(1) SA. 299.1989 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 299 OF 1989 Eknath S/o Baburao Mali, Aged : 60 years, Occu.: Agriculture R/o : Pargaon, Taluka Bhoom, District : Osmanabad died through LRs. a) Vilas Eknath Mali, Age:68 years, Occu.: Agri., b) Mohan Eknath Mali, Age: 55 years, Occu.: Agri., c) Jeevan Eknath Mali, Age: 35 years, Occu.: Agri., d) Baban Eknath Mali, Age: 34 years, Occu.: Agri., e) Nanibai Mahadeo Moholkar, Age: 70 years, Occu.: Agri., All R/o Pargaon, Tq. Bhoom, Dist. Osmanabad .. Appellants VERSUS Nagorao S/o Gyanba Gawde, Aged : 50 years, Occu.: Agriculture R/o Pargaon, Taluka Bhoom, District : Osmanabad .. Respondent Mr. A.M. Dabir, Advocate for the appellants Mr. S.B. Talekar, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 10TH SEPTEMBER, 2009 ORAL JUDGMENT:- 1] The second appeal is filed against the judgment and decree dated 11.08.2009 passed by the Additional District (2) SA. 299.1989 Judge, Osmanabad partly allowing Regular Civil Appeal no. 154 of 1987. 2] The appellant is the original plaintiff, who filed this suit for specific performance pleading that the original respondent had agreed to sell him a piece of land bearing survey no. 207/B of village Pargaon, Tq. Bhoom, Dist. Osmanabad for consideration of Rs.11,700, pursuant to their contract he executed an issar pawti on 28.5.1979, accepted Rs.5000/- as earnest and he had put him in possession pursuant to the contract. It was agreed between the parties that the respondent would execute a registered sale deed on Akshay Tritiya day of 1980 and would receive the remaining consideration. Before Akshay Tritiya day, the appellant handed over a sum of Rs.2000/- more to the respondent. He was all along ready to perform his part of the contract. He requested the respondent many times to execute the sale deed, but he avoided to do so. He then issued notice on 28.8.1981 calling upon the respondent to execute the sale deed and perform his part of the contract but in vein. . He then filed this suit for specific performance. The respondent in his written statement admitted the execution of the agreement but he denied having received Rs.2000/- subsequent to the execution of the issar pawti. He however, said that the transaction was not of agreement for sale. He said the appellant unauthorisedly carried on money lending business. He said he obtained Rs.5000/- as loan and for security, he executed the issar pawti. He said the market price of the land was about Rs.1,00,000/- and so, there was no question of agreement for sale of the land for consideration of (3) SA. 299.1989 Rs.11,700/-. He also denied having put the appellant in possession of the land. The Ld. judge of the trial court held that the transaction was of loan and so there was no possibility of decreeing the suit. The learned Judge of the first appellate Court (henceforth the Ld. judge), held that the respondent did not prove that it was a transaction of loan and as security of such loan, the issar pawti was executed. The learned Judge also held on facts that the appellant had proved the agreement for sale and further the payment of Rs.7000/- as earnest. The only finding that went against the appellant at the first appellate stage was that he could not prove that he was all along ready and willing to perform his part of the contract and so, the Ld. judge held, he was not entitled for decree of specific performance. The Ld. Judge decreed his suit for refund of earnest money with interest. 3] While admitting this second appeal, this Court held that the interpretation of agreement exhibit 28 for ascertaining whether the appellant was ready and willing to perform his part of the contract, is the substantial question of law. Having gone through the judgments of the both the lower Courts and having heard the submissions of the the advocates, I realised that apart from the interpretation of the agreement, the reasons recorded by the lower appellate Court for holding that the appellant could not prove his readiness and willingness for performance of his part of the contract need deper probe. So the substantial question of law in this appeal is:- "Whether the reasons recorded by the learned Judge of first appeal Court are perverse?" The Ld. judge of the lower (4) SA. 299.1989 appellate Court rightly came to a conclusion that the appellant had proved the agreement in question and even the payment of earnest. The reasons recorded for coming to this conclusion are cogent and the findings are required to be preserved. Having once come to such conclusion, there was hardly any reason, unless it is specifically mentioned in the written statement that the appellant-plaintiff was not ready and willing to perform his part of the contract, for the ld. Judge to say this in the judgment: " In order to get the decree for specific performance of contract, the party coming to the Court of equity must satisfy the Court with cogent evidence that he has come with clean hands and he is ready and willing to perform his part of the contract. .......................... . The word "ready" implies that plaintiff had money at his disposal to pay the sale