1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 317/2008 (Namdeo Yashwant Channe VERSUS Bhimrao Tikaram Chaudhari & 3 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri M.A. Bapat, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 27, 2008. Heard Shri M.A. Bapat, the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for specific performance of contract. According to the plaintiff, the plaintiff entered into an agreement to purchase 13 acres of land belonging to the defendant for an amount of Rupees One Lac. The agreement of sale was executed on 22.11.1991. It was the case of the plaintiff that an earnest amount of Rs.30,000/- was paid to the defendant at the time of execution of agreement of sale and a few days later, an amount of Rs.22,500/- was also paid to the defendant. Since the defendant failed to perform his part of the contract by executing the sale-deed in favour of the plaintiff, the plaintiff issued a notice to the defendant and thereafter instituted a suit for specific performance of contract. 2 The defendants denied the claim of the plaintiff. The defendants did not dispute their ownership over the suit property. They however, denied that they entered into an agreement of sale dated 22.08.1991. The defendants further denied that the plaintiff had paid an amount of Rs.30,000/- as earnest amount and a further amount of Rs.22,500/- on 28.12.1991. The defendants pleaded that the plaintiff took undue advantage of their helpless condition and took possession of the suit property fraudulently. According to the defendants, the plaintiff had relinquished their share on the half of the suit land and, therefore, they sought for the dismissal of the suit. The trial as well as the first appellate Court rejected the claim of the plaintiff for grant of a decree for specific performance of contract. According to both the Courts, during the pendency of the suit and before the defendants filed their written statement, the defendant had executed a sale-deed in respect of half of the suit property in favour of the plaintiff. Both the Courts, on an appreciation of the material evidence on record, held that the defendants had succeeded in proving that the plaintiff had relinquished his right to seek specific performance 3 of contract in respect of the remaining land which was not sold by the defendants to the plaintiff. While recording the aforesaid findings, the Courts considered the fact that an amendment application filed by the plaintiff with an intention to bring the subsequent events on record was rejected by the trial Court and the plaintiff had not challenged the order of rejection of the amendment application either during the pendency of the civil suit or in the Regular Civil Appeal No.27/2000, filed by him. In the peculiar facts and circumstances of the case, both the Courts held that equity was in favour of the defendants the plaintiff was not entitled to a decree for specific performance of contract. The discretion was exercised by both the Courts against the appellant and it cannot be said that the discretion is exercised against the appellant/ plaintiff on perverse reasons. This Court, therefore, cannot interfere with the concurrent findings of facts recorded by both the Courts. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE