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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12^TH DAY OF AUGUST, 2021

BEFORE

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

R.F.A.NO.2212/2006 (SP)

BETWEEN:

SRI G.RAMESH

S/O G.GOVINDAPPA

AGED ABOUT 40 YEARS

R/AT NO.39, GANESHA TEMPLE STREET

5^TH CROSS, SUDHAMANAGAR

BENGALURU-560027.

& APPELLANT

[BY SRI K.S.NAGARAJA RAO, ADVOCATE]

AND:

SRI N.RAMAN

S/O MALLAPPA GOUNDAR

AGED ABOUT 45 YEARS

RESIDING AT CHANNAKESHAVANAGAR

DODDANAGAMANGALA ROAD

ELECTRONIC CITY POST

BEGUR HOBLI, BENGALURU-560100.

& RESPONDENT

[BY SRI C.H.RAMACHANDRA REDDY, ADVOCATE]

THIS R.F.A. IS FILED UNDER SECTION 96 R/W ORDER 41

RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED

15.07.1996 PASSED IN O.S.NO.735/1996 ON THE FILE OF XVII

ADDITIONAL CITY CIVIL JUDGE, BENGLAURU CITY, DECREEING

THE SUIT FOR SPECIFIC PERFORMANCE.

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

THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

This appeal is filed challenging the judgment and decree

dated 15.07.2006 passed in O.S.No.735/1996 on the file of XVII

Additional City Civil Judge, Bengaluru City, (CCCH No.11),

questioning granting of decree of specific performance and

directing the defendant to receive the balance sale consideration

and execute the registered Sale Deed in favour of the plaintiff in

respect of the suit schedule property.

2.

The

factual

matrix

of

the

case

is

that

the

respondent/plaintiff has filed a suit before the Trial Court seeking

the relief of specific performance in terms of the sale agreement

dated 03.01.1995, wherein, sale consideration was fixed as

Rs.1,10,000/- out of that an amount of Rs.10,000/- was paid as

on the date of the sale agreement.

3.

The case of the plaintiff before the Trial Court is that

the defendant did not come forward to execute the Sale Deed as

agreed in terms of the agreement. Hence, a legal notice was

issued and the defendant has given untenable reply dated

26.12.1995 refusing to execute the Sale Deed in terms of clause

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No.6 of the sale agreement. Hence, the suit is filed before the

Trial Court seeking the relief of specific performance. In

pursuance of the suit, notice was ordered against the defendant

and the defendant was placed ex-parte on the ground that he

was refused to receive the suit summons and proceeded to

record the evidence of the plaintiff.

4.

The plaintiff in support of his claim he examined

himself as P.W.1 and got marked the documents as Exs.P1 to P6

and closed his side of evidence. The Trial Court after considering

both oral and documentary evidence placed on record decreed

the suit. Hence, the present appeal is filed.

5.

The main contention of the appellant before this

Court is that in terms of the agreement 3 Ex.P1, the time was

stipulated for four months to pay the balance amount and obtain

the registered sale deed. The plaintiff did not come forward to

pay the balance amount of Rs.1 Lakh in terms of agreement

dated 03.01.1995. The learned counsel also brought to the

notice of this Court that in terms of the agreement, there is a

specific clause in the agreement that the time was fixed for a

period of four months and if the Sale Deed is not obtained within

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four months, the amount of Rs.10,000/- paid as advance

amount would be forfeited. If the defendant fails to come

forward to execute the sale deed, he has to pay double the

amount. The learned counsel would submit that the legal notice

was issued on 15.11.1995 after a lapse of ten months and not

issued the notice within four months, the time stipulated in the

agreement. The defendant also given a reply dated 26.12.1995

that he has cancelled the said agreement as per clause 6 of the

agreement. Hence, question of executing the Sale Deed does

not arise and also performing his part of contract. The reply

notice is marked as Ex.P6.

6.

The other contention of the appellant is that the

notice issued against the defendant was n