Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAATE JURISDICTION SECOND APPEAL NO.648 OF 2007 Shashikant Pannalal Gupta since deceased by his LRs. Gaurav Shashikant Gupta & ors. : Appellants. Versus Gaurishankar Ramchandra Karale : Respondent Mr. P S Dani for the Appellants. Mr. Surel Shah for the Respondent. CORAM : C L PANGARKAR, J DATED : 29th JANUARY 2010 P.C. 1. This second appeal is preferred by the Defendants who have suffered a decree for specific performance of contract. 2. The Respondent/Plaintiff instituted a suit for specific performance of contract claiming that the Defendant No.1 had entered into a contract of sale of the suit property with the Plaintiff. After the suit came to be instituted the defendant No.1 sold the property to the Defendant Nos.2 and 3. 3. The suit was resisted by the Defendant No.1 on the ground that there was in fact no agreement for sale between the Plaintiff and the defendant No.1 but the agreement for sale was executed by way of security for the sum advanced by the Plaintiff to the Defendant No.1. 4. The Defendant Nos.2 and 3 had contended that they were bonafide purchasers of the suit property and the suit was barred by law of limitation. They also contended that they had published a notice in the news paper before purchasing the suit property. 5. The learned Judge of the trial Court after recording evidence found that the defendants had failed to establish that the agreement for sale was executed by way of security for the sum advanced by the plaintiff to the defendant No.1. On the other hand she found that it was an agreement for sale and the plaintiff was ready and willing to perform his part of contract and holding so, decree for specific performance was passed. 6. The said decree was challenged before the District Judge. The learned District Judge, who heard the appeal, also concurred with the findings recorded by the trial court and dismissed the appeal. 7. I have heard the learned counsel for the Appellants and the learned counsel for the Respondent. 8. The learned counsel for the appellant submits before me that first thing that this court has to consider is that the Courts below have not considered the provisions of Sections 19 and 20 of the Specific Relief Act inasmuch as the Court is not bound to pass the decree for specific performance because the suit is instituted for specific performance of contract. There is no dispute that relief so far as specific performance of contract is concerned, is a discretionary relief. The question is whether in this particular case it could be apparently said that the courts below have fallen in error in decreeing the suit for specific performance of contract. After going through the reasons as given by the courts below I do not have any hesitation to hold that the courts below did not err in decreeing the suit for specific performance of contract. It is to be seen that as the suit was instituted for specific performance of contract, and it was concurrently held by the courts below that the plaintiff was always ready and willing to perform his part of the contract. The Defendant Nos.2 and 3 themselves have come out with a case that they had approached the plaintiff before purchasing the suit property. The fact that they had come out with such a case itself suggests that the defendant Nos.2 and 3 who are subsequent purchasers of the suit property were aware of institution of the suit by the plaintiff and yet they have chosen to run the risk of purchasing the suit property which was the subject of the litigation pending in the court. The courts below have considered this aspect and they have found that knowledge can be attributed to the defendant Nos.2 and 3. The defendant Nos.2 and 3 have not right to agitate now that the decree of specific performance ought not to have been passed by the courts belo as they are in possession of the property. It is not shown or pleaded by either of the defendants that any hardship would be caused to the defendants which they did not foresee when they entered into the agreement. It cannot be said that the defendant Nos. 2 and 3 who have purchased the property were not or could not see foresee consequence upon purchasing the property, in spite of the fact that they were aware that the suit is pending in the court. There is nothing wrong in appreciation of evidence on the part of both the courts below. They have considered this aspect and have attributed the knowledge to the defendant Nos.2 and 3 about pendency of the suit. These are two concurrent findings which are finding of facts and this court therefore cannot entertain submission only in that regard. There is no substantial question of law involved in this Appeal. The appeal is therefore dismissed in limine. The defendants are granted four months time to vacate the suit premises. [C.L.PANGARKAR,J]