1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.533 OF 2010 DEVIDAS NAKHATE ..VS.. PRATAP TULE Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 20 /12 / 2010 Heard Shri Bandebuche, the learned counsel for the appellant. The appellant is the original defendant. A suit was instituted by the plaintiff for a decree of specific performance of contract or in the alternative for refund of the earnest amount of Rs.60,000/- with interest. It was the case of the plaintiff that the defendant had agreed to sell the suit property to the plaintiff for a consideration of Rs.75,000/- by an agreement of sale dated 4.5.2001. The plaintiff paid an earnest amount of Rs.25,000/- and subsequently paid an amount of Rs.35000/- to the defendant. Since the defendant failed to perform part of contract by executing a sale deed in favour of the plaintiff, the suit was instituted. The defendant filed the written statement and denied the claim of the plaintiff. It was denied by the defendant that an agreement of sale was executed on 4.5.2001 between the plaintiff and the defendant. It was pleaded that the alleged agreement of sale dated 4.5.2001 was false and bogus. The defendant however, admitted that he had received an amount of 2 Rs.25,000/- from the plaintiff towards the earnest amount, after agreeing to sale the property to the plaintiff on 4.5.2000. The defendant pleaded that the sale deed was to be executed in terms of the agreement of sale dated 4.5.2000 till 4.11.2001, but since the plaintiff failed to perform his part of the contract, the suit was liable to be dismissed. The trial court, on an appreciation of the evidence on record held that the plaintiff had not succeeded in proving the agreement of sale dated 4.5.2001 and also that he had paid an amount of Rs.60,000/- to the defendant towards part consideration for the suit property. It was held by the trial court that the agreement of sale dated 4.5.2001 was false and bogus and the suit of the plaintiff for specific performance of contract was liable to b e dismissed. The first appellate court on an appreciation of the evidence on record held that the defendant was the owner of the suit property by virtue of partition between the defendant and the other co owners and that he had entered into an agreement of sale of the property with the plaintiff on 4.5.2001. The first appellate court held that an amount of Rs.60000/- was paid by the plaintiff to the defendant in two installments towards part consideration of the transaction. The first appellate court, however, held that the plaintiff was not ready and willing to perform his part of the contract and was not entitled to a decree for specific performance of contract. The first appellate court, having found that an amount of Rs.60,000/- was paid by the plaintiff to the respondent towards 3 part consideration, decreed the suit of the plaintiff for refund of an amount of Rs.60,000/-. The findings recorded by the first appellate court are pure findings of facts based on a proper appreciation of evidence on record. The first appellate court rightly directed the defendant to pay a sum of Rs.60,000/- to the plaintiff as it was held by the first appellate court on a proper appreciation of the evidence on record that an amount of Rs.60,000/- was paid by the plaintiff to the defendant towards consideration. The first appellate court considered the relevant evidence on record to record the aforesaid findings. Merely because the agreement of sale was executed on a stamp paper which was more than six months old, it cannot be said that the agreement of sale dated 4.5.2001 was false, bogus and manipulated. Since the findings recorded by the first appellate court are pure findings of facts and since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE SMP.