Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 701 (KAR)

C. B. Chandrashekar v. Javaramma

2023-05-24

JYOTI MULIMANI

body2023
JUDGMENT 1. Sri.Chandrakanth R.Patel., learned counsel for the appellant has appeared in person. 2. This appeal is from the Court of Principal District Judge, Hassan. 3. For the sake of convenience, the parties shall be referred to as per status and their rankings before the Trial Court. 4. The facts of the case are quite simple and are stated as under: The suit property is situated at Doddapura village, Kasaba Hobli, Hassan Taluk comprised in Survey No.74/3 measuring 03 Acres 04 Guntas out of which an extent of 02 Acres and 02 Guntas with boundaries on the East - the property of Shashikala, West - the property of Moganna, North - the property of Gowramma, South- the property of Thammegowda. It is stated that the second defendant is the son of the first defendant and the third & fourth defendants are the wife and son of the second defendant. The plaintiff contended that the suit property belonged to the second defendant and he agreed to sell the same in his favor for a consideration of Rs.7, 99, 500.00 (Rupees Seven Lakh Ninety Nine Thousand and Five Hundred only) on 25/8/2006 hence an agreement of sale was executed and advance of Rs.20, 000.00 (Rupees Twenty Thousand only) was paid and the second defendant received the same. It is also averred that the defendants agreed to execute a sale deed after clearing the loan which was availed from Nidudi PACC Bank, Doddapura. Since the defendants failed to perform their part of the contract, the plaintiff was constrained to issue a legal notice on several dates. He did not receive any reply hence, he filed a suit seeking the relief of specific performance. After service of the suit summons, defendants 1, 2 and 4 appeared through their counsel. The third defendant did not appear before the Court and placed ex-parte. The defendants 1, 2 and 4 denied the sale agreement. They contended that the loan borrowed from the Nidudi PACC Bank was waived off by the Government, hence there was no need for them to agree and sell the property in question in favor of the plaintiff. They specifically contended that the sale agreement is created and forged agreement. Among other grounds, he prayed for the dismissal of the suit. 5. On the basis of the above pleadings, the Trial Court framed the following: ISSUES 1. They specifically contended that the sale agreement is created and forged agreement. Among other grounds, he prayed for the dismissal of the suit. 5. On the basis of the above pleadings, the Trial Court framed the following: ISSUES 1. Whether plaintiff proves that on 25/8/2006, the defendants No.1 to 3 for themselves and also on behalf of defendant No.4 agreed to sell the suit property in his favour and executed sale agreement in this behalf? 2. Whether plaintiff proves that agreed sale consideration of Rs.7, 99, 500.00 and he paid Rs.20, 000.00 as advance sale consideration? 3. Whether plaintiff proves his ready and willingness to perform his part of the contract? 4. Whether plaintiff is entitled for such relief? 5. What order or decree? To substantiate the claim, the plaintiff - C.B.Chandrashekar was examined as PW1, and three more witnesses were examined as PWs 2 to 4 and produced twenty four documents which were marked as Ex.P.1 to Ex.P.24. On behalf of the defendants one Rangegowda was examined as DW1 and produced two documents which were marked as Exs.D.1 and 2. On the trial of the action, the suit came to be decreed in part and directed the defendants to refund the earnest money of Rs.20, 000.00 (Rupees Twenty Thousand only) with interest at 12% per annum from the date of the agreement till realization. On appeal, the Judgment and Decree of the Trial Court were confirmed. Hence, this Regular Second Appeal is filed under Sec. 100 of CPC is filed. 6. Sri.Chandrakanth R.Patel., learned counsel for the appellant submits that both the Courts committed serios error in dismissing the suit. The Judgments and Decrees of both the Courts are not sustainable both in law as well as on facts and hence the same are liable to be set-aside. Next, he submits that defendants executed Agreement of sale in favor of the plaintiff on 25/8/2006. It is also submitted that second defendant is the absolute owner of the suit schedule property and he acquired the same through a registered Gift deed from first defendant. A further submission is made that it was agreed to be sold for a sum of Rs.7, 99, 500.00 (Rupees Seven Lakh Ninety Nine Thousand and Five Hundred only) and earnest money of Rs.20, 000.00 (Rupees Twenty Thousand only) was paid as part of sale consideration. A further submission is made that it was agreed to be sold for a sum of Rs.7, 99, 500.00 (Rupees Seven Lakh Ninety Nine Thousand and Five Hundred only) and earnest money of Rs.20, 000.00 (Rupees Twenty Thousand only) was paid as part of sale consideration. It is also submitted that plaintiff was always ready and willing to perform his part of the contract and to substantiate the claim, plaintiff has issued several notices, but the defendants did not come forward to execute the sale deed. Learned counsel vehemently contended that both the Courts have failed to appreciate that the plaintiff was always ready and willing to perform his part of the contract and though the Courts have held that plaintiff has proved the agreement, but have refused to grant the relief of specific performance. Hence, he submits that the Judgments and Decrees of both the Courts are contrary to the law and material evidence on record. Learned counsel strenuously urged that the trial Court has erroneously held that the plaintiff did not possess sufficient funds to prove his readiness and willingness and wrongly interpreted Ex.P.24 pass book. Lastly, he submits that viewed from any angle declining the relief of specific performance is wholly untenable and hence, this Regular Second Appeal raises substantial question of law and accordingly it may be admitted. 