KESHAV MANSING SALUNKHE Vs. NITIN PRABHAKAR BHAGAWAT

JUDGEMENT

(1.) This Second Appeal is filed challenging Judgment and Decree dtd. 30/11/2019 passed by the Adhoc District Judge-1, Satara dismissing the Regular Civil Appeal No.111/2016 and confirming the Judgment and Decree dtd. 2/3/2016 passed by II Joint Civil Judge Senior Division, Satara in Special Civil Suit No.184 of 2014.

(2.) Briefly stated, facts of the case, as captured from the plaint, are that Defendant- Nitin Prabhakar Bhagwat is the owner of the Plot bearing No. 18 admeasuring 4658 sq.mtrs out of Survey No.25/1B situated at Village Kasbe Bai, Taluka Wai, District Satara (the suit property). Defendant decided to sell the suit property, Plaintiff approached the Defendant and in February 2012, discussion and negotiations took place between them and they agreed to execute Agreement for Sale. Plaintiff claims that it was agreed that the Sale deed was to be executed after carrying out the measurement and fixation of the boundaries by the Defendant, within 3 months from the date of execution of the Agreement for Sale. The Agreement for Sale was executed on 6/3/2012 and total consideration for the sale transaction was fixed at Rs.7,00,000.00. The Agreement for Sale was registered in the office of Sub-Registrar on 7/3/2012 and Plaintiff paid to the Defendant amount of Rs.6,00,000.00 towards earnest money. The balance consideration of Rs.1,00,000.00 was to be paid at the time of execution of the Sale Deed. It is Plaintiff's contention that he was always ready and willing to pay the balance consideration and to execute the sale deed provided Defendant got the plot measured and boundaries fixed. Plaintiff has stated in the plaint that he inquired through Mr. Jagtap and through telephonic conversations with the Defendant about execution of the Sale Deed. The Defendant sent Notice dtd. 24/4/2013 through his Advocate conveying that the sale transaction between them stood cancelled. The Plaintiff replied to the Notice on 6/5/2013 stating that Defendant himself has committed breach by not compiling with the conditions agreed and that the said Notice is illegal. The Plaintiff also called upon the Defendant to get the suit property measured and demarcated, to remain present in the office of Registrar, Wai at 10:30 a.m. on 20/5/2013 and accept the balance consideration for completion of sale transaction. That Defendant paid no heed to the reply and that Plaintiff remained present in the office of Sub-Registrar from 10:30 a.m. to 6:00 p.m. in the office of Sub-Registrar, Wai on 20/5/2013. Plaintiff again sent Notice dtd. 10/9/2013 to the Defendant to remain present in the office of Sub-Registrar on 25/9/2013 at 10:30 a.m. and to execute the Sale deed by accepting the balance consideration, only if the Defendant has got the plot measured and its boundaries fixed. The said Notice was returned unserved with remark "Address Insufficient." Thereafter the Plaintiff came to know that Defendant was trying to create third party interests in the property. Plaintiff published public notice in the newspaper 'Sakal' on 26/9/2013.

(3.) Aggrieved by Defendant's refusal to perform his part of contract, the Plaintiff instituted Special Civil Suit No. 184 of 2014 for specific performance of Agreement for Sale dtd. 06/3/2012 registered on 7/3/2022. The Plaintiff also prayed in his plaint that Defendant be directed to get the plot measured and boundaries fixed and execute Sale deed by accepting balance consideration and not to create third party interest. Despite service of summons Defendant did not appear to defend the suit. The Plaintiff did not pray for refund of earnest money, compensation or damages for breach of contract. The Trial Court by its judgment and decree dtd. 2/3/2016 dismissed the Suit holding that Plaintiff was not ready and willing to perform his part of the contract and is therefore not entitled to relief of specific performance of the Agreement for Sale.