The main legal point established in the judgment is the justification for refusing specific performance due to the property being subject to a pending dispute and lack of evidence for legal necessity, as well as the reduction of interest rate from 18% to 6% per annum.

JUDGMENT

Mangesh S. Patil, J. - Heard both the sides.

2. The appeals arise from the following set of facts :

(a) The appellant in Second appeals No. 832/2012 and 833/2012 is the original plaintiff whereas the respondent Prakash in Second appeal No. 832/2012 and respondent No. 1 in Second appeal No. 833/2012 is the defendant.

(b) The appellant averred that the respondent had agreed to sell the suit property by receiving Rs. 75,000/- towards earnest and executed an agreement of sale on 13.12.2000. It was agreed that the sale-deed was to be executed till 30.03.2001. He having refused to execute the sale-deed she filed the suit for specific performance.

(c) The respondent contested the suit and denied to have executed any agreement of sale and even about having received any earnest money.

(d) The Trial Court refused specific performance but granted the relief of refund of the earnest money and directed it to be refunded with interest at the rate of 18% per annum.

(e) Being aggrieved, both the sides that is the appellant to the extent of refusal of specific performance filed Regular Civil appeal No. 323/2006 and the respondent to the extent aggrieved by the rate of interest awarded by the trial court preferred Regular Civil appeal No. 330/2006.

(f) Both these appeals were decided by the common judgment and order under challenge.

(g) The appellate court confirmed the decree to the extent it refused specific performance of the contract but allowed the appeal of the respondent and reduced the rate of interest to 6% per annum. Hence the first two appeals.

3. Learned Senior advocate Mr. Hon would submit that the trial court was grossly in error in refusing specific performance on the sole ground that the respondent had already agreed to sell and had actually sold the suit property to respondent No. 2 Balbhim Sonba Tagad. Even the appellate court failed to appreciate such a lapse on the part of the trial court in refusing specific performance for this peculiar reason. In fact, such conduct of the respondent Prakash clearly demonstrates a collusion between him and respondent No. 2 Balbhim. He would further submit that in fact even respondent No. 2 Balbhim had also filed the suit seeking specific performance and both these suits were decided by the trial court on the same day and therefore it is not that the suit property was already sold by the respondent and was not available for being sold to the appellant. Both the courts below, therefore, have not exercised the discretion vested in them within the prescribed parameters of law and the observations and the conclusions drawn by them are perverse and arbitrary and give rise to substantial questions as indicated in the appeal memos.

4. The learned advocate would further submit that without there being any cogent and convincing reason, even the rate of interest awarded by the trial court has been unnecessarily reduced by the lower appellate court. Therefore, even to that extent, at least, the judgment and order of the lower appellate court deserves to be reversed.

5. Learned advocate Mrs. Dube for the respondent Prakash vehemently submitted that this being a second appeal, when the courts below have concurrently held the appellant to be not entitled to the discretionary relief of seeking specific performance, this court cannot reverse the findings of facts which are based on correct appreciation of the facts, circumstances and evidence.

6. The learned advocate would further submit that since the respondent No. 1 Prakash had already agreed to sell the suit property to the respondent No. 2 Balbhim by an agreement of sale which was first in point of time, even otherwise, the suit of the appellant for specific performance could not have been decreed.

7. She would further point out that even an independent suit (Regular Civil Suit No. 251/2003) for general partition was filed by all the heirs of the common ancestor Trimbak which included even the suit property in the present matter. The appellant Rukhminibai