Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 863 (KAR)

Asharaj v. S. G. Nagaraj @ Suga Nagaraj

2014-09-26

A.V.CHANDRASHEKARA, K.L.MANJUNATH

body2014
Judgment : 1. Present appeal is directed under Section 96 of CPC challenging the judgment and decree passed on 23.02.2007 in O.S.No.765/1999 which was pending on the file of the Court of I Addl. Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore. 2. Suit filed for the relief of specific performance of the contract has been decreed against the appellant by a considered judgment dated 23.02.2007. It is this judgment which is called in question on various grounds as set out in the appeal memo. 3. Appellant is the defendant in the said suit and respondent is the plaintiff in the said suit. Parties will be referred to as plaintiff and defendant as per their ranking given in the Trial Court. Appellant died during the pendency of this appeal and her legal representatives have been brought on record. 4. Facts leading to the file of the suit are as follows: Defendant was the absolute owner in possession of 2.28 acres of land in Sy.No.89/3B2 of Kukkanahalli Village, Dasanapura Hobli, Bangalore North Taluk. Case of the plaintiff is that the defendant had agreed to sell the entire suit schedule property in his favour for a consideration of Rs.4,50,000/- on 10.07.1997 and had received a sum of Rs.3,00,000/-as advance agreeing to receive the balance of consideration of Rs. 1,50,000/-within eleven months from 10.07.1997. Defendant is stated to have acknowledged a sum of Rs.3,00,000/-in the presence of the witnesses -who have attested unto the registered agreement of sale. On the very same day, the defendant is staled to have handed over her title deed i.e., registered sale deed executed in her favour on 22.06.1994 by Sri Veerappa. 5. It is the case of the plaintiff that he had met the defendant several times personally with a request to execute a regular sale deed by receiving the balance of consideration as per the terms of the agreement of sale dated 10.07.1997. She is stated to have postponed the execution of the sale deed on one pretext or the other and as a result of the same, he had to get a legal notice issued on 07.08.1999 calling upon her to execute a regular sale deed and even a draft sale deed had been sent along with the notice. 6. She is stated to have postponed the execution of the sale deed on one pretext or the other and as a result of the same, he had to get a legal notice issued on 07.08.1999 calling upon her to execute a regular sale deed and even a draft sale deed had been sent along with the notice. 6. On receipt of the notice, the defendant neither replied nor complied with the demand and therefore, he was left with no avenue except to file a suit for specific performance of the contract. It is his case that he is still ready and wiling to perform his part of the contract. 7. Defendant has filed a detailed written statement denying all the material averments. She has called upon the plaintiff to prove the contents of the plaint strictly. She has denied the execution of the agreement of sale and the receipt of consideration and the agreement to execute a regular sale deed by receiving the balance of consideration. It is her specific case that she had never intended to sell the suit schedule property to anybody muchless the plaintiff and that she had already developed the area into a farm house by investing huge amount and that there is a two storeyed R.C.C building in the schedule property. She is stated to have got a borewell dug in the suit land and planted large number of fruit bearing trees. 8. It is her specific case that in the year 1997, her husband had suffered heavy loss in the business and hence he was in financial difficulty. Plaintiff was a close family friend of the defendant and therefore, she had requested him to tide over the difficult phase. Taking into consideration the relationship, he agreed to help her financially. Hence, a document was prepared as a security for the lean as she had agreed to repay the same with interest. She is stated to have repaid a portion of the loan to him. 9. The plaintiff is stated to have taken undue advantage of her situation and created a document as though it was an agreement of sale by suppressing the existence of two storied R.C.C. building, existence of a borewell, fence and fruit bearing trees being planted. The very aspect of readiness and willingness has been specifically denied. Suit is stated to be not maintainable either in law or on facts. 10. The very aspect of readiness and willingness has been specifically denied. Suit is stated to be not maintainable either in law or on facts. 10. On the basis of the above pleadings, the following issues have been framed : 1. Whether the plaintiff proves that the defendant being absolute owner of the suit schedule property entered into an agreement of sale dated 10.07.97 agreeing to sell the same for Rs.4,50,000/- and received part consideration of Rs.3,00,000/- as alleged? 2. Whether the plaintiff farther proves that the defendant attempted to alienate the suit schedule property in favour of 3rd parties as alleged? 3. Whether the plaintiff was ever ready and willing to perform his part of the contract as alleged? 4. Whether the defendant proves that the suit agreement of sale is a loan document intended to be re-paid with interest and it was a nominal document as alleged in Para Nos. 13 and 14 of her written statement? 5. Whether the defendant further proves that she had borrowed some amount from the plaintiff and already repaid the portion of it under the circumstances pleaded in Para No. 15 of the written statement? 6. Whether the plaintiff is entitled for relief of specific performance of contract against the defendant as prayed? 7. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? 8. To what relief, if any the parties are entitled? 11. Plaintiff is examined as PW1 and one Krishnappa the attestor to Ex.P1 is examined as PW2. 14 exhibits have been got mar Red on his behalf. Defendant is examined as DW1. After assessing the oral and documentary evidence, the I Addl. Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore, has answered issues 1 to 3 and 6 and 7 in the affirmative and issues 4 and 5 in the negative. Ultimately, the suit has been decreed as prayed for. It is this judgment which is called in question on various grounds as set out in the appeal memo. 12. It is contended on behalf of the appellant that the plaintiff has thoroughly failed to prove that Ex.P1 is an out and out agreement of sale and that plaintiff-has failed to prove the mandatory aspect of readiness and willingness. It is further argued that there is in ordinate delay in enforcing the alleged right under Ex.P1 and therefore, the suit suffers from laches. It is further argued that there is in ordinate delay in enforcing the alleged right under Ex.P1 and therefore, the suit suffers from laches. It is further contended that the value of the property was more than Rs. 15 to Rs.20 lakhs as on the date of the alleged agreement of sale and therefore, suit is not maintainable, more so when the consideration is grossly inadequate. It is further argued that plaintiff has not approached the Court with clean hands and therefore, he is not entitled for any equitable relief, muchless the relief of specific performance. Hence, he has requested the Court to allow the appeal in its entirety. 13. Per contra, the learned counsel for the respondent has supported the judgment of the Trial Court. It is argued that Ex.P1 is a registered agreement of sale and no evidence can be adduced to vary the contents of Ex.P1 as there is a legal inhibition under Section 92 of Evidence Act. It is argued that inadequacy of consideration is no ground to reject the relief of specific performance. Further, it is argued that suit has been filed in time and that the factum of readiness and willingness is forthcoming from the issuance of legal notice and the non-reply of the same. It is argued that Ex.P1 has been proved in accordance with law to the hilt and that no grounds are made out to refuse the relief of specific performance. Hence, it is prayed to dismiss the appeal and confirm the judgment of the Trial Court. 14. After going through the records and hearing the arguments following points arise for our consideration: 1. Whether Ex. P1 is an out and out agreement of sale? 2. Whether the mandatory aspect of readiness and willingness as contemplated under Section 16(c) of Specific Relief Act, 1963, has been proved? 3. Whether any interference is called for by this Court and if so, to what extent? Re. Point No. 1: 15. This is the First Appellate Court dealing with an appeal filed under Section 96 of CPC. This Court, being the final Court of facts, is expected to reassess the entire oral and documentary evidence. The learned Judge has taken up issues 1, 4 and 5 together for consideration by clubbing these issues. Re. Point No. 1: 15. This is the First Appellate Court dealing with an appeal filed under Section 96 of CPC. This Court, being the final Court of facts, is expected to reassess the entire oral and documentary evidence. The learned Judge has taken up issues 1, 4 and 5 together for consideration by clubbing these issues. Case of the plaintiff is that deceased defendant had agreed to sell the entire suit schedule property for a sum of Rs.4,50,000/'- and had received a sum of Rs. 1,50,000/-as advance. 16. Case of the defendant, as put forth before the Court below is that she had never agreed to sell the suit schedule property and a document was executed at the instance of the plaintiff as a security for the loan availed by her to help her husband who was in financial distress. It is her further case that she has already repaid a portion of the amount availed by her. 17. The document on which plaintiff has placed reliance is marked as Ex.PI and its nomenclature is "Sale Agreement Advance Deed" Nomenclature of a document is not decisive in order to ascertain the exact nature of the transaction. On the other hand, the contents of a document will have to be read as a whole in order to ascertain the exact nature of the document in question. What is argued before this Court by the learned counsel for the plaintiff-respondent is that Ex P1 has been proved in accordance with law by examining one of the attestors. Sri B.A.Krishnappa is examined as PW2 and he is one of the attestors to the document. Admittedly, agreement of sale does not require registration. An agreement of sale requires registration only when possession is delivered to the intending purchaser and this mandatory requirement has come into force from 24.09.2001 the day on which amendment to Section 17(1)(A) is effected. Of course, there is no second opinion about the proof of Ex.P1 as the very defendant has admitted in her cross-examination about executing Ex.P1 in favour of the plaintiff. 