IMPORTANT POINT
Agreement to Sell – Suit for Specific Performance – Unless plaintiff is called upon to produce passbook either by defendant or Court orders him to do so, no adverse inference can be drawn.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with impugned judgments and orders dated 27.11.2020 and 06.12.2021 passed by the High Court of Karnataka at Kalaburagi Bench in Regular First Appeal (RFA) No. 5033/2011 and Review Petition (RP) No. 200036/2021 respectively, by which, the High Court has allowed the said appeal preferred by respondents herein-original defendants and has quashed and set aside the judgment and decree passed by the learned Trial Court decreeing the suit for specific performance, the original plaintiff has preferred the present appeals.

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

2.1 That respondent No. 1 herein-original defendant No. 1 executed an agreement to sell dated 13.03.2007 in favour of the appellant herein-original plaintiff-buyer agreeing to sell the land in question on or before 31.07.2007 for a sale consideration of Rs. 12,74,000/-. Rs. 3 lakhs were paid as earnest money. The receipt was issued by respondent No. 1 for the same. That thereafter, as respondent No. 1-seller did not execute the sale deed, the appellant got issued a legal notice dated 20.11.2007 asking the respondents to receive the balance sale consideration and execute the sale deed. The seller replied to the legal notice vide reply dated 03.12.2007 denying the execution of agreement to sell. That thereafter, the appellant-buyer filed the suit for specific performance on 14.02.2008 vide O.S. No. 17/2008. The original defendants-sellers filed their written statement and opposed the suit. The defendants denied the execution of agreement to sell. It was also the case of the defendants in the written statement that the plaintiff was not ready to perform his part of the contract. Therefore, the defendants denied readiness and willingness on the part of the plaintiff-buyer to perform his part of the contract.

2.2 Both the parties led evidence before the Trial Court. The plaintiff led evidence by examining witnesses, on his readiness and willingness to perform his part of the contract. It was brought on record that plaintiff went with cash to the seller but the seller did not accept the same. That thereafter, on appreciation of evidence the learned Trial Court decreed the suit for specific performance vide judgment and decree dated 30.09.2011. The learned Trial Court believed the case of the plaintiff-buyer as to the execution of agreement to sell. The learned Trial Court also believed the plaintiff’s case as to the payment of earnest money of Rs. 3 lakhs to the seller. The learned Trial Court also held that the plaintiff-buyer was ready and willing to perform his part of the contract. That pursuant to the judgment and decree passed by the learned Trial Court, the buyer-original plaintiff deposited an amount of Rs. 9,74,000/- before the learned Trial Court which is still reported to be lying with the Trial Court.

2.3 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court, respondents herein-sellers preferred the appeal before the High Court. By the impugned judgment and order the High Court has allowed the said appeal and has set aside the judgment and decree passed by the learned Trial Court, mainly on the ground that the plaintiff was not ready and willing to perform his part of the contract. The impugned judgment and order passed by the High Court is the subject matter of present appeals.

2.4 The appellant also filed a review petition which came to be dismissed by the High Court, and the judgment passed in the review petition is also the subject matter of one of the appeals.

3. Shri K. Parmeshwar, learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the Hon’ble High Court has materially erred in reversing the findings of the Trial Court on readiness and willingness of the appellant.

3.1 It is submitted that on appreciation of entire evidence on record the learned Trial Court record