IN THE HIGH COURT OF KARNATAKA, AT BENGALURU

Regular First Appeal No. __________/2020

BETWEEN:
Sri. S.R. Surya Prakash Appellant

AND:
Sri. P.T. NanjudaSwamy
And another Respondents

INDEX
Sl. No. Particulars Page No.
1 Memorandum of Appeal under section 96
of the code of civil procedure

Verifying affidavit

ANNEXURE- A : Certified Copy of

Judgment

ANNEXURE- B : Certified Copy of Decree

Vakalathnama

Application under Order XXXIX rule 1 and

2 of the Coder of Civil Procedure

Affidavit

Date:
Place: Bengaluru Advocate for the Appellant
 IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
Regular First Appeal No. __________/2020
BETWEEN:
Sri. S.R. Surya Prakash Appellant

AND:
Sri. P.T. NanjudaSwamy
And another Respondents

SYNOPSIS
Dates Events
03.10.2012 Agreement of sale was executed by respondents
in favour of Appellant
03.10.2012 Respondent received a sum of Rs. 30,00,000/-
from the Applicant as advance payment
25.04.2014 Appellant got issued legal notice to Respondent
through his counsel
06.08.2015 Date of institution of suit by Appellant
30.01.2020 Impugned Judgment was pronounced

BRIEF FACTS OF THE CASE

The Appellant submits that on 03.10.2012 the Respondent
NO. 1 and 2 had agreed to sell the suit schedule property to the
Appellant and the Appellant has agreed to purchase the same
from the Respondent for valuable sale consideration amount of
Rs. 93,75,000/- (Rupees Ninety Three Lakhs and Seventy Five
thousand). Accordingly the Respondents have jointly executed
the agreement of sale infavour of Appellant with respect to suit
schedule property on 03.10.2012. On the date of execution of
the above Agreement of sale, the Respondents have jointly
received a sum of Rs. 30,00,000/- (Rupees Thirty Lakhs only)
from the Appellant as advance of said sale transaction of suit
schedule property as per the said Agreement of Sale
The appellants further submits that, as after several request
the Respondents did not come forward to receive balance sale
consideration and for execution of absolute sale deed in favour of
Appellant, on 25.04.2014, he got issued legal notice. When no
response was received for the said Legal notice, he initiate suit
for specific performance of contract.
 Appellant submits that on hearing the arguments from both
the side, the Hon’ble court on 31st January,2020 passed the
Judgment and thereby ordered as under:
“Suit of the Plaintiff is hereby decreed in part with cost.

The relief sought for specific performance is hereby

rejected by modifying that the plaintiff is entitle the refund
of the earnest money with interest at the rate of Rs. 6% per
annum from the date of the suit till the date of realization”

Though the suit was decreed, the relief sought by the

Appellant i.e specific performance of agreement dated
03.10.2012, has been denied. Hence the Appellant prefers this
Appeal.

Date:
Place: Bengaluru Advocate for the Appellant
 IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
Regular First Appeal No. __________/2020
IN THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC.,
AT PAVAGADA
ORIGINAL SUIT No.: 56/2015
IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
Regular First Appeal No. __________/2020
RANK OF THE PARTIES
TRIAL COURT/ HIGH COURT

BETWEEN:
Sri.S.R. Surya Prakash
S/o Late S.K. Ramakrishna Setty
Aged about 62 years,
R/o. Near SrteeKanyakaparameshwari
Temple (SKP), Pavagada Town,
PavagadaTaluk. Plaintiff / Appellant

AND:
1.Sri. P.T. NanjudaSwamy
S/o. P.L. Thippeswamy,
Aged about 56 years,
Kuruba by caste,
R/o RainguageExtention,
Pavagada Town, PavagadaTaluk1st Defendant/ 1st Respondent

2.P.N. Manjula
W/o. P.T. Nanjunda
Aged about 48 years,
Kuruba by caste,
R/o. RainguageExtention,
Pavagada Town, PavagadaTaluk2nd Defendant / 2nd Respondent

MEMORANDUM OF REGULAR FIRST APPEAL UNDER

SECTION 96 OF THE CODE OF CIVIL PROCEDURE CODE,
1908
The Appellant herein most respectfully submits as under:
1. The address of the Appellant for the purposes of service of
summons, notices etc. is as shown in the cause title, and that
of his Counsel Geeta R. Shindhe, S. V. Naikar, is # 773, 2nd
Floor, 8th Cross, 5th main, M.R.C.R. Layout, Vijayanagar,
Bengaluru- 560 040.

