DR. MANOHAR GANAPATHI RAVANKARversusGURUNANDA RAIKAR

                          [2019] 6 S.C.R. 51                             51


           DR. MANOHAR GANAPATHI RAVANKAR                                A
                                  v.
                     GURUNANDA RAIKAR
                   (Civil Appeal No. 3415 of 2019)
                          APRIL 15, 2019                                 B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                     HEMANT GUPTA, JJ.]
       Specific performance: Respondent-defendant agreed to sell
the schedule property for total sale consideration of Rs.30 lacs and     C
was paid earnest money of Rs.26000/- – At the time of agreement,
there was a civil family dispute pending in respect of the schedule
property against him – The condition in the agreement was that the
defendant would settle the pending dispute within a period of six
months and if the dispute is not settled within six months, the time
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for execution of sale deed would be extended by such time as
mutually to be agreed upon by the parties – Appellant-plaintiff sent
a notice stating that as per his information, dispute in the family
stood settled and expressed his readiness to pay the balance of the
consideration – Plaintiff later filed suit for specific performance –
It was stated in the plaint that on demand made by defendant, a          E
further sum of Rs.6.75 lacs was paid to him – However, no date of
such payment was disclosed in the plaint – Trial court decreed the
suit and directed the plaintiff to pay balance amount of Rs.29.74
lacs – Defendant filed appeal before High Court – High Court
passed order of refund of Rs.7.01 lacs while declining the relief of
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specific performance of the agreement on the ground that the
plaintiff has failed to prove that he was ready and willing to perform
his part of the agreement – High Court further held that there was
nothing to show that as to when and how payment of Rs. 6.75 lacs
was made out of balance sale consideration – On appeal, held:
High Court erred in law in granting a decree for payment of Rs.7.01      G
lacs 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 handed over
to the plaintiff when sum of Rs. 6.75 lacs was said to have been
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                                 51
52            SUPREME COURT REPORTS                       [2019] 6 S.C.R.


A    paid by the plaintiff – In the notice issued by plaintiff there was no
     assertion of handing over of the documents of the title or payment
     of Rs. 6.75 lacs – In fact, the plaintiff categorically stated in the
     notice, his readiness and willingness to pay the balance sale
     consideration amount of Rs. 29.74 lacs – There was no document
     to prove payment of Rs. 6.75 lacs, except the bald statement of the
B
     plaintiff – If payment of earnest money of Rs.26,000/- could be
     made by cheque, then the payment of Rs. 6.75 lacs in cash is beyond
     any comprehension – Therefore, the entire story of payment of Rs.
     6.75 lacs at the time of handing over the title documents was wholly
     unbelievable – High Court erred in passing a decree for recovery
C    of the said amount only on the basis of presumptions.
           Disposing of the appeals, the Court
            HELD: 1.1 In the notice issued by plaintiff there was 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
D    served was that the Plaintiff was ready and willing to pay the
     balance sale consideration amount of Rs. 29,74,000/-. There was
     no document to prove payment of Rs. 6,75,000/-, except the bald
     statement of the Plaintiff. There was no any other evidence to
     prove that sum of Rs. 6,75,000/- was paid by the Plaintiff and on
E    which date. 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. The Plaintiff is not entitled to decree for
F    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. 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/-, the Defendant
G    is ordered to pay such amount to the Plaintiff to settle
     equities along with simple interest at the rate of 9 per cent per
     annum from the date of payment till the date of realisation.
     [Para 11-14][57-A-E]


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 DR. MANOHAR GANAPATHI RAVANKAR v. GURUNANDA                                     53
                   RAIKAR

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3415                       A
of 2019.
      From the Judgment and Order dated 17.02.2016 of the High
Court of Karnataka at Bengaluru in R.F.A. No. 188 of 2013.
       With
       Civil Appeal No. 3416 of 2019.                                            B

      Basava Prabhu Patil, Sr. Adv., Anand Sanjay M. Nuli, Dharm
Singh, Suraj Kaushik, Nanda Kumar K.B., M/S. Nuli & Nuli, G. Balaji,
Advs. for the Appellant.
       Harsh Kaushik, Harsh Prakash, G. Balaji, Advs. or the Respondent.
                                                                                 C
       The Judgment of the Court was delivered by
       HEMANT GUPTA, J.
       1. Civil Appeal No. 3415 of 2019 is by the Plaintiff aggrieved
against the judgment and order dated 17.02.2016 passed by the High
Court of Karnataka at Bengaluru declining relief for specific performance        D
of the agreement of sale of the schedule property but granting a decree
for recovery of Rs. 7,01,000/- along with interest at 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.
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       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-          F
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               G
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.         H
54            SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A    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:
           “1. That the 2nd PARTY PURCHASER has agreed to pay a total
B          sale consideration of Rs.30, 00, 000/- (Rupees Thirty Lakhs Only)
           towards the agreed sale of schedule property by the 1 st PARTY
           VENDOR to the 2nd PARTY PURCHASER and out of above
           sale consideration, the 2nd PARTY PURCHASER has paid a sum
           of Rs. 26, 000/- (Rupees Twenty-Six Thousand Only) to the 1st
           PARTY VENDOR by means of cheque dated 21.07-2006 bearing
C          No. 918333 drawn on Syndicate Bank, Fr. Muller’s Charitable
           Institution Branch, Mangalore, by way of advance sale
           consideration, the receipt of which the 1st PARTY VENDOR
           hereby acknowledges. The balance sale consideration of Rs.
           29,74,000/- (Rupees Twenty Nine Lakhs Seventy Four Thousand
D          only) is agreed to be paid at the time of execution and registration
           of the intended Sale Deed.
                     ***              ***               ***
           5. The 1st PARTY VENDOR shall execute the Sale Deed within
           6 months (Six Months) from the date of execution of this
E          Agreement, which however can be altered only by mutual consent
           in writing and signed by both the parties.
           6. In case, the 1st 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)
F          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 such event, the 2nd PARTY PURCHASER shall be entitled to
           recover the said amounts from the 1st PARTY VENDOR, including
G          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 consideration
     of Rs. 29,74,000/-. The relevant extract from the notice is as under:
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 DR. MANOHAR GANAPATHI RAVANKAR V. GURUNANDA                                 55
           RAIKAR [HEMANT GUPTA, J.]

      “I have kept the balance sale consideration Rs.29, 74, 000/- ready     A
      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
                                                                             B
      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    C
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              D
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 written note separately except,           E
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     F
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.
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       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
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56             SUPREME COURT REPORTS                            [2019] 6 S.C.R.


A    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
B    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 handed over
     to the Plaintiff when sum of Rs. 6,75,000/- is said to have been paid by
     the Plaintiff.
C           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
D    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/
E           - 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
F           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
G           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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 DR. MANOHAR GANAPATHI RAVANKAR V. GURUNANDA                                       57
           RAIKAR [HEMANT GUPTA, J.]

       11. Still further, in the notice dated 25.12.2006, there is no              A
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
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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               C
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         D
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             E
shall pay such amount to the Plaintiff to settle equities along with simple
interest at the rate of 9 per cent per annum from the date of payment till
the date of realisation. The appeals stand disposed of accordingly.

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Devika Gujral                                               Appeals disposed of.




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