Bombay High Court
Shesherao Nivruttirao Tambe vs Prashant Marotirao Ingole on 3 January, 2025
2025:BHC-AUG:258
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 617 OF 2023
WITH
CIVIL APPLICATION NO. 6885 OF 2024
..
Sheshrao s/o. Nivruttirao Tambe,
Age 44 years, Occ. Nil,
R/o. Bundelpura, Beed, Tq. And Dist. Beed. .. Appellant
VERSEUS
Prashant s/o. Marotirao Ingole,
Age 46 years, Occ. Business & Agriculture,
R/o. Aher-Dhanora, Tq. And Dist. Beed. .. Respondent
...
Mr. V.D. Salunke, Advocate holding for Mr. M.V. Salunke, Advocate for
appellant.
Mr. M.K. Deshpande, Advocate for respondent.
CORAM : S.G. CHAPALGAONKAR, J.
DATE : 3rd JANUARY, 2025.
JUDGMENT :
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1. The appellant/original defendant takes exception to the
judgment and decree dated 11.9.2023 passed by District Judge - 2, Beed
in R.C.A. No. 34 of 2021 thereby upholding the judgment and decree
dated 5.3.2019 passed by Civil Judge (Junior Division) Beed in Spl. Civil
Suit No. 28 of 2014, thereby decreeing the suit for specific performance
of contract instituted by respondent/plaintiff.
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2. For the sake of convenience, parties are referred to, as per
their original status.
3. Respondent/plaintiff instituted a suit seeking specific
performance of contract based on agreement to sale dated 11.7.2012 in
respect of the suit property i.e. Flat in Shubham Apartments situated at
C.T.S. No. 1923, within the limits of Municipal Council, Beed. It was the
case of plaintiff that defendant agreed to sale the said property to
plaintiff for consideration of Rs. 10,37,000/-. An agreement to that
effect was executed and an amount of Rs. 8,37,000/- was paid by way of
earnest amount. At the time of agreement, the said flat was under
construction and on completion of construction within 9 months, sale
deed was to be executed on payment of balance consideration amount.
Plaintiff further pleads that since construction could not be completed,
defendant sought further time till 9.6.2013 and executed deed of
extension dated 9.4.2013. Again, similar deed of extension was
executed on 11.8.2013. Thereafter, defendant avoided to execute the
sale deed. Consequently, plaintiff issued a legal notice dated 10.9.2013.
Defendant failed to reply the legal notice or perform his part of the
contract. Plaintiff was always ready and willing to perform his part of
contract. However, defendant avoided. Hence, plaintiff instituted a suit
for reliefs as claimed.
4. Defendant refuted the claim of plaintiff. He admitted
execution of agreement to sale and extension deeds, however, contends
that it was by way of a collateral security for payment of loan, which was
borrowed by him from plaintiff. It is the case of defendant that his
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mother was suffering from Cancer, as such he was in need of amount.
Therefore, he approached plaintiff-money lender and received loan
amount of Rs. 2 Lakhs, for which he got registered the agreement to sale.
According to defendant, suit property was kept as security of loan
transaction.
5. The trial court framed issues, recorded evidence of parties
and finally concluded that plaintiff proved the agreement to sale as well
as payment of earnest money of Rs. 8,37,000/- and hence, decreed the
suit directing defendant to execute sale deed in favour of plaintiff.
6. Aggrieved defendant filed R.C.A. No. 34 of 2021 before the
District Judge, Beed. Learned District judge concurred with the finding
recorded by trial court and dismissed the appeal.
7. Mr. V.D. Salunke, learned advocate appearing for the
appellant submits that in absence of a specific pleading as regards to
readiness and willingness of contract on part of plaintiff, courts below
have committed gross error in granting a decree of specific performance
of contract. By inviting attention of this court to the provisions of Section
16-C of the Specific Relief Act, he would submit that the mandate under
law is not complied. The pleading sought to be relied by plaintiff in this
regard sans basic requirement of law. He would, therefore, urge that the
substantial question of law may be framed in this regard and appeal be
admitted.
8. Mr. Salunke would further submit that although plaintiff
contends service of legal notice prior to filing of suit, same was never
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served upon defendant and a specific plea in this regard is taken in the
written statement.
9. Per contra, Mr. M.K. Deshpande, learned advocate for
respondent/defendant would submit that both the courts have
concurrently recorded a finding that plaintiff has proved his readiness
and willingness to perform his part of contract. No substantial question
of law arises for consideration in this appeal and same be dismissed.
10. Having considered submissions advanced, it can be gathered
from the contents of plaint that plaintiff has specifically pleaded in
para.11 and 12 that he was always ready and willing to pay balance
consideration of Rs. 2 Lakhs. However, defendant failed to complete
construction and execute the sale deed. In para. 12 of the plaint, plaintiff
pleaded that he was consistently pursuing defendant to comply with the
agreement and for that purpose, plaintiff was ready to pay Rs. 2 Lakhs at
the time of execution of sale deed before the Registrar. If aforesaid
contents of the plaint alongwith oral evidence of plaintiff is considered, it
cannot be said that there is no compliance of requirement of Section 16-C
of the Specific Relief Act. Both the courts have concurrently held that
plaintiff had parted with amount of Rs. 8,37,000/- out of total
consideration of Rs. 10,37,000/-. Pertinently, defendant admitted in his
cross-examination about the service of legal notice. Further, on two
occasions, defendant has executed documents getting extension of time
for performing his part of contract, as construction was incomplete. All
these circumstances are sufficient to hold that plaintiff was always ready
and willing to perform his part of contract and defendant was the
defaulter.
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11. So far as contention of Mr. Salunke that although service of
notice is pleaded in the plaint, it is neither filed on record, nor document
in support of service of such notice was tendered; in response to this
contention Mr. Deshpande invited attention of this Court to the
observations of the first appellate court, particularly, in para No.14,
wherein, it is specifically observed that defendant admitted during cross
examination that he received notice of plaintiff dated 10.9.2013,
however, did not reply the same.
12. In view of aforesaid admission, non-filing of evidence
regarding service of notice on defendant would be of no significance. In
that view of the matter, no case for interference in concurrent finding is
made out. No substantial question of law arises for consideration in this
second appeal. Same stands dismissed. Civil application, if any, stands
disposed of.
[S.G. CHAPALGAONKAR, J]
grt/-
