ABDUL SALIM Vs. HYRUNEESA

JUDGEMENT

(1.) THE foundation for the second appeal is the finding of courts below that appellant was not ready and willing to perform his part of the agreement for sale and the exercise of the discretionary jurisdiction under Sec.20 of the Specific Relief Act, 1963 (for short, "the Act") in favour of the respondent.

(2.) AS found by the courts below, appellant and respondent executed Ext.A1, agreement dated 01.06.2009 as per which appellant was to purchase the suit property belonging to the respondent for consideration at the rate of Rs.4,000/- per cent. Respondent received Rs.20,000/- by way of advance. The understanding was that the respondent has to measure the property and the sale deed has to be executed before 01.05.2010. Appellant alleged that respondent failed in discharging her obligations under the agreement. He claimed that he demanded the respondent to comply with her obligations several times but, it was not heeded to. Respondent told the appellant that the property is mortgaged with the Service Co-operative Bank. She requested time. Accordingly the time was extended for eleven months as per endorsement on the agreement. Still, respondent did not execute the sale deed and hence, the suit.

(3.) THE learned counsel contends that the courts below having found in favour of due execution of Ext.A1 rejecting the plea of the respondent that it was fabricated, were not justified in exercising the discretion in favour of the respondent. It is pleaded that respondent has raised a false plea which has been found against her. In such a situation, the discretion of the court is not to be exercised in favour of the respondent. Reliance is placed on the decision in Silvey and others v. Arun Varghese and another ((2008) 11 SCC 45). It is further contended that the finding of the courts below that appellant failed to perform his part of the contract is not correct. He was ready and willing to perform his part of the contract but the respondent did not satisfy herself the extent of property before 01.05.2010 as agreed to in Ext.A1. Learned counsel has argued that even if the property is mortgaged to the Service Co-operative Bank, it is within the power of the court to grant specific performance subject to the mortgage in favour of the bank. Reliance is placed on the decision in Laxman Tatyaba Kankate and another v. Taramati Harishchandra Dhatrak ((2010) 7 SCC 717).