1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 405 OF 2008 SECOND APPEAL NO. 405 OF 2008 SECOND APPEAL NO. 405 OF 2008 1. Smt. Vedavati Bhaskar Killedar ) age about 48, Occupation household work) 2. Krishna Bhaskar Killedar, ) age about 25, occupation service. ) 3. Kum. Neha Bhaskar Killedar, ) age about 19, occupation education ) All Nos. 1 to 3 residing at ) "Shiva Parvati Krupa", ) Killedar Plot, Opp. Marathe ) Computer, Near Urban Bank, ) Vishrambaug, Sangli ) (Nos. 1 to 3 are legal representatives) of Shri Bhaskar Vyankatesh Killedar - ) Original defendant No.1 who died on ) 6.10.2006) )..Appellants (L.rs. of orig.Deft.No.1) Versus 1. Durgadas Raghunathrao ) Karanjwadekar, age about 53, ) 2 occupation nil, residing at ) "Raghu Prabha", Near Marathe Computer ) Near UrbanBank, Vishrambaug, Sangli. ) 2. Balasaheb Hussain Shaikh, ) age about 55, occupation business ) 3. Dastagir Hussain Shaikh, ) age about 70, occupation nil ) Nos. 2 & 3 residing at R.S.No.331B, ) Plot No.5, Sagar Apartment, Chandani ) Chowk, Sangli. ) 4. Roopchand Rajaram Shah ) since deceased by his legal ) representative No.5 below: ) 5. Prakash Rajaram Shah, ) age about 38, occupation business, ) residing at 763, Ganapati Peth, ) Sangli. )..Respondents (No.1 -org.plfff. Nos. 2 to 5 - orig.defts.) Mr. S.G.Deshmukh, Advocate, for the appellants. Mr. Manoj Patil i/b. Mr. A.B.Vagyani, advocates for Defendants Nos. 2 & 3. 3 Mr. S.S.Patwardhan, Advocate for respondent No.5. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 22nd July, 2008. DATE: 22nd July, 2008. DATE: 22nd July, 2008. JUDGMENT JUDGMENT JUDGMENT 1. Heard the learned Counsel for the appellants, respondents Nos. 2 & 3 and respondent No. 5. None for the respondent NO.1, who is the original plaintiff. 2. To state in brief, the respondent No.1 is the original plaintiff.the appellants before this Court are the L.rs. of the orignial defendant No.1. Special Civil Suit No.104 of 1994 was filed by the plaintiff contending that the defendant No.1 was a builder and contractor and the plaintiff was appointed by him as a supervisor on construction work taken up by the defendant No.1. In November 1990 he left the job of the defendant NO.1. At that time, an amount of Rs.1,08,000/- was due from the defendant No.1 towards salary. At that time, the defendant No.1 suggested the plaintiff to purchase a flat for consideration of Rs.1,10,000/-. According to the plaintiff, an agreement took place between him and the defendant No.1 whereby the defendant No.1 was to sell flat No.5 in the building 4 to be constructed as "Sagar Apartment". The consideration was agreed to be Rs.1,10,000/- and the amount of Rs.1,08,000/- which was due from the defendant NO.1 to the plaintiff was adjusted towards the consideration amount. The balance amount of Rs.2,000/- was to be paid at the time of execution of sale deed. The defendant No.1 was to complete the construction and to hand over the possession of the said flat to the plaintiff within 8 months. In case of delay, the defendant NO.1 was liable to pay amount of Rs.500/- per month towards damages to the plaintiff. Accordingly, an agreement dated 14.11.1990 was entered into and executed by the parties. He filed the suit in 1994 contending that even though the defendant No.1 had constructed the building upto third floor, he had not completed the construction of the flat which was agreed to be sold to the plaintiff. The plaintiff had requested him to complete the construction and to hand over the possession. He also offered to pay the balance amount of Rs.2,000/-. However, giving one or the other excuse, the defendant no.1 did not complete the construction work. Later on, the plaintiff came to know that the defendant No.1 had completed the construction and executed the sale deed to defendants Nos.4 and 5. Therefore, he filed the suit for specific performance of the contract and alternatively, he claimed refund of the 5 amount with damages and interest at the rate of 18% per annum. 3. The defendant No.1 did not appear and the suit proceeded ex-parte. Defendant Nos. 2 and 3 are the owners of land on which construction was to be made by the defendant NO.1 as a builder and developer. Defendants Nos. 4 and 5 have purchased the flat No.5. The defendant No.2 filed the written statement and contested the suit and denied the agreement. Defendant Nos. 4 and 5 also contested the suit contending that they were the bonafide purchasers for consideration without knowledge of any previous agreement. 