consideration and the word "willing" implies that he was inclined to do, what was required. The plaintiff is required to plead that he was in possession of money to pay the defendant on particular date and demand to transfer of the property by an instrument. If the plaintiff fails to offer and prove the essential ingredients "readiness and willingness" then he is not entitled to decree for specific performance of contract." . I am purposely quoting the above observations. I would try to show that despite of these observations, and despite of ample evidence on record, the learned Judge, surprisingly and grossly erroneously held that the appellant had not proved his "readiness and willingness". The learned Judge of the lower appellate Court rightly (5) SA. 299.1989 observed that the agreement was executed on 28.5.1979 and so the sale would take place on the next years Akshay Tritiya day, i.e. of 1980. Judicial notice can be taken of the fact that the festival of Akshya Tritiya generally falls in the month of May. The learned Judge simply ignored the appellant's statement in the plaint as well as in the evidence that he had requested many a times to the defendant to execute the registered sale deed on Akshay Tritiya, but he had not executed the sale-deed. The learned Judge found fault with the appellant's case because the appellant did not state in his deposition that on Akshay Tritiya day of 1980, he had been to the respondent with remaining consideration and requested him to execute the sale deed. The learned Judge made difference between "a general statement" about the readiness and willingness and "the act on the part of the appellant of going to the respondent on that particular date with the remaining consideration in his hand". The learned Judge observed that on the day of Akshay Tritiya of 1980, the appellant should have purchased a stamp paper in the name of the respondent on that day and should have visited the Sub- Registrar's office along with witnesses for obtaining the sale deed. He further observed that the appellant should have sent a telegram to the respondent calling upon him to come to the Office of the Sub-Registrar on the particular day of Akshay Tritiya of 1980. He further observed that the appellant offered no convincing explanation as to why, he had not issued telegram on the day of Akshay Tritiya of 1980. He observed further that had the respondent refused to execute the sale deed despite of the (expected acts of) persuasion, there would have been justification for the appellant to issue a legal notice. (6) SA. 299.1989 The learned Judge did not stop at that. He even contemplated as to what the appellant would have ideally stated in the notice. He suggested that in such situation, the appellant would have mentioned in the notice that he had gone to Sub- Registrar's Office on the day of Akshay Tritiya of 1980 and after waiting till the end of office hours he had come back. etc. The learned Judge thus, held that in the absence of these myriad acts on his part, the appellant could not have made "a general statement" in his deposition that he was ready and willing to pay his remaining consideration. He drew adverse inference of the fact that long after the day of Akshay Tritiya, that is on 28.8.1981 (which means after more than one year from Akshay Tritiya of 1980), the appellant sent a legal notice demanding performance of the contract. 4] The question is whether the delay on the part of the appellant to issue notice would be fatal to his case? The answer is in negative. The appellant stated that he was in possession of the land. He stated that after Akshay Tritiya of 1980, he made requests on several occasions but the respondent did not oblige. On every occasion of such denial the appellant could have issued notice but issuing a legal notice, virtually amounts to taking hostile stand against the vendor and the purchaser would do so only when he is fully convinced that there is no other alternative left to him. In other words, it was quite obvious that the appellant would delay the notice for about a year or so. The delay in such circumstances, could not have been fatal to his case. The learned Judge gave undue importance to the fact that on a particular day the execution of the sale deed was expected. (7) SA. 299.1989 The issar pawti expected the parties to complete the transaction on or about Akshay Tritiya day of 1980. The issar pawti did not state that on failure of the appellant to hand over the remaining amount of consideration on or before Akshay Tritiya day, the agreement would stand terminated or the amount would be forfeited etc. I am aware, that the respondent in his written statement fleetingly made a remark that 'time was essence of the contract'. This defence is not in consonance with his stand in the written statement. (He did not admit the execution of the agreement.) The time was never an essence of the contract. So the finding of the ld. judge on this point is grossly incorrect and untenable. The learned Judge further held that in the facts and circumstances of the case, the contract was not "fair" to the respondent vendor; that non