2. The address of the Respondents for the similar purposes are

as shown in the cause title.

3. The Appellant being highly aggrieved by the Judgment and

decree dated 31st January, 2020, passed Hon’ble Senior Civil
Judge and JMFC, at Pavagada, wherein the Hon’ble court has
passed following order:
“Suit of the Plaintiff is hereby decreed in part with cost.
The relief sought for specific performance is hereby
rejected by modifying that the plaintiff is entitle the refund
of the earnest money with interest at the rate of Rs. 6% per
annum from the date of the suit till the date of realization”
Prefers this appeal on the following facts and grounds

BRIEF FACTS OF THE CASE

4. The Appellant submits that on 03.10.2012 the Respondent
NO. 1 and 2 had agreed to sell the suit schedule property to
the Appellant and the Appellant has agreed to purchase the
same from the Respondent for valuable sale consideration
amount of Rs. 93,75,000/- (Rupees Ninety Three Lakhs and
Seventy Five thousand). Accordingly the Respondents have
jointly executed the agreement of sale infavour of Appellant
with respect to suit schedule property on 03.10.2012. The
Suit schedule property is an agricultural land bearinfSy. No.
10 measuring 6 acre 10 guntas out of which dry land
measuring 1 acre 32 guntas situated at
PavagadaKasabaHobli, PavagadaTaluk.

5. The Appellants further submits that on the date of execution

of the above Agreement of sale, the Respondents have jointly
received a sum of Rs. 30,00,000/- (Rupees Thirty Lakhs only)
from the Appellant as advance of said sale transaction of suit
schedule property as per the said Agreement of sale and the
above fact of advance amount of sale consideration paid by
Appellant to Respondents in the presence of witnesses and
scribe of Agreement of Sale document is also clearly written in
the above said Agreement of sale. Further as per the said
Agreement of sale transaction, it is agreed between parties
that out of the remaining balance sale consideration amount
 the Appellant has to pay Rs. 30,00,000/- (Rupees Thirty
Lakhs only) to the Respondent as second advance amount of
sale consideration within Six months from the date of said
Agreement of sale and also it is agreed between parties that
further remaining balance sale consideration amount of Rs.
33,75,000/- (Rupees Thirty Three Lakhs, Seventy Five
Thousand only) is to be received by the Respondents from the
Appellant on or before 03.10.2013 and the Respondents have
to execute the Registered Sale Deed in favour of Appellant
with respect to the suit schedule property as per the said
Agreement of sale.

6. The appellants further submits that, thereafter he has

several times requested and demanded the Respondents to
receive the balance sale consideration amount as per the said
sale agreement and to execute the registered sale deed
infavour of Appellant with respect to suit schedule property as
per the said Agreement of Sale, but the Respondents have
postponed the same by saying one reason or the other
reasons and the Respondents have not come forward to
perform their part of contract under the above said sale
agreement though the Appellant is ready to pay the balance
sale consideration amount to Respondents and to get the
registered sale deed form Respondents as per the said
Agreement of salewith respect to suit schedule property.
Further that on 25.04.2014 the Appellant through his
advocate has got issued the legal notice to the Respondents in
the above said matter of said sale transaction, and through
the said legal notice, the Respondents are called upon to come
and receive the balance said consideration amount of Rs.
63,75,000/- (Rupees Sixty Three Lakh, Seventy five thousand
only) from the Appellant and to execute the Registered sale
deed infavour of Appellant with respect to suit property and to
deliver the physical possession of suit property to Appellant as
per the said Agreement of sale dated 03.10.2012. The legal
notice issued by the Appellant was served upon the
Respondents and after the receipt of said legal notice, the
Respondents have not complied the notice and they have not
come forward to execute the sale deed infavour of Appellant
with respect to the suit property as per said agreement of sale
till today. The Appellant is always ready and willing to pay the
balance sale consideration amount of Rs. 63,75,000/-
(Rupees Sixty Three Lakhs, Seventy Five Thousand only) to
Respondents and to get the sale deed from Respondents as
 per the said sale agreement. Further the Respondents instead
of executing the sale deed infavour of Appellant with respect
to suit property and receiving the balance sale consideration
as per said Agreement of sale, they are making attempts to
alienate and transfer the suit property to third persons
without Appellant’s consent and with an intention to deprive
and defraud Appellant’s rights accrued under the said
agreement of sale. The Respondents have not executed the
sale deed infavour of Appellant as per said Agreement of sale
till today.

