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IN THE HIGH COURT OF KARNATAKA
NATARAJ RANGASWAMY, J.
P. Venkatesh Raju – Appellants
Versus
Kothamuniyappa and Ors. – Respondents
Regular Second Appeal No. 1215 of 2018
Decided On : 08-04-2021
specific performance - agreement of sale - O.S. No. 72/2009 - R.A. No. 131/2015 - Indian Contract Act, 1872 - Transfer of Property Act, 1882 - Limitation Act, 1963
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement of sale dated 29.09.2003 and 13.08.2004. The defendants resisted the suit claiming that they were not obligated to execute a sale deed in favor of the plaintiff.
Finding of the Court:
The trial Court and the First Appellate Court held that the plaintiff was not ready and willing to perform his part of the contract within the stipulated period of three years, and thus dismissed the suit. The regular second appeal was also dismissed by the Court.
Issues: The issues included the plaintiff's readiness and willingness to perform the contract, entitlement to specific performance, cancellation of the contract, and the bar of limitation.
Ratio Decidendi: The Courts found that the plaintiff failed to demonstrate readiness and willingness to perform the contract within the stipulated period, and the delay in filing the suit was not explained. Therefore, the plaintiff was not entitled to specific performance.
Final Decision: The appeal was dismissed as no substantial question of law arose.
JUDGMENT :
Nataraj Rangaswamy, J.
1. This appeal is filed by unsuccessful plaintiff challenging the judgment and decree in O.S. No. 72/2009 and of the First Appellate Court in R.A. No. 131/2015. Both the Courts held that the plaintiff is not entitled to the relief of specific performance of the agreement of sale dated 29.09.2003 and 13.08.2004.
2. The plaintiff claimed that the defendants being the owners of the suit property had executed an agreement of sale in favour of the brother of the plaintiff on 27.11.2002 agreeing to sell the suit property for a total consideration of Rs. 2,50,000/-. Since the brother of the plaintiff died the defendants executed an agreement of sale on 29.09.2003 in favour of the plaintiff agreeing to convey suit properties for Rs. 2,50,000/- and received a sum of Rs.79,000/- as advance. Later again on 05.02.2003, the defendants executed a mortgage deed in favour of the plaintiff which was duly registered and received a sum of Rs.50,000/-. Later, the defendants executed an agreement dated 13.08.2004 agreeing to sell the suit property for a sum of Rs. 2,50,000/- and acknowledged the receipt of a sum of' Rs. 1,79,000/- towards the advance of sale consideration. Time fixed for completion of sale agreement was three years. The plaintiff claimed that defendants handed over possession of suit property on 27.11.2002 itself. The plaintiff claimed that defendants filed O.S. No. 46/2005 for redemption of the mortgage deed dated 05.02.2003 which was dismissed on 17.07.2006. The appeal preferred in R.A. No. 109/2008 was also dismissed. The plaintiff claimed that though he was ready and willing to perform his part of contract by paying balance consideration but the defendants refused to execute sale deed in his favour. Thereafter, the plaintiff caused notice and filed a suit for specific performance.
3. The suit was resisted by defendants 1 and 2 who contended that they had seven daughters, all of them were married prior to 31.01.2009. They claimed that suit properties were sold by defendant No. 1 in favour of one Lala Shariff in terms of a sale deed dated 15.12.1977 which was subject to a condition to reconvey. It is stated that the said properties was re-purchased from Lala Shariff and registered in the name of defendant No. 2. They admitted the execution of deed of mortgage on 05.02.2003 in favour of the plaintiff. They also admitted that they had received a sum of Rs. 50,000/- as mortgage apart from Rs. 29,000/- received as advance from the plaintiff. They claimed that they were ready to receive balance consideration of Rs. 1,71,000/- within 11 months from the date of sale agreement on 29.09.2003 and execute a deed of sale. They claimed that they had issued a notice in that regard to the plaintiff. The plaintiff failed to obtain an absolute sale deed. Therefore, the defendants were under no obligation to execute a deed of sale in respect of suit schedule property. They also contended that the daughters of the defendants had filed suit for partition and separate possession of their 7/9th share in suit properties and other properties. The said suit was compromised before the Lok Adalat on 31.01.2009 and the suit properties were allotted to the share of their daughters.
4. Based on the rival contention, the trial Court framed the following issues:
2. Whether the plaintiff is entitled for the relief as sought in the plaint?
3. Whether the defendants proves that plaintiff have not right to claim the relief of specific performance of the contract as the same is cancelled by issuance of legal notice dated 03.09.2004?
4. Whether the suit is barred by law of limitation?
5. To what order or decree?
The Plaintiff was examined as P.W. 1 and two more witnesses were examined as P.W. 2 and P.W. 3 and they marked documents as Exs. P1 to P16. On the other hand, defendant No. 1(b) was exam
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