1 sa280 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO.280 OF 2010 Sunil Waghojirao Pol & Anr. ...Appellants vs. Kamal G. Sonawane ...Respondent Mr.Nitin Jamdar i/b Mr.Milind Deshmukh for the appellants Mr.Venkatesh Shastry for the respondent CORAM : A.S.OKA,J. DATE : NOVEMBER 14, 2011 P.C.: 1 Heard the learned counsel for the appellants and the learned counsel for the respondent. The appellants are the original plaintiffs and the respondent is the original defendant. The appellants filed a suit for specific performance of the agreement for sale dated 1 st March 1993 in respect of the suit property more particularly described in the plaint. Consideration agreed was of Rs.1,50,000/- and that earnest amount of Rs.50,000/- was paid at the time of execution of the suit agreement. According to the case of the appellants, at the time of execution of the suit agreement, it was disclosed that the respondent had applied on 26 th February 1993 before the Competent Authority for grant of permission to sell the property. It is contended that the respondent had agreed to execute the sale deed after obtaining the sale permission from the Competent Authority. The property was to be converted for non agricultural use and the appellants were expected to bear the expenses and 2 sa280 maintain the account. It is stated that on 3 rd March 1993, the appellants executed an agreement for development in favour of the respondent for developing the suit property as also land bearing survey no.480/9. It is alleged that on 26 th February 1993 the respondent filed an application for obtaining permission for sale. On 25 th February 1994, the respondent issued notice to the appellants contending that the appellants have failed to perform their part of the suit agreement and therefore, the earnest amount stands forfeited. Notice was replied by the appellants vide reply dated 2 nd April 1994. Thereafter on 29 th February 1996, the appellants filed a suit for specific performance of the suit agreement. 2 The suit was partly decreed. The prayer for specific performance was rejected. The operative part of the decree of the Trial Court reads thus : 1) The suit is partly decreed. 2) The prayer in respect of suit Para 10-A of the plaint is rejected; 3) The defendant is directed to refund Rs. 50,000/- (Rs.fifty thousand only) to the plaintiffs within 3 months from the date of this order and the plaintiffs are directed to handover the possession of the suit property i.e 30-R land described in the agreement to sale Exh.45 on receipt of amount worth of Rs.50,000/- (Rs.fifty thousand only) from the defendant; 4) Both the parties to bear their own costs; 3 sa280 5) Decree be drawn up accordingly. 3 An appeal was preferred by the appellants. By the impugned Judgment and Decree, the appeal has been dismissed. 4 The first submission of the learned counsel for the appellants is that an application was admittedly made by the respondent on 26 th February 1993 to District Rehabilitation Officer for grant of permission to sell the suit property and that after the execution of the suit agreement, the said application was withdrawn by the respondent. He pointed out that as the respondent had already made an application, it was not necessary for the appellants to make an application for grant of permission. He submitted that therefore, the Courts below have committed an error by holding that the appellants were not ready and willing to perform their part of the suit agreement. He submitted that there was no counter-claim filed by the respondent to the suit and therefore, the Trial Court had no jurisdiction to pass a decree for possession directing the appellants to hand over possession to the respondent on receipt of the amount of Rs. 50,000/-. He submitted that though this contention was urged, the Appellate Court has not dealt with the same. The learned counsel for the respondent supported the impugned Judgment and decree. However, as far as the decree for possession is concerned, he has left it to the Court. 5 As far as the denial of the relief of specific 4 sa280 performance is concerned, both the Courts are against the appellants. It is true that the respondent had made an application to the District Rehabilitation Officer on 26 th February 1993 and that the said application was not pressed by the respondent. The Appellate Court has recorded a finding that in the reply dated 2 nd April 1994 issued by the appellants to the legal notice issued by the respondent, it is admitted that the appellants were aware of the fact that the application made by the respondent was not pressed. The finding of the Trial Court and especially the Appellate Court is that as per the terms of the suit agreement, the respondent was under no obligation to obtain permission for sale and except for signing and executing the conveyance after permission was obtained by the appellants, the respondent was required to do nothing further. The finding is that though the appellants were aware of the fact of the respondent not pressing the application dated 26 th February 1993, no steps were taken by the appellants. Though notice dated 25 th February 1994 addressed by respondent was served to the appellants, the appellants waited till 29 th February 1996 to file a suit for specific performance and in the meanwhile, no steps were taken by the appellants. Therefore, it is not possible to find fault with the decree passed by both the Courts to the extent to which the decree for specific performance has been been denied. 6 As far as the decree for possession passed by the Trial Court and confirmed by the Appellate Court 5 sa280 is concerned, substantial question of law which arises for consideration reads thus : Whether in suit for specific performance filed by the appellants-purchasers when there was no counter claim filed by the respondent-vendor, whether the Trial Court could have passed a decree for possession of the suit property subject matter of the suit agreement? 7 Admittedly, there was no counter-claim filed by the respondent seeking a decree for possession. The Trial Court directed the respondent to refund the earnest money of Rs.50,000/- and ordered and decreed the appellants to hand over possession on receiving Rs.50,000/-. In absence of any counter claim, there was no jurisdiction vested in the Trial Court to pass a decree for possession against the appellants and therefore, that part of the decree will have to be quashed and set aside. 8 Hence, I pass the following order : i) That part of the decree of the Trial Court by which the appellants have been ordered and decreed to hand over possession to the respondent is quashed and set aside. ii)Rest of the impugned Judgments and decrees are confirmed. iii)Second Appeal is partly allowed on above terms with no order as to costs. iv)Civil Application no.769 of 2010 does not survive and the same is disposed of. JUDGE