[Cites 1, Cited by 0]
Bombay High Court
Stephen Noel D'Souza vs Sadashiv Rakhmaji Bodake (Deceased ... on 5 January, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:15
SA 64-18.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 64 OF 2018
Stephen Noel D'Souza & Anr. Appellants
.. (Org. Plaintiffs)
Versus
Sadashiv Rakhmaji Bodake
(since deceased) through his LRs. Respondents
1A. Bharati Sadashiv Bodke & Ors. .. (Org. Defendants)
....................
Ms. Geeta Sonawane Rahate a/w Mr. Denzil D'Mello, Advocates for
Appellants
Mr. Hrishikesh Sopan Shinde a/w. Pranav Vaidya, Advocates for
Respondent Nos. 1A to 1D
...................
CORAM : MILIND N. JADHAV, J.
DATE : JANUARY 05, 2026
JUDGMENT:
1. Heard Ms. Sonawane, learned Advocate for Appellants and Mr.
Shinde, learned Advocate for Respondent Nos. 1A to 1D.
2. By consent of the parties, present Second Appeal is taken up for
final hearing.
3. Present Second Appeal assails concurrent Judgments passed by
the learned Trial Court in Special Civil Suit No. 363 of 2010 dated
31.07.2012 which is upheld by the learned Appellate Court in Civil
Appeal No. 532 of 2012 by judgment dated 05.05.2017. Both these
judgments are appended to the present Second Appeal. Separate
Appeal Paperbook containing the evidence recorded is also filed.
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4. For the sake of convenience, Appellants shall be referred to as
"Plaintiffs" and Respondents as "Defendants".
5. Original Suit is filed for specific performance of agreement
dated 30.07.2007 by Plaintiffs. Defendant No. 1 is the owner of the
Suit property. Defendant No. 2 is Dena Bank. It is a proforma party.
Original Defendant No. 1 expired during the interregnum and
proceedings are defended by his legal heirs namely Defendant Nos. 1A
to 1D. Relevant facts in brief are as under:-
5.1. Suit property admeasure land having area of 0H 40R out of 50%
of the ancestral property coming to the half share of original
Defendant No. 1 (i.e. 1H 2.5R) in Gat No. 137 nomenclatured as Part
1/2. Original Defendant No. 1 borrowed loan from Dena Bank and
was unable to repay the same due to which in the Other Rights
Column Bank's charge was registered qua and to the extent of 0H 40R
out of the property coming to the share of original Defendant No. 1.
Since interest was mounting original Defendant No. 1 was desirous of
raising some money to pay off the bank loan and discharge the bank.
Hence on the meditation of three intermediaries - Ms. Phelomena
Cosmos Goviya, Mr. Daulat Punja Bodake and Mr. Vasant Ambu
Bodake, he executed Agreement to Sale dated 30.07.2007 for sale of
suit property with Plaintiffs. Prior to execution of agreement to sale
Defendant No. 1 received Rs. 1100/- as token amount whereas on the
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date of execution, he received demand draft of Rs. 1,50,000/- out of
total agreed consideration of Rs. 7,61,000/- as stated in the
agreement. It was specifically stated that the balance amount would
be paid by Plaintiffs to Defendants at the time of execution of sale
deed. No time frame was stipulated for execution of the sale deed in
the agreement. However the agreement to sale was subject to certain
conditions / obligations by the parties.
6. Ms. Sonawane, learned Advocate for Plaintiffs would submit
that pursuant to execution of agreement to sale and upto the
execution of sale deed, Defendant No. 1 was required to obtain
subdivision order of the suit property since it was jointly held in
conjunction with his brother as ancestral property. She would submit
that Defendant No. 1 was also to remit the outstanding arrears of bank
loan to Dena Bank and remove the encumbrance and charge registered
in the Other Rights Column of the 7/12 extract of the suit property
and thereafter give a public notice calling for claims to ensure that
there was no other encumbrance in respect of the suit property. She
would submit that Defendant No. 1 agreed to execute the sale deed
either in the name of Plaintiffs or their nominees. She would submit
that pursuant to above as a matter of abundant caution Plaintiffs gave
public notice in two local newspapers on 05.08.2007 and 07.08.2007
inviting claims with regard to the suit property since Plaintiffs had
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executed the agreement to sale and parted with a substantive amount
out of the total consideration agreed to be paid. She would submit
that thereafter Plaintiffs repeatedly kept on reminding Defendant No.
