Disposed

Shri.Udhav Ganpat Surve v. Shri.Bhadreshkumar Dwarakadas Gandhi

Bombay HC7 Dec 2017SA/842/2017

Case brief

AI extract

What is this about?

This second appeal challenged a decree for specific performance of a registered agreement of sale. The court held the appellant failed to prove the document was merely security, finding the respondent established readiness and willingness under Section 16, necessitating specific performance under Section 20.

What did the court decide?

The Second Appeal failed and was dismissed; the decree for specific performance in the suit remains upheld.

Shri.Udhav Ganpat Surve Vs Shri.Bhadreshkumar Dwarakadas… — Specific Performance | Bombay HC (2017)

904-sa-842.17.doc

Shridhar Sutar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶5

SECOND APPEAL NO. 842 OF 2017

¶6

Shri. Udhav Ganpat Surve … Appellant Versus Shri. Bhadreshkumar Dwarakadas Gandhi … Respondent

¶7

Mr. Sarang Satish Aradhya for the Appellant. Mr. Prabhanjan Gujar for the Respondent.

¶8

CORAM : NITIN W. SAMBRE, J. DATE : 7^th DECEMBER, 2017.

¶9

P.C.

¶10

This appeal is by the original defendant in Regular Civil Suit

¶11

No. 91 of 2004 for specific performance of contract based on the agreement of sale dated 10^th August, 2000 - Exhibit-24.

¶12

It is the case of the present respondent - plaintiff that he has agreed to purchase the suit property for a valuable consideration of Rs. 10,000/-, out of which an amount of Rs. 7,000/- was paid while executing and registering the agreement of sale Exhibit-24 and balance amount of Rs.3,000/- was to be paid at the time of execution of the sale-deed which was on or before 10^th August, 2001.

1 of 5

904-sa-842.17.doc

Shridhar Sutar

The suit preferred by the present respondent-plaintiff came to be decreed vide judgment and decree dated 29^th April 2010, which was confirmed in Regular Civil Appeal No. 107 of 2014. As such, this Second Appeal.

¶18

The learned counsel for the appellant, while trying to impress upon the court to frame question of law pursuant to the provisions of Section 16 of the Specific Relief Act, 1963, would urged that for the alleged sale transaction in question, the agreement of sale was never executed. He never agreed to sell out the suit property and he executed a document agreement for sale as a security for loan transactions between the appellant and the respondent. In addition, the learned counsel for the appellant would urge that the respondent-plaintiff has to demonstrate about their readiness and willingness, particularly from the pleadings in the plaint, and evidence on record. So as to substantiate his contentions, he relied upon the judgment of this Court in the matter of Shantabai Bhima Sangle and others Vs. Yamunabai Waliba Kedar and others reported in 2009 (2) Mh.L.J. 499 , particularly paragraph 7 and the decision in the case of Hemant

2 of 5

904-sa-842.17.doc

Shridhar Sutar

M. Deshmukh and others Vs. Diwakar Dadaji Michkin reported in 2010(2) Mh.L.J. 411 , so as to canvass that the readiness and willingness of a party has to be continuous and should reflect in the pleadings. The court should not draw the inference from the vague pleadings and the evidence about readiness and willingness.

¶24

Per contra, the learned Counsel for the respondent-plaintiff would urge that the transaction is of the year 2000 and the agreement of sale - Exhibit-24 is a registered document. According to him the said document was very much proved by examining proper witnesses. Pleading from Exhibit-29, that is the written statement and the notice issued, speaks voluminously about the readiness and willingness of the present respondent to perform his part of the contract.

¶25

Considering the rival submissions, it is not in dispute that document Exhibit-24, which has formed the basis for initiation of suit for specific performance, was proved by the plaintiff by adducing proper evidence. The appellant's contention that the document was executed as a security was nullified by both the

3 of 5

904-sa-842.17.doc

Shridhar Sutar

Courts below as the present appellant has failed to prove the said issue based on his pleadings and evidence.

¶31

It is then to be appreciated that, in terms of the agreement Exhibit-24, the balance amount was to be paid within one year and the date of execution of sale-deed was also accordingly prescribed.

¶32

The plaint and the notice issued by the respondent in voluminous terms speaks of his readiness and willingness to perform his part of the contract by keeping ready the balance payment of Rs. 3,000/- provided the present appellant comes out with clear title to the suit property as same was mortgaged with the Land Development Bank.

¶33

The respondent, in my opinion, in clear terms established readiness and willingness as is rightly observed by both the courts below, and has satisfied the requirement of Section 16 of the Specific Relief Act.

¶34

Once the respondent-plaintiff having satisfied both the courts below as regards his readiness and willingness to perform

4 of 5

Shridhar Sutar 5

904-sa-842.17.doc

the part of the contract, both the courts below, in my opinion, were right in exercising powers under Section 20 of the Specific Relief Act granting the suit for specific performance.

¶39

In my opinion, no interference is warranted as the appeal lacks substantial question of law. The Second Appeal, as such, fails and hence dismissed.

¶40

( NITIN W. SAMBRE, J. )

¶41

5 of 5

Shri.Udhav Ganpat Surve v. Shri.Bhadreshkumar Dwarakadas Gandhi

Case brief

What is this about?

What did the court decide?

Shri.Udhav Ganpat Surve v. Shri.Bhadreshkumar Dwarakadas Gandhi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Meera Laxman Dolas and Ors. Vs Smt. Shashikala Laxman Dolas and Ors.

Smt. Meera Laxman Dolas and Ors. Vs Smt. Shashikala Laxman Dolas and Ors.

Shri Dnyanoba P. Gavali (D/H) Vs Shri Vithal P. Shedge (D/H)

Shri.Udhav Ganpat Surve Vs Shri.Bhadreshkumar Dwarakadas Gandhi

Mohan Baba Khomne and Others Vs Baba Kondiba Khomne Lrs Vithabai and Others

Balkrishna Karbhari Bahikar(Kumbhar) Vs Smt. Sugandhabai Walmik Nikam