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Karnataka High Court
M.AZMATHULLA KHAN - Appellant
Versus
THANKAMMA MATHEWS - Respondent
Decided On : 04-20-94
R.F.A. : 154 of 1985
CONTRACT - SALE OF PROPERTY - AGREEMENT TO SELL - POSSESSION OF PROPERTY - PART PERFORMANCE - LIMITATION - SECTION 53-A OF THE TRANSFER OF PROPERTY ACT - DOCTRINE OF PART PERFORMANCE - DELAY DEFEATS EQUITY - SPECIFIC PERFORMANCE - BARRED BY LIMITATION - POSSESSION CANNOT BE RETAINED.
Fact of the Case:
The plaintiff, who had agreed to sell the suit property to the defendant, filed a suit for declaration that the agreement to sell stood cancelled and for recovery of possession of the suit property. The defendant contended that he was put in possession of the suit house in part performance of the agreement to sell and that he was ready and willing to perform his part of the contract. The trial court decreed the suit.
Finding of the Court:
The court held that the defendant was not put in possession of the suit house in part performance of the agreement to sell, that he was not ready and willing to perform his part of the contract, and that he had not done any act in furtherance of the contract. The court also held that the defendant's remedy for specific performance of the agreement to sell was barred by limitation, and that the two decisions of the division benches of this court holding that a person who has entered into possession of property pursuant to an agreement to sell in his favour cannot resist a suit for recovery of possession if his remedy for specific performance is barred by limitation are not decisions rendered per incuriam and that a second look is not necessary in respect of this aspect of the matter.
Issues: 1. Whether the defendant-appellant entered into possession of the suit house in part performance of the agreement to sell in his favour? 2. Whether the defendant has performed or is willing to perform his part of the contract? 3. Whether the defendant has done some act in furtherance of the contract? 4. Whether the plaintiff was entitled to rescind the contract and whether therefore the agreement to sell stood cancelled? 5 (a) whether it is open to the appellant-defendant to challenge the finding of the Hon'ble Supreme Court in civil appeal No. 60/6 of 1990 that the remedy of the defendant-appellant to sue for specific performance of agreement to sell in his favour is barred by limitation? 5 (b) if yes, whether the remedy of the defendant-appellant to sue for specific performance of the agreement to sell in his favour is not barred by limitation? 6. Whether the two decisions of the division bench of this court in the cases of kareem baig v Dr. Mohammad khizar hussain and k. Gururao v m. Subba rao , are decisions rendered per incuriam and whether a second look is necessary in respect of this aspect of the matter. 7. If the finding on point No. 4 is against the appellant- defendant and if the finding on point 4 (a) is against the defendant-appellant, whether irrespective of any finding on any other aspect, the plaintiff is entitled to recover possession of the property? 8. Whether there is any scope to interfere with the judgment and decree of the learned civil judge?
Ratio Decidendi: 1. The court held that the defendant was not put in possession of the suit house in part performance of the agreement to sell, that he was not ready and willing to perform his part of the contract, and that he had not done any act in furtherance of the contract. 2. The court also held that the defendant's remedy for specific performance of the agreement to sell was barred by limitation, and that the two decisions of the division benches of this court holding that a person who has entered into possession of property pursuant to an agreement to sell in his favour cannot resist a suit for recovery of possession if his remedy for specific performance is barred by limitation are not decisions rendered per incuriam and that a second look is not necessary in respect of this aspect of the matter.
Final Decision: The court dismissed the appeal and directed the appellant-defendant to return all the documents received by him in relation to the suit property at the time of agreement to sell and except to this limited extent, the cross-objections also shall stand dismissed.
( 1 ) THE appellant was the defendant before the 10th additional city civil judge, Bangalore in original suit No. 923 of 1980. That was a suit filed by the plaintiff for declaration that the agreement to sell entered into between her and the defendant dated 12-11-1974 stood cancelled and for recovery of possession of the suit property in respect of which the agreement to sell had been entered and for recovery of a sum of Rs. 1,870/- being the damages for use and occupation of the said property with a prayer for a further direction to enquire into the future mesne profits, under order 20, Rule 12, CPC. The suit had been originally instituted before the civil judge, civil station, Bangalore and had been numbered as 29 of 1975 and it was pending as on the date of formation of the court of city civil judge, Bangalore and thereafter came to be numbered as original suit No. 923 of 1980 and was ultimately disposed of by the 10th additional city civil judge. The learned civil judge granted the prayer for cancellation of the agreement to sell and directed the defendant to handover possession of the suit house and pay a sum of Rs. 215/- by way of past damages for use and occupation upto the date of occupation of the suit house and further directed the plaintiff to refund the sum of Rs. 18,000/- received by her as advance under the agreement with interest at 6 per cent per annum. In respect of direction of refund as also award of only Rs. 215/- as damages, plaintiff has preferred cross-objections. The appeal was allowed by another division bench of this court by its judgment dated 18-7-1990 and the suit came to be dismissed. The appellant-defendant was directed to pay or deposit the sum of Rs. 72,000/- the unpaid balance consideration with 15 per cent interest per annum from 25-11-1974 till payment or deposit in the court below on or before 31st december, 1990 and the trial court was directed to issue notice to plaintiff fixing the date for executing the sale deed if the deposit were to be made and the plaintiff was further directed to execute the sale deed after receiving the entire amount and on the failure of the plaintiff to execute the sale deed, the court was directed to execute the same. Being aggrieved by this judgment and decree of this court, the plaintiff preferred civil appeal No. 60/6 of 1990 before the Supreme Court of India and the Hon'ble Supreme Court set aside the judgment and decree of this court and remitted the case to the file of this court with a direction to restore the appeal to the file and to hear and dispose of the appeal on merits along with the cross-objections. The Supreme Court also gave certain directions for depositing certain amount by the defendant and it is quite unnecessary to advert to those directions at this stage.
( 2 ) THE case of the plaintiff in brief is as follows: the plaintiff had agreed to sell and defendant had agreed to purchase the premises bearing No. 102, situate at wheeler road, civil station, Bangalore, more fully described in the plaint schedule, for a sum of Rs. 90,000/- and had executed an agreement to sell on 12-11-1974. She had received a sum of Rs. 3,000/- only on the date of the said agreement. As per the terms of the agreement, the sale transaction had to be completed on or before 11-1-1975. As per the terms and conditions of the agreement, plaintiff had agreed to obtain a declaration from one mohanambal who had not joined in the execution of the sale deed dated 29-6-1972 in favour of the plaintiff and if for any reason he was unable to obtain any such declaration from her, it had been agreed that she and her husband should furnish security indemnifying the possible loss and damages to the extent of Rs. 5,000/ -. On 25-11-1974, the defendant paid a further sum of Rs. 15,000/- to the plaintiff and on that date the defendant was put in possession of the suit property. The agreement also provided that if the purchaser failed to perform his part of the contrac
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