performance of the contract would involve no hardship to the appellant, whereas it would cause inconvenience and hardship to the respondent. The learned Advocate of the appellant rightly challenged the wisdom and correctness of the finding as well as the approach of the learned Judge of the appellate Court. On perusal of the record especially the written statement as well as deposition of the respondent, it is evident that the respondent in his deposition did not say that the suit piece of land is the only property he has and if he is deprived of the same, he would be landless. He never stated anything about unfairness of the said conduct etc. Despite of this, the learned Judge of the lower appellate Court recorded following finding, which is grossly incorrect: "Defendant and his family members will become (8) SA. 299.1989 landless and they will come on road, if their only source of livelihood is taken away by the decree of specific performance of contract." . This was never a line of defence of the respondent. The respondent in fact was so stubborn while recording his deposition that he even did not admit that he had delivered the possession of the suit land to the appellant at the time of execution of the issar pawti. (The learned Judge himself recorded a finding that the suit land was given in possession of the appellant.) The stubbornness of the respondent in respect of his alleged possession clearly gives a message that he would not plead unfairness of the bargain and would seek the courts leniency. Mr. Talekar the learned Advocate appearing for the respondent on the point of delay in seeking execution of the sale deed, placed reliance on the judgments of the Supreme Court in the case of Swarnam Ramchandran (Smt.) and anr. V. Arvacode Chukungal Jayapalan reported in (2004) 8 Supreme Courts Cases 689, but on perusal of the said authority, it is noticed that neither the facts nor the law laid down in the judgment are applicable to the facts to this case. On the point of delay, in seeking specific performance, the law is stated by the Supreme Court in the case of Motilal Jain V. Smt. Ramdasi Devi and others reported in AIR 2000 SC 2408. The Supreme Court held as under:- " It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property: (i) Delay running beyond the period prescribed under the Limitation Act; (ii) Delay in cases where though the suit is within the period of limitation, yet : (a) due to delay the third parties have acquired rights in the subject-matter of suit; (b) in the facts and (9) SA. 299.1989 circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief." . As discussed above none of the above mentioned aspects are applicable to the facts of this case. Mr. Talekar also placed reliance on another judgment of the Supreme Court in the case of Madhavan Nair V. Bhaskar Pillai (dead) by LRs. reported in (2005) 10 Supreme Court Cases 553. Mr. Talekar tried to contend, placing reliance on this judgment that this Court should not record a finding of fact contrary to concurrent conclusion that the appellant was not entitled to a decree of specific performance. The Supreme Court in this judgment, specifically noted that the first appellate Court did not ignore any material evidence having bearing on the decision of the case nor it considered any evidence which was otherwise not admissible. So it held, the High Court was not at all justified in interfering with the concurrent findings of the fact. 5] I am afraid, the above discussion would clearly establish that the learned Judge of the lower appellate Court, made observations merely on the basis of submissions made across the bar before him. His observations were not based on the evidence that had come on record. Besides while denying the specific performance to the appellant both the Courts below recorded different reasons. It can hardly be said that this is a case of two concurrent judgments. At the trial stage, the learned Judge of the trial Court believed and upheld the defence of the respondent that the transaction was of loan and not an agreement of sale. So, obviously he would deny the specific performance but the lower appellate Court reversed (10) SA. 299.1989 the findings of the trial Court and held that there indeed was an agreement of sale coupled with payment of earnest and delivery of possession. As said above, he denied specific performance mainly on two reasons:- (i) that there was undue delay in demand of specific performance and (ii) that the agreement was grossly unfair to the respondent. 6] I have therefore, no hesitation to record my finding that the Courts below committed grave error of law in denying the specific performance to the appellant. The appeal, should therefore succeed. The judgments and decree of both the Courts below are set aside. The suit of the appellants for specific performance shall stand allowed. The respondent shall execute the required sale deed in favour of the appellants within three months from today, failing which the appellants shall be entitled to get the sale deed executed through the trial Court. There shall not be any order as to costs. Sd/- (A.V. NIRGUDE, J.) arp