Friday, 28 October 2016

How to appreciate evidence in suit for specific performance of contract?

The provision clearly indicates that when an obligation
enforceable by law is created, the party under the obligation cannot
be   allowed   to   escape   from   it   on   flimsy   excuse   especially   in   a
transaction   wherein   a   promise   is   made   to   transfer   valuable
immovable property.
25. There   must   be   proof   of   a   proper   explanation   or
justification from the defendant to avoid the agreement or for the
delay that has occurred to execute the sale deed in favour of the
plaintiff.   In   the   aforesaid   manner,   the   burden   lies   on   both   the
parties to prove their respective contentions. True it is that, specific
performance of a contract is an equitable relief and equity of both
the   sides   has   to   be   weighed.   Prices   of   immovable   property   do
escalate.   As   a   general   rule,   one   cannot   say   that   ordinarily   the
plaintiff cannot be allowed to have, for him alone, the  entire benefit
of phenomenal increase of the value of the suit property during the
pendency of the litigation. While balancing the equities, one of the
consideration to be kept in view is as to who is the defaulting party.
It is also to be borne in mind whether any party is trying to take

undue advantage over the other party as also the hardship that
may be caused to the defendant by directing the relief of specific
performance. There may be other circumstances upon which parties
may not have any control. Totality of the circumstances in the case
is required to be seen. Ordinarily, as of rule, the relief of specific
performance  ought   to  be  granted  and  only    rarely   the  relief  of

specific   performance   is   to   be   denied.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.218 OF 2000
Purushottam S/o Devidas Bhoyar,
             V
 Sau. Sheelabai W/o Kishor Shrungare,
   
