DATTA BANDU SADALE Vs. SRIDHAR PAYAGONDA PATIL

JUDGEMENT

(1.) THIS Civil Revision Application filed by the original defendants in Special Civil Suit No. 34 of 1991, instituted by the respondents in the Court of the Civil Judge, Sr. Dn. , at Kolhapur, raises two questions of law as under : i) Whether the counter-claim under O. VIII Rule 6a of the Code of Civil Procedure must satisfy the conditions which govern the claim in the nature of a set off under O. VIII R. 6 of the Code of Civil Procedure;" ii) Whether such a counter claim can be raised under O. VIII R. 6a of the Code of Civil Procedure after the written statement has been filed ? the Revision Application has been filed against the order dated 2/12/1987 rejecting the petitioners' application for amendment of the written statement.

(2.) ON 16/03/1981, the respondents! plaintiffs filed a suit claiming specific performance of an agreement of sale dated 2nd Apri1 1978 executed by the petitioners in their favour in respect of the land Gut No. 395 measuring 1 H. 66 R, situated at village Rangoli, Tal. Hatkanangale, District Kolhapur. The case of the respondents, as stated in the plaint, is very simple, viz. , that there was an agreement of sale in their favour, executed on 2/04/1978 for a consideration of Rs. 30,000. 00 out of which. they had paid Rs. 20,000. 00 According to the agreement of sale, the possession was with the petitioners/defendants. The respondents alleged that they were ready and willing to perform their part of the contract and though the period stipulated in the said agreement for executing the sale deed was three years from 2/04/1978, the petitioners had not fulfilled their obligations under the agreement. The respondents, therefore, gave notice on 9/02/1981 calling upon the petitioners to execute the sale deed in their favour and hand over possession. On 17/02/1981, the petitioners gave a reply denying the claim made by the respondents. The validity of the agreement and consideration thereafter was denied. It was contended that the agreement was sham and was not intended to be acted upon.

(3.) ON 6/10/1981 the petitioners filed their written statement denying most of the contentions raised in the plaint. The petitioners further contended that the true facts about the transaction were that they were in need of the amount of Rs. 20,000. 00 for repayment of certain debts and were, hence, required to execute the agreement of sale in favour of the respondents in respect of the land gut No. 395 for consideration of Rs. 30,000. 00 though it was agreed and understood between the parties that the said agreement would not be acted upon. The petitioners did admit the receipt for Rs. 20,000. 00 by way of loan but contended that another land, gut No. 893 measuring 1 H 21 R. belonging to the petitioners was already given in possession of the respondents as licensees. It was contended by the petitioners that initially on 6/04/1975, there were two agreements entered into viz. one was purporting to be an agreement of sale in respect of land gut No. 395 and other was a licence agreement in respect of land gut No. 893 whereas gut No. 893 was given in possession of the respondents apparently as licensees, it was really meant to be a security for the loan of Rs. 20,000. 00 advanced by the respondents to the petitioners. The respondents were put in possession of the said lend gut No. 893 for a period of six years commencing from 6/04/1975 and were to enjoy the usufruct of the said land and appropriate the same towards the repayment of Rs. 20,000. 00. The petitioners, therefore contended that the alleged agreement of sale dated 6/04/1975 in respect of the land gut No. 395 was merely by way of a security and was never intended to be acted upon. It was further contended that since the period of 3 years under the two agreements dated 6/04/1975 was about to expire in April 1978, two fresh agreements were entered into between the parties on 2/04/1978. One was the alleged agreement of sale in respect of the land gut No. 395 en which the suit was based and the other was the agreement in the nature of a licence in respect of the land gut No. 693 which was in possession of the respondents. For completion of the sale under the agreement of sale dated 2/04/1978 the period stipulated was three years and so was the period of three years stipulated under the licence agreement dated 2/04/1978 in respect or the land gut No. 93. The petitioners have pleaded all these facts in the written statement filed on 6/10/1981. In fact, there are extensive pleadings on the real nature of the transaction between the parties as reflected in the two agreements initially entered into on 6/04/1975 followed by the two agreements entered into on 2/04/1978. The petitioners have contended that the respondents were indulging in money lending business but since they did not hold the requisive licence, these agreements were devised to circumvent the provisions of the Bombay Money Lenders Act, 1946. The petitioners further contended that since they were in dire need of the amount of Rs. 25,000. 00 for repayment of debts, they had no other alternative but to submit to the dictates of the respondents and to execute the two agreements.