Back
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
P.G.M. PATIL, J.
Shakila - Appellant
Versus
Pooja - Respondent
Regular Second Appeal No. 100840 of 2018
Decided On : 07-06-2019
Specific Performance - Agreement of Sale - Sections 5, 16(c), 14(d), 20 of the Specific Relief Act, 1963 - [SPECIFIC PERFORMANCE] - [AGREEMENT OF SALE] - [Sections 5, 16(c), 14(d), 20 of the Specific Relief Act, 1963] - The court discussed the plaintiff's claim for specific performance of an agreement of sale and the defendant's denial of the agreement. The court considered the plaintiff's readiness and willingness to perform the contract, the enforceability of the agreement under Section 14(d) of the Specific Relief Act, and the defendant's claim for equity under Section 20 of the Act. The court also addressed the procedural issue of the application under Section 5 of the Limitation Act. The court found that the plaintiff had proved the agreement of sale and supplementary agreement, and that the plaintiff was ready and willing to perform her part of the contract. The court held that the agreement was enforceable and dismissed the appeal.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement of sale and mandatory injunction. The defendant denied the existence of the agreement and claimed it was a loan transaction. The trial court decreed the suit in favor of the plaintiff, directing the defendant to execute the sale deed and complete construction within six months. The defendant's appeal was dismissed by the first appellate court, leading to the second appeal.
Finding of the Court:
The court found that the plaintiff had proved the agreement of sale and supplementary agreement, and that the plaintiff was ready and willing to perform her part of the contract. The court held that the agreement was enforceable and dismissed the appeal.
Issues: The issues included the existence of the agreement, the plaintiff's readiness and willingness to perform the contract, and the enforceability of the agreement under the Specific Relief Act.
Ratio Decidendi: The court held that the plaintiff's continuous readiness and willingness to perform the contract is a condition precedent to grant the relief of specific performance. The court also found that the agreement was enforceable under the Specific Relief Act.
Final Decision: The appeal was dismissed, and the court directed the parties to bear their own costs.
JUDGMENT :
P.G.M. Patil, J.
1. The defendant being aggrieved by the Judgment and Decree dated 07.09.2018 passed in R.A.No.165 of 2017 by the VIII Additional District and Sessions Judge, Belagavi confirming the Judgment and Decree dated 30.03.2017 passed by the Principal Senior Civil Judge and C.J.M., Belagavi in O.S.No.36 of 2011 has filed this second appeal.
2. The parties are referred with their ranks before the trial Court for the sake of convenience.
3. The plaintiff Smt.Pooja filed suit in O.S.No.36 of 2011 for the relief of specific performance of agreement of sale and mandatory injunction and perpetual injunction. It is the case of the plaintiff that the defendant is the absolute owner of properties bearing CTS No.4830/15 measuring 78.3/9 square yards, CTS.No.4830/16 measuring 382 square yards, CTS.No.4830/17 measuring 44.3/9 square yards and CTS.No.4380/18 measuring 15.3/9 square yards. All these properties are situating adjacent to each other forming one compact unit totally measuring 4680 square feet situated at Civil Hospital Road, Belagavi. There was existing old building in the said property.
4. The defendant thought of demolishing the old building and to construct commercial cum residential complex in the said property. The plaintiff coming to know of the same approached the defendant and made enquiry about the proposed construction. After going through the CTS records, the proposed building plan, agreed to purchase flat on the second floor i.e., flat No.3 having carpet area of approximately 700 square feet together with undivided interest in the land as shown in the proposed building plan for a total consideration of Rs.5,25,000/- i.e., at the rate of Rs.750/- per square foot. Accordingly, an agreement came to be reduced into writing on 19.07.2005. On the date of entering into agreement of sale, the plaintiff paid an advance consideration amount of Rs.45,000/- through banker's cheque. Thereafter, plaintiff has again paid an amount of Rs.50,000/- by Demand Draft dated 09.01.2007 drawn on State Bank of India, Belagavi. Subsequently, a supplementary agreement was executed on 09.01.2007, under which the plaintiff agreed to purchase an area of 810 square feet and the total consideration amount also came to be changed as Rs.6,07,500/-.
5. The defendant was to get approved the plan from the Corporation of the City of Belagavi and after getting the plan approved the exact area of the flat to be sold to the plaintiff has to be notified. The plaintiff was very much interested in buying the flat. However, the defendant failed to get the building permission and to start the construction till August-2009. The plaintiff came to know that in August-2009 the defendant has obtained the building permission and entrusted the development work to the High-Tech Associates. The plaintiff enquired the builder and also sent a registered letter to the defendant making enquiry, which was returned with postal endorsement as 'refused'. Thereafter, the plaintiff got published a public notice in daily news paper on 08.09.2009 informing the general public regarding the agreement executed by defendant in her favour. The plaintiff also approached the defendant personally and requested her to handover the copy of the building permission and approved plan, the defendant had assured, however did not furnish the same. The plaintiff suspected the bonafides of the defendant. Therefore, defendant got issued notice dated 02.11.2009 through the advocate calling upon the defendant to send the copy of the building permission and approved plan. On 08.12.2009 the defendant got issued reply to the notice through her advocate denying the execution of the agreement of sale dated 19.07.2005 and supplementary agreement dated 09.01.2007 and she has also denied that she has not received the advance consideration amount of Rs.45,000/- and Rs.50,000/-. The plaintiff was always ready to perform her part of the contract. Even during February-2010 the defendant failed to hand
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
