SMT. CHITRALEKHA SUBHASH KHARPUDE AND ANRversusSHRI RAMDAS BABAN WAVHAL

2026:BHC-AS:37543

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                                 SECOND APPEAL NO.272 OF 2026
                                             WITH
                              INTERIM APPLICATION NO.6311 OF 2026

            Chitralekha Subhash Kharpude and Anr.             ...   Appellants
                  versus
            Ramdas Baban Wavhal and Anr.                      …     Respondents

            Mr. Pravin G. Pillay, for Appellants.

                                CORAM:      N.J.JAMADAR, J.

                                DATE :      9 SEPTEMBER 2026

            P.C.

            1.      Heard the learned Counsel for the Appellants.

            2.      This Second Appeal is directed against the judgment and decree dated

            18 November 2025 passed by the learned District Judge, Kalyan, in RCA

            No.107 of 2017 preferred by the Appellants – Original Defendants against the

            judgment and decree passed by the trial Court on 12 September 2017 in SCS

            No.423 of 2011.

            3.      By the impugned judgment and decree, the appeal preferred by the

            Appellants came to be dismissed by affirming the decree passed by the trial

            Court which, inter alia, directed cancellation of the Agreement for Sale dated

            28 February 2008 executed by the Respondents- Plaintiffs in favour of the

            Appellants – Defendants.

            4.      Under the said Agreement for Sale, the Defendants had agreed to sell


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Flat No.D-20, 4th Floor, Shiv Krupa Co-op. Co-operative Housing Society,

Dombivali (W) (the suit flat) to the Defendants for a consideration of

Rs.5,50,000/-. A sum of Rs.1 Lakh was paid towards the part consideration.

The Defendants allegedly failed to pay balance consideration and thereby

committed breach of contract.       Thus, the Respondents instituted a suit

seeking cancellation of the Agreement for Sale and the consequential reliefs.

The trial Court was persuaded to decree the suit holding, inter alia,that the

Defendants failed to perform their part of the contract.

5.    Being aggrieved, the Defendants preferred appeal before the District

Court, being RCA No.107 of 2017. By the impugned judgment and decree,

the learned District Judge dismissed the appeal finding no fault with the

decree passed by the trial Court.

6.    Mr. Pillay, learned Counsel for the Appellants, submitted that the Courts

below committed a gross error in law in not considering the failure of the

Plaintiffs to perform their reciprocal promises, in the light of the provisions

contained in Section 52 of the Indian Contract Act, 1872. It was submitted

that the Plaintiffs had failed to procure NOC and clear maintenance and allied

charges of the Society. Thus, the Defendants were not required to perform

their part of the contract to pay the balance consideration.      It was further

submitted that the Defendants were always ready and willing to perform htier

part of the contract.


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7.    I find it rather difficult to accede to the submissions of Mr. Pillay.

Incontrovertibly, though the Agreement for Sale was executed on 28 February

2008, the Appellants – Defendants did not institute a suit seeking specific

performance of the contract. The Courts below, on appreciation of evidence,

have recorded a finding that the Defendants failed to perform their part of the

contract by paying or offering to pay the balance consideration of

Rs.4,50,000/-. It was, inter alia, noted by the learned District Judge that,

during the course of the cross-examination, the Defendant No.1 conceded

that the Defendants had neither paid the balance consideration nor any

correspondence / communication was addressed to the Plaintiffs to show

readiness and willingness to perform their part of the contract. The very fact

that, for over 18 years, the Defendants have not instituted a suit seeking

specific performance of the contract, negates the submission on behalf of the

Appellants – Defendants that the Defendants were always ready and willing to

perform their part of the contract.

8.    Since the Courts below have arrived at concurrent findings of facts,

and, even otherwise, the Defendants do not seem to be entitled to the benefit

of part performance under Section 53-A of the Transfer of Property Act, 1882,

in view of the absence of material to show readiness and willingness on the

part of the Defendants, such concurrent findings of facts recorded by the

Courts below do not merit interference in exercise of the Appellate jurisdiction


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                      governed by the regime of Section 100 of the Code of Civil Procedure, 1908.

                      9.       No question of law, much less, a substantial question of law, arises for

                      consideration.

                      10.      The Second Appeal, thus, stands dismissed.

                      11.      In view of the dismissal of the Second Appeal, IA No.6311 of 2026 also

                      stands disposed.




                                                                          ( N.J.JAMADAR, J. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 11/09/2026 18:56:04