1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 910 OF 2008 FIRST APPEAL NO. 910 OF 2008 FIRST APPEAL NO. 910 OF 2008 WITH CIVIL APPLICATION NO. 2272 OF 2008 Dr. Shri Anil Dhanpal Upadhye ... Appellant (Orig. Plaintiff) Versus Shri Dipak Ramchandra Gathe ... Respondent (Orig. Defendant) Mr. Sanjay Kshirsagar, Advocate, for the appellant. Mr. S.M.Oak, Advocate, for the respondent. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 24th July, 2008. DATE: 24th July, 2008. DATE: 24th July, 2008. P.C. P.C. P.C. 1. This Appeal is filed by the plaintiff against dismissal of suit for specific performance of the contract. According to the plaintiff, on 17.5.2004, the defendant had entered into an agreement for sale of the suit land i.e. Gat Nos. 134,135 and 136 of village Rui, Taluka Baramati, District Pune, for consideration of Rs.5,50,000/-. The plaintiff paid an amount of 2 Rs.2,00,000/- to the defendant towards part-payment. According to the plaintiff, thereafter, the defendant had entered into an agreement with one Pendharkar and one Kokare for sale of the same land for consideration of Rs.5,80,000/- and he also received the earnest money. According to him, he had received the notice on 26.8.2004 from the defendant asking him to comply with the terms of the contract or treat the contract as cancelled. In such circumstances, the plaintiff first filed Regular Civil Suit No.193 of 2004 for perpetual injunction restraining the defendant from causing any rescinding the contract with temporatry injunction. However, he failed to get temporary injunction. That suit was dismissed in default. Thereafter, on 1.8.2007, the plaintiff filed Special Civil Suit No.90 of 2007 for specific performance of the contract. The suit was defended by the defendant on several grounds. The trial Court mainly dismissed the suit on two grounds, firstly, that the plaintiff had not pleaded anywhere that he was always ready and willing to perform his part of the contract and secondly, this suit was hit by the provisions of Order II Rule 2 of the C.P.C. because he had an opportunity to claim specific performance of the contract in the earlier suit, but he had omitted that claim. Against this, the plaintiff has preferred the present Appeal. 3 2. On hearing the parties for admission, the learned counsel for the plaintiff/appellant also conceded that in the plaint, there was no pleading that the plaintiff was always ready and willing to perform his part of the contract. According to him, during the pendency of the suit, he had deposited the balance amount of consideration. According to the trial Court, it was not sufficient. It was necessary for the plaintiff to plead and prove that he has always been ready and willing to perform his part of the contract. Neither he has pleaded this fact nor he had proved that. Admittedly, when the plaintiff filed the first suit i.e. Regular Civil Suit No.193 of 2004, he was aware that the defendant had entered into an agreement with third party and, therefore, it was refusal to execute sale deed in favour of the plaintiff. In such circumstances, the plaintiff could claim decree for specific performance of the contract in the first suit, but he omitted to seek that relief. The learned trial Court rightly concluded that in view of Order II Rule 2 of the C.P.C., the plaintiff could not file the second suit, particularly when he had omitted to claim the relief which he could at the time of filing the first suit. 3. In view of the circumstances noted above, I find 4 no substance in the Appeal and, therefore, in my opinion, it is not fit for admission. 4. The learned Counsel for the parties inform that the defendant had deposited an amount of Rs.2 lakhs with the trial Court on 3.11.2007. The learned Counsel for the defendant makes a statement that he has no objection to the plaintiff withdrawing that amount from the trial Court. He has also offered to pay reasonable interest on the amount from 17.5.2004 till he deposited the amount because the amount was lying with the defendant for about 3 years. The plaintiff has also deposited the balance amount of consideration of Rs.3,50,000/-. In view of these circumstances, the plaintiff may be allowed to withdraw the amount. 5. In view of the above circumstances, the Appeal stands dismissed. However, the decree shall stand modified as follows :- "The plaintiff is entitled to withdraw the amount of Rs.2 lakhs deposited by the defendant before the trial Court. Besides this, the defendant shall also pay interest at the rate of 12% per annum from 17.5.2004 till 3.11.2007 on the amount of Rs.2 lakhs which the plaintiff had 5 paid to the defendant within 8 weeks from this date. The learned counsel for the defendant undertakes that the defendant shall deposit the interest amount within 8 weeks from this date." 6. The plaintiff shall also be entitled to withdraw the amount deposited by him before the trial Court. 7. As the Appeal itself is dismissed, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,) (J.H.BHATIA,) (J.H.BHATIA,)