1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL ST. NO.2821 OF 2005 Baburao s/o Sonaji Shinde Appellant Versus Baban s/o Punjaji Shinde & others Respondents Mr.A.G.Dalal, advocate for the appellant. Mr.S.B.Bhapkar, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 10 th August, 2009. P.C.: 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the Courts below. 2 Appellant-original plaintiff instituted Regular Civil Suit No. 98/82 claiming decree of specific performance of contract against defendants. According to the plaintiff, defendant no.1 had agreed to alienate an area admeasuring 4 acres for consideration of Rs.16,000/- by entering into an agreement of sale on 04.07.1980. According to the plaintiff, he parted with earnest money to the tune of Rs.12,000/- at the time of execution of agreement of sale and he was put in possession of the disputed property. As per the terms of agreement, sale deed was to be executed uptill Gudi Padwa of 1982 on accepting balance consideration of Rs.4000/-. Plaintiff further contends that in spite of there 2 being an agreement entered into by defendant no.1 with him, defendant no.1 alienated the property in favour of defendants no.2 & 3 by executing sale deed on 04.12.1981. Defendants no.2 and 3 further entered into a transaction with defendant no.4 and alienated the said property by registered sale deeds dated 04.06.1982 and 04.08.1982. Plaintiff thereafter proceeded to issue notice to defendant no.1 calling upon him to execute sale deed in accordance with the agreement entered into by him on 04.07.1980, however, as defendant no.1 failed to perform his part of contract, plaintiff was constrained to approach the Court claiming relief in respect of specific performance of the agreement. 3 Defendant no.1 did not resist the suit and remained absent, whereas contentions raised by plaintiff were controverted by defendants no.2 and 3 by filing written statement. Apart from contending that the agreement entered into by defendant no.1 and plaintiff being a sham and fabricated document, defendants no.2 and 3 further contended that they were bona fide purchasers for value and their possession needs to be protected. 4 The trial Court, on the basis of pleadings of the parties, framed issues and after considering evidence adduced by the parties, has come to the conclusion that the plaintiff has proved agreement to sale, however, in the facts and circumstances, in stead of granting decree of specific performance, trial Court has exercised discretion while granting relief in respect of refund of earnest money. The judgment and decree passed by the trial Court was subjected to challenge at the instance of plaintiff in Regular Civil Appeal No.71/1986. Appeal came to be heard 3 and disposed of by II Additional District Judge, Parbhani, who was pleased to dismiss same by judgment and order dated 22.11.1994. 5 I have perused the judgments delivered by both the Courts below. It appears that although plaintiff has contended that he was put in possession in pursuance to the agreement to sale dated 04.07.1980, plaintiff has failed to establish his possession in relation to the suit property. The trial Court, considering the fact that the property has changed hands since 1981, exercised discretion in favour of the plaintiff in granting him relief in respect of refund of earnest money. The first appellate Court did not find it appropriate to interfere with the findings recorded by the trial Court. There exist no ground compelling this Court to interfere in the reasons recorded by the trial Court while exercising discretion in granting relief in respect of refund of earnest money. No substantial question of law arises for consideration in the appeal. 6 Appeal, therefore, stands dismissed. Pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sast282105 4 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.7012 OF 2005 IN SECOND APPEAL ST. NO.2821 OF 2005 Baburao s/o Sonaji Shinde Appellant Versus Baban s/o Punjaji Shinde & others Respondents Mr.A.G.Dalal, advocate for the appellant. Mr.S.B.Bhapkar, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 10 th August, 2009. P.C.: 1 This is an application seeking condonation of delay for about 10 years and 79 days occurred in approaching the Court. 2 It is contended by the applicant that he was suffering from mental disorder and as such, could not take steps for filing the appeal promptly. The appellant has also produced medical certificates on record to support his contention. 3 Considering the contentions raised by the applicant and after hearing learned Counsel for respective parties, I am of the opinion that the delay occurred in approaching this Court needs to be condoned. 4 Civil Application is, thus, allowed. Delay of 10 years and 79 days occurred in preferring Second Appeal stands condoned. (R.M.BORDE) JUDGE ******* adb/sast282105