IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.248 OF 1988. APPEAL NO.248 OF 1988. APPEAL NO.248 OF 1988. Prakash Chandramauleshwar Dashapure and others. ...Appellants Versus. Vimal Gajanan Joshi (since deceased) through her heirs and legal representatives 1A. Shri Shantanu Gajanan Joshi & Ors. ...Respondents --- Ms A.R.S.Baxi for the Appellants. Ms Deepali Kale h/f Shri P.N.Joshi for the Respondent Nos.6A to 6D. --- CORAM: CORAM: CORAM: ABHAY S.OKA, J. ABHAY S.OKA, J. ABHAY S.OKA, J. DATE DATE DATE : 07th January, 2008. : 07th January, 2008. : 07th January, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard learned advocate appearing for the appellants. Though while admitting the appeal on 03rd May, 1988 substantial question of law was not framed, the learned advocate for the appellants submits that grounds 2,3 and 4 of the memorandum of Second Appeal raise substantial questions of law. As appeal which is admitted in 1988 is coming up for final hearing almost after gap of 20 years, I have heard learned advocate appearing for the appellants on the aforesaid questions raised in the appeal. 2. The appellants are the original first to fourth : 2 : 2 : 2 : defendants. The first respondent is the plaintiff. The first respondent filed a suit for specific performance of Agreement for Sale dated 11th April, 1968 executed by the defendant Nos.2 and 3 and deceased Sakharam. The original first defendant is the son of deceased Sakharam. The first defendant signed the said Agreement as a guardian of the second and third defendants. According to the case of the plaintiff, the price of the suit property was fixed at the rate of Rs.14,000/-. According to him it was agreed that one room on the ground floor of the suit house was to be given to the first defendant. It was alleged that from 1966 the concerned defendants had taken hand-loans from the plaintiff from time to time totally amounting to Rs.4,800/-. It was alleged that the Sale Deed was to be executed within a period of seven years from the date of Agreement for Sale and the vendors were to make out a markable title. 3. The suit for specific performance was contested by various defendants by filing their written statements. The trial Court held that the plaintiff has established that the defendant Nos.1 to 3, deceased Vimal and deceased Sakharam and Kashi agreed to sell the suit property in his favour for the consideration of : 3 : 3 : 3 : Rs.14,000/-. The learned trial Judge held that the plaintiff paid a sum of Rs.7975/- as the earnest money under the Agreement for Sale. The trial Court held that the plaintiff has proved that the defendant Nos.1 to 3, deceased Vimal and deceased Sakharam were in occupation of a room on ground floor as a licensee. The trial Court negatived the contention raised by the defendant Nos.2 and 4 that the agreement was not a genuine transaction but it was a loan transaction. After holding the aforesaid issues in favour of the plaintiff, the trial Court declined to grant specific performance and passed a decree for refund of consideration amount and damages. 4. The learned trial Judge held that the defendant Nos.1 to 3, Sakharam and Vimlabai executed registered conditional Sale Deed in favour of the defendant No.9 in the year 1967 in respect of a small portion of the suit property (one room). The learned trial Judge held that though the vendors of the plaintiff had lost title in respect of one of the rooms out of the suit house, they executed the said Agreement for Sale in favour of the plaintiff. It was held that in view of provisions of section 17 of the Specific Relief Act, 1963 (hereinafter referred to as the said Act of 1963), the suit agreement : 4 : 4 : 4 : cannot be enforced as the plaintiff cannot get a decree for specific performance only in respect of a part of the suit property. In an appeal preferred by the original plaintiff, a decree for specific performance has been passed. 5. The submission of the advocate for appellants is that the suit agreement itself shows that very small amounts were advanced as loans from time to time by the plaintiff to the concerned defendants for a period of two years and therefore, the terms of the agreement had given a clear unfair advantage to the plaintiff. She submitted that in view of section 20(2)(c) of the said Act of 1963 it was inequitable to grant specific performance as it was admitted by the original plaintiff that small loans were advanced by her to her vendors. It is submitted that the vendors i.e the appellants have no other property except the suit house property and therefore it was inequitable to enforce the suit agreement. 6. I have carefully considered the submissions. In paragraph No.10 of the judgment of the appellate Court it is observed that at the time of hearing of the appeal, the present appellants did not challenge the : 5 : 5 : 5 : finding of the trial court that the defendants have failed to establish that the suit agreement was not a genuine Agreement for Sale but it was a mortgage transaction. The appellate Court thus observed that the finding of the trial Court that the suit agreement was an Agreement for Sale and that it was not a money lending transaction has attained finality. First part of the submissions made by the advocate for the appellants is based on the contention of the appellants that essentially the suit transaction was a money lending transaction. Therefore, the said submission is not open to the appellants in the Second Appeal. 7. In so far as hardship of the appellant is concerned, it must be stated they have not cared to enter the witness box to prove the hardship. Therefore, this aspect cannot be considered. 8. The Appellate Court has adverted to the provisions of section 20 of the said Act of 1963. The Appellate Court observed that a sum of Rs.7975/- has been already paid by the plaintiff under the suit Agreement. The Appellate Court observed that none of the clauses of sub-section 2 of section 20 of the said Act of 1963 have any application. I find no reason to : 6 : 6 : 6 : disagree with the said conclusion. 9. The trial Court had applied section 17 of the said Act of 1963. The Appellate Court in paragraph No.11 of the judgment has noted that even the advocate appearing for the appellants conceded that section 17 of the said Act of 1963 cannot apply. It is obvious that section 17 of the said Act will not help the defendants. 10. In so far as the transaction made by the vendors of the plaintiff in favour of the defendant No.9 is concerned, the said transaction is in respect of one room in the suit property which can be specifically identified. It must be noted here that the Appellate Court while passing a decree for specific performance has dismissed the suit as against defendant No.9. Therefore, the concerned defendants have been directed to execute the conveyance in respect of entire property except the room purchased by the defendant No.9. 11. In view of the aforesaid discussion, it is obvious that no substantial question of law arises. Second Appeal is accordingly dismissed. On the prayer made by the advocate for the appellants, the stay granted by this Court in the Second Appeal will continue : 7 : 7 : 7 : to operate till 31st May, 2008 JUDGE JUDGE JUDGE