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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13^TH DAY OF SEPTEMBER, 2021

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

R.F.A.NO.274/2007 (SP)

BETWEEN:

SMT.N.S.VARIJA RAO

W/O SRI N.SHANKARANARAYAN RAO

AGED ABOUT 51 YEARS

RESIDENT OF DOOR NO.3/46,

SAJIPA MANNUR VILLAGE

BANTWALA TALUK

NOW RESIDING AT MAJALU HOUSE

NEERPADE POST, BELTHILE VILLAGE

BANTWAL TALUK

REPRESENTED BY HER HUSBAND AND

SPECIAL POWER OF ATTORNEY HOLDER

SRI N.SHANKARANARAYAN RAO

S/O LATE N.VASUDEVA RAO

AGED ABOUT 63 YEARS

NOW RESIDING AT MAJALU HOUSE

NEERPADE POST, BELTHILE VILLAGE

BANTWAL TALUK, D.K.

& APPELLANT

[BY SRI K.S.CHANDRAHASA, ADVOCATE]

AND:

SRI P.A.VIJAYAN

S/O LATE A.APPE

AGED ABOUT 65 YEARS

RESIDING AT B.C.ROAD

BANTWAL TALUAK

DAKSHINA KANNADA-574 219.

& RESPONDENT

[BY SRI K.S.HARISH, ADVOCATE]

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THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 R/W

SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE

DATED 29.09.2006 PASSED IN O.S.NO.279/2004 ON THE FILE

OF THE II ADDL. CIVIL JUDGE (SR. DN.), MANGALURU,

DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

THIS R.F.A. COMING ON FOR FINAL HEARING THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

J U D G M E N T

This appeal is filed challenging the judgment and decree

passed in O.S.No.279/2004 dated 29.09.2006 on the file of II

Additional Civil Judge (Sr.Dn), at Mangaluru, decreeing the suit

for the relief of specific performance.

2.

The parties are referred to as per their original

rankings before the Trial Court to avoid confusion and for the

convenience of the Court.

3.

The factual matrix of the case is that the plaintiff and

the defendant had entered into an agreement on 01.09.2001 for

the valuable sale consideration of Rs.1,90,000/- and the price

agreed was Rs.47,500/- per cent. As on the date of the

agreement of sale, the plaintiff has paid a sum of Rs.21,000/- in

cash which has been acknowledged by the defendant in the

agreement itself and the plaintiff agreed to pay the remaining

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consideration amount of Rs.1,69,000/- within a period of one

month and possession would be handed over at the time of

execution of the sale deed.

4.

It is the contention of the plaintiff that he has put up

a laterite stone compound wall on two sides and dug a well in

the schedule property by spending more than Rs.35,000/-. In

spite of repeated request by the plaintiff, the defendant has

failed to execute the sale deed and went on postponing the

execution of the document on one or other reasons and the

plaintiff is always ready and willing to perform his part of

contract. Even though he had called the defendant to come and

execute the sale deed she did not come forward to execute the

sale deed. Hence, without any other alternative, the suit for

specific performance was filed before the Trial Court.

5.

The defendant in pursuance of the suit summons has

filed the written statement admitting the execution of the sale

agreement and also received an amount of Rs.21,000/- as

earnest money on 01.09.2001 but took the contention in the

written statement that the plaintiff has not paid the remaining

sale consideration of Rs.1,69,000/- to the defendant within one

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month from 01.09.2001 and thereby he violated the terms and

conditions of the agreement of sale. The suit is filed belatedly

after lapse of three years seeking the relief of specific

performance with an intention to knock off the land, which is

valuing many times more than the previous rate and the suit

agreement is not enforceable, nor the defendant has any such

obligation to execute the sale deed. Hence, the plaintiff is not

entitled for any relief of specific performance.

6.

Based on the pleadings of the parties, the Trial Court

has framed the following six issues:-

1. Whether the plaintiff proves that he has always been

ready and willing to perform his part of the contract in

terms of the agreement of sale dated 1-9-2001?

2. Whether

the

pla