CORAM : A. P. BHANGALE, J. 
DATED : September 10, 2015
Citation:2016(3) ALLMR105


1. Heard learned counsel for the rival parties.

2. By this second appeal, the appellant­plaintiff has sought
to challenge Judgment and Order dt.4.9.1999 passed by learned
District Judge, Yavatmal in Regular Civil Appeal No.112 of 1995
whereby the decree for specific performance of the suit agreement
passed in favour of the appellant­plaintiff by Judgment and Order
dt.30.6.1995   by   learned   Civil   Judge   (Sr.Dn.),     Ner,   District
Yavatmal  in  Regular   Civil  Suit   No.57   of  1993   was   modified   by
refusing specific performance of the agreement to sell and granting
merely refund of the earnest money with interest.
3. The facts of the case stated, are thus :
On 23.2.2004, this Second Appeal was admitted on the
following substantial question of law  :
Whether the First Appellate Court is wrong in
setting aside the findings of the trial Court on the
readiness   and   willingness   when   the   appellantplaintiff
was ready and willing to perform his part
of the contract and there was specific pleading in
the plaint?
The substantial question of law as stated above must be
answered in the affirmative for the following reasons :
4.  The dispute between the parties relates to agricultural
land bearing Survey No.33, total admeasuring 3H 23 R, situated at
village Udapur, Taluka Ner, District Yavatmal.  It is the case of the
appellant­plaintiff   that   respondent   No.1­defendant   and   her
deceased husband had agreed to sell southern portion of the said
land   admeasuring   1H   21R   to   the   appellant/plaintiff   by   an
agreement   to   sell   dt.7.4.1991   for   valuable   consideration   of
Rs.15,000/­.   The appellant­plaintiff had paid substantive part of
consideration in the form of earnest money in the sum of Rs.9,000/­
to respondents­defendants and balance amount of consideration in
the sum of Rs.6,000/­ was payable on 18.1.1992 when the parties
had agreed to execute the registered sale deed.  Thus, agreement to
sell   was   entered   into   (Exh.45).     It   is   the   case   of   the
appellant/plaintiff   that   he   had   gone   to   the   Office   of   the   Sub
Registrar,   Ner,   District   Yavatmal   on   19.1.1992.     The   appellantplaintiff
  had   purchased   the   Stamp   Paper   (Exh.46)   to   show   his
presence   in   the   Office   of   Sub   Registrar,   Ner   to   execute   the
registered   sale   deed   as   agreed   between   the   parties,   but   the
respondents­defendants   did   not   turn   up   in   the   Office   of   Sub
Registrar to execute the registered sale deed as agreed.  
5.  On the next day, the appellant­plaintiff went to the house
of respondents­defendants to question them about their absence for
execution of the registered sale deed as agreed. At that time, the
respondents­defendants   assured   that   they   would   execute   the
registered sale deed within 8 to 12 days.   The appellant­plaintiff
waited   and   since   there   was   no   response   from   the   respondentsdefendants,
  the   appellant­plaintiff   served   notice   dt.21.4.1993
(Exh.47) calling upon the respondents­defendants to appear in the
Office   of   the   Sub   Registrar   on   30.4.1993   and   to   execute   the
registered sale deed as agreed between the parties.  
6 Accordingly,   on   the   date   appointed,   the   appellantplaintiff
though attended the Office of the Sub­Registrar again on
30.4.1993 and also purchased Stamp Paper to show his presence in
the   Office  of  the  Sub   Registrar   to   get   the  registered   sale  deed
executed   as   agreed   between   the   parties,   but   the   respondentsdefendants
did not turn up even on that extended date.   Thus,
ultimately, with no other alternative left for the appellant­plaintiff,
he   was   constrained   to   file   the   suit   for   specific   performance   of
contract  to insist upon execution of the  registered  sale deed  as
agreed or in the alternative, refund of the earnest money along
with interest accrued thereupon.
7. Regular   Civil   Suit   No.57   of   1993   was   instituted   on
1.10.1993 after the respondents­defendants by their reply (Exh.57)
dt.31.5.1993, acknowledged on 3.6.1993 by the appellant­plaintiff,
refused to execute the registered sale deed as agreed between the
parties.  Regular Civil Suit No.57 of 1993 instituted in the Court of
learned Civil Judge (Jr.Dn.), Ner, District Yavatmal was decided by
Judgment   and   Order,  dt.30.6.1995.     Learned   Judge  of   the  trial
Court found that the respondents­defendants had entered into the
agreement to sell dt.7.4.1991 in respect of the aforesaid agricultural
land admeasuring 1H, 21R out of agricultural land bearing  Survey
No.33, total admeasuring 3H, 23 R, situated at village Udapur,
Taluka Ner, District Yavatmal.   Learned Judge of the trial Court
further found that the appellant­plaintiff had proved payment of
earnest money in the sum of Rs.9,000/­ pursuant to the agreement
to sell dt.7.4.1991 and that the appellant­plaintiff was ready and
willing to perform his part of the contract in the said agreement to
execute the registered sale deed.
8. The defence put up by the respondents­defendants was
that the suit transaction is in the nature of security for loan and
that   the   appellant­plaintiff   does   a   money   lending   business   and
furthermore that the respondents­defendants have the only source
of income from the agricultural land.  After recording the evidence
led by the parties and hearing the parties, findings in favour of the
appellant­plaintiff were recorded and the suit was decreed with
costs.   In the result, the respondents­defendants were directed to
execute the registered sale deed of the suit property admeasuring
1H, 21R in favour of the appellant­plaintiff within three months
from the date of the decree at the costs of the appellant­plaintiff.
The appellant­plaintiff was directed to deposit remaining amount of
