NILKANTH DHONDIBA CHAVAN Vs. UMABAI ANANT DESAI

JUDGEMENT

(1.) THE Appellants, original Plaintifftfin a suit filed against respondents original Defendants for specific performance, in the alternative prayed for some other reliers some of the prayer Clauses reads as unders

(2.) THE case of the Appellants was that they was the owners of the property which property was to be put in auction in Special Darkhast No. 78 of 1970. The financial condition of the appellantwas not sound and if the amount was not paid, the property was to be sold in auction. The value of the property was approximately Rs. 2 lacs. and it is contended that if the property was auctioned then plaintiffs would have suffered loss for life. Defendant No. 1 had knowledge of the condition of the Plaintiff. . The Plaintiff asked for a loan of rs. 50,000/- from the defendant in order to pay the liabilities of the creditors. Defendant No. 2 agreed to give the loan of Rs. 45,000/- after taking the same from his wife, Defendant No. 1 or in her name, and the Plaintiff agreed to take this amount as loan. It was agreed between the Plaintiff and the defendants that for the security of this amount, mortgage possession of the suit property was to be given to the defendants. However, as the defendants had no money-lending licence, and as the plaintiff wanted longer period for repayment, it was agreed that the plaintiff should prepare a document of term-purchase in the name of Defendatnt no. 1. According to that, purchase deed was written on stamp paper. However, a clause of reconveyance was to be included meaning thereby that in case of repayment of loan by the Plaintiff to the Defendant No. 1 within the stipulated period and acceptance thereof by the Defendant v it reconveyance Of the property was to be got don in the name of the Plaintiff. That was left to be included in the purchase deed. After noticing this mistake and on reading the purchase deed the defendant made an agreement at the same time i. e. on 1. 1. 1971 to give reconveyance of the purchase deed of the suit property in the name of the plaintiffs. That deed was also registered. It is the case of the Plaintiff that they were ever willing to comply with the condition of the agreement and to pay the amount to the defendants plaintiff was also ever ready and is ready to give or bear the expenditure of reconveyance of purchase deed. Though Plaintiff asked defendant No. 1 for getting the reconveyance deed in writing, the defendant avoided the same. Plaintiff then sent a registered notice dated 9. 6. 1978 informing the defendant to give reconveyance of purchase deed in writing. It is the case of the Plaintiff that defendant mischievously demanded exorbitant amount by way of reply. As the Plaintiffs were not agreeable to the same the Plaintiffs were compelled to file the suit as the defendants were not willing to act in accordance with the agreement. Relief was therefore, sought asking for reconveyance/purchase. In the alternative prayer was sought on the basis that the various deeds constituted a deed of mortgage and as such the suit property after being freed from mortgage as per the deed of mortgage under. Serial No. 7 dated 2. 1. 1971 be given in actual possession of the Plaintiffs. Another alternative relief prayed for if the document was construed as a mortgage was that as the amount advanced was a loan, it was not recoverable under the Debt Relief Act. There are also some other prayers.

(3.) THE defendants filed written statement contending that defendant No. 2 is the tenant on the ground floor. Adverting to the receipt of notice served on behalf of the Plaintiff* it is pointed out that an additional amount of Rs. 4646/-in addition to Rs. 45,0007- ought to be paid to the defendant by the Plaintifs for reconveyance and accordingly Plaintiffs were so informed. The plaintiff did not do anything and as -such committed the breach of the agreement. The Defendant also denied that the Plaintiff No. 1 is debtor under tne Bombay Debt Relief Act. The Plaintiff also denied the transaction is in the nature of mortgage. The defendant No. 2 filed written statement. It is contended that as the Plaintiff wanted the building to be sold and Defendant No. 1 wanted the same to be purchased, after fixing the price of the building, defendant No. 1 purchased it for an amount of Rs. 45,000/ -.