The admissibility of an unregistered agreement as evidence of a contract in a suit for specific performance and the importance of proving readiness and willingness to perform the contract.

JUDGMENT

1. The appellants in this Appeal are the defendants in the Regular Civil Suit No.350 of 2001 filed by the plaintiff, specific performance of agreement of sale dtd. 14/6/2001 in respect of the property belonging to the defendant and which is alleged to have been agreed to be sold to the plaintiff for a consideration of Rs.70,000.00.

The Suit came to be decreed with costs and the defendants were directed to execute the sale transaction in favour of the plaintiff by accepting the amount of Rs.59,000.00 and perform his part of the contract. On the failure of the defendant no.1 to execute the sale transaction, liberty was given to the plaintiff to get the same executed through the Court.

2. Being aggrieved by judgment dtd. 10/3/2011, decreeing the Suit of the plaintiff, the defendants preferred Regular Civil Appeal No.38/2011 which was also dismissed by judgment dtd. 22/10/2018 at the hands of the District Judge-1 Vadunj. Being aggrieved, the present Second Appeal is instituted by the said appellants.

3. I have heard Shri Dilip Bodake for the appellant/original defendant and Advocate Sachin Punde for the respondent in the Appeal and original plaintiff.

4. The suit property is a parcel of land located in Mauje Yeoul, Taluka Khatav and the defendant, who agreed to sell, his 5 anna 4 pai share to the plaintiff resulted in execution of agreement of sale on 14/6/2001 for a consideration of Rs.70,000.00. The plaintiff paid earnest money of Rs.11,000.00 to the defendant no.1 and agreed to pay the balance within three months of the agreement of sale. The agreement being unregistered, the plaintiff pleaded that the possession of land was delivered to him on the same day and the defendant was to incur expenses of the sale deed. The plaintiff particularly pleaded that, on 2/7/2001, the plaintiff paid further sum of Rs.20,000.00 to the defendant no.1 and he was ready and willing to execute the sale transaction by paying remaining amount of Rs.59,000.00. In order to convey his readiness and willingness, he send a notice to the defendant no.1 on 3/8/2001 by Registered Post, extending his willingness to get the agreement executed and requesting the defendant no.1 to execute the transaction as per the agreement for sale. Accordingly, the plaintiff remained present in the Registrar's office on 13/9/2001 from 11.00 am, but despite notice being served upon the defendant no.1 on 5/9/2001, he failed to remain present and avoided to execute the transaction as per the terms and conditions to sell. The plaintiff claimed to have incurred an amount of Rs.15,000.00 to Rs.20,000.00 towards expenses in developing the suit land and in order to restrain the plaintiff from enjoying the fruits of the property, the defendant no.1 sold the suit land to one Shri Bhanudas Jadhav, thereupon the plaintiff amended the suit and impleaded him as defendant no.2. In the backdrop of the above pleadings, the plaintiff sought specific performance of the contract and a declaration, directing defendant no.1, to execute the sale transaction in favour of the plaintiff.

5. Both the defendants, to the Suit resisted the relief by filing their respective written statement at Exhibit 36 and 37 respectively.

The defendant no.1 denied the execution of agreement of sale in favour of the plaintiff and he also denied acceptance of earnest money as well as acceptance of Rs.20,000.00. He further denied to the delivery of possession, in view of the agreement of sale. By amending his pleading, defendant no.1 specifically pleaded alternatively, that if the Court comes to a conclusion regarding the agreement of sale dtd. 14/6/2001, since it was an unregistered agreement, coupled with possession and in terms of the said agreement, the plaintiff was liable to pay an amount of Rs.59,000.00 within three months and to get the sale transaction executed. However, since the plaintiff failed to pay the requisite amount during the prescribed period of three months and since defendant no.1 was in nee