Rs.6,000/­ of consideration agreed within three months from the
date of order in the Court and the amount was directed to paid to
the respondents­defendants upon execution of the registered sale
deed.     The   trial   Court   also   directed   that   if   the   respondents­
defendants fail to execute the registered sale deed, the appellantplaintiff
is entitled to get it executed through the Court.
9. Shri Amol Mardikar, learned counsel for the appellantplaintiff,
  submits   that   the   unsuccessful   respondents­defendants
preferred First Appeal before the learned District Judge, Yavatmal
being Regular Civil Appeal No.112 of 1995.   Learned Appellate
Judge too found that the respondents­defendants had agreed to sell
the suit property and that the appellant­plaintiff had paid earnest
money   in   the   sum   of   Rs.9,000/­   to   the   respondents­defendants
pursuant   to   agreement   to   sale   dt.7.4.1991.     Learned   Appellate
Judge, however, held that the appellant­plaintiff was not always
ready and willing to perform his part of the contract.  In the result,
therefore, the decree for specific performance of contract granted by
the trial Court was set aside and instead, order was made merely
for the refund of the earnest money with interest at the rate of 15%
per   annum   by   way   of   damages   to   the   appellant­plaintiff   since
7.4.1991 till realization of the entire amount.
10. Learned Counsel for the appellant­plaintiff vehemently
submits that   learned  Appellate  Judge failed  to exercise  judicial
discretion in favour of the appellant­plaintiff, though, according to
him,   the   agreement   to   sell   was   proved   and   established   by   the
appellant­plaintiff and also he was and is always ready and willing
to perform his part of the contract.  
11.  Shri   Amol   Mardikar,   learned   Counsel   for   appellantplaintiff,
took me through the evidence led before the trial Court
and submits that the appellant­plaintiff in his deposition (Exh.44)
deposed   about   the   suit   transaction   of   agreement   to   sell   duly
executed by the respondents­defendants.   The appellant­plaintiff,
pursuant to the agreement to sell had attended the Office of the
Sub­Registrar and also purchased Stamp Paper on two occasions as
deposed, but despite agreement to sell, the respondents­defendants
avoided   to   execute   the   registered   sale   deed   in   favour   of   the
appellant­plaintiff.   The respondents­defendants were called upon
by notice dt.21.4.1993 (Exh.47) to execute the registered sale deed
in  favour   of  the  appellant­plaintiff,  but   despite  their   all  earlier
assurances  to  execute  the  registered   sale  deed   in  favour   of  the
appellant­plaintiff, they continued to avoid their liability to perform
their part of the contract to execute the registered sale deed in
favour of the appellant­plaintiff.  
12.  Shri Amol Mardikar, learned Counsel for the appellantplaintiff,
submits that there was no challenge by the respondentsdefendants
to the evidence of continuous readiness and willingness
to perform his part of the contract by the plaintiff in order to get
the registered sale deed executed in respect of the suit property.  It
is, therefore, submitted that the appellant­plaintiff was entitled to
insist   upon   specific   performance   of   the   contract   with   the
respondents­defendants   pursuant   to   which   substantial   part   of
consideration as agreed in the sum of Rs.9,000/­ was already paid
to the respondents­defendants and the balance consideration in the
sum of Rs.6,000/­ was to be paid on the date when the registered
sale deed was to be executed.   Shri Mardikar, learned Counsel,
criticised the Judgment and Order passed by the learned Appellate
Judge on the ground that there was no justification for the learned
First Appellate Judge to refuse to exercise judicial discretion in
favour   of   the   plaintiff;   particularly   when   the   respondentsdefendants
despite pendency of the appeal had intended to defeat
the suit by attempting selling the suit property in favour of one
Ramnath   Pandharinath   Vidhate   and   others   who   sought   to
interevene   in   the   present   appeal   on   the   ground   that   they   are
claiming under the respondents­defendants alleging that they are
subsequent purchasers from the respondents­defendants in respect
of the suit property.  According to Shri Mardikar, learned Counsel,
in view of Section 52 of The Transfer of Property Act, 1882, the
intervenors   claiming   to   be   subsequent   purchasers   under   the
respondents­defendants   have   no    locus   standi    as   such   to
participate in the hearing of the Second Appeal upon substantial
question of law for want of any privity of the contract between the
intervenors and  the  appellant­plaintiff.   Shri Mardikar, learned
Counsel, submits that the appellant­plaintiff is legally entitled to
insist upon execution of the registered sale deed pursuant to the
agreement   to   sell   executed   from   the   respondents­defendants.
Therefore,  substantial   question   of   law   ought   to  be   answered   in
favour of the appellant­plaintiff as it was wrong on the part of the
learned   Appellate   Judge   to   set   aside   the   findings   recorded   by
learned trial Judge based upon the evidence led by the parties and
the provisions of law under the Specific Relief Act, 1963.
13.  Shri Mardikar, learned Counsel, also refers to Sections
16(c) and 20 of the Specific Relief Act, 1963 in order to submit that
the appellant­plaintiff is entitled to the benefit of judicial discretion
to   insist   upon   execution   of   the   registered   sale   deed   from   the
respondents­defendants   pursuant   to   specific   performance   of
agreement to sell.
14.  Shri A.V. Bhide, learned counsel for  respondent  No.1­
defendant, opposes the submissions made by Shri Amol Mardikar,
learned Counsel for the appellant­plaintiff.   Shri Bhide, learned
Counsel,   submits   that   he   also   appears   for   the   intervenors   who
sought   to   intervene   on   the   ground   that   they   are   subsequent
purchasers from respondents­defendants.   According to him, the
appellant­plaintiff had failed to establish continuous readiness and
willingness to get the sale deed executed from the defendants.  
15. Shri Bhide, learned Counsel, has placed reliance on the
case of  J.P. Builders and another ..vs.. A. Ramdas Rao and
another, reported at (2001)1 SCC 429 in order to submit that the
appellant­plaintiff must plead and prove his continuous readiness
and willingness as condition precedent to insist upon the specific
performance of agreement to sell and failure to aver and prove such
continuous readiness and willingness on the part of the appellantplaintiff
  must   result   in   the   failure   of   the   suit   for   specific
performance   of   the   contract.   According   to   Shri   Bhide,   learned
Counsel,   the   purchasers    pendente   lite    are   not   bound   by   the
Judgment and Order by which the learned Appellate Judge had
refused to grant specific performance.
16.  Having heard the rival submissions and the substantial
question of law formulated, Section 52 of The Transfer of Property
Act, 1882 cannot be ignored which runs thus :
52.   Transfer   of   property   suit   relating   thereto   –
During   the   [pendency]   in   any   Court   having
authority [ [within the limits of India excluding the
State   of   Jammu   and   Kashmir]   or   established
beyond such limits] by [the Central Government]
{***]   of   [any]   suit   or   proceedings   which   is   not
collusive   and   in   which   any   right   to   immovable
property is directly and specifically in question, the
property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to
affect the rights of any other party thereto under
any decree or order which may be made therein,
except   under   the   authority   of   the   Court   and   on
such terms as it may impose.
[Explanation. ­ For the purposes of this section, the
pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the
plaint   or   the   institution   of   the   proceeding   in   a
Court of competent jurisdiction, and to continue
until the suit or proceeding has been disposed of by
a final decree or order and complete satisfaction or
discharge   of   such   decree   or   order   has   been
obtained, or has become unobtainable by reason of
the   expiration   of   any   period   of   limitation
prescribed for the execution thereof by any law for
the time being in force.
17.  Thus, pending disposal of the suit or the proceedings,
right to immovable property is directly and specifically in question;
the suit property cannot transferred or disposed of so as to affect
the   right   of   the   other   party   under   any   decree   or   order.     The
explanation   to   Section   52   of   the   Transfer   of   Property   Act   also
clarifies that  pendency of the suit  commences from  the date of
presentation of the plaint or the institution of the proceeding in a
Court of competent jurisdiction and to continue until the suit or
proceeding has been disposed of by a final decree or order and
complete satisfaction or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of
any period of limitation prescribed for the execution thereof by any
law for the time being in force.
18.  In   my   view,   the   respondents­defendants   in   the   suit
cannot   be   allowed   to   create   a   situation   whereby   right   of   the
appellant­plaintiff   in   the   suit   is   defeated   due   to   transaction
between the alleged subsequent purchasers and the respondentsdefendants.
    The   subsequent   purchasers   claiming   under   the
respondents­defendants   may   have   their   remedy   as   against   the
respondents­defendants to claim damages for breach of agreement,
if   any,   with   the   respondents­defendants,   but   such   subsequent
purchasers   claiming   under   the   respondents­defendants   in   the
absence of privity of contract with the appellant­plaintiff are not
entitled   to   defeat   otherwise   sustainable   decree   by   seeking   to
intervene and participate at the hearing of the second appeal.  That
being so, Civil Application No.2848 of 2004 for grant of permission
to add the subsequent purchaser as respondent preferred by the
appellant must be rejected with costs.  
19. Regarding   agreement   to   sell   which   is   executed   and
proved   between   the   appellant­plaintiff   and   the   respondentsdefendants,
in view of Section 16(c) read with Section 20 of the
Specific Relief Act, 1963, when the respondents­defendants have
denied their liability to execute the sale deed despite legal notice
issued from the appellant­plaintiff to them, it was clear that the
respondents­defendants were evasive to perform their part of the
contract to execute the registered sale deed, though the plaintiff
had attended the Office of the Sub Registrar on the appointed date,
defendants   failed   to   perform   their   part   of   the   contract.     The
appellant­plaintiff   had   approached   them   again   and   the
respondents­defendants   had   assured   the   appellant­plaintiff   to
execute the registered sale deed.  Since the respondents­defendants
had failed to comply with the same, the appellant­plaintiff issued
legal notice calling upon the respondents­defendants to execute the
registered sale deed, but they avoided by alleging money lending
transaction on the part of the appellant­plaintiff without adducing
any evidence to prove it.  The respondents­defendants dishonestly
tried to defeat the suit for specific performance by the appellantplaintiff.
 All these facts could not have been ignored by the learned
Appellate   Judge   who   refused   to   confirm   the   decree   for   specific
performance   of   the   contract   in   favour   of   the   appellant­plaintiff
