' .._:'V'T'1(a}'% SR1 RITESH
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IN THE HIGH COURT OF KARNATAKA AT
DATED THIS 02w DAY OF DECEMBER, 12:;i'iO'Vj-A if r.- A
PRESENTh_m_ _ A" VT
THE HON'BLE MR. JUsT1cE,AJ;-T f; A » A 1}
AND A . , ,
THE HONBLE MRS.
R.F.A.No.'j,r.15o/:g:902_
BETWEEN:
M.PADMANABHA_Re--\O-._ _
s/0 "
AGED 61 "
BHARATH FANCYCEZNTR'-E T_ *
MARKET ROADX, V
MANGALORE
D.K. =
* % APPELLANT
[By Sri: M.VIS'1317WAJIT'H f?AL A .)
V *sDM1THRA~--KUMAR
' " _s/0__LA'1=E H MUTI--IAPPA
. 'AGED
' MCF QUARTERS
K{IN;;LATHBAIL
MAAIGALDRE
A IDAKSHINA KANNADA
. _ (DEAD BY ms.)
S / O LATE SUMITHRA KUMAR
AGED ABOUT MAJOR
C/O FIRE AND SAFETY DEPARTMENT
NEW MANGALORE PORT TRUST
PANAMBOOR, BY KAMPADY
MANGALORE--7
3 (13) SMT AN USUYA
W/O LATE SUMITHRA KUMAR
V-fiflihcap'-eappeiiantlis'"'the plaintiff who is aggrieved by the
..;de;ree passed by the learned trial judge
'We notice"; that during the pendency of the appeal, the
defendant died and an application was filed to bring
Legal Representatives on record and the application was
hallowed and the Legal Representatives are widow and Sons of
_')_
H
MAJOR. C/O RITESH
FIRE AND SAFETY DEPARTMENT
NEW MANGALORE PORT TRUST
PANAMBOOR, BY KAMPADY
MANGALORE7 -- V I _ :
RE.SI%e«ND.EN_Ts ' "
{By Sri: U.P.l\/IULIYA 3: SR1 SAN'fllQSH}\'-KGTARIQADXZ, Eda VA
R1 {a & 'DD
THIS RFA IS FILEE._._"U/S;l_lA Qea/I7ve,lAo.I41 R 1 OF (:90
AGAINST THE JUDGMENT-':_A'ND; DT. 29.6.02
PASSED IN o.S.Iqo;.234;;/'éS:"_c~§N EII;3E" OF THE PRL.
CIVIL JUDGE. i{SE§jD_N);T 'jMA§IGALoRE';:"'ijISMISSII\:G THE
SUIT FOR
This _for Hearing this day,
AJIT J. GIJNJAL J, 'deliveI<e:d~th'e following:
'%QJUDoMENT
disrnislsing Suit for enforcement of an agreement to sell.
the original defendant.
fl/
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10." Insofar as the first point is concerned, we are 3 ofdpthe
Vi€W that the evidence on record would clearly disclose _
the plaintiff was ready and willing to perforrn.~h--is.:l'
contract. It is to be noted that alzbspecific}
plaint is to the following effect,'
"Though the plaintyf ii.asll"been_ ictlwctys
ready and willing" to perforrn; ._ partof the
contract by paying 'thee co'nsi'de»ration, the
defendant has failed. to Convey: little to the
schedule ; in f ctuofttrlojf rthé iplatnttf f. "
11. lndleedftirne again it isllstated that the plaintiff is
requiredltol prove: to determine whether the
plaintiff Was""~ready_'VanAd_fwilling to perform his part of the
It.._is tolbeiiiiiioticed that the agreement to sell is
on the even date, the plaintiff has paid a
sliiniof -- and thereafter on Various dates he has
lgpaid an additional sum of Rs.40,000/--. Thus, we are of the
A "that the plaintiff was ready and willing to perform his
' part of the contract. We also notice that during the course of
evidence, the plaintiff has stated that he is a businessman
and he is an income tax assessee. The plaintiff has deposed
in his evidence to the following effect:
"I am having a departmental store and a
hotel at Hampankatta. The business that I have /
l-'£V.l"..TI'l1u's~,t'having re--assessed the evidence on record, we
'V judged'on""thext1u.estion of readiness and willingness is liable
'to be» interfered.
