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2014 DIGILAW 645 (KAR)

Lakshmamma v. J. Narasimhaiah

2014-07-04

K.L.MANJUNATH, RAVI MALIMATH

body2014
JUDGMENT Aggrieved by the judgment and decree dated 05.12.2012, passed by the First Additional Civil Judge, C.J.M., at Shimoga, in O.S. No.146/2011, partly decreeing the plaintiff’s suit for a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs Only), the defendants have filed the present appeal. 2. The parties will be referred to as per their ranking in the trial court. 3. The case of the plaintiff is that the defendants being the joint owners of the suit property executed an agreement dated 19.07.2008 to sell the same for Rs.75,00,000/- by receiving Rs.14.00,000/- by cheque and Rs.1,00,000/by cash namely, in all Rs.15,00,000/towards advance. The defendants had agreed to execute the sale deed within three months after receiving the balance consideration and after securing the documents required for registration. However, they did not keep the documents ready even after expiry of the said period. Inspite of various requests, the defendants postponed the matter. 4. The defendants issued a notice dated 05.05.2009, calling upon the plaintiff to get the property registered within 15 days from the date of receipt of the notice. A reply notice was issued demanding the documents from the defendants. The defendants in turn replied saying that the sale deed has to be registered within 10 days, after which the agreement would stand terminated. The plaintiff asked the defendants to come for registration with all the documents, without which the registration of the sale deed was not possible. He waited for three years after investing huge amount of money on the property. The termination of the agreement by the defendants as per notice 29.06.2009 was accepted. The plaintiff demanded for refund of the amount. The defendants informed the plaintiff that it was forfeited in terms of notice dated 26.06.2009. Under these circumstances, the plaintiff filed the instance suit seeking recovery of Rs.15,00,000/- lakh with interest @ 12% from 19.07.2008 till 31.08.2011, with current and future interest @ 18% from the defendants. 5. On service of suit summons, the defendants appeared through their counsels. Defendant nos.4 and 6 filed their statement of objections, which was adopted by the other defendants. The agreement was admitted. It was contended by the defendants that time was the essence of the contract. In view of the plaintiff’s inability to go ahead with the contract, the defendants have suffered huge loss and the loss is attributable only to the plaintiff. The agreement was admitted. It was contended by the defendants that time was the essence of the contract. In view of the plaintiff’s inability to go ahead with the contract, the defendants have suffered huge loss and the loss is attributable only to the plaintiff. That the advance amount paid by the plaintiff has been forfeited after the lapse of time fixed for performance of the contract. 6. On the basis of these pleadings, the trial court framed the following issues: “1. Whether the plaintiff proves that the suit property is situated in an unsettled in am village, as such the authorities are not providing the official sketch for the relevant period and thereby the agreement dated 19.07.2008 has become incapable of performance? 2. Whether the defendants prove that they have suffered huge financial loss attributable to the plaintiff’s omission to perform his part of the contract and therefore, are entitle to forfeit the advance paid under the agreement? 3. Whether the defendants prove that the suit is time barred? 4. Whether the plaintiff is entitled for the relief in the suit? 5. What Decree or Order?” In support of his case the plaintiff examined himself as PW1 and got marked Exhibits-P1 to P7. On behalf of the defendants, fourth defendant was examined as DW1 and got marked Exhibits D1 to D21. 7. The trial court on considering the contentions and material on record held issue nos.2 and 3 in the negative, issue no.4 in affirmative and consequently, the suit was partly decreed by holding that the plaintiff is entitled to recover Rs.15,00,000/from the defendants with current and future interest @ 6% per annum. 8. Therefore, the issue that arises for consideration in this appeal is: “Whether the trial court was justified in partly decreeing the suit of the plaintiff ?” 9. Shri.Vigneshwara S. Shastri, learned counsel for the appellants/defendants contend that the impugned judgment and decree is bad in law and liable to be set aside. That the trial court failed to consider the material and evidence on record. That the evidence on record is sufficient to dismiss the suit. That in terms of the agreement, the advance paid by the plaintiff stood forfeited. Therefore, once the advance is forfeited the question of refunding the same does not arise. 