:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1295 OF 2008 WITH CIVIL APPLICATION NO. 3370 OF 2008 Mr. Umesh Sharma ..Appellant Vs. Mr. Jitendra Mehta ..Respondent Mr. R.S. Apte i/by Mr. Ashutosh Gole for appellant. Mr. Sanjay Udeshi i/by M/s. Sanjay Udeshi & Co. for respondent. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. Date : January 12, 2009. Date : January 12, 2009. Date : January 12, 2009. P.C.: P.C.: P.C.: 1. Heard the parties. Admit. 2. Respondent waives service. Paper book has been submitted and R & P has been received. With the consent of the parties, the appeal is heard finally. 3. This appeal arises from the Judgment and Decree passed in Special Civil Suit No. 207 of 2005 :2: by the learned Civil Judge, Senior Division at Thane on 29/2/2008. The suit property is Flat No. B-906, Maruti Paradise, Sector 15, CBD, Belapur and admeasuring about 990 sq.ft. (super built up) and as per the MOU dated 8/11/2004 it was agreed to be sold by the defendant to the plaintiff for a total consideration of Rs.14,00,000/- (Rupees Fourteen Lakhs only). The plaintiff claimed that as per the MOU he paid the first instalment of Rs.1,00,000/- on the date of the MOU and the second instalment was paid on 5/1/2005 after the last date for the same purpose was extended from 25/11/2004 to 12/1/2005 (endorsement made at the end of the MOU at Exh.33). The suit for specific performance was opposed by the defendant by filing Written Statement and counter claim at Exh.23. At the first stage it was claimed that the MOU at Exh.33 was a fabricated document and it was not the original MOU. In the Written Statement, in para 7, the defendant specifically stated that the plaintiff had utterly failed to comply with his part of the MOU and, therefore, the defendant was not entitled to sell the suit flat to the plaintiff. The defendant also claimed that the plaintiff was a trespasser. The :3: issues framed and findings recorded thereon by the trial court read as under:- ISSUES FINDINGS ------ -------- 1. Whether Plaintiff proves that the MOU dt. 8/11/2004 is legal, valid and hence enforceable under law and binding on defendant? Affirmative 2. Whether Plaintiff proves his possession over the suit property by virtue of leave and licence agreement dt. 1/6/2004? Affirmative 3. Whether defendant proves that MOU dt. 8/11/2004 is no more valid contract after the first week of January 2005? Negative 4. Whether defendant proves that Plaintiff is a trespasser in the suit property flat? Negative 5. Whether Plaintiff is entitled for the relief of declaration as sought? Affirmative 6. Whether plaintiff is entitled for the relief of specific performance as sought? Affirmative 7. Whether Plaintiff is entitled for the relief of permanent injunction as sought? Affirmative 8. Whether defendant is entitled the possession of the suit :4: property flat by way of counter claim as sought? Negative 9. What order & decree" As per final order. 4. We have noticed that the issue as to the readiness and willingness of the plaintiff to perform his part of the contract or indeed he had performed his part of the contract so as to obtain the decree of specific performance was not framed by the trial court. Section 16(c) of the Specific Relief Act, 1963 states that specific performance of the contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendant. 5. As per the plaintiff’s own case the total consideration amount was Rs.14,00,000/-. He had paid Rs.2,00,000/- and the deposit of Rs.40,000/- was to be adjusted and Rs.11,000/- was paid in cash. Thus making a total payment of Rs.2,51,000/-. He relied :5: upon the letter dated 7/1/2005 (Exh.44) issued by the Chief Manager of the Union Bank of India purportedly sanctioning the loan of Rs.11,00,000/-. It has come in the evidence of the defendant that this letter was shown to him before the suit was filed and, in fact, before the notice on 9/2/2005 was issued. We have also noticed that in the amendment that was made to the MOU extending the date from 5/1/2005 to 12/1/2005, it was agreed that Mr. Umesh Sharma will provide the agreement copy before 8/1/2005, balance payment other than bank loan will be given on or before 12/1/2005. It is not known as to whether there was any evidence before the trial court that the balance amount of Rs.49,000/- was paid or offered to be paid by the plaintiff to the defendant over and above the purported sanctioned loan of Rs.11,00,000/-. Secondly, no officer of the Bank was examined before the trial court in support of the loan sanction, beyond placing on record the letter at Exh.44. This letter states that the loan application was dated Nil and there are certain conditions to be complied with, one of them being clearance from the HDFC Bank. The plaintiff himself in his affidavit by way of :6: examination-in-chief stated that there was no interference in obtaining the loan from the Union Bank of India so far as the loan of HDFC Bank is concerned. There is nothing on record to show that the flat was hypothecated to the HDFC Bank by the defendant or the defendant had obtained loan from HDFC Bank on the said flat. This letter dated 7/1/2005 (Exh.4) by itself, in our opinion, is not sufficient to hold that the Union Bank of India had in fact sanctioned loan of Rs.11,00,000/- to the plaintiff. Additional evidence in this regard is necessary to be brought before the trial court. 6. Clauses 3(c)(iii) and (iv) of the MOU read as under:- (iii) By DT 25.11.04 amount of Rs.one lack. There after Seller of the flat will give application to the society for obtaining the N.O.C. in favour of purchaser. In addition, hand over the copy of flat documents to purchaser. :7: (iv) After receiving of zerox copy of flat documents to be submitted to the bank balance after registration of documents through Bank loan other then the loan amount balance will be paid before registration by the purchaser all the transaction will be completed maximum two months. . Having regards to these clauses we have no doubt in our mind that the issue regarding the readiness and willingness of the plaintiff to perform his part of the contract and that he had discharged all his obligations as stated in the MOU at Exh.33 is required to be framed and decided by the trial court by allowing both the parties to lead additional evidence. It is also admitted that the plaintiff, as of now, is in possession of the suit flat. On the basis of the additional issue to be framed and decided, the fate of the counter claim submitted by the defendant will also have to be decided. 7. Hence, by consent of the parties, we set aside the decree and remand the suit for fresh trial so as :8: to decide the additional issue of readiness and willingness by the plaintiff and as contemplated under Section 16(c) of the Specific Relief Act, 1963. The suit, on remand, shall be decided as expeditiously as possible and preferably within a period of six months from the receipt of the writ from this court. The amount already deposited by the plaintiff with the trial court shall remain with the trial court till the suit, on remand, is decided and its disbursement shall be subject to the final decree. We direct that the plaintiff’s possession over the suit flat shall not be disturbed till the disposal of the suit. 8. The appeal is disposed off accordingly. 9. Civil Application No. 3370 of 2008 does not survive and the same shall stand disposed as such. (D.G. Karnik,J.) (D.G. Karnik,J.) (D.G. Karnik,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)