7. The Appellant submits that after the learning that, the

Respondents are not heeding to the legal notice, the Appellant
file suit in O.S. No. 56/2015. In the said suit, the Respondent
appeared and contested the case with following alleged facts.

8. The Respondent No. 1 and 2 have taken specific defense that

they have not executed any sale agreement infavour of the
Appellant. They have admitted the issuance of legal notice by
the Appellant but the said notice was suitably replied through
reply notice throufh their counsel by saying that, the alleged
sale agreement is created and fraudulent document. They
have also contended that the suit property is the joint family
property of the Respondents and their children. The
Respondents never faced financial problem, there was no
necessity for them to sell the suit property. The Appellant and
the Respondents are known to each other, there was case
pending in No. 7/2003-04 before DDLR at Bangalore joint
Commissioner and appeal No. 95/2013 at Tumkur. The Joint
Commissioner for Land records as passed an order to rectify
the extent on 17.04.2005, the Appellant assisted the
Respondent No. 1 in that case till 2012 during that time the
Appellant used to take signature of the Respondents on plain
paper, the Appellant might have used the said papers to
create the alleged sale agreement to have wrongful gain. The
reply notice issued by the Respondents was not received by
the counsel for the Appellant, it shows the Appelant has
created the sale agreement. Accordingly prayed for dismissal
of the suit with cost.
9. The Appellant submits that the SPA holder of the Appellant
has been examined as PW1 and 2 supporting witnesses have
been examined as PW-2 and 3 and exhibit P1 to P10 were
marked. On behalf of the Respondents the Respondent No. 2
 examined himself as DW-1 and one witness examined as DW-
2 and got marked Ex. D1 to D30.
10. On hearing the arguments from both the side, the Hon’ble
court on 31st January,2020 passed the Judgment and thereby
ordered as under:
“Suit of the Plaintiff is hereby decreed in part with cost.

The relief sought for specific performance is hereby

rejected by modifying that the plaintiff is entitle the refund
of the earnest money with interest at the rate of Rs. 6% per
annum from the date of the suit till the date of realization”

11. Though the suit was decreed, the relief sought by the
Appellant i.e specific performance of agreement dated
03.10.2012, has been denied. Hence the Appellant prefers this
Appeal.

12. The Appellant submits that he has not filed any other appeal
in this court or any court on the impugned Judgment and
decree.

13. The Appellant submits that the appeal filed is in time

14. The Appellant submits that he has paid court fee of Rs.
2,54,000, on the memorandum of Appeal.

GROUNDS
15. The Hon’ble court erred gravely in not granting the relief of
Specific performance of contract. The case in hand is the apt
case, wherein the Hon’ble Trial court ought to have used its
discretion in granting the relief.

16. The Appellant/Plaintiff through his evidence has

successfully proved the issues framed by the court. It is
established in the trial court that Respondents jointly agreed
to sell the suit schedule property to the Appellant for Rs.
93,75,000/- and received a sum of 30,00,000/. The Hon’ble
Court having no doubt as to the receipt of the amount of Rs.
30,00,000/-, has ordered for the refund of the same.

17. The Hon’ble Trial Court in its Judgment also affirmative

answered the issue that Appellant was ready and willing to
perform his part of agreement.
18. The Hon’ble having answered the two issues affirmatively in
favour of the Appellant, ought to have granted the relief of
Specific performance of Contract. The non-granting the said
relief and caused irreparable damage to the Appellant, as
right from date of Agreement i.e. 03.10.2012 till date, the
Appellant is hoping to purchase the property by paying the
remaining amount.

19. The Hon’ble court erred in concluding that Appellant

alienated in land measuring 2 acre 24 guntas, in Sy. No. 9
and inferred that the is not in an intention to do agriculture in
the lands, if at all his intention in purchase of the suit
property was for agricultural purposes he would not have sold
his property before getting registration of the suit schedule
property. In coming to this conclusion, the Hon’ble Trial Court
has failed to apply its mind over the facts of the case. The suit
schedule property which the Appellant was to purchase
through the agreement of sale dated 03.10.2012, is in Sy. No.
10, in which, the Appellant also has ownership over the
portion of Sy. No. 10, which is to the extent of 2 acre 24
guntas. By entering into this Agreement of sale, the Appellant
sought to purchase the land from Respondent, so that he
owns the full extent of land and can carryon any permissible
activity therein. The property in Sy. No. 9 was sold by
Appellant in the year 2013, only for the purpose of purchasing
this property. This aspect has not been appreciated by the
Hon’ble Court while concluding that he had no intention to
carry on agriculture.

