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Karnataka High Court · body

2017 DIGILAW 93 (KAR)

MARUTI v. SHRISHAILAPPA

2017-01-11

K.SOMASHEKAR, RAVI MALIMATH

body2017
JUDGMENT : 1. This appeal is preferred by the defendant against the judgment and decree dated 27.08.2012 passed by the learned I Addl. Senior Civil Judge, Belgaum in O.S. No. 214 of 2010, seeking to set aside the judgment and decree passed by the Court below. 2. The brief factual matrix of the case are as under: The rank of the parties in this appeal shall be maintained as in the original suit before the Court below. The plaintiffs/respondents herein have filed a suit against the defendant/appellant seeking the relief of specific performance of contract in respect of the lands bearing survey Nos. 55/1B and 55/2B, both situated within the village limits of Bhutaramhatti village of Belgaum Taluka, which are more particularly described in the plaint as suit schedule properties. The defendant is the owner and possessor of the suit properties which he had purchased under a registered sale deed dated 01.02.2005 for a sale consideration of Rs.4,28,000/-. On the basis of the registered sale deed, name of the defendant came to be entered in the revenue records. In the year 2007, the defendant decided to sell the suit schedule properties to meet his financial difficulties. The plaintiffs approached defendant and expressed their intention to purchase the suit schedule properties. After mutual discussions between them, sale consideration amount was fixed at Rs.7,40,000/- per acre. On 30.11.2007, the defendant executed a deed of agreement for sale of suit lands to the plaintiffs. On the same day, the plaintiffs, as part performance of their part of contract, paid an amount of Rs.7,00,000/- to the defendant. As per the deed of agreement entered, the remaining balance consideration amount was to be paid within 15 days from the date of receipt of necessary documents from the defendant. The defendant too agreed that before executing registered sale deed, he would get measured the suit lands and fix the boundaries of suit lands and only thereafter plaintiffs were required to pay balance consideration amount. Thereafter the plaintiffs came to know that the defendant has raised loan from the Syndicate Bank by offering the suit lands as security and hence requested the defendant to clear the said loan amount and to obtain no due certificate from the bank concerned. Thereafter the plaintiffs came to know that the defendant has raised loan from the Syndicate Bank by offering the suit lands as security and hence requested the defendant to clear the said loan amount and to obtain no due certificate from the bank concerned. At the first instance, the defendant gave assurance that he would repay the loan amount and get no due certificate from die bank, but thereafter, he could not keep up his promise. All the way the plaintiffs are ready and willing to perform their part of contract by paying the remaining consideration amount. The plaintiffs contacted the defendant on many occasions and even they met Sri. N.S. Kole who is one of the attesting witnesses to the deed of agreement for sale entered into between plaintiffs and defendant. But the defendant did not come forward to perform his part of contract by receiving balance consideration amount and to execute registered sale deed in favour of the plaintiffs so as to complete the sale transaction. Plaintiffs were ready and always they kept balance consideration amount ready and they were willing to get the registered sale deed executed with respect to the suit property. But the defendant has not complied his obligation under the deed of agreement for sale. Finally plaintiffs were constrained to issue legal notice through their advocate calling upon the defendant to execute registered sale deed by receiving balance consideration amount. The notice issued though R.P.A.D. was returned with an endorsement of postal authority as 'already out of station'. From the conduct of the defendant, it is clear that, he was intentionally avoiding to perform his part of contract under the deed of agreement for sale entered between them. Therefore the plaintiffs filed a suit for specific performance of contract and prayed for decreeing the suit. In response to the suit summons issued to the defendant, the defendant appeared through his counsel and resisted the claim of the plaintiffs by filing the written statement. Based upon the pleadings, the following issues are framed by the Court below: i. Whether the plaintiffs prove that defendant entered into agreement of sale with the plaintiff on 30.11.2007 for the sale of plaint schedule property for Rs.7,40,000/- per acre? ii. Whether the plaintiff proves that defendant had received earnest money of Rs. 7,00,000/-? iii. Based upon the pleadings, the following issues are