Prakash Dattatraya Tilak vs Shamlabai Dattatraya Karde (Deceased) through LRs. and Another

N.D. Vyas, J.—This is an appeal preferred by the original plaintiff against the judgment and order dated 31st October, 1985 passed by Civil Judge, Senior Division, Pune whereby the Trial Court dismissed the suit filed by the appellant. The Trial Judge directed the defendants to pay a sum of Rs. 11,000/- with interest to the plaintiff, but dismissed the suit for specific performance of agreement of sale dated 8th April, 1978. The Agreement for sale was in respect of the Government property situated at C.T.S. No. 105, Erandavana, Pune agreed to be sold for a price of Rs. 1,75,000/- out of which the appellant had, before the execution of the agreement of sale, paid Rs. 5,000/- and after the execution of agreement of sale Rs. 6.000/- on 14th April 1978. It was the plaintiff''s case that under the said agreement for sale, the 1st defendant, the owner of the said immovable property, had agreed to sell the said immovable property and the conveyance was agreed to be completed within six months, that the 1st defendant failed to carry out the obligations cast upon her under the agreement of sale and that therefore the appellant had become entitled to decree for specific performance. Alternatively, however, the appellant had prayed for damages and return of earnest money viz. Rs. 11,000/- with interest. The 2nd defendant, who is 2nd respondent before us, was joined as a party to the suit as being a confirming party to the agreement of sale. The 2nd respondent is the husband of the 1st respondent.

The defendants raised several pleas in their written statement. However, the main plea was that the agreement for sale was in fact not an agreement for sale of the immovable property in question but was a money-ending transaction in respect of which the property was given as a security and that the appellant was a money-lender. On the basis of the pleas taken, relevant issues were framed. Before the Trial Court, the evidence was led by one Dattatraya M. Tilak, father of the appellant since the appellant was a minor. On behalf of the defendants, evidence of 2nd defendant was led and also evidence of one Mujawar, the attesting witness to the agreement for sale, was led. The Trial Court by the impugned judgment and order gave a finding that although the execution of the agreement for sale could not be disputed, the document was not in fact an agreement for sale in respect of the immovable property, that the suit transaction was in fact a money-lending transaction, that the appellant had failed to prove part performance of the contract and that the appellant, was not ready and Willing to perform his part of the contract. However, while denying the relief of specific performance as prayed by the appellant, the Trial Court granted the relief of return of Rs. 11,000/- paid as earnest money with interest. Hence the present appeal is filed by the appellant.

The questions which require determination before us are two. Firstly whether the agreement is in fact an agreement for sale. Secondly, if it is so, whether the appellant was ready and willing to perform his part of the contract.

Taking the first question first, the agreement for sale provided inter alia that the appellant was to repay a sum of Rs. 89,000/- with interest to M/s D. Champalal and Co. before the conveyance was completed. It is specifically mentioned that the said immovable property in question had been mortgaged with the said firm and the said debt was undertaken to be cleared by the appellant before the conveyance got executed. The evidence of the plaintiffs father very clearly shows that no efforts were made by him to find out as to what was the exact amount payable to M/s. D. Champalal and Co. He has very clearly stated in his evidence that he made no enquiries either before the execution of the agreement for sale or even thereafter to find out the exact amount. The knowledge as to the property being mortgaged is evident in this clause. However, he has also admitted in his evidence that he made no efforts whatsoever to find out as to what the title deeds were and which were with M/s. D. Champalal and Co. with whom the property was mortgaged. Moreover, in his evidence he has also admitted that from his business as well as from the business of the plaintiff and his other relatives and family members, loans were advanced to several parties and interest was also charged and recovered. Although he had sought to give an explanation that all these transactions were friendly transactions, we are not satisfied at all with the explanation given by him. It is very clear that the plaintiff father who was managing the affairs of the minor plaintiff had been advancing moneys and earning interest thereon. The evidence of the 2nd defendant, the husband of the 1st defendant who was the owner of the immovable property, is also very clear on the point as it shows that the 1st defendant was indebted to several-parties in large sums of moneys and that the property was mortgaged with M/s . D. Champalal and Co. and a substantial amount with interest was due to be paid to the said firm. Even after the execution of the agreement for sale, a suit was filed by the said creditor and decree was also passed and in execution of the same, attachment was levied. However, as the defendants started making payments towards the decretal amount, the property could be saved from sale. The plaintiff appellant has made no efforts even at that time to find out as to what was the exact amount payable to M/s, D. Champalal and Co. Moreover, the appellant''s father admitted in his evidence that no investigation with the Registrar of Assurances was made in order to find out whether there was any other encumbrance in respect of the said immovable property. The total effect, thus, is that the 1st defendant being in need of money, being indebted to several persons and the property also being encumbered with M/s. D. Champalal and Co. secured moneys as loan from the appellant and the agreement for sale was executed only by way of securing the payment of the said amount back.

Assuming that the agreement for sale was a genuine agreement for sale and that the immovable property was intended to be so, the appellant, who is the purchaser, has in law to show that he had been always ready and willing to perform his part of the obligations under the agreement for sale. The said document provided for payment of entire dues of M/s. D. Champalal and Co. with interest before the completion of the conveyance, yet no effort has been made by the plaintiffs father to find out as to how much amount was due. The agreement for sale also provided for payment of municipal taxes to be made by the purchaser after the date of agreement for sale, yet no efforts are made to find out and even to pay the property tax payable to the Municipal Corporation. The agreement for sale further provided for obtaining necessary permission under the Urban Land Ceiling and Regulation Act and yet no effort is made to apply for the same. The application is supposed to be a joint application, by the purchaser as well as the vendor, yet no efforts were made by the appellant to call upon the 1st defendant to join him into making any such application. Lastly and significantly, although the agreement for sale provided that possession of the ground floor had been handed over to the appellant, the appellant''s father in his evidence stated that the possession was taken back by the defendants very soon thereafter. However, no action has been taken by the appellant to take back possession. The suit is actually filed after more than two years of the agreement for sale. Significantly, the appellant''s father in his evidence stated that the payment to M/s. D. Champalal and Co. was to be made after the completion of conveyance. In fact, the clause dealing with the same categorically provided that it had to be made prior to the completion of the conveyance.

A reliance was placed by Shri Pai, learned Counsel appearing for the appellant, on two letters signed by the defendants at Exhs. 54 and 55. The first letter is dated 4th October, 1979 whereby the 1st defendant had asked for 15 days'' time for completion of sale and by the second letter dated 26th January 1979 the defendants had promised to complete the transaction by 30th April 1979. It is true that these two letters are signed by the defendants but we do not wish to lay much importance on these two documents. It is obvious that moneys were advanced by the appellant and the defendants in fact asked for time for repayment and therefore the question of completion of conveyance did not arise at all.

In these circumstances, we do not see any infirmity in the judgment and order appealed against and we agree with the reasons and finding of the Trial Court. The appeal is therefore dismissed with costs.