Manohar Gopal Kailkar vs Madhukar Narayan Dhondge And Ors
2023 Latest Caselaw 4415 Bom

                                                              926.sa.288.2023.doc


 Harish

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                        SECOND APPEAL NO.288 OF 2023


 Manohar Gopal Kailkar                                ...Appellant
          Versus
 Madhukar Narayan Dhondage & Ors.                     ...Respondents

 Mr. C. G. Gavnekar, a/w Mr. Ashutosh Gavnekar & Mr. Rohit
 Parab, for the Appellant.


                               CORAM : MADHAV J. JAMDAR, J.

DATE : 28th April, 2023

P.C.:

1. Heard Mr. Gavnekar, learned counsel appearing for the

Appellant-Plaintiff.

2. The Plaintiff has filed the suit for specific performance of

the agreement dated 17th January, 1997. The said agreement was

executed between the Plaintiff and Narayan Babaji Dhondge, the

Original owner. The Respondents are the Original Defendants i.e.

legal heirs and representatives of said Narayan Babaji Dhondge.

3. Both the learned Trial Court as well as the learned First

Appellate Court have concurrently held that, the Plaintiff has

proved that, said Narayan Babaji Dhondge has executed the Sale

agreement in favour of the Plaintiff and he has paid entire

consideration of Rs. 66,000/- as per the said agreement to

926.sa.288.2023.doc

deceased Narayan Babaji Dhondge. Both the Courts have non

suited the Plaintiff on the ground that, the Plaintiff has failed to

prove his readiness and willingness. Both the Courts have held

that, it was the Plaintiff's responsibility to obtain the permission

and as the permission was not obtained, the Plaintiff has failed to

prove the readiness and willingness.

4. Mr. Gavnekar, the learned counsel appearing for the

Appellant has pointed out the terms and conditions of the

registered agreement dated 17 th January, 1997 wherein

responsibility is on said Narayan Babaji Dhondge to get the

permission. Mr. Gavnekar states that the Plaintiff has paid the

entire consideration. Therefore, the finding regarding readiness

and willingness is contrary to the evidence on record.

5. Therefore, the Second Appeal is admitted on the following

substantial questions of law :-

" i. Whether the judgment and decree of the learned Trial Court and the learned First Appellate Court of dismissing the suit of specific performance by holding that the Plaintiff has failed to prove readiness and willingness to perform his part of contract as he has not obtained permission from the authority is contrary to the terms and conditions of agreement of sale dated 17th January, 1997 (Exhibit-51)?

ii. Whether the finding recorded by both the Courts that, the Plaintiff has failed to prove his readiness and

926.sa.288.2023.doc

willingness is contrary to the evidence on record as the entire consideration has been paid by the Plaintiff and as per the terms and conditions of the agreement it is the responsibility of the Vendor to obtain the permission?

iii. Whether in the facts and circumstances of this case as both the Courts have concurrently found that, the agreement dated 17th January, 1997 is proved and the payment of entire consideration by the plaintiff is proved, the decree for specific performance should have been granted subject to obtaining the necessary permission from the Collector?"

(MADHAV J. JAMDAR, J.)