IN ME HIGH czoum OF' KARNATAKA AT BA}'»3C~§A: '
BA'TEi") THIS THE 9111 1:)AY.0;*=_iAN1'3é;:é'Y;+J?:?:Qé9V'_'_;_
13E:mRi'«: V i Q
THE-H()N'BLI3 n4R;§.j:t1:§;frx(:;E'-;{_ RAMI:$N'§'{E:v
REGULAR sgcogvp A153-EAL'. 30. E ) @f2Q§:2 .
BETWEEN: V é
C-handra$hekaIVHanama;$.pȤ:1 _' '
Major, occ: se1"vi¢§:.& :;grijc1:;Etu;xx3"*v V' V:
R/:3 Somgaon? :_ Appflnant
""" Adv.)
Bhimapfiaé '
Magar. <x::<:: agriculture
R,'Ii--.:) Yadahalii," _
" A Evi1a,gi..*§'aluN1; " """ Responaent
(By Sxi Rajcndra C Dcsai, Adv)
Aiapem is filcd under Section 100 cm against the
jmiglricnt and decree dated 6-10~2001 passed in
R.A.~~N'.;_40/1994 on the file of the PrI.Civi1 Juégc (S1293),
= .. damkhandi dismissing the appeal and mociiiying the
V judgment and decrm: dated 26-27199'! passed in
V (}.--'3.No.195/ 1991 on the file of Pri.M1m.siff, Mudhol.
This appeal having been heard and msmvcd for onrlcrs,
" coming on far prams-uncemant this ciay, the Court éclivercd
the following:
JUDGMEHT
The appfiilantf plainéfi'
appeal chaflenging the lagalfity conr;é:i::;§:$s; 'thc * L.
jucigmcm and decree Why the
principal Munsifi; Mu«§fheL /1'§ 9§1V, which has
been C(I)!1fiI'!}3.€d by {Sr D131 at
Jamakhandi;1~:::fi§L;i3x.N§._.4{;f-i§9é'§i;£u:d.__é5éV1ew2001.
2. V. the parties will be
rcfc1'{i:"d"Vt0A..:i}§'2 to than; before the trial
V _ 2 3.:I' 3:z§t the (2.336 in a nutshell am that; the
1=:i;;ed._t.:m suit against the defendant betbm the:
V for the relief of specific perfarmmlcc: of the
" ég:ée1:§1c:4ii:_ éf $a!e/ Ex. P11 and that other aiiicd relief. 11: is the
cfisa éif piaintifi" that, defendant is the owner of the suit
" .. " pm £5.43 mcasming 50* x 68', out ofnon agricultural iand
NOJSS4 :31' Mudhol and that has had agreed to $611 the
same to the plaixztjfi for Rs.18,400/-- and aemrciingty he
cntsmd into agrccment of sale] EXP. 1, dated (}9~04--199() by
\ K
receiving earnest money of Rs.i2,0{)0/--; further
also paid defendant Rs.3,00(}{- on :6-Q4§V_i'~:29G.A_T.:'o§;:
balance saie conéxidcrafion amoufiit
rc<:<:ipt./ Ex. 13.2; that piamfiff _aské&--. A §cfcnda:z3'::A " e§:'::~'cii;t'é'*.
rcgistcretd salt deed in his faéofiif aft:::rV t;i:g:'VViV$a1ancc V'
amount of Rs.13,400}§ a;1d «<'3f"'ti3'é suit plat
to him; that the dcfend.§;:j:."gfay$d:' one ytarg that
during the Mglfy" §R: i§:ndant to execute
mgistemd hence hr: issued the
1awye;'$"r;3£§§;%;] ;.és;.;r3.3; f;'tg§:ctd'a-(£1991 calling upon the
dcibnziant to' deed by rttcciving balance
conskieréitiqix . but dctlttndant gave false
V. «_ rt:_§:}is;f/ EX.¥?.4; is reacly and willing ta perform his part
~ lfiffllc under Ex. P. 1. Benet: he flied the suit.
' befarc the trial court dtibiidant filgd
étaiement and contcsttd the suit admitting £13.:
zzccufifin {:35 the agcemtzntj Elx.P.1 ami the receipt of
aalc consideration of Rs.5,(}(}0/~, but contended
' " -' t11at time was the csscnce of contract and that as per the
ag~e::me11t;'Ex.P. I the piaintifi' ought to
deed on er beibre 31«o5--199o; teat the-~p}a§§1fif§'fvvas »
ready and Wiiing to perform his 1*-ii'§«.3.*:_e1'ie '
ferfeited the advance amount-and the 'agree.men$.»camc5_;- td be ;
cancelled and he is not to 2e1'x:%i';; the said'
ag:neeme11t{Ex.P. 1. iigeisv. 'dismiss the suit of
fl}ep]a1_nfifi_ ' _ ' » .' _ '\
5. Q.a§~.¢pe'::_§g_s:s p1§zé;;i£3;§}§1' the parties the trial
courf; plaintiff in support of his
__P;W. 1 and got examined two mare
Wimese marked documents Ex. P. 1 tr:
4', :01'; e.¥::ehélf elefendant, vdefendant himself examined
1 and also examined one more Witness as
I court after considering the material evidence
Apiacegfl' it though rejected the prayer of the plaintiff for
AA speeiiie perfismnance ofagreenaex1t/Ex.P.'1, deemed the suit
"Q1fl%he plaintjfi" directing the defendant to repay the ativaznee
saie czonsideratiém amount of Rs.5,Q0O[« with intexest at
12%: 13.3. Being aggrieved by the said judgment and decree,
N
essence of contract the suit of the plainfifi ought
bccn decreed, instead dismissal of the prayer Qi"
for specific pcrfoxmance, which __is, " "
illsgal. Hence it is praycci to allow file -!»;§sisi_é
the judgment and decree by th<é' 1
111111 the rciicf of spmific Vgf 1.
