IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 16TH DAY OF DECEMBER.,.;'_:'0 170';--..i 5 _
BEFORE
THE HON'BLE MR. JUSTICE H.N=..:4NAGO/}\MOHAN- D'AgL,.__V 7
R.F.A.N0;821{200VO'~.. V
BETWEEN:
G.S.NANJUNDAlAH V
SINCE DEAD BY HIS .
LEGAL REPREsENT;2xT'i\{E L
SMT G.N.GE§ii'JAA;M\§'A:'--w._ L .-
WIFE OE'__(},NIR.A1'\/i«ASyV"APs'IV_
PRESET:JTLY"R.'€SVIDIf\TG AR"
2203/G, 2?"-' CROSSj,-. 1.
BANASHA_N'1«:AR1_1TsT:AGE;'
BANG-ALORE} 560 070, " ..APPELLANT
V. A_ (By _.Sf'i..CH'ALAI;ATH §(_,__SR.COUNSEL FOR
_ M/S 'KUMAR & KUMAR, ADVS. _)
RsANAND~°
=._s0N OELATE RSUBEARAYA
A ,SHEE'I'Y,"'HINDU
V"-MAJOR, N0.532, SAMPIGE ROAD,
MALLESHWARAM
_ BANGALORE -- 560 003. ..RESPONDENT
(By SmiNAL1’NIVENKATESH_. ADV.)
x \,:”-«’T’
tenant under the defendant. During the subsistence of the lease
period the defendant agreed to sell the plaint schedule propertyigitothe
defendant for a total sale consideration of RS.1,75,00O:[*”~-llfidfiliiV.i€.Iii
agreement of sale dated 29.] M979. Under this agreer_nent.ofii.sale that
plaintiff paid an advance amount of Rs.[li0,0f_):(i)g/–;
the balance sale consideration at tjhe__tin1eiof_theijgale
deed. On 14.053980 and 29.06.198fliiiitlienplaintiff’ lettersiiito the
defendant calling upon obligations under
the agreement of sale andvAt.o…e>tecut.e’ sale deed by
accepting the the plaintiff got
issued a 1.9530. Smce the defendant failed to
comply the idetnand irnade initiie plaintiffs lawyer’s notice he got
‘issued-ia notice. through___a__gnewspaper warning the public not to deal
the –plaint«.schedule property with the defendant and intimating
about”the of sale. Despite offering Rs.25,000/- more than
ethe. consideration fixed under the agreement of sale the defendant
to concede the request of the plaintiff and on the other hand
deiinanded a sum of Rs.2,50._000/–. Despite repeated requests,
demands and notices the defendant failed to perform his part of
:–..
.:'”V
gs
obligation under the agreement of sale. On the other hVand_’lll’the
plaintiff was always ready and willing to perform
obligation. Therefore the plaintiff filed O.S. for if i
decree of specific performance of agreement of saliefi, ‘
4. Defendant entered appeat’a:n’ce_befoiel__the_
filed written statement interzalia . thaltilthve,p].:li.ntiff by
playing fraud, undue obtained the
agreement of sale as in law. The
plaintiff was; to perform his part of
obligation and Ehere’.i’g- “approaching the Court.
5. Dtrrilng the suit the defendant died on
25.01′.;l9’83. and his daughter was brought on record as the legal
rep.refscntati&\’ei.l “The legal representative of the deceased defendant
“fil_ed’__add’itie.n_al:fw;’itten statement inter alia contending that the
agree”men–:t’oi’.s’ale is materially altered, the plaintiff was not ready
. ._uandlawilliVrr’g. to perform his part of obligation and she will be put to
_ hardship if a decree is granted.
ax.”
!”~u’
//V
1.. ‘
6. On the basis of pleadings the Trial Cour-t_;~t’i–afmp§i_;’
following issues and additional issues.
iii»,
Does defendant proves that f
29.11.1979 is a /sh,ara ldoetimentae”‘atVid:’_ is not
enforceable?
