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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SREENIVAS HARISH KUMAR, J.
B.V. Basavaraj Since deceased Rep. by his LRs. Smt. Sujaya Basavaraj – Appellant
Versus
K.L. Kumaraswamy S/o Lakshminarayana Shetty – Respondent
Regular First Appeal Nos. 1165, 1166 of 2011
Decided On : 14-03-2018
SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963] - Section 16(c) - Delay and Unwillingness - While delay reflects on the conduct of the plaintiff, to be more clear it is indicative of his unwillingness; the concept of time being essence of the contract is decisive of period of limitation prescribed for the suit though both are interwoven.
SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963] - Section 16(c) - Once the executing Court grants permission in accordance with Order 21, Rule 83 CPC, subsistence of attachment in an execution case does not come in the way of execution of the sale deed - Application made by another under Order 21, Rule 58 and pendency of E.P. are not obstacles for enforcing the agreement.
SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963] - Section 16(c) - Ready and Willingness to perform contract - Burden is on plaintiff.
SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963] - Section 17 - Suit for specific performance - Suit filed by the purchaser against the seller - Question of ownership over the property doesn't assume importance because if the purchaser is ready to purchase the property from a person with defective title, he runs the risk of it. Whereas, same is not the position if the suit is filed by the seller against a purchaser or lessor against a lessee.
SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963] - Section 20 - Time as he essence of contract - It does not apply to contract in respect of immovable property - Further nothing on record to show that parties meant the time to be essence of the contract if the sale transaction was not at all completed and neither of the parties showed interest in spite of there being specific order of the Court that the sale transaction should be completed within four months, it can only be said that they did not take the time factor seriously. Consciously, they gave a go-by to it.
SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963] - Section 22 - Suit for specific performance - Refund of earnest money - In a suit for specific performance, refund of earnest money cannot be ordered unless it is specifically claimed according to Section 22 of the Specific Relief Act - Where the plaintiff has in plaint prayed "granting to the plaintiff such other reliefs or other consequential or alternate reliefs that may arise in the suit as this Hon'ble Court may deem fit under the circumstance of this suit' it cannot be construed as one sought under Section 22 of Specific Relief Act.
TRANSFER OF PROPERTY ACT, 1882 [C.A. No. 4/1882] - Section 53-A - Protection under - The conditions mentioned in section are conjunctive and not disjunctive - there must be strict compliance of all the conditions, not any one of them.
TRANSFER OF PROPERTY ACT, 1882 [C.A. No. 4/1882] - Section 60 - Redemption of mortgage - Right of mortgagor can be exercised any time after the principal amount becomes due. Upon making payment or tendering of that money, the mortgagor has a right to require the mortgagee to deliver to him the mortgage deed and all documents relating to the mortgaged property, the possession of the property re-transfer the mortgaged property to him or to any third person whom he directs and execute an instrument (in case of registered mortgage) extinguishing the right of mortgagee. This right has been qualified, the proviso to Section 60 of Transfer of Property Act states that subsequent act of the parties or decree of a Court extinguishes the right of redemption - Agreement of sale did not extinguish the right of redemption. 'Subsequent act' contemplated is the one which results in taking away the right of mortgagor to claim redemption, for instance sale or release, etc., In this case since there was no completed sale, as it was just an agreement, the right of the mortgagor did not extinguish is not in conformity with Form 46 of Appendix 'A' of CPC, - it can be decreed, as mortgage money has been paid.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 21, Rule 83 - Grant of time by Court - Whenever Court grants permission under Order 21, Rule 83 CPC authorizing the judgment debtor to sell mortgage or lease the property privately for satisfying the decretal amount, such a transaction shall not become absolute until it is confirmed by the Court.
SREENIVAS HARISH KUMAR, J.
1. These two appeals arise from the common judgment in the suits O.S. 1977/1996 and O.S. 2875/1996 on the file of XXV Additional City Civil Judge, (CCH-23), Bengaluru. R.F.A. 1165/2011 is preferred by the legal representative of the first defendant in O.S. 1977/1996. RFA 1166/2011 was filed by the plaintiff in O.S. 2875/1996 and after his death, his legal representatives came on record.
2. For the sake of convenience, throughout the discussion, the parties will be referred with respect to their position in O.S. 1977/1996. In a nutshell, the pleadings in both the suits are as follows:
2.1. O.S. 1977/1996 is a suit for specific performance in respect of the entire first floor property bearing old No. J11, new No. 17, measuring East to West 64’ and North to South 49’ situated at Vardhamanaiah Block, Shankarapuram, Bangalore City, as described in the plaint schedule (suit property hereafter). The first defendant-B.V. Basavaraj is the father of the second defendant-Dr. Sunil Basavaraj. The plaintiff is K.L. Kumarswamy. The first defendant is the owner of the entire property consisting of suit property in the first floor and also a house in the ground floor. He acquired the same in a family partition that took place among himself, his father and others. The first defendant’s brother Prabhudev was in occupation of the ground floor house. Out of the entire property, the first defendant sold a portion of it measuring 16 x 49’ to somebody on 8.4.1985. The first defendant was in a financial crunch to educate his son, i.e. the second defendant and to clear of antecedent debts raised on the family property bearing No. 65/1, East Anjaneya Temple Street, Bengaluru. To clear of his debts he mortgaged the suit property to the plaintiff for a sum of Rs. 1,00,000/- by executing registered mortgage deed on 7.11.1987 and put him in possession of the suit property. It appears that he had also obtained loan from Travancore Bank and one Mr. Chandran. Since the first defendant did not clear the dues of Chandran, he obtained a decree against the first defendant and brought both the properties, i.e. the suit property as also property bearing No. 65/1, East Anjaneya Temple Street, Bengaluru, for sale in execution proceeding 427/1986. The first defendant wanted to avert the court sale of the property at East Anjaneya Temple Street as it was very valuable and therefore offered to sell the suit property with proportionate undivided share in the land to the plaintiff for a consideration of Rs. 2,40,000/-. In this regard, he executed an agreement of sale in favour of the plaintiff on 15.2.1989 and in terms of the agreement, the plaintiff had to clear the mortgage amount of Rs. 1,00,000/- to Chandran, deposit an amount of Rs. 1,00,000/- in the court in connection with execution 427/1986 and to pay the balance amount of Rs. 40,000/- to the first defendant. The plaintiff complied with this requirement. The first defendant agreed to get the execution case closed by clearing all the dues and execute a sale deed in favour of the plaintiff. The plaintiff was also put in possession of the suit property pursuant to the agreement.
2.2. Though plaintiff was always ready and willing to perform his part of the contract having been in possession of the suit property, the first defendant did not show any interest in getting the execution case closed. Instead he set up his son, i.e., the second defendant to file an application under Order XXI Rule 58 CPC, it was registered as miscellaneous proceeding, for determining his rights. The plaintiff entered appearance in the miscellaneous proceeding. The first defendant sensing that his son’s application would not be allowed, sent a notice through his advocate to the plaintiff on 16.2.1996. Thus, realizing that the first defendant was going back upon the agreement, the plaintiff instituted a suit for specific performance.
2.3. The plaintiff amended the plaint to state that the execution petition 427/
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