framed by the Court below: i. Whether the plaintiffs prove that defendant entered into agreement of sale with the plaintiff on 30.11.2007 for the sale of plaint schedule property for Rs.7,40,000/- per acre? ii. Whether the plaintiff proves that defendant had received earnest money of Rs. 7,00,000/-? iii. Whether the plaintiffs prove that they are always ready and willing to perform their part of contract? iv. Whether the plaintiff is entitled for specific performance of contract? OR v. Whether the plaintiff is entitled for alternative relief? vi. Whether the plaintiff is entitled for damages for Rs.35,15,000/ - with future interest at 18% p. a.? vii. What order/decree ? In order to substantiate their claim, plaintiff No.5 has been examined as PW1 and one witness is examined as PW2 and got marked documents at Exs.P1 to P5. Defendant has been examined as DW1 and got marked documents at Exs.D1 and D2. The trial Court has answered issue Nos. 1, 2, 3 and 4 in the affirmative and issue Nos. 5 and 6 in the negative and decreed the suit of the plaintiffs by directing the defendant to execute registered sale deed in favour of the plaintiffs with respect of suit lands after receiving balance consideration amount of Rs.28,15,000/- so as to convey the full right, title and interest over the suit lands in favour of the plaintiffs within three months. Aggrieved by the said judgment and decree, the defendant has preferred this appeal. 3. Heard the arguments advanced by the learned counsel for the appellant and respondents and perused the records. 4. The following point arises for our consideration in this appeal: 'Whether the I Addl. Senior Civil Judge, Belgaum is justified in decreeing the suit of the plaintiffs in O.S. No. 214 of 2010?" 5. The learned counsel for the appellant/defendant has taken up a contention that the plaintiffs though averred in their plaint about readiness and willingness to perform their part of contract, practically, they never come forward to perform their part of contract by paying remaining balance consideration amount. He also argued that plaintiffs were required to pay balance consideration amount within 15 days from the date of execution of deed of agreement for sale. But the plaintiffs never called upon the defendant and they never tendered remaining consideration amount within, stipulated time. He also argued that plaintiffs were required to pay balance consideration amount within 15 days from the date of execution of deed of agreement for sale. But the plaintiffs never called upon the defendant and they never tendered remaining consideration amount within, stipulated time. Therefore, factum of readiness and willingness has not been proved by plaintiffs. As this contention has been taken by the defendant, he has drawn attention the learned trial Judge to the deposition of PW1 and PW2. He also contended the merely because defendant has admitted execution of agreement of sale and receipt of part consideration amount of Rs.7,00,000/- does not necessarily leads to the conclusion that plaintiffs are always read; and willing to perform their part of contract by paying remaining balance amount. He contended that the plaintiffs failed to prove that they are always ready and willing to carry out terms of agreement at all the times, right from execution of agreement for sale up to filing of the suit. In support of his contention he has also placed reliance on the decisions reported as under: 1. 1996(7) KLJ 712 2. 1994 (5) KLJ 357 3. 2011 SAR (CIVIL) 630 4. HCR 2012 KANT 79 5. HCR 2011 KANT 811 6. HCR 2011 KANT 873 7. 1996 SAR (CIVIL) 519 8. IICR 2011 KANT 77 9. 2009 SCCR 485 6. The learned counsel for the respondents/plaintiff contended that on 30.11.2007 plaintiffs and the defendant had entered into an agreement of sale as per Ex.P1 for purchase of suit lands for a consideration of Rs.7,40,000/- per acre. In this regard, the defendant had executed deed of agreement of sale of suit lands in favour of the plaintiffs by receiving earnest money of Rs.7,00,000/-. It is for the plaintiffs to prove these two issues. In order to prove these two issues, the plaintiffs led evidence of two witnesses. Among them, PW1 is plaintiff No.3 and PW2 is one of attesting witnesses to the deed of agreement for sale, which is marked as Ex.P1. The version of PW1 and PV72 are not only with consonance of averments of plaint, but also supported by documentary evidence marked at Ex.P1 insofar as agreement for purchase and sale of suit lands. Among them, PW1 is plaintiff No.3 and PW2 is one of attesting witnesses to the deed of agreement for sale, which is marked as Ex.P1. The version of PW1 and PV72 are not only with consonance of averments of plaint, but also supported by documentary evidence marked at Ex.P1 insofar as agreement for purchase and sale of suit lands. The recitals of Ex.P1, the agreement of sale