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2021 DIGILAW 544 (KAR)

P. Venkatesh Raju v. Kothamuniyappa

2021-04-08

NATARAJ RANGASWAMY

body2021
JUDGMENT : Nataraj Rangaswamy, J. 1. This appeal is filed by unsuccessful plaintiff challenging the judgment and decree in O.S. No. 72/2009 and of the First Appellate Court in R.A. No. 131/2015. Both the Courts held that the plaintiff is not entitled to the relief of specific performance of the agreement of sale dated 29.09.2003 and 13.08.2004. 2. The plaintiff claimed that the defendants being the owners of the suit property had executed an agreement of sale in favour of the brother of the plaintiff on 27.11.2002 agreeing to sell the suit property for a total consideration of Rs. 2,50,000/-. Since the brother of the plaintiff died the defendants executed an agreement of sale on 29.09.2003 in favour of the plaintiff agreeing to convey suit properties for Rs. 2,50,000/- and received a sum of Rs.79,000/- as advance. Later again on 05.02.2003, the defendants executed a mortgage deed in favour of the plaintiff which was duly registered and received a sum of Rs.50,000/-. Later, the defendants executed an agreement dated 13.08.2004 agreeing to sell the suit property for a sum of Rs. 2,50,000/- and acknowledged the receipt of a sum of' Rs. 1,79,000/- towards the advance of sale consideration. Time fixed for completion of sale agreement was three years. The plaintiff claimed that defendants handed over possession of suit property on 27.11.2002 itself. The plaintiff claimed that defendants filed O.S. No. 46/2005 for redemption of the mortgage deed dated 05.02.2003 which was dismissed on 17.07.2006. The appeal preferred in R.A. No. 109/2008 was also dismissed. The plaintiff claimed that though he was ready and willing to perform his part of contract by paying balance consideration but the defendants refused to execute sale deed in his favour. Thereafter, the plaintiff caused notice and filed a suit for specific performance. 3. The suit was resisted by defendants 1 and 2 who contended that they had seven daughters, all of them were married prior to 31.01.2009. They claimed that suit properties were sold by defendant No. 1 in favour of one Lala Shariff in terms of a sale deed dated 15.12.1977 which was subject to a condition to reconvey. It is stated that the said properties was re-purchased from Lala Shariff and registered in the name of defendant No. 2. They admitted the execution of deed of mortgage on 05.02.2003 in favour of the plaintiff. It is stated that the said properties was re-purchased from Lala Shariff and registered in the name of defendant No. 2. They admitted the execution of deed of mortgage on 05.02.2003 in favour of the plaintiff. They also admitted that they had received a sum of Rs. 50,000/- as mortgage apart from Rs. 29,000/- received as advance from the plaintiff. They claimed that they were ready to receive balance consideration of Rs. 1,71,000/- within 11 months from the date of sale agreement on 29.09.2003 and execute a deed of sale. They claimed that they had issued a notice in that regard to the plaintiff. The plaintiff failed to obtain an absolute sale deed. Therefore, the defendants were under no obligation to execute a deed of sale in respect of suit schedule property. They also contended that the daughters of the defendants had filed suit for partition and separate possession of their 7/9th share in suit properties and other properties. The said suit was compromised before the Lok Adalat on 31.01.2009 and the suit properties were allotted to the share of their daughters. 4. Based on the rival contention, the trial Court framed the following issues: 1. Whether the plaintiff proves that he was ready and willingness to perform his part of contract as per the suit agreement of sale dated 13.08.2004? 2. Whether the plaintiff is entitled for the relief as sought in the plaint? 3. Whether the defendants proves that plaintiff have not right to claim the relief of specific performance of the contract as the same is cancelled by issuance of legal notice dated 03.09.2004? 4. Whether the suit is barred by law of limitation? 5. To what order or decree? The Plaintiff was examined as P.W. 1 and two more witnesses were examined as P.W. 2 and P.W. 3 and they marked documents as Exs. P1 to P16. On the other hand, defendant No. 1(b) was examined as DW1 and two other witnesses was examined as DW2 and DW3 and marked documents Exs. D1 to D5. 5. Based on the oral and documentary evidence, the trial Court held that the defendants No. 1 and 2 had executed the sale agreement in favour of plaintiff. P1 to P16. On the other hand, defendant No. 1(b) was examined as DW1 and two other witnesses was examined as DW2 and DW3 and marked documents Exs. D1 to D5. 5. Based on the oral and documentary evidence, the trial Court held that the defendants No. 1 and 2 had executed the sale agreement in favour of plaintiff. Insofar as question regarding readiness and willingness to perform his part of his contract, the trial Court held that the plaintiff had not placed any material to establish that the plaintiff was ready and willing. It also held that the suit was highly delayed and that the conduct of the plaintiff indicated that he was not interested in performing his part of his contract and thus dismissed the suit. 6. Being aggrieved by the aforementioned judgment and decree of the trial Court, the plaintiff filed first appeal in RA No. 131/2015. 7. The First Appellate Court secured the records of the trial Court, heard the learned counsel for the parties and framed the following points for consideration: 1. Whether the appellant proved to the satisfaction of the court that the judgment impugned herein has become capricious, perverse, and arbitrary and hence interference in the same is called for? 2. What order? 8. The First Appellate Court held that the plaintiff had not taken any steps within the stipulated period of three years to perform his part of his contract. The First Appellate Court held that the suit was filed in the year 2009 long after stipulated period of three years and the plaintiff had not placed on record any material to establish that he was either ready or willing to perform his part of his contract. The conduct of the plaintiff in not even informing the defendants of his willingness to complete the contract weighed in the mine of the First Appellate Court which held that the plaintiff was not diligent in pursuing the defendants to performing their part of the contract. In that view of the matter, the First Appellate Court dismissed the appeal and confirmed the judgment and decree of the trial Court. 9. Being aggrieved by the finding of fact recorded by the Courts below, the plaintiff has filed this regular second appeal. 10. Learned Senior Counsel appearing for the plaintiff contended that the defendants have not disputed the execution of the agreement. 9. Being aggrieved by the finding of fact recorded by the Courts below, the plaintiff has filed this regular second appeal. 10. Learned Senior Counsel appearing for the plaintiff contended that the defendants have not disputed the execution of the agreement. The learned Senior Counsel brought to the notice of the Court, the suit filed by daughters for partition and separate possession as well as earlier suit for redemption was dismissed. The learned Senior Counsel therefore contended that the plaintiff was unable to sue the defendants for specific performance within the time prescribed. 11. I have given my anxious consideration to the arguments canvassed by the learned Senior Counsel for the plaintiff/appellant. It is not in dispute that defendants have admitted execution of agreement of sale. However, the agreement had to be concluded within three years from the date of its execution. If the plaintiff was diligent, he must have swung into action soon after the defendants sought for redemption of mortgage. There is not even a knee jerk by the plaintiff in the entire case. He has remained a mute spectator to the goings on, thereby indicating his disinterest in pursuing the remedies available to him. After a long lull, the plaintiff has woken from slumber to seek for specific performance. The plaintiff has not even issued a notice calling upon the defendants to conclude their part of the contract. Even before the trial Court, the plaintiff did not place on record any material to establish his readiness and willingness to perform his part of his contract. In addition, the delay in filing the suit long after expiry of three years is not explained. Therefore, the Courts below were right in holding that the plaintiff is not entitled for specific performance. The finding recorded by the Courts are purely questions of fact which they have done after appreciating the evidence on record and dismissed the suit. As no substantial question of law arises in this appeal, it is dismissed.