SHRIRAM TUKARAM AVATADE Vs. RAMRAO UDAJI KHADASE

JUDGEMENT

(1.) This Second Appeal is initiated at the instance of defendant against whom decree has been passed by learned Additional District Judge, Washim the first appellate Court, in Regular Civil Appeal No. 78/1997 decided on 14.7.1998. Parties shall hereinafter be referred as their original status as "plaintiff" and "defendant" in the suit, for the purpose of convenience.

(2.) Facts briefly mentioned are : the plaintiff had filed Regular Civil Suit No. 37/1994 in the Court of learned Civil Judge Jr.Dn. Risod for specific performance of the contract of sale, with alternative prayer for refund of consideration with damages. According to the plaintiff, on or about 27.2.1991, the defendant had entered into an agreement to sell the suit land; field S. No. 53/1 admeasuring 2 acres 2 gunthas situated at Belkhed in Risod Taluqa in Washim District (Old Dist. Akola) under an "Isaarchitthi" for earnest money of Rs. 17,000/paid to the defendant. It was agreed that balance consideration would be paid at the time of execution of sale deed on or before 6.5.1991. The plaintiff claimed that he was ready and willing to perform his part of contract, but the defendant on some pretext or the other, avoided to perform his part of contract. On 6.5.1991 the plaintiff was present in the office of SubRegistrar with all requirements in order to perform his contract, but the defendant remained absent and evaded to attend the office of SubRegistrar. The plaintiff had called upon defendant by notice dated 14.2.1991 to perform his part of the contract. Despite it the defendant has failed to perform his art of contract.

(3.) The suit was resisted on the ground that it was not a true transaction of sale but there was debt/encumbrance from the bank on the suit land therefore, the defendant had approached the plaintiff to borrow and that the plaintiff took disadvantage of the document to institute the false suit.