RAVISHANKAR MULCHAND KHANDELWAL Vs. SADULAL JAGAON LILHARE

JUDGEMENT

(1.) By this second appeal, the appellant challenges the judgment passed by the Additional District Judge, Gondia, on 19th July, 1996 in Regular Civil Appeal No. 22/1992 whereby the judgment and decree passed in favour of the appellant by the trial Court on 29/1/1992 was reversed.

(2.) Few facts giving rise to the second appeal are stated thus- The appellant is the original plaintiff. According to the plaintiff, the defendant agreed to sell the field property admeasuring 1.88 acres from village Pandharabodi to the plaintiff by an agreement of sale dated 26/7/1976 for a consideration of Rs. 6,000/-. It was pleaded that the plaintiff paid Rs. 1200/- to the defendant as an earnest amount and agreed to pay the remaining amount of Rs. 4,800/- at the time of execution of the sale deed. The sale deed was to be executed on or before 31st March, 1977. According to the plaintiff, the defendant had agreed to obtain permission as required under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, from the Sub Divisional Officer, Gondia. It was then pleaded by the plaintiff that the defendant failed to obtain the permission and execute the sale deed in favour of the plaintiff, as agreed. Since the defendant avoided to perform his part of the contract on one pretext or the other, the plaintiff issued a legal notice to the defendant on 17/7/1979. In spite of the notice, the defendant did not execute the sale deed and hence a suit was filed for grant of a decree for specific performance of contract or in the alternative, refund of amount of Rs. 1200/- along with interest @ Rs. 1.50 paise per month from the date of agreement.

(3.) The defendant resisted the claim of the plaintiff by filing his written statement. He denied the agreement dated 26/7/1976. He further denied that he had received an amount Rs. 1200/- towards the earnest amount. The defendant also denied that he had agreed to obtain the permission from the Sub Divisional Officer and to execute the sale deed by 31st March, 1977. The defendant then denied that the plaintiff was ready and willing to perform his part of the contract. The defendant pleaded that the plaintiff was a money-lender and was carrying the business of money-lending without licence. According to the defendant, he was in need of money for carrying out the plantation operation of paddy in the year 1976 and for the aforesaid purpose the plaintiff agreed to advance an amount of Rs. 400/- to the defendant on executing an agreement of sale. Since the defendant was badly in need of money, the alleged agreement of sale dated 26/7/1976 was executed towards the security for the loan of Rs. 400/- advanced by the plaintiff to the defendant. It was further pleaded by the defendant that the defendant had repaid the amount to the plaintiff and asked the plaintiff to return the agreement of sale, but the plaintiff denied to return the document and instead filed the suit for specific performance of contract. The defendant, therefore, sought for the dismissal of the suit.