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2011 Supreme(Kar) 1145
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
B.V. Nagarathna, J.
Poojari Hulugappa —Appellant
Vs.
N. Vanaja @ Saraswathi —Respondent
R.S.A. No. 5760 of 2011
Decided on : 18-10-2011
Advocate Appeared:
Mr. S.M. Kalwad and A.M. Malipatil, For the Appellant
Mr. Gode Nagaraj and M. Netaji Mohan, For the Respondent
The Court emphasized the importance of readiness and willingness to perform the contract and noted that the burden was on the defendant to deny specific relief to the plaintiff.
Headnote:
specific performance - agreement to sell - Specific Relief Act, Section 16, Section 20
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement to sell, alleging that the defendants failed to perform their part of the contract. The trial Court decreed the suit in favor of the plaintiff, which was confirmed by the first appellate Court. The defendants appealed against this decision.
Finding of the Court:
The Court found that the agreement to sell was valid and that the plaintiff was ready and willing to perform her part of the contract. The Court also noted that the defendants had not established any grounds to deny specific relief to the plaintiff.
Issues: The issues included whether the defendants had agreed to sell the property, whether the plaintiff was ready and willing to perform her part of the contract, and whether the suit was maintainable.
Ratio Decidendi: The Court held that the plaintiff was ready and willing to perform her part of the contract, as evidenced by the legal notice issued and the willingness to pay the balance sale consideration. The Court also noted that the defendants had not established any grounds to deny specific relief to the plaintiff.
Final Decision: The appeal was dismissed, and the defendants were directed to execute the sale deed and put the plaintiff in possession of the property. The Court also observed that the defendants were at liberty to withdraw the deposited balance sale consideration at the time of execution of the sale deed.
B.V. NAGARATHNA, J.—This second appeal is filed by the defendants assailing the judgment and decree passed by the first appellate Court in R.A. No. 91/2009, on the file of Fast Track Court-III at Hospet, dismissing the appeal filed by the defendants and confirming the judgment and decree dated 21.10.2008 in O.S. No. 128/2006, by the Prl. Civil Judge (Sr. Dn.), Hospet.
2. For the sake of convenience, the parties shall be referred to as per their status before the trial Court.
3. The respondent-plaintiff filed a suit for specific performance of an agreement to sell dated 21.3.2006 by contending that defendant No. 1 (since deceased) was the absolute owner of the suit land, defendant No. 2 is his son and defendant No. 3 is the wife of the second son of defendant No. 1. For their legal necessities defendants had agreed to sell the suit lands to the plaintiff for a consideration of Rs. 6,72,750/- have jointly executed an agreement to sell dated 21.3.2006 after receiving an advance of Rs. 2,00,000/- at Kampli and agreed to receive the balance sale consideration of Rs. 4,72,750/- and to execute regular sale deed on or before 21.9.2006 and had also agreed to survey the land within that date. Inspite of repeated requests and lawyer’s notice dated 20.7.2006, the defendants failed perform their part of the contract. The plaintiff has averred that she was ready and willing to pay the balance sale consideration as well as the registration charges, but since the defendants never performed their part of the agreement, the suit for specific performance was filed.
4. On receipt of suit summons and notices, defendants appeared through their counsel and defendant No. 2 filed written statement which was adopted by defendant Nos. 1 and 3. The defendants resisted the suit by stating that the allegations made in the plaint were false, while admitting the relationship between the defendants. They have stated that the suit land was the joint family property, but denied that the agreement of sale was executed by the defendants by receiving earnest money of Rs. 2,00,000/-. They stated that on the advice of the elders, they did not reply to the lawyer’s notice issued on behalf of the plaintiff that the agreement to sell was only a nominal one. The defendants had availed loan for providing medical treatment to one Prabhu who had suffered stroke. Plaintiffs husband had agreed to lend money on the strength of the document which was a security for the said loan. Ultimately, they agreed to execute the agreement in favour of the plaintiff for a sum of Rs. 6,72,750/- as such the nominal consideration has been mentioned in the agreement of sale. The said agreement was only by way of security to the loan transaction, but the defendants never agreed to sell the property. Therefore, they state that the suit was not maintainable and was liable to be dismissed.
5. On the basis of the above pleadings, the trial Court framed the following issues for its consideration:
(i) Whether the plaintiff proves that defendants have agreed to sell the suit property for a consideration of Rs. 6,72,750/-?
(ii) Whether the plaintiff further proves that, defendant has executed the agreement of sale on 21.3.2006 by receiving an earnest money of Rs. 2 lakhs?
(iii) Whether the plaintiff proves that she was and is ready and willing to perform his part of contract?
(iv) Whether defendants prove that the alleged agreement of sale is executed as a security for loan transaction?
(v) Whether plaintiff is entitled to the relief of specific performance?
(vi) What decree or order?
6. In support of her case, the plaintiff let-in her evidence as P.W. 1 and the evidence of two other witnesses as P.Ws. 2 and 3 and produced 24 documents, which were marked as Exs.P-1 to P-24. The defendants let-in their evidence by examining four witnesses DWs.1 to 4 and produced four documents which were marked as Exs.D-1 to D-4. On the basis of the said evidence, the trial Court answered issue Nos. 1 to 5 in the affirmat
