Subbarayadu Vs. Ramanna

Subbarayadu vs Ramanna

Disposition Appeal allowed Court Karnataka Decided Jun 23, 1995

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Citation: sooperkanoon.com/381307
Court: Karnataka High Court
Judge: A.B. Murgod, J.
Decided On: Jun 23, 1995
Case Number: R.S.A. No. 319 of 1984
Subject: Property
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

SPECIFIC RELIEF ACT, 1963 (Central Act No. 47 of 1963)-Section 16(1)(c) - Readiness & Willingness: Not open to subsequent purchaser to call upon plaintiff to prove he was ready & willing to perform his part of agreement: such defence impermissible. - KARNATAKA VALUE ADDED TAX ACT, 2003 [K.A. No. 30/2005] ...

Key legal issue: Property
Outcome / disposition: Appeal allowed
Acts & sections: Specific Relief Act, 1963 - Sections 16(1)

Parties & Advocates

Appellant / Petitioner

Subbarayadu

Advocate K.K. Srinivasa Murthy and ;M.R. Lakshmikanta Raj, Urs., Advs.

Respondent

Ramanna

Advocate M.S. Gopal, Adv. R-1 and ;K.V. Sundar Raj, Adv. for R-5

Legal References

Acts: Specific Relief Act, 1963 - Sections 16(1)
Reported In: ILR1996KAR747; 1996(2)KarLJ281

Excerpt

.....government by issue of notification dated 23.2.2005 for such purpose had stipulated 4% to be the rate for dealers opting for composition. dealer is required to pay the tax at the rate of 4% in respect of the entire turnover irrespective of the fact as to whether some part of the turnover was liable to tax or otherwise. sections 4 & 15: [d.v.shylendra kumar,j] constitutional validity - petitioners effected purchases from outside the state and also not eligible for claiming the benefit of section 15 of the act is an optional scheme complaining of violation of article 14 of the constitution of india held, they definitely have locus to question the validity of the provision. it is not a provision for creating any additional tax liability. differential treatment having regard to the differently situated persons is not one resulting in discrimination. alternative scheme of taxation by composition is extended to them as a rough and ready method but at the same time not losing sight of the main object of the act or raising revenue, provision cannot be found fault with on the ground of being a discriminatory provision violating article 14. section 15 :[d.v.shylendra kumar,j] catering activity held, catering activity is much more than mere selling of food items; that they have been making purchase of many capital machineries from outside which necessarily does not form part of their products which is sold such as food items; that the capital machineries and other instruments in the nature of capital is used for either hiring or leasing to generate further revenue to the petitioner need for balancing the revenue to the state even after providing the facility of composition, the classification has been made and it is a reasonable classification passing the test of article 14 of the constitution of india. section 72(2) :[d.v.shylendra kumar,j] constitutional validity held, before levy of penalty under section 72(2) of the act, an opportunity is a must and..........section 100 cpc is directed against the judgment and decree dated 15.10.1981 passed by the learned civil judge in r.a.no. 50 of 1980 confirming the judgment and decree dated 30.6.1980 in o.s.no. 95 of 1977 on the file of the munsiff, pavagada.2. facts giving rise to this second appeal are that defendants 3 to 5 original owners of the property in dispute agreed to sell the same in favour of the plaintiff under an agreement dated 28.2.1977. on their refusal to perform the agreement, notice was got issued by the plaintiff to defendants 3 to 5 and also to defendant-2 on 11.6.1977. this was replied by the defendants 2 to 5 contending that defendant-2 had sold the same in favour of defendant-1 on 15.6.1977. therefore the plaintiff filed the suit for enforcement of the agreement against defendants 1 to 5. the suit was for specific performance of the agreement and also for injunction against defendants 3 to 5 who put the plaintiff in possession of the property under the agreement of sale dated 28.2.1977 and after the payment of second instalment of the consideration.3. the suit was resisted by all the defendants. defendants 3 to 5 denied the agreement, consideration and delivery of possession pleaded by the plaintiff. in addition to these contentions, defendants 1 and 2 contended that they were bonafide purchasers for value without notice.4. the trial court after appreciating the evidence, rejected the contentions of the defendants and decreed the suit in favour of the plaintiff for specific performance and injunction. the appeal taken to the lower appellate court by the defendants 1 and 2 was dismissed. the cross-objections filed by defendants 3 to 5 were also rejected. hence, the second appeal by defendant-1.5. while admitting the appeal, this court has framed the following two substantial questions of law:-1. have the courts-below erred in holding that the plaintiff was ready and willing to perform his part of the contract even though there was no issue on that.....

