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Karnataka High Court
Judges : Huluvadi G.Ramesh
SURESH NARAYAN GULAWANI - Appellant
Versus
SMT.VIMALABAI - Respondent
Regular Second Appeal 404 Of 2000
Decided On : 06/30/2005
Advocates Appeared :
BALAKRISHNA S.SHASTRY, PRABHULING K.NAVADGI
Time gap - Effect - May result in appreciation of value of property - Suit for specific performance filed after a considerable delay - Plaintiff would be put to unjust advantage and defendant would be put to a disadvantage - Hence, Court should not exercise its discretion to grant the relief.
[Huluvadi G. Ramesh, J]: In the factual background and circumstances of the case, while examining the aspect of readiness and willingness on the part of the plaintiff, when the Trial Court had held that plaintiff was not ready and has rejected the claim of plain tiff, the Lower Appellate Court although on a different reasoning, reversed the finding of Trial Court on that aspect, and the Lower Appellate Court has erred in not considering the mandate of Sec. 20 of the Specific Relief Act. Further more, it failed to take note of the time gap between the date of agreement and date of filing the suit which was almost after a period of six years and, which has placed the plaintiff in an advantageous position to gain time to secure the balance amount of consideration and plaintiff was placed in a unfair advantageous position which also leads to unjust enrichment.
SPECIFIC RELIEF ACT, 1963 - Decree of specific performance
Section 20 -Decree of specific performance - Time gap - Effect - Suit for specific performance filed after 6 years from the date of agreement - Puts the plaintiff in an advantageous position - This time gap resulted in appreciation of value of property - Hence, results in unjust enrichment, to that extent defendant would be put to a disadvantageous position - Order granting decree reversed.
[Huluvadi G. Ramesh, J]: In the factual background and circumstances of the case, while examining the aspect of readiness and willingness on the part of the plaintiff, when the Trial Court had held that plaintiff was not ready and has rejected the claim of plain tiff, the Lower Appellate Court although on a different reasoning, reversed the finding of Trial Court on that aspect, and the Lower Appellate Court has erred in not considering the mandate of Sec. 20 of the Specific Relief Act. Further more, it failed to take note of the time gap between the date of agreement and date of filing the suit which was almost after a period of six years and, which has placed the plaintiff in an advantageous position to gain time to secure the balance amount of consideration and plaintiff was placed in a unfair advantageous position which also leads to unjust enrichment.
Cases Referred:(2002) 1 SCC 134; (2001) 6 SCC 600; (1999) 5 SCC 77; (2002) 3 SCC 316; (2002) 5 SCC 383; (2002) 5 SCC 397; AIR 1971 SC 1238; 1993(1) Kar. L. J. 196; AIR 1971 SC 1238; AIR 2000 SC 2408; ILR 1995 Kar 493; AIR 1970 SC 546; ILR 1991 Kar 4142; AIR 1997 SC 1751; AIR 1979 SC 1241; ILR 2001 Kar 3870.
( 1 ) THIS second appeal is filed by the defendants being aggrieved by the judgment and decree by the District Judge in RA 326/1989 dated 28. 2. 2000 in setting aside the judgment and decree of the 1 Addl. Civil Judge, Belgaum in OS 105/1983 in so far as rejecting the relief of specific performance of the contract.
( 2 ) SUIT OS 105/1983 was filed by plaintiff/respondent before the Civil Judge, Belgaum for specific performance of contract against the defendants in respect of the suit schedule property. e. , property in CTS 1438/1 measuring 91 x 14 sq. mtrs situate at Belgaum and also for a direction to execute the sale deed in favour of the plaintiff accepting Rs. 17,000/- and put the plaintiff in possession of the property and in the alternative, to pass a decree for refund of earnest money of Rs. 12,000/- with interest and to award compensation.
( 3 ) DEFENDANTS 1 to 3 and 5 are the owners of the suit property and defendant 4 is the general power of attorney holder for defendants 1 to 3 and 5. The suit property was agreed to be sold to the plaintiff for a sum of Rs. 29,000/- Accordingly, they entered into an agreement on 27. 8. 1997 and paid an advance of Rs. 2,100/- and agreed to pay a sum of Rs. 9,000/- within one month and the remaining balance consideration was agreed to be paid at the time of registration of the sale deed. Meanwhile, as per the agreement, defendant 4 was required to obtain permission from the deputy Commissioner, Belgaum under the provisions of the Urban Land (Ceiling and Regulation) act, 1976 and thereafter to inform the plaintiff to execute the sale deed in terms of the suit agreement.
( 4 ) IT is averred, though the plaintiff was ready to pay the balance consideration, the defendants were not ready and willing to execute the sale deed and they did not also obtain the requisite permission from the Deputy Commissioner. Despite several attempts by the plaintiff to persuade in this regard and having failed in her attempt, she filed a suit after issuance of notice.
( 5 ) THE defendants resisted the suit stating that they have not authorised the 4th defendant to sell the property and defendant 6 had made some illegal construction on the suit property and the plaintiff had filed a suit for mandatory injunction against defendant 6 for the unauthorised construction and as such, 6th defendant was included as one of the party to the suit.
( 6 ) THE 4th defendant has taken a contention that against the tenant in the suit premises, eviction proceeding was initiated as per Section 211-J of the Karnataka Rent Control Act and has obtained an order of eviction and the tenant Sri Joshi filed a suit for restoration and by virtue of the order of the Court, he was put in possession. As such, although an agreement was entered into, the contract had become unenforceable.
( 7 ) BASED on the pleadings, the Trial Court has raised as many as thirteen issues. After evidence was let in and after hearing the parties, it has dismissed the suit of the plaintiff in so far as specific performance. However, while partly decreeing, it has ordered to pay the balance advance amount of Rs. 12,000/- with 6% interest from the date of suit till payment with a further direction to pay compensation of Rs. 10,000/- at 6% interest.
( 8 ) BEING aggrieved by the above said order, appeal was preferred before the District Judge, belgaum which came to be disposed of by the III Addl. District Judge in RA 326/1989 by order dated 28. 2. 2000 allowing the appeal in part thereby holding that plaintiff was entitled to specific performance as per the suit agreement at Ex. P2 on receiving the balance consideration of Rs. 17,000/ -. The Lower Appellate Court, has left open the right of the plaintiff to take possession of the suit property and it is ordered that plaintiff is entitled to possession of the suit property. However, the relief sought for actual possession was declined since the legal representatives of the tenant are
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