The court affirmed that a plaintiff must prove readiness to perform a contract for specific performance, while a defendant's claims of hardship must be substantiated with evidence.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This regular first appeal is filed by the appellant, challenging the judgment and decree dated 30.10.2019 passed in O.S.No.148/2015 by the learned Additional Senior Civil Judge, Jamkhandi.

2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellant was the defendant, and the respondent was the plaintiff.

3. Brief facts, leading rise to the filing of this appeal are as follows:-

The plaintiff filed a suit against the defendant for a specific performance of the contract. It is the case of the plaintiff that the defendant is the absolute owner of the suit schedule property. He agreed to sell the same for valuable consideration of Rs.40 lakhs, and executed a registered sale agreement dated 05.10.2013 by receiving advance sale consideration amount of Rs.15 lakhs. Further, agreed to execute a registered sale deed by accepting the balance consideration amount of Rs.25 lakhs on or before 04.10.2015. It is contended that, the plaintiff was/is always ready and willing to perform his part of the contract. The defendant failed to perform his part of the contract, and he evaded the same on one or the other pretext. The plaintiff got issued a legal notice dated 30.07.2014, calling upon the defendant to receive the balance sale consideration amount and execute a registered sale deed. The defendant replied to the legal notice vide reply dated 09.07.2015, denying the contents of the legal notice issued by the plaintiff. The plaintiff issued another legal notice on 26.10.2015, calling upon the defendant, to execute the registered sale deed as agreed upon. The defendant again replied to the legal notice dated 26.10.2015, denying the contents of the legal notice. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract. Accordingly, prays to decree the suit.

4. The defendant filed a written statement denying the averments made in the plaint. It is contended that, the defendant does not know the reading and writing of Kannada or any other language, and the plaintiff, taking undue advantage, has induced him to execute the agreement of sale of the suit properties by misrepresentation of facts. It is also contended that the suit schedule property is a joint family property, which was acquired from the joint family funds, the family members are having a share in the suit land. The defendant is not a manager of the joint family. The suit land is the only property and has an NA potentiality; as such the suit land has more value. It is contended that there was no necessity of selling the suit land. It is also contended that, there is no cause of action to file the suit. Hence, prays to dismiss the suit.

5. The trial court based on the aforesaid pleadings, framed the following issues:

1) Whether the plaintiff proves that the defendant entered with him a sale agreement dated 05.10.2013 thereby agreeing to sell the suit property for a consideration Rs.40,00,000/- and accepted an earnest money of Rs.15,00,000/- ?

2) Whether plaintiff proves that he was/is ready and willing to perform his part of contract?

3) Whether plaintiff proves that the defendant failed and neglected to perform his part of contract?

4) Whether the defendant proves that the plaintiff taking undue advantage of his illiteracy and ignorance, upon fraudulent misrepresentation got the document styled as sale agreement executed in his favour?

5) Whether the plaintiff is entitled for decree as sought for?

6) What order or decree?

6. The plaintiff to substantiate his case, examined himself as Pw.1, examined two witnesses as Pws.2 and 3, and marked 6 documents as Exs.P1 to 6. On the other hand, the defendant examined his father cum Power of Attorney holder as DW.1, and marked 10 documents as Exs.D1 to 10. The trial court, after recording the evidence, hearing on both sides and on assessment of oral and documentary evidence, answered issue Nos.1 to 3 and 5