1 that he should comply with his obligations as stated in the
Agreement to Sale which Defendant No. 1 failed to do so. She would
submit that Plaintiffs repeatedly visited the house of Defendant No. 1
and made oral requests to him but he did not take any steps
whatsoever to comply with his obligations. She would submit that
Plaintiffs were always ready and willing to pay the balance amount to
Defendant No. 1 and execute the sale deed. She would submit that as
Defendant No.1 repeatedly kept stalling the requests made by
Plaintiffs, Plaintiffs had no option than to issue legal notice dated
24.06.2009 despite which Defendant No. 1 did not take any steps.
6.1. She would submit that Plaintiffs were therefore compelled to
file Special Civil Suit No. 363 of 2010 seeking specific performance of
the Agreement to Sale. She would submit that both the Courts below
refused to grant decree for specific performance in favour of Plaintiffs
in the light of evidence which was brought on record. She would
submit that Plaintiffs led the evidence of Plaintiff No. 1 and one of the
intermediaries who played an active role in fructifying the Agreement
to Sale namely Ms. Phelomena Cosmos Goviya. She would fairly
submit that on behalf of Defendant No. 1 though Defendant No.1 had
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initially filed his affidavit of evidence, he expired in the interregnum
and hence his evidence was discarded. She would submit that
evidence on behalf of Defendants was thereafter led by Defendant No.
1C i.e. son of original Defendant No. 1. She would submit that learned
Trial Court failed to consider the fact that there was no promise given
by Plaintiffs to Defendant No.1 for payment of the outstanding loan
amount either to Dena Bank and also the Nazrana amount to the
Collector for effecting sub-division or grant of sale permission, which
has been held against the Plaintiffs by the learned Trial Court. She
would submit that terms and conditions of the Agreement to Sale were
explicitly clear inasmuch as after execution of the agreement, it was
the primary obligation of Defendant No. 1 to pay the entire
outstanding balance loan amount to Dena Bank and remove the
charge of Dena Bank from the 7/12 extract and effect subdivision from
the Office of the Collector and only pursuant to which Plaintiffs were
liable to pay the balance consideration amount to Defendant No. 1.
She would submit that original Defendant No. 1 misled the Plaintiffs
about he being entitled to 50% share out of the total larger area of
Gat No. 137 Part 1/2 which was his ancestral property. She would
submit that when Written Statement was filed by Defendant No.1 it
was stated therein for the first time that Defendant No. 1's three sons -
Chetan, Jagan and Rahul were also having their undivided share in the
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suit property as coparcenors. She would submit that original
Defendant No. 1 falsely represented to the Plaintiffs that he had
availed a borrowing only from Dena Bank because when Plaintiffs
gave public notice they received a claim from Nashik Merchants Co-
operative Bank Ltd, Nashik against the suit property qua Defendant
No. 1. She would submit that Defendant did not lead evidence to
support the contention that Nazrana amount of Rs. 1,50,000/- which
was received on execution of agreement for sale which was to be paid
to the Collector to obtain necessary permission for sale of the suit
property. She would submit that Plaintiffs were at all times ready and
willing to fulfill their part of the contract and ready and willing to pay
the balance consideration amount to Defendant No. 1 on he having
complied with his obligations. She would submit that Defendant No. 1
did not comply with his obligations and therefore Plaintiffs are entitled
to a decree of specific performance of the Agreement to Sale dated
30.07.2007.
6.2. She would submit that learned Trial Court failed to consider
that Defendant No. 1 attempted execution of sale deed but it is
incorrectly held that Plaintiffs did not take any steps to fulfill the terms
and conditions of the Agreement despite there being no obligations
caste upon the Plaintiffs to do any positive act apart from being ready
and willing to pay the balance consideration. She would submit that
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learned Trial Court incorrectly held that since Plaintiffs were aware
about the outstanding loan and charge of Dena Bank as also the
subdivision charges and Nazrana amount to be paid to the Collector, it
was the duty of Plaintiffs to pay the said amounts out of the total
balance consideration which was withheld by them to show their
intention to comply with the transaction. She would submit that
reasoning given by the Courts below is invalid since as per terms and
conditions of the agreement, no obligation was casted on the Plaintiffs
save and except to pay the balance consideration and nothing more.
In that view of the matter, she would submit that payment of
outstanding loan amount of Dena Bank was the responsibility of
Defendant No. 1 solely and after discharging the same Defendant
No.1 had to remove the charge from the Other Rights Column, obtain
subdivision order from the Collector and and only thereafter he would
be entitled to the balance amount of sale consideration from the
Plaintiffs. Hence she would persuade the Court to allow the Second
Appeal and quash and set aside the concurrent orders of the Courts
below.