18. In a recent decision of a Division Bench of this Court in the case of Smt.Shantha Kumari Vs. Of course, there is no second opinion about the proof of Ex.P1 as the very defendant has admitted in her cross-examination about executing Ex.P1 in favour of the plaintiff. 18. In a recent decision of a Division Bench of this Court in the case of Smt.Shantha Kumari Vs. Sri V.N. Satyanarayanam RFA No.567/2007, it is specifically held that a Court dealing with a suit for specific performance will have to make a serious effort to ascertain as to whether the document in question is an out and out agreement of sale or not. Relevant observation is found in paragraph 16 and the same is extracted below: "16. The authenticity or the genuineness of the agreement of sale marked as Ex.P1 has been seriously disputed. This is a very important document relied upon by the plaintiff as the basis for the equitable relief of specific performance. Mere proof of document is insufficient to grant the equitable relief of specific performance. Even if the execution of such a document is proved, a serious attempt is to be made by the Court to know whether it is an out and out sale agreement. Hence evaluation of circumstances surrounding Ex.P1 is equally relevant xxxx." 19. This assumes greater importance as the relief of specific performance is an equitable relief. Just because a document is proved as an agreement of sale, equitable relief of specific performance will not automatically follow. The relief being discretionary, the Court is guided by the parameters laid down under Section 20 of Specific Relief Act, 1961. Hence we will have to see as the whether the contents of Ex.P1 would really make out a case of an out and out agreement of sale. 20. In Ex.P1, there is a specific reference about the defendant agreeing to sell the entire suit schedule property measuring 2.28 acres of land in Sy.No.89/3B2 for a sum of Rs.4.5 lakhs and defendant having received a sum of Rs.3,00,000/-as advance on 10.07.1997 itself i.e., on the very day of executing Ex.Pl. Apart from this there is an undertaking given by the DW-1 the defendant to execute a regular sale deed in favour of the plaintiff by receiving the balance consideration of Rs. 1,50,000/- within eleven (11) months from 10.07.1997. 21. Apart from this there is an undertaking given by the DW-1 the defendant to execute a regular sale deed in favour of the plaintiff by receiving the balance consideration of Rs. 1,50,000/- within eleven (11) months from 10.07.1997. 21. The learned Judge, while evaluating the document marked as Ex.P1, has lost sight of a very important clause relating to the repayment of Rs.3,00,000/- received as advance by DW-1 from PW-1 on 10.07.1997. This clause, according to us, is almost decisive in ascertaining the exact nature of the transaction. Hence the relevant clause which is in Kannada is translated to English and reproduced below:- "Both of us have agreed that the remaining consideration of Rs. 1,50,000/- would be paid within eleven months from today. I have agreed to execute a regular sale deed in your favour or in favour of any body as may be indicated to me the moment the remaining consideration is paid to me. Incase I fail to repay Rs.3,00,000/- to you, I undertake to repay Rs. 3,75,000/- at one stretch assessing compensation at 25% on Rs.3,00,000/-to you. In case you fail to pay the remaining balance of Rs. 1,50,000/- within 11 months from today I will be entitled to deduct Rs.75,000/'-towards the lose that would be caused to me and repay the balance of Rs.2,25,000/- to you." 22. If really the defendant had intended to treat this transaction as an out and out agreement of sale, the question of paying interest by her at 25% on Rs.3,00,000/-in case she failed to execute a regular sale deed, would not have arisen. Normally clause of this type would not find a place in an out and out agreement of sale. This is supported by yet another instance of transaction that took place between the parties. 23. Case of the defendant is that Ex.P1 was executed as a security to the loan advanced by PW-1 to her husband. During the course of cross examining DW-1, it is suggested to her that she i.e., DW-1 had received a loan of Rs.27.000/- from PW-1 in 1998 and had issued three cheques in his favour and that in view of those cheques being dishonoured, a Criminal Case had been filed and she had been convicted by the court. 24. During the course of cross examining DW-1, it is suggested to her that she i.e., DW-1 had received a loan of Rs.27.000/- from PW-1 in 1998 and had issued three cheques in his favour and that in view of those cheques being dishonoured, a Criminal Case had been filed and she had been convicted by the court. 