Civil Application No. 1244 of 2024 · Bombaybench High Court
Case Details
2024:BHC-AUG:19612-DB 1 FA1180/2014IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.FIRST APPEAL NO.1180 OF 20141. Gulam Ali S/o Ismail Khan,}Age: 60 Years, Occu: Business,} ..AppellantsResident of Nawaz Manzil, Koliwada,}(Orig. Plaintiff)Kalyan, District Thane} Died Through his Legal Representatives} (As per order dated 28th June, 2018 in } Civil Application No.8099/2018} 1-A) Saida Gulam Ali S/o Ismail Khan,}Age: 63 Years, Occu: Housewife,}1-B) Mansoor Ali Gulam Ali Khan,}Age: 44 Years, Occu: Business,}1-C) Samir Ali Gulam Ali Khan,}Age: 42 Years, Occu: Business,}1-D) Jamir Ali Gulam Ali Khan,}Age: 40 Years, Occu: Business,}1-A to 1-D All R/o: H. No. 126,}Mansur Manjil, Station Road,}Near Yamuna Sadan Kothi,}Ahmednagar - 414 001}Maharashtra}1-E) Jayada Firoj Pathan,}Age: 47 Years, Occu: Household,}R/o: Nagar Road, Isampura Chauk,}Taluka: Rahata, Kolhar Bk.,}Ahmednagar - 413 371}Maharashtra.}1-F) Tarannum Rafique Ahmed Shaikh,}Age: 37 Years, Occu: Household,}R/o: A-3, Nawaz Building,}Ground Floor, Govindwadi Road,}Behind Old Boys English School,}Kalyan West - 421 301.} 2 FA1180/2014Versus1.Shaikh Kalimulla S/o Sk. Barkatulla,} ..RespondentsAge: 54 Years, Occu: Service,} (Orig. Respondents)R/o: Bungalow No. 23, Cantonment,}Aurangabad and also residing at}United States of America.}2.Shaikh Kalilulla S/o Sk. Barkatulla,}Age: 51 Years, Occup: Business,}R/o: As above.}3.Shaikh Majidulla S/o Sk. Barkatulla,}Age: 47 Years, Occup: Business,}R/o: As above.}……Mr. A. D. Soman, Advocate for the Appellants, Mr. P. R. Katneshwarkar, Advocate for Respondent No.1,Mr. Rajendra S. Deshmukh, Senior Advocate a/w. Mr. ShriramDeshmukh, Advocate i/by. Mr. Devang R. Deshmukh, Advocate forRespondent No.2,Mr. S. V. Adwant, Advocate for Respondent No.3. …... WITH CIVIL APPLICATION NO.1244 OF 2024 IN FIRST APPEAL NO.1180 OF 2014 WITH CIVIL APPLICATION NO.5366 OF 2014 IN FIRST APPEAL NO.1180 OF 2014 …...CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 18.07.2024PRONOUNCED ON : 26.08.2024JUDGMENT [ PER NEERAJ P. DHOTE, J. ] :.This is the First Appeal under Section 96 of the Code ofCivil Procedure, 1908 (for short, ‘C.P.C.’) against the Judgment and
Legal Reasoning
3 FA1180/2014Order dated 21.11.2013 passed by the learned 2nd Jt. Civil Judge, (S.D.),Aurangabad dismissing the Spl. Civil Suit No.390/2011 instituted forSpecific Performance of Contract. The operative Order of the impugnedJudgment reads as under : “. The suit of the plaintiff is hereby dismissed. 1]The prayer for specific performance of the contract is hereby rejected. 2]The prayer to refund earnest amount is hereby rejected. 3] The prayer for compensation is also hereby rejected. 4]Decree be drawn up accordingly.”2.The facts, in brief, giving rise to the present Appeal are asfollows:2.1.The Appellants are the Legal Representatives of the originalPlaintiff who died during the pendency of the Appeal. The originalPlaintiff went before the learned Civil Court with the Plaint that heentered into an Agreement to Sell (Exh.65) with the Defendants on20.02.2008 in respect of landed property admeasuring 70,000 Sq. Feet,bearing CTS No.20719, out of Survey No.2, situated at Kokanwadi,Aurangabad (hereinafter referred to as the ‘Suit Property’) for the totalconsideration of Rs.21,52,50,000/- (Twenty One Crore Fifty Two LakhFifty Thousand Only) at the rate of Rs.3,075/- (Rs.Three ThousandSeventy Five Only) per Sq. Feet. It was decided to execute the sale-deedwithin a period of 6 (six) months from the date of agreement. Time 4 FA1180/2014was essence of the contract. An amount of Rs.50,00,000/- was paid asthe earnest money by the Plaintiff to the Defendants. 2.2.On 18.03.2008, the Plaintiff came across the noticepublished in the daily newspaper that, Defendant No.2 had alreadyexecuted an Agreement to Sell with the third party in respect of the SuitProperty. The Plaintiff contacted the Defendant Nos.2 and 3, whoassured that the issue would be settled and they will execute thesale-deed with the Plaintiff. Though, the Plaintiff repeatedly contactedthe Defendants for execution of the sale-deed by accepting balanceconsideration, the Defendants assured that they will execute the sale-deed. By communication dated 26.06.2008 the Plaintiff requested theDefendants to execute the sale-deed in his favour as early as possibleand the Defendants requested him to wait for some time. The DefendantNo.3 by a reply dated 26.06.2008 showed his readiness to perform hispart of contract. Even after the repeated requests by the Plaintiff, theDefendants did not execute the sale-deed. On 20.08.2008 the Plaintiffcontacted the Defendants and requested them to complete thetransaction before expiry of the stipulated period and the Defendantsassured the Plaintiff to complete the transaction on 20.08.2008,however when the Plaintiff went to the office of Sub-Registrar tocomplete the necessary formalities, the Defendants did not turn up.Therefore, the Plaintiff went to the house of the Defendant No.2. The 5 FA1180/2014Plaintiff handed over one communication titled as ‘Samaj Patra’intimating that he was ready and willing to complete the transactionand he was present for the same on 20.08.2008.2.3.On 23.10.2008 the Plaintiff came across a notice publishedin the newspaper issued by Defendant No.2 stating that the Plaintifffailed to perform his part of contract within the stipulated period, towhich the Plaintiff replied by a paper publication on 29.11.2008 statingthat he was ready and willing to execute the sale-deed. The DefendantNos.2 and 3 sought some time from the Plaintiff to execute the sale-deed. On 31.01.2009 the Plaintiff issued legal notice to the Defendantsthrough his Advocate requesting them to execute the sale-deed. Againon 24.01.2011 the Plaintiff issued legal notice through his Advocate tocomplete the sale transaction. The Defendant Nos.1 and 2 by theirrespective replies dated 04.02.2011 denied their liability to perform thecontract. Eventually, the Plaintiff instituted the aforementioned suit.3.Respondents are the Original Defendants. They filed theirrespective written-statements.3.1.The Defendant No.1 filed his Written-statement at Exh.32stating that the Plaintiff failed and neglected to complete the saletransaction within the stipulated period and therefore, he cannot claimspecific performance of contract and the earnest money stands forfeited. 