SHALI CHANDRAKANT PILGAONKAR Vs. GAJANAN SHANKAR SHIRODKAR

JUDGEMENT

(1.) THE following substantial questions of law arise for determination in this appeal: - (i) In a suit for specific performance, whether the averment concerning 'readiness and willingness' is a mere technicality or the same forms a part of substantive law, thereby going to the root of the maintainability of the suit? (ii) Whether the First Appellate Court could have refused to adjudicate on the issue of suit being undervalued merely on the basis of concession by the Advocate for the party, inspite of the fact that the Trial Court had rejected the plaint on the said ground.

(2.) THE undisputed facts in the case are that on 19th December, 1984 the original defendants by name Gopi Baban Naik and Kalyan Gopi Naik executed an agreement for sale with the respondent/plaintiff thereby agreeing to sell to the respondent an area of 24,200 sq. mts. of the property known as 'Vazem' situated at Shiroda bearing Survey Nos. 464/1 and 464/2 paying Rs. 10,000/ - Rupees ten thousand only) as earnest money out of the total consideration payable under the agreement. In terms of the said agreement, the respondent was required to pay the balance amount and the original defendants were required to execute the Sale Deed within a period of six months from the date of the agreement.

(3.) THE respondent examined himself as P.W. 1 and one Arjun Naik as P.W. 2 in support of his case, whereas the appellants examined appellant No. 1 as D.W.I in support of their defence. The Trial Court dismissed the suit holding that the respondent himself was avoiding to perform his part of the contract by not paying the balance amount as the payment of balance amount was condition precedent for execution of the Sale Deed, that though by way of amendment the respondent has averred about his readiness to perform his part of the contract, he had failed to aver about his willingness to perform the obligations under the said agreement, that the suit ought to have been valued in terms of Section 7(x)(a) of the Court Fees Act and having not done so, the suit was undervalued and that the execution of the Sale Deed being demanded before payment of balance amount, there was no cause of action for filing the suit and therefore the suit was premature.