1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 616 OF 2005 (Chandu Lattaru Gote vs. Smt. Chandrabhagabhai Janardhan Chavan & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 21, 2009. Heard Shri Athar, learned counsel for the appellant. The appellant is a plaintiff. Suit for specific performance decreed by the trial Court has been dismissed by lower appellate Court. Shri Athar, learned counsel states that the lower appellate Court has erroneously appreciated the evidence in relation to readiness and willingness. He contends that the appellant being Railway employee, could have raised the amount at any time and his employment was never in dispute. He further states that readiness and willingness was pleaded and legal notice was also issued for execution of sale deed by him. The perusal of judgment of lower appellate Court reveals that the alleged agreement for sale was with Janardhan Chavan and his wife Chandrabhagabai. Both of them are alleged to have 2 signed that agreement. Janardhan died and thereafter the suit came to be filed. Another wife of Janardhan by name Yenubai and his legal representatives were also joined as party respondents along with Chandrabhagabai. The lower appellate Court found that the appellant could not identify who was Chandrabhagabai and he wrongly identified Yenubai as Chandrabhagabai. It was also found that the pleadings were totally silent in relation to necessity of any permission and the lower appellate Court has in para 11 has found that he did not depose as to when he asked Janardhan and Chandrabhagabai for execution of sale deed. It is further found that at the time of settlement of agreement, one B.D. Vanjari was stated to be present but then said person was not examined. It is to be noticed that defence of respondents was that of loan transaction. It is in this background that the Court below has tried to find out whether payment of Rs.10,000/- as earnest money has been established and again noticed that the plaintiff deposed in cross that he collected Rs.2,000/- from the Bank, Rs.3,000/- from his friend and Rs.5,000/- from gold ornaments. It is noticed by it that he did not state that he received that amount from Deorao and he 3 also did not disclose that Deorao was his relative but admitted in his cross examination that Deorao was his brother-in-law. Deorao (PW-2) deposed that he had to pay amount of Rs.3,000/- to plaintiff and when plaintiff came and demanded money, he paid the amount. Thus, the Court below has found that there are some contradictions in the evidence and pleadings of the plaintiff. The aspect of readiness and willingness has been considered in this background and it has been noticed that except issuance of legal notice (Exh. 58), nothing has been pointed by the plaintiff to show that he was ready and willing to perform his part of contract and even availability of funds of Rs.10,000/- with him and the mode and manner in which the funds were to be arranged is also not brought on record. In the circumstances, I do not find any perversity in the approach of lower appellate Court. No substantial question of law arises in this Second Appeal. It is dismissed. No order as to costs. JUDGE *GS.