Sunil K. Kotwal, J.

1. This appeal is directed against judgment and decree passed by Civil Judge, Senior Division, Aurangabad in Special Civil Suit No.26/2014. The appellants are original defendant Nos.4 to 6. Respondent No.1 is the plaintiff and respondent Nos.2, 3 and 4 are original defendant Nos.1 to 3 respectively.

2. Hereinafter the parties are referred in accordance with their status in original proceeding.

3. Shorn off unnecessary details, the facts leading to institution of this appeal are that the plaintiff filed suit for specific performance of contract for sale dated 18.01.2011, alleged to be executed by defendant No.1 in favour of plaintiff in respect of plot No.49 (CTS No.13158/6) admeasuring 344.5 sq. metrs. with two storied building standing thereon, described in para1 of the plaint (hereinafter referred to as “suit property”) and in the alternate for refund of earnest money with interest at the rate of 24% per annum from the date of agreement.

4. Plaintiff is a registered Firm. Defendant No.1 is the owner of suit property situated at Aurangabad. Plaintiff and defendant No.1 had cordial relations with each other. Therefore, after negotiations, on 18.01.2011, by executing written agreement of sale, defendant No.1 agreed to sell the suit property to the plaintiff for total consideration of Rs. 2,11,00,000/-( Rupees Two Crore Eleven Lakh), after receiving earnest amount of Rupees Two Crore under RTGS Cheque No.421714 dated 13.01.2011, which was credited in the account of Yog Industries, for which the brother of defendant No.1 namely Narendra Jadhav was acting as Managing Director. The balance consideration of Rs. 11,00,000/-( Rupees Eleven Lakh) was payable to defendant No.1 within the period of three months from the date of execution of agreement, at the time of execution of registered sale deed by defendant No.1 in favour of plaintiff, subject to compliance of required documentation by defendant No.1. However, defendant No.1 did not keep his word and did not execute registered sale deed of the suit property within prescribed time limit after compliance of necessary documentation, though the plaintiff was all along ready and willing to perform its part of contract. Therefore, the plaintiff served notice to defendant No.1 on 27/28 December 2013 and demanded execution of registered sale deed after receiving the balance consideration of Rs. 11,00,000/-. However, defendant No.1 did not pay any heed to that notice. Subsequently the plaintiff came to know that defendant No.1 played fraud and executed registered Development Agreement dated 25.04.2012 in favour of defendant No.2 and defendant No.1 also executed registered sale deed of the suit property in favour of defendant No.3 on 04.08.2011, for meager consideration. Therefore, the plaintiff was constrained to file suit for specific performance of contract against the defendants. Subsequently the plaintiff learnt that defendant Nos. 4 to 6 purchased the suit property from defendant No.3 at throwaway price, without making necessary inquiry and verifying concerned record. Therefore, they were also joined as defendant Nos.4 to 6 in the suit on 30.08.2016.

5. Contention of the plaintiff is that the suit property is in possession of defendant No.1, though in the agreement of sale it is mentioned that the possession was delivered to the plaintiff on the date of execution of agreement. Accordingly, plaintiff prayed for decree of specific performance of contract of sale and for possession of suit property. In the alternate plaintiff claimed for refund of earnest amount with interest at the rate of 24% per annum from the date of agreement.

6. Defendant No.1 countered the suit claim by filing written statement (Exh.39), by contending that his brother namely Narendra Jadhav was carrying out business in the style “Yog Industries” and at that relevant time he was in need of