1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO: 239/2001 (1) Mahavir Mohanilal Sharma and 4 others vs. Paramsuch Thakurdin Mishra Died Through LRs) ---------------------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. .................................................................................................................................................................. Mr. M.K.Pathan, Adv.for appellant CORAM: SMT. Vasanti A. Naik , J. DATED: 30th AUGUST, 2007. *** Heard Mr. M. K. Pathan, learned counsel for appellants. The appellant is the original plaintiff. The Plaintiff filed a suit for specific performance of contract. It was the case of the plaintiff that the defendant had agreed to sell the suit property to the plaintiff for a consideration of Rs.22,750 and an amount of Rs.5,250 was paid on 4.5.1999 at the time of execution of agreement of sale. The sale deed was to be executed on 5.3.1990. Since the defendant failed to perform the contract, the plaintiff instituted the present suit. Defendants denied the claim of the plaintiff and futher denied that the plaintiff was ready and willing to perform his part of the contract. It was pleaded by the defendant that the plaintiff was liable to pay an amount of Rs. 5000/- on 5.11.1989 which was not paid by the plaintiff. It was further denied that the plaintiff along with her husband attended the Office of 2 the Sub Registrar on 5.3.1990 for getting the sale deed executed in favour of plaintiff. It was also denied by the plaintiff that the defendants had left the premises and had gone to his native place in Uttar Pradesh for a period of four months. The defendnats therefore, prayed that the suit filed by the plaintiff be dismissed with costs. On the aforesaid pleadings of the parties, the trial Court framed the necessary issues and held that the plaintiff had proved that she was ready and willing to perform her part of contract. The trial Court further held that the plaintiff proved that the defendant breached the terms of the agreement. It was held that the defendant failed to prove that time was the essence of the contract. The decree for specific performance of contract was consequently passed in favour of the plaintiff. The judgment and decree passed by the trial Court on 7.7.1995 was challenged by the defendant in an appeal. The first Appellate Court, however, by the judgment dated 20/21st October, 2000 reversed the findings recorded by the trial Court and allowed the appeal filed by the defendant. On a re-appreciation of the material evidence, the first Appellate Court held that the plaintiff was not ready and willing to perform her part of the contract. The Court held that it was necessary for the plaintiff to have paid the consideration of Rs. 5,000/- on 5.11.1989 and the plaintiff had failed to prove that at the relevant time the defendant had gone to his native place in Uttar Pradesh and, therefore, he had avoided to receive the amount of Rs.5,000/-. The Court, then, considered the fact that the plaintiff had pleaded that she was present in the office of the sub Registrar on 5.3.1990 and later stated that she was pregnant and was advised bed rest and 3 hence could not attend the Office of the Sub-Registrar. The Appellate Court also considered the admission of the plaintiff''s husband who had entered into the witness box on behalf of the plaintiff that he does not know where the office of Sub-Registrar is situated. The Appellate Court held that in view of this admission it was clear that the power of Attorney holder of the plaintiff i.e. husband of the plaintiff had also not attended the office of the Sub Registrar on 5.3.1990 for execution o the sale deed. The Appellate Court, then, considered certain other evidence on record which showed that the plaintiff did not possess the balance consideration towards the execution of the sale deed as the plaintiff's husband admitted in his cross- examination that he had obtained loan from one of his friends. The Appellate Court, therefore, for cogent reasons recorded in writing and after considering the material evidence tendered by the parties, which was ignored by the trial Court, reversed the findings recorded by the trial Court, to hold that the plaintiff was not ready and willing to perform her part of the contact. The findings of the first Appellate Court are based on a proper appreciation of material evidence on record and they do not give rise to substantial questions of law. Second Appeal is therefore, dismissed with no order as to costs. JUDGE sahare