20. The Hon’ble Court ought also had to lay its eyes on the fact
that even the Respondent were admittedly had no intention to
carryon the agricultural activities over the land. Hence
drawing inference from the fact of non conducting agricultural
activities against the Appellant is not sustainable.

21. The Hon’ble Court while exercising its discretion as to grant

of relief of specific performance of contract, it should have
seen position of both parties and the inconvenience faced by
the Appellant. The Appellant, in a kind victimised through
this transaction, as relying upon this transaction, he has sold
the property in Sy. No. 9 and has lost his land with a hope of
purchasing property in Sy. No. 10.When the Respondents
have not complied with the agreement, it resulted in double
damage to the Appellant, as the land owned by him as well
 land sought to be purchased by him was out of his hand. In
this circumstances, the Hon’ble Court could have easily seen
the plight the appellant and the loss caused to him due to
non- performance on part of the Respondents.

22. The Hon’ble Court erred interpreting section 20 of the

specific relief act, with respect to the facts and circumstances
of this case, and did not account the hardship faced by the
Appellant.

23. The Hon’ble Court ought to have considered that the

alternative relief provided i.e refund, nowhere equals the
damage suffered by the Appellant in this case. The Appellant
made all preparation to purchase the property, but due no
non performance on part of Respondent, the amount arranged
by the Appellant resulted in locked in as he could not use the
same for other purpose.

24. The Hon’ble Court should not considered that the

Respondents if acts upon their own agreed terms they will not
be facing hardships.

25. The Appellant craves the leave of this Hon’ble Court to raise
additional ground at the time of hearing

PRAYER
WHEREFORE, the Counsel for the Appellant most
respectfully pray before this Hon’ble Court to
A. Call for records of O.S. No. 56/2015, which is on the file
of Hon’ble Senior Civil Judge and JMFC, at Pavagada

B. Set aside the Judgment and decreedated 31st January,

2020, passed Hon’ble Senior Civil Judge and JMFC, at
Pavagada, in O.S> No. 56/2015, Vide Annexure- A and
B.

C. Pass decree against the respondents for specific

performance of the contract on agreement of sale dated
03.10.2012 executed by the Respondents in favour of
plaintiff with respect to the suit property and to direct
the Respondents to execute the registered sale deed
infavour of Appellant with respect to suit schedule
property as the said sale agreement of sale.
 D. For cost of the suit and appeal and for such other reliefs
as the Hon’ble Court deems fir to grant under the
circumstances of the case, in the interest of Justice.

Date:
Place: Bengaluru Advocate for the Appellant
 IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
Regular First Appeal No. __________/2020
IN THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC.,
AT PAVAGADA
ORIGINAL SUIT No.: 56/2015
IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
Regular First Appeal No. __________/2020
RANK OF THE PARTIES
TRIAL COURT/ HIGH COURT

BETWEEN:
Sri. S.R. Surya Prakash
S/o Late S.K. Ramakrishna Setty
Aged about 62 years,
R/o. Near SrteeKanyakaparameshwari
Temple (SKP), Pavagada Town,
PavagadaTaluk. Plaintiff / Appellant

AND:
3.Sri. P.T. NanjudaSwamy
S/o. P.L. Thippeswamy,
Aged about 56 years,
Kuruba by caste,
R/o RainguageExtention,
Pavagada Town, PavagadaTaluk1st Defendant/ 1st Respondent

4.P.N. Manjula
W/o. P.T. Nanjunda
Aged about 48 years,
Kuruba by caste,
R/o. RainguageExtention,
Pavagada Town, PavagadaTaluk2nd Defendant / 2nd Respondent

APPLICATION UNDER ORDER XXXIX RULE 1 AND 2 READ

WITH SECTION 151 OF THE CIVIL PROCEDURE CODE, 1908

For the reasons stated in the accompanying affidavit, the

counsel for the Appellant pray the Hon’ble court to grant an
order of Temporary Injunction restraining the Respondents No. 1
and 2 from alienating and transferring the suit schedule
property to anybody in any manner till the disposal of the
appeal, in the interest of Justice and Equity.

Suit Schedule Property

Land bearing Sy. No. 10, measuring o6 acres 20 guntas,
assessed at Rs. 8=44 paise, situated at Pavagada village,
Kasabahobli, PavagadaTaluk. Out of this dry land measuring 01
acre 32 guntas. Is bounded by
East: Land in Sy. No. 15
West ; Land in Syn No. 9
North : Land of Appellant
South : Land belonging to one Lakshmikanthamma

Date:
Place: Bengaluru Advocate for the Appellant