Sri Ramaiah vs Sri C Sreenivas on 14 September, 2009

 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 14th DAY OF SEPTEMBER.2@3fj9.._

PRESENT

THE I-ION'BLE Mr.JUsT1cE_RAQ 1'  k

AND  .  _   
THE HON'BLE Mr..;IJsT1CEH..B1LLA;?§>A"  

"REGULAR FIRST  N0.€§.O.?t'_é00ES

BETWEEN:

1.

Sri Ramaiah, V.
Since dead by LR 

Srnt.G0?iAIram:f1'é--V._ ,  "  V.
W/0 1ate~v..Ran1g1ah,_   ~
Aged '.":1l.}.)'O1Vi§," 58"};'ears.A 
Resgdent of}/I.e.ngaia_Warpef.,
Channa4patna;ATaluk"'and
Rajnanagaram District." '

. Srci N. R.1\'4/fovcv1d'a1¢?3Lg1.ifi1 dowda,

o VS"r1  .

V Agecf 30 years.

A 8/0 SI'1fRama1ah,

Agedgabvdut 28 years.

.Tsri.'R.€3o 1,
 'S10 Sn
'  -Aged about 27 years.

amalah,

    are resldents of
" Mangalwarpet,
Channapatna--571 501.

. . APPELLANTS

(Sri K.N.Vejnkatesh, Adv.)

«V



AND:

Sri C.Sreenivas,

S / 0 Late Chikkavenkategowda,
Aged about 51 years,
Mangalwarpet,

Lakshmi Venkateshwara Toys,

Banga1ore--571 50 1.    

(Sri B.T.Indushekar, Adv.)

This RFA is filed under'SeVc'tion 96.i¢t'11c'odé; ofVVCivi1 A

Procedure against the judgmjentkand 'decree dated
11.11.2005 passed in '.015-Ni).1_48[89'~--on the file of the
Addl. Civil Judge (Sr.Dr1.'),-Rarnl. Lragajram, decreeing the
suit for specific perfor1ngr1'cg_ I 1   __ 

This   hearing this day,
 V-J: deiiyeVred"ti1ye feilowing:

 """    T
The that the respondent

entered  Vagrecyrnent for sale of the suit schedule

  vide AAVEXV;-P-1'; The terms of the agreement

 the property measures 15 guntas in

 of Mangalwarpet Village, Channapatna

 _The sale consideration agreed is at Rs.36,000/--

  g"'1vtper_'.g:unta and that a sum of Rs.30,000/-- was paid as

'Vi.../dm_advance on the date of Ex.P1, the balance was

it stipulated to be paid within three months' from the date

of EXP} and to obtain the registered sale deed. The

¢6/



plaintiff also submits in the piaint that the sister--inwlaw

of the first appellant had set up rival claim 

was revenue proceeding pending before 

Commissioner. The plaintiff subr_I_1its__  the  

pendency of the revenue proe:eecii'rigs liifbefore if 

Assistant Commissioner, first" Vdefen.dAant'-»V..h--ad

received a sum of Rs.3Q__.Q00/ furtheljadivance.
It is after the terrninatioliillof  before the
Assistant  notice. The
defendants   suit is filed for

specific peir'forn;.anlc'e "

2. Theyfdiefendants"?;:lt'o'. 4, per contra, denied the

V executgionyof VtheV_V_p"agreement at EXP} and receipt of

 "«.._Alternatively, it is contended that the

plaifihtiff with the terms of Ex.Pl. Hence

. a legal noticefwas issued immediately after the expiry of

if stipulated time in EX.P1 revoking the agreement. it

.jIisZ"~stated that plaintiff was not ready and Willing to

"efppelrform his part of the contract. The suit property is a

joint family property. The first defendant has no right to

'I



unilaterally bind the other members of the family who

have equal right in the property.

3. The first defendant has filed a separate...wrfitteri if   T 

statement and has denied the 

subsequent to EX.PI, It is siibmittedtlliat 

is a joint family property  property
available to the family   Hiindue
influence and coeplfpciorl.   on a
blank paper.  papers have
been concocted for sale which is

EXP}.

4. _Thellfp.1ai11tif'f e;=:arrIined himself and two other

'TV-vri.tnessles;»_ancl marked"? documents. The first defendant

e:::.a1'r1irie.d'yhirrlsself and examined one witness and

T   marlieud on. behalf 10 documents. The trial court on

 basis o_f3~the evidence has found that the plaintiff has

 lithe agreement and also that he was ever ready

  to perform his part of the contract. The suit

  the plaintiff is decreed as prayed for. The defendants

are in appeal.