"IST. lnsofar as the question of limitation is concerned,
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11.. Insofar as the non-consideration of Section _V
of the Specific Relief Act. where the gran.ting_
decree for speciJ'ic performance is a d1;screi'io'naru: "
relief, is concerned, undoubtedly», even.
that the agreement is provedjit
that the Court is boundto _-v_re'iief. it it
merely because it is tail;-mi to" do V
however, that such grantinaor decliningitoll grant
such relief cannotlaeuarbitrarigi'-hutliw=§ll haulelltol be
sound and reasonable' judicial
principles. '*The {2} of
Section :20 elnu.me:_ra.te" la'.-3~*'to in what
performance
houieuer, explanation {I}
ta*~Section give an insight into the
fact as to, L'vhatlA'circtarrLstances will not come in
Athe way wthe in granting a decree for
._ pecific peiforrnance. "
afebrrihé the finding recorded by the learned trial
obviously, the learned trial judge was clear in error i_n
importing Section 18 of the Limitation Act. A perusal of
provision would show that it is referable only to the revival o
av'
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date within a period of iimitation. Section 18 of
would speak about effect of acknowledgement it _
would speak about where, before the «other
rescribed eriod for a suit or a licat.ion j?in3res.'ect'of,anf*Ja if
P PP ._ .. p P _ __ .._
property or right, an acknowle»dgement,of'liabilitir'ppinvrespect.
of such property or right has signed by
the party against whom' islclairned, or
by any person through or liability,
a fresh period from the time
when the iivas signed. Obviously
Sectiona:l'8"Vivs_' relevant is Article 54 of
the Limitatio'n'Act,'A:--lr'ide'ed:"t.he suit is required to be filed
within. three fromfthehdate fixed for performance of the
't if no date is fixed and the plaintiff has
noticed 'ipejrformance is refused. In the case on hand,
welnotice. the plaintiff had issued a legal notice on
and thereafter the suit is filed immediately.
"lr1d.eed_« the cause of action or the period commenced from
138.1994. Hence, we are of the View that the suit is well
uifwithin time. The Apex Court in the case of Panchanan
Dhara and others V/s. Monmatha Nath Maity (Dead)
through L.Rs. and another (2006) 5 SCC 340] with
'A {sic :iir_ne.__for performance of a} contract is not
st of 'fact has been arrived at, that the time for
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reference to Article 54 of the Limitation Act has obsrerved
thus:
".22. A bare perusal of Article 54 of the t.im,£ie.:;'ee[ . A
Act would show that the of
begins to run from the date ontihell'COfliTac.t "
was to be specifically petforrned... In of
Article 54 of the Limitation' Act," 'period
prescribed therein shall the datefixed
for the performance" A.y«'.fi'ze contract
is to be pe.rfornied...by:*wboth pvarties to the
agreement.' respondent was
to offer t’i_ie1″‘batan’Q€…, emo-:m–r._’ to’ the company,
which itswshowing that it had
a:’perfectlVlti’t£e~oi)erthe’ property. We have noticed
hereinbefore.V_.th%it– btheicourts below arrived at a
finding)?’Qffact’v–_tha_t the period of performance of
»?the “agreem’e*nt__has been extended. Extension of
be inferred from written document.
couid be implied also. The conduct of the
l.4″‘parties’ this behalf is relevant. Once a finding
. _ ‘performance of the said contract had been
extended by the parties, the time to file a suit
shall be deemed to start running only when the
plaintiff had notice that performance had been
refused performance of the said contract was
refused by the company only on 21.8.1985. The
suit wasfiled soon thereafter.