4. The learned trial Court framed the issues and came to the conclusion that the plaintiff had failed to prove the contract and the payment of Rs.1,08,000/- to the defendant No.1. The learned Court also held that the defendants Nos. 4 and 5 have failed to prove that they are bonafide purchasers for consideration. At the same time, the trial Court also held that the plaintiff had failed to prove that the said transaction was binding on him. The trial Court also held that the plaintiff was not ready and willing to perform the contract and in the result the trial Court came to the conclusion that the plaintiff is not entitled to decree for specific 6 performance or for payment of the amount of Rs.2 lacs being the consideration amount. 5. Being aggrieved by the dismissal of the suit, the plaintiff preferred Regular Civil Appeal No.250 of 2001. The learned appellate Court came to the conclusion that the plaintiff had, in fact, paid by way of adjustment an amount of Rs.1,08,000/- to the defendant No.1 and the defendant no.1 had also agreed to sell a flat in the said building. However,the appellate Court held that there was no specific agreement for sale of flat no.5 and in this sense, the learned appellate Court came to the conclusion that the plaintiff had failed to prove that there was an agreement for sale of suit flat No.5. The learned appellate Court observed that in the notice issued by the plaintiff to the defendant No.1, he had not expressed that he was ready and willing to perform his part of the contract. As a result, the learned appellate Court came to the conclusion that the plaintiff is not entitled to decree for specific performance of contract. However, in view of the terms of the contract which were clearly reduced to writing, the learned appellate Court came to the conclusion that the defendant No.1 was liable to refund that money. Further the terms of contract clearly provided that in case the defendant No.1 would not complete the 7 construction and hand over possession of the flat to the plaintiff within 8 months, he would be liable to pay an amount of Rs.500/- per month as damages to the plaintiff. In view of this, the learned appellate Court held that the defendant No.1 is liable to refund an amount of Rs.2,00,000/- as claimed by the plaintiff. This includes the principal amount of Rs.1,08,000/- and the damages. With these findings, the appellate Court allowed the Appeal and while dismissing the claim for specific performance, passed a decree for payment of Rs.2 lacs by the defendant no’.1 to the plaintiff. The decretal amount was to carry interest at 6% per annum from the date of suit till realisation. The claim against defendant Nos. 2 to 5 came to be dismissed. 6. Being aggrieved by the decree passed by the appellate Court, the defendant No.1 has preferred this Second Appeal. 7. Heard the learned Counsel for the parties. 8. The learned Counsel has taken me through the Judgments of both the Courts and according to him, the appellate Court committed serious error in passing the decree for damages, particularly when both the Courts have come to the conclusion that the plaintiff had 8 failed to prove the agreement for sale and had also come to the conclusion that he had failed to prove that he was ready and willing to perform his part of the contract. I find that there was a written agreement between the plaintiff and the defendant no.1 about this transaction. The defendant no.1 had never contested the suit. Therefore, the evidence of the plaintiff had gone unchallenged. The appellate Court came to the conclusion that there was no agreement in respect of flat No.5 specifically and therefore, the suit for specific performance of the contract cannot succeed. After going through the oral and documentary evidence and particularly the written agreement between the parties I find that the defendant No.1 had agreed to sell a flat and out of consideration of Rs.1,10,000/-, he had already received an amount of Rs.1,08,000/- which was lying with him and only balance of Rs.2,000/- was to be paid. Thus, practically, the plaintiff had nothing more to do except to pay a small amount of Rs.2,000/- to get the sale deed executed. Anyhow, the appellate Court granted the decree for payment of Rs.2 lacs on the ground that the defendant No.1 had received the amount of Rs.1,08,000/- out of the consideration amount for sale of one flat in the building and he had also agreed to pay Rs.500/- per month as damages if possession is not given within 8 months. The parties are bound by the 9 terms of the contract, which provide for liquidated damages. The amount of damages is also not exorbitant. If it is treated as interest on the amount received by the defendant No.1, it is less than 6% per annum. Taking into consideration the material which was placed before the Courts below and the reasons given by the appellate Court, I find that no substantial question of law is involved in the present Appeal. 9. In the result, the Appeal stands dismissed. 10. As the Appeal itself is dismissed, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)