PRAKASH DATTATRAYA TILAK Vs. SHAMLABAI DATTATRAYA KARDE

JUDGEMENT

(1.) THIS is an appeal preferred by the original plaintiff against the judgment and order dated 31st October 1985 passed by Civil Judge, Senior Division, Pune whereby the Trial Court dismissed the suit filed by the appellant. The Trial Judge directed the defendants to pay a sum of Rs.11,000/- with interest to the plaintiff, but dismissed the suit for specific performance of agreement of sale dated 8th April 1978. The agreement for sale was in respect of the Government property situated at C.T.S.No.105, Erandavana, Pune agreed to be sold for a price of Rs.1,75,000/- out of which the appellant had, before the execution of the agreement of sale, paid Rs.5,000/- and after the execution of agreement of sale Rs.6,000/- on 14th April 1978. It was the plaintiff's case that under the said agreement for sale, the 1st defendant, the owner of the said immovable property, had agreed to sell the said immovable property and the conveyance was agreed to be completed within six months, that the 1st defendant failed to carry out the obligations cast upon her under the agreement of sale and that therefore the appellant had become entitled to decree for specific performance. Alternatively, however, the appellant had prayed for damages and return of earnest money viz. Rs.11,000/- with interest. The 2nd defendant, who is 2nd respondent before us, was joined as a party to the suit as being a confirming party to the agreement of sale. The 2nd respondent is the husband of the 1st respondent.

(2.) THE defendants raised several pleas in their written statement. However, the main plea was that the agreement for sale was in fact not an agreement for sale of the immovable property in question but was a moneylending transaction in respect of which the property was given as a security and that the appellant was a moneylender. On the basis of the pleas taken, relevant issues were framed. Before the Trial Court, the evidence was led by one Dattatraya M. Tilak, father of the appellant since the appellant was a minor. On belahf of the defendants, evidence of 2nd defendant was led and also evidence of one Mujawar, the attesting witness to the agreement for sale, was led. THE Trial Court by the impugned judgment and order gave a finding that although the execution of the agreement for sale could not be disputed, the document was not in fact an agreement for sale in respect of the immovable property, that the suit transaction was in fact a moneylending transaction, that the appellant had failed to prove part performance of the contract and that the appellant was not ready and willing to perform his part of the contract. However, while denying the relief of specific performance as prayed by the appellant, the Trial Court granted the relief of return of Rs.11,000/- paid as earnest money with interest. Hence the present appeal is filed by the appellant.

(3.) ASSUMING that the agreement for sale was a genuine agreement for sale and that the immovable property was intended to be so, the appellant, who is the purchaser, has in law to show that he had been always ready and willing to perform his part of the obligations under the agreement for sale. The said document provided for payment of entire dues of M/s D.Champalal and Co. with interest before the completion of the conveyance, yet no effort has been made by the plaintiff's father to find out as to how much amount was due. The agreement for sale also provided for payment of municipal taxes to be made by the purchaser after the date of agreement for sale, yet no efforts are made to find out and even to pay the property tax payable to the Municipal Corporation. The agreement for sale further provided for obtaining of necessary permission under the Urban Land Ceiling and Regulation Act and yet no effort is made to apply for the same. The application is supposed to be a joint application by the purchaser as well as the vendor, yet no efforts were made by the appellant to call upon the 1st defendant to join him into making any such application. Lastly and significantly, although the agreement for sale provided that possession of the ground floor had been handed over to the appellant, the appellant's father in his evidence stated that the possession was taken back by the defendants very soon thereafter. However, no action has been taken by the appellant to take back possession. The suit is actually filed after more than two years of the agreement for sale. Significantly, the appellant's father in his evidence stated that the payment to M/s D.Champalal and Co. was to be made after the completion of conveyance. In fact, the clause dealing with the same categorically provided that it had to be made prior to the completion of the conveyance.