despite the clear findings recorded by learned trial Judge upon
evidence led before it. The decree passed by the trial Court could
not have been brushed aside lightly.  The legal position cannot be
disputed that it is an ordinary rule that the specific performance of
contract ought to be granted when the appellant­plaintiff was ready
and willing to perform his part of the contract.   The appellantplaintiff
  had   parted   with   substantial   payment   of   consideration
agreed by paying earnest money and was/is  ready and willing to
perform his part of the suit agreement to sell.  
20.  In the case of R.C. Chandiok and another ..vs.. Chuni
Lal Sabharwal and others, reported at  1970(3) SCC 140,  the
Hon'ble Apex Court observed that the readiness and willingness
cannot be treated as a straight­jacket formula and issue has to be
decided keeping in view of the facts and circumstances relevant to
the intention and conduct of the party concerned.  This view was
also reiterated in the ruling of  P.D'souza ..vs.. Shondrilo Naidu,
reported at (2004)6 SCC 649.  It is true that continuous readiness
and willingness on the part of the appellant­plaintiff is a condition
precedent to grant the relief of specific performance.   Now, the
material   and   relevant   circumstances   which   are   required   to   be
considered   by   the   Court   whereby   the   appellant­plaintiff   led
evidence   about   his   persistence   of   readiness   and   willingness   to
perform his part of the contract, such evidence showing readiness
and   willingness   to   perform   his   part   of   the   contract   cannot   be
ignored.  It was not the case of the respondents­defendants that the
appellant­plaintiff   was   not   ready   and   willing   to   pay   balance
amount   of   consideration   which   he   was   required   to   pay   to   the
respondents­defendants.     The   respondents­defendants   wanted   to
defeat the suit on the ground that the appellant­plaintiff is money
lender   but   they   miserably   failed   to   prove   the   allegations   made
against the appellant­plaintiff.  The evidence led by the appellantplaintiff
in the facts and circumstances that he attended twice the
Office of  the Sub Registrar,  he  had  purchased stamp paper, he
waited for the respondents­defendants, he had again approached
the   respondents­defendants   on   next   day,   the   respondentsdefendants
  had   assured   the   appellant­plaintiff   that   they   would
execute   the   sale   deed,   but   they   did   not   comply   the   same   and
furthermore that the appellant­plaintiff was constrained to issue
legal   notice   and   despite   receipt   of   such   legal   notice,   the
respondents­defendants by their persistent conduct of evasiveness
refused to perform their part of the contract was totally ignored by
the learned Appellate Judge.  It is true that, under Section 20 of
the Specific Relief Act, 1963, it is the discretion of the Court to
grant   decree   for   specific   performance,   but   such   discretion   is   a
judicial discretion.  It cannot be arbitrary but must be sound and
reasonable   guided   by   judicial   principles.   There   cannot   be
unreasonable denial of equitable relief.
21.  It was the case where the appellant­plaintiff had averred
and established his readiness and willingness to perform his part of
the contract but the respondents­defendants continued to avoid to
execute   the   registered   sale   deed   on   some   pretext   or   the   other
pursuant  to the suit agreement to sell. Therefore, the   learned
Appellate   Judge   ought   not   to   have   refused   remedy   of   specific
performance of agreement to sell, as prayed for by the appellantplaintiff.
    The   averment   of   readiness   and   willingness   is   not   a
mathematical   formula.   There   was   evidence   that   the   appellantplaintiff
  was/is   all   along   ready   and   willing   to   abide   by   his
contractual   obligation   while   the   respondents­defendants
continuously were avoiding to perform their respective part of the
contract.   In   my   opinion,   the   appellant­plaintiff   was   entitled   to
insist upon specific performance of the suit agreement to sell. The
discretionary relief ought to have been granted in favour of the
appellant­plaintiff in the facts and circumstances of the case.
22.  Shri A.V. Bhide, learned Counsel, argues that there was
a delay on the part of the appellant­plaintiff to approach the Court
of learned Civil Judge (Jr.Dn.) within reasonable time.  However, it
was not the case of the respondents­defendants in the trial Court
that time was essence of the contract to execute the registered sale
deed as agreed between the parties.   The appellant­plaintiff was
ready   and   willing   to   perform   his   part   of   the   contract   within
reasonable time and looking to the circumstances including express
terms   of   the   contract   and   the   nature   of   the   suit   property,   the
appellant­plaintiff had approached the Court with clean hands and
was/is entitled for the relief of specific performance of the contract.
23.  Section 10 the Specific Relief Act reads thus:­
10. Cases in which specific performance of contract
enforceable.­   Except   as   otherwise   provided   in   this
Chapter,   the   specific   performance   of   any   contract
may, in the discretion of the court, be enforced­ 
    (a) when there exists no standard for ascertaining
the actual damage caused by the non­ performance of
the act agreed to be done; or 
       (b) when the act agreed to be done is such that
compensation   in   money   for   its   non­   performance
would   not   afford   adequate   relief.   Explanation.­
Unless and until the contrary is proved, the court
shall presume­ 
        (i)   that   the   breach   of   a   contract   to   transfer
immovable property cannot be adequately relieved by
compensation in money; and 
 
