents on 22.06.2010. Therefore, the respondents – plaintiffs cannot contend that they did not deposit the money on account of the pendency of this appeal because they filed the appeal only on 13.05.2010 which date was the last day for the respondents -plaintiffs to pay the amount in terms of the decree. Even thereafter it was open for the plaintiffs – decree holder to deposit the amount into the Court by filing an execution. Till today no such execution petition is filed, no amount is deposited by the plaintiffs. In addition to that the appeal was dismissed for default on 26.11.2010. Nine months thereafter on 05.10.2011 the appeal has been restored by this Court on an application filed by the plaintiffs. Atleast on dismissal of this appeal the respondents could have deposited the amount, with the permission of the Court, but such an attempt has not been made. 18. In addition to that the appeal was dismissed for default on 26.11.2010. Nine months thereafter on 05.10.2011 the appeal has been restored by this Court on an application filed by the plaintiffs. Atleast on dismissal of this appeal the respondents could have deposited the amount, with the permission of the Court, but such an attempt has not been made. 18. In the overall circumstances, this Court is of the opinion that even if the plaintiffs have obtained a decree for specific performance they are unable to pay the amount or deposit the balance sale consideration for two years. Considering the conduct of the plaintiffs we have to hold that the plaintiffs were never ready and willing to perform their part of the contract and the decree passed by the Court below has not been utilized by the plaintiffs – respondents and they cannot be permitted to contend that when once the decree is passed they are entitled to deposit money at their whims and fancies. In view of the conduct of the plaintiffs – respondents the Judgment passed by the Court below has to be set-aside by us. Accordingly we answer point No.(i). 19. When we hold that the respondents-plaintiffs are not entitled for decree for specific performance it is the duty of the Court to mould the relief and the advance sale consideration paid by the plaintiffs has to be refunded because there is no dispute in regards to the payment of Rs.10,00,000/-as advance sale consideration and now the value of the land in and around Devenahalli has been escalated by many folds. On account of this the appellants have been benefited. In the circumstances, we are of the view that Rs.10,00,000/-received as advance sale consideration shall carry interest at 24% per annum from the date of agreement till the date of payment. 20. In the result the appeal is allowed. The judgment and decree passed by the Civil Judge (Sr.Dn.). Devenahalli in OS No.314/2007 dated 23rd March 2010 is hereby set-aside and in modification of the decree the suit of the plaintiffs has been decreed directing the defendants to refund Rs.10,00,000/-which was received as advance sale consideration with interest at 24% per annum from 16.06.2006 till the date of payment. Parties to bear their costs. 21. Devenahalli in OS No.314/2007 dated 23rd March 2010 is hereby set-aside and in modification of the decree the suit of the plaintiffs has been decreed directing the defendants to refund Rs.10,00,000/-which was received as advance sale consideration with interest at 24% per annum from 16.06.2006 till the date of payment. Parties to bear their costs. 21. At this stage learned counsel for the appellant submits that three month time may be granted to the appellants to pay the decreetal amount. Accordingly three months time is granted and a charge is created for the decreetal amount on the plaint schedule property.