entered into between the plaintiffs and defendant, are very much clear and there is no ambiguity insofar as the agreed consideration amount, survey number of lands which are to be alienated to the plaintiffs and also the boundaries of the suit lands as indicated in the plaint. Though defendant resisted the claim of the plaintiffs by filing the written statement, but in his evidence he has admitted execution of Ex.P1 - agreement of sale in the matter of alienation of suit lands in favour of plaintiffs. He has also admitted execution of deed of agreement for sale on 30.11.2007 and also admitted agreed consideration amount of Rs.7,40,000/- per acre. The defendant further admitted the fact of receiving of Rs.7,00,000/- from the plaintiffs as earnest money. It is further contended that the oral evidence of PW 1 and PW2 coupled with the contends of Ex.P1, as well as specific admission of the defendant in his written statement about execution of deed of agreement for sale in favour of the plaintiffs and also admission of the defendant about receipt of earnest money of Rs.7,00,000/- under Ex.P1, the learned trial judge has come to the conclusion that the plaintiffs have proved their case and answered issues 1 and 2 in the affirmative. Issue Nos. 3 and 4 are also held in the affirmative by assigning reasons in the impugned judgment that delay has caused in completion of sale transaction. It is contended that plaintiffs not only averred their readiness and willingness to perform their part of agreement, but also proved this factum by leading evidence and also by sending legal notice to the defendant calling upon him to perform his part of contract. There is no any unwillingness on the part of the plaintiffs to perform their part of contract to get the registered sale deed in respect of the suit schedule properties admitted therein according to the agreement of sale entered into between the plaintiffs and defendant. There is no any unwillingness on the part of the plaintiffs to perform their part of contract to get the registered sale deed in respect of the suit schedule properties admitted therein according to the agreement of sale entered into between the plaintiffs and defendant. In support of this contention, the learned counsel for the plaintiffs has relied upon the decisions reported as under: 1. AIR 2000 SC 191 (B) 2. AIR 2009 SC 2157 (A) 3. AIR 2006 SC 2172 (B) 4. AIR 1997 Patna 10(A) 5. 2012 SAR (Civil) Page 544(B) 7. The learned I Addl. Senior Civil Judge keeping in view the rival contentions and also the principles laid down in the above dictums, which was placed by both the counsels, has rendered a finding that in a suit for specific performance, plaintiff must aver in his plaint that he was and is ready to perform his part of contract and the plaintiff must prove the said averments. The factum of readiness and willingness to perform plaintiffs part of contract is to be adjudicated with reference to the conduct of party and attending circumstances of the case. In the instant case, the plaintiffs have pleaded their readiness and willingness to perform their part of contract with reference to the conditions or stipulation as indicated in the deed of agreement for sale as per Ex.P1. It is the specific case of the plaintiff that though they are ready and willing to perform their part of contract, the defendant intentionally committed breach of terms and conditions of agreement and failed to perform his obligation by not extending his co-operation in completion of sale transaction by receiving remaining part of consideration amount and by executing the registered sale deed as per the deed of agreement for sale entered into between them as per Ex.P1. The defendant has not strictly adhered to the stipulation as contained in clause No.5 of Ex.P1. However, the learned I Addl. Civil Judge has analysed the evidence as put forth by the plaintiffs keeping in view Ex.P1, deed of agreement for sale entered into between the plaintiffs and defendant and also the evidence of PW1 and PW2. The following two clauses i.e., clause Nos. 1 and 5 were indicated as main conditions as there is no dispute between the parties with regard to other clauses are concerned: "2. The following two clauses i.e., clause Nos. 1 and 5 were indicated as main conditions as there is no dispute between the parties with regard to other clauses are concerned: "2. The remaining balance consideration is calculated and is to be paid by the purchasers to the said vendor, as per actual measurement of site at the time of registration of final sale deed and/or as mutually agreed between the parties. 