Maroti S/O Tukaram Bhagat (Dead) ... vs Dilip Chhaganala Munot
2017 Latest Caselaw 6768 Bom

sa J-378-17                                                                         1/4


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                           SECOND APPEAL No. 378 OF 2017

1]     Maroti s/o Tukaram Bhagat
       Aged about 80 years, Occ: Cultivator
       R/o Yerla, Tq. Hinganghat
       District-Wardha
       OR
       At village Yensa, Post. Tembhurna
       Tq. Warora, District-Chandrapur. 
       (Since deceased through Legal heirs)

       (1) Shanukabai Maroti Bhagat
           Aged about 85 years, 
           R/o Yerla, Tah. Hinganghat
           District-Wardha.

          (2) Mahendra Maroti Bhagat
                Aged about 58 years, 
                R/o Yensa, Tah. Warora, 
                District-Wardha.

          (3) Sulochana Kawdu Thamke
                Aged about 54 years, 
                R/o Veni, Tah. Hinganghat
                District-Wardha.

          (4) Baba Maroti Bhagat
                Aged about 42 years, 
                R/o Warora, Tah. Warora, 
                District-Wardha.

          (5) Kalpana Sanjay Waghde
                Aged about 35 years, 
                R/o Ankleshar, Tah. Ankleshar, 
                District-Bharuch, Gujrat.

          (6) Vandana Surendra Bhagat
                Aged about 54 years, 
                R/o Yerla, Tah. Hinganghat
                District-Wardha.



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 sa J-378-17                                                                                             2/4




          (7) Pawan Surendra Bhagat
                Aged about 27 years, 
                R/o Wadgaon Keri, Pune.

           (8) Sushil Surendra Bhagat
                Aged about 22 years, 
                R/o Yerla, Tah. Hinganghat
                District-Wardha.                                  .......APPELLANTS

                 ...V E R S U S...

        Dilip Chhaganlal Munot
        Aged about 50 years, Occ.: Cultivator
        R/o Pohana, Tq. Hinganghat
        District-Wardha.                                     .......RESPONDENT
-------------------------------------------------------------------------------------------
         Shri R. S. Kurekar, Advocate for Appellants.
         Shri A.G. Gharote, Advocate for Respondent.
-------------------------------------------------------------------------------------------
                                    CORAM  :  A. S. CHANDURKAR, J. 

                                    DATE     :  4th September, 2017 

Oral Judgment : 

The appellant is the original defendant who is aggrieved by the

decree of specific performance passed by the First Appellate Court.

2] It is the case of the respondent that on 7.12.2005, an agreement

was entered into for sale of agricultural land for a consideration of

Rs.3,87,530/-. An earnest amount of Rs.50,000/- was paid. This agreement

was for land admeasuring 2.09 H.R. On the same day, there was another

agreement for sale of 1.62 H.R. land for consideration of Rs.1,00,000/-. The

earnest amount of Rs.50,000/- was paid. As the defendant refused to

complete the transaction, the plaintiff issued notice and then filed suit for

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specific performance. The defendant raised a plea that the transaction

between the parties was a money lending transaction. It was further pleaded

that the value of the land was Rs.2,00,000/- per acre.

3] The trial Court held the agreements to be duly proved. It however,

held that greater hardship would be caused to the defendant, if the decree

for specific performance was passed. It accordingly directed refund of earnest

amount with interest. In the appeal filed by the plaintiff decree for specific

performance came to be passed.

4] Shri R. S. Kurekar, learned counsel for the appellant submitted

that trial Court rightly held that greater hardship would be caused to the

defendant, if the decree for specific performance was passed. According to

him, all the relevant circumstances were taken into consideration by the trial

Court while granting relief of refund of earnest amount. According to him,

the appellate Court did not consider these aspects and instead passed a

decree of specific performance. He referred to the pleadings in paragraph-15

of the written statement on the aspect of hardship. It was thus submitted that

the decree passed by the trial Court deserves to be restored.

5] Shri A. G. Gharote, learned counsel for the respondent submitted

that in the written statement there was no pleading with regard to the

hardship. It was urged that as per the judgment of the Hon'ble Supreme

sa J-378-17 4/4

Court in Prakash Chandra Vs. Narayan, AIR 2012 Supreme Court 2826, it

was necessary to plead and also prove the aspect of hardship. Moreover, the

question of hardship was a question of fact. Hence, no interference was

called for.

6] Perused the impugned judgment as well as pleadings of the

parties. In the specific pleadings, the execution of the agreement was denied.

It was only pleaded that the land was valued at Rs.2,00,000/- per acre. There

were no pleadings with regard to likelihood of hardship being caused, if the

decree for specific performance was passed. In absence of such pleadings, the

trial Court was not justified in going into that aspect. The appellate Court has

rightly held that in absence of any pleading, the question of hardship could

not have been gone into. This adjudication is in accordance with the law as

laid down in Prakash Chandra (supra).

7] The other findings recorded on the entitlement to relief of specific

performance are the findings of facts. The appeal, therefore, does not give

rise to the substantial question of law. The same is dismissed. No costs.

JUDGE

rgingole