6 FA1180/2014He further stated that the Plaintiff was not ready and willing to performhis part of contract and was not having the financial capacity tocomplete the sale transaction within the stipulated period. He prayed fordismissal of the suit with costs.3.2.The Defendant No.2 by his Written-statement at Exh.14opposed the suit stating that the time was essence of contract which wasto be competed within a period of 6 (six) months from the date ofagreement and the Plaintiff failed to execute the sale-deed within thestipulated period, therefore, the earnest money was agreed to beforfeited. He stated that the Agreement to Sell (Exh.65) was cancelled.He further stated that the Plaintiff was fictitious person put forth byDefendant No.3 and his brother-in-law with a view to grab the SuitProperty. After the Agreement to Sell (Exh.65), the Plaintiff nevercontacted the Defendant No.2 for completion of the sale transaction.Though he tried to contact the Plaintiff, he was not found on the givenaddress and therefore, he was unable to complete the sale transaction.Therefore, he executed another agreement with third person and prayedfor dismissal of the suit with costs.3.3.The Defendant No.3 filed his Written-statement at Exh.18and supported the case of Plaintiff. 7 FA1180/20144.The learned Civil Court, on the basis of rival pleadings ofthe parties, framed the issues and findings on that at Exh.57 which readsthus:“ISSUES FINDINGS1.Whether Defendant Nos.1 to 3 executedagreement to sale of the suit property on20.02.2008 in favour of the plaintiff? In affirmative2.Whether the plaintiff on 20.02.2008 paid anamount of Rs.50,00,000/- to defendants asan earnest amount? In affirmative3.Whether the plaintiff was / is ready andwilling to perform his part of contract? In negative4.Whether the time was essence of thecontract? In affirmative5.Whether the defendants have committedbreach of contract? In negative 6.Is the plaintiff entitled to get relief of specificperformance of contract as prayed for ?Or in the alternative Is the plaintiff entitled to get refund ofearnest amount of Rs.50,00,000/- withinterest as prayed for? In negative 7.Is the plaintiff entitled to get compensationas prayed for ? In negative 8.What order and decree?Suit is dismissed”5.The Plaintiff examined his General Power of Attorney (GPA)namely Syed Gulam Rasul Yasin as PW1, who filed his evidence affidavitat Exh.59. He was subjected to cross-examination by the Defendant 8 FA1180/2014No.1. The Defendant No.2 adopted the cross-examination of DefendantNo.1. The Defendant No.3 declined to cross-examine. 6.The Plaintiff examined another witness namely MirzaParvez Ali Baig as PW2, who filed his evidence affidavit at Exh.88. Hewas cross-examined by Defendant No.1 which was adopted byDefendant No.2. Defendant No.3 did not cross-examine.7.Defendant No.3 namely Shaikh Majidullah ShaikhBarkatullah filed his evidence affidavit at Exh.116 as DW1. He wascross-examined by Defendant Nos.1 and 2.8.The Defendant No.2 – Sk. Khalilullah Sk. Barkatullah filedhis evidence affidavit at Exh.150 as DW2. He was cross-examined byDefendant No.3 and the Plaintiff.9.The following documents are brought on record in theevidence led by the parties :-(a)Agreement for Sell at Exh.65(b)Samaj Patra at Exh.66(c)Legal notice sent by the Plaintiff to the Defendants – Exh.67(d)The Postal Acknowledgment of the above notice – Exh.68(e)Legal Notice sent by the Plaintiff to the Defendants – Exh.69(f)The U.P.C. for the said notice Exhs.70 to 75 (g)Reply notice by Defendant No.1 to the Plaintiff – Exh.79 (h)Reply notice by Defendant No.2 to the Plaintiff – Exh.80(i)The Paper publication - Article “B”. 9 FA1180/2014(j)Compromise Petition / Terms in Spl. Civil Suit No.293/2006 atExh.126.(k)Receipt issued by the Sub-Registrar towards registration fee andAgreement for Development at Exh.156.10.Considering the evidence brought on record by the parties,the learned Civil Court passed the impugned Judgment and Order. 11.Heard learned Advocate for the Appellants, learnedAdvocate for Respondent No.1, learned Senior Advocate for RespondentNo.2 and learned Advocate for Respondent No.3. As all the submissionsrevolved around Point No.3, the submissions are taken while discussingthe said point. Scrutinized the evidence available on record. The Partiesare referred as per their status / nomenclature before the learned CivilCourt. Following points arise for our determination: POINTSFINDINGS1.Whether the Defendants entered into anAgreement to Sell with the Plaintiff on20.02.2008 in respect of the SuitProperty? In the Affirmative2.Whether the Plaintiff paidRs.50,00,000/- (Rs. Fifty Lakh) as theearnest money to the Defendants?In the Affirmative3.Whether the Plaintiff was ready andwilling to perform his part of contract? In the Negative4.Whether time was the essence of thecontract?In the Affirmative 10 FA1180/20145.Whether the Plaintiff is entitled fordecree on admission by defendant No.3to the extent of 1/3rd undivided shareIn the Suit Property? In the Negative6.Whether the Plaintiff is entitled foralternate prayer ? To the extent ofrefund of earnestmoney with Interest.7.What Order?First Appeal is partlyallowed. :: REASONS ::AS TO POINT NOS.1 AND 2 :12. The Plaintiff in his plaint and in evidence affidavit GPA /PW1 – Syed Gulam Rasul Yasin stated and averred that the Defendantshad executed the Agreement to Sell (Exh.65) in respect of the landadmeasuring 70000 Sq. Ft. bearing CTS No.20719, Survey No.2 situatedat Kokanwadi, Aurangabad. 