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2020 DIGILAW 1173 (KAR)

Namareddy v. Basavantappa

2020-06-22

N.S.SANJAY GOWDA

body2020
JUDGMENT N S Sanjay Gowda, J. - The defendants, a father and son, are in the second appeal. 2. Basavantappa Devappa Hosamani, the respondentplaintiff, filed a suit seeking to enforce an agreement of sale dated 09.06.2002 by which, according to him, the defendants had executed the agreement of sale, agreeing to sell the suit property for sum of Rs.1,50,000/- and in part performance of the said contract, he had paid Rs.90,000/- and was also put in to the possession over the suit property. 3. He contended that since the date of agreement of sale he was in possession and was also paying the land revenue and despite several requests made to the defendants they had refused to execute the sale deed and he had also issued a legal notice dated 10.04.2005 calling upon them to receive the balance amount and execute a registered sale deed but they had not acceded to the said demand. In the suit, he stated that he has ever ready to pay the balance amount of Rs.60,000/- or to deposit the same into the Court, but since the defendants had not been accepted the said request and not executed the sale deed, he was forced to file a suit. 4. The defendants contested the suit. The defendants, basically, denied the entire plaint averments. They sought to set up the plea that 1st defendant was owner of the suit property and he was possession of the same. They stated that they were financially sound and therefore had no necessity to sell the property. They admitted the receipt of the legal notice and also stated that they had replied to the same on 05.05.2005. 5. The Trial Court, on consideration of the evidence adduced before it, came to the conclusion that the plaintiff had been able to establish that the defendants had executed the agreement of sale on 09.06.2002 and that he was always ready and willing to perform his part of the contract. The Trial Court, after recording such a finding, proceeded to decree the suit. 6. The defendants carried the matter in appeal. 7. The Appellate Court, on re-appreciation of the entire evidence, found no reason to disagree with the finding recorded by the Trial Court. The Trial Court, after recording such a finding, proceeded to decree the suit. 6. The defendants carried the matter in appeal. 7. The Appellate Court, on re-appreciation of the entire evidence, found no reason to disagree with the finding recorded by the Trial Court. The Appellate Court took note of the fact that in the reply notice, the defendants had contended that their motorcycle had been stolen and in the said stolen motorcycle they had kept certain signed bond papers and though the motorcycle was recovered by the Police, the signed bond papers had not been recovered. The Appellate Court noticed that this contention raised in the reply notice had not been taken in their before the Court and the defense taken by them was one of complete denial. The Appellate Court, ultimately, found that appreciation of the evidence of the Trial Court was just and proper and the finding recorded by it, could not be found fault with. The Appellate Court, accordingly, dismissed the appeal and confirmed the decree. 8. It is against this concurrent finding, the defendants have preferred this second appeal. 9. The learned counsel for the Appellants-Defendants, principally contended that the plaint did not contain the averments as stipulated in Section 16(c) of the Specific Relief Act. He contended that, even assuming that the findings of the Trial Court and the execution is accepted to be correct, there was no material on record to show that the plaintiff was ready and willing to discharge his obligations under the so called agreement of sale, from the year 2002 till the filing of the suit i.e. 2005 and therefore it was to be held that the plaintiff was not ready and willing to perform the part of the contract. 10. He also contended that finding of the Trial Court and the Appellate Court that the execution of the Agreement of Sale had been proved cannot be sustained in view of the fact that PW-2, had not been able to identify the signatures of the defendants, during the course of cross-examination. 11. I have considered the above submissions of the learned counsel and also perused the records of the Trial Court as well as that of the Appellate Court. 12. It is to be stated that the case put forth by the defendants was one of complete denial. 11. I have considered the above submissions of the learned counsel and also perused the records of the Trial Court as well as that of the Appellate Court. 