-1-
IN ms HIGH comm' OF KARNATAKA AT 3Ars:é;;AL£)::2uE« u
DATED THIS THE 13?" DAY OF 3 A T
PRESENTQ
THE HONBLE M2;35i35TIcfE~
THE HOMBLE M:2Jusi':cE:%A;§xz.v:?.:rs:%L)e~om.A eowm
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Bangafiprgifiéfl 65f3--. _____ .. Appallant
»{ _S1'i, Advocate}
_ 'Llfiixiyappa
V .' Sf 23 ,{)as-égcawda
' _ étbeut 68 years
' T.R;ar:~:.1224, aré Block
% __ '*17i';* 'C3' Main, 6"' Crass
M.¥l}16Sh'Wa1'a Biock
'QBSK HI Stage
< " Bangalore. .. Respondent
( By Sm’£.K..i{.’i’hayamma, Advocate for
A.N.Gaflgae1haraiaft1 Aeseciates }
This REA is flied under Section 96(1) of CPR, agaiii-et’$he.p
judgment and decree dated 8.4.2399 passed 3
0.3.1203?-¢i~8O/2004 on the file of t1_;1e…V_ ackilCit§,5_’§:iiii1V’Judge;’ » _
Bangaiore, dismissing the suit for :spee&,perf0n1_1e11e.e “of 331:: *
agreement.
This REA is c0miJ:1g”:o:e_V fort’-afi1;r1Viss*$i1A»{
NXKUMAR, J., delivered the fofldixfjiig : ._ _
This is a41ip!;;intiff’s””a;ipeai,.’:’i.a§ein§ti’»’the judgment and
decree:v:passeeV’Ti3y declining to grant a decree for
specific . purpose of convenience, the
are refereed’ to; as they are referred to in the oiiginai
isi2ii.e
~. matter of the suit is the property bearing
Ne.’i’224,.«Vsi.teated at Muneswara Block, Banashankari :11 Stage,
Bahgaiefe, measuring East-west 45 ft. arie Nm:h-South 39 ft.
eenéisizing of five shops and a residential premises. The
Wdefendant is the owner of the aforesaid property (in shortx
.. 5 ,.
Thereafter, he has filed the suit: for specific pefiormanee’»ef the
agreementofsaie.
3. The defendant, after appearan:e.§..,fijec1′
written statement contwing the :4′
the execution of the agreernent «efréseie
transaction being one of sale scheduted
praperty and aiso deniesztyithe the V documents.
His specific centeefion isi’tiiat;”there’v§e’s ‘ea’ idem to enforce
1rtfréiVvsaieeéreement. In the aitemative,
it was péeeded thea’t;V’;gxr;e’e._:’:;f«there is one such agreement, the
recite? eh_arve.Vthet,”the iepeeific perfermance is at the instance of
aneithe piaintiff wants to get back his meney
vAV.”::’T:he defendant further contended wet, it is in
M i’ .V con’n’ecti-en seitiw the Sean transacfien, his signatures were taken
H K ee;;me”‘i.3ien§< stamp papers and the plaintiff has misused those
ibigaiekj stamp papers and created an agreement of sate and
" Hreceiptzs and on the basis of the same, he has put forth his cfaim
The defendant admitted the receipt of Rs.2,t3G,O0Oj-,
i
Rs.1,0G,0OO/-, R.75,00G/- by way of cheques. According-re the
defendant, he has received in ali Rs.3,75,000/-
were executed in raped of the said ioan
submits that he is ready to refund He
issuance of iegai nefice and conteeded"thet;. it _
repiied so. He further V"he:':ii.-xés an
equitabie mortgage by tjtje of the
scheduled property Bank Ltd., on
25.3.2004 and ai': and he is ready
and wiiiing ta' received from the piaintiff.
Qn nieadings, the 'aria: Court framed six
V" read as under :
is piainiiff prove that me defendant
an agreement of safe on 4.3.2003
is : egfeeing to seii me schedule property to him for a
V’ -total sale consideration of Rs.20,SS,€300/-?
V
. _ 7 _
2. Does the plaintiff preve that he paid an amount
of Rs.8,S5,000/- to the defendant on different.
data as averted in the plant? ”
3. Does the piaintiff preve that he
always ready and wining to-perfcrn_1–‘_his_.
the centract?
