ON

17.06.2022,

THIS

DAY,

THE

COURT

PRONOUNCED THE FOLLOWING:

JUDGMENT

Challenging

judgment

and

decree

dated

31.08.2016 passed by I Additional District and

Sessions Judge, Bagalkot, sitting at Jamakhandi

(for

short,

“first

appellate

Court”)

in

R.A.no.31/2014 and judgment and decree dated

31.01.2014

passed

by

Additional

Senior

Civil

Judge, Jamakhandi (for short, “trial Court”) in

O.S.no.154/2012, this appeal is filed.

3

Appellant herein was defendant no.1,

while respondent no.1 herein was plaintiff and

respondent no.2 herein was defendant no.2 in

original suit. For sake of convenience, they shall

hereinafter be referred to by their rank in original

suit.

3.

O.S.no.154/2012 was filed by plaintiff

seeking for a money decree directing defendant

no.1 to pay to plaintiff sum of Rs.10,05,000/- with

interest @ 18% per annum from date of agreement

till realization etc.

4.

In plaint, it was stated that defendant

no.1 was owner of land bearing R.S.no.28/2B

measuring 20 guntas having NA potential situated

at Jamakhandi. Due to her family and personal

necessity, she agreed to sell it to in favour of

plaintiff for total consideration of Rs.31,00,000/-.

On 22.08.2011, she received earnest money of

Rs.10,00,000/- and executed an agreement of

4

sale,

wherein

plaintiff

was

required

to

pay

Rs.17,50,000/-

on

or

before

22.10.2011

and

remaining amount of Rs.3,50,000/- was to be

adjusted

towards

litigation

expenses.

It

was

further agreed that if plaintiff failed to pay balance

consideration

and

get

sale

deed

registered,

agreement would stand cancelled and earnest

money

forfeited.

It

was

further

agreed

that

defendant no.1 would clear off all dues and

encumbrance of Bank and Society and get land

surveyed. It was agreed that plaintiff was to bear

stamp

duty

and

registration

charges.

It

was

further stated that plaintiff was ready and willing

to perform his part of contract and Rs.17,50,000/-

was kept ready. Though he requested defendant

no.1 to execute sale deed, it was postponed on

one pretext or other. When plaintiff got issued

legal notice by RPAD, defendant refused to receive

it, but received telegraphic notice and issued false

reply. Thereafter, plaintiff requested either for

5

extending time or for refund of earnest money

though defendant no.1 assured that matter would

be settled amicably it was found that she had

transferred property in favour of defendant no.2

under registered sale deed dated 24.01.2012. Sale

was only with intention to create hurdles to

plaintiff in recovering earnest money. It was

alleged that defendant no.1 deliberately breached

contract. In view of sale in favour of defendant

no.2, plaintiff did not find fit to seek main relief

and instead chose to file suit for recovery of

earnest money with interest and filed suit.

5.

Despites service of suit summons, defendant

no.2 did not enter appearance. She was placed

ex-parte. Defendant no.1 filed written statement

admitting title over suit property and receipt of

earnest money of Rs.10,00,000/- from plaintiff

under agreement of sale dated 22.08.2011. Even

terms and conditions of said agreement were also

admitted. It was however alleged that plaintiff

6

failed to pay balance amount within time limit

stipulated. It was further stated that upon receipt

of notice, time for payment of balance sale

consideration was extended by two days i.e., till

5.30 p.m. on 24.10.2011. Since plaintiff failed to

make payment he committed breach and had no

right to sue. On said grounds she sought dismissal

of suit by awarding compensatory costs.

6.

Based on pleadings, trial Court framed

following issues and additional issues:

1.

Whether the defendant No.1 proves

that suit for recovery of money is

not maintainable?

2.

Whether the defendant No.1 proves

that court fee paid is insufficient?

3.

Whether the plaintiff is entitled to

the relief sought for?

4.

What order and decree?

Additional Issues

1. Whether the plaintiff proves that he

was always ready and willing to

perform his part of contract as per

th