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2019 DIGILAW 1156 (KAR)

Shakila v. Pooja

2019-06-07

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The defendant being aggrieved by the Judgment and Decree dated 07.09.2018 passed in R.A.No.165 of 2017 by the VIII Additional District and Sessions Judge, Belagavi confirming the Judgment and Decree dated 30.03.2017 passed by the Principal Senior Civil Judge and C.J.M., Belagavi in O.S.No.36 of 2011 has filed this second appeal. 2. The parties are referred with their ranks before the trial Court for the sake of convenience. 3. The plaintiff Smt.Pooja filed suit in O.S.No.36 of 2011 for the relief of specific performance of agreement of sale and mandatory injunction and perpetual injunction. It is the case of the plaintiff that the defendant is the absolute owner of properties bearing CTS No.4830/15 measuring 78.3/9 square yards, CTS.No.4830/16 measuring 382 square yards, CTS.No.4830/17 measuring 44.3/9 square yards and CTS.No.4380/18 measuring 15.3/9 square yards. All these properties are situating adjacent to each other forming one compact unit totally measuring 4680 square feet situated at Civil Hospital Road, Belagavi. There was existing old building in the said property. 4. The defendant thought of demolishing the old building and to construct commercial cum residential complex in the said property. The plaintiff coming to know of the same approached the defendant and made enquiry about the proposed construction. After going through the CTS records, the proposed building plan, agreed to purchase flat on the second floor i.e., flat No.3 having carpet area of approximately 700 square feet together with undivided interest in the land as shown in the proposed building plan for a total consideration of Rs.5,25,000/- i.e., at the rate of Rs.750/- per square foot. Accordingly, an agreement came to be reduced into writing on 19.07.2005. On the date of entering into agreement of sale, the plaintiff paid an advance consideration amount of Rs.45,000/- through banker's cheque. Thereafter, plaintiff has again paid an amount of Rs.50,000/- by Demand Draft dated 09.01.2007 drawn on State Bank of India, Belagavi. Subsequently, a supplementary agreement was executed on 09.01.2007, under which the plaintiff agreed to purchase an area of 810 square feet and the total consideration amount also came to be changed as Rs.6,07,500/-. 5. The defendant was to get approved the plan from the Corporation of the City of Belagavi and after getting the plan approved the exact area of the flat to be sold to the plaintiff has to be notified. 5. The defendant was to get approved the plan from the Corporation of the City of Belagavi and after getting the plan approved the exact area of the flat to be sold to the plaintiff has to be notified. The plaintiff was very much interested in buying the flat. However, the defendant failed to get the building permission and to start the construction till August-2009. The plaintiff came to know that in August-2009 the defendant has obtained the building permission and entrusted the development work to the High-Tech Associates. The plaintiff enquired the builder and also sent a registered letter to the defendant making enquiry, which was returned with postal endorsement as 'refused'. Thereafter, the plaintiff got published a public notice in daily news paper on 08.09.2009 informing the general public regarding the agreement executed by defendant in her favour. The plaintiff also approached the defendant personally and requested her to handover the copy of the building permission and approved plan, the defendant had assured, however did not furnish the same. The plaintiff suspected the bonafides of the defendant. Therefore, defendant got issued notice dated 02.11.2009 through the advocate calling upon the defendant to send the copy of the building permission and approved plan. On 08.12.2009 the defendant got issued reply to the notice through her advocate denying the execution of the agreement of sale dated 19.07.2005 and supplementary agreement dated 09.01.2007 and she has also denied that she has not received the advance consideration amount of Rs.45,000/- and Rs.50,000/-. The plaintiff was always ready to perform her part of the contract. Even during February-2010 the defendant failed to handover the copy of the building permission and approved plan and expressed her inability and asked the plaintiff to wait for some more time. Since the defendant did not ready to accept the request made by the plaintiff and has left with no other efficacious remedy except to file the present suit for the relief of specific performance of agreement of sale dated 19.07.2005 and supplementary agreement dated 09.01.2007 and also for the relief of mandatory injunction directing the defendant to handover the building permission and approved plan and also to complete the construction at the earliest and then execute the sale deed in terms of the agreement of sale. 6. In response to the summons, the defendant appeared before the trial Court through her counsel and filed her written statement. 