5. The said purchasers hereby agreed to get this transaction completed within a period of 15 (fifteen) days, only after receipt the necessary documents to the said vendor. The said vendor hereby agreed to give all the necessary documents pertaining to the said property to the said purchasers. Before execution and registration of sale deed, the said vendor has to take up the work of measurements and fixing boundary stones." These two clauses at Ex.P1 - deed of agreement for sale are main clauses since there is no dispute between the parties with regard to ether clauses are concerned. 8. On perusal of the recitals of Ex.P1, it is clear that though time is not essence of the contract, but plaintiffs/ purchasers shall complete the sale transaction within 15 days from the date of receipt of necessary documents by defendant/vendor. However, in view of clause No.5 of Ex.P1, it is very much clear that defendant has to hand over necessary documents pertaining to suit properties to purchasers-plaintiffs and only thereafter plaintiffs are required to pay balance consideration amount. 9. In the instant case, it requires to be stated as a matter of fact as per the terms and conditions in Ex.P1, that the defendant was required to deliver the original sale deed pertaining to suit properties to the plaintiffs and thereafter plaintiffs are required to pay balance consideration amount. The averments in the plaint discloses that plaintiffs are ready and willing to perform their part of contract by paying balance consideration amount. PWI has specifically stated that they came to know about availment of loan by the defendant on the suit lands only during the year 2008. PW1 has specifically stated in his evidence that they are ready to pay balance consideration amount. Even tire version of PWI is also supported by the version of PW2, who is the signatory to the deed of agreement for sale - Ex.P1. PW1 has specifically stated in his evidence that they are ready to pay balance consideration amount. Even tire version of PWI is also supported by the version of PW2, who is the signatory to the deed of agreement for sale - Ex.P1. PWI has further stated that they came to know about the raising of loan by the defendant on these lands in the year 2008, but it is clear that in 2007 itself, the defendant has raised the loan, but the same was not repaid. 10. In that view of the matter, it appears that, clause No.5 has been inserted so as to cast an obligation on the defendant to clear the loan and to get back his title deeds with respect to suit lands which he ought to have handed over to the plaintiffs and then plaintiffs were required to pay balance consideration amount within 15 days from the date of receipt of necessary title deed by the defendant. Whereas, DW1 in his cross-examination has clearly admitted that, after execution of deed of agreement for sale, he had applied for survey of both lands and he also admitted that, he got measured the lands. He did not inform this fact to the plaintiffs. Balance consideration amount as per the agreement has to be calculated only after ascertaining actual measurement, which could be ascertained only after actual measurement. As per clause No.2 of deed of agreement for sale, at the first instance the defendant, in obedience of terms of agreement has rightly applied for measurement of suit lands and got them measured. The learned Addl. Senior Civil Judge has gone through the evidence of PWI as well as the stipulated conditions entered at Ex.P1 - deed of agreement for sale entered into between the plaintiffs and the defendant. PWI has stated that they were not knowing the existence of encumbrance when they entered into agreement for sale, but it is very much clear that, plaintiffs only after going through the contents of record of rights have entered into purchase of suit lands from the defendant. The evidence of PWI discloses that plaintiffs contacted the defendant through PW2 and expressed their readiness and willingness to perform their part of contract. 11. However, in this appeal the counsel for the appellant has taken a contention that the plaintiffs and the defendant were entered into an agreement of sale as per Ex.P1. The evidence of PWI discloses that plaintiffs contacted the defendant through PW2 and expressed their readiness and willingness to perform their part of contract. 11. However, in this appeal the counsel for the appellant has taken a contention that the plaintiffs and the defendant were entered into an agreement of sale as per Ex.P1. The defendant was ready and willing to perform his part of contract by taking balance consideration amount and this fact has to be considered in this appeal. 12. On the contrary, the learned counsel for the respondents has taken up a contention that the plaintiffs were always ready and willing to perform their part of contract by paying the balance consideration amount. He also argued that as per the terms of agreement an obligation is casted upon of such documents, within 15 days, the plaintiffs are required to comply the sale transaction by paying remaining consideration amount. But the defendant has not complied his obligation. 