926.sa.288.2023.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.288 OF 2023
Manohar Gopal Kailkar ...Appellant
Versus
Madhukar Narayan Dhondage & Ors. ...Respondents
Mr. C. G. Gavnekar, a/w Mr. Ashutosh Gavnekar & Mr. Rohit
Parab, for the Appellant.
CORAM : MADHAV J. JAMDAR, J.
DATE : 28th April, 2023 P.C.:
1. Heard Mr. Gavnekar, learned counsel appearing for the Appellant-Plaintiff.
2. The Plaintiff has filed the suit for specific performance of the agreement dated 17th January, 1997. The said agreement was executed between the Plaintiff and Narayan Babaji Dhondge, the Original owner. The Respondents are the Original Defendants i.e. legal heirs and representatives of said Narayan Babaji Dhondge.
3. Both the learned Trial Court as well as the learned First Appellate Court have concurrently held that, the Plaintiff has proved that, said Narayan Babaji Dhondge has executed the Sale agreement in favour of the Plaintiff and he has paid entire consideration of Rs. 66,000/- as per the said agreement to ::: Uploaded on - 29/04/2023 ::: Downloaded on - 30/04/2023 12:31:46 :::
926.sa.288.2023.doc deceased Narayan Babaji Dhondge. Both the Courts have non suited the Plaintiff on the ground that, the Plaintiff has failed to prove his readiness and willingness. Both the Courts have held that, it was the Plaintiff's responsibility to obtain the permission and as the permission was not obtained, the Plaintiff has failed to prove the readiness and willingness.
4. Mr. Gavnekar, the learned counsel appearing for the Appellant has pointed out the terms and conditions of the registered agreement dated 17 th January, 1997 wherein responsibility is on said Narayan Babaji Dhondge to get the permission. Mr. Gavnekar states that the Plaintiff has paid the entire consideration. Therefore, the finding regarding readiness and willingness is contrary to the evidence on record.
5. Therefore, the Second Appeal is admitted on the following substantial questions of law :-
" i. Whether the judgment and decree of the learned Trial Court and the learned First Appellate Court of dismissing the suit of specific performance by holding that the Plaintiff has failed to prove readiness and willingness to perform his part of contract as he has not obtained permission from the authority is contrary to the terms and conditions of agreement of sale dated 17th January, 1997 (Exhibit-51)? ii. Whether the finding recorded by both the Courts that, the Plaintiff has failed to prove his readiness and ::: Uploaded on - 29/04/2023 ::: Downloaded on - 30/04/2023 12:31:46 :::
926.sa.288.2023.doc willingness is contrary to the evidence on record as the entire consideration has been paid by the Plaintiff and as per the terms and conditions of the agreement it is the responsibility of the Vendor to obtain the permission?
iii. Whether in the facts and circumstances of this case as both the Courts have concurrently found that, the agreement dated 17th January, 1997 is proved and the payment of entire consideration by the plaintiff is proved, the decree for specific performance should have been granted subject to obtaining the necessary permission from the Collector?"
(MADHAV J. JAMDAR, J.) ::: Uploaded on - 29/04/2023 ::: Downloaded on - 30/04/2023 12:31:46 :::