6. In response to the summons, the defendant appeared before the trial Court through her counsel and filed her written statement. She admits that she and her children are absolute owners of the suit property. She is widow and has no source of income to maintain herself and her minor children. She has denied the execution of the sale agreement or supplementary agreement dated 19.07.2005 and 09.01.2007 respectively. She has also denied that she has received advance consideration amount of Rs.45,000/- and Rs.50,000/- from the plaintiff. There was no concluded contract between the plaintiff and defendant, the defendant was in need of financial assistance for domestic purpose and she approached the plaintiff's husband for hand loan, at that time, plaintiff's husband paid Rs.45,000/- and Rs.50,000/- and fraudulently created bogus documents against the interest of the defendant by obtaining signatures by misrepresenting the same. Hence, the alleged concocted sale agreement is unenforceable and not binding on the defendant. Defendant is ready to repay the hand loan received from the plaintiff's husband. She has denied that the plaintiff was also ready to perform her part of the contract, for all these reasons, prayed for dismissal of the suit of the plaintiff. 7. Based on the above pleadings and rival contentions of both the parties, trial Court framed the following issues : 1. Does the plaintiff proves that, in respect of suit flat No.3, she entered into an agreement of sale with the defendant for purchasing approximately 700 Sq.fts for total consideration of Rs.5,25,000/- @ Rs.750/- per sq.ft. on 19.07.2005 and paid advance consideration amount of Rs.45,000/- to the defendant? 2. Does the plaintiff further proves that, a supplementary agreement was entered into between the parties enhancing the carpet area up to 810 sq.ft. by raising total consideration of Rs.6,07,500/- on 09.01.2007 and further advance amount of Rs.50,000/- was paid on that, day to the defendant? 3. Does the defendant proves that, she was in dire financial need and the husband of the plaintiff lent a hand loan of Rs.45,000/- and Rs.50,000/- respectively and has created bogus documents by misrepresentation? 4. Does the plaintiff proves that, she was and is ever ready and willing to perform her part of contract and that, the defendant had willfully committed breach of conditions thereof? 5. Is the plaintiff entitled to relief of specific performance? 6. 4. Does the plaintiff proves that, she was and is ever ready and willing to perform her part of contract and that, the defendant had willfully committed breach of conditions thereof? 5. Is the plaintiff entitled to relief of specific performance? 6. Is the plaintiff alternatively entitled for refund of advance amount of Rs.95,000/- with interest @ 18% p.a.? 7. Is the plaintiff entitled to the reliefs of mandatory injunction and perpetual injunction as sought for? 8. What order or decree? 8. It is also necessary to refer that the defendant in O.S.No.36 of 2011 filed O.S.No.48 of 2012 against the plaintiff in the said suit for declaration that the alleged sale agreement and supplementary agreement are fabricated obtained by fraud and the same may be cancelled. Plaintiff in the first suit filed written statement in the said suit reiterating the averments made in the plaint in her suit. The trial Court framed the following issues in the said suit. 1. Whether plaintiff proves that, sale agreement dated 19.07.2005 and supplementary agreement dated 09.01.2007 are illegal and void and not binding upon the plaintiff as pleaded in the plaint? 2. Whether defendant proves that, valuation of the suit schedule property and court fee paid by the plaintiff is not correct? 3. Whether defendant proves that, suit is not maintainable? 4. Whether plaintiff is entitled the relief of declaration as sought for? 5. What order or decree? 9. The trial Court clubbed both the suits and recorded common evidence of the parties. In O.S.No.36 of 2011 the plaintiff got examined her husband as PW-1 and other three witnesses were examined as PW-2 to 4 and got marked Ex.P-1 to Ex.P-33. The defendant in the suit got herself examined as DW-1. However, no documents were marked. 