1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27TH DAY OF AUGUST 2021

PRESENT

THE HON’BLE MR. JUSTICE ALOK ARADHE

AND

THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

R.F.A. NO.1945 OF 2013

BETWEEN:

M/S BHAKTAWAR TRUST,

A PRIVATE TRUST REGISTERED

UNDER THE INDIAN ACT 1881,

HAVING ITS OFFICE AT NO.15,

CAWASJI PATEL STREET,

MEHER HOUSE, FORT

MUMBAI-4000001,

REPRESENTED BY ITS TRUSTEE

MRS BAKHTAWAR CHENOY. ...APPELLANT

(BY SRI P.B.APPAIAH, ADVOCATE)

AND:

M/S SHANTHI TRUST,

A PRIVATE TRUST CONSTITUTED

UNDER THE INDIAN TRUST ACT 1881,

HAVING ITS OFFICE AT NO.13,

JALAPANKHI VIKAS PARK,

JUHU TARA ROAD,

MUMBAI-400049,

REPRESENTED BY ITS TRUSTEES:

1.MR MANOHAR MURALIDHAR KHATRI

2.MR RAJESH MURALIDHAR KHATRI. ...RESPONDENT

(BY SRI H.R.ANANTHAKRISHNAMURTHY, ADVOCATE)

2

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

AGAINST THE JUDGEMENT AND DECREE DATED 30.8.2013

PASSED IN

O.S.NO.3369/1988

ON

THE

FILE

OF

XI

ADDITIONAL

CITY

CIVIL

JUDGE,

BANGALORE

CITY,

DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE

OF CONTRACT.

THIS RFA HAVING BEEN HEARD AND RESERVED ON

25.08.2021

FOR

JUDGMENT

AND

COMING

ON

FOR

PRONOUNCEMENT OF JUDGMENT, THIS DAY HEMANT

CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

JUDGMENT

This appeal under Section 96 of the CPC is filed against

the judgment and decree dated 30.8.2013 passed by the XI

Addl. City Civil Judge, Bengaluru City (CCH No.8) in OS

No.3369/1988.

2.

The ranking of the parties are referred to their

respective ranking before the Trial Court for convenience.

3.

The defendant is in appeal. The plaintiff filed the

suit for specific performance of the contract dated 2.2.1981

for directing the defendant to deliver vacant possession of

the suit schedule property and enroll the plaintiff as a

member or a shareholder as the case may be so as to assure

transferring legal title to the suit schedule property or in the

3

alternate to direct the defendant to pay a sum of

Rs.9,57,720/- together with interest at the rate of 24% p.a.

4.

The plaint averments in brief are as follows:

The defendant entered into a contract on 2.2.1981

with the plaintiff agreeing to sell the suit schedule property

to the plaintiff and the plaintiff agreed to purchase the same

for a valuable sale consideration. It was averred that the

plaintiff has already paid advance sale consideration of

Rs.2,83,500/- being 90% of the sale price. Thereafter, the

plaintiff offered to pay the balance sale consideration and

requested the defendant to deliver the vacant possession of

the suit schedule property. Meanwhile, this Court in public

interest litigation held that the construction of floors Nos.5 to

7 by the defendant was illegal and the license issued for the

said construction was also held illegal. The defendant

preferred Civil Appeal No.2780/1982 and in the said civil

appeal, the plaintiff and other prospective purchasers of the

flats were required to file an undertaking in the form of an

affidavit to vacate the flat without raising any objection

whatsoever in the event of the special civil appeal being

4

rejected by the Apex Court. Thereafter, the plaintiff left with

no alternative obliged to file an affidavit in the form of an

undertaking before the Supreme Court. However, the

defendant by letter dated 30.5.1988 intimated the plaintiff

that the contract has been rescinded since the plaintiff has

not paid the balance sale consideration and the advance paid

by the plaintiff was forfeited. Hence, the plaintiff was

constrained to file the suit.

4.

The

defendant

filed

the

written

statement

contending that the plaintiff failed to pay the balance sale

consideration and thus committed breach of contract

resulting in rescinding of the contract and forfeiture of the

advance sale consideration. Hence, the plaintiff is not

entitled for specific performance of the con