4. Does the defendant’bpfdate th;3t__ the
obtained his s:ghah3rese_o?§’»v§3§an§:
in connection 3 _ lean
he is eefided for
Xdeatree be performance?
5. what <;:dgrhoth:Je::=;#hee?
‘ =5. the ciaim, the pmintiff got examined
hifieeifdas he has aise examined cane Nathulal as PW-
‘2, whe with rmard to payment of the armunt by the
4 to the defendant. Maintiff has prcaducw five decumens,
. are marked as Exs.P-1 ta P-5. On behalf of the
–. Lddefendant, he got examined himseif as Dw–}. He has aise
\3/h
_ g –
exarnineo one D.G.Anand as ow-2 and produced owree
documents, which are marked as Exs.D~1 to D-3. fihe ‘aria!
Court, on appreciaaon of the aforesaid orai
evidence on record, heid that, one piainfiff hee,’:feetao$.iShe«:i’
execution of the agreement of it
agreeing to sell the scheduied pp;-¢Pe,.t’y= the a,
sale consideration of that, the
piainhfi’ has estabiished on different
dates as averred the that the piainfiff
has faiied to and wiiiingness to perform
his part: ofthe of the agreement. It also heici
5the__:tiefencia£*sthasfaiied to estabiish that the piainafi has
V”–,}’o®ivned._:_his*§gnatures on hiank stamp papers in connection
véiththe ioa’n’1.transacfion. It deciined to grant decree for specific
v”‘~…4″v.,oerformanse, out granted a decree to refund a sum of
i teeter-«:s.a;i%as,ooo/W receivw by the defendant with interest at 9% gm.
r fpaggrievw by the said judgment and decree passed by the trial
r Court, the piairstiff has preferred this appeaf.
.. 9 ..
6. Sri V.B.Shivakumar,. Seemed coensei appearisfifor the
appeilant, zmaiiing the correctness of the gudgrrzerit iéietzree
of the trial Court: contended that, when the teei,.A’_:Ceii:rt:.heldi
the agreement of sale is estabiishee,
under the agreement is a2so’_eetebiiehe’d, it
serious errer in holding that, ready and
willing to perform his’ ;’3e’r’t.oi–*V. The evidence on
record cieariy snows thet.”ti:e¥ requisite be¥ance
safe ifteetieiiiend wining to pay and
therefore,–. ‘tee judgment and decree of the
triai Couit._requii?e$ ” interfered with and pfeintifi’ to be
V. ‘_ gtaeted_e decree’*1fer__$g)ecific performance.
?’;féPer»;ontre, Smtimayamma, Ieamed counsel appearing
Afei+’_t33e”n$g§oritier:t-»defendant submitted that, the ersti re mate:-iai
on”recorti’ -cieariy establish that the pieinefi’ is a money iender.
ifiefeedent eppreacheo him for the sake ef obminieg Keen. The
agtiotm are paid by way of cheque. The signeterm of the
‘i/
-1g,
defendant were taken on blank stamp papers, which has been
made use as an agreement of sale and acknovvledgertiiié-tfit..’of
further amount. ‘ihe material on record cieariy _
the plaintiff did not perform his part u
balance of sale consideration as contendedtry
as weli as in his evidence. The tria*i.._§:oiirt- the *
entire evidence on recorciand of rnateziai on
record, has reoorded the vfindieg”thakt:€ohe–de’fendant is riot ready
and willing to 1his:’part’c~§ eihich in the light
of the iegal evide’ni:e«..onirecoid,_ do.’ not cal! for interference.