10. The trial Court after hearing both the parties, decreed the suit of the plaintiff in O.S.No.36 of 2011 and directed the defendant to execute the registered sale deed by receiving balance sale consideration amount of Rs.5,12,500/- in respect of the property mentioned in the agreement of sale and supplementary agreement and further directed the defendant to complete the construction work within six months from the date of the judgment and execute the sale deed in terms of the agreement of sale. The defendant was also restrained by way of perpetual injunction to alienate the property mentioned in the agreement of sale and supplementary agreement. The defendant was also restrained by way of perpetual injunction to alienate the property mentioned in the agreement of sale and supplementary agreement. The trial Court dismissed the suit in O.S.No.48 of 2012. 11. The defendant in O.S.No.36 of 2011 being aggrieved by the Judgment and Decree dated 30.03.2017 filed the R.A.No.165 of 2017 on the file of VIII Additional District and Sessions Judge, Belagavi. The first appellate Court secured the lower court records and heard both the parties and dismissed the said appeal by its Judgment dated 07.09.2018. 12. The defendant being aggrieved by both the Judgments and Decrees has preferred this regular second appeal. 13. Heard the learned counsels for the parties on admission. 14. The arguments of the learned counsel for the appellant are in three fold. At the first instance, the learned counsel for the appellant submitted that the appellant in R.A.No.165 of 2017 had field I.A.No.I under Section 5 of the Limitation Act, which ought to have been disposed of before taking up the appeal on merits. On this ground alone the impugned Judgment is liable to be set aside. In this regard, the learned counsel for the appellant has relied on the Judgment in the case of B.P.Sheri Vs. M/S.D.C.Patravali and others in C.R.P. No.555/2006 connected with other cases decided by this Court on 20.08.2016, and the Judgment in the case of Marigouda Chanabasappa Marigoudar Vs. Satteppa Veerappa Koujalagi since deceased by LRs, (2015) 1 KCCR 468 . The learned counsel for the appellant further submitted that the plaintiff has not at all pleaded and proved her readiness and willingness to perform her part of the contract and therefore the suit ought to have been dismissed under Section 16(c) of the Specific Relief Act, 1963 (for short the 'Act'). Further, it was contended that the agreement in question cannot be specifically enforced in view of Section 14(d) of the Act. It was also submitted that the trial Court and the first appellate Court have failed to consider the provisions of Section 20 of the Act and ought to have decreed the suit of the plaintiff for alternative relief of refund of money. Therefore, there is a substantial question of law to be considered in the second appeal. 15. It was also submitted that the trial Court and the first appellate Court have failed to consider the provisions of Section 20 of the Act and ought to have decreed the suit of the plaintiff for alternative relief of refund of money. Therefore, there is a substantial question of law to be considered in the second appeal. 15. Per Contra, the learned counsel for the respondent submitted that the first appellate Court has considered the I.A.No.1 filed under Section 5 of the Limitation Act along with main appeal as submitted by the learned counsel for the appellant and that the said application was impliedly allowed by the first appellate Court, since the appeal was dismissed on merits and not as barred by limitation. Secondly, the learned counsel for the respondent further submitted that the defendant is not entitled for equity under Section 20 of the Act as she has denied the agreement of sale itself. In the event of admitting the agreement defendant would have sought for shelter under Section 20 of the Act, one who seeks equity must do equity, which is the principle. The defendant after having denied the execution of the agreement of sale and alleged that it is a fabricated and concocted document, she cannot seek equitable relief under Section 20 of the Act. The learned counsel further submitted that the plaintiff has pleaded and proved that she was always ready and willing to perform her part of the contract and it is the defendant who breached the agreement. Therefore, absolutely there is no substantial question of law for consideration in the present appeal. 16. This Court has to consider the entire material on record and has come to conclusion as to whether the appellant has made out any substantial question of law for consideration in the appeal. 