IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 8962-8963 OF 2022
(@ SPECIAL LEAVE PETITION (C) NOS. 6122-6123 OF 2022)
Basavaraj …Appellant(S)
Versus
Padmavathi & Anr. …Respondent(S)
1. Feeling aggrieved and dissatisfied with impugned judgment(s) and order(s) dated 27.11.2020 and 06.12.2021 passed by the High Court of Karnataka at Kalaburagi Bench in Regular First Appeal (RFA) No. 5033/2011 and Review Petition (RP) No. 200036/2021 respectively, by which, the High Court has allowed the said appeal preferred by respondents herein – original defendants and has quashed and set aside the judgment and decree passed by the learned Trial Court decreeing the suit for specific performance, the original plaintiff has preferred the present appeals.
2.1 That respondent No. 1 herein – original defendant No. 1 executed an agreement to sell dated 13.03.2007 in favour of the appellant herein – original plaintiff – buyer agreeing to sell the land in question on or before 31.07.2007 for a sale consideration of Rs. 12,74,000/-. Rs. 3 lakhs were paid as earnest money. The receipt was issued by respondent No. 1 for the same. That thereafter, as respondent No. 1 – seller did not execute the sale deed, the appellant got issued a legal notice dated 20.11.2007 asking the respondent(s) to receive the balance sale consideration and execute the sale deed. The seller replied to the legal notice vide reply dated 03.12.2007 denying the execution of agreement to sell. That thereafter, the appellant – buyer filed the suit for specific performance on 14.02.2008 vide O.S. No. 17/2008. The original defendants – sellers filed their written statement and 2 opposed the suit. The defendants denied the execution of agreement to sell. It was also the case of the defendants in the written statement that the plaintiff was not ready to perform his part of the contract. Therefore, the defendants denied readiness and willingness on the part of the plaintiff – buyer to perform his part of the contract.
Para No.6.2:- In the case of Indira Kaur (supra) this Court after considering the observations made by this Court in the case of Ramrati Kuer (supra) has set aside the findings recorded by three courts below whereby an adverse 14 inference had been drawn against the plaintiff therein for not producing the passbook and thereby holding that the plaintiff was not ready and willing to perform his part of the agreement. It is observed and held that unless the plaintiff was called upon to produce the passbook either by the defendant or, the Court orders him to do so, no adverse inference can be drawn.
Para:8. In view of the above discussion and for the reasons stated above, the present appeals succeed. Impugned judgment(s) and order(s) passed by the High Court are hereby quashed and set aside. The judgment and decree passed by the learned Trial Court for specific performance of the agreement to sell dated 13.03.2007 is hereby restored. However, to do complete justice, we direct the plaintiff to pay to defendant No. 1 a further sum of Rs. 10 lakhs to be deposited within a period of eight weeks from today and on such payment, defendant No. 1 is directed to execute the sale deed in favour of the original plaintiff – appellant within a period of two weeks therefrom. Defendant No. 1 shall also be permitted to withdraw the amount i.e., Rs. 9,74,000/- deposited by the plaintiff on 31.10.2011, pursuant to the judgment and decree passed by the 16 learned Trial Court, with the interest accrued thereon, which shall be paid to defendant No. 1 by an account payee cheque. Present appeals are accordingly allowed with the above further directions. No order as to costs. …………………………………J. (M. R. SHAH) …………………………………J. (B.V. NAGARATHNA) NEW DELHI, JANUARY 05, 2023.
Judgement link:dt.15012023https://main.sci.gov.in/supremecourt/2021/3665/3665_2021_4_1503_40734_Judgement_05-Jan-2023.pdf