7. PER CONTRA, Mr. Shinde, learned Advocate for Defendant Nos.
1A to 1D would submit that the issue of readiness and willingness
would depend upon the overall conduct of the Plaintiffs. He would
submit that after execution of the agreement, Plaintiffs never showed
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readiness and willingness to complete the said transaction. He would
submit that at the time of execution of agreement for sale, the
quantum of amount required to be paid to the Collector towards
Nazrana was not quantified neither stated in the Agreement. He would
submit that later on it was discovered that this Nazaran amount was
Rs. 1,50,000/- which was to be paid to the Collector for obtaining if
permission to sell the land to a non-agriculturist (Plaintiffs) which was
required to be obtained by Plaintiff. He would submit that in such a
situation it was impossible for the original Defendant No. 1 to pay the
Nazrana amount of Rs. 1,50,000/- to the Collector for seeking
permission for sale and also simultaneously pay the outstanding loan
amount to Dena Bank for clearing the charge out of the initial amount
of Rs.1,50,000/- received by him under the Agreement to Sale. He
would submit that the Agreement to Sale if read as a whole prima
facie reveals that Plaintiffs were fully aware of the fact that Defendant
No. 1 needed money to clear the outstanding loan amount of Dena
Bank as also permission was required to be obtained from the Office of
the Collector for sale of the Suit property to the Plaintiffs who were
non-agriculturists. He would submit that despite the market value of
the suit property being in the range of Rs. 12,00,000/-, the amount of
Rs. 7,61,000/- was stated as total consideration in the Agreement to
Sale. He would submit that if at all Defendant No. 1 had approached
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the Collector for seeking permission in any event on this ground alone
the application for permission would have been rejected. He would
submit that the entire agreement is absolutely silent in respect of
obtaining permission from the Collector's office and payment of
Nazrana amount that would be required to be paid to the Collector for
seeking such permission.
7.1. He would next submit that amount of Rs. 1,50,000/-
which was given on execution of Agreement to Sale was therefore not
adequate enough which were clearly to the knowledge of the Plaintiffs
despite which they did not pay the balance consideration amount for
fulfilling the obligations which were casted upon Defendant No. 1. He
would submit that learned Trial Court has after going through the
evidence on record has returned a finding on the conduct of the
Plaintiffs and has concluded that it was obligatory on the part of the
Plaintiffs to make periodical payment of the unpaid consideration
amount for discharging the encumbrances in order to enable
Defendant No.1 to execute the Sale deed. He would submit that the
said encumbrances were such that from the amount of Rs. 1,50,000/-
given to Defendant No.1 under the Agreement, the encumbrances
could not be satisfied fully. Thus, the stoic silence of Plaintiffs from the
date of execution of agreement until filing of the Suit proceedings and
not being ready and willing to pay any amount to Defendant No.1 to
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remove the encumbrances and take steps to fulfill the obligations
despite very well knowing about the obligation for executing the sale
deed has been held against the Plaintiffs. He would therefore
persuade the Court that both the impugned judgments which are
passed after due consideration of the facts and circumstances of the
present case do not call for any interference whatsoever. He would
urge the Court to dismiss the Second Appeal and uphold the
concurrent judgments passed by the learned Trial Court and learned
Appellate Court.
8. I have heard the learned Advocates appearing for the respective
parties and with their able assistance perused the record of the case.
Submissions made by the learned Advocates for the respective parties
have received due consideration of the Court.
9. In the present case it is seen that Agreement to Sale of the suit
land is executed on 30.07.2007 between the parties. Said agreement
has six important clauses and conditions as stated therein. Firstly total
consideration agreed by parties is Rs. 7,61,000/-. Secondly Defendant
No. 1 has received amount of Rs. 1,51,100/- from Plaintiffs on
execution of Agreement on 30.07.2007. Thirdly since the suit land
was held as ancestral joint property and in indivisible condition,
original Defendant No. 1 was to obtain subdivision order to sell part of
the larger ancestral land out of the part coming to his share from the
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Office of the Collector, Nashik. Fourthly Defendant No. 1 was to clear
the entire outstanding debt of Dena Bank, Dhakambe Branch, Taluka
Dindori and pursuant thereto remove the encumbrance / charge /
name of Dena Bank from the Other Rights Column in the 7/12 extract
of the Suit property. Fifthly pursuant to the above, Defendant No. 1
was required to give public notice for seeking verification of claims in
respect of the Suit land to have a clear title. Sixthly it was decided
between the parties that as and when Defendant No. 1 will get
permission of Collector then within ten days thereafter Sale Deed will
be executed and all charges cum expenditure for the Sale Deed will be
borne by Plaintiffs.
