BAPU HARI PATIL Vs. LAHU LAKHU PATIL

JUDGEMENT

(1.) THE question involved in this Second Appeal is whether the appellant was ready and willing to perform his part of the agreement or not.

(2.) A few facts are required to be stated. Block No.67 situated at Village Patekarwadi in Karvir Taluka, District Kolhapur was owned by the appellant. On 22nd August, 1978, be executed a mortgage by conditional sale (Exhibit 79) for an amount of Rs. 12,200.00 in favour of the respondent. The said registered document itself mentioned that the appellant can repay the amount within two years and four months and the respondent shall reconvey the suit property. On the same date, there was a separate agreement to reconvey the suit property providing that in case the appellant repays the amount within two years and four months, the respondent shall reconvey the property to the appellant. It is the appellant's further case that on 20th June, 1979, he has paid Rs. 6,000.00 to the respondent but no receipt was issued by him. The appellant issued a notice (Exhibit 83) dated 5.11.1980 stating that though he has paid the amount of Rs. 6,000.00 earlier, he is prepared to pay the entire amount of Rs. 12,200.00 to Respondent. The appellant called upon the respondent to accept the same and execute the re-conveyance. The said notice was received by the respondent but no reply was sent. Thus, this notice itself was issued before the expiry of two years and four months. The appellant also filed suit for specific performance of the agreement and to get the reconveyance on 29.11.1980. The suit was also filed before the expiry of the stipulated period (it was to expire on 21st December, 1980). Even in the plaint, the appellant has stated that he was prepared to deposit the entire amount of Rs. 12,200.00 inspite of his contention that he has earlier paid an amount of Rs. 6,000.00 to the respondent. The appellant also filed an application in the trial Court praying that he may be permitted to deposit an amount of Rs. 12,200.00. The learned Judge passed the order on 30th January, 1981. The appellant deposited the entire amount of Rs. 12,200.00 in the trial court. The learned trial Court Judge came to the conclusion that the appellant was ready and willing to perform his part of the contract and decreed the suit. The said decree came to be reversed by the appellate Court on the ground that the appellant has failed to prove that he has paid the amount of Rs. 6,000.00 on 20th June, 1979 and hence appellant was not ready and willing to perform his part of the obligation. The same is assailed here. I find that the learned Judge has totally failed to consider all other aspects. The appellant had issued the notice (Ex. 83) before the expiry of two years and four months and has not only expressed to pay the balance amount of Rs. 6,200.00, but he has stated that the would pay the entire amount of Rs. 12,200.00. This was without prejudice to his contention that he has already paid the amount of Rs. 6000.00 and for which the respondent has not issued the receipt. The learned Judge has clearly committed an error in saying that the appellant only offered the balance amount of Rs.6,200.00 Admittedly, no reply was given to this notice by the respondent. Therefore, there was no other alternative for the appellant but to file the suit for specific performance. Even the said suit came to be filed by the appellant within a period of two years and four months. Immediately after the filling of the suit, he made an application seeking permission to deposit the entire amount of Rs. 12,200.00. The Court passed the order on 30.1.1981 and the appellant deposited the entire amount of Rs. 12,200.00 in the trial Court. The period of two years and four months was to expire on 21st December, 1980 and the deposit came to be made on behalf of the appellant, after seeking the order from the Court, on 30.1.1981. This clearly showed that the appellant was ready and willing to perform his obligation and there was absolutely no reason whatsoever for the learned appellate Judge to disturb the finding recorded by the trial Court.

(3.) CERTIFIED copy expedited.