24. In paragraph 21 of the cross-examination of DW-1 at page 10 of her deposition, some suggestions have been put to DW-1 by the learned counsel for the plaintiff in regard to the cheque bounce case. The relevant portion of the same is reproduced in English:- "It is true that myself and my husband had raised loan from several persons. It is true that we had executed an agreement of sale pertaining to our Rajajinagar house to our relative and a suit had been filed against us. It is true that apart from this suit transaction, I had availed a loan of Rs.27,000/'- from the plaintiff. It is true that I had received the said loan in January 1998. It is true that I had given three post dated cheques to the plaintiff in this regard. It is not true to suggest that before issuing those cheques I had closed my bank account. It is true that a case in C.C.No.34492/1999 had been filed against me by the plaintiff. It is true that there was direction from the court to repay the same, lest I would be jailed for three months of simple imprisonment. It is true that at my instance, court had granted three instalments as I was not in a position to repay the same at one stretch. It is true that a warrant had been issued against me as I had not repaid the same within three months." 25. The learned Judge has considered this aspect in the judgment. Evidence in a Civil Case will have to be assessed on the basis of board preponderance of probabilities. Assessment or evaluating evidence is the most crucial aspect while writing a judgment, whether in a civil or criminal case. Hence proper marshalling of facts is an absolute necessity. If facts are not marshalled properly prior to assessment of evidence, chances of missing crucial aspects in a case are bound to occur. 26. Assessment or evaluating evidence is the most crucial aspect while writing a judgment, whether in a civil or criminal case. Hence proper marshalling of facts is an absolute necessity. If facts are not marshalled properly prior to assessment of evidence, chances of missing crucial aspects in a case are bound to occur. 26. If really the earlier transaction as evidenced in Ex.P1 was not a loan transaction, question of paying Rs,27,000/- to DW1 in January 1998 would not have arisen. If Ex.P1 was intended to be acted upon, a sum of Rs.27,000/- paid in January 1998 which was well within 11 months from the 10.7.1997, would have been treated as further advance amount pursuant to Ex.P1. The admitted facts are that PW-1 was very well known to the family of DW-1 and hence a sum of Rs.27,000/- was given to DW-1 as loan on receiving three post dated cheques. 27. The learned Judge has come to the conclusion that suit transaction is different from the transaction of lending Rs.27,000/- in January 1998 and hence it has no connection whatsoever vith this case. We are unable to accept the said observation. If the transaction in question as evidenced in Ex.P1 was not a loan transaction, it would not have been suggested to DW-1, that apart from suit transaction DW-1 had availed a loan of Rs.27,000/-from the plaintiff in 1998. If lending Rs.27,000/-, according to the learned trial Judge, was a different transaction, the corollary would be that plaintiff is a money lender engaged in money lending by taking collateral documents either in the form of an agreement of sale or cheques. 28. In Ex.Pl suit property is described as an agricultural land measuring 2.28 acres. The property in question is in the outskirts of Bangalore City. The same is in Bangalore North taluk. In the examination-in-chief DW-1 has deposed that in 1994 she purchased suit property and later on she has put up a 15 square building and got a bore well dug and planted large number of fruit bearing trees. PW1 has also unequivocally admitted about the existence of a two storied 15 square R.C.C. building in the suit land as on the date of executing Ex.P1 in his favour. But the said material fact is suppressed in Ex.P1. PW1 has also unequivocally admitted about the existence of a two storied 15 square R.C.C. building in the suit land as on the date of executing Ex.P1 in his favour. But the said material fact is suppressed in Ex.P1. The evidence placed on record would disclose that about 6 to 7 lakhs of rupees had been spent to put up the said building. If the value of the building and the fence put up around the land and the approximate amount spent to plant fruit bearing plants, the probable market value of the suit land on the date of Ex.Pl would have been more than Rs. 11-12 lakhs. 