SUMANBAI PANDURANG PETKAR Vs. SURESH LATARUJI RAMTEKE

JUDGEMENT

(1.) Heard Shri Madhdur Deo, learned counsel for the appellant and Shri P.S. Khubalkar, learned counsel for the respondent no.1. After hearing the learned counsel for the parties, in my considered opinion, the following substantial questions of law arise for determination.

(2.) Admit on the above substantial questions of law and the appeal is heard finally with the consent of the learned counsels for the rival parties.

(3.) The plaintiff/respondent no.1 herein had filed a suit for specific performance of the agreement dtd. 29/03/2004 (Exh.63), which was in respect of agricultural land bearing Gat No. 236/2 PH No. 15 Class-II admeasuring 1.19 HR at the rate of Rs.2,20,000.00, per acre. The total consideration thus was working out to Rs.10,37,894.00 and on the date of the agreement had paid a part consideration of Rs.60,000.00. The balance consideration was agreed to be paid on the registration of the sale-deed. Since the property was held in Class-II occupancy, the defendants had agreed to get the requisite permission for sale of the land from the authority under the Maharashtra Land Revenue Code, 1966 and also to get the land measured and adjust the consideration as per the measurement. Though the agreement contemplated a time of one year for the sale-deed to be executed and registered however, time was agreed to be extended on account of the necessity of obtaining permission from the appropriate authority. The agreement which is dtd. 29/03/2004 also indicated that the actual physical possession of the property was delivered to the plaintiff on the date of the agreement of sale itself. The agreement was executed by the defendant no.1 Sumanbai Pandurang Petkar by putting her thumb impression upon the same and is claimed to have been witnessed by Pandurang Bhiwaji Petkar (husband of the defendant no.1), who was arrayed as the defendant no.2 in the suit and one Sudhakar Nilkanthrao Wargantiwar. It is further contended that an amount of Rs.1,00,000.00 was paid in cash on 17/01/2005 to the husband of the defendant no.1, Rs.2,000.00 paid on 12/06/2008 to the same person and further amount of Rs.8,000.00paid on 21/6/2008 in respect of which an endorsement is claimed to have been obtained from the husband of the defendant no.1 on the backside of the agreement (Exh.63). This last endorsement of Rs.8000.00is claimed to have been witnessed by two witnesses as indicated therein, both of them have not been examined. Further claim is made that on 07/05/2005 an amount of Rs.1,00,000.00 was paid by cheque to the husband of the defendant no.1 in respect of which a receipt was obtained which is at Exh.64. This endorsement has been witnessed by one Ashok Depekar and Ajay Padamveerwar, both of them have not been examined. The permission to sell the land by the Additional Commissioner, Nagpur Division came on 20/10/2009 (Exh.72) in pursuance to which a notice (Exh.65) came to be issued by the plaintiff/respondent no.1 on 08/12/2009 calling upon the defendants to execute and register the sale-deed expressing that he was ready and willing to pay the balance consideration. It was also stated in the notice that Rs.2,10,000.00 already stood paid to the defendant no.1 over and above the amount of Rs.60,000.00 paid under the agreement dtd. 29/03/2004, which payment was on the date of the agreement and therefore the plaintiff was thus liable to pay the balance of the total consideration and to remain present in the office of the Sub-Registrar, Gadchiroli on 16/12/2009 for the said purpose. The postal receipts of the notice are at Exh.66 and 67 and Exh.68 and 69 indicate that the defendant refused to accept the same. The plaintiff claims that though on 16/12/2009, he was present in the office of the Sub-Registrar, Gadchiroli, with the balance consideration, from 10 a.m., the defendant no.1 did not turn up, as a result of which, the plaintiff has sworn an affidavit before the Executive Magistrate, Gadchiroli, on the same day, to indicate his presence, in the Tahsil Office. Thereafter, a suit for specific performance came to be filed on 15/03/2010 claiming specific performance of the agreement dtd. 29/03/2004. The plaint in para 3 made an averment that a sum of Rs.2,70,000.00(instead of Rs.2,10,000.00) already stood paid to the defendants and since under the permission by the Divisional Commissioner dtd. 20/10/2009, the defendant no.1 was required to deposit an amount of Rs.1,88,859.00as unearned income, as the land in question was allotted by the Government, the defendant no.1 was to be directed to deposit that amount. Para 5 of the plaint contained an averment of readiness and willingness to get the sale-deed executed. A statement was already made that the notice dtd. 08/12/2009 indicated that the defendant no.1 was called upon to remain present in the office of the Sub-Registrar on 16/12/2009, on which date, the plaintiff was present, however the defendant no.1 was absent and in order to demonstrate his presence, an affidavit was also sworn in on that date. Para 6 of the plaint further contains an averment that the plaintiff was ready with the amount of balance consideration to be paid to the defendant no.1 on that date, to demonstrate which, a cheque dtd. 16/12/2009 bearing No. 323605 drawn on the Bank of India in the sum of Rs.3,90,000.00, in the name of the defendant no.1, has been placed on record at Exh.73, in respect of which, it is contended by Shri Deo, learned counsel for the appellant that the plaint averments do not make any reference to the cheque number at all or the details of the cheque for that matter. He submits that even the affidavit claimed to have been sworn on 16/12/2009, has a blank space regarding the cheque number and its details and even otherwise, though the affidavit cannot be looked into as it is merely marked as an article.