VISHNU RAMKRISHNA DOIPHODE Vs. VITTHAL BHAU DOIPHONE

JUDGEMENT

(1.) The present Second Appeal is admitted vide order dtd. 6/9/1995 on the following substantial question of law:-

(2.) The appellant is the original plaintiff. He had filed a suit for specific performance of contract against the defendant being Regular Civil Suit No.130 of 1980. Likewise the defendant had also filed a suit being Regular Civil Suit No.40 of 1981 against the plaintiff seeking cancellation of the agreement for sale. Learned Tribunal has decided both the suits together by consolidating them and recording common evidence. Both the suits are decided by common judgment dtd. 6/8/1984. The learned Trial Court has granted decree for specific performance in favour of plaintiff and has dismissed the suit for cancellation of agreement filed by the defendant. Aggrieved by the said decrees passed against him, the defendant filed two separate appeals being Regular Civil Appeal No.374 of 1984 challenging the decree for specific performance of contract passed in Regular Civil Suit No.130 of 1980 and Regular Civil Appeal No.432 of 1984 challenging the decree dismissing Regular Civil Suit No.40 of 1981 which was filed for cancellation of agreement. The learned First Appellate Court has partly allowed Regular Civil Appeal No. 374 of 1984 by substituting decree for specific performance of contract with a decree for refund of sale consideration of Rs.3,000.00 with interest. As regards Regular Civil Appeal No.432 of 1984, the appeal is dismissed. In such circumstances, the present appeal is filed by the original plaintiff challenging judgment and decree passed in Regular Civil Appeal No.374 of 1984 whereby decree for specific performance of contract came to be refused and decree for refund of part sale consideration which was paid is granted. It will be pertinent to mention that the defendant has not challenged decree passed in Regular Civil Appeal No.432 of 1984 which came to be dismissed.

(3.) The plaintiff and defendant have entered into agreement for sale dtd. 4/11/1977 with respect to suit property for a consideration of Rs.11,725.00. It is necessary to mention that the plaintiff had earlier advanced a sum of Rs.5,000.00, initially a sum of Rs.4,000.00 followed by an amount of Rs.1,000.00 to the defendant. The defendant has executed two documents of mortgage by conditional sale dtd. 26/3/1974 for a sum of R.4,000/- and 10/5/1974 for a sum of Rs.1,000.00. On 4/11/1977 i.e. the date of agreement for sale the plaintiff had paid a sum of Rs.2,500.00 to the defendant. Amount of Rs.5,000.00 paid earlier in the year 1974 was also treated as a part of sale consideration. Thereafter, the plaintiff has paid a sum of Rs.500.00 to the defendant on 31/1/1978 which is also admitted by the defendant. It must also be mentioned that the case of the defendant as regards the agreement to sale dtd. 4/11/1977 is that the said agreement was executed as a collateral security for repayment of loan of Rs.7,500.00 and that the said agreement for sale was never intended to be acted upon. In other words, the case of the defendant is that the agreement for sale dtd. 4/11/1977 is a sham document which was created in order to camouflage the loan transaction.