29. This assertion is found in paragraph 9 of her deposition. In her cross-examination, she has deposed that bore well was got dug after 10.7.1997. Just because she has not produced documents in support of the same, her evidence cannot be disbelieved. Her assertion as found in paragraph 9 of her deposition has virtually remained unchallenged. This fact of getting a borewell dug is not seriously disputed while cross-examining DW1. Normally no prudent man would venture to spend sufficient amount to put up a borewell after sale agreement is executed. If this part of the evidence is assessed in right perspective, the reasonable inference that could be drawn is that DW1 had not intended, to sell the property but had offered the same as a security to the loan availed by her. 30. If she had really intended to sell the suit property, she would not have got a bore well dug in the suit land by spending sufficient money. Virtually the land in question was a well developed garden land or an estate with a two storied building of about 15 squares as on the date of Ex.Pl. This material aspect of a full fledged developed estate with a building thereon is; not mentioned in Ex.P1. This would also suggest or indicate that the value of the land was definitely more than what is shown in Ex.Pl. Though the land in question was purchased in 1994 vide Ex.P2 for a sum of Rs. 1,35,000/- sufficient amount had been spent to put up a 15 square two storied building and to plant fruit bearing trees. Apart from the suit, land been fenced all round by that time. 31. Though the land in question was purchased in 1994 vide Ex.P2 for a sum of Rs. 1,35,000/- sufficient amount had been spent to put up a 15 square two storied building and to plant fruit bearing trees. Apart from the suit, land been fenced all round by that time. 31. It is true that inadequacy of consideration is not a ground to reject the relief of specific performance. But that can be considered as one of the attending circumstances with other attending circumstances like the plaintiff being a money lender and transaction in question being a loan transaction and suppression of the material fact of the existence of a two storied 15 square R.C.C. building in the suit land and fence being put all round the land and fruit bearing plants being in existence. The consideration shown in Ex.P1 is so grossly inadequate that no prudent man can consider the same as a reasonable consideration. The consideration shown in Ex.P1 is not just on the lower side but shockingly inadequate Instances of advancing loan and insisting for a registered agreement of sale as security for the same is not uncommon in our country. It is in this regard the Court is bound to look into all the circumstances surrounding a transaction in order to know the exact nature of the transaction. 32. On reassessment of the entire evidence, we are of the considered opinion that the learned Judge has not assessed the evidence in right perspective. No. proper marshalling of facts is done. The learned trial Judge is more persuaded by the fact of proof of Ex.P1 than the actual nature of document. The evidence is not tested on the touchstone of intrinsic probabilities. The inability of the defendant to effectively discharge the burden cast on her in regard to issues 4 and 5 is considered as the ability of PW-1 in discharging burden cast upon PW-1 in respect of Issue No.1. Thus the trial court has adopted a wrong approach to the real state of affairs. Hence v/e are constrained to hold Point No.1 in the negative. Point No. 2 33. The learned Judge has given a finding on issue No.3 and necessary discussion is found in paragraphs 19 and 20 of the judgment. Thus the trial court has adopted a wrong approach to the real state of affairs. Hence v/e are constrained to hold Point No.1 in the negative. Point No. 2 33. The learned Judge has given a finding on issue No.3 and necessary discussion is found in paragraphs 19 and 20 of the judgment. Proof of readiness and willingness as mandated under Section 16(c) of Specific Relief Act, is an absolute necessity to seek the equitable relief of specific performance. There must not only be clear pleading in regard to the readiness but also unimpeachable evidence must be adduced to prove the same. 34. The learned Judge has made a specific observation that a person seeking benefit of the specific performance of the contract must manifest that his conduct has been blemishless throughout to have the relief of specific performance. It is further observed by the Trial Court in paragraph-19 at page No 18 of the impugned judgment, that the Court has to grant the relief only on the basis of the conduct of the person seeking the relief. 35. The learned Judge has come to the conclusion that on 10.07.1997, the agreement of sale was executed with a condition that the sale transaction should be completed within eleven months. Since the plaintiff got issued a legal notice on 07.08.1999 enclosing a copy of the draft sale deed for approval by the defendant and since the defendant neither replied nor complied with his demand, the said act is stated to be in compliance with the mandate of Section 16(c) of Specific Relief Act. It is further observed that the plaintiff has deposited a sum of Rs. 1,50,000/-in the Court and essential facts have been pleaded in the plaint regarding his continuous readiness and willingness. 36. A decision reported in 1999(9) Supreme 103 in the case of Dada Rao and another Vs. Rama Rao has been referred to in the impugned judgment. In the said decision the discretion of the Court to be exercised under Section 20 of The Specific Relief Act, 1963 has been dealt with at length. 