Dr. Yashwantrao Bhaskarrao ... vs Raghunath Kisan Saindane
2022 Latest Caselaw 2236 Bom

                                     .. 1 ..

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      26 SECOND APPEAL NO.616 OF 2021

Dr. Yashwantrao Bhaskarrao Deshmukh                               .. Appellant

         Versus

Raghunath Kisan Saindane                                          .. Respondent
                                          ...
                  Advocate for Appellant : Mr. Vinesh C. Solshe
                  Advocate for Respondent : Mr. S.P. Brahme
                                       ...
                     WITH CA/12145/2017 IN SA/616/2021
                     WITH CA/8499/2020 IN SA/616/2021
                                    ...

                                    CORAM :     MANGESH S. PATIL, J.

                                    DATE :      07-03-2022

PER COURT :

.                 Heard both the sides.

2. The appellant is the original defendant who has suffered

a decree for specific performance of an agreement to sale the suit

property, the execution of which is also complete.

3. Though the trial court upheld that it was an agreement

to sale the suit property it refused to grant specific performance

referring to some supervening events whereby an additional amount

of Rs.90,000/- was paid by the respondent to the appellant, which

.. 2 ..

was later on allowed to be refunded. There was one more reason

assigned by the trial court that there was no sufficient evidence in

respect of a subsequent payment of Rs.10,000/- as well. Coupled

with the fact that this led to the trial court to reach a conclusion that

there was some variance in the original terms and conditions, as a

ground to refuse specific performance, it also recorded a finding that

the circumstances and the evidence did not demonstrate that the

respondent was always ready and willing to perform his part of the

contract.

4. By the judgment and order under challenge, the lower

appellate court has reversed the discretion that was refused to be

exercised by the trial court and has granted the specific performance.

5. In the circumstances, the Second Appeal stands admitted

on following substantial questions of law:

(a) Whether the facts, circumstances and the evidence on the record and the discretion exercised by the trial court was such as could have enabled the lower appellate court to reverse it?

(b) Whether the conclusion arrived at by the trial court that the respondent was not ever ready and willing to perform his part of the contract was so

.. 3 ..

arbitrary, capricious and perverse as would have enabled the lower appellate court to reverse it?

6. Since admittedly, the execution is also over, by way of

interim relief, the respondent shall not create any third party interest

in the suit property till decision of the Second Appeal.

7. The hearing of the Second Appeal stands expedited in

view of the direction of the Supreme Court in Civil Appeal No.6315 of

2021 arising out of Special Leave Petition (C) No.27874 of 2018

dated 08-10-2021.

( MANGESH S. PATIL ) JUDGE ...

Gajanan