decree”for’specific_ petfonnance is a discretionary
..4.%f,;-éiief. is co’ncer_ned, undoubtedly, even assuming
theggreement is proved, it is not necessary
is bound to grant such a relief,
‘j__b’ecause it is lawful to do so. But
howyevetr, that such granting or declining to grant
r such relief cannot be arbitrary but will have to be
‘sound and reasonable and guided by judicial
fact as to, what circumstances will not come in
/
. ‘(
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the plaintiff was not ready and not willing ;v:QTb_
perform his part of the contract. What is requ.irecl ~
to be looked into is the totality
circumstances, where the plaintiff was _
willing to perform his part of the
the specific pleadings are there,’.i_t cannot beflsaid it
that the plaintrjf was no.tTi=eadyA.’an’dv
perform his part of the contract. Itis to
that pursuant to theplaintiff
put in possession. That’ is i-thefindingrecorded by
both the Cc«urts_ below.» ihe’~circumstances, I am
of the .–;r’iew5jthatv the plairitiff ready and
willing to his”par_t’of contract.
insofar*”‘q~;:=. ‘non’–vc_or*rs’ideration of Section 20
of th,e”Specf.ic where the granting of
principles. The provision of sub–section {2} of
Section 20 would enumerate as to in what
circumstances a decree for specific performance
would be refused. But however, explanation (I)
to Section 20 would also give an insight into the
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the way of the court in granting a decree
specific performance.”
17. In the case of Mademsetty; mSatyanarayana.VV]§f
G.Yelloji Rao 82, others (AIR 1965 4_i)5} m:hgrre1*efe=fi¢e 9′
to Section 22, the Apex Court has:o’bserved*~ it 9
“Under S.22 of the~._’SpeCific brevliefxvof
specific perjorntanbce * _but not
arbitrary; discretione-.musi.A he efiteircised in
accordance “with s’our;.d= «fine: A reasonable judicial
‘pr_ot’j_idingV.for a guide to
Courts to way or other are
only are not intended to be
exhaus.iioe.. _’ of the Limitation Act
prescribes .a years from the date fixed
_thereunderforvspecific performance of a contract,
fo”iloL”os tharfiiéié delay without more extending
V =iip’io:_bthe~ sa:’dperiod cannot possibly be a reason
“‘..___forhCIVto exercise its discretion against giving
Ea relief specific performance.
in . _ “I33 the case on hand, We notice that the sale agreement
dated 19.1989 and payments are made over a period of
uijtime till 1993 and the suit was filed in the year 1995. We
are of the View that, notwithstanding the fact that the
plaintiff was ready and willing to perform his part of the
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contract and the suit is well within time, we are not inc1in
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to grant a decree for specific performance having regardgto
the decisions referred to above.
1.8. Insofar as the alternate request .9
counsel appearing for the pllaintiff’ffor”*refundH
indeed, the plaintiff is entitled for saidllielieffi Once there
is a finding that the agreeme.nt and plaintiff
was ready and willing to ‘p.erfo’rm-.h1:s partvoflpthse contract and
the suit is lto””grant the relief of
specific perfoijrrialljice, plaintiff is entitled for
refund of the _ _ ‘
19. We notice tliattlie alnfr-.1ri’t was paid between 1.9.1989
and 27.7. defendant and thereafter his
legal had henefit of this amount for over a period of
:l?iO’yearss. are of the View that the plaintiff is also entitled
forVa–._lpegitirnate~interest on the said amount. Hence, having
V _ saidluso, pass the following order:
it Thefappeal is allowed. The judgment and decree
‘passed by the learned trial judge is set aside. The plaintiffs
is decreed in part. The defendant is liable to refund a
” sum of Rs.90,000/– with interest at the rate of 8% from the
date of filing of the suit till realisation. The plaintiff is also
:-
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entitled for proportionate cost in this court as well
trial court. The appeal stands disposed of aecording1_y.:..
551/ or
S*