1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.218 OF 2010 MADHUKAR SHAMRAO WASU ..VS.. RAMESH NAGORAO SHENDE Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 2/8/2010 Heard Shri Bapat, the learned counsel for the appellant and Shri Kaley, the learned advocate for the respondent. The appellant is the original defendant. A suit was filed by the plaintiff / respondent for specific performance of contract dated 7.8.2000. It was the case of the plaintiff that the defendant an Ex-serviceman had agreed to sell the suit field to the plaintiff for a total consideration of Rs.1,48,000/-. An amount of Rs.41,500/- was paid by the plaintiff to the defendant towards earnest amount. The plaintiff pleaded that he was ever ready and willing to perform the part of the contract, but the defendant failed to perform his part of seeking necessary permission to sell land from the revenue authorities to sell the land and further refused to execute the sale deed in favour of the plaintiff. The plaintiff pleaded that he was in possession of the suit land from 1996 till 2001 when the agreement of sale was executed. The defendant denied the claim of the plaintiff and further denied that he had executed an agreement of sale in favour of the plaintiff for a consideration of Rs.1,48,000/- after receiving an amount of Rs.41,500/-. The defendant denied that he had agreed to execute the sale deed on or before 30.6.2001 on receiving the balance amount. The defendant admitted that 2 the plaintiff was an agriculturist. The defendant pleaded that he had never agreed to seek permission from the Collector Wardha to execute the sale deed as the agreement of sale was not executed between the parties on 7.8.2000. The defendant sought for the dismissal of the suit. The trial court on appreciation of the evidence on record came to a conclusion that the defendant had agreed to sell the suit property to the plaintiff for a total consideration of Rs.1,48,000/- and the amount of Rs.41,500/- was paid to the defendant towards the earnest amount. The trial court, however, held that the plaintiff was not ready and willing to perform his part of the contract as he had not shown that the cash amount of Rs.1,00,000/- was ready with him. The trial court held that the parties had not agreed that the defendant would obtain the permission from the Collector to sell the suit field to the plaintiff and therefore the plaintiff’s suit for specific performance of contract was dismissed by the trial court. The trial court however, decreed the suit for a refund of an amount of Rs.41,500/- with interest @ 8% per annum. The first appellate court on a re-appreciation of the evidence on record came to a conclusion that the plaintiff was ready and willing to perform his part of the contract and being the owner of about 10 acres of agricultural land, the plaintiff was certainly in a sound financial position to purchase the suit property by paying the balance consideration of Rs.1,00,000/-. The first appellate court held that the trial court was not justified in holding that the plaintiff did not show the cash amount of Rs.1,00,000/- and therefore, did not prove his readiness and willingness. The first appellate court considered the fact that the plaintiff was an agriculturist and the defendant was an Ex-serviceman aged 74 years and observed that, the 3 trial court ought to have exercised the discretion in favour of the plaintiff to grant a decree for specific performance of contract. In fact, the first appellate court observed that a request was made to the first appellate court by the defendant that he should be granted permission to refund the balance amount of Rs.41,500/- with interest, in installments. The first appellate court also held that it was necessary for the defendant in the fact and circumstances of the case to seek permission of the Collector for selling the property to the plaintiff. The first appellate court confirmed the finding of the trial court that there was a valid agreement of sale between the parties and the defendant had paid the earnest amount of Rs.41,500/- to the defendant. The findings recorded by the first appellate court are pure findings of facts based on a proper appreciation of the material evidence on record. In fact the judgment of the trial court is very cryptic and the trial court has not discussed the evidence and has also not considered the factual situation in the case while dismissing the suit for specific performance of contract. Since the financial condition of the defendant is weak, and the defendant has in fact sought for installments, before the first appellate court to refund the amount of Rs.41,500/- with interest and since no substantial question of law arose in this case, this court had asked the counsel for the respondent whether the plaintiff/respondent was in a position to pay some more consideration to the defendant due to rise in prices of land. The learned counsel for the respondent conveyed that the respondent is in a position to pay the sum of Rs.50,000/- only to the appellant in this case, though the decree for specific performance of contract is passed in favour of the respondent by the first appellate court. 4 As no substantial question of law arises for consideration in this second appeal, the second appeal is dismissed. In the facts of the case the respondent would be liable to pay an amount of rs.50,000/- over and above the total consideration of Rs.1,48,000/- to the appellant / defendant at the time of execution of the sale deed. The sale deed may be executed as soon as the permission is obtained from the Collector either at the behest of the appellant or the respondent in this case. The Second appeal is dismissed in the aforesaid terms with no order as to costs. JUDGE SMP.