1 fa-838-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 838 OF 2010 WITH CIVIL APPLICATION NO. 2486 OF 2010 1. Shri Chandrakant Murari Daivadnya and anr. .. Appellants (Org. Plaintiffs) vs. 1. Shri Parisa Appanna Mangave and ors. .. Respondents (Org. Defendants) Mr. A. Y. Sakhare, Senior Advocate i/by YKS Legal for appellants. Mr. S. S. Shah for respondents. CORAM: B. H. MARLAPALLE & A. A. SAYED, JJ. August 27, 2010. P.C. 1. Heard Mr. Sakhare, the learned Senior Counsel i/by YKS Legal for the appellants-plaintiffs and Mr. Shah, the learned counsel for the respondents – defendants. 2. Admit. 2 fa-838-10 3. Respondents waive service. 4. Private paper book has been filed, hence, print is dispensed with. By consent of the parties, the appeal has been finally heard. 5. The plaintiffs have filed Special Civil Suit No. 8 of 2007 for specific performance of the agreement for sale dated 21/3/2005 of the suit property i.e. land admeasuring 95 R. forming part of Gat No. 648 totally admeasuring 2 H. and 85 R. of village Tardal, Taluka – Hatkanangale, District – Kolhapur owned by the defendant no.1 and defendant nos.2 and 3 were the consenting parties to the said agreement. The sale consideration was Rs.7,21,000/- per acre and the father of defendant no.1 was the tenant in the suit land and had purchased the said land as a tenant. It was, therefore, necessary to obtain permission under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 before the sale deed was signed in favour of the plaintiffs. On the date of the agreement i.e. on 21/3/2005, the defendants had accepted an earnest amount of Rs.1,05,000/-. It was further the case of the plaintiffs that on 5/4/2005, an additional amount of Rs.3,00,000/- was to be paid to the defendants but the defendants did not 3 fa-838-10 take steps to sign the sale deed. It was further contended that the defendants accepted a total sum of Rs.4,05,000/-, but they did not take steps to obtain permission under Section 43 of the B.T. & A.L. Act, 1948 so as to perform their part of the contract. The plaintiffs had issued notice on 15/9/2006 to the defendants but the notice was returned unserved as the defendants were not residing at the Mangaon address. The fresh notice was issued on 13/10/2006 at Tardal village address and despite the said notice, the defendants did not perform their part of the contract and hence the suit was filed for specific performance of the contract dated 21/3/2005. In the alternative, the plaintiffs prayed for refund of the amount of Rs. 4,05,000/- along with interest at 18% p.a. and compensation of Rs. 17,12,375/-. 6. The defendants filed their Written Statement at Exh.15 and opposed the suit. They had denied the execution of the agreement for sale dated 21/3/2005 as well as the receipt of Rs.4,05,000/- from the plaintiffs. They further contended that without obtaining prior permission under Section 43 of the B.T. & A.L. Act, 1948, the agreement was not enforceable and the father of the defendant no.1 had purchased the said property on 25/5/1981 from the Kulkarni family who were the original 4 fa-838-10 owners. Issues were framed at Exh.17. The plaintiffs examined plaintiff no.1 – Chandrakant Murari Daivadnya - PW 1, Shri Sunil Kalyani – PW 2, Shri Ravindra Ambole – PW 3 and Shri Kamlakar Palankar – PW 4, whereas the defendants examined two witnesses i.e. DW 1 – Parisa Mangave and DW 2 – Jitendra Sangle. After hearing the parties and taking into consideration the oral and documentary evidence, the learned Civil Judge, S.D., Ichalkaranji, while decreeing the suit partly, as per his Judgment and Order dated 10/5/2010, held that, “(a) the plaintiffs proved the agreement to sell dated 21/3/2005 signed between the plaintiffs and the defendants; (b) that the plaintiffs had paid the defendants by way of earnest amount Rs.1,05,000/-; (c) the plaintiffs were not ready and willing to perform their part of contract; (d) the defendants proved that the agreement was not enforceable; (e) the plaintiffs were not entitled for specific performance of the agreement dated 21/3/2005; (f) the plaintiffs were entitled, in the alternative, for refund of 5 fa-838-10 the earnest amount of Rs.1,05,000/- with interest at the rate of 8% p.a.; and (g) the plaintiff were not entitled to claim damages. The main issue held against the plaintiffs is thus that they could not prove their readiness and willingness to perform their part of the contract and, therefore, they were not entitled for the specific performance of the agreement dated 21/3/2005. We have to, therefore, examine whether the findings at (b) to (d) above recorded by the trial court are supported from the evidence on record. 7. The plaint copy placed on record in the paper book went to show that on 21/3/2005 the plaintiffs had paid in cash an amount of Rs.1,05,000/-. For the payment of Rs.3,00,000/- allegedly paid on 30/4/2005 the plaintiffs have relied upon the evidence of PW 2 – Sunil Kalyani. He was the Bank Manager examined by the plaintiffs. He stated before the court that he was the Manager of Union Bank of India, Hatkanangale Branch from April, 2007 and he had brought before the court the papers pertaining to the bank account of defendant no.1. The document at Exh.41 is the remittance receipt. It was the case of the plaintiffs that 6 fa-838-10 cash of Rs.1,50,000/- was deposited by them in the account of defendant no.1 with the Union Bank of India, Branch at Tardal and at Exh.42 was the certificate issued by the Branch Manager regarding the verification of Account No. 444 which was in the name of defendant no.1. He stated that in the Tardal Branch of the said bank, there was an account in the name of defendant no.2 and the amount of Rs.1,50,000/- was remitted in cash in the account of defendant no.1 (SB A/c. No. 444) and Exh. 41 did not indicate that any of the