13. In this appeal, as already been stated, based upon the pleadings, the learned trial Judge has framed the issues and also answered issue Nos. 1 to 4 in the affirmative and issue Nos. 5 and 6 in the negative by assigning reasons. Issue No.6 is relating to the damages claimed by the plaintiff amounting to Rs.35,15,000/- with future interest at 18% p.a. The learned trial Judge has rendered a finding that there is no worth believing evidence on record to hold that because of non-co-operation of defendant in the matter of completion of sale transaction, plaintiffs suffered loss or damages to the extent as claimed by them and answered the said issue in the negative. The learned trial Judge has answered issue No.7 holding that the suit of the plaintiff is to be decreed with cost. Though the remaining consideration amount is not specifically mentioned in Ex.P1 -- deed of agreement for sale, the recitals of Ex.P1 are very much clear that the consideration amount is fixed at Rs.7,40,000/-per acre. The plaintiffs have valued subject matter of the suit at Rs.35,15,000/- as could be seen from valuation slip enclosed to the plaint. However, plaintiffs have established the case against the defendant regarding readiness and willingness to perform their part of contract as per Ex.P1 - deed of agreement for sale entered into between the plaintiffs and defendants in respect of the suit schedule properties. However, plaintiffs have established the case against the defendant regarding readiness and willingness to perform their part of contract as per Ex.P1 - deed of agreement for sale entered into between the plaintiffs and defendants in respect of the suit schedule properties. The plaintiffs paid an earnest amount of Rs.7,00,000/-as per the recitals of Ex.P1, which is not in dispute. The remaining balance consideration of the amount would be Rs.28,15,000/-, 14. The learned I Addl. Senior Civil judge has decreed the suit of the plaintiffs by assigning a valid and cogent reasons and directed the defendant to execute the registered sale deed in favour of plaintiffs after receiving the balance consideration amount of Rs.28,15,000/-. Hence, we arc of the considered view that there is no substance in the contention of the appellant to call for interference in the impugned judgment. There are no justifiable grounds to interfere with the impugned judgment and decree. 15. However, as per Ex.P1 - deed of agreement for sale, the plaintiffs and defendant were required to complete the sale transaction within 15 days. The plaintiff has paid the earnest money of Rs.7,00,000/- under the Ex.P1, which is not in dispute and was ready with the remaining balance consideration amount of Rs.28,15,000/-. But the defendant has failed to execute the sale deed in terms of Ex.P1 - deed of agreement of sale entered into between the plaintiffs and also he did not co-operate with the plaintiffs to execute the sale deed within 15 days as per the recitals of Ex.P1 - deed of agreement of sale entered between them. Therefore, it is just and appropriate to direct the defendant to pay interest at 18% p.a. in respect of the advance already paid by the plaintiffs as well as the balance consideration amount of Rs.28,15,000/- with which amount the plaintiffs were ready to perform their part of contract. 16. For the aforesaid reasons, we are of the opinion that the learned I Addl. Senior Civil judge is justified in decreeing the suit of the plaintiffs. Hence we proceed to pass the following order: ORDER The appeal filed by the defendant under Section 96 of the Code of Civil Procedure is hereby dismissed. The judgment and decree dated 27.08.2012 passed by the I Addl. Senior Civil judge is justified in decreeing the suit of the plaintiffs. Hence we proceed to pass the following order: ORDER The appeal filed by the defendant under Section 96 of the Code of Civil Procedure is hereby dismissed. The judgment and decree dated 27.08.2012 passed by the I Addl. Senior Civil Judge, Belgaum in O.S. No. 214 of 2010 is confirmed holding that the defendant shall execute the registered sale deed with respect to suit lands by receiving the balance consideration of Rs.28,15,000/- with which amount the plaintiffs were ready to perform their part of contract. Further, as there is delay on the part of the defendant to perform his part of contract, he is directed to pay interest at 12% p.a. on the balance consideration amount of Rs.28,15,000/-after 15 days from the date of agreement of sale dated 01.02.2005 till the execution of the registered sale deed. The defendant is directed to execute the registered sale deed within a period of three months from the date of receipt of copy of this order, failing which the plaintiffs are entitled to get the registered sale deed in their favour through the Court, on receiving the balance amount.