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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23RD DAY OF JULY 2021

PRESENT

THE HON9BLE MR. JUSTICE ALOK ARADHE

AND

THE HON9BLE MR. JUSTICE HEMANT CHANDANGOUDAR

R.F.A. NO.1308 OF 2013 (SP)

BETWEEN:

K. MUNIYAPPA

S/O LATE KEMPANNA

AGED ABOUT 71 YEARS

R/AT NO.84, 1ST MAIN ROAD,

AYYAPPASWAMY TEMPLE ROAD

SOMESHWARANAGAR, YELAHANKA POST

BANGALORE-560 064.

SINCE DEAD BY HIS LEGAL REPRESENTATIVES

1(A) SMT. N. ANJINAMMA

W/O. LATE K. MUNIYAPPA

AGED ABOUT 65 YEARS

1(B) M. SATISH

S/O LATE K. MUNIYAPPA

AGED ABOUT 44 YEARS

1(C) DHARMA PRAKASH.M

S/O LATE K. MUNIYAPPA

AGED ABOUT 40 YEARS

1(D) SMT. M. VEENA

W/O DR. S.M. PRASAD

D/O LATE K. MUNIYAPPA

AGED ABOUT 38 YEARS.

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ALL ARE RESIDING AT NO.83

3RD MAIN ROAD, 1ST CROSS

AYYAPPASWAMY TEMPLE ROAD

SOMESHWARANAGAR

YELAHANKA POST

BANGALORE-560 064.

...APPELLANTS

(CAUSE TITLE AMENDED AS PER THE ORDER DATED

28.03.2016)

(BY SRI MALLA REDDY, B.V., ADVOCATE)

AND:

J. PALANISWAMY

S/O LATE JAYARAM ACHAR

AGED ABOUT 55 YEARS

R/AT NO 1254, HIG 2ND STAGE

SECTOR-B, YELAHANKA NEW TOWN

BANGALORE-560 064.

...RESPONDENT

(BY SRI RAVI RAJ, B.A., ADVOCATE)

- - -

THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,

AGAINST THE JUDGMENT AND DECREE DATED 20.04.2013

PASSED IN O.S.263/2009 ON THE FILE OF PRESIDING

OFFICER,

FTC-II,

BENGALURU

RURAL

DISTRICT,

BENGALURU,

DECREEING

THE

SUIT

FOR

SPECIFIC

PERFORMANCE.

THIS RFA HAVING BEEN HEARD AND RESERVED ON

15.07.2021

FOR

JUDGMENT

AND

COMING

ON

FOR

PRONOUNCEMENT OF JUDGMENT, THIS DAY HEMANT

CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

JUDGMENT

This appeal under Section 96 of Code of Civil

Procedure, 1908 is filed against the judgment and decree

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dated 20.4.2013 passed in OS No.263/2009 by the Fast

Track Court - II, Bengaluru Rural District, Bengaluru.

The ranking of the parties are referred as per their

ranking before the Trial Court for convenience.

2.

The defendant is in appeal. The plaintiff filed a

suit for specific performance of the agreement of sale dated

4.10.2007 thereby directing the defendant to execute the

sale deed by receiving balance sale consideration in terms of

the aforesaid agreement of sale in respect of the suit

schedule property. Plaint averments in brief are as follows:

i)

The defendant who is the owner of the suit

schedule property agreed to sell the same in favour of

the plaintiff for a valuable sale consideration of

Rs.17,75,000./- by executing an agreement of sale

dated 4.10.2007. In pursuance of the same, the

plaintiff paid a sum of Rs.2,00,000/-towards advance

sale consideration, the receipt of which is duly

acknowledged by the defendant. The possession of the

suit schedule property was required to be delivered at

the time of registration of sale deed and the sale deed

was required to be executed by the defendant in favour

of the plaintiff or his nominee within two months from

the date of the defendant furnishing the BBMP katha

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and the latest BBMP tax paid receipt. Since the

defendant delayed the execution of the sale deed, the

plaintiff appointed Sri B Prabhakar as his nominee and

the plaintiff and nominee by legal notice dated

26.4.2008 called upon the defendant to execute the

sale deed in favour of the said nominee. The

defendant, having admitted the execution of sale

agreement, did not intend to perform his part of the

contract. Hence, the plaintiff was constrained to issue

legal

notice

dated

6.10.2008

calling

upon

the

defendant to execute the sale deed. However, the

defendant went on increasing the sale consideration of

the suit schedule property and was trying to enter into

an agreement of sale with a third party. Hence, the

plaintiff was constrained to file the suit.

3.

The defendant after appearing through his

counsel filed written statement and contended as follows:

(i)

The execution of agreement of sale in

favour of the plaintiff is admitted. The other

averments made in the p