1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.106 OF 2010 WITH CIVIL APPLICATION NO.1418 OF 2009 Shri Ganpati Avaghade Mane )..Appellant Vs. Shri Maruti Krishna Dhangar )..Respondent ---- Mr. S.A.Rajeshirke for the appellant. Mr.Sanjeev P. Kadam for the respondent. ---- Coram : R.S.MOHITE,J Date : 10th March, 2010 PC SECOND APPEAL NO.106 OF 2010 1 This is a Second Appeal filed by the original defendant against concurrent judgment and decrees of the two lower courts decreeing the plaintiff’s suit for redemption of the mortgage in lieu of a debt of Rs.10,000/-. The mortgage was executed by the plaintiff in favour of the defendant. It was the defendant’s case that subsequently the plaintiff agreed to sell the suit property to him by an agreement of sale dated 2.2.1997. The copy of the agreement of sale produced in the court was an unstamped zerox copy and not the original. It is contended that the first substantial question of law is that the document ought to have been admitted in evidence. On perusal of the document, I find that the consideration for agreement of sale was Rs.63,000/-. Of this, part amount was accepted by the plaintiff but the balance amount of Rs.58,286/- was to be paid in two installments. The first installment of Rs.30,000/- was payable on 2.3.1997 and the 2nd installment of Rs. 2 28,286/- was payable on 2.4.1997. In the written statement the defendant states that he went to tender the first installment on 2.3.1997 but the plaintiff did not accept this amount. The record indicates that after a lapse of one year, the defendant issued a notice on 21.4.1998 offering the amount due under the agreement for sale. The agreement of sale itself mentioned that if the amounts are not paid on 2.3.1997 and 2.4.1997, the agreement of sale would be treated as canceled and the plaintiff would be entitled to redeem the mortgage on payment of the debt amount of Rs.10,000/-. In my view, it is not possible to believe that the two installments were offered. It was open for the defendant to send a money order if the plaintiff has refused this amount. He did not make any concrete offer of payment for more than one year. In the circumstances, even assuming the agreement of sale is admitted in evidence, it will not help the case of the defendant. In this view of the matter, in my view, there is no substantial questions involved in the Second Appeal. Advocate for the defendant contended that the plaintiff will not be entitled to redeem the mortgage in view of his own subsequent act of entering into an agreement of sale. He relied upon the judgment of the Patna High Court reported in AIR 1936 Patna 404. It is however seen that in that case what was executed by the mortgagor in favour of the mortgagee was a sale deed and not an agreement of sale. That case turns on different facts. In the circumstances, Second Appeal stands dismissed. CIVIL APPLICATION NO.1418 OF 2009 As the Second Appeal is dismissed, this Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3 4