2024:BHC-AS:1769 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 289 OF 2023 Vijay Madhavrao Budhale Age: 58 years, Occ.Industrialist R/o. Plot No. 93, R.K. Nagar, .....Appellant Kolhapur.

(Orig.Plaintiff)

V/s.

Bhagoji Ganu Kamble Age: 68 years, Occ.Agriculture R/o. Lakhamapur, Tal. .....Respondent Gaganbawada, Dist. Kolhapur.

(Orig.Defendant)

WITH INTERIM APPLICATION NO. 7762 OF 2023 (for intervention)

IN SECON APPEAL NO. 289 OF 2023 Vijay Madhavrao Budhale Age: 58 years, Occ.Industrialist R/o. Plot No. 93, R.K. Nagar, Kolhapur. .....Appellant (Orig.Plaintiff)

V/s.

1. Bhagoji Ganu Kamble Age: 68 years, Occ.Agriculture R/o. Lakhamapur, Tal. .....Respondent Gaganbawada, Dist. Kolhapur.

(Orig. Defendant)

2. Pravin Laxman Kesarkar ..Proposed. Respondent …

Mr. Shriram S.Kulkarni i/b Mr. Sujay Palshikar and Mr. Ronak Vankalas, for Appellant.

Mr. Chetan Chothani a/w Mr. Aastha Desai, for Respondent.

Ms. Manjiri Parasnis, for Intervener.

...

CORAM : SANDEEP V. MARNE, J.

DATED : 10 JANUARY 2024 JUDGMENT:

A. THE CHALLENGE

1. The Second Appeal is fled challenging the Judgment and Decree passed by the District Judge-4, Kolhapur on 24 November 2022 allowing Regular Civil Appeal No. 54 of 2022 and reversing the Decree dated 2 March 2022 passed by the Civil Judge Senior Division, Kolhapur in Regular Civil Suit No. 505 of 2019.

B. SUBSTANTIAL QUESTIONS OF LAW

2. The Second Appeal is admitted on following substantial questions of law:

(i) Whether limitation under Article 54 of the Limitation Act would begin from the date of oral refusal to perform a contract before occurrence of the contingency, on which performance of contract depends?

(ii) Whether co-owners of property who are confrming parties to agreement for sale are necessary parties in a suit for specifc performance of that agreement?

(iii) Whether Plaintif is entitled to protection of possession under Section 53-A of the Transfer of Property Act, 1882?

(iv) Whether discretionary relief of specifc performance can be granted in Plaintiffs favour?

(v) Whether alternate relief of refund of earnest money with interest can be granted in favour of Plaintif?

3. The learned counsel have placed on record compilation of relevant documents. Considering the narrow controversy involved in the appeal and with the consent of the learned counsel appearing for parties, who have extensively canvassed their submissions before me, the Second Appeal is taken up for fnal hearing.

C. FACTS

4. Narration of brief factual background of the case would be necessary for better understanding of formulation of the above questions of law and for answering them. Suit property bearing Gat No.54 Hissa No.2A admeasuring 2 Hectares 7 Ares was owned and possessed by the Defendant. A registered Agreement for Sale dated 14 March 2011 came to be executed, by which the Defendant agreed to sell the suit property to the Plaintif for consideration of Rs.2,00,000/. Out of the said agreed amount of consideration, Plaintif paid to the Defendant, amount of Rs.1,75,000/- and agreed to pay the balance consideration of Rs. 25,000/- at the time of execution of the Sale-Deed. The Agreement for Sale contained a stipulation that prior permission of the Government Authorities was needed for sale transaction and that the Defendant was to procure such permission and give a written intimation to the Plaintif and after one month of receipt of intimation, the Sale-Deed was to be executed. It is Plaintiffs case that since 80% of the consideration was paid at the time of execution of Agreement for Sale, Defendant handed over possession of the suit property to the Plaintif by executing a separate possession receipt executed on 14 March

2011.

5. Since the Defendant failed to execute the Sale-Deed in favour of the Plaintif, Notice dated 29 December 2018 was issued to the Defendant at the behest of the Plaintif calling upon the Defendant to execute the Sale-Deed by accepting the balance amount of consideration. As the Defendant failed to ac