1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL NO.424 OF 2007 Sau.Kavita Shyamsundar Mahajan ..vs.. Bholashankar Kesharwani. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 14th March, 2008. 1. Heard Ms.Usha Gujar, Advocate for the appellant and Shri M.R.Joharapurkar, Advocate for the respondent. 2. This second appeal has been preferred by the original plaintiff. She had instituted a suit for specific purpose of contract alleging that the defendant had entered into a contract of sale of the suit house with her for a consideration of Rs.40,000/-. 3. The defendant had contended in the written statement that there was no agreement of sale as such but it was a loan transaction. 2 4. The trial court had held that there was no agreement of sale between the parties but the transaction was one of loan. Holding so, the learned judge of the trial court had refused decree of specific performance and had ordered refund of the earnest money. 5. Dissatisfied with this judgment and decree of the trial court, the plaintiff preferred an appeal before the District Judge. The District Judge found that finding of the trial court that it was a loan transaction was not correct but it was agreement of sale. However, the learned District Judge found that if a decree for specific performance is granted, it would give unfair advantage to the plaintiff and it would cause hardship to the defendant. Holding so, he refused to decree the specific performance and dismissed the appeal. 6. The learned counsel for the appellant submitted that even though the court has given a finding that there was an agreement of sale and the plaintiff was always ready and willing to preform her part of contract, yet the first appellate court has wrongly refused to decree the suit for 3 specific performance. She submits that when it is proved that there was an agreement and plaintiff was ready, there should not have been any difficulty in decreeing the suit for specific performance. She contended that for the first time the appellate court raised the question of hardship and no issue to that effect was framed. 7. I am taken through the judgment of the first appellate court. The learned judge of the first appellate court has found that if the decree for specific performance is passed in favour of the plaintiff, that would give unfair advantage to the plaintiff and would cause hardship to the defendant. The thing which weighed with the learned judge of the first appellate court is that just a few days prior to agreement of sale the defendant had purchased the property for consideration of R.45,000/- and even taken a loan of Rs.80,000/- on it. He within a time of few days agreed to sell the said property for sum of Rs.40,000/- and this shows, according to the leaned judge, compelling circumstance which would certainly give unfair advantage to the plaintiff. After having gone through the contents of the agreement and the judgment, I find that the learned judge of the first appellate court was right 4 in saying that it would give unfair advantage to the plaintiff if the decree for specific performance is passed in as muchas respondent had purchased the property for Rs.45000/- and was intending to sell it for Rs.40,000/- within a time of few days. Ultimately, it must be borne in mind that granting a decree for specific performance or not granting the decree for specific performance is within the discretion of the court. The learned judge of the first appellate court has rightly used the discretion and I do not see any perversity in use of such discretion in favour of the defendant. The learned counsel for the appellant submitted that the court did not take into consideration the other evidence available on record. It was also contended that there was no issue framed by the trial court or the first appellate court. There is no need to frame such a issue with regard to hardship. It must be presumed that other party is aware of the fact that it has to lead evidence with regard to hardship and unfair advantage. There is no substance in the appeal. No substantial question of law is involved in the appeal. The appeal is dismissed in limine. JUDGE chute 5