SUHAS YASHWANT CHOPDE Vs. SURESH GOPAL KUNTE

JUDGEMENT

(1.) BY consent of the parties, the appeal is taken up for final hearing at the stage of admission. Heard at length.

(2.) THIS appeal questions the legality and validity of the judgment and decree passed by the trial Court dismissing the suit filed by the appellant-plaintiff seeking specific performance of contract. The dispute in this appeal arises in the following factual matrix. : The present appellant/original plaintiff entered into an agreement with the respondents-defendants for purchase of land gat No.398, area admeasuring 2 Hectare i.e. 5 acres, situate at village Aglambe, Tal. Haveli, District Pune. At the time of entering into an agreement dated 8th January 1998, a part of the suit property was mortgaged with Saraswat Co-operative Bank Limited, as the defendants had obtained loan from the bank against the said property. The bank had initiated recovery proceedings against the defendants and the defendants had admitted their liability to pay Rs. 11,61,000/- to the bank, which was to be paid in instalments. Thus, at the time of entering into an agreement, the defendants were in need of money for clearing dues of the bank, so also for educational expenses of their son, who was to travel to U.S.A. Under the agreement of sale, the agreed consideration was Rs.55.00 lacs, out of which a sum of Rs.10.00 lacs was paid on 8th January 1998 by the plaintiff to the defendants. Perusal of the important terms and conditions of the agreement would reveal that the defendants had permitted the plaintiff to pay the entire due amount to the bank and after getting redemption of mortgage, the amount paid to the bank was to be deducted from the amount of consideration. The agreement also provided that after payment of dues of the bank by the plaintiff, the plaintiff would be entitled to the possession of the suit land. The sale-deed was to be executed within eight months from the date of agreement after obtaining necessary permission from the revenue department. A power of attorney was also executed in favour of the plaintiff, so that the plaintiff could deal with Saraswat Bank and could also obtain necessary permission from the Collector. One of the conditions stipulated in the agreement, pertains to refund of money paid by the plaintiff to the defendants together with interest @24% per annum, if the sale deed is not executed. According to the defendants, at the time of execution of agreement of sale the suit land was agricultural land, hence permission of the Collector was necessary. The period of performance of the contract came to be extended by further period of six months, however the contract was not performed. It is admitted position that in addition to sum of Rs. 10.00 lacs paid by the plaintiff at the time of execution of the agreement, an amount of Rs.3,65,000/- was also paid from time to time till August 1999. Despite expiry of extended term of six months in March 1999, the sale-deed was not executed. According to the plaintiff, it was on account of non performance of the terms of the agreement by the defendants that the sale-deed could not be executed, whereas, according to the defendants on account of want of readiness and willingness on the part of the plaintiff to perform his part of contract, the sale-deed could not be executed.

(3.) FROM the facts narrated herein above, the points for determination that arise in this appeal are as under :