1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.324 OF 2010 Mangesh Murlidhar Kurjekar & one another ..vs.. Shyam Govindrao Giradkar Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. Shri P.K. Mishra, Advocate for the appellant. CORAM: SMT. VASANTI A. NAIK, J. DATE: 21st JULY 2010 The appellants are the original defendants. A suit was filed by the plaintiff for specific performance of contract of sale of field property which was executed between the plaintiff and original defendant no.1. Vinayak and his brother Chindu had agreed to sell the suit property jointly owned by them to the plaintiff for at total consideration of Rs.2,85,000/-. According to the plaintiff an amount of Rs.85,000/- was paid towards earnest. The sale deed was to be executed on or before 31.5.2003. It was pleaded by the plaintiff that the plaintiff was ever ready and willing to perform his part of contract, but the defendant no.1 Vinayak failed to perform his part of the contract. However, Chindhu executed a sale deed in respect of half of the land in favour of plaintiff's son Lokesh. Thereafter by registered sale 2 deed dated 30.7.2002, defendant no.1 Vinayak sold the suit property to the defendant no.2 by a registered sale deed. It was pleaded by the plaintiff that the sale deed executed by Vinayak – defendant in favour of defendant no.2 was void and not binding on the plaintiff. The plaintiff therefore sought a decree for specific performance of contract as he was ever ready and willing to perform his part of contract. The defendant no.1 resisted the claim of the plaintiff. He however, admitted that he and his brother Chindu had agreed to sell the suit property to the plaintiff for a consideration of Rs.2,85,000/-. He also admitted that the plaintiff had paid an amount of Rs.85,000/- as earnest amount and the sale deed was to be executed on or before 21.5.2003. He then admitted that he had sold his half share to the defendant no.1. It was pleaded by the defendant no.1 that the defendant no.2 was the tenant of defendant no.1 for five years and therefore, he sold his share to the defendant no. 2. The defendant no.1 pleaded that the plaintiff was not having sufficient funds for execution of the sale deed and hence it was clear that the plaintiff was not ready and willing to perform his part of the contract. The defendant no.1 sought for the dismissal of the suit. The defendant no.2 also resisted the claim of the plaintiff and pleaded that he had purchased the suit property from the defendant no.1 on 10.6.2003 and the suit of the plaintiff was liable to be dismissed. Both the courts, on an appreciation of the material evidence on record held that the plaintiff had succeeded in proving that the defendant no.1 had agreed to sell the suit field 3 to plaintiff and an amount of Rs.85000/- was paid as earnest amount. The courts also held that the sale deed executed by defendant no.1 in favour of defendant no.2 was illegal, void and not binding on the plaintiff. The courts then held that the plaintiff was ready and willing to perform his part of the contract and the defendant no.1 failed to perform his part. The concurrent findings recorded by both the courts are challenged by the defendants by this second appeal. On hearing the learned counsel for the appellant and on perusal of both the judgment it appears that the courts did not commit any error in granting a decree for specific performance of contract in favour of the plaintiff. The submission made on behalf of the appellants that the courts could not have held that the sale deed executed by defendant no.1 in favour of defendant no.2 was not binding on the plaintiff as a prayer for such declaration was not made by the plaintiff, is liable to rejected for the simple reason that an issue in that regard was framed by the trial court and the parties were aware about the issue framed and the evidence that it was liable to be tendered on the said issue. It is further necessary to note that in paragraph 6 of the plaint the plaintiff had categorically pleaded that the sale deed executed by defendant no.1 in favour of defendant no.2 was illegal and void and not binding on the plaintiff though a specific prayer was not incorporated in the prayer clause. Moreover, the necessary court fees were also paid by the plaintiff. 4 The other submission made on behalf of the appellant that the suit for specific performance of contract could not have been decreed in view of the provisions of section 12 of the Specific Reliefs Act is also liable to be rejected as the plaintiff has proved his readiness and willingness to preform his part of the contract and it was found that the defendant no.1 was the defaulting party as Chindu had rightly sold his property to plaintiff's son Lokesh. Since the defendant no.1 was unable to perform his part of the contract, the trial court and the first appellate court rightly held that the defendant no.1 was entitled to perform the part of contract which he was able to perform as the plaintiff or Chindu were not at fault and defendant no.1 had wrongfully sold the property to defendant no.2. The discretion exercised by both the courts in decreeing the suit for specific performance of contract is based on sound judicial principles and this court would not be in a position to lightly interfere with the discretion exercised by both the courts in granting a decree for specific performance of contract. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of law of Specific Relief and they do not give rise to any substantial question of law. The judgment reported in AIR 1990 SC 854, 2001(8) SCC 173 and 2000(1) Mh.L.J. 386 are distinguishable on facts and cannot be made applicable to the facts of this case, specially when both the courts, on proper appreciation of the evidence on 5 record have granted a decree for specific performance in favour of the plaintiff. Since no substantial question of law arises for determination in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP.