Bombay High Court
Shri Dhananjay S/O Wasudeo Dixit ... vs Shri Kumar S/O Wamanrao Dumbhare ... on 5 September, 2022
Bench: Avinash G. Gharote
(1) 19.sa.102.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO.102 OF 2022
Shri Dhananjay s/o Wasudeo Dixit and another
Vs.
Shri Kumar s/o Wamanrao Dumbhare and another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Abhijeet Khare, Advocate for appellants.
Mr. M. R. Joharapurkar, Advocate for respondent no.1.
CORAM : AVINASH G. GHAROTE, J.
DATE : 05/09/2022
1. Heard Mr. Khare, learned counsel for the
appellants and Mr. Joharapurkar, learned counsel for the
respondent no.1.
2. This Court by an order dated 4.4.2022 had
framed the following substantial questions of law:
"1. Whether both the courts below were right
in holding that plaintiffs could not prove their
readiness and willingness to perform their part
of contract even when it is held in favour of
plaintiffs that time was not the essence of
contract ?
2. Whether both the courts below were right
in holding that plaintiffs were not ready and
willing to perform their part of contract even
when Exh.-47 clearly shows that they already
had a sanctioned loan for purchase of house
property ?"
(2) 19.sa.102.2022
3. It is contended by Mr. Khare, learned
counsel for the appellants, that since the only issue
revolves around the readiness and willingness of the
plaintiffs/appellants in performing his part of the
contract, the findings by the Courts below are vitiated on
the ground that for the purpose of proving readiness and
willingness it is not necessary in law, to be ready with a
scheme for financing the transaction or with ready
money in pocket. Even otherwise, he submits that in
September 2008, itself the appellant no.2 had already
applied for a loan to the HDFC Bank along with his wife
and a loan of Rs.10,25,000/- was already sanctioned,
which is reflected from Exh.47 (pg.140). He therefore
submits, that both the Courts below in ignoring the
nature of the requirement to prove readiness and
willingness in view of Exh.47 have clearly erred in
answering the issue against the appellants/plaintiffs. It
is further contended, that since the suit property was
mortgaged to the IDBI Bank by the respondents, it was
necessary for the respondents to clear the mortgage in
order to pass clear title to the appellants which having
not being done and there being no time frame fixed in
the agreement for concluding the contract, the findings
of the Courts below in respect of the readiness and
willingness stands vitiated.
4. Mr. Joharapurkar, learned counsel for the
respondent no.1 submits, that the agreement in question
(3) 19.sa.102.2022
was in fact a nominal document executed as a security
for the loan of Rs.7,00,000/- advanced by the appellants
to the respondents. He therefore submits, that even
presuming otherwise, it was for the appellants to have
made available the balance consideration to the
respondents so that the respondents could have paid off
the loan to the IDBI Bank. That having not being done
the findings in regard to absence of readiness and
willingness by the appellants/plaintiffs, clearly stand
justified.
5. A perusal of the judgment of the learned
trial Court dated 26.4.2019 indicates, that the issue
regrading the existence of the agreement of sale dated
8.3.2008 for the total consideration of Rs.13,50,000/-
and receipt of part consideration by the respondents of
Rs.7,00,000/-, has been answered in the affirmative by
both the Courts below. So also, the issue raised in
defence that the transaction was a loan transaction, has
been answered in the negative by the Courts below. The
only ground on which specific performance has been
refused is the absence of readiness and willingness on
part of the plaintiffs to pay the balance of consideration
of Rs.6,50,000/-. Admittedly, there is no time limit fixed
in the agreement dated 8.3.2008. Exh.47 (pg. 140)
indicates that loan of Rs.10,25,000/- was sanctioned
jointly in the name of appellant no.2 Vaibhav Wasudeo
Dixit and his wife Apurva Vaibhav Dixit by the HDFC
(4) 19.sa.102.2022
Bank on 26.9.2008, which was a housing loan. That
apart, a perusal of the agreement in question would
indicate that in clause 9, the respondents had disclosed
the mortgage of the suit property with the IDBI Bank
against the loan taken by them and further an
undertaking to clear/to pay all the outstanding
loan/charges against the apartment before the sale deed
and to execute and register the sale deed free from all
encumbrances. The existence of this clause would
naturally indicate that it was the obligation on part of
the respondents to have cleared off the mortgage from
IDBI Bank and given an intimation to the appellants of
such a clearance and indicated that the property was
then clear of the mortgage and the respondents were in a
position to transfer a clear title to the
appellants/plaintiffs. This however has never been done.
