37 sa 272 of 2026.doc 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 SSP 1/4 2026:BHC-AS:37543 37 sa 272 of 2026.doc 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. SSP 2/4 37 sa 272 of 2026.doc 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 SSP 3/4 37 sa 272 of 2026.doc 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. ) SSP 4/4 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 11/09/2026 18:56:04