IMPORTANT POINT
Once sale agreement is not proved, question of grant of decree for specific performance does not arise.

Pradeep D. Waingankar, J.—Aggrieved by the judgment and decree dated 17.9.2010 in O.S.No.16610/2003 on the file of XXVII Addl. City Civil Judge sitting at Mayohall Unit, Bangalore, This appeal is preferred by the appellant-plaintiff.

2. The appellant-plaintiff and respondent-defendant entered into a sale agreement dated 19.5.2003, whereby the defendant agreed to sell the schedule property in favour of the plaintiff for a total consideration of Rs.12.00 lakhs. In pursuance of the sale agreement, defendant received a sum of Rs.3,43,653/- from the plaintiff. The balance amount was to be paid at the time of registration of the sale deed. It is stated in the plaint that the plaintiff was ever ready and willing to perform his part of the contract and to get the sale deed registered, but the defendant did not come forward to execute the sale deed. As such, the plaintiff by issuance of a legal notice as per Ex-P6 called upon the defendant to execute the sale deed by expressing his readiness and willingness to perform his part of the contract. But the defendant declined to execute the sale deed. As such, the plaintiff filed a suit for a decree of specific performance of the contract.

3. The defendant contested the suit. In his reply, the defendant contended that the agreement entered into between the plaintiff and the defendant is not a sale agreement, instead it pertains to a loan transaction entered into between the defendant and the plaintiff, as the defendant was in need of the money as he had obtained loan from KSC Apex Bank. Further, it is contended that the defendant was ready to repay the loan obtained from the plaintiff and hence, he sought for dismissal of the suit.

4. The trial court framed the following issues:-

1. Whether the plaintiff proves that he entered into sale agreement dated 19.5.2003 with the defendant pertaining to the sale of suit schedule property?

2. Whether the plaintiff proves that he has paid a sum of Rs.3,343,653/- as advance amount towards the sale of suit schedule property to the defendant?

3. Whether the defendant proves that the transaction between him and plaintiff was a loan transaction?

4. Whether defendant proves that the sale agreement dated 19.5.2003 is fabricated and was fraudulently obtained as stated in para 7 of the written statement?

5. Whether the plaintiff proves that he was ready and willing to perform his part of obligation under the contract?

6. Whether the plaintiff is entitled for the relief of specific performance as sought for?

7. What order or decree?

After framing of the issues, the plaintiff in order to prove his case examined himself as PW-1 and one A. Ramesh one of the witnesses to Ex-P1 agreement as PW-2. Exs-P1 to P10 were marked. Defendant got himself examined as DW-1 apart from examining G. Chander, as DW-2, Exs-D1 to D6 were marked. The court below upon hearing the submissions made by both the learned counsel of the parties and on appreciation of evidence recorded a finding that Ex-P1 agreement entered into between the plaintiff and the defendant is not a sale agreement, but, it is an agreement pertaining to money transactions entered into between the plaintiff and the defendant and hence the court below declined to grant a decree for specific performance. However, the court below ordered for refund of Rs.3,43,653/- received by the defendant from the plaintiff with interest at 6% p.a. Thus by the judgment and decree dated 17.9.2010, the suit was partly allowed.

Aggrieved by the refusal of the specific performance, this appeal is preferred by the plaintiff.

I have heard the arguments. Perused the records.

5. As I have already stated, in order to prove his case, the plaintiff got himself as PW-1 and examined A. Ramesh as PW-2. From the oral evidence of PWs-1 and 2 coupled with Ex-P1 agreement dated 19.5.2003, the plaintiff proved execution of the said agreement. Though the original agreement was styled as sale agreement, subsequently, the parties by their con