12. It is to be stated that the case put forth by the defendants was one of complete denial. The defendants, for some reason, gave up plea that they had taken up in reply to the legal notice that their motorcycle had been stolen and in the said motorcycle they have kept a few signed blank bond papers, which were however not recovered, though the motorcycle had been recovered. This contention taken in the reply notice gives an impression that, initially, the defendants did not really dispute their signatures on the some papers, but, subsequently in their defense they took up the plea of complete denial of the execution of the agreement of sale. 13. The Trial Court, as well as Appellate Court, on careful examination of the oral evidence and also the documentary evidence have come to the conclusion that the defendants had executed the agreement of sale. 14. The question, as to whether, the agreement of sale was or was not executed, is essentially a question of fact, which has been determined against the plaintiffs by both the Courts on appreciation of the evidence adduced before the Court. A finding of fact recorded by the Trial Court and the Appellate Court, based on appreciation of evidence cannot really be interfered in a second appeal under Section 100 of the CPC. 15. In my view, there is no question of law, much less, a substantial question of law arising for consideration as far as this aspect is concerned. 16. As regards the arguments that the plaint did not been contain the averments as in Section 16(c) of the Specific Relief Act read with Form No.47 and 48 of Appendix II of the CPC is concerned, I am of the view that this argument is without any substance. A perusal of plaint indicates that in Para 7, the plaintiff had categorically stated that he was ready and willingness to perform his part of the contract and he had kept ready the balance sale consideration of Rs.60,000/-. The plaintiff had also stated that he was ready and willing to deposit the balance amount in the Court if so ordered. A perusal of plaint indicates that in Para 7, the plaintiff had categorically stated that he was ready and willingness to perform his part of the contract and he had kept ready the balance sale consideration of Rs.60,000/-. The plaintiff had also stated that he was ready and willing to deposit the balance amount in the Court if so ordered. Further, even in the legal notice, he had clearly stated he was ready and willing all along to perform his part of the contract. 17. In my view, the plaintiff had not only averred about his readiness and willingness but he had so established that he had been ready and willing to perform his part of the contract. 18. It is also to be noticed in the instant case that the agreement did not contain any essential term, which was required to be perform by the plaintiff. The plaintiff, was merely, required to pay the balance consideration at the time of execution of the sale deed and the plaintiff was already put in possession of the suit property. Thus, the argument regarding the readiness and willingness as envisaged under Section 16 (c) would be of much relevance. 19. The reliance placed by the learned counsel on the judgments reported in AIR 2003 SC 1391 and 2010 AIR SCW 6198 are also clearly inapplicable. 20. In AIR 2003 SC 1391 , the Supreme Court categorically stated in para 27 as follows: The decisions of this Court, therefore, leave no manner of doubt that a Plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made in the Plaintiff as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of S.16(c) of the Specific Relief Act may be held to have been complied with. 21. 21. A Reading of the said paragraph, would indicate that the exact words as found in Section 16 (c) of the Specific Relief Act need not be culled out and, if, from a reading of the averments made by the plaintiffs as a whole coupled with the materials on record, it can be inferred that the plaintiff was ready and willing, the suit cannot be dismissed on the ground that the plaintiff was not ready and willing. 22. In the instant case, as stated above, the plaintiff has clearly averred in the plaint regarding readiness and willingness and he also established to the satisfaction of both the Courts that he was ready and willing to perform his part of the contract as was evident from the issuance of the legal notice itself which contained averments establishing his readiness and willingness. Therefore this judgment would of no assistance to the appellants. 23. As far as the reliance placed on para 23 of the judgment of the Apex Court in the case reported in AIR 2010 SCW 6198 is concerned, the Apex Court has clearly stated therein, that even if it is assumed that the defendant had committed a breach of the terms of the contract, nevertheless, the plaintiff was required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, failing which he would be barred from claiming specific performance. 24. That is not the scenario in the instant case. It is not the case of the defendants that the plaintiff had committed a breach and it is a case of complete denial of the agreement by the defendants and thus the said decision would be of no avail to the appellants. 25. Since the judgments of both the Courts are based on a proper appreciation of the evidence and are just and proper, in my view, no question of law, much less, a substantial question of law arises for consideration in this second appeal and it is accordingly dismissed.