VENKATAMMA Vs. R. SUDHAKAR

JUDGEMENT

(1.) The captioned appeal is filed by the appellants/defendants challenging the judgment and decree dated 11.08.2011 passed in O.S.No.2865/2006 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru.

(2.) The facts leading to the case are as under: The respondent/plaintiff filed a suit for recovery seeking recovery of Rs.15,00,000/- with interest at the rate of 2% per annum from the date of the suit till the date of realization. The case of the respondent/plaintiff before the Court below is that the present appellants/defendants are the Class-I heirs of Late Chowdappa. The appellants/defendants offered to sell the suit land bearing Sy.No.27/2A of Kommagatta Village, Kengeri Hobli, Bengaluru South Taluk totally measuring 1 acre 24 guntas out of 2 acres 20 guntas. Accordingly, the appellants/defendants executed an agreement of sale and the sale consideration was fixed at Rs.30,00,000/-. The respondent/plaintiff has further specifically pleaded in the plaint that appellants/defendants represented to the respondent/plaintiff that the schedule property is free from acquisition and they have a marketable title over the schedule property. In this context, the respondent/plaintiff proceeded to accept the offer and agreed to purchase the schedule property and accordingly, an agreement of sale came to be executed on 02.01.2006 and pursuant to execution of agreement of sale, the appellants/defendants received a total sum of Rs.10,00,000/- as advance towards sale consideration. The respondent/plaintiff further specifically averred in the plaint that a sum of Rs.5,00,000/- was paid by way of cheque bearing No.498141 dated 02.01.2006 and Rs.5,00,000/- was paid by way of cash. The respondent/plaintiff further contended that it was agreed by the parties that sale transaction would be completed within a period of three months.

(3.) Learned counsel appearing for the appellants/defendants would vehemently argue and contend before this Court that respondent/plaintiff having not shown his readiness and willingness to perform his part of contract by paying balance sale consideration of Rs.20,00,000/- and in absence of seeking relief of specific performance of contract cannot maintain the present suit for recovery of earnest money and damages and in this background, the learned counsel for the appellants would vehemently argue and contend that the finding on issue No.3 that respondent/plaintiff has established that he has cause of action suffers from serious infirmity and as such, warrants interference by this Court. Learned counsel would further argue and contend before this Court that respondent/plaintiff was not eligible to buy an agricultural land and having realized the same has come up with this suit for recovery of advance amount and hence, would submit to this Court that it is the respondent/plaintiff who has committed breach of the agreement and as such, is not entitled for recovery of money paid under the agreement. Insofar as payment under the agreement of sale vide Ex.P-1 is concerned, learned counsel for the appellants would submit before this Court that there is absolutely no clinching evidence to demonstrate that respondent/plaintiff has paid Rs.5,00,000/- in cash apart from payment of Rs.5,00,000/- through cheque. The finding of the Trial Court that payment in cash to the tune of Rs.5,00,000/- is also proved by the respondent/plaintiff is in absence of clinching evidence to that effect. He would submit to this Court that said finding is arrived at in absence of clinching evidence and hence, would submit to this Court that the finding recorded by the Court below on issue No.1 needs interference. Learned counsel for the appellants/ defendants would vehemently argue and contend before us that the appellants are poor agriculturist and illiterate and the respondent/plaintiff taking undue advantage has inserted recitals indicating payment of Rs.5,00,000/- in cash and this material aspect is not dealt by the Trial Court.