17. Both the Courts below have recorded the concurrent finding that the plaintiff has proved the agreement of sale dated 19.07.2005 and supplementary agreement dated 09.01.2007. On the other hand, the suit of the present appellant filed in O.S.No.48 of 2012 to declare the said agreement and supplementary agreement of sale as null and void, fabricated and concocted and not binding upon her was dismissed and the same has reached finality. Admittedly, the present appellant has not filed appeal against the dismissal of the O.S.No.48 of 2012. Admittedly, the present appellant has not filed appeal against the dismissal of the O.S.No.48 of 2012. However, the appellant still contend in the present appeal that the alleged agreement and supplementary agreement are concocted and created by the plaintiff and her husband and it was a loan transaction and that she had availed hand loan from the husband of the plaintiff and in that connection her signatures were obtained on certain documents and same have been created as agreement of sale and supplementary of agreement. This Court cannot again go into the proof of the agreement of sale and supplementary of agreement as the same has been finally decided on the facts by the first appellate Court. 18. The first contention of the appellant is that along with the appeal memorandum she had filed I.A.No.1 under Section 5 of the Limitation Act before the first appellate Court and the said application was not disposed of by the appellate Court before hearing the appeal on merits. Therefore, there is procedural illegality committed by the appellate Court. In this regard the learned counsel for the appellant has relied on the decision passed in B.P.Sheri's case stated supra decided by this Court, in the said case this Court has held that : "8. . . . . . . . . The settled position of law is that unless the delay is condoned, the Appellate Judge does not get jurisdiction to consider an appeal on merits............" 19. This Court has also followed the decision in the case of Marigouda Chanabasappa Marigoudar Vs. Satteppa Veerappa Koujalagi since deceased by LRs, (2015) 1 KCCR 468 . In the said case this Court has held as follows : "14. In the present case, the learned Principal District Judge has not only dismissed I.A.IV filed under Section 5 of the Limitation Act, on the ground that there is inordinate delay, but also has held that the appeal is not maintainable in law, on the ground that the remedy of filing an appeal is not available to him." 20. Therefore, the settled position of law is not disputed that unless the delay is condoned the appellate Court would not get jurisdiction to consider the appeal on merits. Therefore, the settled position of law is not disputed that unless the delay is condoned the appellate Court would not get jurisdiction to consider the appeal on merits. However, in the present case, though the appellant had filed I.A.No.1 under Section 5 of the Limitation Act, on 15.09.2017 both the advocates appearing for the appellant and respondent submitted before the first appellate Court that I.A.No.1 filed under Section 5 of the Limitation Act and I.A.No.2 filed under Order XLI Rule 5 of the C.P.C. may be heard along with main appeal. The same is recorded by the learned Judge of the first appellate Court in the order sheet dated 15.09.2017. Therefore, the appellant ought to have submitted his arguments on I.A.No.1 and requested the Court to dispose of his application before hearing the appeal on merits. Therefore, the appellant herein will not get any assistance by the principles stated above. Admittedly, the first appellate Court has not dismissed the appeal on the point of limitation nor the application filed under Section 5 of the Limitation Act was dismissed. Therefore, as rightly submitted by the learned counsel for the respondent it should be taken that the appellate Court has impliedly allowed the application filed under Section 5 of the Limitation Act and only thereafter the appeal was decided on merits. Moreover, the party who can urge this point is only the respondent, in case the appeal was allowed without deciding the application for condonation of delay. Under these circumstances, it cannot be held that disposal of the application filed under Section 5 of the Limitation Act condoning the delay, along with appeal on merits, would constitute a substantial question of law. 21. It was much argued on behalf of the appellant that the plaintiff has neither pleaded nor proved that she was always ready and willing to perform her part of the contract and therefore the Courts below ought not to have decreed the suit of the plaintiff. On this point the learned counsel relied on the decision in the case of N.P.THIRUGNANAM (DEAD) BY LRS. Vs. DR.R.JAGAN MOHAN RAO AND OTHERS, (1995) 5 SCC 115 , in this case Hon'ble Supreme Court has held as follows : "The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Vs. DR.R.JAGAN MOHAN RAO AND OTHERS, (1995) 5 SCC 115 , in this case Hon'ble Supreme Court has held as follows : "The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 22. The contention of the appellant cannot be accepted for the simple reasons that the plaintiff infact has pleaded regarding the readiness and willingness and has also given evidence to this effect as can be seen from the plaint averments and evidence of the plaintiff. In paragraph No.5 of the plaint the plaintiff has clearly stated that "she was always ready and willing to perform her part of contract right from the date of entering into agreement of sale and even as on the day of filing of the suit". The same has been deposed by the plaintiff before the Court. Further, the plaintiff has issued notice to the defendant on 02.11.2009 as per Ex.P.