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IN THE HIGH COURT OF KARNATAKA
N. Kumar and B. Veerappa, JJ.
Sri. Punny Akat Philip Raju, Since dead by his LRs. – Appellant
Versus
Sri. Dinesh Reddy – Respondent
R.F.A. No. 96 of 2013
Decided On : 31-03-2016
SPECIFIC PERFORMANCE - AGREEMENT OF SALE - READINESS AND WILLINGNESS - SECTION 16(C) OF THE SPECIFIC RELIEF ACT, 1963 - ADDITIONAL EVIDENCE - ORDER 41, RULE 27 OF THE CODE OF CIVIL PROCEDURE, 1908 - SUBSTANTIAL CAUSE - FINANCIAL CAPACITY - BALANCE SALE CONSIDERATION - ORAL EVIDENCE - DOCUMENTARY EVIDENCE - BURDEN OF PROOF - JURISDICTION - APPELLATE COURT - DISCRETION - JUDICIAL REVIEW - REASONING - TRANSPARENCY - FAIRNESS - NATURAL JUSTICE - INTERPRETATION OF STATUTES - NEGATIVE WORDS - LEGISLATIVE INTENT - AMENDMENTS - SUBSTANTIAL AMENDMENTS - INTENTION OF THE LEGISLATURE - PRODUCTION OF DOCUMENTS - TIMING - APPELLATE STAGE - EXCEPTIONS - LACUNA - REMISSNESS - INADVERTENCE - INABILITY - WRONG ADVICE - NEGLIGENCE - IMPORTANCE OF DOCUMENTS - RELEVANCE - RELEVANCY OF EVIDENCE - ADMISSIBILITY OF EVIDENCE - REJECTION OF EVIDENCE - SUFFICIENCY OF EVIDENCE - STANDARD OF PROOF - PREPONDERANCE OF EVIDENCE - BALANCE OF PROBABILITIES - PRUDENT MAN TEST - SATISFACTION OF THE COURT - APPELLATE JURISDICTION - SCOPE OF REVIEW - SUBSTANTIAL QUESTIONS OF LAW - MIXED QUESTIONS OF LAW AND FACT - FINDINGS OF FACT - INTERFERENCE BY APPELLATE COURT - ERRORS OF LAW - ERRORS OF FACT - ERRONEOUS FINDINGS OF FACT - SUBSTITUTION OF FINDINGS - REMAND - NEW TRIAL - COSTS - AWARD OF COSTS - PRINCIPLES GOVERNING AWARD OF COSTS - APPELLATE COSTS - GENERAL RULE - EXCEPTIONS - SPECIAL CIRCUMSTANCES - FRIVOLOUS APPEALS - VEXATIOUS APPEALS - DELAYING TACTICS - MISCONDUCT - ABUSE OF PROCESS - MULTIPLICITY OF PROCEEDINGS - UNNECESSARY LITIGATION - FRIVOLOUS OR VEXATIOUS CONDUCT - MALAFIDES - OPPRESSIVE LITIGATION - UNJUST ENRICHMENT - PREVENTION OF ABUSE OF PROCESS - DETERRENCE - PUNISHMENT - COMPENSATION - INDEMNIFICATION - REIMBURSEMENT - SUBSTANTIAL JUSTICE - ENDS OF JUSTICE - PUBLIC POLICY - COURT'S INHERENT JURISDICTION - JUDICIAL DISCRETION - JUDICIAL REVIEW - APPEAL AGAINST AWARD OF COSTS - GROUNDS FOR APPEAL - INTERFERENCE BY APPELLATE COURT - APPELLATE JURISDICTION - SCOPE OF REVIEW - SUBSTANTIAL QUESTIONS OF LAW - MIXED QUESTIONS OF LAW AND FACT - FINDINGS OF FACT - INTERFERENCE BY APPELLATE COURT - ERRORS OF LAW - ERRORS OF FACT - ERRONEOUS FINDINGS OF FACT - SUBSTITUTION OF FINDINGS - REMAND - NEW TRIAL.
Fact of the Case:
The plaintiff entered into an agreement of sale with the defendant for the sale of a property for a consideration of Rs. 75 lakhs. The plaintiff paid a sum of Rs. 10 lakhs as advance sale consideration. The balance sale consideration of Rs. 65 lakhs was to be paid by the plaintiff within 45 days from the date of the agreement. The defendant was required to execute and register a sale deed in favor of the plaintiff or his nominee within 45 days of receiving the balance sale consideration. The plaintiff alleged that he was always ready and willing to perform his part of the contract, but the defendant failed to perform his obligations under the agreement of sale. The plaintiff filed a suit for specific performance of the agreement of sale.
