2022 Supreme(Online)(Kar) 42822
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JUNE 2022
PRESENT
THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON’BLE MR.JUSTICE S. RACHAIAH
REGULAR FIRST APPEAL No.200060/2016
C/W
RFA CROB. No.200003/2017
(SP)
RFA No.200060/2016:
Between:
Mallikarjun S/o Kashappa Sangavi
Age: 61 Years
Occ: Rtd. Govt. Servant
R/o H.No.Now 10-1495
Bhagawati Nagar
Kalaburagi
…Appellant
(By Sri Subhash Mallapur, Advocate)
And:
Dr. Sujatha
W/o Dr. Shashikanth Harkood
Age: 45 Years, Occ: Medical Practioner
R/o Near Balaji Mandir, Humnabad
Dist. Bidar - 585 401
…Respondent
(By Sri Manvendra Reddy, Advocate &
Sri Narendra M. Reddy, Advocate)
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This RFA is filed under Section 96 of the Code of Civil
Procedure praying to allow the appeal by setting aside the
judgment and decree passed by the Principal Senior Civil
Judge, Kalaburagi in O.S.No.182/2011 dated 18.04.2016 in so
far it relates to the granting of alternate relief of directing the
appellant to pay earnest money to the respondent.
RFA Crob.No.200003/2017:
Between:
Dr. Sujatha
W/o Dr. Shashikant Harkood
Age: 51 Years, Occ: Medical Practioner
R/o Near Balaji Mandir, Humnabad
Dist. Bidar - 585 401
…Cross-Objector
(By Sri Manvendra Reddy, Advocate &
Sri Narendra M. Reddy, Advocate)
And:
Mallikarjun
S/o Kashappa Sangavi
Age: 66 Years
Occ: Retired Government Servant
R/o H.No.10-1495
Bhagawati Nagar
Kalaburagi (Present Address) - 585 103
…Respondent
(By Sri Subhash Mallapur, Advocate)
This RFA Crob. is filed under Order XLI Rule 22 of the
Code of Civil Procedure praying to dismiss the appeal filed by
the appellant in RFA No.200060/2016 with costs and allow the
Cross Appeal filed by the Cross-Objector/plaintiff and set aside
the judgment and decree passed in O.S.No.182/2011 dated
18.04.2016 passed by the learned Principal Senior Civil Judge,
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Kalaburagi and decree the suit of the Cross Objector/plaintiff
and grant the relief of specific performance as prayed for in the
suit with costs throughout.
These RFA and RFA Crob. are coming on for Final
Hearing, this day, SREENIVAS HARISH KUMAR J., delivered
the following:
This appeal and cross-objection arise from the
judgment
and
decree
dated
18.04.2016
in
O.S.No.182/2011 on the file of Principal Senior Civil
Judge, Kalaburagi. The appellant is the defendant and
the cross-objector is the plaintiff in the suit.
2.
For the sake of convenience and clarity, the
parties are referred with respect to the position of each of
them in the suit.
3.
The plaintiff's case is that, the defendant being
the
absolute
owner
of
house
property
bearing
No.1-1495/48/C and 1-1495/48/C1 constructed on plot
No.24, bearing CTS No.1259, Sheet No.109, Chalta No.8,
Block No.VII situate at Angarkar Layout, behind S.K.
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Yatrik Nivas, Bhagavati Nagar, Station Ward, Gulbarga
measuring 40' x 60' and consisting of ground floor and
first floor, entered into an agreement of sale with the
defendant on 30.10.2008 for selling the said property for
total sale consideration of Rs.38,00,000/-. Prior to
execution of the agreement, the plaintiff met the defendant
at Bengaluru on 28.08.2008 and finalized the sale
consideration amount. At that time, the defendant
received a sum of Rs.1,05,001/- from the plaintiff's
husband. Rs.5,001/- was paid by the plaintiff's husband
by way of cash and Rs.1,00,000/- was paid through
cheque dated 28.08.2008 drawn on State Bank of India,
Humnabad Branch. Then, the agreement was executed at
Kalaburagi on 30.10.2008 and at that time, the plaintiff
made payment of Rs.12,00,000/- to the defendant being
the part of the sale consideration. The defendant having
received Rs.13,05,001/- from the plaintiff, agreed to
execute the sale deed in favour of the plaintiff after
obtaining permission from the Government for selling
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house property. Though the plaintiff was ready to pay the
balance of sale consideration, the defendant did not show
any interest to obtain permission from the Government
and execute the sale deed in favour of the plaintiff.
Sensing the mala fide intention of the defendant, the
plaintiff got issued a legal notice to the defendant on
20.09.2011 demanding the defendant to execute the sale
deed. The legal notice sent to the official address of the
defendant was served on him. Inspite of notice being
issued, defendant did not execute the sale deed and
therefore, the plaintiff was constrained to file a suit to
enforce the agreement. Alternatively, the plaintiff sought
refund of earnest money of Rs.13,05,001/- with interest at
the rate of 18% per annum.
4.
In the written statement, defendant admitted
the receipt of the advance amount paid by the plaintiff's
husband and stated that he applied for permission to the
Government for executing the sale deed, but he could not
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obtain permission and the same was conveyed to one
H.N. Ture, the broker who negotiated the transaction
between him and the plaintiff. He expressed his inability
to execute the sale deed for this reason. He also made it
clear that he was ready to return Rs.1,05,001/- which he
had received on 28.08.2008. However, in regard to
execution of agreement on 30.10.2008, it is contended
that the plaintiff's husband and the broker might have
fabricated it by forging the signature. He specifically
contended that when he brought it to the notice of the
broker that he had not obtained permission from the
Government, occasion to execute the agreement on
30.10.2008 would not have arisen. He also denied to have
received Rs.12,00,000/- from the plaintiff being the part of
sale consideration. He contended that there was no
privity of contract between him and the plaintiff, and in
this view, the suit is liable to be dismissed.
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5.
Based on the pleadings, the trial Court framed
the following issues:
"1. Whether
the
plaintiff
proves
that
the
defendant
has
agreed
to
sell
the
suit
property for sale consideration amount of
Rs.38,00,000/- and executed an agreement of
sale in her favour on 30.10.2008?
2. Whether the plaintiff further proves that, the
defendant has received an earnest money of
Rs.1,05,001/-
on
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