Does documeiit.l’prov’e tl:a~t.leon’trabtibetween the parties
is vifiated .-“iv/!:1’it:”‘.f[-V’C.i}<1'C'1llJ. lltIndl13e."inf1uence and
rniE:,i'ep;fesen£atio1i;. as__lconten'd'e'd in the written
s'tateini¥:_nt? A
= Wheltlaer-»:[§lain'ti_t€f""i.s'entitled for damages for delay in
e..pe1'forrrianCe of eontract'?
‘
1’ vi.
vii.
viii.
yWhe’tii€ry__p_laintiff is ready and Willing to perform his
of contract?
‘ –‘i«’e;Wti¢ther plaintiff is entitled for relief of specific
performance or return of a earnest money’?
Whether plaintiff is entitled for interest claimed?
Whether defendant is entitled for compensatory costs’?
To what relief parties are entitled?
9-.4
L/’
6
Additional Issues
1. Whether the defendant proves that there;”i”s*
alteration in the agreement of sale’?
ii. Whether the defendant proves that jivtheeentraetii v’=tould .’
involve hardship on hiirnj
iii. Whether the defendaiiithareves of the
Contractwould…in’volve H M
iv. Whether the it inequitable to
to the plaintiff?
“W the plaintiff examined three
witnesses got marked Ex.P.l to EX.P.2i. The
defendant ‘A€XEll1]1’I1’€”Ci”l.W’Q”Wllf1CSSCS as D.W.l and D.W.2 and got
marked E;<LiZ).' =1._i"o _Ex.D.l4. The Trial Court, on appreciation of the§
pleadinigst oi*a1–: aAn=diidoeumenta1'y evidence held that the plaintiff has
] proved theexeeution of agreement of sale, he was always ready and
iiflvipllingé toflperform his part of obiigation and no hardship will be
' caiised to the defendant and consequently passed the impugned
ii ittdginent deereeing the suit of plaintiff. Hence. this appeal.
3…»
P–.1
K
8. Sri. S.K.V. Chalapathy, learned senior con:is’e’l<l.r'f_Ot._l:
defendant contends that the Trial Court cornn1ltted'~an.: not " l
properly appreciating the pleadings and eviden1i;ce'li .'
Trial Court committed an error in riot properly fra1'n'ing; the issues. _
The Court below cornrnitted not ..appreclfati11g the
correspondence between the.xpartie,s. to the agreement of
sale. in the correspondeiice' 'the plaintiff has
agreed to but failed to do so.
Thus the .pl.ai_ntiff to perform his part of
obligation. -.t:ouprt”e.o’in3rritted an illegality in not properly
appreciatingtrie priinciples’nnderlying in Section 20 of the Specific
-V V. p_ Perftairrnafice Act; Reliancpe is placed on the following decisions.
H a.’ lPaiali<i51nna11 Veetill Joseplfs Son Mathew Vs. Nedurnbara
M .. t'«:K.nruvila's son and others, AIR i987SC 2328
b. KS. Vidyanadam and others Vs. Vairavan, (1997) 3 SCC
l.
5-…
d”
i
C. K. Narendra Vs. Riviera Apartments (P) Ltd, A’IRl_fJ”999
SC 2309
d. Manohar Lal alias Manohar Singh ._2G{l3″‘i i
SC 2362
9. Smt. Nalini Venkatesh, eoulnsell: plaintiff
supports the impugned }uvdg.ir}ent§i–l_it thatthe defendant
failed to prove” and of fraud,
misrepresentation” Trial Court by
eonsideyring eonciuded that the plaintiff
has proyed and he was always ready and
willing tol”perf’orni obligation. It is the defendant who
avVoi5d.ed__ito yperfoirmyhispypart of obligation under the agreement “of
V yTvhe’~eo«nsid.eration fixed under the agreement of sale was the
iinariéet yafne of the schedule property on that date. The Trial
Court. by appreciating the entire pleadings and evidence on record
3 .rightly decreed the suit of the plaintiff and the same do not call for
any interference.
10. Heard arguments on both the side and perused the eriitiire
appeal papers.
l 1.. Though in the memorandum ofiappe-al. seuveral_igrou’ndis__i f
urged in relation to fraud, misrep-‘res–¢_t1ration,
material alteration of the .5_gle,: .r1oii:_argurr§ents are
addressed. Therefore it is noitllriecessaiiy this question.