7. Heard, the contentions urged on behalf of the appellant and perused the appeal papers with utmost care. In this case, the plaintiff sued to enforce the specific performance of a contract to execute a conveyance in respect of the suit property. Suffice it to note that the Trial court framed as many as five issues and the issue relating to the execution of the sale agreement was answered in favor of the plaintiff. In this second appeal, the main contention urged on behalf of the plaintiff relates to the factum of readiness and willingness. The law is well-settled that the plaintiff must aver as well as prove his readiness and willingness to perform his part of the obligation. The controversy revolves around readiness and willingness, hence let us quickly glance at the distinction between the two. The distinction, between readiness and willingness, is that the former has reference to financial capacity, and the latter on the conduct of the plaintiff wanting specific performance. The controversy revolves around readiness and willingness, hence let us quickly glance at the distinction between the two. The distinction, between readiness and willingness, is that the former has reference to financial capacity, and the latter on the conduct of the plaintiff wanting specific performance. While 'willingness' is merely a mental process, 'readiness' is something to do with translating that will into action and is preceded by the necessary preparation of being in a position to be ready. In other words, while 'willingness' may have something to do mainly with a person's mental process to do an act, the readiness implies proximity of such willingness and its ultimate physical manifestation. "Readiness' must, in all cases, be backed by 'willingness' and its imminent physical action is demonstrated when it is about to be put into action. It is pivotal to note that a purchaser claiming specific performance of the contract must show that he was since the date of the contract, up to the date of hearing- continuously ready and willing to perform his part of the contract, failing which his claim for specific performance must fail. Reverting to the facts of the case, the plaintiff has issued the legal notices on 10/10/2006, 25/11/2006 and one more on 3/8/2007 and called upon the defendants to perform their part of the contract. Before the Trial court and the First Appellate Court, the plaintiff specifically contended that he had the financial capacity to pay the balance consideration. Even in this court also he adhered to the contention that he had the financial capacity to perform his part of the contract. To substantiate the said contention, the learned counsel Sri.Chandrakanth R.Patel., appearing on behalf of the appellant in presenting his argument strenuously urged that the plaintiff had a balance of Rs.5, 18, 497.00 (Rupees Five Lakh Eighteen Thousand Four Hundred and Ninety Seven only) in his account. He argued by saying that both the Courts have failed to appreciate the same and erroneously rejected the claim of specific performance. A good deal of argument is addressed on the financial capacity of the plaintiff. I have considered the specific contention about the financial capacity with utmost care. The plaintiff except stating that he had a balance of Rs.5, 18, 497.00 (Rupees Five Lakh Eighteen Thousand Four Hundred and Ninety Seven only) in his bank account and issuing several notice, has done nothing. I have considered the specific contention about the financial capacity with utmost care. The plaintiff except stating that he had a balance of Rs.5, 18, 497.00 (Rupees Five Lakh Eighteen Thousand Four Hundred and Ninety Seven only) in his bank account and issuing several notice, has done nothing. The plaintiff's readiness is not backed by willingness. The element of willingness is absent in the present case. It is needless to say that where the plaintiff fails to prove his willingness, his suit for specific performance will fail. No injustice will be caused to the defendant; the Court may in the same suit, order a return of consideration with interest. In the present case, the Trial Court and the First Appellate Court taking into consideration of the entire material evidence on record concurrently held that the plaintiff is not entitled for the relief of specific performance and hence ordered for return of consideration paid by plaintiff. In my view, both the Courts are justified in doing so. It is pivotal to note that the relief of specific performance is discretionary and both the Courts have rightly exercised the discretionary power. It is perhaps well to observe here that the after the 1976 amendment, the scope of Sec. 100 of CPC has been drastically curtailed and narrowed down. The Trial Court and First Appellate Court in extenso referred to the material evidence on record and rightly rejected the claim of the plaintiff to the relief of specific performance. I find no ground to interfere with the findings recorded by both the Courts. No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal and accordingly, it is dismissed at the stage of admission. No order as to costs.