Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3415 of 2019
(arising out of S.L.P. (C) No. 35553 OF 2016)
DR. MANOHAR GANAPATHI RAVANKAR ........APPELLANT
Versus
H. GURUNANDA RAIKAR ........RESPONDENT
WITH
CIVIL APPEAL NO. 3416 of 2019
(arising out of S.L.P.(C) No. 3062 OF 2017)
H. GURUNANDA RAIKAR ........APPELLANT
Versus
DR. MANOHAR GANAPATHI RAVANKAR ........RESPONDANT
J U D G M E N T
Hemant Gupta, J.
Civil Appeal No. 3415 of 2019 is by the Plaintiff aggrieved
against the judgment and order dated 17.02.2016 passed by the High
Signature Not Verified
Court of Karnataka at Bengaluru declining relief for specific
Digitally signed by
MANISH SETHI
Date: 2019.04.15
19:22:50 IST
Reason:
performance of the agreement of sale of the schedule property but
granting a decree for recovery of Rs. 7,01,000/- along with interest at
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the rate of 12 per cent per annum from the date of payment till date
of realisation. Civil Appeal No. 3416 of 2019 is by the Defendant
aggrieved against the decree for payment of Rs. 6,75,000/- by the
same judgment.
2. Hereinafter for facility of reference, the parties will be described
as per their status before the trial court. The Defendant is the owner
of non-agricultural immovable property situated in Kadri Village, Kadri
Ward, Mangalore Taluk, within the Mangalore City Corporation and
comprised in Rs. No. 72-11, bearing T.S. No. 1578-11G measuring
7.25 cents or 0.0725 acre with residential buildings bearing Door No.
3-3-2429, 3-30-2430, shop premises bearing Door No. 3-30-2431,
which is more particularly described in the schedule to the plaint and
hereinafter referred to as “the schedule property”.
3. The case of the Plaintiff is that on 21.07.2006, the Defendant
entered into a written agreement with him for sale of the schedule
property for a total sale consideration of Rs. 30,00,000/-. A sum of Rs.
26,000/- was paid as earnest money. At the time of agreement, the
Defendant has a civil dispute (OS No. 196/2005) pending against him
filed by his brother. The condition in the agreement was that the
Defendant will settle the pending dispute within a period of six
months. But if the dispute is not resolved within six months, the time
for the execution of the sale deed shall be extended by such time as
mutually to be agreed upon by the parties. Some of the terms of the
agreement read as under:
2
nd
“1. That the 2 PARTY PURCHASER has agreed to
pay a total sale consideration of Rs.30, 00, 000/-
(Rupees Thirty Lakhs Only) towards the agreed
st
sale of schedule property by the 1 PARTY VENDOR
nd
to the 2 PARTY PURCHASER and out of above sale
nd
consideration, the 2 PARTY PURCHASER has paid
a sum of Rs. 26, 000/- (Rupees Twenty-Six
st
Thousand Only) to the 1 PARTY VENDOR by
means of cheque dated 21.07-2006 bearing No.
918333 drawn on Syndicate Bank, Fr. Muller’s
Charitable Institution Branch, Mangalore, by way of
advance sale consideration, the receipt of which
st
the 1 PARTY VENDOR hereby acknowledges. The
balance sale consideration of Rs. 29,74,000/-
(Rupees Twenty Nine Lakhs Seventy Four
Thousand only) is agreed to be paid at the time of
execution and registration of the intended Sale
Deed.
*
st
5. The 1 PARTY VENDOR shall execute the Sale
Deed within 6 months (Six Months) from the date
of execution of this Agreement, which however can
be altered only by mutual consent in writing and
signed by both the parties.
st
6. In case, the 1 PARTY VENDOR fails to perform
his part of this agreement, he shall refund the
entire advance sale consideration of Rs. 26,000/-
(Rupees Twenty Six Thousand Only) along with
interest at 12% per annum and in addition to that
he shall also pay a further sum of Rs. 5,000/-
(Rupees Five Thousand Only) by way of pre-
estimated liquidated damages and accordingly in
nd
such event, the 2 PARTY PURCHASER shall be
st
entitled to recover the said amounts from the 1
PARTY VENDOR, including the interest and cost if
any incurred, for recovery of the same.”
4. The Plaintiff served a notice on 25.12.2006 raising a grievance
that the Defendant has not informed him about the position of the
civil suit but as per his information, dispute in the family stands
settled. It was stated in the notice that he is ready with balance sale
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consideration of Rs. 29,74,000/-. The relevant extract from the notice
is as under:
“I have kept the balance sale consideration Rs.29,
74, 000/- ready and you can execute the sale deed
at any time and to receive the balance sale
consideration without seeking any further time and
to hand over the actual physical possession. I
request you to go through the accompanying draft
sale deed which is sent for approval and request
you to furnish upto date encumbrance certificate,
taxes paid receipt, electricity and water
consumption bill paid receipts so as to execute the
sale deed within this week i.e. on or before
31.12.2006.”
5. The Plaintiff later filed a suit OS No. 350/2007 on or about
10.12.2007 praying for the relief of specific performance of the
agreement dated 21.07.2006. In the plaint, the Plaintiff pleaded that
Defendant has demanded and received a further sum of Rs.
