IMPORTANT POINT
Agreement to Sell – Suit for Specific Performance – Once execution of agreement to sell and payment/receipt of advance substantial sale consideration is admitted by vendor, thereafter nothing further is required to be proved by plaintiff-vendee.

JUDGMENT :

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with impugned judgment and order dated 20.07.2021 passed by the High Court of Karnataka in Regular First Appeal No. 100200/2015, by which the High Court has allowed the said appeal preferred by respondent Nos. 3 and 4 herein – original defendant Nos. 3 and 4 (hereinafter referred to as defendant Nos. 3 and 4) and has set aside the judgment and decree passed by the learned Trial Court granting decree for specific performance of agreement to sell dated 12.04.2005, the appellant herein - original plaintiff has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as under :-

2.1 That the appellant herein – original plaintiff filed the suit for specific performance of agreement to sell dated 12.04.2005. It was the case on behalf of the plaintiff that she had entered into an agreement with respondent No. 1 herein original defendant No. 1 to purchase the suit schedule property for a sale consideration of Rs. 29 lakhs. An advance amount of Rs. 20 lakhs was paid under the said agreement. Defendant No. 1 had earlier executed a general power of attorney in favour of respondent No. 2 herein - original defendant No. 2. However, defendant No. 2 was present when the plaintiff entered into an agreement to sell with defendant No. 1. It was the case on behalf of the plaintiff that thereafter, on 25.03.2008, defendant Nos. 1 and 2 approached the plaintiff and her husband and sought payment of Rs. 6 lakhs. On 25.03.2008, the plaintiff made further payment of Rs. 6 lakhs towards sale consideration and an endorsement was made by defendant No. 1 on the agreement, acknowledging the receipt of Rs. 6 lakhs. According to the plaintiff, thereafter, despite repeated requests and demands, defendant No. 1 did not execute the sale deed in favour of the plaintiff. They learnt that defendant No. 2 by misusing the power of attorney executed by defendant No. 1 in favour of defendant No. 2, clandestinely executed two sale deeds in favour of defendant Nos. 3 and 4 only to defraud the plaintiff. The plaintiff got served a legal notice to the defendants on 17.06.2010 calling upon defendant No. 1 to execute the sale deed in her favour by receiving balance sale consideration of Rs. 3 lakhs. Further, thereafter defendant No. 1 did not execute the sale deed, the plaintiff filed the present suit for specific performance of the contract/agreement to sell dated 12.04.2005.

2.2 That original defendant No. 1 filed written statement and admitted the execution of agreement to sell and specifically stated that she is ready and willing to perform her part of contract. However, defendant Nos. 2 to 4 filed separate written statements and took a common defence that agreement to sell dated 12.04.2005 is a created document. It was contended that power of attorney executed by defendant No. 1 in favour of defendant No. 2 is a registered document and without cancelling the registered power of attorney and without the knowledge of defendant No. 2, defendant No. 1 in collusion with the plaintiff had created the agreement to sell. It was also contended by defendant Nos. 2 to 4 that agreement to sell dated 12.04.2005 is a bogus document and no sale consideration is paid by the plaintiff.

2.3 The learned Trial Court framed the following issues:

“(i) Whether the plaintiff proves that on 12.4.2005 defendant No. 1 has executed an agreement of sale agreeing to sell the suit property for a total consideration of Rs. 29 lakhs?

(ii) Whether the plaintiff proves that part sale consideration of Rs. 26 lakhs has been paid to the defendant No. 1?

(iii) Whether the plaintiff proves that she was always ready and willing to perform her part of duty towards the contract?

(iv) Whether the plaintiff further proves that with malafide intention and to defeat her right accrued through the sale agreement dated 12.4.2005 defendant No. 2 had executed sale deeds dated 3.5.2010 in favour of defendant No. 3 and 4 and those s