- (1.) This appeal arises out of the judgment of the Bombay High Court in Second Appeal No. 498 of 1992 in and by which the High Court affirmed the judgment of the First Appellate Court thereby dismissing the suit for specific performance filed by the appellant-plaintiff and directing the appellant-plaintiff to refund the earnest money. The unsuccessful plaintiff is the appellant before us.
(2.) The suit property was originally owned by the respondent(s) and he agreed to sell the suit property to the appellant by virtue of an agreement to sell dated 03.04.1973 for consideration of Rs. 3225/- and the appellant made the payment of advance of Rs. 3200/- and only the balance amount of Rs. 25/- was remained to be paid. As per the stipulation in the Agreement that the respondent(s) has to obtain necessary permission under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and execute the sale deed. As per the said clause, if the permission for sale is not obtained then the respondent(s) had to return earnest money of Rs. 2400/- and thereafter transaction between them shall be deemed to have been completed. The relevant clause in the agreement of sale (Exhibit 51) reads as under: "If permission for sale is not received then I will return earnest amount of Rs. 2400/- to him and thereafter the transaction between us shall be deemed to have been completed". The possession of the suit land was also given to the appellant-plaintiff on the date of Agreement to Sell.
(3.) The appellant-plaintiff had filed the suit for specific performance based on agreement of sale. The Trial Court by its judgment dated 10.09.1981 decreed the suit in favour of the appellant and held that the appellant has paid the consideration of Rs. 3200/- to the respondent and that the appellant was put in possession on the date of Agreement. The Trial Court by its judgment dated 10.09.1981 held that there was no necessity to obtain any permission under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The Trial Court held in favour of the appellant insofar as the readiness and willingness to perform the part of the contract and decreed the suit.;