1 sa722.92.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 722 OF 1992 WITH CIVIL APPLICATION NO. 1350 OF 1992 Dr. Hari Bhalchandra Athavale and others ..Appellants. Vs. Shri Pramod Shankar Patil and Ors. ..Respondents. Mr. Arvind J. Joshi for the Appellants. CORAM : A.S. OKA, J. DATE : 9TH NOVEMBER, 2011. ORAL JUDGMENT 1. Heard learned Counsel for the appellants. The appellants are the original plaintiffs in a suit for specific performance of an agreement of sale in respect of the suit property. The predecessor of the respondents executed the agreement for sale dated 12th May, 1981, by which he agreed to sell the suit property more particularly described in paragraph 1 of the plaint. The price agreed at Rs. 18,500/- out of which a sum of Rs. 5000/- was paid by the appellants to predecessor of the respondents on the date of the agreement. According to the case of the appellants, the suit agreement provided that the original vendor (predecessor of the respondents) was to 2 sa722.92.sxw provide requisite documents to the appellants to enable the them to apply for change of user of the suit property from agricultural to non-agricultural. It is alleged that for obtaining documents, a sum of Rs. 2000/- was paid by the appellants to the predecessor of the respondents. After demise of the original vendor, the respondents obtained a sum of Rs. 800/- from the appellants for supply of necessary documents. A reliance is placed on notice dated 11th November, 1983 sent by the appellants to the first and second respondents calling upon them to execute the sale deed by accepting the balance consideration. Further reliance is placed on notice dated 10th February, 1986 issued by the Advocate for the appellants to the respondents making a similar demand. As the sale deed was not executed in a stipulated time, on 3rd May 1986, the suit for specific performance was instituted. The suit was contested by respondents by filing written statement. The respondents denied the execution of the suit agreement by their predecessor. 2. The trial Court decreed the suit. In appeal preferred by the respondents, the District Court has interfered and has set side the decree for specific performance. 3. The learned Counsel appearing for the appellants submitted that the predecessor of the respondents had agreed to procure the documents to 3 sa722.92.sxw enable the appellants to apply for change of user and after obtaining the permission for change of user, the sale deed was to be executed within a period of three months. He submitted that the evidence on record shows that for obtaining copies of relevant documents, the second respondent obtained a sum of Rs. 800/- from the appellants, but failed to supply the documents. He submitted that as the respondents failed to supply the requisite documents, the appellants could not apply for grant of change of user. His submission is that the appellants have been all along ready and willing to comply with their part of the suit agreement and the default is on the part of the respondents. He submitted that the balance consideration was to be paid at the time of execution of the sale deed and the appellants had shown their readiness and willingness to pay the balance consideration and to get the sale deed executed. He submitted that the respondents failed to perform their obligations under the suit agreement though the appellants were ready and willing to perform their part. He relied upon the decision of the Apex Court in the case of Nathu Lal V. Phool Chand, (1970 Mh.L.J. 674). His submission is that the judgment of the appellate Court and the finding recorded therein on the issue of readiness and willingness is perverse and contrary to the evidence on record. 4. I have considered the submission. While admitting the second appeal, 4 sa722.92.sxw this Court had observed that the substantial questions law are as framed in paragraph 22 of memorandum of appeal, which reads thus: (a) Whether from the act of omission on the part of the Appellants which is dependent on preceding act on the part of Respondent, it can be inferred that Appellants were not ready and willing to perform their part of agreement? (b) Whether such inference of readiness and willingness drawn on admission of Appellants in cross-examination can be drawn insolation without considering other circumstances pleading and evidence, and particularly the plea of denial of execution of agreement of sale on the part of Respondents? 5. Perusal of the plaint shows that though there is an averment that a sum of Rs. 800/- was taken by the second respondent for obtaining the documents, there is no specific averment that the documents were not supplied. There is only a vague averment that respondents did not cooperate in the matter of obtaining permission for non-agricultural use. In the first legal notice dated 11th November, 1982, though there is a reference to the amount paid by the appellants to the second respondent for obtaining copies of the documents, there is no specific assertion that the documents were not supplied and therefore, the appellants could not perform their part of submitting an application for the change of user. After notice dated 11th November, 1983, there appears to be inaction on the part of the appellants till 10th February, 1986, when another legal notice was issued by the 5 sa722.92.sxw appellants to the respondents. Even in the said notice, there is no contention that as the respondents failed to supply the requisite documents, the appellants could not take necessary steps for obtaining permission for the change of user. Only a vague averment has been made that though the respondents were called upon to make marketable title, they failed to do so. 6. Perusal of the findings recorded by the District Court in paragraphs 11 and 12, shows that the aforesaid aspects have been considered by the District Court. Apart from the aforesaid aspects, an inference has been drawn by the appellate Court that the appellants were not ready and willing to perform their part of the agreement as the appellants kept mum after service of the first notice on 11th November, 1983 till 10th February, 1986, when the second notice was issued. The finding of fact recorded by the appellate Court on the issue of readiness and willingness is based on appreciation of oral and documents evidence on record. The decision of Apex Court in the case of Nathu Lal cannot be applied as there is no evidence that the respondents did not supply the requisite documents and therefore, the appellants could not apply for the permission of change of user. 7. Under Section 20 of Specific Relief Act, the grant of decree for specific performance is always discretionary. While declining to grant the 6 sa722.92.sxw decree for specific performance, the appellate Court has considered inaction on the part of the appellant for a long time. Hence, there is no merit in the appeal. The appeal is dismissed with no order as to costs. 8 Civil Application No. 1350 of 2011 does not survive and is disposed of accordingly. ( A.S. OKA, J. )