24. The provision clearly indicates that when an obligation
enforceable by law is created, the party under the obligation cannot
be   allowed   to   escape   from   it   on   flimsy   excuse   especially   in   a
transaction   wherein   a   promise   is   made   to   transfer   valuable
immovable property.
25. There   must   be   proof   of   a   proper   explanation   or
justification from the defendant to avoid the agreement or for the
delay that has occurred to execute the sale deed in favour of the
plaintiff.   In   the   aforesaid   manner,   the   burden   lies   on   both   the
parties to prove their respective contentions. True it is that, specific
performance of a contract is an equitable relief and equity of both
the   sides   has   to   be   weighed.   Prices   of   immovable   property   do
escalate.   As   a   general   rule,   one   cannot   say   that   ordinarily   the
plaintiff cannot be allowed to have, for him alone, the  entire benefit
of phenomenal increase of the value of the suit property during the
pendency of the litigation. While balancing the equities, one of the
consideration to be kept in view is as to who is the defaulting party.
It is also to be borne in mind whether any party is trying to take
undue advantage over the other party as also the hardship that
may be caused to the defendant by directing the relief of specific
performance. There may be other circumstances upon which parties
may not have any control. Totality of the circumstances in the case
is required to be seen. Ordinarily, as of rule, the relief of specific
performance  ought   to  be  granted  and  only    rarely   the  relief  of
specific   performance   is   to   be   denied.   In   the   present   case,   the
defendants were the defaulting party for delay that has occurred to
get   the sale deed executed as agreed   and the defendant   was
responsible for escalated cost of the registration, stamp duty and
increase to the current ready reckoner price at which the sale deed
is expected to be executed.  The increased expenses will have to be
borne by the plaintiff  as it is for the plaintiff to get the sale deed
executed at market price as applicable on the date of the sale deed.
In   my   opinion,   if   at   all   the   remedy   of   specific   performance   of
contract cannot be availed of, then only, the sum of damages may be
considered as an alternative. But it must be ensured that the sum
must be   sufficient and exemplary enough to discourage rampant
breach of obligation under the agreement to sell. In such cases,
damages  may be awarded  by way of grant of  higher interest, if for
any reason specific relief of performance cannot be granted, then
only the trial Judge may grant alternative relief of appropriate
damages. I, therefore, reject the argument of the learned Counsel
for the defendant­respondent that specific performance cannot be
granted and at the most, only damages should be awarded. This
was the case where the respondents­defendants tried to raise false
defences in order to avoid execution of the registered sale deed and
by their conduct, the respondents­defendants attempted to create
third party interest intending to defeat the fruits of the decree for
appellant­plaintiff even while the proceedings remained pending for
final decision before the Court. These facts could not have been
ignored by the learned Appellate Judge.  The evidence led on record
indicates that the appellant­plaintiff was not only ready but also
willing   to   perform   his   part   of   the   contract   in   order   to   get   the
registered sale deed executed in accordance with law.  That being
so, the second appeal succeeds.
 
26.  In view of above, the Second Appeal is allowed.   The
Judgment and Order dt.4.9.1999 passed by learned District Judge,
Yavatmal in Regular Civil Appeal No.112 of 1995 is set aside.   The
Judgment   and   Order   dt.30.6.1995   passed   by   the   learned   Civil
Judge (Jr.Dn.), Ner, District Yavatmal in Regular Civil Suit No.57
of 1993 is restored accordingly with a direction that registered sale
deed shall be executed for consideration at current market ready
recknor price of the suit land as applicable on the date of the sale
deed. In the event the plaintiff fails to get the sale deed executed
accordingly, the alternative prayer shall stand as decreed in terms
of refund of earnest money with interest at the rate of Rs.15 % p.a.
from the date of the suit till full repayment.
Decree accordingly with costs of the suit.
 
                                                                        JUDGE

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