1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 126/2003 (Babarai Bhagwatrao Jari Vs. Tarachand Chunnilal Gandhi & anr.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. S.A. Gordey, Adv. for the appellant. Mr. A.S. Chandurkar, Adv. For the respondent no.1. CORAM : Smt. Vasanti A. Naik, J. DATED : 29 th JULY, 2008. Heard Shri Gordey for the appellant, and Shri Chandurkar for the respondent no.1. The appellant is the original defendant no.2 who has purchased the suit property from the defendant no.1 during the pendency of a suit filed by the plaintiff against the defendant no.1 for grant of a decree for specific performance of contract. In a suit filed by the plaintiff against the defendant no.1 for specific performance of contract, it was the case of the plaintiff that the defendant no.1 had agreed to sell the suit property to the plaintiff by an agreement dated 9/5/1989. The total consideration was agreed to be Rs. 43,000/- and an amount of Rs. 21,000/- was paid on 9/5/1989 towards an earnest amount. The last date for making the balance payment was 15/4/1990 2 and the sale deed was to be executed thereafter. The plaintiff issued various notices to the defendant no.1 asking him to perform his part of the contract and the first of such notices was issued on 31/3/1990 asking the defendant no.1 to remain present in the office of the Sub Registrar on 12/4/1990. It is the case of the plaintiff that the plaintiff remained present before the Sub Registrar on 12/4/1990 and also on 16/4/1990 by issuing a notice to the defendant no.1. However, the defendant no.1 failed to remain present in the office of the Sub Registrar and perform his part of the contract. Thereafter, various notices were exchanged between the parties and since, according to the plaintiff, the defendant no.1 was not performing his part of contract, a suit for specific performance of contract was instituted. The defendant no.1 denied the claim of the plaintiff and also denied the agreement dated 9/5/1989. The defendant no.1 further denied that the plaintiff was ready and willing to perform his part of the contract. The defendant no.1 sought for the dismissal of the suit. It is not in dispute that during the pendency of the suit, the defendant no.2 purchased the suit property from the defendant no.1. On the pleadings of the parties, the trial Court decreed the suit of the plaintiff so far as the relief of the refund of amount was concerned, but 3 dismissed the suit of the plaintiff for specific performance of contract, on the ground that the plaintiff had not proved that the plaintiff was ready and willing to perform his part of the contract. In an appeal filed by the plaintiff against the judgment refusing to grant the relief of specific performance of the contract, the first appellate Court reversed the findings recorded by the trial Court and held that the plaintiff had succeeded in proving that the plaintiff was ready and willing to perform his part of the contract. The first appellate Court, therefore, decreed the suit of the plaintiff. The defendant no.2, who had purchased the suit property during the pendency of the civil suit, has filed the instant second appeal, challenging the judgment passed by the first appellate Court. It is submitted on behalf of the appellant that the first appellate Court was not justified in holding that the plaintiff was ready and willing to perform his part of the contract as he had sought for the extension of time to pay the balance consideration by the communication dated 13/1/1990. According to the counsel for the appellant, since the plaintiff was not ready and willing to perform his part of the contract by paying the balance consideration, the first appellate Court was not justified in reversing the judgment passed by the trial Court. Shri Chandurkar, the learned counsel for 4 the respondents, submitted that the first appellate Court has recorded a categorical finding of fact that the plaintiff was ready and willing to perform his part of the contract, by considering the entire material on record and the finding of fact on this issue would not give raise to any substantial question of law. It is further submitted on behalf of the respondent/plaintiff that the benefit of the exception under Section 19(b) of the Specific Relief Act, 1963, would not be available to a party purchasing the property during the pendency of a suit filed by the plaintiff for specific performance of contract as, such a party did not get good title. The counsel for the respondent relied on a decision of the Supreme Court reported in (2008) 5 SCC 796 which lays down that the benefit of exception under Section 19(b) of the Specific Relief Act is not available to the purchaser, purchasing the property during the pendency of the suit in view of the doctrine of lis pendens. The counsel for the respondent then submitted that the defendant no.2/ appellant had admitted in his cross-examination that he was aware about the agreement between the plaintiff and the defendant no.1, before he purchased the suit property during the pendency of the suit. The counsel for the respondent, therefore, sought for the dismissal of the appeal. I have perused both the judgments in detail. Since the trial Court had not considered the 5 entire material evidence on record and had also not considered the import of some of the communications issued by the defendant no.1 and the plaintiff to each other, the first appellate Court rightly reversed the findings recoded by the trial Court in regard to the readiness and willingness of the plaintiff to perform his part of the contract. The first appellate Court considered and scanned the various communications issued by the plaintiff and the defendant no.1 to each other, to hold that the plaintiff was ready and willing to perform his part of the contract. The first appellate Court believed the evidence of the plaintiff and his witness which showed that the plaintiff was present in the office of the Sub Registrar for getting the sale deed executed on 12/4/1990 and 16/4/1990. The first appellate Court also observed that the defendant no.2 was was not a bonafide purchaser for value without notice as he had clearly admitted in his cross- examination that he was aware of the agreement between the plaintiff and the defendant no.1 and had still purchased the property from the defendant no.1 during the pendency of the suit. The trial Court heavily relied on the communication issued by the plaintiff to the defendant no.1 asking the defendant no.1 to extend the time for payment of the balance consideration, without considering the effect of the subsequent communications issued by the plaintiff asking the defendant no.1 to remain present in the 6 office of the Sub Registrar for execution of the sale deed on 12/4/1990 and 16/4/1990. The reasons recorded by the first appellate Court for recording a finding that the plaintiff was ready and willing to perform his part of the contract, are just and proper, and cannot be said to be perverse by any stretch of imagination. The judgment reported in (2008) 5 SCC 796 is of much assistance to the case of the plaintiff/respondent no.1, specially when the defendant no.2 has purchased the suit property during the pendency of the suit in spite of the notice of the earlier transaction. He cannot now turn around and say that the plaintiff was not ready and willing to perform his part of the contract. Since the findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material evidence on record, they do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP