PRADEEP SHANKAR WALVEKAR Vs. ANIL NARSINHA ANNACHHATRE

JUDGEMENT

(1.) The appellants who are the original defendants have taken an exception to the judgment and decree dated 7th April, 2011 passed by the learned Joint Civil Judge, Senior Division, Pune. The respondents/plaintiffs who had admittedly paid a consideration of Rs. 90,00,000/- out of the agreed consideration of Rs. 1,10,00,000/- filed a suit for specific performance of the agreement dated 18th October, 2007 which was styled as an agreement of development or a development agreement. The said agreement was executed by the present appellants in favour of the respondents.

(2.) The appellants were the owners of the property bearing Plot No. 15 admeasuring 522 square meters together with a bungalow constructed thereon, more particularly described in paragraph 1 of the plaint. (The said property is hereinafter referred to as "the suit property"). It is alleged in the plaint, which is not disputed, that the 1st appellant has 10% undivided share in the suit property. The share of the 2nd appellant is also 10% and the shares of 3rd and 4th appellants are respectively 40% each. It is pointed out in the plaint that, the first two appellants in the capacity as the partners of M/s. Decal Industries had obtained loan from the Rupee Cooperative Bank Ltd. , whereunder the suit property was mortgaged in favour of the said Bank. The Bank had kept a charge on the suit property. According to the case of the respondents, the appellants had represented that on payment of a sum of Rs. 29,00,000/-, the said Bank shall release the property from the charge. The case made out in the plaint is that till the date of execution of the agreement dated 18th October, 2007 (hereinafter referred to as the suit agreement), the total consideration of Rs. 90,00,000/- was paid by the respondents to the appellants. It is not in dispute that the appellants have received a sum of Rs. 90,00,000/- from the respondents. The suit agreement was duly registered in the office of the Sub-Registrar after payment of Rs. 1,10,000/- by way of stamp duty. Reliance is also placed on a registered power of attorney executed by the appellants in favour of the respondents which has been duly registered.

(3.) The appellants pointed out that further consideration of Rs. 19,00,000/- was made payable under the suit agreement within 120 days for execution of the said agreement. It is alleged that post-dated cheques in the names of the appellants aggregating to Rs. 19,00,000/- were issued by the respondents. It is pointed out that a sum of Rs. 1,00,000/- was to be paid at the time of execution of the final conveyance. In the plaint, it is contended that the 4th appellant tried to encash the post dated cheque of Rs. 7,60,000/- drawn on Bank of Baroda on 10th June, 2008. The cheque was dated 16th February, 2008. It is pointed out that though the suit agreement contemplated delivery of possession, the appellants avoided to deliver the possession. It is alleged that the respondents did not permit the appellants to encash the said cheque without seeking necessary clarification. It is alleged that, in June, 2008, the appellants visited the office of the defendants, but the defendants did not hand over the possession.