Ninganna and Others vs Bhagyamma

S. Abdul Nazeer, J—This appeal is directed against the judgment and decree in R.A. No. 39/2009 dated 08.06.2011 on the file of the Principal District Judge at Mandya.

The respondent was the plaintiff in O.S. No. 146/2006 and the appellants were the defendants. The plaintiff filed the said suit for specific performance of an agreement of sale dated 15.07.2004. According to her, the defendants had executed the aforesaid agreement agreeing to sell the suit schedule property for a total consideration of Rs. 60,000/- and executed an agreement at Ex-P1 dated 15.07.2004. The defendants had received a sum of Rs. 50,000/- as advance out of the agreed sale consideration of Rs. 60,000/- in the presence of Sub Registrar when the agreement was presented for registration. The defendants had agreed to receive the balance of consideration of Rs. 10,000/- within two years from 15.07.2004 and execute the sale deed. They had also agreed to hand over the possession of the suit schedule property. It is further contended that despite repeated demands, the defendants failed to receive the balance of the amount and executed the sale deed.

The defendants filed their written statement contending that they had received a sum of Rs. 50,000/- from the plaintiff as loan and the property was offered as security. The transaction in question is not for the sale of the property. They have denied the readiness and willingness of the plaintiff to perform the contract. They have contended that the property in question was the ancestral property of defendant No. 1 who has two sons and one daughter. They are also entitled for equal share in the property.

On the basis of the pleadings of the parties, the trial court has framed the following issues and additional issues:

"1. Whether the plaintiff proves that the defendants being owners of suit schedule property agreed to sell the same for valuable consideration of Rs. 60,000/- in her favour on 15.07.2004?

Whether the plaintiff further proves that defendants had received Rs. 50,000/- on 15.07.2004 towards sale consideration and executed registered sale agreement on the same day in her favour?

Whether the plaintiff further proves that the defendants agreed to execute sale deed within two years from the date of sale agreement after receipt of balance sale consideration of Rs. 10,000/-?

Whether the plaintiff further proves that she was and is always ready and willing to perform her part of the agreement dated 15.07.2004?

Whether the plaintiff entitles for the relief sought?

What order or decree?

The husband of the plaintiff was examined as PW-1 and a witness - Mahesh Babu was examined as PW-2 and 11 documents were marked in their evidence. The first defendant was examined as DW-1 and two witnesses were examined on their behalf. On appreciation of the materials on record the trial Court has answered Issue Nos. 1 to 3 in the affirmative and Issue Nos. 4 and 5 in the negative. The trial Court has decreed the suit in part by directing the defendants to refund a sum of Rs. 50,000/- with interest at 18% p.a. from the date of the agreement to the plaintiff. The plaintiff has filed the appeal challenging the judgment and decree of the trial Court only insofar as it relates to refusal of relief of the specific performance of the contract.

The First Appellate Court has framed the following questions for its consideration:

"1. Whether the trial court is justified in holding that the plaintiff has failed to prove readiness and willingness as per Section 16(c) of Specific Relief Act, 1952?

Whether any interference is called for by this Court and if so to what extent?"

The First Appellate Court on consideration of the evidence and other materials on record has answered the first question in the negative and has decreed the suit of the plaintiff by granting the relief of specific performance. The First Appellate Court has directed the defendants to execute a sale deed within three months from the date of the decree by receiving the balance of the sale consideration. The plaintiff was directed to deposit the balance sale consideration within one month from the date of the judgment.

The defendants have challenged the said decree in this appeal.

While admitting the appeal, this Court has framed the following substantial questions of law:

"1. Is the judgment of the Appellate Court directing specific performance of the agreement is sustainable in the absence of any finding that the plaintiff cannot be compensation in terms of money as envisaged under Section 10 of the Specific Relief Act?

Is the judgment of the Appellate Court is sustainable as it appears it has not considered whether grant of decree for specific performance will cause any hardship to the defendants as pleaded?"

Sri. H.C. Shivaramu, learned advocate appearing for the appellants would contend that the First Appellate Court was not justified in directing the appellants to execute the sale deed. This will cause great hardship to the appellants. The First Appellate Court ought to have exercised its discretion under Section 20 of the Specific Relief Act, 1963 (''the Act'' for short) and ought to have sustained the decree of the trial Court.

On the other hand, learned advocate appearing for the respondent has supported the judgment and decree. It is his submission that the appellants have not let in any evidence in support of the said contentions before the trial Court. They have not urged the said contentions before the First Appellate Court. He prays for dismissal of the appeal.

Learned counsel for the parties however, submit that having regard to the facts and circumstances of the case, the first substantial question of law does not arise for consideration.

I have carefully considered the arguments made at the Bar and perused the materials placed on record.

As stated above, the suit filed by the plaintiff is for specific performance of the contract. On the basis of the pleadings of the parties, the trial Court has framed the issues and additional issues. The trial Court has held that Ex. P1 is the agreement of sale, agreeing to sell the suit schedule property. The trial Court has also held that the defendants have received a sum of Rs. 50,000/- towards sale consideration and have executed the registered sale of agreement in favour of the plaintiff. Even the third issue has been held in the affirmative. There is no challenge to these findings of the trial Court. The appeal is filed only against the findings of the trial Court on Issue Nos. 4 and 5, whereby the trial Court has directed the defendants to refund a sum of Rs. 50,000/- to the plaintiff with interest at 18% p.a. from the date of the agreement. The plea of hardship was not pressed into service. I am taken through the evidence of the defendants and other witnesses examined on behalf of the defendants. DW-1 has not stated anything in his evidence in relation to the hardship which he may suffer if he is directed to execute the sale deed. As stated above, this plea was not pressed into service either before the trial Court or before the First Appellate Court. The appellants have not made out a case for grant of discretionary relief under Section 20 of the Act.

Having regard to the submission of the learned counsel for the parties, the first substantial question of law framed by this Court does not arise for consideration. I have answered second substantial question of law in the above paragraphs. There is no merit in this appeal. It is accordingly dismissed. No costs.