Bombay High Court
Smt. Laxmi Mani Wd/O Late M.K. ... vs Miss Shama D/O Shivnarayansingh ... on 29 July, 2021
Bench: S. M. Modak
Order 15 sa 138-2021
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.138/2021
Smt. Laxmi Mani wd/o Late M.K. Swami and others,
-VERSUS-
Miss Shama d/o Shivnarayansing Tomar and others.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri N.P. Lambat, Advocate for appellants.
CORAM : S.M. MODAK, J.
DATE : JULY 29, 2021.
Hearing was conducted through Video
Conferencing and the learned counsel agreed that the audio
and visual quality was proper.
2. Out of the office objections, the learned Advocate
for the appellants submitted that deficit Court fees has
already been paid. He undertakes to remove the office
objections within a period of two weeks.
3. The present appellants are the legal
representatives of M.K. Swami. They have decided to sell a
plot/house standing thereon as per the agreement dated
22/02/1996 with original plaintiffs. The main reason for
entering into an agreement is to clear the bank dues. The
total consideration was Rs.6,75,000/-. The plaintiffs have
paid Rs.1,50,000/-. It has been agreed that the loan of the
Bank to the tune of Rs.2,64,000/- is to be paid by the
vendors/defendants out of the part consideration to be paid
by the purchasers/plaintiffs.
Order 15 sa 138-2021
4. The main contention is that even though, the
defendants have performed their part of the agreement, the
loan could not be repaid for want of payment of remaining
consideration by the vendors/purchasers. The vendors have
also obtained No Objection Certificate from Nagpur
Improvement Trust on 10/06/1996. In spite of intimating the
vendors, as per their letter dated 09/09/1996 to pay the
remaining consideration, but the purchasers have not
complied. Ultimately, the vendors as per their letter dated
22/12/1998 have informed about the cancellation of the
agreement and for forfeiture of the earnest money.
5. On this background, the purchasers have issued a
notice on 03/02/1999 after three years and then filed a suit
for specific performance. The Trial Court was pleased to
refuse specific performance and ordered refund of the earnest
money. The issue of readiness and willingness on the part of
the purchasers was answered in the negative. However, the
First Appellate Court reversed the findings on the point of
readiness and willingness and finally decreed the suit for
specific performance.
6. The said judgment is under challenge. The First
Appellate Court has not accepted the theory of issuance of
letter dated 09/09/1996. It was sent by under postal
certificate. For want of correct address, the First Appellate
Court has not believed the said story. One more aspect for
which the findings of the First Appellate Court are challenged.
It is on the point of payment of remaining consideration by
the purchasers. The plaintiff no.1 being a Doctor of J.J.
Order 15 sa 138-2021
Hospital, Bombay, the First Appellate Court presumed that
she was having means to pay the amount of remaining
consideration.
7. I have find merit in the arguments reproduced
above. Hence, issue notice before admission to the
respondents on following substantial questions of law:
i) Whether the First Appellate Court
has rightly appreciated the evidence on the
point of readiness and willingness in favour
of the original plaintiffs?
ii) Whether the First Appellate Court
was proper in exercising the discretion of
granting specific performance in favour of
the purchasers?
8. Matter be kept on 02/09/2021.
CIVIL APPLICATION (CAS) NO.404/2021
The First Appellate Court has granted specific
performance by reversing the decree of the Trial Court. If the
decree is not stayed, the purpose of filing Second Appeal will
be frustrated. Hence, relief granted in terms of prayer clause
(i) till appearance of the respondents.
JUDGE
R.S. Sahare