12. i_sli.n.ipossiesision of the schedule
property _,as..a registered lease deed
dated Admittedly the schedule property
measures 30feet_X ‘}_30’..l’e’e.t._é_.rnd there .is a building of 20 squares.
The_~’sl;hedt;le property____is.in prime locality of Bangalore city. The
‘agree.mengt”o.fg dated 29.11.1979 for a total sa1.e consideration
of per Ex.P.3. Under this agreement of sale the
plaintiif hadhonly paid an advance of Rs. 10,000/~. It is not in dispute
” that siibsequent to the agreement of sale correspondence had taken
place and several rounds of negotiations also had taken place on the
question of enhancing the sale c.or1siderati.on. In these negotiations
l0
the son–in-law of the defendant by name GM. Ra1naswan1aiah”1.a/as
involved. Ex.P..l7 dated 01.11.1980 is a letter
Ramaswamaiah to the plaintiff. In this Ex.P.17_.the..u_:pE.ain–tiiff._
requested to pay simple interest at 10%
years period and another sum of alrea»’iyi’l’agr:eved the ,
plaintiff. The plaintiff sent’ a reply rlefendztntis’:son§in–law on
05.11.1980 as per EXP.l8″.éigreei_ng{_[Ql. interest of Rs.35,000/–
and enhanced consriderationof works out to be
Rs.2,35,000/_-«asv rhsigaie ‘con_sid_e.rat.ion&*as tfitiie date or Ex.P. 18. In
this Ex._P–.1i–8 c.ljai.r_n”ed” sorne deductions and adjustments.
l3.iSnhlseVquentl thje”_.’e>schange of letters as per Ex.P.l7 and
p.lai’ntiff____’has not come forward to pay the sale
‘ .coi1–s.ide1jation..la’s agreed under Ex.P.]8. The plaintiff in his lawyer’s
notice. ll2’.i(l)S.’l98l «M Ex.P.l6 has not whispered anything with
regard to«:_the enhanced sale consideration per Ex.P.l8. Even in the
“id .plai’nt the plaintiff has not pleaded that he is ready and willing to pay
lithe sale consideration as agreed by him under Ex.P.18. Further the
plaintiff who is examined as P.W.1 has not whispered a word with
7?}
L
i
by several times. At this length of time granting decree of specific
performance would be inequitable and results in great
the defendant. in identical circumstances the Supreme__CourL”~i«n::
case of Manohar Lal alias Manohar Singh Vs. if i
2362 held that directing of refund of advance;_-rnoi~ieiiy’tr .i
interest instead of passing a decree*of.._specific,_ p’erforr;.1ani;ev will meet _ if 2
the ends of justice. Further the Supreme Court in ‘.the- case of RV.
Joseph’s Son Mathew VS.Vl’t1_..f:Kt]I’tlVil;t1″S.SO1′}.,a13d others, AIR 1987
sc 2328 held that the Courtlvshouldf s.t;e._th’¢”t:_1tiga,t’:hh is not used as
an iiistrumentof ofipressioin ha_’\.rcjan fu”nfai_r advantage to the
plaintiff}, In ‘ theft’ci’rc4urnstanc’esl grant of decree of specific
performance”iniifavour of.thefplainti.ff in the instant case will be an
unfairfladvlantztge to”-h.i.Vrrt__apnd it will be inequitable to the defendant.
The’T1’ia.l_ COUFvfd”E1_ll€d to consider this aspect of the matter and the
reasoningf isfioritrary to the law laid down by the Apex Court and
also the material on record.
l5. For the reasons stated above, the following;
2»-_
N
/
iii.
ms it ~ »
:1′ . id
ORDER
The appeal is hereby allowed.
The impugned judgment and decree
in 0.5. No. 2692/1981 pe:.ssed_–Abdyfltiie 3:1″–g\’ded.;t.;§fi.a,1df
City Civil Judge, Baziiigaipre (iiity herczbfii’
The suit of the p1ain:t’iff ‘ decreed’ fdireeting the
defendant to Rs’.-_!L3;.j3O’C?#-.it®;§ether with interest at
12% _p;a: fr0m”t’n’e. “teeididate of payment.
3*–~§
Cg: tin
2:3 ;’€3-*
(I) T”
fr’