: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.662 OF 2009 Shivaji Vitthal Jagde & Ors. .. Appellants V/s. Nivas Shamrao Kurne .. Respondents ..... Mr. H.P. Ghadigaonkar for the appellants Mr. N.Y. Gupte i/by Sachin J. Kadam for the respondent No.1 ..... CORAM : R.Y. GANOO, J. DATE : 9TH JUNE, 2009. P.C. : 1. The respondents entered into an agreement to sale dated 31 st July, 2006 in connection with the suit flat. The appellants instituted the suit for specific performance in the Court of 6 th Additional Judge, Small Causes Court, Pune and Joint Civil Judge, Senior Division, Pune being Special Civil Suit No.611 of 2007 for specific performance of the said suit agreement. The learned Judge decided the suit by judgment and : 2 : decree dated 2 nd February, 2009 by dismissing claim of the appellants for specific performance and decreed that the appellants are entitled to return of Rs. 1,40,000/- being the amount which was paid by the appellants to the respondents. Being aggrieved by this judgment and decree, the appellants have preferred this appeal. 2. I have heard learned advocates on both the sides extensively. The learned trial Judge has recorded finding against the appellants in so far as the question of readiness and willingness to perform their part of the contract. The appellants were to borrow the money from Saraswat Co-operative Bank for the purposes of raising funds to purchase the suit flat. The Saraswat Co-operative Bank in principle, had agreed to grant the loan subject ofcourse to appellants submitting certain documents which can be broadly called as title deeds. The appellants were to get those title deeds from the respondents and at one stage letter at Exh.39 was scribed by which respondents were called upon to submit various documents for the purposes of producing them before the Saraswat Co-operative Bank. In the course of : 3 : evidence, the appellants witness PW-1 at one stage stated that Exh.9 was sent whereas at the later stage he says that the said letter was accordingly shown to the defendant. On the basis of this discrepancy the learned trial Judge disbelieved the word of the appellants in so far as the calling upon the defendants to produce the documents. The appellants in the course of getting documents from the respondents came to know that the flat was already mortgaged to Citi Bank and the respondents had promised the appellants to clear the said outstanding loan in order to see that there is no encumbrance on the suit flat. Counsel for the appellants submitted before this Court that the respondents had promised to clear off the said loan within a period of 2 to 3 months. However, nothing was done in the above. 3. It is ultimately the respondents terminated the suit agreement and in reply to that the appellants claim to have raised the various points so as to say that the respondents had dealt with the appellants in a non-commercial manner. 4. After having considered the observations of the : 4 : learned trial Judge on the question of readiness and willingness, I am inclined to observe that the conduct on the part of the appellants which is disclosed in the record clearly goes to show that the appellants did not pursue the matter. In so far as getting the documents from the defendant for the purposes of borrowing money from the Saraswat Co-operative Bank, the appellants did not express any surprise and allowed the respondent to clear off the said dues and despite the time to clear the said dues was over, the appellants did not insist for the documents and / or did not take any positive steps to show that the appellants were serious enough in pursuing the matter for the purposes of getting documents from the respondent and ultimately see that the loan is sanctioned from the Saraswat Co-operative Bank. 5. The entire record if perused from the aforesaid point, it is clear that the appellants did not pursue the matter with reference to readiness and willingness to proceed in the matter and allowed the matter to rest and did not take active steps to see that the transaction is complete. If this is the conduct, the learned trial Judge was right in arriving at final : 5 : conclusion that the appellants were not ready and willing to perform their part of the contract. If this is be so, the learned trial Judge was right in refusing to grant for specific performance and that is how the learned trial Judge ordered that the part consideration paid by the appellants to the respondents to the tune of Rs.1,40,000/- should be repaid. 6. In my view, the learned trial Judge has taken proper view in the matter and passed appropriate order as regards return of the consideration and no interference is required in the impugned judgment and decree and to that extent, the first appeal is required to be dismissed at the stage of admission. Hence, the following order. ORDER i. The first appeal is dismissed. There shall be no order as to costs. ii.In view of the above, Civil Application NO.2007 of 2009 is dismissed with no order as to costs. : 6 : (R.Y. Ganoo, J.)