10. On the basis of the aforesaid conditions, parties executed the
agreement to sale. However, it is the case of Defendant No. 1 that the
Plaintiffs got the Agreement to Sale executed unilaterally without
adherence to the stipulated terms and conditions and without regard
to the timelines prescribed therein or the alleged failure of Defendant
No. 1 to comply with his obligations. It is seen that Plaintiff are non -
agriculturists and hence to sell agricultural land Defendant was to
procure not only subdivision order but prior thereto sale permission
from the Collector to enable him to sell the Suit land to Plaintiff. This
Sale permission could only be procured after payment of the Nazrana
amount of Rs.1,50,000/- which has later on come in evidence. This
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crucial condition was not mentioned in the Agreement to Sale and it
was camouflaged with the subdivision order. Most importantly time
was not made the essence of the contract between the parties. Thus it
was practically impossible for the Defendant to fulfill his obligations
under the Agreement to Sale from the initial consideration of
Rs.1,51,100/- received by him since apart from the Nazrana amount
the outstanding dues payable to Dena Bank was about Rs.4,14,669/-
which is borne out from the record. It is seen from the evidence that
since Defendant No. 1 was in dire need of money for the purpose of
education of his sons who were studying in school at that time and
also to make repayment to Dena Bank of the outstanding loan amount,
taking advantage of the vulnerability of Defendant No. 1, Plaintiffs
executed the Agreement to Sale despite the prices of similarly situated
properties being in the range of Rs. 12,00,000/- per Acre. Next it is
seen that admittedly amount of Rs. 1,50,000/- was required to be paid
towards Nazrana for obtaining Sale permission and subdivision
permission from the Collector's office for sale of the Suit land to
Plaintiffs apart from the fact that there was outstanding loan amount
payable to Dena Bank. Hence the amount of Rs. 1,50,000/- which was
given to Defendant No. 1 on the date of execution of Agreement to
Sale was on the face of record insufficient for meeting with the
aforesaid twin obligations by Defendant No. 1.
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11. Another aspect which is required to be considered is that entire
agreement to sale is silent about the Nazrana amount required to be
paid to the Collector for obtaining sale permission of the suit land
since it was in indivisible condition and Plaintiffs were not
agriculturists. Evidence clearly brings out the fact that had Defendant
No. 1 known about the amount of Rs. 1,50,000/- required to be paid
to the Collector, he would never have decided to sell the suit land for
consideration of Rs. 7,61,000/- as agreed by him. This was because
the entire Agreement is conspicuously silent about the Nazrana
amount to be paid to the Collector. All that the Agreement speaks
about is about obtaining subdivision permission from the Collector as
it was held jointly as ancestral property by Defendant No.1 for sale of
suit land. The son of Defendant No. 1 i.e. Defendant No. 1C deposed
and examined himself below Exh. 66. His evidence states that
admittedly Plaintiffs were given knowledge of the fact that original
Defendant No. 1 had only undivided 1/4 share and not 1/2 share but
the Plaintiffs did not pay heed to the same. He has deposed that
taking advantage of the vulnerability of his father, Plaintiffs executed
an unilateral agreement with original Defendant No. 1 despite having
knowledge of the fact the land was held jointly as ancestral land and
that prices of similarly situated lands in the vicinity of the suit land
were in the range of Rs. 12,00,000/- per Acre at the then time. He has
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also deposed that since Defendant No. 1 was unable to fulfill his
obligations from the amount of Rs. 1,50,000/- which he received by
him under the Agreement to Sale, Plaintiffs had assured him that they
will release further amounts which they failed to release and therefore
case of readiness and willingness of the Plaintiffs was not accepted by
both the Courts below. Most clinching part of his evidence is the
documentary evidence placed by him on record. He has filed the
statement of account in respect of Account No. 159 of Dena Bank,
Dhakambe Branch below Exh. 82 for the period from 22.09.2005 to
30.06.2012. Learned Trial Court as also the learned First Appellate
Court has taken cognizance of the same and after going through the
same noted that at the time of execution of the Agreement to Sale i.e.
on 30.07.2007, the outstanding loan amount in Dena Bank's account
was Rs. 4,14,669/-. and in another account being Account No. 1224
held in Nashik Merchants Cooperative Bank account filed below
Exhibit 83 for the period from 21.04.2005 to 11.08.2009 the
outstanding loan amount of Rs. 39,597/- was shown as due and
payable.
