PANDURANG GANPAT TANAWADE Vs. GANPAT BHAIRU KADAM

JUDGEMENT

(1.) Special leave granted.

(2.) This appeal arises out of a suit filed by the appellant for specific performance under an agreement for sale of land by Smt. Janabai to the appellant.

(3.) Respondents Nos. 1, 3 and 4 are the sons of Smt. Janabai while respondent No. 2 is her daughter-in-law. On February 20, 1975 Smt. Janabai entered into an agreement for the sale of suit lands to the appellant under which the appellant agreed to purchase the land for Rs. 7000/-. A sum of Rs. 2,000/- was paid by the appellant to Smt. Janabai as earnest money. As per the agreement the balance amount was to be paid at the time of the execution of the sale deed. The case of the appellant is that on May, 5, 1976 he gave notice to Smt. Janabai to Execute the Sale deed. This appellant paid a further sum of Rs. 1000/- to Smt. Janabai on July, 30, 1976 and on August 20, 1977 a further amount of Rs. 800/- was paid to Maruti, the son of Smt. Janabai and husband of respondent No. 2. Thus the appellant paid a sum of Rs. 3,800/- towards consideration for the sale of the land under the agreement. The case of the appellant is further on March 13, 1978 after the death of Smt. Janabai, he sent a registered notice to the respondents calling upon them to execute the sale deed in favour of the appellant and since they failed to comply with the said notice, he filed a suit for specific performance of the contract in 1978. In the said suit of the appellant the Civil Judge, Junior Division, Karmala, by his Judgment dated December 10, 1982, declined to grant the relief of specific performance on the view that the transaction was only a money lending transaction and was not an agreement for sale of the land. The trial Court, however, granted a money decree of Rs. 3,000/- in favour of the appellant. On appeal the Vth Extra Assistant Judge, Solapur, by Judgment dated April 24, 1984, reversing the finding of the trial Court, held that transaction between the parties was an agreement to sell. The appellate Court, however, held that the appellant had not made necessary averments in the plaint as required in Form 47 of the Code of Civil Procedure as well as Section 16(c) of the Specific Relief Act and consequently the appellant was not entitled to a decree for specific performance. The appellate Court, therefore, maintained the decree of the trial Court denying the relief of specific performance and affirmed the decree for Rs. 3,800/- passed in favour of the appellant. The High Court, in Second Appeal, has agreed with the view of the appellate Court that there is non-compliance with the provisions of Section 16(c)(of the Specific Relief Act inasmuch as the appellant has not made a specific averment in the plaint that he was ready and willing to perform his part of the contract.