1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL ST. NO. 5529 OF 2005 Nirmal Devidas Shirsath & others .. APPELLANTS VERSUS Shri Satya sai Baba Plot Vikri Kendra .. RESPONDENT Shri S.P. Tiwari, Advocate holding for Shri N.L. Choudhari, Advocate for the appellants. Shri G.V. Wani, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 8 th September, 2009 PER COURT : 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs instituted Regular Civil Suit no. 322/1994 claiming relief of specific performance of agreement alleged to have been executed on 8-1-1988 in respect of purchase of the plot. Amount of consideration was Rs.4,500/-. It is the contention of the plaintiff that inspite of issuance of notice, defendant failed to perform his part of the agreement and as such, 2 plaintiff was constrained to file suit. Contentions raised in the plaint are controverted by defendant by filing written statement. Defendant admitted advancement of part of the consideration to the tune of Rs.1,000/- however, has denied receipt of balance amount. According to the defendant, suit is not presented within limitation. The date fixed for performance of agreement was May 1992 and plaintiff for the first time issued notice in the year 1994 calling upon the defendant to perform his part of the contract. 3 Trial court after considering the rival contentions was pleased to grant decree in favour of the plaintiff in respect of refund of consideration amount of Rs.1,000/- together with interest at the rate of 6% per annum. Judgment and decree passed by the trial court was subjected to challenge at the instance of plaintiff in Regular Civil Appeal no. 19/2000 which came to be heard and disposed of by 4 th Additional District Judge, Dhule who was pleased to allow the same partly by judgment dt. 16-4-2003. First appellate court directed refund of consideration amount alongwith interest at the rate of 6% per annum from the date of filing of the suit till realisation of the amount. Courts below however refused to grant decree in favour of the plaintiff in respect of specific performance of agreement and directed refund of consideration by defendant. 3 4 I have perused the judgment recorded by both the courts below. Both the courts below have concurrently recorded finding that the plaintiff has failed to establish readiness and willingness to perform part of the contract. Although it is pleaded in the plaint that the deceased husband of the plaintiff and after his demise the plaintiff herself were ready to perform their part of contract however, such statement has not been made by plaintiff in oral evidence before the court. Apart from this aspect, time fixed for performance of agreement was May 1992. However, plaintiff did not take any steps till 4-1-1994. This fact itself shows that the plaintiff has failed to establish readiness and willingness to perform her part of the contract. Findings of fact recorded by the courts below need not be interfered with while dealing with the instant second appeal. Apart from this aspect, discretion exercised by the court below in refusing to grant decree of specific performance of contract need not be interfered with by the appellate court. No substantial question of law arises for consideration in the appeal. Appeal stands dismissed summarily. ( R. M. BORDE, J.) dyb/office/sast5529.05.odt 4 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 5262 OF 2009 IN SECOND APPEAL ST. NO. 5529 OF 2005 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 8 th September, 2009 . This is an application for recalling order passed by this court on 11-6-2008 dismissing the appeal as well as applications for want of prosecution. For the reasons stated in the application, order passed by this court on 11-6-2008 is recalled. Appeal as well as applications are restored to their original number. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast5529.05.odt 5 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 7034 OF 2005 IN SECOND APPEAL ST. NO. 5529 OF 2005 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. 1 This is an application seeking condonation of delay of 243 days occurred in presenting the second appeal. 2 Heard. For the reasons stated in the application, application is allowed. Delay occurred in presenting the appeal stands condoned. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast5529.05.odt