Smt. Tejaswini Wd/O Vinod Bobde ... vs Shri Mahadeo Ganpat Bodhe
2021 Latest Caselaw 9879 Bom

Order                                                                                     4 SA 149-2021
                                                   1

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

                                 SECOND APPEAL NO.149/2021
                            Smt. Tejaswini wd/o Vinod Bobde and others,
                                             -VERSUS-
                                    Shri Mahadeo Ganpat Bodhe.


Office notes, Office Memoranda of
Coram, appearances, Court's orders                           Court's or Judge's Orders
or directions and Registrar's orders.

                                         Shri Omkar R. Deshpande, Advocate for appellants.

                                         CORAM : S.M. MODAK, J.

DATE : JULY 28, 2021.

Hearing was conducted through Video Conferencing and the learned counsel agreed that the audio and visual quality was proper.

2. Heard Shri Deshpande, learned Advocate for the appellants/original defendants. The suit of the respondent- plaintiff for specific performance was decreed. When the defendants came in first appeal, the judgment of the Trial Court was confirmed.

3. According to the appellants, the agreement in question was not an agreement for sale but, it was an agreement to advance a loan. According to the appellants, the Trial Court as well as the Fist Appellate Court has not appreciated the evidence and wrongly concluded that the agreement is the agreement for sale. There is also an argument that the appellant hurriedly issued the suit notice even prior to the date fixed for execution of sale-deed in the agreement in question.

Order 4 SA 149-2021

4. According to the appellants, both the Courts below ought to have ordered for refund of earnest money in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case of Madhukar Nivrutti Jagtap and Ors. Vs. Smt. Pramilabai Chandulal Parandekar and Ors. reported in (2019) SCC Online SC 1026.

5. Issue notice before admission to the respondent on following substantial questions of law:

a) Whether the Trial Court and First Appellate Court have wrongly concluded that agreement in question is the agreement for sale and not an agreement for advancing loan?

b) Whether the Trial Court and First Appellate Court have wrongly concluded about the readiness and willingness on the part of the plaintiff?

c) Whether the Trial Court and First Appellate Court ought to have ordered for refund of the earnest money instead of granting specific performance?

6. Matter be kept on 03/09/2021.

CIVIL APPLICATION (CAS) NO.431/2021

The appellants apprehend that on the basis of the judgment of the First Appellate Court, the plaintiff will execute the decree through Executing Court. Earlier the first

Order 4 SA 149-2021

appeal of the present appellants was filed in this Court. But, it was transferred to the District Court in view of enhancement of pecuniary jurisdiction. My attention is brought to an order dated 22/01/2003 passed by this Court thereby granting conditional stay to the execution of Trial Court decree.

The appellants' claim that since then, they have regularly and punctually deposited Rs.15,000/- every year. The said amount comes roughly more than Rs.2,70,000/-. They are ready to deposit similar amount, if the stay is granted. Hence the following order:

i) Stay is granted to the execution of decree of the Trial Court and the First Appellate Court till appearance of respondent, subject to appellants depositing Rs.20,000/- per year;

ii) The year of payment be calculated from July to June and amount be paid in every September. Further decision about the disbursal of that amount will be taken once the respondent appears.

JUDGE

R.S. Sahare