-8, in which also she has stated in paragraph No.4 that she is always ready and willing and even today she is ready to comply with the terms of agreement of sale dated 19.07.2005. Therefore, the contention of the appellant in this regard has no merit and on this ground there cannot be formulation of any substantial question of law. 23. Therefore, the contention of the appellant in this regard has no merit and on this ground there cannot be formulation of any substantial question of law. 23. On the other hand, the learned counsel for the respondent has relied on the decision of the Hon'ble Supreme Court in the case of NARINDERJIT SINGH Vs. NORTH STAR ESTATE PROMOTES LIMITED, (2012) 5 SCC 712 . In the said case the Hon'ble Supreme Court has held that "Escalation of price of property, held, cannot, by itself, be aground of denying relief of specific performance of agreement of sale of the property." 24. Further, explanation to Section 16(c)(i) of the Specific Relief Act, 1963 provides that, "16(c)(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court." Therefore, on this ground the present appeal cannot be admitted. 25. The learned counsel for the appellant also submitted that the plaintiff never entered the witness box in order to prove the documents and the transaction. It is admitted that the husband of the plaintiff who is also a General Power of Attorney holder of plaintiff was examined as PW-1. As rightly submitted by the learned counsel for the respondent Section 120 of the Indian Evidence Act, 1872 provides that wife or husband shall be competent witness. Therefore, where the party is a wife, husband is a competent witness to depose in the matter and vice versa. 26. The learned counsel for the appellant also submitted that the agreement in question is not enforceable under Section 14(d) of the Specific Relief Act, 1963. Section 14(d) of the said Act provides that, "a contract the performance of which involves the performance of a continuous duty which the court cannot supervise." In the present case, the Court need not supervise the construction of the building; it can be done by appointing a Court Commissioner-Engineer. It is submitted that the respondent has already filed an execution petition in which appointment of Court Commissioner is sought for. In this regard the learned counsel for the appellant has relied on the decision in the case of HER HIGHNESS MAHARANI SHANTIDEVI P.GAIKWAD Vs. It is submitted that the respondent has already filed an execution petition in which appointment of Court Commissioner is sought for. In this regard the learned counsel for the appellant has relied on the decision in the case of HER HIGHNESS MAHARANI SHANTIDEVI P.GAIKWAD Vs. SAVJIBHAI HARIBHAI PATEL AND OTHERS, (2001) 5 SCC 101 , the Hon'ble Supreme Court in the said case held that "where parties had entered into an agreement whereby respondent was to evolve and implement schemes for construction of housing for weaker sections under S. 21 on appellant's land, but before schemes were sanctioned draft master plan was issued designating suit land "open area", held, the agreement was incapable of being specifically enforced High Court erred in dismissing appellant's appeal and in directing that the decree for specific performance of the agreement granted in respondent's favour could be enforced subject to the issue of final declaration under S. 21 Urban Land (Ceiling and Regulation) Rules, 1976, R. 11-A Gujarat Town Planning and Urban Development Act, 1976 (27 of 1976), S. 124(2)". 27. Therefore, in the said case the agreement could not be enforced in view of the sanctioned draft master plan, it is not so in the present case. Therefore, considering the entire material on record, it is held that the appellant has not at all made out any substantial question of law for consideration in the present appeal. Therefore, appeal being devoid of merits is liable to be dismissed. Accordingly, it is dismissed. Parties are directed to bear their own costs. In view of the disposal of the appeal, the pending applications, if any, stand disposed of as they do not survive for consideration.