S. PRASANNA Vs. KAMALA AND ORS.

JUDGEMENT

(1.) THE appeal is filed by the defendant in a suit for specific performance. It was the case of the plaintiff that the defendant -appellant herein was the owner in possession of two vacant house sites bearing old Petechamanahalli V.P. Khatha No. 25, Site Nos. 4 and 5, Now Municipal Khatha Nos. 1723 and 1724, Assessment Nos. 410/4 and 410/5, each site measuring East to West 40 feet and North to South 70 feet, totally measuring 5,600 square feet situated at Petechamanahalli, Kolar more fully described in the schedule to the plaint and it was agreed to be sold by the defendant in favour of the plaintiff for a consideration of Rs. 12,00,000/ - under an agreement dated 29.11.2006. Under the agreement, an advance amount of Rs. 2,50,000/ - was paid and the balance amount of Rs. 9,50,000/ - was to be paid within three months from the date of the agreement and the sale deed was to be executed and registered in favour of the plaintiff It is further alleged that the defendant pleaded urgent necessity of funds and he had received a further sum of Rs. 50,000/ - from the plaintiff on 18.12.2006 in the presence of witnesses in order to secure clearance, by repaying the loan amount obtained from M/s. Corporation Bank, where the defendant is said to have obtained a loan on the security of the documents pertaining to the suit schedule property and had endorsed such receipt by an endorsement dated 18.12.2006, on the agreement. It was the claim of the plaintiff that she was ever ready and willing to perform the contract, but since the defendant started evading the request for execution of the sale deed, the plaintiff was constrained to issue a legal notice dated 24.02.2007 calling upon the defendant to perform his part of the contract. Since the defendant failed to oblige, the suit came to be filed with the prayer for specific performance of the contract dated 29.11.2006 on receiving the balance amount of sale price.

(2.) THE defendant had entered appearance on receipt of suit summons and had denied the plaint averments. Though it was admitted that he was indeed the owner of the suit properties, the other averments as to the terms of the contract was denied. On the other hand, it was pleaded that the defendant had acquired the property under a registered sale deed dated 20.04.1994 and he was in possession of the same. He had constructed a small shed to store household articles and other articles relating to his business and the title deeds to the property were deposited with the Corporation Bank to raise a loan and the loan was yet to be cleared. Since the property was thus encumbered, the question of entering into any agreement with the plaintiff did not arise and it is a scheme of the plaintiff to lay claim illegally to the suit property that the agreement is set up and the suit has been filed. The defendant further claimed that he had already filed a suit against the plaintiff in O.S. No. 135/2007 on the file of the Civil Judge (Jr.Dn), Kolar, seeking the relief of injunction and there was indeed an order of temporary injunction restraining the plaintiff from interfering with the property and that suit was pending as on the date of the present suit. On the basis of these pleadings, the court below had framed the following issues:

(3.) THE learned Senior Advocate Shri Vivek Reddy appearing for the counsel for the appellant would contend that the following dates would be relevant in considering a primary contention that in terms of Section 20, the plaintiff is not entitled to the relief as prayed for. The subsequent conduct of the plaintiff would certainly require this Court to re -consider the relief granted in favour of the plaintiff It is pointed out that the agreement was dated 29.11.2006 and the suit was filed as on 15.03.2007 and the judgment was rendered as on 21.01.2009. There is no indication of the plaintiff having deposited any money before the Trial Court in the first instance. In any event, under the judgment and decree, the Trial Court had granted three months' time to the plaintiff, to deposit the balance amount of the sale consideration. Accordingly, the plaintiff was required to tender the amount or deposit the amount on or before 21.04.2009. The appeal in the present case was filed after expiry of the three months' period as on 14.05.2009. There were no interim orders passed in the appeal and though the matter was pending before the court for over 1 1/2 years, it is only as on 6.8.2010 after appearance of the respondent that this Court had granted an order of stay dated 6.8.2010 However, it is to be pointed out that during the time lapse of more than one year and six months from the date of judgment, there was no attempt on the part of the plaintiff either to deposit the amount, tender the amount or to take out execution of the judgment and decree. The total amount paid to the defendant is in a sum of Rs. 3,50,000/ - prior to the filing of the suit. It is also pointed out that as already stated both by the plaintiff as well as the defendant, the property was offered as security to a Bank to raise a loan. That loan was outstanding even as on the date of judgment and it is only in the year 2012 that the appellant has managed to clear the loan by repaying the loan amount in a total sum of Rs. 7,92,000/ -. Notwithstanding these developments, the plaintiff has remained blissfully complacent in not even appearing before this Court as seen from the past several dates of hearing, though the appellant has repeatedly appeared before the court and argued the matter and it was on each occasion adjourned awaiting appearance of the learned counsel for the respondent who has diligently failed to appear and even today when the matter is taken up and heard, there is no representation on behalf of the plaintiff -respondent. This the learned Senior Advocate would point out would further compound the conduct of the plaintiff in not demonstrating readiness and willingness to complete the sale transaction. It is further pointed out that since the Trial Court had granted three months' time, the time so granted had elapsed even before filing of the present appeal, which required the plaintiff to have sought extension of time, even if he wanted to execute the decree, if this appeal is to be dismissed. The plaintiff not having taken steps to perform his part of the contract even after a judgment and decree, would clearly demonstrate that the plaintiff was never willing and ready, even if the contract was accepted as having been genuinely executed by the defendant and he would submit that though the defendant had taken a stand that the agreement itself was not executed, but since the court below has rendered a finding that it was proved and the amount received under the agreement also having been proved, the defendant -appellant is ready and willing to repay the said amount on such terms as this Court may impose and would draw attention to the tenor of Section 20 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act', for brevity) and also the decisions of the Supreme Court in this regard, in interpreting Section 20 of the Act.