IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.522 of 2009. FIRST APPEAL NO.522 of 2009. FIRST APPEAL NO.522 of 2009. Shri Kisan Vishram Kad & Others ..Appellants (Original Defendants) versus Vijay Sahadu Kad & Others ..Respondents Shri Ashok B. Tajane for the appellants CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 21st April, 2009. DATED : 21st April, 2009. DATED : 21st April, 2009. P.C. . The respondents herein filed suit for specific performance in the Court of learned III Addl. Judge, Small Causes Court and Joint Civil Judge, Senior Division at Pune being Special Civil Suit No.169 of 2006. The learned Judge decided the suit and by judgment and decree dated 10.12.2008 granted the prayer for specific performance and made elaborate arrangements as regards payment of balance of consideration etc. This decree dated 10.12.2008 is challenged in this First Appeal. I have heard learned Advocate Mr. Tajane appearing on behalf of the appellants. The learned Trial Judge has considered the entire evidence on record and has noted that the respondent has paid a sum of -2- Rs.1,75,000/- to the appellants out of the total consideration of Rs.2,05,000/-. The permission for sale was to be obtained from the Sub Divisional Officer and the said permission came to be granted by the Sub-Divisional Officer on 31.8.2006 and thereafter the respondents called upon the appellants to complete the transaction. The appellant replied to the said notice and refused to perform their part of agreement. 2. In the written statement contention was taken that the transaction manifested by the respondents plaintiffs is loan transaction. There is no evidence to show that the transaction was loan transaction. The learned trial Judge has recorded a specific finding that the agreement dated Exhibit 28 is undoubtedly an agreement for sale of the suit property. 3. The respondents have deposited with the appellants a sum of Rs.1,75,000/- i.e. to say respondents have performed their part of contract. It was conceded in the course of arguments by learned Advocate for the appellants that the application for permission was jointly made by the appellants as well as respondents and for four -3- years the said permission was not granted. According to the learned Advocate for the appellants, this should be treated against the respondents and that the Court should have held that the respondents are not ready and willing to perform their part of contract. The said submission cannot be accepted because if application is made for permission and if that permission is not granted the respondent purchaser cannot be blamed. It is to be noted that the transaction was to be completed within one year from the receipt of the permission. The permission was received in the month of August 2006. Soon thereafter the respondents took steps to demand specific performance. The demand was declined and that is how the suit came to be filed in October 2006. Keeping in view the relevant dates the learned trial Judge came to the conclusion that the respondents are entitled for specific performance of their contract and they are entitled for possession of the suit land. I do not see any difficulty in accepting that finding. 4. It was contended that the suit transaction was transaction of loan. There was nothing on record to show that the transaction was of loan. -4- If the transaction would have been of loan, the documents which are entered into by and between the parties would have been different and not a agreement of sale. Even if the document could not have been in the nature of agreement of sale, there could have been sufficient averments to protect the interest of the appellant so as to mark the agreement as transaction of loan. It was argued by the learned advocate for the appellant that sum of Rs.25,000/- was paid by the respondents, as put up by the respondents, however the document executed in support of that being document dated 17.6.2002 was not in conformity with the provisions of law and therefore it was marked as Article A and that aspect has been overlooked by the learned trial Judge and the learned trial Judge come to the conclusion that the sum of Rs.1,75,000/- was paid. In so far as this aspect is concerned, may be that the documentation as regards payment of Rs.25,000/- was not proper but the fact remains that there is specific evidence on record to show that out of total consideration of Rs.2.05 lakhs the respondent had paid Rs.1,75,000/-. This, in my view, will go to show that there was readiness and willingness on the part of the respondent to complete the transaction. The conduct of the respondents cannot -5- be blamed and the conduct of the respondents was in consonance with the term "readiness and willingness". 5. The learned trial Judge has considered the matter in its proper perspective and has rightly arrived at the conclusion that the appellants have failed to prove that the suit transaction was a loan transaction and has rightly granted specific performance. Hence, there is no merit in the appeal and the impugned judgment is required to be confirmed by dismissing the First Appeal at the stage of admission. Hence the Order. ORDER i. Appeal is dismissed at the stage of admission. In the facts and circumstances of the case, there shall be no Order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)