1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECODN APPEAL NO.369 OF 2010 SAU. NASINBBANU NISARALI MOHARNEDDENM VERSUS KAMALNARAYAN JAGANNATHIALA JAISWAL Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 30/8/2010 Heard Shri Johrapurkar, the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for a specific performance of contract of sale dated 12.5.1992. The suit for specific performance was filed by the plaintiff in the year 2002. According to the plaintiff, there was a suit filed by the original defendant Kamalnarayan against his brothers for partition and separate possession of his 1/3rd share in the suit property. It was the case of the plaintiff that after the suit was decreed, the plaintiff entered into an agreement of sale of the house property, described in the plaint, through her husband for consideration of Rs.75,000/- with defendant Kamalnarayan Kamalnarayan, the original defendant filed a written statement and denied the case of the plaintiff, 2 that on 12.5.1992 the defendant had entered into an agreement of sale of the house property for a consideration of Rs.75,000/-. It was pleaded by the original defendant that the agreement of sale dated 12.5.1992 was not a real agreement of sale as the defendant was not knowing the contents of the agreement and the same were not read over to him. According to the defendant the signature of the defendant was fraudulently obtained by the plaintiff on the alleged agreement of sale dated 12.5.1992. It was pleaded that the plaintiff's husband paid Rs.20,000/- as earnest amount and agreed to pay Rs.1,25,000/- on or before 15.12.1991, at the time of execution of sale deed of property which was more than the property described in the plaint. It was pleaded that the plaintiff's husband had not disclosed that his wife was to purchase an area of only 36.4 x 14 feet for a consideration of Rs.75,000/-. The defendant pleaded that the plaintiff was not ready and willing to perform her part of the contract and the suit was liable to be dismissed. During the pendency of the suit, the original defendant/ Kamalnarayan expired without leaving any issues. The present respondent became the owner of the suit property after the death of his brother Kamalnarayan. The respondent no.1 filed a written statement denying the case of the plaintiff. The newly 3 substituted defendant also sought for the dismissal of the suit. Both the courts on an appreciation of the evidence on record held that the plaintiff had not succeeded in proving the agreement of sale of the property stated in the plaint for a consideration of Rs.75,000/-. The Courts held that the original defendant did not have a salable title, on the date of agreement of sale. The courts held that the plaintiff did not prove that only the suit property was liable to be sold for an amount of Rs.75,000/-. The courts held that the plaintiff was never ready and willing to perform her part of the contract. The courts held that the plaintiff had not approached the court in this case with clean hands and was not therefore entitled to a grant of decree of specific performance. Since the defendant was ready and willing to refund the amount of Rs.20,000/- paid by the plaintiff towards earnest amount, the first appellate court directed the defendant to pay an amount of Rs.20,00/- to the plaintiff with interest @ 6% per annum, in case the amount was not paid within a period of one month from the date of the judgment passed by the first appellate court. The findings recorded by both the courts in the suit for specific performance of contract of agreement of sale and for partition and separate possession of 4 the property owned by Kamalnarayan, in favour of plaintiff Nasimbanu, do not give rise to any substantial question of law. The courts had rightly held that the agreement of sale as pleaded,was not proved by the plaintiff and the plaintiff was also not ready and willing to perform her part of the contract. Since the findings do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE SMP.