1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 804 OF 2005 Sudhakar s/o Ratanlal Dahale ( deceased through LRs) & others Appellants Versus Smt. Krishnabai w/o Chhagansingh Pardeshi & another Respondents Mr. S.V. Gangapurwala, advocate for the appellants. Mr. N.N. Shinde, advocate for Respondents 1 and 2. ===== CORAM: R.M.BORDE, J. DATE : 1st October, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs instituted Special Civil Suit no. 517/1994 claiming specific performance of agreement. Plaintiffs have entered into contract with defendants whereby defendants agreed to sell the suit plot to the plaintiffs alongwith structure erected thereon for consideration of Rs.1,55,000/- on 14-9-1991. Plaintiffs advanced part of the consideration amount to the tune of Rs.11,000/- by cheque. It was decided between 2 plaintiffs and defendants that the document of sale shall be executed on or before 15-10-1991. According to plaintiffs, they repeatedly requested the defendants to execute the sale-deed, however, the defendants failed to act. 3 Suit claim was controverted by defendants by filing written statement. According to defendants, they are not the owners and possessors of the suit plot. They further contend that they have informed about the same fact to plaintiffs' advocate by written reply dt. 10-9-1994. They further contend that plaintiffs failed to pay balance of amount within stipulated time. As such, defendants have sold the suit plot to one Kailas Dadarao Bansode by executing sale-deed dt. 26-3-1993. Defendants contend that plaintiffs were never ready and willing to perform their part of the contract and as such the suit is liable to be dismissed. 4 Trial court after recording evidence of the parties, came to the conclusion that plaintiffs have failed to establish their case and as such dismissed the suit by judgment and decree dt. 28-1-2002. Appeal presented by original plaintiff being Regular Civil Appeal no. 141/2002 also came to be turned down by the first appellate court in view of 3 judgment dt. 5-4-2004. 5 I have perused the judgments recorded by both the courts below. Both the courts have recorded finding on the basis of appreciation of evidence that the plaintiffs have failed to establish their readiness and willingness to perform their part of the contract and as such they are not entitled to secure decree in respect of specific performance of agreement. Learned counsel for the appellant has contended that the plaintiffs have established execution of agreement as well as advancement earnest money to the tune of Rs.11,000/- and in such circumstances, the courts below ought to have granted decree in respect of refund of the earnest amount. However, such prayer is not made in the plaint. In the absence of any specific request in that behalf, such a relief cannot be granted. The courts below were therefore justified in dismissing the suit. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE 4 ******* dyb/sa804.05.odt