12. Thus from the above, it is clearly seen that amount of Rs.
1,50,000/- which was given to the Defendant No. 1 under the
Agreement to Sale dated 30.07.2007 for the purpose of repayment of
the Dena Bank outstanding loan amount was prima facie insufficient
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considering the fact that the outstanding loan amount was itself a
humongous amount of more than Rs. 4 Lakhs at the then time. That
apart the issue of payment of Nazrana amount of Rs. 1,50,000/-
which was not factored in the Agreement to Sale and which does not
find any reflection in the Agreement to Sale goes against the Plaintiffs'
case. Though Defendant No. 1 expired during trial and was not made
available for the purpose of cross-examination, his son Jagan who is
Defendant No. 1C stepped into the witness box and has deposed.
13. Prima facie on the basis of aforesaid evidence placed on record
and considered by the learned Trial Court qua the Agreement to Sale
the amount of Rs. 1,50,000/- which was received by Defendant No. 1
was held to be clearly inadequate and therefore the entire Agreement
to Sale stood frustrated, since from this amount original Defendant
No. 1 was not in a position to comply with any of the conditions
stipulated in the Agreement. Further it is seen that once time was not
made the essence of the contract and Defendant No. 1 had to clear the
entire debt as well as to obtain permission for sale by paying the
Nazrana amount of Rs. 1,50,000/- which on the face of record was
inadequate and insufficient for Defendant No. 1 to comply with his
obligations, the case for specific performance of the Plaintiffs failed
and was not accepted. Evidence has also been led by the Defendants'
witness that children of original Defendant No. 1 were studying in
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school at the then time and therefore reason to provide for their
education was one of the the driving point for the original Defendant
No. 1 to enter into the Agreement for Sale. Insofar as the evidence led
by Plaintiffs is concerned, prima facie it is seen therefrom that Plaintiff
No. 1 is a financial consultant and working in Pune. Thus Courts
below have held that In the given facts and circumstances of the case,
it was incumbent on behalf of the Plaintiffs to invoke the provisions of
Section 13(1)(c) of the Specific Relief Act, 1963 by offering to
discharge the encumbrances from the unpaid consideration which the
Plaintiffs failed to do so. Hence in these circumstances, Plaintiffs' case
of readiness and willingness was not rightly countenanced by the
Courts below and they are not entitled to the relief of specific
performance as they have failed to prove their readiness and
willingness to pay the balance amount to Defendant No. 1 for
fulfillment of the obligations in the facts and circumstances of the
case.
14. On the issue of hardship, it is seen that it is Plaintiffs' own case
that they entered into the Agreement to Sale or purchased the suit
land for investment purpose only and this considering that Defendant
No.1 had expired in the interregnum and his elder son Chetan being
an agriculturist and he tilling the suit land shows that the livelihood
of the family members of the original Defendant No. 1 is dependent on
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the agricultural / suit land. That apart the fact that Plaintiffs are not
agriculturists also requires to be taken into consideration which has
been duly considered by both the learned Courts below while deciding
balance of convenience in the facts of the present case.
15. In view of the above and more specifically the reasons which are
given for determining Issue Nos. 1 to 7 in the judgment of the learned
Trial Court dated 31.07.2012 and which are upheld by the learned
Appellate Court in its judgment dated 05.05.2017, both the judgments
have been correctly passed and cannot be faulted with and do not call
for any interference of this Court. Both the judgments are upheld.
16. Hence, Second Appeal is dismissed.
[ MILIND N. JADHAV, J. ]
17. After this judgment is pronounced in open Court, Mr. D'Mello
informs the Court that by order dated 31.07.2012, an amount of
Rs.1,51,000/- was directed to be deposited within a period of two
months with the Trial Court.
18. Mr. Shinde confirms that the said amount is deposited with the
Trial Court. Mr. D'Mello seeks return of the said amount in view of the
above judgment. Mr. Shinde has no objection. The said amount of
Rs.1,51,000/- alongwith all accrued interest thereon is directed to be
returned to Plaintiffs within a period of two weeks from today on basis
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of a server copy of this judgment. The Trial Court shall not insist on a
certified copy of this judgment and ensure that the amount is refunded
within appointed date.
Amberkar [ MILIND N. JADHAV, J. ]
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.01.05
12:41:05 +0530
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