1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1070 OF 2008 Shantilal Rupchand Parkha .... Appellant V/s. Mahadeo Hari Mahale D/H-Sindhu Mahadeo Mahale & Anr. .... Respondents ..... Mr.P.B.Shah,Advocate for the appellant-State. None for the respondents. ..... CORAM : J.H.BHATIA, J. DATE : 4th September, 2009. P.C. 1 Heard Mr.Shah, learned counsel for the appellant. The plaintiff-appellant had entered into an agreement with the deceased Mahadeo Hari Mahale on 3rd November 1992 whereby deceased Mahadeo was to sell the suit plot admeasuring 82.78 sq.mtrs out of the property bearing Survey No.73 situated at Mahatma Phule Peth, Taluka Haveli, Pune, for consideration of Rs.1,06,551/-. According to the appellant, he had paid an amount of Rs.10,000/- as the earnest money and the balance amount was to be paid at the time of execution of registration of sale deed. The Vendor- Mahadeo had to take steps to remove objections, if 2 any, to the agreement within a period of three months. In case, said Mahadev could not remove said objections, he would be liable to refund the earnest money with interest at the rate of 18 % per annum to the plaintiff-appellant. According to the appellant, on 8th December 1992, said Mahadeo issued a notice to the appellant terminating the contract on the ground that there were objections to the said sale agreement from his mother and wife. However, on 16th May 1993, he withdrew that notice and informed that he was ready to abide by the contract but there were objection from his family members which he was tring to remove. Mahadeo died in the year 2000 leaving behind widow-Sindu-defendant no.1 and son-Vikas, defendant no.2. They refused to abide by the Contract. Therefore, on 12th October 2001, the suit was filed by the present plaintiff-appellant for specific performance of the Contract. 2 The defendants contested suit by filing Written Statement below Exh.55, wherein they admitted the agreement between deceased Mahadeo and the plaintiff. However, they contended that after the agreement, several objections were taken to the transaction and 3 therefore Contract was terminated by Mahadeo by issuing notice through an Advocate. It is contended that the document about the withdrawal of the termination notice was falsely created by the plaintiff with help of one Shantilal Navlakha, who claimed to be a Power of Attorney holder for Mahadeo. Even after that alleged notice dated 16th May 1993, the plaintiff had never met Mahadeo nor he had shown any inclination to pay the balance amount of consideration during the life time of Mahadeo. Therefore, it is contended that the plaintiff was never ready and willing to perform this part of the Contract. As the contract is inchoate, it is not enforceable in law and the suit is barred by limitation. 3 After hearing the parties, the trial court came to conclusion that the plaintiff had failed to prove that Mahadeo could not clear the objections that the plaintiff was not ready and willing to perform his part of the Contract and also that suit is barred by limitation. 4 The learned counsel for the appellant states that the main objection to the agreement was from the 4 mother, wife and the son of deceased Mahadeo. He also contends that the property held by Mahadeo was ancestral property. In view of this, he could not sell the property without the consent of his mother, wife and son who could legally claim shares in the property. The property was a small piece of plot admeasuring 82.78 sq.mtrs. As the agreement itself was subject to removal of objections, the contract was inchoate and as those objections could never be removed, the contract could not be completed. Even if for a moment, it is believed that on 16th May 1993, earlier termination notice was withdrawn, there is nothing to show that the plaintiff had made an attempt to get the sale deed executed. 4 In view of this, there is no material to take a view different from the view taken by the trial court and there is no substance in the appeal. Therefore, the appeal stands dismissed. (J.H.BHATIA, J.)