6,75,000/-. However, no date of such payment of said amount was
disclosed in the plaint.
6. The Plaintiff filed an affidavit of Chief Examination on
21.01.2010, but again there is no mention of payment of Rs.
6,75,000/-. However, on 18.12.2010 another affidavit was filed by
way of an Additional Chief Examination to the effect that sum of Rs.
6,75,000/- was paid but without disclosing any date of payment. It
may be noted at this stage that in the agreement, the parties have
agreed to extend the time by mutual consent but there is no
endorsement either on the agreement in question or by way of
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written note separately except, the assertion by the Plaintiff in the
plaint that he has paid sum of Rs. 6,75,000/-
7. The learned trial court on 17.09.2012 decreed the suit granting
decree of the specific performance of agreement of sale dated
21.07.2006 for a consideration of Rs. 30,00,000/-, and to get
Registered Sale Deed executed by paying the balance sale
consideration amount of Rs. 29,74,000/-. It is the Defendant who
preferred appeal against the decree granted in which, the High Court
has passed an order of refund of Rs. 7,01,000/- while declining the
relief of specific performance of the agreement.
8. The High Court inter alia held that the Plaintiff has failed to
prove that he was ready and willing to perform his part of the
agreement. The High Court further held that there is nothing on
record to show that as to when and how payment of Rs. 6,75,000/-
was made out of balance sale consideration. The High Court then
observed that it may be a loan transaction as the original title deeds
were handed over to the Plaintiff. Thus, the Court granted a decree for
recovery of Rs. 7,01,000/- for the reason that another sum of Rs.
6,75,000/- must have been paid at the time when the original title
deed was handed over to the Plaintiff.
9. We find that the High Court erred in law in granting a decree for
payment of Rs. 7,01 000/- more so when the High Court has returned
a finding that the Plaintiff was not ready and willing to execute the
contract merely on the basis that original title deeds might have been
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handed over to the Plaintiff when sum of Rs. 6,75,000/- is said to have
been paid by the Plaintiff.
10. Though in the additional affidavit of Additional Chief
Examination, the Plaintiff asserted that original title deeds were
handed over when he paid a sum of Rs. 6,75,000/- but in the plaint,
there is no such averment. In fact, the Plaintiff has filed earlier suit
for injunction which was not pursued to file the suit for specific
performance. The Plaintiff has averred to the following effect in the
present suit for specific performance:
“ 2. After the plaintiff having entered into the
contract for the sale of the plaint ‘A Schedule
property, the defendant used to demand and
collect money from the plaintiff and the plaintiff
having paid in good faith and the defendant had
received in all Rs 6,75,000/- from the plaintiff out
of the balance sale consideration of Rs.
29,74,000/- and had handed over the original title
documents relating to the plaint ‘A’ Schedule
property. The plaintiff was and is ready and willing
to perform his part of contract, i.e. to pay the
balance sale consideration and get the registration
of the sale deed in his favour. By letter dtd. 25-12-
2006, the plaintiff had even conveyed his
readiness and willingness to register the sale deed
by paying the balance sale consideration and sent
draft sale deed. The defendant received the said
notice without demur. The defendant though
showed his willingness to execute the sale deed
expressed his in ability to settle the pending
litigation with his brother. As such the plaintiff
even approached the brother of the plaintiff so as
to have a amicable settlement between them. In
furtherance of the said contract for the sale of
plaint ‘A Schedule property, the plaintiff had got
measured the property and made arrangement for
the repair of the building situated in the said
property.”
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11. Still further, in the notice dated 25.12.2006, there is no
assertion of handing over of the documents of the title or payment of
Rs. 6,75,000/-. In fact, the categorical assertion in the notice served is
that the Plaintiff is ready and willing to pay the balance sale
consideration amount of Rs. 29,74,000/-. There is no document to
prove payment of Rs. 6,75,000/-, except the bald statement of the
Plaintiff. There is no any other evidence to prove that sum of Rs.
6,75,000/- was paid by the Plaintiff and on which date. If payment of
earnest money of Rs.26,000/- could be made by cheque, then the
payment of Rs.6,75,000/- in cash is beyond any comprehension.
12. Therefore, the entire story of payment of Rs. 6,75,000/- at the
time of handing over the title documents is wholly unbelievable. The
Plaintiff has not asserted such fact in the plaint or in the notice served
on 25.12.2006. The High Court erred in law in passing a decree for
recovery of the said amount only on the basis of presumptions.
13. In view of the above, we find that the Plaintiff is not entitled to
decree for relief of specific performance, in view of the finding
recorded by the High Court itself that he was not ready and willing to
perform his part of the contract.
14. In view of the above, the appeal filed by the Plaintiff is
dismissed whereas, that of the Defendant is allowed. Since the
Plaintiff has admittedly paid a sum of Rs. 26,000/-, we order that the
Defendant shall pay such amount to the Plaintiff to settle equities
along with simple interest at the rate of 9 per cent per annum from
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the date of payment till the date of realisation. The appeals stand
disposed of accordingly.
..………..………...........................J.
(Dr. Dhananjaya Y. Chandrachud)
…….......................................J.
(Hemant Gupta)
New Delhi,
April 15, 2019.
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