36. A decision reported in 1999(9) Supreme 103 in the case of Dada Rao and another Vs. Rama Rao has been referred to in the impugned judgment. In the said decision the discretion of the Court to be exercised under Section 20 of The Specific Relief Act, 1963 has been dealt with at length. What is held in the said decision is that the plaintiff-purchaser would not be entitled to a decree for specific performance but would be entitled only for return of the earnest money and damage stipulated with interest in the event of intending purchaser refusing to buy the property on coming to know of the refusal of the vendor to sell the property. 37. What is observed in paragraph-24 of the judgment is that the said decision is not applicable to the facts of the case, as the facts of the present case in O.S.No.765/1999 stand on a different footing. We are unable to accept the said observations made by the learned Judge in paragraph 24. While distinguishing a decision of a constitutional Court more particularly when the decision of the Hon'ble Apex Court, the Court is expected to make out a clear case of distinction with reference to the facts of the case under consideration vis-a-vis the fact in the decision of the higher constitutional Court. No such serious exercise is made by the learned Judge except stating that in the case on hand, Ex P1 is proved and prior notice is got issued. Whether the notice so got issued in 1999 could be considered as a strict compliance of Section 16(c) of Specific Relief Act, 1963 in the light of 11 months being fixed as the time and incorporation of a condition to repay Rs.3 lakhs with Rs.75,000/'- as damages has not been discussed. On the other hand, the said decision is aptly applicable to the case on hand. 38. In Ex.P1 there is a specific clause indicating the time within which the sale transaction should be completed. Parties had agreed with an open mind that the entire transaction should be completed within 11 months. Consequences of non-compliance with the said covenant has been made specific in Ex.P1 itself. 38. In Ex.P1 there is a specific clause indicating the time within which the sale transaction should be completed. Parties had agreed with an open mind that the entire transaction should be completed within 11 months. Consequences of non-compliance with the said covenant has been made specific in Ex.P1 itself. If the purchaser did not pay the remaining consideration within eleven months to have a sale deed, then the vendor would be entitled to deduct Rs.75,000/-out of Rs.3,00,000/- received by her as advance and to return the amount. It is also made clear that in case the defendant were to fail in executing a sale deed within eleven months, she will have to return Rs.3,00,000/- with Rs.75,000/- calculating damages at 25% p.a. 39. What is argued before this Court by the learned counsel for the plaintiff-respondent is that the suit has been filed within three years from the date mentioned in Part-I of Article 54 of Limitation Act. Article 54(1) provides three years as the time within which a suit for specific performance will have to be filed from the date on which the period prescribed in the agreement of sale would expire. As per Article 54(11), if no specific period is mentioned, three years will have to be reckoned from the date of the notice of refusal. Therefore, learned counsel for the plaintiff has argued that three years will have to be reckoned from the date of Ex.P5, i.e., the date on which the defendant received the legal notice dated 07.08.1999 got issued by the plaintiff through his Advocate. Ex.P6 is the postal acknowledgement signed by the defendant on 09.08.1999. 40. It is further argued that time is not the essence of contract in respect of immovable properties and therefore, three years will have to be computed from the date of the receipt of legal notice by the defendant. 41. The suit schedule property is in the vicinity of Bangalore City. It had been developed as a full-fledged estate by erecting a fence all round the suit schedule property and also getting a borewell dug in the schedule property that too after executing the agreement of sale. Soon after purchasing the property in the year 1994, plaintiff chose to put up a two storeyed 15 squares RCC building in the suit schedule property. Soon after purchasing the property in the year 1994, plaintiff chose to put up a two storeyed 15 squares RCC building in the suit schedule property. The property being located in the vicinity of Bangalore City, is a property which has all potentialities of an urban property. Hence, the plaintiff was expected to exercise the relief of specific performance at an early date i.e., soon after the expiry of eleven months but he did not choose to do so. 42. On the other hand, he advanced the loan of Rs.27,000/-in January 1998 to the defendant and in view of her inability to repay the amount, he initiated criminal proceedings for offence punishable under Section 138 of N.I. Act, which ended in conviction. He allowed her to get a borewell dug after executing Ex.P1. It is his case that he had approached the defendant several times with his friends requesting her to perform her part of the obligation. According to him, the defendant went on postponing the execution of the sale deed on one pretext or the other. This is found in page No.3 of his deposition. If plaintiff had come to know of her intention to postpone the execution of the sale deed when he met her personally with a request to execute a sale deed, he should have got issued a notice at the earliest i.e., soon after the expiry of 11 months. On the other hand, before the expiry of 11 months he chose to advance the loan of Rs.27,000. Almost two years after the execution of the sale deed, he got a notice issued to the defendant on 07.08.1999 which is evidenced vide Ex.P5. This was received by the defendant on 09.08.1999 and the suit was filed on 22.11.1999. This has to be considered as a serious lapse on the part of the plaintiff. 