'2'. Hcazrd the H for both the
parfics and pcrustd question of
3311:? that aziséisé isfi
1 committed crmr in
performance of the
'r;0nt'1'act <s3ii:' that the piaintrifi was not rcady
axiii wflling part of tzonuact md the time
. "WES hit:-agile' essscizcébf the contract 'E'
.1§§Ei*z1;ittz=:dl§',"Asuit property belongs to defendant and
I :V};;f:_ fifitcregi agmcmcnf: of sale with the plaintifi" for a
fatal §={)§3$§{1é1'afiGn of Rs.18,4()0/-- and agreement Ex.P.i.
AA(iatc€1-{§«V9--{}4--199O came to ht: executed by him by receiving
anréxdvanca amount of Rs.2,000/--, furt.l1t:z" he also mccivcd
" jfmm the plaintiff Rs.3,000[--- out of balance sale
u:
consflezation and executed zeceiptf Ex.P.2 da11:d; "2.6-()4-
1990. According to defend:-;:nt time was 'pf
contact and that sale shoulci be campleted
05-4.990
, but the plainfifi failed r5″g’eu;h;:
that period inspite of repeated
the ciefeneiant as such”‘i.ge* was in urgent need
of money for son, forfei-‘fed
the a€iva1_3e§–.. agreement} Ex.P.1.
On tfie immediately after a
monij; of agreement/Ex.P.1 he
along defendant anci requested him to
exectlie saie his favour, after receiving the balance
‘A « c:EeLi3a.*;:f{£ie:;2ation”e’1z1ount,’i’3ut the defendant himseif prayed
1 accaztiingly he Waited for one year and
flieregfteeiseued legal notice dated 3195-1991 calling upon
n the to execute the 531:: deed in his favour. In support
‘(If case apart from his oral evidence he piaccd on record
Héthe orai evidence of P.W’s.2 ané 3, but their evidence izs :31″ net
much consequence in the absence of any documentary
evidence: to this efihct, there was no endorsement “rm
EXP. 1 for cxtcntiing the time by defendant by V” 2
Moreover, P.W.2 is said to he the vreiative of _mV:£ci V’ ‘
32:5 said to be the friend of FEW. Jvcvifi-:’.§ §1e:r’;
approaching the dcfcndant’»Ta_f’his to’ V L’
each other, accozfiing fig P.Wf2..fi}fi1¢:n”‘«.thcy. fiiiet._t.h;:i§¢ia:tfc11dant
at his house ht: was :s§hc;’cas accoxtiing to
P.W.3 thcrc wage .SCVtSf?£73:E’.’fi).{i’ house at that
time. zaaigi c2§§¢2§sQ¢$[ii.5¢ come: identity of
the Q they have showed
4’+7.g11v:3»1*é%z:1:c:«:_¢_: and willingness of the plaintifl’
to get Afhajsalc’ ‘iiétvour, aiso they have not stated
any:3_e 0f’-
plainiifi”, a bare statcmggat byé§11{Ti:VI;i§V;§vit11c:5scs
that defandant rcfa1sv2.é’c%fl’ ‘:$”és_I;:’ deed, Without
as-ssifiing any If really the
wags. part of contract
and if for to exttcutc
the sa?.:§ :p the piaintifi” caught to haw:
got cfihct an the said agmxtmcnt
Exf; 2 pr he§£ve :E;ss:1¢d legal notice to the defendant
” forward to execute Ittgistttrcd sale
after receipt of baiaxioe sale czoxlsidcratien
azzzgouni… ” ‘
” In vicw of the aforesaid discugsions and reasoning,
who has not did any act in fizrthcrancc of the
agreement] Ex.P.1, is not at ail cnfiflcd to relief of
specific performance of agreement/’ Ex. P. 1 and he will not be
put to any hardship or inconvcniencrc if
specific pc:rf1ma11ce is rajcctcd. As such th§:-
below haw: rightly Injected the 9f: the fee’
specific: pcrfozmazzce of thc agztcméutf P. 1
find any good grounds to hmiérferc xwith’
findings mcoxdcd by the
12. As ibr as is concamcd,
admittedly “;.ifi:;..5,000[- to the
dfiffifldafltg dispute tbs”: same.
the ag:n’:ccmt:n[Ex.P.1
that ‘-c4asnV*:v -»~–o.f ” agreement by the piailltifil
defen:ie1«3ii._’i’s ::v13.1V*;itIt;i:iV.’.’1:o’: of earnest mancy, as such
def:§§fiia.f:t is to forfeit the same. Accordingly both
rightly ordered for refund of camcst money
trial court Wmngly imposed interest at
1’2%p.va..’ iowctr appellate court considering the fact that
nthg: tfaiisacfion is not 3. commercia}. transacum xiigbtly
‘ the rate of interest to 6% pa. which also (ices net
‘V for any imclttfcrcnce. Hence viewed from any angle 1 do
not find any good grounds to intczrfcrzt with
aiecrse passw by the courts below;
13. Hence this appeal
dismissed as devoid of V