Laxman Tatyaba Kankate & Anr vs Taramati Harishchandra Dhatrak

1. The necessary facts are that, according to the respondent, an agreement to sell dated 08.01.1991 was entered into between the parties in terms whereof the appellants had agreed to sell the land admeasuring 1H. 60 R. in Village Pimpri Lokai, Taluka Shrirampur, District Ahmednagar in Block No. 220, the boundaries of which were stated in the plaint. A sum of Rs. 10,000/- was paid at that time and it was agreed that upon obtaining the permission from the competent authority, the demarcation of the land would be effected and the possession of the suit land would be given. The appellants were expected to execute the sale deed in favour of the respondent, as the respondent was always ready and willing to perform her part of the contract. Though the appellants assured that they would execute the sale 3 deed in favour of the respondent, they failed to do so. A notice dated 05.06.1992 was served upon the appellants but no sale deed was executed.

1. Thereafter, according to the respondent, the appellants also started causing obstruction in the peaceful possession of the respondent and one of such incidents occurred on 11.07.1992, which compelled the respondent to file the suit for specific performance, and in the alternative, for the refund of earnest money along with damages. One Vitthal Laxman Kankate also applied to the Court, vide Exh. 23, to be impleaded as a party, as he claimed right and interest in the said land. This application was allowed.

1. The suit was contested by the appellants who took various legal objections including, that the suit was bad for non- joinder of the necessary parties and, thus, was not maintainable. On merits, it was stated that no agreement, as alleged, was executed between the parties and the entire case, as pleaded by the respondent, was false. It was also averred that defendant No. 2 in the suit (appellant No. 2 in 4 the present appeal) had also filed a suit wherein injunction was granted in favour of the said party.

1. A plea was also taken that the agreement to sell was not a registered document, as such, the same could not be acted upon. The appellants also took the stand that there was rapid increase in the market value of the land and, therefore, they could not have agreed to sell the property at the price indicated in the agreement. However, it was really not in dispute that the plaintiff and the defendants were acquainted to each other. The learned Trial Court, on the basis of the record before it, noticed that the appellants claimed that they wanted to obtain a loan for a sum of Rs. 2,000/- from the respondent and had agreed to sign certain papers by way of security, that the respondent, on the pretext, got certain blank papers signed from the appellant as well as his son and that there was no intention to sell the property in question.

1. The discretion of the Court has to be exercised as per the settled judicial principles. All the aforesaid principles are squarely satisfied in the present case and it is the appellants before us who have taken advantage of the pendency of the proceedings. They have used the sum of Rs. 10,000/-, which was given as earnest money for all this period, as well as, have enjoyed the fruits of the property. The present case 15 does not fall within the ambit of any of the aforesaid cases specified under Section 20 (2) of the Act. In the present case, it is not only lawful but even equity and facts of the case demand that a decree for specific performance should be granted in favour of the respondent. Besides all this, the respondent before us has agreed to pay much higher consideration than what was payable in terms of the agreement to sell between the parties.

In view of the findings in respect of point Nos. 1 and 2, it logically follows that the judgment and decree of the learned trial court have to be set aside, and suit filed by appellant is decreed, which is for a relief of specific performance however subject to certain conditions i.e. regarding prior permission of the state government of society of village Pimprilokai. Incase, both authorities are not pleased to grant permission then appellant would be entitled to claim refund of the earnest amount from respondents which is to the tune of Rs. 10,000/-."

1. For the reasons afore recorded, we see no legal or other infirmity in the judgment under appeal. While dismissing the present appeal, we direct that the respondent will abide by 18 her offer and would pay a total sale consideration of Rs. 1,50,000/- and upon payment of Rs. 1,50,000/- - Rs. 10,000/- = Rs. 1,40,000/- and complying with the conditions stated in the judgment dated 28th November, 2000 of the First Appellate Court, the sale deed shall be registered in favour of the respondent in terms of the decree passed by the First Appellate Court subject to the above modifications.

1. However, in the facts and circumstances of the case, we leave the parties to bear their own costs.