4:'



5. Learned counsel for the defendants/appellants

submits that the finding of the triai Court that {the

plaintiff was ever ready and willing to perform   

of the contract is contrary to the evidences_yo_n-,i"ecoi;d. if 

The defendants 2 to 4 immediately after_; 

time mentioned in Ex.Pl issued a 1e'gal"notice'lV'l~at

intimating the breach on the    and
also that the agreement  "admitted in the

 EXP'? is

evidence of the first defenc1antV--.
received and no3._.;re}'§11y to .' ' 
6. :""~Ifhel_  Ex.P7 has alternative

c0ntenti_ons.llEr1 thefirs't_'pl~ace, the execution of EX.Pl is

denied_:.5l'i'lt:,,yis also stated that the plaintiff has failed to

 "of consideration as stipulated within

--   three ._.r4:irVl1oriVth--s".€-'V. 'Hence, the agreement was revoked. The

-._l./'.fj;j'«plaintiff "has not given any reply to the notice. The

  would show that the plaintiff was not ready

  lwilling to perform his part of the contract.

7. The counsel for the defendants/appellants

submitted that the defendants have adduced evidence



6

to show that plaintiff deals in real estate and he had no

real intention of purchasing the property for hiniself.

The property is the only source of livelihoodw_t'ol:lg"tlie~l2,

family. The decree of specific performance *

harshly against the appellants andmthcir  

counsel; for the appellants further  that' the'

is filed just three days prior  period of 
which only shows thattijie pl'ainti;"flVllh-ad nollllbonafide
intention of purchase. If relalllly  about the

agreement, he W~0Ulg_(l_'haV:'e  tl"ie"si1ii.t.'.I1T1:uch earlier.

8. 'A the pleadings and the

evidence disclose' tha't.:'th:erelJwas dispute between the

defendant ,No.l  sister--in~law with regard to the

  respect of the land in question. An

  pending before the Assistant

V Co1nrni'ssiolne1'.":'l'he plaintiff/ respondent has stated that

after the termination of the proceedings before the

 Assistfant Commissioner he issued notice calling upon

'*.the"'defendants to execute the sale. It is also in the

 evidence of the plaintiff that subsequent to Ex.P1

further advance of Rs.30,000/- was paid to defendant

V



-....4p-

No.1. P.W--2, Rajagopal is the witness who testifies the

payment of Rs.30,000/e under Ex.P2. P.W--3 is the

scribe of Ex.Pl. in fact, in the defence, the defendants

do not seriously dispute the execution   
However, it is contended that the said 

obtained by coercion and undue  is .'

circumstances set up as ,»<ie_fence'A_Vhave ;'noVt.__bee'§n ll

established. _
9. The contention"'w~._that :_the,_V_.agreementlA stood
revoked under Ex.VP7 issued  to 4 does

not appear toh'e'ga__tena!jle.,._contention. It is admitted

that with rega1*d  the  entries, a dispute was

endinéi before ti1elAssistant Commissioner. It is uite

 that when the mutation entries in

Relcorhctyytof'  tgslvffare seriously disputed, it cannot be

 V expected thatllfllthe plaintiff should pay the money and
athelsale deed, when the dispute is pending in the
  Court. It is the settled position in law that

" a contract relates to sale of immovable property, it

is normally presumed that the time is not the essence of

contract, unless, the party setting up the plea that time



is the essence of contract, should specificaliy establish

that the time was agreed to be the essence of a con.t._racCti..__
in the instant case, there is no such evidence _
that the party specifically agreed that. time was heitizie  .4

essence of contract. The E3x.P1 

defendants. Further the 'advance of .  C

although received by de.fendant.:CCii§'o,iriinder' will
not affect the rights of any manner.
The defendants iltltoé     is of no
consequence'   party to EXP}
and   th'cVr-property. Since there
was a   before the Assistant

Commissioner, 'afte'r thefvtermination of the proceeding

 the  has issuedvthe notice seeking registration of

°s_ai'e ideed'; C ~ 

 contention that E3x.P'7 revoked the

 C:cor1't1=actVat Ex..P1 is untenabie. When it is proved that a
W'-'revefniie dispute is pending before the Court, it cannot

 said that the defendants were ready and willing to

perform this contract. It is after the termination of the

proceedings before the Assistant. Commissioner legal

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hassles for executing the contract. gets cleared. The

plaintiff, 'after the termination of proceedings before the

Assistant Commissioner in favour of defendant 

has issued legal notice and thereafter filed  

when there was no reply from the defendants.-~» if.  

In the totality of the 

above it cannot be said that gjllaiiiztiff  I'1€)VtlVI'.:t3&VV1"<;:ij'f'£':'t'i'1V:C1
willing to perform his part.' of  and that§there
was termination of Contraet_'under:'   -In that View

of the matter.  .dAeereeV'oi?'the trial Court

is soundfiand prope.r_.V.% 

;uRpea1§hsnfis§efi;:"=d"£

 .....  

TUDGE

Sd/-3
JUDGE