Second Appeal No. 218 of 2000. Case: Purushottam Vs Sheelabai. High Court of Bombay (India)
| Case Number | Second Appeal No. 218 of 2000 |
| Counsel | For Appellant: Amol Mardikar, Adv. and For Respondents: A.V. Bhide, Adv. |
| Judges | A. P. Bhangale, J. |
| Issue | Specific Relief Act, 1963 - Sections 10, 16(c), 20; Transfer of Property Act, 1882 - Section 52 |
| Judgement Date | September 10, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
A. P. Bhangale, J.
1. Heard learned counsel for the rival parties.
2. By this second appeal, the appellant-plaintiff has sought to challenge Judgment and Order dt. 4.9.1999 passed by learned District Judge, Yavatmal in Regular Civil Appeal No. 112 of 1995 whereby the decree for specific performance of the suit agreement passed in favour of the appellant-plaintiff by Judgment and Order dt. 30.6.1995 by learned Civil Judge (Sr.Dn.), Ner, District Yavatmal in Regular Civil Suit No. 57 of 1993 was modified by refusing specific performance of the agreement to sell and granting merely refund of the earnest money with interest.
3. The facts of the case stated, are thus:
On 23.2.2004, this Second Appeal was admitted on the following substantial question of law:
Whether the First Appellate Court is wrong in setting aside the findings of the trial Court on the readiness and willingness when the appellant-plaintiff was ready and willing to perform his part of the contract and there was specific pleading in the plaint?
The substantial question of law as stated above must be answered in the affirmative for the following reasons:
4. The dispute between the parties relates to agricultural land bearing Survey No. 33, total admeasuring 3H 23 R, situated at village Udapur, Taluka Ner, District Yavatmal. It is the case of the appellant-plaintiff that respondent No. 1-defendant and her deceased husband had agreed to sell southern portion of the said land admeasuring 1H 21R to the appellant/plaintiff by an agreement to sell dt. 7.4.1991 for valuable consideration of Rs. 15,000/-. The appellant-plaintiff had paid substantive part of consideration in the form of earnest money in the sum of Rs. 9,000/- to respondents-defendants and balance amount of consideration in the sum of Rs. 6,000/- was payable on 18.1.1992 when the parties had agreed to execute the registered sale deed. Thus, agreement to sell was entered into (Exh.45). It is the case of the appellant/plaintiff that he had gone to the Office of the Sub Registrar, Ner, District Yavatmal on 19.1.1992. The appellant-plaintiff had purchased the Stamp Paper (Exh.46) to show his presence in the Office of Sub Registrar, Ner to execute the registered sale deed as agreed between the parties, but the respondents-defendants did not turn up in the Office of Sub Registrar to execute the registered sale deed as agreed.
5. On the next day, the appellant-plaintiff went to the house of respondents-defendants to question them about their absence for execution of the registered sale deed as agreed. At that time, the respondents-defendants assured that they would execute the registered sale deed within 8 to 12 days. The appellant-plaintiff waited and since there was no response from the respondents-defendants, the appellant-plaintiff served notice dt. 21.4.1993 (Exh.47) calling upon the respondents-defendants to appear in the Office of the Sub Registrar on 30.4.1993 and to execute the registered sale deed as agreed between the parties.
6. Accordingly, on the date appointed, the appellant-plaintiff though attended the Office of the Sub-Registrar again on 30.4.1993 and also purchased Stamp Paper to show his presence in the Office of the Sub Registrar to get the registered sale deed executed as agreed between the parties, but the respondents-defendants did not turn up even on that extended date. Thus, ultimately, with no other alternative left for the appellant-plaintiff, he was constrained to file the suit for specific performance of contract to insist upon execution of the registered sale deed as agreed or in the alternative, refund of the earnest money along with interest accrued thereupon.
7. Regular Civil Suit No. 57 of 1993 was instituted on 1.10.1993 after the respondents-defendants by their reply (Exh.57) dt. 31.5.1993, acknowledged on 3.6.1993 by the appellant-plaintiff, refused to execute the registered sale deed as agreed between the parties. Regular Civil Suit No. 57 of 1993 instituted in the Court of learned Civil Judge (Jr.Dn.), Ner, District Yavatmal was decided by Judgment and Order, dt. 30.6.1995. Learned Judge of the trial Court found that the respondents-defendants had entered into the agreement to sell dt. 7.4.1991 in respect of the aforesaid agricultural land admeasuring 1H, 21R out of agricultural land bearing Survey No. 33, total admeasuring 3H, 23 R, situated at village Udapur, Taluka Ner, District Yavatmal. Learned Judge of the trial Court further found that the appellant-plaintiff had proved payment of earnest money in the sum of Rs. 9,000/- pursuant to the agreement to sell dt. 7.4.1991 and that the appellant-plaintiff was ready and willing to perform his part of the contract in the said agreement to execute the registered sale deed.
8. The defence put up by the respondents-defendants was that the suit transaction is in the nature of security for loan and that the appellant-plaintiff does a money lending business and furthermore that the respondents-defendants have the only source of income from the agricultural land. After recording the evidence led by the parties and hearing the parties, findings in favour of the appellant-plaintiff were recorded and the suit was decreed with costs. In the result, the respondents-defendants were directed to execute the registered sale deed of the suit property admeasuring 1H, 21R in favour of the appellant-plaintiff within three months from the date of the decree at the costs...
To continue reading
Request your trial