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2025 Supreme(Bom) 649
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
HONBLE JUSTICE R. W. JOSHI
Vishnu Ramkrishna Doiphode - Appellant
Versus
Vitthal Bhau Doiphone, Deceased By His Heirs - Respondent
SECOND APPEAL NO.276 OF 1994
Decided On : 27-02-2025
Advocate Appeared:
Advocate for the Appellant: Mr. K. D. Bade Patil
Advocate for Respondent Nos.1(B) to 1(E):- Mr. V. D.Sapkal, Sr. Advocate, i/b Mr. S. R. Sapkal
Advocate for Respondent No.1 A: Mr. C. K. Shinde
The court ruled that the plaintiff's conduct and pleadings sufficiently demonstrated readiness and willingness to perform the contract, emphasizing that strict adherence to form in pleadings is not necessary.
Headnote:
(A) Specific Relief Act, 1963 - Section 16(c) - Second Appeal - Readiness and willingness of the plaintiff to perform his part of the contract - The plaintiff filed a suit for specific performance of contract, which was initially granted by the Trial Court but reversed by the First Appellate Court due to alleged deficiencies in pleadings - The court held that the plaintiff's conduct and pleadings sufficiently demonstrated readiness and willingness to perform the contract, and that the First Appellate Court adopted a hyper-technical approach in its interpretation - The plaintiff had paid a substantial part of the sale consideration and made repeated requests for execution of the sale deed - The court restored the decree for specific performance. (Paras 25, 24, 13, 6, 5, 4, 3, 2)
(B) Pleadings - Interpretation - The court emphasized that pleadings should be interpreted in a manner that serves justice, rather than adhering strictly to form. (Paras 9, 12, 20)
(C) Discretion of Court - The court noted that the discretion exercised by the Trial Court in granting specific performance should not be interfered with unless it is shown to be exercised contrary to law. (Paras 24, 25)
JUDGMENT :
1. The present Second Appeal is admitted vide order dated06.09.1995 on the following substantial question of law:-
(i) Whether readiness and willingness of the plaintiff to perform his part of the contract is not evident from his conduct and his pleading is substantial question of law.
2. The appellant is the original plaintiff. He had filed a suit for specific performance of contract against the defendant being Regular Civil Suit No.130 of 1980. Likewise the defendant had also filed a suit being Regular Civil Suit No.40 of 1981 against the plaintiff seeking cancellation of the agreement for sale. Learned Tribunal has decided both the suits together by consolidating them and recording common evidence. Both the suits are decided by common judgment dated 06.08.1984. The learned Trial Court has granted decree for specific performance in favour of plaintiff and has dismissed the suit for cancellation of agreement filed by the defendant. Aggrieved by the said decrees passed against him, the defendant filed two separate appeals being Regular Civil Appeal No.374 of 1984 challenging the decree for specific performance of contract passed in Regular Civil Suit No.130 of 1980 and Regular Civil Appeal No.432 of 1984 challenging the decree dismissing Regular Civil Suit No.40 of 1981 which was filed for cancellation of agreement. The learned First Appellate Court has partly allowed Regular Civil Appeal No. 374 of 1984 by substituting decree for specific performance of contract with a decree for refund of sale consideration of Rs.3,000/- with interest. As regards Regular Civil Appeal No.432 of 1984, the appeal is dismissed. In such circumstances, the present appeal is filed by the original plaintiff challenging judgment and decree passed in Regular Civil Appeal No.374 of 1984 whereby decree for specific performance of contract came to be refused and decree for refund of part sale consideration which was paid is granted. It will be pertinent to mention that the defendant has not challenged decree passed in Regular Civil Appeal No.432 of 1984 which came to be dismissed.
3. The plaintiff and defendant have entered into agreement for sale dated 04.11.1977 with respect to suit property for a consideration of Rs.11,725/-. It is necessary to mention that the plaintiff had earlier advanced a sum of Rs.5,000/-, initially a sum of Rs.4,000/- followed by an amount of Rs.1,000/- to the defendant. The defendant has executed two documents of mortgage by conditional sale dated 26.03.1974 for a sum of R.4,000/- and 10.05.1974 for a sum of Rs.1,000/-. On 04.11.1977 i.e. the date of agreement for sale the plaintiff had paid a sum of Rs.2,500/- to the defendant. Amount of Rs. 5,000/- paid earlier in the year 1974 was also treated as a part of sale consideration. Thereafter, the plaintiff has paid a sum of Rs.500/- to the defendant on 31.01.1978 which is also admitted by the defendant. It must also be mentioned that the case of the defendant as regards the agreement to sale dated 04.11.1977 is that the said agreement was executed as a collateral security for repayment of loan of Rs.7,500/- and that the said agreement for sale was never intended to be acted upon. In other words, the case of the defendant is that the agreement for sale dated 04.11.1977 is a sham document which was created in order to camouflage the loan transaction.
4. The plaintiff claims that he had tried to contact the defendant on several occasions requesting him to sell the suit property in compliance of the aforesaid agreement. However, since the defendant avoided to execute the sale deed, the plaintiff issued a notice dated 25.05.1978 calling upon the defendant to receive the balance sale consideration and to execute the sale deed with respect to suit property in his favour.
5. Since the defendant did not execute the sale deed the plaintiff has filed suit for specific performance of contract against the defendant being Regular Civil Suit No.130 of 1980. After the said suit was filed t
