Indira Banerjee JUDGMENT
Navin Sinha, J.
1. The Plaintiff assails correctness of the order allowing the second appeal of the Defendants. By the impugned order, the High Court set aside the concurrent orders of the courts below decreeing the Plaintiffs suit for specific performance.
2. The Plaintiff filed a suit for specific performance of agreement for sale dated 10.11.1989 with regard to 2/3rd of the lands owned by Defendants 1 and 2 as Defendant No. 3 declined to sign the agreement. Rs. 50,000/- was paid as earnest money and the balance consideration of Rs. 3,10,490/- was to be paid at the time of execution. The agreement provided for execution of the sale deed on or before 30.04.1990. The Trial Court decreed the suit holding that the Plaintiff had remained present in the office of the Sub-Registrar for registration of the sale documents on 30.04.1990, but Defendant Nos. 1 and 2 did not appear for execution. During the pendency of the proceedings, Defendant Nos. 1 and 2 sold the lands to Defendant Nos. 4 to 7 by three separate sale deeds dated 16.01.1991. The first appeal by the Defendants was dismissed holding that Defendant Nos. 4 to 7 were not bonafide purchasers. Thus, the present appeal.
3. Shri Amit Anand Tiwari, learned Counsel for the Appellant-Plaintiff, submitted that the High Court in a second appeal ought not to have interfered with a concurrent finding of fact that the Plaintiff was ready and willing to perform his part of the obligations under the agreement. Defendant Nos. 1 and 2 had failed to appear before the Sub-Registrar for execution on 30.04.1990. The Plaintiff never received the purported notices from Defendant Nos. 1 and 2 dated 28.05.1990 and 12.06.1990 requiring the Plaintiff to execute the sale deed on 25.06.1990. The subsequent sale to Defendants 4 to 7 has been held to be not bonafide, but a sham transaction. The Plaintiff had been granted extension of time for deposit of the balance consideration by the Trial Court till the disposal of the first appeal. The balance consideration was deposited after decision in the First Appeal. In the alternative, a submission was made that if the appeal is not to be allowed, Defendants 1 and 2 may be directed to pay the sum of Rs. 1,00,000/- to the Plaintiff comprising the earnest money plus damages as claimed in the suit.
4. Shri Ranjit Thomas, learned senior Counsel appearing for the Defendants-Respondents, submitted that the Plaintiff had failed to prove readiness and willingness to perform its obligations under the agreement. The Defendants were not put on notice for appearance before the Sub-Registrar on 30.04.1990. The notices dated 28.05.1990 and 12.06.1990 were sent by Defendants 1 and 2 through registered post at the correct residential address of the Plaintiff. The Plaintiff did not respond to the same because he did not have the capacity to perform his obligations under the agreement and failed to deposit the balance consideration within the two months' time granted by the Trial Court on 01.06.1994. The application for extension of time made after expiry of the time prescribed is sufficient evidence for the incapacity of the Plaintiff to perform his obligations demonstrating readiness and willingness. The High Court in se........