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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO: 75 / 1998
Shrikrishna Ganuji Sonone
Aged about 46 years, occu: Agril.
R/o Matargaon (Bk) Tal. Shegoan
Dist. Buldana. ... ...APPELLANT
v e r s u s
Vitthal s/o Shankar Bajre
Aged about 51 years, Cultivator
R/o Matargaon (Bk) Tal.Shegaon
Dist. Buldana. ...RESPONDENT
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Mr A K De, Advocate for appellant
Mr. G G Mishra & other Advocates for Respondent are absent
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CORAM: A.P.BHANGALE, J.
DATED : 17th December, 2009
JUDGMENT :
The appellant has challenged the judgment and decree passed by first Appellate Court by learned Additional District Judge Khamgaon in Regular Civil Appeal No. 68 /1998 decided on 14.10.1997 whereby the judgment and decree of specific performance in Regular Civil Suit No. 86/1987 decided by learned Civil Judge Junior Division, Khamgaon, on 22.4.1988, was set aside.
::: Downloaded on - 09/06/2013 15:26:11 ::: 22. The respondent (original defendant ) owned a field Gat No. 36 admeasuring 1.20 hectare at village Brahmanwada, Tah.
Shegaon Dist. Buldana. On 13.1.1987, he executed an agreement to sell it (Exh.20) to the plaintiff (appellant) for a consideration of Rs.
17,000/- upon receiving earnest money in the sum of Rs. 5,000/-. The parties agreed to execute the sale deed on 31.1.1987. Since the defendant did not execute the sale deed as promised, the plaintiff issued notice dated 24.3.1987 (Exh.21) calling upon defendant to execute sale deed on 31.3.1987; but defendant did not act upon notice though plaintiff was ready and willing to perform his part of contract.
Thus, RCS No.86/1987 was instituted for specific performance of contract. The defendant had resisted the suit giving lame excuse that the field was mortgaged with a Co-operative Society, Matargaon and denied the claim for specific performance of contract. Upon evidence led the trial Court decreed the suit of the plaintiff and directed the defendant to execute sale deed of the suit property free from encumbrances and also ordered inquiry into mesne profits.
3. In support of the appeal, learned Advocate for appellant criticized the impugned judgment and order by first Appellate Court denying specific performance that the discretion to grant specific ::: Downloaded on - 09/06/2013 15:26:11 ::: 3 performance of contract was rightly exercised by the trial Court. The first Appellate Court failed to notice that ordinarily specific performance has to be granted unless there are strong equities against the plaintiff to deny him the specific relief of performance of the contract. Considering concurrent findings of facts about readiness and willingness of the plaintiff to perform his part of the suit agreement to execute sale deed, the first Appellate Court appears to have erred in law in setting aside the judgment and decree of the trial Court.
4. In Prakash Chandra vs. Angadal : AIR 1979 SC 1241 :
(1979 ) 4 SCC 393, it is held in para No.9 as under:
" The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable consideration point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case the conduct of the appellant has not been such as to dis-entitle him to the relief of specific performance. He has acted fairly throughout. There is nothing to show that by any act or omission or commission he encouraged Mohsin Ali Qurban Hussain to enter into sale with the first and second respondents"
Thus, the specific performance of contract was ordered by the Apex Court. The ruling is also followed in Kartarsingh vs. Harjindersingh:
::: Downloaded on - 09/06/2013 15:26:11 ::: 4AIR 1990 SC 854. The Apex Court maintained the decree for specific performance of agreement as against the vendor who had signed it and whose property was identifiable by his specific share.
5. Looking to the settled legal position, therefore, the trial Court had rightly granted specific relief in favour of the plaintiff. There were no any compelling or exceptional reasons in the facts and circumstances to deny the relief of specific performance of the suit agreement to the plaintiff.
6. In the result, the judgment and order by the first Appellate Court impugned herein is quashed and set aside and the judgment and order passed by the trial Court is restored. The suit is decreed as ordered by the trial Court. Appeal is allowed accordingly, with costs.
JUDGE sahare ::: Downloaded on - 09/06/2013 15:26:11 :::