Finding of the Court:
The trial court held that the plaintiff had proved that the defendant agreed to sell the property for Rs. 75 lakhs, received Rs. 10 lakhs as advance sale consideration, and failed to perform his obligations under the agreement of sale. The trial court also held that the plaintiff was always ready and willing to perform his part of the contract and was entitled to a decree for specific performance. The defendant appealed the trial court's decision.
Issues: 1. Whether the plaintiff proved that the defendant agreed to sell the property for Rs. 75 lakhs and received Rs. 10 lakhs as advance sale consideration? 2. Whether the plaintiff proved that he was always ready and willing to perform his part of the contract? 3. Whether the plaintiff is entitled to a decree for specific performance of the agreement of sale?
Ratio Decidendi: 1. The court held that the plaintiff had failed to prove that he was always ready and willing to perform his part of the contract as required by Section 16(c) of the Specific Relief Act, 1963. The court noted that the plaintiff had not produced any documentary evidence to show that he had the financial capacity to pay the balance sale consideration. The court also noted that the plaintiff's oral testimony that he was ready and willing to perform his part of the contract was not sufficient to prove readiness and willingness. 2. The court held that the plaintiff's application for additional evidence under Order 41, Rule 27 of the Code of Civil Procedure, 1908 was not supported by any substantial cause. The court noted that the plaintiff had not shown that he had exercised due diligence in obtaining the evidence prior to the trial or that the evidence was not available to him at the time of the trial.
Final Decision: The court allowed the defendant's appeal, set aside the trial court's judgment and decree, and dismissed the plaintiff's suit for specific performance.
N. Kumar, J.
1. This is the defendant's regular first appeal challenging the judgment and decree passed by the Trial Court on 4.10.2012 in O.S. No. 693/2005 decreeing the suit of the plaintiff for specific performance of agreement of sale dated 12.08.2004.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
Facts of the Case
3. The subject matter of the suit is dry land with the house constructed thereon in Sy. No. 30/IA 13 measuring 3 acres, being a portion of Sy. No. 30 of Seegehalli Village, Krishnarajapura Hobli, Bengaluru South Taluk, Bengaluru, which is more particularly described in the Schedule to the plaint and hereinafter referred to as schedule property.
4. The case of the plaintiff is that, the defendant is the owner of the schedule property. On 12.08.2004, he entered into a contract of sale with the plaintiff for the sale of suit property for a consideration of Rs. 75 lakhs. On the date of agreement, the defendant received a sum of Rs. 10 lakhs from the plaintiff by way of demand draft dated 21.07.2004 drawn on City Bank, Bengaluru towards the advance of sale price. The defendant was required to perform all the obligations cast upon him under the agreement of sale dated 12.08.2004 within a period of 45 days. Immediately on the expiry of the period of 45 days, he shall execute and register, either in favour of the plaintiff or in favour of his nominee or assignee, a proper deed of conveyance in respect of suit schedule property. Although the plaintiff has always being ready and willing to perform his pan of the contract under the agreement of sale dated 12.08.2004. the defendant for the reasons best known to him and which is inexplicable did not chose to perform the left over obligations under the contract of sale dated 12.08.2004. The plaintiff has since the middle of September. 2004 been ready and is even now ready and willing to perform his part of the contract. The defendant has become greedy. He has been evading to fulfil the performance left over obligations and to execute and register a proper deed of conveyance in respect of schedule property. Therefore, plaintiff on 29.9.2004 called upon the defendant through a letter and also through an e-mail to bring all the original documents and to receive the balance amount payable and to execute and register the sale deed in his favour. The defendant did not bother to respond to the Communication. Therefore, on 1.10.2004, the plaintiff got issued a legal notice to the defendant seeking specific performance of the Agreement of sale dated 12.8.2004 and to transfer the schedule property by executing and registering the sale deed in his favour. Though the defendant was duly served with the legal notice, did not bother to respond to the same, let alone, comply with the demands made therein. The plaintiff came to know that the defendant was making all efforts to alienate the schedule property in favour of certain third party for a higher price. On learning of the intention of the defendant, the plaintiff then got a public notice issued through his Advocate cautioning the public about the Agreement that the defendant has entered into with the plaintiff. The said public notice was published in the Indian Express Daily dated 8.10.2004. Thereafter, he initiated the suit for specific performance of the agreement of sale.
5. After service of summons, the defendant entered appearance and filed a written statement contesting the claim. The defendant specifically denied all the allegations in the plaint. He also denied the allegation in the plaint that plaintiff is always being ready and willing to perform his part of the contract under the agreement of sale dated 12.8.2004 and that he is ready to pay the defendant the balance of consideration due. Further, the allegation of the plaintiff that since middle of September 2004, he is ready and even now he is ready and willing to perform his part of the contract was specific
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