Mr. Joseph Lobo vs Mr. Paul Noel Rodrigues and Others

K.L. Manjunath

The appellants who were defendants in O.S. No. 355/2002 on the file of Principal Civil Judge, (Sr.Dn.), Mangalore are challenging the legally and correctness of the Judgment and decree passed by the court below on 19.1.2009 directing the 1st defendant or such other defendants who were found liable to execute the sale deed in favour of the plaintiff or his nominees as desired by him by way of conveying marketable right to the schedule properties in terms of the agreement of sale dt. 2.3.1996 or in the alternative to direct the defendants to refund a sum of Rs. 23,39,500/- with interest at 12% p.a. from the date of suit till the data of payment. According to the plaint averments, under an agreement dt. 2.3.1996 the defendant-1 agreed to sell 1 acre 57 cents of land in Kavoor village and R.S. No. 58/1 along with his late father Jaccu @ Jacob Lobo for a court sate consideration of Rs. 25,35,500/-. At the rate of Rs. 15,500/- per cent Rs. 2 lakhs was paid as advance. As per the terms and conditions of the agreement, the plaintiff was required to pay 25% of the sale consideration on or before 30th June 1996 In a sum of Rs. 6,33,350/- and the balance sale consideration was required to be paid on or before 30.11.1996. On or before that date, the sale transaction was required to be completed.

On 20th July 1996 a sum of Rs. 4,08,500/- was paid by extending the time upto 30.12.1955. A sum of Rs. 7,25,000/- was paid on 29.11.1996 and in all Rs. 13,33,500/- was paid and balance sale consideration was required to be paid in a sum of Rs. 12 lakhs at the time of registration of the sale deed. On 27.12.1996 the plaintiff addressed a letter to the defendant-1 to produce certain documents, namely, NOC from ULC to show that it is an agricultural land and they also called upon to comply upon other requirements, Thereafter on 21.11.1999 the father of the 1st defendant, Jacob Lobe died and on 27.11.1999 the plaintiff got issued a legal notice to the defendants calling upon them to receive the balance sale consideration. Therefore, suit was field to enforce the agreement of sale or in the alternative to refund the advance sale consideration with interest at 12%.

The defendants contested the suit on several grounds. The main ground of attack was that the plaintiff was not ready and willing to perform his part of the contract and he did not possess balance sale consideration to get the sale deed registered at his cost. Therefore in the circumstances, the 1st defendant by issuing a legal notice dt. 20.12.1999 cancelled the agreement on the ground that he did not pay the balance sale consideration and did not obtain the sale deed and again on 15.3.2000 he Issued one more notice informing about the cancellation of the agreement, for which a reply was sent by the plaintiff on 12.5.2000. Again by issuing another notice dt. 23.5.2000 the defendant got cancelled the sale agreement by issuing a legal notice. Therefore, it was contended that the suit filed by the plaintiff was not maintainable as the plaintiff was not ready and willing to perform his part of the contract and requested the court to dismiss the suit.

Based on the above pleadings, the following issues were framed by the court below:

1) Whether Mr. Jaccu alias Jacob and the 1st defendant entered into an agreement of sale with him agreeing to sell the suit schedule property at Rs. 15,500/- per cent and received in all Rs. 13,33,500-00 on various dates as averred in para 2 of the plaint.

2) Whether the plaintiff is Always bean ready and willing to perform his, part of the contract in terms of the agreement of sale?

3) Whether the plaintiff proved that the defendant committed default and felled to execute the regular sale deeds as agreed upon in terms of the agreement of sale?

4) Whether the suit is barred by time?

5) Whether the plaintiff is entitled for the relief of specific performance as prayed for?

6) Whether the plaintiff is also alternatively entitled for refund of plaint ''B'' schedule amounts as claimed?

7) To what order or decree?

In order to prove their respective contentions, the plaintiff got himself examined as PW1 and he relied upon the evidence of PWs. 2 to 4 and Exs. P1 to P36. The 1st defendant was examined as DW1 and he relied upon Ex. D1 to D29. The Trial Court after considering the entire evidence held issues-1 to 3 and 5 in affirmative and issue-4 in negative and decreed the suit directing the 1st defendant to receive the balance sale consideration and to execute the sale deed. This Judgment and decree is called in question in this appeal.

We have heard Mr. Balakrishna Shastry for the appellant and Mr. Ishwara Bhat for the respondent.

Though several grounds are urged by the appellant in his appeal Memo, Mr. Balakrishna Shastry mainly contends that the findings of the court below on issues-2 and 3 is contrary to the evidence let in by the parties. According to him, the Trial Court has erred In holding that the plaintiff was always ready and willing to perform his part of the contract. Without considering any piece of evidence let in by the parties, according to him the findings on issues-2 and 3 is perverse and not based on appreciation of evidence. Taking us through the evidence of PW1 and DW1 and several documents produced by them, Mr. Shastry contends that the trial court without considering any one of the documents relied upon by the parties or the admission of the parties in their evidence, has vaguely held issues-2 and 3 in affirmative. Therefore the same is required to be set aside.

Having heard Mr. Salakrishna Shastry, we requested Mr. Ishwara Bhat to support the Judgment on issues-2 and 3, He made an attempt to support the findings of the court below on issues-2 and 3 on the ground that the said finding is based on several Judgment of the court.

Having heard the counsel for the parties, what is to be considered by us in this appeal is:

Whether the findings of the court below on issues-2 and 3 is based on proper appreciation of evidence or not and whether the same is required to be reversed?

As stated supra on perusal of the findings of the court below on issues-2 and 3, it is unfortunate the Trial court has not considered either the order or the documentary evidence let in by the parties. This fact is not disputed by Mr. Ishwara Bhat who is appearing for the respondent. Merely because the Trial court has relied upon the decisions of several courts cannot be a ground for the Trial court to hold the plaintiff has proved issues-2 and 3. In a suit for specific performance, the readyness and willingness of the plaintiff is first and foremost consideration to grant a discretionary relief of specific performance and it is also required to consider whether the plaintiff has committed any default and whether the defendant has discharged the burden placed on him. But unfortunately the evidence let in by the parties are not even looked upon and not considered any such circumstances, we are of the view that the findings of the court below on issues-2 and 3 are to be held as perverse and liable to be set aside.

In view of our finding on issues-2 and 3, we have no other option than to set aside the Judgment and decree and remand the matter to the Trial court for fresh consideration in accordance with law. In view of our finding on issues-2 and 3, the Trial Court is also required to consider whether the respondent-plaintiff is entitled for the relief of specific performance or refund of advance amount with interest. In the result, the appeal is allowed. The Judgment and decree of the court below is set aside and the mater is remanded to consider issues-2 and 3 afresh after hearing both the parties considering all relevant material evidence produced by the parties.

In view of the order of remand, the appellant is entitled for refund of court fee u/s 64 of the Karnataka Court Fees & Suits Valuation Act.