: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.853 OF 2006 SECOND APPEAL NO.853 OF 2006 SECOND APPEAL NO.853 OF 2006 Shankar Vittoba Pawar & Ors. ...Appellants V/s. Tukaram Maruti Pawar & Ors. ...Respondents Mr.Umesh Mankapure, Advocate, for the Appellants. Mr.S.A. Pawar, Advocate, for Respondent Nos.2 to 5, 7, 11 and 12. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 4TH FEBRUARY, 2008. DATE : 4TH FEBRUARY, 2008. DATE : 4TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard the Advocate appearing for the appellants. The Appeal is preferred by the original defendants. The respondent Nos.1 to 8 are the original plaintiffs. The respondent Nos.1 to 8 filed a Suit for declaration of ownership and possession. 2. According to the case of the appellants, on 11th August, 1970, an agreement for sale was executed by the father of the respondent Nos.1 to 7 in favour of one Vithoba who is the predecessor of the appellants. It must be stated here that in the year 1978, a Suit for injunction was filed by the legal representatives of Maruti (the respondent Nos.1 and 2 : 2 : herein) for injunction against the 1st appellant and his father Vithoba. The said Suit was decreed. An Appeal was preferred by the present appellants in the District Court. In the Appeal, the decree of injunction was set aside and the Suit was dismissed. The Appellate Court passed the decree on 9th October, 1987 and Second Appeal preferred by the 2nd respondent was dismissed by this Court on 11th October, 1988. Thereafter on 17th October, 1988 present Suit was filed by the respondent Nos.1 to 8. In the said suit it was alleged that after demise of Maruti, the said respondents-plaintiffs became owners of the property. There was a counter claim filed by the 1st appellant to the said Suit. In the counter claim it was contended that under the agreement for sale dated 11th August, 1970, the predecessor of the appellants have paid consideration of Rs.200/- out of total consideration of Rs.300/-. It was contended that the predecessors of the appellants and thereafter the appellants were ready and willing to perform their part of agreement dated 11th August, 1970. Therefore, by the counter claim, a decree for specific performance was sought. 2. The Trial Court decreed the Suit and passed a decree for declaration and possession against the : 3 : appellants. The Trial Court held that the counter claim filed by the 1st appellant was barred by limitation and that he has failed to prove readiness and willingness to perform his part of the contract. An Appeal preferred by the present appellants in the District Court has been dismissed. The Appellate Court held that the counter claim was filed within limitation but the appellants have failed to prove the readiness and willingness. 3. The submission of the learned Advocate for the appellants is that in the Appeal preferred by them for challenging the decree for perpetual injunction passed in favour of the 1st and 2nd respondents, a categorical finding was recorded that the appellants were ready and willing to perform their part of agreement dated 11th August, 1970. He submitted that the said finding has attained finality and the Second Appeal preferred by the 1st and 2nd respondent was dismissed. It is submitted that in the present Suit, the 1st to 8th respondents have even denied execution of the said agreement dated 11th August, 1970. It is submitted that 2/3rd of the consideration payable under the said agreement has been already paid and therefore nothing further was required to be proved to show readiness and willingness on the part of the : 4 : appellants. 4. I have carefully considered the submissions. The Appeal arising out of earlier Suit filed by the 1st and 2nd respondents was decided by the District Court on 9th October, 1987. The Second Appeal was dismissed on 11th October, 1988. In the present Suit filed in the year 1988, counter claim was filed on 11th January, 1989. Perusal of the written statement- cum-counter claim shows that there was no notice issued by the appellants to the concerned respondents offering the balance consideration and calling upon the concerned respondents to execute the conveyance. The finding relied upon by the Advocate for the appellants of readiness and willingness is as of the year 1987. The readiness and willingness has to continue not only on the date of filing of the Suit for specific performance but till the disposal of the Suit. There is nothing on record to show that even after 9th October, 1987 or during the pendency of the Suit of the year 1978 filed by respondent Nos.1 and 2, any attempt was made by the appellants to offer balance consideration. Considering this conduct of the appellants, there are concurrent findings recorded by both the Courts below against the appellants on the : 5 : issue of readiness and willingness. It must be remembered that the readiness and willingness was as regards the agreement for sale executed in the year 1970 and the counter claim for specific performance was filed in the year 1989. No fault can be found with the concurrent findings of the fact recorded by the Courts below. There is no merit in the Second Appeal and the same is dismissed. 5. In view of dismissal of the Appeal, Civil Application No.1362 of 2006 does not survive and the same is disposed of accordingly. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]