plaintiffs had remitted the said money. It was not signed by anyone. He further stated that on 30/4/2005 an amount of Rs.1,50,000/- was not remitted in the said account and as per the Exh.41, the amount of Rs.1,50,000/- was remitted on 2/5/2005 by defendant no.1. Now this evidence of PW 2 was contrary to the claim made by the plaintiffs in the suit plaint and this witness did not support the contention that Rs.1,50,000/- were paid by the plaintiffs to the defendants. The plaintiffs, therefore, examined PW 4 – Kamlakar Palankar who runs a jewelery shop and tried to prove, on the basis of Exh.56, that the amount of cash of Rs.1,50,000/- and by cheque another amount of Rs.1,50,000/- was paid through this witness to defendant no.2. The same story has been discarded by the trial court. We have gone through examination-in-chief affidavit as well as the cross-examination of this witness. This witness also could not prove that 7 fa-838-10 a cheque of Rs.1,50,000/- was drawn and remitted in the account of any of the defendants on or about 30/4/2005. The trial court rightly held that while leading evidence, the plaintiffs changed their story regarding readiness and willingness to perform their part of contract by paying the second installment which was due on 5/4/2005 and this stand, which was sought to be proved through the evidence of PW 4, was contrary to what was stated in the plaint. We have gone through the evidence of PW 1 – Chandrakant Daivadnya as well as PW 3 – Ravindra Ambole. 8. The agreement dated 21/3/2005 at Exh. 45 was duly proved and the second installment of Rs.3,00,000/- was payable on 5/4/2005 as per the said agreement and it was crucial for the plaintiffs to prove their readiness and willingness to perform their part of the contract. The plaintiffs contended originally in the plaint that as the defendants did not turn up on 5/4/2005 to collect the amount of Rs.3,00,000/-, the plaintiffs sent a message for the defendants and as per the instructions of the defendants on 30/4/2005 an amount of Rs.1,50,000/- was deposited in the bank account of defendant no.1 and after 15 days a further amount of Rs. 1,00,000/- was deposited in the Union Bank of India and the balance amount of Rs.50,000/- was kept for expenses for obtaining permission for 8 fa-838-10 the sale of the suit land. PW 1 – Chandrakant Daivadnya in his cross- examination before the trial court stated that he had informed his Advocate about the amount deposited in the account of defendant no.1 with the Union Bank of India, Ichalkaranji Branch. However, Exh.41 is a document which indicates the deposit of Rs.1,50,000/- in cash in the account of defendant no.1 with Tardal Branch. Through the evidence of PW 4 – Kamlakar Palankar, the plaintiffs relied upon the receipt at Exh.56. This was, in fact, the purported acknowledgment in the note book maintained by PW 4 and it was purportedly signed by the defendant no.2, who is a medical practitioner. This document was brought for the first time before the trial court when PW 4 was in the witness box and whether it was signed by defendant no.2 or by someone else was not proved before the trial court. In addition, the plaintiffs did not take out any application for issuing summons of witness to defendant no.2 to prove this document, nor was it sought to be referred to any hand writing expert to prove that it was signed by the defendant no.2. Even otherwise, it has been admitted by PW 4 – jeweler that between him and defendant no.2 there used to be independent transactions. The trial court held that this bringing on record Exh.56 and relying upon it by the plaintiffs was contrary to their own stand taken up originally in the plaint and we do not find any error in the same. 9 fa-838-10 9. The plaintiffs also claimed that an amount of Rs.1,00,000/- was deposited in the account of defendant no.1 at Ichalkaranji Branch of Union Bank of India and they relied upon the evidence of PW 2 – Sunil Kalyani. He admitted that an amount of Rs.1,50,000/- was deposited in cash vide Exh.41 in the Tardal Branch of Union Bank of India but he did not utter a single word that an amount of Rs.1,00,000/- was deposited with the Ichalkaranji Branch of the Union Bank of India in the account of defendant no.1 on 30/4/2005. The trial court also held that PW 4 was a got up witness and he was neither a mediator nor an estate broker and, therefore, it could not be accepted that the plaintiffs’ had handed over an amount of Rs.3,00,000/- to the said witness so as to pay it to the defendants and they claimed to have acknowledged the receipt at Exh.56 which the trial court rejected. The trial court, therefore, recorded a conclusion that the theory of payment of Rs.3,00,000/- towards earnest amount was put up by the plaintiffs by way of an after thought. This reasoning by the trial court to hold that the plaintiffs failed to prove that they had paid the amount of Rs.3,00,000/- on 30/4/2005 to the defendants or any one of them cannot be discarded and, therefore, issue no.2 was answered in the negative. Once this issue was held against the plaintiffs, 10 fa-838-10 automatically it would follow that before issuing purported notice dated 15/9/2006 as well as 13/10/2006 they had not performed their part of the contract and they came with a false and fabricated theory that the amount of Rs.3,00,000/-, which was payable on 5/4/2005 as per the agreement dated 21/3/2005 at Exh.45, was paid to the defendants on 30/4/2005 and, hence, they failed to prove their readiness and willingness to perform their part of the contract as held by the trial court, calls for no interference at the hands of this court. Hence, this appeal must fail. 10. The appeal is hereby dismissed with costs. 11. Civil Application No. 2486 of 2010 does not survive and stands disposed as such. (A. A. SAYED,J.) (B. H. MARLAPALLE, J.)