8. _ Frorn”~th’e aft>res:aid*”rnatenal and the submissions made
éthe;°iearned..Aadxiocaim appearing on behalf of both parties,
the’ poi’iit::that for considerafion is, as under “whether the
finding 0fv_’3£i’ie_>i*i31AaV.l Court that plaintiff was not ready and wiiiing
perforrniriis part of contract is supported by the iegai evidence
i.di3._’re:drd or new \«\i/
– 1; –
9. The material on record clearly estabiisha that Ex.P-1 –
an Agreement of Saie came to he entered into betweehj the
parties on 4.3.2003. The recitals in the said deed
sum of Rs.3,00,DO0/- was paid by way ef cash K
by way of cheque. Surther there
having received a sum bf Rs.1,0_a€),3€i{3j-r’hi,r
Rs.:,oo,ooo;- way of cheque at defe’hda’nt.’ the ht
plaintiff has paid a sum by _kwatI”AAo?VV cash and
Rs.75,DO0/- by way of cheque. case of the
defendaht that ehiy Rs.3,75,0GO/- as a loan to
be repaid hirira the specific case of the piaintiff
. that paym*ent_s..are made in accordance with the terms
“i,oi=..:he.agreeir:entef saie. As the ma; Court has recorded a
that the agreement of sate hears the
“,.,_.4..”VsignatureV:”cif the defendant and as the defendant has faiied to
his signatures are obtained an biank stamp papers
. may have been misused, the said finding being based on
j”i3§_ia¥ evidence, we find no reason to interfere with the same. \\£’//t
_ 13 –
10. It is a setizied phncipie that, in a suit for specific
performance, the piaintiff who comes to the Court stgeiielttasrer
and prove his readinas and willingness to perfor:’_othe’A
terms of the contract which are ”
Therefore, to succeed in a suit for
first piece, piaintiff should aver is .readyijentiv”\ir%iii’hg
perform his part of the centract.A..i’The_reefter, the ‘piainfiff has to
adduce evidence to proireif are wiilingness to
perform his part.’ conttect the piaint shows
that, there is’ the effect that he is ready and
willing te peiferm his coneact. But, in the course of
, his eyfijevnce, he he-.2 produced any document te show that at
V”1.,tiie”reievaht of time, the plaintiff was ready with the
balance seie.V–V’cnfisi’derefion of Rs.12,m,000i- to be paid to the
‘Vqefenciehvttovhave the saie dmi executed in his favour. The
4 for compietion of the contract is four months.
” ,..flIt well settied mat, re:-idioms and wiilingrms shouid be there
from the date of agreement tiii the date of suit. Though the
\.i/
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piainfiff is net expected to actuaiiy tender the amount to the
defendant or to deposit in Court the balance sale censieeretion
which he has te tender, but he has to estabiish
the avaiiabmty of the funds and his readinassarsgsiigsrsiiinegnggg
pay the agreed consideration arriourii:¢.V
the examinatien-in-chief, he hae ahncii L’
willing to perferm his pazji: of’v.t.’*.ef”j¢ontafacti iii’-éoweiizer, in the
cross-examination when V”1′::i3;?’iether he is ready
with the tzaianrzeeaeée answer which he has
givenisias ‘ V
” ” have say whether I had the
_amoerii~ _’pay’abie. V”*’iies.»\:ards balance of saie
.f “‘«:cq:jsid_eratiiir’i.?%. ….. .. »
‘A 11’A.a..%N;i”1d_ecumentary evidence is produced on recerd to
riéiaxfaiiabitiity of the funds 119 pay the baiance of sale
_q co::s;ideré§i;§.o?i'”.Vby the plaintiff, on the dat of the agreement: or at
V’ ‘2..jjthe’expir§r of feur months pemd agreed upon for mmpiefing the
Seveldpment Autmrity has executed i..ease~cem-Sale Agreement
on 29.9.1984. Therefore, the plaintiff ought to have
aformaid balance sale consideration after
obtained the sale deed and a copy of”‘wh«ich
due plaintifi’. No explanation is_ a
balance sale coreideretjon and V
to show that the the”‘belance sale
consideration. It is teal Coort on
a proper evidence on
record, ‘held failed to prove his readinms
and willinghees to part of the contract. Therefore, it
has d_ecli.hAéd~i:o…grant a decree for specific performance
endfnwei any illegality in the judgment and decree
byr:a..eeei Court. The 3133 Court has rightly directed the
V.defenderrfi’:.to refund a sum of Rs.8,.55,mG/- with interest at 9%
dismissed.
fiance, there is no me-it in mas appeal and the same is
1%
In view 9f the dismissai cf
Mis<:.Cvl.No.8122/2009 mad for temporary..i4r}ju:§éi%§f¥:V.~€ig:§éS .'§f2;)t"V, &
survive for consideration and accordi'n.gIy _'_Tti*ie is "
dismissed.