10. On the other hand, Shri.B.S. Prasad, learned counsel for the respondent / plaintiff defends the impugned order. That the evidence on record is sufficient to dismiss the suit. That in terms of the agreement, the advance paid by the plaintiff stood forfeited. Therefore, once the advance is forfeited the question of refunding the same does not arise. 10. On the other hand, Shri.B.S. Prasad, learned counsel for the respondent / plaintiff defends the impugned order. He contends that the question of forfeiture does not arise. That the agreement to sell does not contain a forfeiture clause. That the suit is only for recovery of money and not for specific performance of contract. Under these circumstances, the plea of the defendants on forfeiture runs contrary to Exhibit-P1. Hence, it is pleaded that the appeal be dismissed. 11. On hearing learned counsels and examining the material on record, we are of the considered view that there is no merit in this appeal. 12. The primary contention of the appellants is that in terms of Exhibit-P1, namely, the agreement to sell, an amount of Rs.15,00,000/- that was paid by the plaintiff has been forfeited. That there was a delay in execution of the agreement and as a consequence whereof, the amount has been forfeited. On an examination of Exhibit-P1, we do not find the forfeiture clause. Exhibit-P1 does not contain any forfeiture clause. This suit is one for recovery of money and it is not a suit for specific performance. Hence, the question of considering readiness and willingness would not arise. Therefore, the only question is whether the plaintiff is entitled for demanding the advance money paid to them. Admittedly, Rs.15,00,000/- has been paid under a contract. The contract has been terminated by the defendants. Therefore, the plaintiff is entitled for the said amount. Under these circumstances, the findings recorded by the trial court on this issue requires to be accepted. 13. The contention of the plaintiff is that since the relevant documents have not been produced by the defendants, the agreement could not have been executed. That the performance of the sale agreement became impossible as Sogane village, where the suit property is situated is an Ex-unsettled Inam Village and the concerned authority of the Government are not issuing the official sketch, without which there cannot be a valid registration of the sale deed. 14. That the performance of the sale agreement became impossible as Sogane village, where the suit property is situated is an Ex-unsettled Inam Village and the concerned authority of the Government are not issuing the official sketch, without which there cannot be a valid registration of the sale deed. 14. By the time the defendants issued Exhibit-D3, issuance of 11(E) sketch was stopped and DW1 has admitted that the same was informed to the defendants as well as the plaintiff by the Tahsildar. From ExhibitD.6, even though it appears that 11(E) sketch was issued in respect of the lands at Sogane Village within the period stipulated in the agreement ExhibitP1, i.e., from 19.07.2008 till 19.10.2008, no efforts was made by the parties to obtain the copy of 11(E) sketch during the said period. The defendants too did not call upon the plaintiff to join them in making necessary application to obtain the 11(E) sketch as could be seen from Exhibits – D1 and D3. ExhibitD6 is the defendants’ own documents which speaks of the fact that Sogane Village being an Unsettled Inam Village, the concerned department, from 04.06.2009 onwards has stopped issuing 11(E) sketch, which is essential for registration of the sale deed. 15. Under these circumstances, the claim of the plaintiff that the agreement to sell the suit property dated 19.07.2008 has become incapable of performance on account of non-issuance of official survey sketch as the property is situated in an Ex-Unsettled Inam Village is appropriate and does not call for any interference. Moreover, it is relevant to notice that the suit is for recovery of money and it is not for specific performance. Therefore, the question of considering readiness, willingness and the capability of executing the sale deed is not subject matter of the suit. Hence, we are of the considered view that the trial court is justified in partly decreeing the suit. The issue is accordingly answered. 16. For the aforesaid reasons, we do not find any reason to interfere. The plaintiff suit is rightly decreed by the trial court and we do not find any error that calls for interference. Consequently, the appeal being devoid of merit, is dismissed.