RAMESH NANASAHEB SANDHBHOR Vs. MATSYENDRA RAMKRISHNA WAFGAONKAR

JUDGEMENT

(1.) THIS appeal is directed against a judgment and order dated 20th March, 1996 of the Additional district Judge, Pune. The suit for specific performance was decreed by the Trial Court. The decree for specific performance was not challenged in appeal by the vendor but by a subsequent purchaser in whose favour a sale deed was executed by the vendor. Both the Courts came to the conclusion that the subsequent purchaser, the First respondent herein is not a bonafide purchaser. However, the judgment and order of the Trial Court decreeing the suit for specific performance has been reversed by the Appellate Court on the ground that the Appellant has failed to establish that ha was ready and willing to perform his part of the contract.

(2.) IN these circumstances, the substantial questions of law that arise in the present proceedings are thus : 1) Whether the discretion not to grant specific performance of the agreement can be exercised at the instance of Respondent No. 1 who was held not to be a bonafide purchaser for value and particularly when the decree for specific performance was not challenged by the vendors? 2) Whether the Additional District Judge, Pune has erroneously come to the conclusion that the Appellant was not ready and willing to perform his part of the contract, particularly in the light of the payments which were found to have been made and upon the Government having waived the amount of the outstanding loan of Rs. 5,715/- on 21st May, 1983?

(3.) ON 28th May, 1970 an agreement to sell was entered into between the Appellant and one Babu genu Waghmare in respect of lands bearing Survey no. 25 admeasuring 7 Acres 5 Gunthas situated at mauje Chandoli near Khed. The Appellant was a minor on the date of the agreement and the agreement was entered into on his behalf by his mother. The agreement recites that the total consideration that had been fixed was in the amount of Rs. 10,966/- of which an amount of Rs. 1,000/- was paid as earnest money before the execution thereof. The vendor had taken a Government loan of rs. 5,000/- as and by way of lift loan and had also incurred a Tagai loan of Rs. 960/ -. The responsibility to repay the loan was that of the appellant as purchaser, together with interest. The Appellant agreed to pay an amount of Rs. 4,000/-to the vendor at the time of the execution of the sale deed. Parties stipulated that the sale deed would be executed within a period of three years. The agreement to sell also recorded that possession of the land had been handed over by the vendor to the Appellant and that the Appellant would be entitled to the use and enjoyment of the land. The aforesaid agreement to sell was marked in evidence as Exh. 36. A further agreement was entered into between the parties on 8th December, 1990. It transpired that as a result of the outstanding lift loan, the land had been resumed by the Government. Consequently, the subsequent agreement Exh. 37 recorded that after the land was regranted by the state and upon the permission of the Government the sale deed would be executed in favour of the appellant. The agreement also recited that the appellant had as agreed paid the installments on account of the lift loan from time to time and the vendor assumed the absolute responsibility for obtaining permission for the completion of the sale transaction. From the evidence which has emerged on the record, it is not disputed now that the appellant had from time to time paid an amount of rs. 2,694. 81 partly on account of the repayment of the loan installments and partly on account of land revenue. 19 receipts in all were produced in evidence and were marked as Exh. 40 to Exh. 58. On 25th May, 1971 an order was passed by the Assistant collector of Junnar (Exh. 60) recording that as the tagai loan under the lift irrigation scheme had not been repaid, the land was sought to be sold in auction on 12th June, 1968. Since no bid was forthcoming, the land was purchased at a nominal bid of Re. 1 by the State and the auction sale was confirmed. The land was thereafter entered in the record of rights as Government waste. (he order at exh. 60 then records that the Tahasildar, Khed had reported that the loanee whose lands were put to auction sale for the realization of an amount of rs. 709/-, being the outstanding installments, had paid the due installments as well as the amount of rent for 1969-76, and 1976-71. Accordingly, the assistant Collector directed that the land should be restored to the original occupant on the original tenure. The Appellant produced the receipt for the payment of Rs. 175 (Exh. 59) that was effected for the regrant of the lands. On 21st may, 1983, the outstanding on account of the loan which were then in the amount of Rs. 5,/15. 50 came to be waived by the Government.