High Court

Legal Reasoning

{1} S.A. 133 of 2022 R.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 133 OF 2022KRUSHNA RAMDAS PATIL AND ANOTHER….Appellant VERSUSSHYAM MOHANLAL AGRAWAL…..Respondent …..Advocate for Appellant : Mr. C.P. Patil h/f. Mr. Patil (Borse) Paresh B.Advocate for Respondents : Mr. Mukul S. Kulkarni For R/sole Caveator CORAM :S.G. CHAPALGAONKAR, J. DATE : 18 NOVEMBER, 2024. P.C. :-1.The appellant takes exception to the judgment and decreedated 17.11.2018 passed by Civil Judge (Senior Division) Amalner, inSpecial Civil Suit No. 1 of 2013, as well as judgment and decree dated8.12.2021 passed by District Judge, Amalner in R.C.A. No. 4 of 2019, bywhich the suit filed by respondent for specific performance of contracthas been decreed against the appellant (original plaintiff).2.For sake of convenience, hereinafter parties are referred to,as per their original status.3.The respondent/Plaintiff instituted Special Civil Suit No. 1 {2} S.A. 133 of 2022 R.odtof 2013 for specific performance of contract on the basis of agreement ofsale dated 11.11.2011 executed by the appellants/defendants in respectof land, which forms part and parcel of Gat No. 169/1A, situated atRanaiche Bk. Taluka, Amalner, District Jalgaon. It is the case of theplaintiff that defendants are the owners of the suit land. They agreed tosale the land in favour of the plaintiff, for consideration of Rs. 2,51,000/-Per Bigha ( 1 Bigha = 30R). It was agreed between the parties thatregistered sale deed of the suit land will be executed within one yearfrom the date of agreement. The plaintiff paid earnest amount of Rs. 5Lakhs at the time of execution of agreement. Thereafter, on 10.1.2012and 1.2.2012, he paid an amount of Rs. 1 Lakh each. Thereafter, on11.3.2012, paid an amount of Rs. 50,000/-. The defendantsacknowledged receipt of said amount by making endorsement on theagreement. Plaintiff was always ready and willing to perform his part ofthe contract, hence, requested defendants to accept the balanceconsideration of Rs. 13,83,500/- and execute the registered sale deed towhich defendants avoided. On 17.8.2012, the plaintiff issued publicnotice in Daily Newspaper regarding agreement to sale. On 13.10.2012.Plaintiff issued notice to the defendants for execution of registered saledeed. However, defendants failed to act upon the said notice. Hence,filed the suit.4.Defendants, however, refuted the claim of the plaintiff byfiling written statement, contending that plaintiff is a businessman,engaged in money lending. The defendants were in need of money.Taking benefit of the need of the defendants, he advanced money and gotexecuted agreement to sale by way of security. Plaintiff released furtheramount for satisfying the economic needs of the defendants. Defendants {3} S.A. 133 of 2022 R.odtare ready to repay the amount. However, on the basis of allegedagreement to sale, present suit is filed.5.The trial court framed issued and recorded evidence of theparties. Trial Court accepted plaintiffs case and decreed suit with furtherdirection to the plaintiff to deposit the balance consideration of Rs.14,67,165/- within a period of one month and directed defendants toexecute sale deed by removing encumbrances. The defendants weredirected to deliver possession on the execution of sale deed. The FirstAppellate Court confirmed the judgment and decree passed by the trialcourt while rejecting appeal filed by defendants.6. Mr. C.P. Patil, learned advocate appearing for theappellants/defendants would submit that trial court failed to frameappropriate issues based on pleadings of the parties. Althoughdefendants have pleaded about nature of transaction, being by way ofsecurity, no issue was framed to that effect. He would further submit thatthere was no compliance of the mandate under Section 16-C of theSpecific Relief Act about readiness and willingness of plaintiff to performthe contract. He points out from the cross-examination of the plaintiffthat during the period from 30.10.2012 and 1.10.2013, plaintiff couldnot tell the dates when he attempted to contact defendants for executionof the sale deed. Plaintiff never asked defendants to remove theencumbrances. In the notice Exh.38, there is no mention about theearnest amount. The plaintiff never sought extension of time to completethe transaction. Plaintiff could not demonstrate the availability of fundsto complete the transaction. His bank statement placed at Exh.58 doesnot show sufficient funds to complete the transaction. Plaintiff has not {4} S.A. 133 of 2022 R.odtattempted to deposit balance consideration amount in the trial Court.Mr. Patil, in support of his contention, placed reliance on the judgment ofthe Supreme Court of India in the matter of N.P. Thirugnanam (D) by LRs..Petitioners vs. Dr. R. Jagan Mokhan Rao and others .. Respondents, AIR1996 SC 116.7.Per contra, Mr. Mukul Kulkarni, learned advocate for therespondent/plaintiff submits that both courts have concurrently recordeda finding that transaction