(1.) This Letters Patent Appeal is directed against the judgment and order of learned Single Judge of this Court in First Appeal No.953/1980 (First Appeal No.757/1989), wherein the judgment and decree passed by the Civil Judge, Senior Division, Ahmednagar in Special Civil Suit No.220/1976 was quashed and set aside and instead, decree for specific performance of the suit property was passed. Being aggrieved with this judgment and order, the original defendant No.1 filed Letters Patent Appeal No.17/1991, challenging the judgment and order passed in First Appeal No.953/1980 (First Appeal No.757/1989). On 2.5.2003, Letters Patent Appeal No.17/1991 was allowed only on the ground that the suit is not within limitation. Being aggrieved, the plaintiff filed Civil Appeal No.7456/2003 before the Hon'ble Supreme Court. On 15.12.2016, the Hon'ble Supreme Court allowed the Civil Appeal No.7456/2003, stating that the suit is not barred by limitation and remanded the matter to this Court by deciding the other issues.
(2.) Facts in nutshell are that, the plaintiff filed Special Civil Suit No.220/1976 against the defendants No.1 to 5 for specific performance of contract of sale dated 22.1.1972, and in the alternate, for refund of earnest amount paid to the defendants. The agricultural land bearing Survey no.69 (Gat No.71), admeasuring 11 acres and 1 guntha, situated at village Mhatarpimpri, Taluka Shrigonda, District Ahmednagar together with well, electric motor pump and right to take water from the well situated in Gat No.72 is the suit property. Defendant no.1 is brother of plaintiff. Defendant No.2 is mother of defendant No.1 and defendants No.3 to 5 are minor sons of defendant No.1, who ere represented by their mother Ashabai Pandit Wable. Defendant No.1 was in need of money for payment of loans borrowed from Society as well as from Scheduled Banks. Therefore, on his request, on 22.1.1972, written agreement of sale was executed by defendants No.1 to 5 in favour of plaintiff and agreed to sell the suit land for total consideration of Rs.40,000/-. The registered sale deed was to be executed within three months from 22.1.1972. On the date of agreement, amount of Rs.32,200/- was paid to the defendants and out of this amount, amount of Rs.13,751/- was paid to Co-operative Credit Society, Mhatarpimpri, amount of Rs.2096/- was paid to the Union Bank of India, amount of Rs.4900/- was paid to the Ahmednagar District Co-operative Land Development Bank and amount of Rs.3394/- was paid for satisfaction of the decree passed against defendant No.1. The balance amount of Rs.7800/- was to be paid at the time of registration of the sale deed. Possession of the suit land was handed over to the plaintiff on the date of agreement of sale. However, at that relevant time, plaintiff used to stay at Bombay with her children, and taking advantage of this fact, defendant No.1 tried to raise loan from various agencies. Plaintiff was always ready and willing to perform her part of the contract. However, defendants avoided to execute the sale deed despite repeated requests by plaintiff. On 29.1.1972, plaintiff issued public notice in respect of execution of agreement of sale, calling objections from third persons as defendants were not ready to execute registered sale deed after receiving the balance consideration of Rs.7800/-, plaintiff was constrained to file the suit for specific performance of contract of sale.
(3.) By filing written statement Exhibit 21 and Exhibit 36, defendant No.1 countered the suit claim contending that the agreement of sale dated 22.1.1972 was in the nature of security of loan of Rs.32,200/- borrowed from the plaintiff to wipe off liabilities that were incurred by the defendants. Defendant No.1 has repaid amount of Rs.27,500/- to the plaintiff out of the said loan. Even possession of the suit land was never delivered to the plaintiff.