Kalidas S/O Laxmanrao Bhushanwar ... vs Suresh S/O Raghoba Mungale
2022 Latest Caselaw 9219 Bom

                           1                912.SA.603-2018 JUDGMENT.odt




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH : NAGPUR


            SECOND APPEAL NO. 603 OF 2018


1.   Kalidas s/o Laxmanrao Bhushanwar
     (Since deceased) Through his Legal
     Representatives


1A. Kapil S/o Kalidas Bhushanwar
    Aged about 35 years,
    Occupation : Service

1B. Kavita D/o Kalidas Bhushanwar
    Aged about 36 years,
    Occupation : Household


1C. Savita D/o Kalidas Bhushanwar
    Aged about 34 years,
    Occupation : Household

1D. Mukta D/o Kalidas Bhushanwar
    Aged about 32 years,
    Occupation : Household

1E. Chaya Wd/o Kalidas Bhushanwar
    Aged about 60 years,
    Occupation : Household,
    All are R/o. Chatrapati Nagar, Tukum,
    Tah. & District - Chandrapur.               APPELLANTS


      Versus
                              2                912.SA.603-2018 JUDGMENT.odt




      Suresh S/o Raghoba Mungale
      Aged 40 years, Occupation : Business,
      R/o. Chinchala, Chandrapur,
      Tahsil & District - Chandrapur.            RESPONDENT


-----------------------------------------------
Mr. Bhushan Dafle, Advocate for the Appellants.
Mr. Rohit Joshi, Advocate for the Respondent.
-----------------------------------------------


                  CORAM : AVINASH G. GHAROTE, J.

                  DATED     : 14th SEPTEMBER, 2022.


ORAL JUDGMENT :-

Heard Mr. Dafle, learned counsel for the appellants

and Mr. Joshi, learned counsel for the respondent.

2. ADMIT on the following substantial question of law

which has already been framed by this Court by an order dated

06.04.2022:

"Whether the Appellate Court was justified in reversing the findings of the Trial Court and holding that the respondent (plaintiff) was ready and willing to perform his part of the contract ?"

3 912.SA.603-2018 JUDGMENT.odt

3. Heard finally by the consent of the learned counsels

for the respective parties.

4. The Second Appeal questions the judgment of the

learned first appellate Court dated 13.04.2015 passed in R.C.A.

No. 23/2007 allowing the appeal, whereby the judgment and

decree dated 18.12.2006 passed by the learned trial Court in

R.C.S. No. 266/2003, a suit for specific performance, in which

instead of granting specific performance a decree for refund of

the part consideration with interest, has been passed, has been

set aside and a decree for specific performance has been

granted.

5. Mr. Dafle, learned counsel for the

appellants/original defendant submits, that the learned trial

Court has properly appreciated the evidence on record in

arriving at a finding that the plaintiff had failed to prove his

readiness and willingness, which according to him has been

incorrectly reversed by the learned appellate Court. He invites

my attention to the judgment of the learned trial Court and

specifically para 10 thereof, in support of his submission. He 4 912.SA.603-2018 JUDGMENT.odt

therefore submits, that in view of the above substantial question

of law, the appeal needs to be allowed.

6. Mr. Joshi, learned counsel for the respondent

submits, that the first appellate Court has rightly reversed the

finding of the learned trial Court regarding the readiness and

willingness, as the plaintiff has specifically averred that on the

date fixed for execution of the sale deed, he had been to the

Office of the Sub Registrar with the balance consideration,

however the defendant was not present. He further submits,

that even on the second occasion, the plaintiff had been to the

Office of the Sub Registrar on 22.08.2003 with the balance

consideration for the execution and registration of the sale

deed, consequent to the earlier intimation to the defendant by

notice dated 09.08.2003, still the defendant did not remain

present, in view of which, it is submitted, that the learned

appellate Court has rightly held that the plaintiff was ready and

willing to purchase the suit property.

7. The agreement in question is dated 13.02.2002 at

Exh. 22 (page 43 of the Paper-book). The agreement is in 5 912.SA.603-2018 JUDGMENT.odt

respect of Plot No. 2 admeasuring 3000 sq.ft. for the total

consideration of Rs. 25,000/-, out of which, a major portion of

the consideration of Rs. 20,000/- already stood paid to the

defendant on the date of agreement itself. The balance

consideration of Rs. 5,000/- was agreed to be paid on the date

of execution and registration of the deed of sale, which was to

be done on 24.08.2002. It has been brought on record by the

plaintiff through his own evidence as well as that of PW-2

Bhauji the attesting witness, that on 24.08.2002 the plaintiff

was present in the Office of the Sub Registrar with the balance

consideration, however the defendant did not turn up. When

the defendant was contacted thereafter on the same date it is

claimed, that the possession was delivered to the plaintiff and

the sale deed was agreed to be executed subsequent in point of

time.

8. After waiting for some time, a notice was sent on

09.08.2003 at Exh. 24 by the plaintiff to the defendant calling

upon him to remain present in the Office of the concerned Sub

Registrar on 22.08.2003 for the purpose of receipt of the

balance consideration and execution and registration of the 6 912.SA.603-2018 JUDGMENT.odt

deed of sale, inspite of which, the defendant did not remain

present before the Office of the Sub Registrar on 22.08.2003. To

mark his presence, the plaintiff had sworn an affidavit dated

22.08.2003 before the Executive Magistrate, Chandrapur to

indicate his presence in the concerned Office of the Sub

Registrar (Exh. 23 page 45).

9. The execution of the agreement though denied by

the defendant, has been proved by examination of the attesting

witness PW-2 Bhauji Lingaji Nagare at Exh. 28 (page 38), who

has deposed regarding the execution of the agreement of sale as

well as the passing of the part consideration of Rs.20,000/- in

his presence and so also the appearance of the plaintiff before

the Sub Registrar on 24.08.2002. Neither PW-1 nor PW-2 have

been cross examined by the defendant. As against this, if the

written statement of the defendant is taken into consideration

in para 3, it has been specifically averred that he had never

gone to the Office of the Sub Registrar, Chandrapur for the

purpose of execution of the sale deed, as he had flatly denied

execution of any agreement. It is in context of this averment in

the written statement, that the question of readiness and 7 912.SA.603-2018 JUDGMENT.odt

willingness has to be considered. The learned trial Court has

laid unnecessary stress on the non execution of the affidavit on

24.08.2002 by the plaintiff to mark his presence before the Sub

Registrar to hold that there was no readiness and willingness,

which readiness and willingness is spelt out from the averment

in the plaint as well as the affidavit evidence of the

plaintiff/PW-1, which is supported by the evidence of PW-2 the

attesting witness to the agreement who asserts the presence of

the plaintiff before the Sub Registrar with the balance

consideration on 24.08.2002. Merely because an affidavit was

not sworn on the earlier occasion, would not mean that the

plaintiff was not present in the Office of the Sub Registrar with

the balance consideration and specifically so, when PW-2 the

attesting witness asserts to his presence before the Sub Registrar

on 24.08.2002. That being the position, in my considered

opinion, the learned appellate Court, was correct holding that

the plaintiff was ready and willing to perform his part of the

contract, in view of which, I do not see any reason to answer the

substantial question of law framed on 06.04.2022 in the

affirmative. No other ground was canvassed. The Second Appeal

is without any merit and it is accordingly dismissed. No costs.

8 912.SA.603-2018 JUDGMENT.odt

10. Pending application/s, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:16.09.2022 14:51