was nothing but an agreement to sale.Defendants have not disputed the execution of documents or receipt ofearnest amount. According to him, the agreement was executed on11.11.2011. The plaintiff paid Rs. 5 Lakhs by way of Earnest Money.Thereafter on 15.11.2012, 1.12.2012 and 11.3.2012, he made furtherpayment of Rs. 2,50,000/-. However, when the defendants made attemptto sale out the property to a third person, plaintiff had issued a publicnotice dated 17.8.2012 and second notice dated 3.10.2012 seekingexecution of sale deed. He would further submit that the plaintiff hasalready deposited amount towards balance consideration withinstipulated period, as directed by the trial court. According to him, nosubstantial question of law is involved in this second appeal.8.Having considered submissions advanced by learnedadvocates for respective parties and on perusal of the reasoning adoptedby the courts below, it can be gathered that there is no dispute regardingexecution of document in the nature of agreement to sale and payment ofearnest amount of Rs. 5 Lakhs at the time of agreement and furtheramount of Rs. 2,50,000/- within 4 months thereafter. There is no disputethat plaintiff had issued a public notice dated 17.8.2012 asserting his {5} S.A. 133 of 2022 R.odtright to purchase the property based on agreement to sale and noticedated 7.10.2012 issued, calling upon the defendants to execute theregistered sale deed.9.Although, defendants have raised a plea that agreement ofsale was executed by way of security towards advances made by theplaintiff, there is absolutely no evidence in support of such contention. Itcan be observed that defendants have not only accepted the amount atthe time of agreement to sale, but accepted further amount in 3installments, which is acknowledged by them. Although, Mr. C.P. Patil,learned advocate for appellants tries to impress upon this court that non-framing of the issue as regards the nature of the transaction has beenfatal, his submission cannot be accepted for the reason that during thependency of the suit, defendants have never made any attempt forrecasting of issue. Perusal of grounds in appeal memo filed before theFirst Appellate Court shows that no objection as regards to non framingof issue has been pressed in service before Appellate Court. For the firsttime, submission is advanced in this appeal. However, nothing is broughton record depicting any prejudice being caused to the defendants.Essentially, the suit was for specific performance of contract. It waspossible for the defendants to lead evidence as regards to the nature oftransaction and pursue trial court to accept the plea. However, such isnot the case here. The plea taken in the written statement appears to beformal which has not been pressed into service either during the courseof trial or before the First Appellate Court. In absence of any prejudice tothe defendants, the contention cannot be accepted at this stage. {6} S.A. 133 of 2022 R.odt10.Second contention raised on behalf of the appellants is thatplaintiff failed to prove readiness and willingness in terms of Section 16-C of the Specific Relief Act. Relying upon judgment in case of N.P.Thirugnanam (supra), it is contended that continuous readiness andwillingness on the part of plaintiff is a condition precedent to grant reliefof specific performance and if plaintiff fails to either aver or prove thesame, he must fail. There cannot be dispute over the proposition of lawespoused by the Apex Court in the judgment cited supra. However, in thepresent case, both the fact finding courts have recorded a concurrentfinding that the plaintiff was ready and willing to perform his part of thecontract. On the basis of stray admissions and circumstances narratedon behalf of the appellants, it is difficult to un-suit the plaintiff. On theother hand, it can be observed that during the period of four monthsafter execution of agreement to sale, plaintiff has released amount of Rs.2,50,000/- in addition, Rs. 5 Lakhs paid at the time of execution ofagreement. When the defendants attempted to transfer the property to athird party, plaintiff immediately came in action. He issued legal noticewithin time span of one year as fixed for completing transaction, therebycalling defendants to execute the sale deed. Time of one year wasstipulated under the agreement for execution of sale deed. During thecourse of cross-examination when the plaintiff was asked about readinessand willingness to deposit the amount, he positively responded. Evenafter passing of decree, he has deposited balance consideration amountwithin stipulated period.11.In this background, concurrent finding that plaintiffestablished his readiness and willingness to perform his part of contractneeds no interference. No perversity in approach of courts below in {7} S.A. 133 of 2022 R.odtdiscernible. In that view of the matter, no substantial question of law ismade out. 12.Second appeal sans merit, stands dismissed.[S.G. CHAPALGAONKAR, J] grt/-