The contention by Mr. Joharapurkar, learned counsel for
the respondent no.1, that there was total inaction on part
of the appellants from 2008 to 2011 when on 6.7.2011
for the first time a notice was issued by the
plaintiffs/appellants expressing their readiness and
willingness to pay the balance consideration and execute
the sale deed after obtaining no due certificate from the
IDBI Bank, which adversely reflects upon the readiness
and willingness of the appellants, and therefore the
Courts below were justified in rendering a finding to this
effect, in my considered opinion, is not correct, as it is
the settled position of law, that it is not necessary for a
(5) 19.sa.102.2022
proposed purchaser to have a ready scheme of finance
for the transaction in question. The readiness and
willingness in the instance case, is clearly reflected from
the averments as contained in paras 5, 5(a), 7 and 8 of
the plaint, which position as indicated above is
supported by Exh.47. It is therefore apparent, that the
test of readiness and willingness stood duly satisfied by
the appellants by virtue of the averments in the plaint
coupled with Exh 47. The findings in paras 23 to 25 of
the judgment of the learned trial Court is based upon an
incorrect perception of Exh. 47, as it has decided the
issue of readiness and willingness against the appellants
on the ground that Exh.47 according to him, was issued
in the name of the wife of plaintiff no.2 and not to the
plaintiff no.2, which however, on a perusal of Exh.47
(pg.140) indicates that it is jointly addressed to the
plaintiff no.2 as well as his wife.
6. Though, it is contended by Mr. Joharapurkar,
learned counsel for the respondent no.1 that Exh 47 does
not indicate that loan was granted for the purchase of
the suit property, even if Exh. 47 is ignored, since the law
does not mandate that the purchaser should come with
ready money in his pockets or fully financed scheme for
the transaction, to demonstrate readiness and
willingness, mere non mention of the suit property in
Exh. 47 would not detract from the readiness and
willingness of the appellants in this matter, as that stage
(6) 19.sa.102.2022
would arise only after the respondents/defendants had
cleared the mortgage with the IDBI Bank and sent an
intimation to the plaintiffs/appellants which was never
done in the instant matter.
7. It is also material to note, that in the reply
dated 11.7.2011 sent by the respondent no.1, in
pursuance to the notice dated 6.7.2011 by the
appellants, in para 2 thereof, there is a categoric
admission that after negotiations the respondent no.1
had executed an agreement to sell the flat for valuable
consideration of Rs.13,50,000/- and also para 3 thereof
admitted the receipt of the part consideration of
Rs.7,00,000/-. That being the position, the Courts below
have rightly rejected the plea put forth by the
respondents that the transaction was of a nominal nature
for the security of an alleged loan.
8. In light of the above discussion, it is
apparent, that the Courts below have incorrectly held
that the appellants were not ready and willing to
perform their part of the contract. That being the only
ground on which specific performance of the agreement
dated 8.3.2008 has been refused, the said finding is
hereby quashed and set aside and the suit for specific
performance of the agreement dated 8.3.2008, as filed
by the appellants stands decreed. Hence, the following
order.
(7) 19.sa.102.2022
ORDER
(i) The respondent no.1 shall execute the sale deed of
the suit property in favour of the appellants/plaintiffs,
within a period of 30 days from today, after clearing the
mortgage by the IDBI Bank.
(ii) The appellants shall deposit the balance
consideration with simple interest thereupon at @ 9 %
per annum within a period of two weeks from today, in
case it is not already deposited earlier.
(iii) In case the sale deed is not so executed and
registered, at the expense of the appellants within the
aforesaid time, the appellants will be entitled to get it
executed and registered through the process of the Court
by filing execution proceedings.
(iv) It is made clear, that if the amount is not
deposited within the aforesaid period, if not deposited
earlier the suit for specific performance shall stand
dismissed and the decree passed by the Courts below
shall stand.
JUDGE
Sarkate
Digitally signed byANANT R
SARKATE
Signing Date:07.09.2022
17:10