43. The Hon’ble Supreme Court in the case of Mrs. Saradamani Kandappan Vs. Mrs. S.Rajalakshmi S& Ors. reported in AIR 2011 SC 3234 has held that the concept that time is not the essence of contract in respect of immovable properties will have to be revisited by the Hon'ble Apex Court, since there has been a steady rise in the price of immovable properties, more particularly the urban properties or the properties situated in the vicinity of town and cities. 44. 44. Relying upon the earlier decision rendered in the case of K.S.Vidyanadam and others Vs. Vairavan, (1997) 3 S.C.C. PI, the Hon'ble Supreme Court in Saradamani Kandappan Vs. S.Rajalakshmi's case, has held as follows in paragraph-27 at page 3248. The same is relevant and hence reproduced below: "27. A correct perspective relating to the question whether time is not of the essence of the contract, in contracts relating to immovable property, is given by this court in K.S. Viduanadam and Others vs. Vairavan - (1997) 3 SCC 1 :( AIR 1997 SC 1751 :1997 AIR SCW 956) (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani), ( AIR 1993 SC 1742 :1993 AIR SCW 1371)). This Court observed: It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. In the case of urban properties in India it is well-known that their prices have been going up sharply over the last few decades -particularly after 1973. We cannot be oblivious to the reality and the realityis constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation. Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so (emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices." 45. On reassessment of the entire evidence, we are of the considered opinion that the plaintiff has failed to prove the factum that he has been ready and willing to perform his part of the contract as mandated under Section 16(c) of Specific Relief Act. 46. Even otherwise, nothing is placed on record as to what was the necessity to postpone the execution of the sale deed on the day when the agreement of sale was executed. The defendant, according to the plaintiff, had already handed over the original sale deed executed in her favour by the vendor Veerappa in the year 1994 and that is marked as Ex.P2. The khata had already been mutated in her name and that is evident from Ex.P3 a copy of the mutation issued on 19.12.1994. RTC of the land in question also stood in the name of the defendant and the same is evident from Ex.P4 dated 19.12.1994. 47. Even in Ex.P1 nothing is mentioned as to what was the reason for giving 11 months time to have a regular sale deed. Therefore, we are of the opinion that the Trial Court has not adopted proper approach towards this aspect and hence, point No. 2 will have to be answered in the negative. Re. Point No.3: 48. In view of our findings on points 1 and 2, the appeal will have to be allowed in part setting aside the judgment and decree passed by the Trial Court directing the defendant to execute a regular sale deed. On the other hand, in its place a decree should be passed directing the defendant to repay the earnest money of Rs.3,00,000/-with reasonable interest thereon from the date of filing of the suit till realization. 49. Since the evidence placed on record discloses that the document in question is not an out and out agreement of sale and that the plaintiff is virtually a money lender, we are constrained to award interest at 12% p.a. only on Rs.3,00,000/- from the date of agreement till realization. ORDER Appeal filed under Section 96 of CPC challenging the judgment and decree passed in O.S.No.765/1999 which was pending on the file of the Court of I Addl. Civil Judge (Sr.Dn.) Bangalore Rural District, Bangalore, is allowed in part. Relief of specific performance granted by the Trial Court is rejected. ORDER Appeal filed under Section 96 of CPC challenging the judgment and decree passed in O.S.No.765/1999 which was pending on the file of the Court of I Addl. Civil Judge (Sr.Dn.) Bangalore Rural District, Bangalore, is allowed in part. Relief of specific performance granted by the Trial Court is rejected. The defendant is directed to refund a sum of Rs.3,00,000/-(Rupees three lakhs only) with interest at 12% p.a. thereon from the date of agreement of sale i.e., 23.02.2007 till realization and that the appellant is entitled for proportionate costs throughout. Three months time is granted to the defendant to deposit the amount in the Trial Court and till the entire amount is deposited in the Trial Court or paid to the plaintiff, there shall be a charge over the schedule property. If the amount is deposited in the Trial Court, the defendant shall intimate the same to the plaintiff in writing.