Full Judgment

Murgod, J.

1. This Second Appeal under Section 100 CPC is directed against the Judgment and decree dated 15.10.1981 passed by the learned Civil Judge in R.A.No. 50 of 1980 confirming the judgment and decree dated 30.6.1980 in O.S.No. 95 of 1977 on the file of the Munsiff, Pavagada.

2. Facts giving rise to this Second Appeal are that defendants 3 to 5 original owners of the property in dispute agreed to sell the same in favour of the plaintiff under an Agreement dated 28.2.1977. On their refusal to perform the Agreement, notice was got issued by the plaintiff to defendants 3 to 5 and also to defendant-2 on 11.6.1977. This was replied by the defendants 2 to 5 contending that defendant-2 had sold the same in favour of defendant-1 on 15.6.1977. Therefore the plaintiff filed the suit for enforcement of the Agreement against defendants 1 to 5. The suit was for specific performance of the Agreement and also for injunction against defendants 3 to 5 who put the plaintiff in possession of the property under the Agreement of Sale dated 28.2.1977 and after the payment of second instalment of the consideration.

3. The suit was resisted by all the defendants. Defendants 3 to 5 denied the Agreement, consideration and delivery of possession pleaded by the plaintiff. In addition to these contentions, defendants 1 and 2 contended that they were bonafide purchasers for value without notice.

4. The Trial Court after appreciating the evidence, rejected the contentions of the defendants and decreed the suit in favour of the plaintiff for specific performance and injunction. The appeal taken to the lower appellate Court by the defendants 1 and 2 was dismissed. The cross-objections filed by defendants 3 to 5 were also rejected. Hence, the Second Appeal by defendant-1.

5. While admitting the Appeal, this Court has framed the following two substantial Questions of Law:-

1. Have the Courts-below erred in holding that the plaintiff was ready and willing to perform his part of the contract even though there was no issue on that question?

2. Have the Courts-below also erred in holding that the first defendant was not a bonafide purchaser of the suit property having had notice of the earlier agreement in favour of the plaintiff?

6. Question No. 1:- After having heard the Counsel on both sides, it is to be answered that this Question does not survive for consideration in view of the latest Decision of the Supreme Court in ASHOK BALU MALI v. STATE OF MAHARASHTRA, AIR 1995 SC 941. In para 5 of the Judgment on page 946, the Supreme Court observed as under:-

'This Court in Gomathinayagam Pillai v. Palaniswami Nadar, : [1967]1SCR227 , quoting with approval Ardeshir's case (AIR 1928 PC 208) (supra) had held as follows:- (para 6)

'But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail.'That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and wilting to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers. The High Court, therefore, was right in rejecting the petitioners' contention and rightly did not accept the plea. We do not find any ground warranting interference.'

In the light of law laid down by the Supreme Court to the above effect, it is no more open to defendant-1 appellant the contesting party before the Court to call on the respondent plaintiff to prove that he was ready and willing to perform his part of the agreement as contended in the Courts-below. His defence in respect of plaintiff's readiness and willingness to perform the contract coming under Section 16(1)(c) of the Specific Relief Act is impermissible. Therefore the question does not survive for consideration.

7. Question No. 2:- The second Question pertains to the findings recorded by both the Courts-below with regard to defendant-1 not being a bonafide purchaser for value. Relying on Section 100(5) CPC it is submitted by the respondents that both the Courts-below after referring to the evidence in detail, have held as a fact that the appellant-defendant-1 is not a bonafide purchaser for value without notice and no substantial question of law is involved for consideration. Having regard to the material on record this submission is accepted and the Question of Law framed at the time of the admission of the Appeal does not survive for consideration. The two Questions are accordingly answered and the Appeal is dismissed. Parties to bear their own costs.

Same Court & Year Karnataka · 1995 Same Parties Subbarayadu vs Ramanna Same Subject Property Same Judge A.B. Murgod, J. Acts & Sections Specific Relief Act, 1963 - Sections 16(1)

Property