SEEMA MARUTRAO DEVAKAR Vs. SHALAN PURUSHOTTAM JOSHI

JUDGEMENT

(1.) THIS is plaintiffs appeal taking exception to the refusal of the trial Court to grant unto them a decree for specific performance vide agreement dated 13-12-1979 marked Exhibit 27.

(2.) APPELLANTS 1 and 2 are the wife and younger brother of Marutrao Devkar. Respondents-defendants 1 to 4 (Joshis) are the widow and children respectively of Purushottam Joshi. Respondents 5 to 7 are the tenants on the upper storeys of a three-storeyed house bearing City Survey No. 471/b, Narayan Peth, Pune. The said house originally belonged to Purushottam Joshi and came by inheritance after his death to the Joshis. The rent paid by defendants 5 to 7 is a meagre sum, not exceeding Rs. 200/- per month. Plaintiff No. 3 (Wadekar) is a real-estate broker doing business in the name and style of Wadekar Enterprises at Deccan Gymkhana, Pune. In the year 1979, defendant No. 4 Sheela was a spinster though of marriageable age. On 13-12-1979, Joshis executed Exhibit 27 in favour of plaintiff Nos. 1 and 2 (Devkars ). This document recited an agreement to sell the suit house to the Devkars for a total consideration of Rs. 1,02,500/-, the receipt of Rs. 10,500/- as earnest money, the readiness and willingness of the executants of the document to execute a proper sale deed on receipt of the balance consideration, the time for that purpose being six months and lastly the executants, not having entered into any previous commitment with other vis-a-vis the house, etc. , etc. On 13th June 1980, an endorsement was made at the foot of Exhibit 27 regarding an extension of the time by 15 months i. e. on or before 13th September 1981. On 12-5-1981, the Devkars through their advocate addressed a notice to the Joshis which notice is at Exhibit. A reference was made in this notice to the events ending with the extension of the time within which the contract was to be performed and further averring that despite repeated requests by the Devkars, the Joshis had not done the needful viz. , obtaining permission of the Competent Authority under the Urban land (Ceiling and Regulation) Act and that this lapse was coming in the way of the performance of the agreement. Those written to were requested to obtain the requisite permission and intimate the same to the Devkars who had ceased to believe any longer in the shallow promises of the Joshis. The notice ended with a call upon the Joshis to obtain the requisite permission and complete the transaction in favour of the Devkars or a person to be nominated by them. Incidentally, Exhibit 27 itself provides that the Joshis were under an obligation to sell the house to the Devkars or any nominee to be designated by them. Exhibit 30 was replied by advocate P. A. Joshi on behalf of the Joshis. The reply found fault with some minor details in the notice which was given at the instance of the Devkars. It was made clear in the reply that advocate Joshis clients would do what was necessary to obtain the permission from the Competent Authority but, that this required the co-operation of the Devkars, without which co-operation, it would be possible neither to obtain the required sanction nor pass a sale deed. The reference to the shallow promises was repudiated as a falsehood not acceptable to the Joshis. The last date for the performance of the agreement was 13-9-1981. It came and went, and on 16-9-1981, the Devkars together with Wadekar filed the suit wherefrom this appeal arises.

(3.) THE plaintiffs i. e. Devkars and Wadekar set out a summary of Exhibit 27, the extension of the period within which the sale deed was to be passed, their readiness to perform their obligations under the agreement and the avoidance of the Joshis to have the agreement performed. Wadekar was not a party to the transaction under Exhibit 27 and his joinder as a plaintiff was explained in the plaint in these words : plaintiffs 1 to 2 have agreed with plaintiff No. 3 to purchase the suit property in common and as such the plaintiff No. 3 is joined in the suit and the defendants 1 to 4 are bound to execute the sale deed in favour of the plaintiffs. " a decree for specific performance was solicited. It has been averred in the plaint that the plaintiffs were ever ready and willing to perform their obligations under the agreement. Blame was attributed to the Joshis for the agreements not having been performed Prayer (a) of the plaint recites :