1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.195 OF 2009 WITH SECOND APPEAL NO.196 OF 2009 WITH CIVIL APPLICATION NO.1467 OF 2009 Shri Uttam Kalu Joshi )..Appellant Vs. Sou. Vimal Shivaji Kadam )..Respondent ---- Mr. Kishor Patil i/by P.N.Joshi for the appellant. ---- Coram : R.S.MOHITE,J Date : 10th March, 2010 PC SECOND APPEAL NO195 OF 2009 WITH SECOND APPEAL NO.196 OF 2009 1 Since both these appeals arise out of a common judgment and order and in respect of the same property, both are being disposed off finally by this order. 2 I have heard the Advocate for the appellant. The appellant who is the original plaintiff in RCS No.53 of 1998 executed a conditional mortgage in favour of the defendants in the said suit in lieu of obtaining a loan of Rs.30,000/-. If the loan was repaid within a period of 5 years, the property was to be reconveyed. According to the defendants in the said suit, on 4.1.1995 the plaintiff executed an agreement of sale agreeing to sell the property to the defendants for a consideration of Rs.80,000/-. It was the defence of the 2 defendants that the Rs.30,000/- earlier paid as a loan to the original plaintiff was adjusted and further balance amount was to be paid at the time of execution of the sale deed. It appears that in 1997 original defendants first filed RCS No.85 of 1997 for specific performance of the agreement for sale dated 4.1.1995. Subsequently, the plaintiff in the said suit filed another suit in 1998 for redemption of the mortgage. By its judgment and order, the trial Court was pleased to decree RCS No.75 of 2000 and granted specific performance of the agreement of sale dated 4.1.1995. By a separate judgment the trial Court also dismissed RCS No.83 of 2000 which was a suit for redemption of the mortgage. The appellate Court has confirmed the decrees passed by the trial Court. 2 The only point that was raised is that once the mortgage deed has been executed on 8.4.1993, there was no occasion to execute an agreement of sale. Both the Courts have held that such agreement was executed. It was also contended that agreement of sale could not have been executed because there was a charge of the bank on the suit property. That charge, even if existing, cannot come in the way of the defendants from obtaining specific performance of the agreement dated 4.1.1995. In the aforesaid circumstances, there is no substantial question of law involved in this Appeal. Second Appeal is therefore, summarily dismissed. CIVIL APPLICATION NO.1467 OF 2009 1 As the Second Appeals are dismissed, this Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3 4