13.Defendant No.1, though pleaded in his Written-statementthat no Agreement to Sell of any property was entered with the Plaintiff,he has averred that Defendant No.3 was managing the entire property oftheir father and even after the demise of their father Defendant No.3continued to manage the entire property as he and Defendant No.2were abroad. He was entirely dependent on Defendant No.3in respect of the affairs and the management of the properties.When he had come to India in 2008, the Defendant No.3 cameto him and asked him to sign on an agreement which he was made 11 FA1180/2014to believe that it was in respect of the disputes with Defendant No.2 andbelieving him he put his signatures above the signatures of DefendantNos.2 and 3. However, no evidence is led by Defendant No.1. ThoughDefendant No.1 cross-examined the witnesses examined by the Plaintiff,however nothing has come in the cross-examination to establish thatDefendant No.1 did not enter into the said agreement with the Plaintiff.On the contrary, the tenor of cross-examination show that the saidagreement was executed after the talks had taken place between all thethree Defendants. 14.Defendant No.2 by his Written-Statement admitted theexecution of the said agreement with the Plaintiff. In his evidenceaffidavit, he averred about the said Agreement to Sell (Exh.65) with thePlaintiff. In his cross-examination it has come that on 20.02.2008 theyall three brothers i.e. Defendants No.1 to 3, went separately to theAdvocate for signing the agreement where the Defendant No.1,thereafter he and thereafter Defendant No.3 had signed the agreementwhich was read over by the Advocate to all who were present there.15.Defendant No.3 in his Written-statement admitted theexecution of the said agreement. He admitted the case of Plaintiff. Hedid not cross-examine the Plaintiff.16.In view of the above discussion, the Plaintiff has proved thatDefendants No.1 to 3 executed the Agreement to Sell (Exh.65) in 12 FA1180/2014respect of the above referred Suit Property with him on 20.02.2008 andhence Point No.1 is answered ‘in the Affirmative’.17.As per the avernments in the plaint and the evidenceaffidavit of the GPA of the Plaintiff, he paid Rs.50,00,000/- as theearnest money to the Defendants jointly on 20.02.2008.18.PW2 – Mirza Parvez Ali Baig examined by the Plaintiff in hisevidence deposed that he was the brother-in-law of all the Defendants.His evidence show that as per the terms and conditions in theAgreement, Rs.50,00,000/- which was brought by the Plaintiff washanded over to Defendants No.1 to 3 jointly and thereafter DefendantsNo.1 to 3 signed on every page of the Agreement before him and he andanother witness signed as the witnesses. The cross-examination of thiswitness done by the Defendants No.1 and 2 could not create any dent inhis evidence led in support of the Plaintiff. In the cross-examinationit has come that the amount of earnest money was distributed to all theDefendants equally in cash. It has come in his cross-examination that hehas good relations with Defendants No. 1 and 2. 19.Learned Advocates for the parties submitted that there is nodispute in respect of the Point Nos. 1 and 2 and the findings recorded bythe learned Trial Court on the said points. In view of the above, thePoint No.2 is answered ‘in the Affirmative’. 13 FA1180/2014AS TO POINT NO.3 : 20.It is submitted by learned Advocate for the Plaintiffs that,the learned Trial Court has not considered certain admitted facts thatthe Defendant No.2 had entered into an Development Agreement withthe third parties prior to the Agreement entered between the Plaintiffand the Defendants. The learned Trial Court has not considered thecommunications between the Plaintiff and the Defendant No.3. Hefurther submitted that in the Civil Suit filed by the third partiesregarding the Development Agreement, the learned Civil Court hadissued the Temporary Injunction by which the Defendants No.1 to 3were restrained from creating any third party interest in the SuitProperty. The Plaintiff in his pleadings and the evidence categoricallystated and proved that he was ready and willing to perform his part ofcontract and was having capacity to deposit the entire amount. Thoughthe Plaintiff was present before the Office of the concernedSub-Registrar for executing the sale-deed on 20.08.2008, the Defendantsfailed to come before the said authority and execute the sale-deed. ThePlaintiff approached the Defendants No.2 and 3 on the given addressinforming them his readiness and willingness to perform his part ofcontract and requested them to complete the said transaction videissuing the ‘Samaj Patra’. The Plaintiff also contacted the DefendantNo.1 via internet calling who was in the United States of America at therelevant time. He further submitted that, despite the subsistence of the 14 FA1180/2014Agreement to Sell (Exh.65) between the parties, Defendant No.2entered into another Development Agreement with the third party on02.09.2008. As the Defendants were not performing their part ofAgreement, the Plaintiff issued legal notice to them requesting toexecute the sale-deed. The Defendants never tried to return the earnestmoney which they had accepted at the time of the Agreement. ThePlaintiff was not required to deposit the entire amount in the Court asper Section 16 of the Specific Relief Act, 1963. The Power of AttorneyHolder of the Plaintiff / PW1 - Syed Gulam Rasul Yasin had completeknowledge of the Agreement to Sell (Exh.65) and about the transactionbetween the Plaintiff and the Defendants in respect of the Suit Propertyand so, he deposed on behalf of the Plaintiff. Learned Trial Court didnot consider the above aspects and the findings recorded against theissue Nos. 3, 5, 6 and 7 ‘in Negative’ was contrary to the evidence onrecord. In support of his submissions, he cited the following Judgmentsof the Hon’ble Supreme Court of India : 1.Nadiminti Suryanarayan Murthy (Dead) Through LegalRepresentatives vs. Kothurthi Krishna Bhaskara Rao andOthers, (2017) 9 SCC 6222.Zarina Siddiqui vs. A. Ramalingam Alias R. Amarnathan,(2015) 1 SCC 7053.P. Daivasigamani vs. S. Sambandan, (2022) 14 SCC 7934.Gaddipati Divija and Another vs. Pathuri Samrajyam andOthers, 2023 SCC OnLine SC 442 15 FA1180/20145.Basavaraj vs. Padmavathi and Another, (2023) 4 SCC23921.It is submitted by learned Advocate for the Defendant No.1and learned Senior Advocate for Defendant No.2 that the evidence onrecord show that the Plaintiff failed to prove that he was ready andwilling to perform his part of contract. Time was the essence ofcontract. The period of six (6) months was given in the agreement tocomplete the transactions as, the Suit Property was in a good localityand there was increase in the price day by day. The communicationdated 26.06.2008 which according to the Plaintiff was sent to theDefendants, was in fact never served on the Defendants No.1 and 2.The Defendant No.3 was in collusion with the Plaintiff. Though the suitwas filed within the period of limitation, the Plaintiff did nothing for aperiod of more than 2 years and filed the suit when the expiry oflimitation was nearing. The Power of Attorney Holder of the Plaintiffnamely Syed Gulam Rasul Yasin who was examined by the Plaintiff asthe PW1 was neither named in the Agreement nor in the plaint. Thesaid Power of Attorney Holder did not disclose in his affidavit that hewas intending to purchase the Suit Property and was covered by theterms mentioned in the Agreement. The pleadings of the Plaintiff andthe averments in the evidence affidavit of PW1 – Syed Gulam RasulYasin were vague. Some of the contents of the evidence affidavitof the GPA / PW1 – Syed Gulam Rasul Yasin were not the part ofpleadings in the plaint. They further submitted that, the evidence of 16 FA1180/2014General Power of Attorney Holder / PW1 – Syed Gulam Rasul Yasinnowhere show that he was present with the Plaintiff in the Sub-Registraroffice. If at all the Plaintiff was not able to give his evidence in the suit,his evidence could have been recorded by way of commission asprovided under the Code of Civil Procedure. The credentials of theGPA / PW1 – Syed Gulam Rasul Yasin were doubtful. The ‘Samaj Patra’which was never served on the Defendants No. 1 and 2 nowhere statesthat the Plaintiff had come with money and the stamp papers and draftsale-deed to the office of Sub-Registrar. In the normal course, a prudentman would have intimated the parties one or two days beforecompleting the transaction. The said ‘Samaj Patra’ is created evidence.The relief prayed by the Plaintiff in the Appeal for execution of sale-deedwas an equitable relief and the evidence available on record show thathe was not entitled for the relief as prayed for and the Appeal bedismissed. In support of his contention, he relied on the followingJudgments of the Hon’ble Supreme Court of India: 1.Man Kaur (Dead) By LRs vs. Hartar Singh Sangha,(2010) 10 SCC 5122.B. K. Sri Harsha (Dead) By LR and Another, (2008) 4SCC 483.Chand Rani (Smt) (Dead) by LRs vs. Kamal Rani (Smt)(Dead) by LRs, (1993) 1 SCC 5194.Acharya Swami Ganesh Dassji vs. Sita Ram Thapar,(1996) 4 SCC 5265.Azhar Sultana vs. B. Rajamani and Others, (2009) 17SCC 276.S. Kesari Hanuman Goud vs. Anjum Jehan and Others,(2013) 12 SCC 64 17 FA1180/201422.Learned Advocate for the Defendants No.3 submits that theDefendant No.3 was ready and still ready to execute his part of contractin favour of the Plaintiff to the extent of his undivided share in the SuitProperty. He submits that the Defendants No.1 and 2 have not comewith the clean hands. The Defendant No.1 though filed Written-statement, did not enter the witness box. There was dearth of action onthe part of Defendants No.1 and 2 in performing their part of contract.The Plaintiff had discharged his burden by examining his GPA / PW1 –Syed Gulam Rasul Yasin. No credence can be given to the dishonestparty. The Plaintiff was entitled for decree of Specific performance andthe Appeal be allowed. In support of his submissions, he relied on thefollowing Judgments:(a)Dalip Singh vs. State of Uttar Pradesh and Others, (2010) 2 SCC 114(b)Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573(c)Kaushik Premkumar Mishra and Anr vs. Kanji Ravaria@ Kanji & Anr by Hon’ble Supreme Court of India in Civil Appeal No.1573 of 2023 decided on April 19, 2024. 23.On perusal of the above referred Judgments relied upon bythe parties, the following Legal Principles emerges:“(a)The remedy for specific performance is an equitableremedy. The Court while granting decree of specificperformance exercises its discretionary jurisdiction. 18 FA1180/2014Discretion must be exercised in accordance withsound and reasonable judicial principles.(b)The discretion to direct specific performance of anagreement and that too after elapse of a long periodof time, undoubtedly, has to be exercised on sound,reasonable, rational and acceptable principles. Theparameters for the exercise of discretion vested bySection 20 of the Specific Relief Act, 1963 cannot beentrapped within any precise expression of languageand the contours thereof will always depend on thefacts and circumstances of each case. The ultimateguiding test would be the principles of fairness andreasonableness as may be dictated by the peculiarfacts of any given case, which features theexperienced judicial mind can perceive without anyreal difficulty. (c)While balancing the equities, one of theconsiderations to be kept in view is as to who is thedefaulting party.(d)Where the plaintiff brings a suit for specificperformance of contract for sale, the law insists acondition precedent to the grant of decree for specificperformance that the plaintiff must show hiscontinued readiness and willingness to perform hispart of the contract in accordance with its terms fromthe date of contract to the date of hearing.(e)Subsequent rise in price will not be treated as ahardship entailing refusal of the decree for specific 19 FA1180/2014performance. Rise in price is a normal change ofcircumstances and, therefore, on that ground a decreefor specific performance cannot be reversed.(f)The equitable discretion to grant or not to grant arelief for specific performance also depends upon theconduct of the parties. The necessary ingredient has tobe proved and established by the plaintiff so thatdiscretion would be exercised judiciously in favour ofthe plaintiff. At the same time, if the defendant doesnot come with clean hands and suppresses materialfacts and evidence and misled the Court then suchdiscretion should not be exercised by refusing to grantspecific performance.(g)The Specific Performance of the Contract, may in thediscretion of the court, be enforced, when the actagreed to be done, was such that compensation inmoney for its non-performance would not affordadequate relief, and that the breach of a contract totransfer immovable property could not be adequatelyrelieved by compensation in money. It also emergesthat specific performance of a contract could not beenforced in favour of a person, who failed to aver andprove that he had performed or had always beenready and willing to perform the essential terms of thecontract, which were to be performed by him. It couldalso not be enforced in favour of a person who failedto aver in the plaint the performance of, or readinessand willingness to perform the contract according toits true construction. 20 FA1180/2014(h)Readiness and willingness are not one, but twoseparate elements. Readiness means the capacity ofthe plaintiff to perform the contract, which wouldinclude the financial position to pay the purchaseprice. Willingness refers to the intention of theplaintiff as a purchaser to perform his part of thecontract. Willingness is inferred by scrutinizing theconduct of the plaintiff/purchaser, including attendingcircumstances. Continuous readiness and willingnesson the part of the plaintiff/purchaser from the datethe balance sale consideration was payable in terms ofthe agreement to sell, till the decision of the suit, is acondition precedent for grant of relief of specificperformance. (i)Time is not the essence of the contract in the case ofimmovable properties, unless there are grounds tohold to the contrary.(j)That the 2018 amendment was not a mere proceduralenactment, but it had substantive principles built intoits working, and as such, the said amendment wasperspective in nature and cannot apply to thosetransactions which took place prior to its enforcement.(k) An attorney-holder who has signed the plaint andinstituted the suit, but has no personal knowledge ofthe transaction can only give formal evidence aboutthe validity of the power of attorney and the filing of(l) If the attorney-holder has done any act or handled anytransactions, in pursuance of the power of attorney 21 FA1180/2014granted by the principal, he may be examined as awitness to prove those acts or transactions. If theattorney-holder alone has personal knowledge of suchacts and transactions and not the principal, theattorney-holder shall be examined, if those acts andtransactions have to be proved.(m) The attorney-holder cannot depose or give evidence inplace of his principal for the acts done by the principalor transactions or dealings of the principal, of whichprincipal alone has personal knowledge.(n)Where the principal at no point of time had personallyhandled or dealt with or participated in thetransaction and has no personal knowledge of thetransaction, and where the entire transaction has beenhandled by an attorney-holder, necessarily theattorney-holder alone can give evidence inregard to the transaction. This frequently happens incase of principals carrying on business throughauthorized managers/attorney-holders or personsresiding abroad managing their affairs through theirattorney-holders.(o)Where the entire transaction has been conductedthrough a particular attorney-holder, the principal hasto examine that attorney-holder to prove thetransaction, and not a different or subsequentattorney-holder.(p) Where different attorney-holders had dealt with thematter at different stages of the transaction, ifevidence has to be led as to what transpired at those 22 FA1180/2014different stages, all the attorney-holders will have tobe examined.(q) Where the law requires or contemplates the plaintiffor other party to a proceeding, to establish or provesomething with reference to his ‘state of mind’ or‘conduct’, normally the person concerned alone has togive evidence and not an attorney-holder. (r)The discretion to decree specific performance shouldbe exercised by the court and in some cases, whetherthe suit was barred by limitation and even if not,whether the plaintiff has been guilty of negligence orlaches disentitling him to a decree for specificperformance. These questions, by and large, may notbe questions of law of general importance. But theycannot also be considered to be pure questions of factbased on an appreciation of the evidence in the case.They are questions which have to be adjudicatedupon, in the context of the relevant provisions of theSpecific Relief Act and the Limitation Act (if thequestion of limitation is involved). (s)There is distinction between ‘readiness’ to perform thecontract and ‘willingness’ to perform the contract. Byreadiness may be meant the capacity of the Plaintiff toperform the contract which includes his financialposition to pay the purchase price. For determininghis willingness to perform his part of contract, theconduct has to be properly scrutinized.(t)The factor of readiness and willingness to performPlaintiff’s part of the contract is to be adjudged with 23 FA1180/2014reference to the conduct of the party and attendingcircumstances.(u)It is a settled legal proposition that the power-of-attorney-holder cannot depose in place of theprincipal. Provisions of Order III, Rules 1 and 2 CPCempower the holder of the power of attorney to “act”on behalf of the principal. The word “acts” employedtherein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted tohim by virtue of the instrument. The term “acts”,would not include deposing in place and instead ofthe principal. In other words, if the power-of-attorneyholder has preferred any “acts” in pursuance of thepower of attorney, he may depose for the principal inrespect of such acts, but he cannot depose for theprincipal for acts done by the principal, and not byhim. Similarly, he cannot depose for the principal inrespect of a matter, as regards which, only theprincipal can have personal knowledge and in respectof which, the principal is entitled (sic liable) to becross-examined. (v)The continuous readiness and willingness on the partof the plaintiff is a condition precedent to grant therelief of specific performance. This circumstance ismaterial and relevant and is required to beconsidered by the court while granting or refusing togrant the relief. If the plaintiff fails to either aver orprove the same, he must fail. To adjudge whether theplaintiff is ready and willing to perform his part of thecontract, the court must take into consideration the 24 FA1180/2014conduct of the plaintiff prior and subsequent to thefiling of the suit alongwith other attendingcircumstances. The amount of consideration which hehas to pay to the defendant must of necessity beproved to be available. Right from the date of theexecution till date of the decree he must prove that heis ready and has always been willing to perform hispart of the contract. As stated, the factum of hisreadiness and willingness to perform his part of thecontract is to be adjudged with reference to theconduct of the party and the attending circumstances.The court may infer from the facts and circumstanceswhether the plaintiff was ready and was always readyand willing to perform his part of contract.”(w)The contract, being a creature of an agreementbetween two or more parties, is to be interpretedgiving the actual meaning to the words contained inthe contract and it is not permissible for the court tomake a new contract, however, if the parties have notmade it themselves.(x)The Court cannot rewrite or create a new contractbetween the parties and has to simply apply the termsand conditions of the agreement as agreed betweenthe parties.(y)The explicit terms of the contract are always the finalword with regard to the intention of the parties.(z)The litigant, who attempts to pollute the stream ofjustice or who touches the pure fountain of justice 25 FA1180/2014with tainted hands, is not entitled to any relief,interim or final.(z1)Where a party to a suit does not appear in the witnessbox and states his own case on oath and does notoffer himself to be cross-examined by the other side, apresumption would arise that the case set up by him isnot correct.” 24.Admittedly, in the case on hand the agreement was dated20.02.2008, the suit was filed in August-2011, the impugnedJudgment and Order was passed in November – 2013. Thetransactions between the parties was undisputedly before the SpecificRelief (Amendment) Act, 2018. The matter therefore would begoverned by the provisions of the Specific Relief Act, 1963 which stoodon the date of agreement. Section 16 of the Act as it stood at therelevant time i.e. before the amendment of 2018 is as follows:“16. Personal bars to relief.— Specific performance of a contractcannot be enforced in favour of a person -[(a)who has obtained substituted performance of contractunder section 20; or] (b)who has become incapable of performing, or violates anyessential term of, the contract that on his part remains to beperformed, or acts in fraud of the contract, or willfully acts atvariance with, or in subversion of, the relation intended to beestablished by the contract; or(c)[who fails to prove] that he has performed or has alwaysbeen ready and willing to perform the essential terms of thecontract which are to be performed by him, other than terms theperformance of which has been prevented or waived by thedefendant.Explanation.—For the purposes of clause (c),— 26 FA1180/2014(i)where a contract involves the payment of money, it is notessential for the plaintiff to actually tender to the defendant orto deposit in Court any money except when so directed by theCourt;(ii)the plaintiff [must prove] performance of, or readinessand willingness to perform, the contract according to its trueconstruction.”25.The terms and conditions of the Agreement to Sell (Exh.65)entered between the Plaintiff and the Defendants are reproduced belowfor better understanding of the matter.“1.The Purchasers have agreed to purchase and the Vendorshave agreed to sell the property which is comprised in pinkcolour in the map annexed to this agreement, which forms a partand parcel of this deed, for a consideration of Rs.21,52,50,000/-subject to the area affected under road widening and the areaavailable for sale.2.The Purchasers have paid an amount of Rs.50,00,000/- incash to the Vendors, which the Vendors do hereby acknowledgeto have received, towards earnest money, hence no separatereceipt is necessary to be passed in the names of the Purchasers.3.The Purchasers have agreed and accepted to pay theremaining amount of consideration after determining the finalamount of consideration upon calculating the area available forsale, as a part thereof is likely to be affected in road widening.4.The Purchasers have agreed to perform their part of thecontract within 6 months of the date of these presents and willnot postpone the performance on any guise or pretext, beyondthe time granted, time being the essence of the contract.5.The Vendors hereby agree that upon the acceptance of thetotal amount of the consideration as agreed upon, the Vendorswill execute the Sale Deed in favour of the Purchasers and / oranyone in whose favour, the Purchasers may direct them toexecute the sale deed and will also part with the vacant andpeaceful possession of the property under sale to the Purchasersand / or anyone as they may direct, free from all encumbrancesand will divest their right, title, interest, ownership andpossession of the said property to such Purchaser/s.6.That the Vendors shall deliver to the Purchasers all thetitle deeds and documents in their power, possession and control 27 FA1180/2014and relating to the said immovable property at the time of theexecution of the Sale Deed in favour of the Purchasers.7.The Vendors will discharge and pay all the taxes,outgoings and liabilities in respect of the property under sale tillthe date of sale and will give the receipts thereof to thePurchaser before the execution of the Deed of Sale.8.The Vendors hereby assure the Purchasers that no noticefrom the Government or any Statutory Body, local authorityunder the provisions of any law for the time being in force, hasbeen received by them or served upon them, in respect of theproperty under sale.9.That as agreed by the parties, Time will be essence ofContract and both the parties will be under obligation todischarge their respective duties stipulated herein and that if thesale is not completed within the stipulated time, the Vendors willhave a right to forfeit the amount of the earnest money paid bythe Purchasers and rescind the contract and will be free to sellthe property under sale to any other party and in such an event,the Purchasers will have no right and/or cause to take up theclaim with the court of law.10.It is further agreed by the Purchasers that all the enquiriesrelating to the property under sale expected to be acquired forroad widening will completed by them within the time of thecontract and will also perform their part of paying the remainingamount of consideration to the Vendors within the said time.The Purchasers will also have a right to give a paper publication,calling upon the objections, if any from the interested parties,before completing the sale.11.The Vendors assure that upon the payment of theremaining amount of consideration by the Purchasers, they willbe liable to perform their part of the contract by executing aregistered sale deed in favour of the Purchaser, withoutpostponing it on any count and by taking a registered power ofattorney of Vendor No.1, who is residing in USA, if need be.12.The stamp duty and registration charges for the purposeof registration of the sale deed and the out of pocket expensesshall be borne by the Purchasers.”26. Admittedly, the Plaintiff did not enter the witness box. Onhis behalf his GPA / PW1 – Syed Gulam Rasul Yasin adduced theevidence by filing the evidence affidavit at Exh.59. From his cross- 28 FA1180/2014examination, it is clear that the Plaintiff was present in the Court at thetime of his evidence. Though the evidence of GPA/PW1 – Syed GulamRasul Yasin show that the Plaintiff had undergone bypass surgery in2010, his evidence show that the Plaintiff travelled in the car to theCourt. No reason is forthcoming from the evidence on record as to whatmade the Plaintiff not to enter the witness box. It is further clear fromevidence of GPA / PW1 – Syed Gulam Rasul Yasin that the GeneralPower of Attorney was executed during pendency of the suit.Admittedly, he was not the signatory to the agreement. 27. The evidence of GPA / PW1 – Syed Gulam Rasul Yasinshow that he was not aware about the financial capacity of the Plaintiff.He showed his ignorance about the monthly income of the Plaintiff andwent on to say that the Plaintiff himself can say about his monthlyincome. He further showed his ignorance about the credit balance in thebank account of the Plaintiff. Though it has come in his evidence thatthe Plaintiff had kept some amount in the Fixed Deposit, he was notaware of the extent of amount which was kept in the Fixed Deposit.His cross-examination further go to indicate that they were notpossessing the balance amount which was Rs.21,00,00,000/- readilywith them as he deposed that they can deposit the said amount in theCourt within a span of one (1) or two (2) months. 29 FA1180/201428.In his cross-examination he accepted that as per theagreement the Plaintiff was required to perform his part of contractwithin six (6) months. He deposed that they had not paid the amount ofRs.21,00,00,000/- to the Defendants within six (6) months. He wasunable to state whether since the date of the agreement till the date ofhis deposition they were having the amount of Rs.21,00,00,000/- intheir bank accounts. He further was unable to depose whether duringthe period of six (6) months they were having Rs.21,00,00,000/- in theirbank account. 29.Undisputedly, in the Written-statement the Defendant No.1raised specific pleading calling the Plaintiff to show funds standing at hiscredit by producing cogent documentary evidence. The evidenceavailable on record do not show that the Plaintiff met the saidavernment by bringing on record the required documents to show hisfinancial capacity.30.The GPA / PW1 – Syed Gulam Rasul Yasin admitted in hiscross-examination that there was no mention in the General Power ofAttorney that he would appear in the suit whenever he would like to doso. He did not remember whether there was talk between the partiesabout the area and size of the disputed property. He was unable to statethe length or width or the other portion of the disputed property. Withreference to his evidence that they went to the Sub-Registrar’s Office at 30 FA1180/2014Aurangabad on 20.08.2008, it has come in his cross-examination that onthat day they were not prepared with stamp papers for registration ofthe sale-deed and they were not having the draft sale-deed with them.Though it has come that on that day they were having an amount ofRs.21,00,00,000/- with them in cash which were brought fromAhmednagar and Kalyan, he was unaware as to from whom the saidamount was collected and where the said amount had gone when thesale-deed was not executed. 31.Further, his cross-examination show that, except thetransaction in question, they had not entered in any other transaction ofsuch huge amount of Rs.21 Crore. The previous transactions, which theyhave dealt with were to the extent of Rs.2 to Rs.2.5 Crore. This alsothrow light on the financial capacity of Plaintiff. 32.Though the document in the nature of ‘Samaj Patra’ isbrought in evidence at Exh.66, admittedly, the same was not served onthe Defendants No.1 and 2, for the obvious reason that Defendant No.1was residing in the USA. Shri. Katneshwarkar, learned Advocate for theDefendant No.1 has rightly submitted that the said document iscompletely silent that the Plaintiff had come with the money on that dayi.e. 20.08.2008, to the office of Sub-Registrar to execute the sale-deed.He further rightly submitted that there is nothing on record to show thatthe Plaintiff had on previous occasion intimated the Defendants that hewas coming on that day for executing the sale-deed to the office of the 31 FA1180/2014Sub-Registrar. It would be the natural conduct of the party who wantsto execute the sale-deed with such huge amount to inform the other sidewell in advance. The avernment in the evidence affidavit of GPA / PW1– Syed Gulam Rasul Yasin that as per the assurance given by theDefendants, the Plaintiff went to the office of Sub-Registrar,Aurangabad, is without any foundation and without any specification asto when and in what manner the assurance was given by theDefendants. 33.Though the Plaintiff pleaded and in the evidence the GPA /PW1 – Syed Gulam Rasul Yasin deposed that the plaintiff asked theDefendants to execute the sale-deed and was continuously pursuing thematter with the Defendants, the same is vague. The pleadings andevidence lacks specific dates on which the Plaintiff contacted and askedthe Defendants to execute the sale-deed. Though the Plaintiff has reliedon the communication dated 26.06.2008 whereby all the Defendantswere requested to execute the sale-deed before 20.08.2008, the saiddocument is not brought in evidence and not exhibited. Therefore,strictly speaking it cannot be read. However, during the course ofargument, the learned Advocate for the Plaintiff heavily relied on it.Undisputely, there is nothing to show that the same was served onDefendants No.1 and 2. Learned Advocate for Defendant No.1 hasrightly submitted that when, from the pleadings of the Plaintiff andevidence led by him, it was clear that Defendant No.1 was residing in 32 FA1180/2014USA, why his place of residence was shown at Aurangabad. Service ofthe said communication / letter on Defendant No.3 will not be serviceon the Defendants No. 1 and 2.34.Though the evidence of GPA / PW1 – Syed Gulam RasulYasin show that he had sent the legal notices dated 31.01.2009 and21.11.2009 to the Defendants through Advocate in respect of the subjectmatter, undisputely the same are much after the expiry of six (6)months period as mentioned in the Agreement to Sell (Exh.65). Thisshow complete lull on the part of the Plaintiff in pursuing the subjectmatter. As regards first legal notice dated 31.01.2009, it is the Plaintiff’sown case that there was no positive record of service of the said noticeon Defendants No.1 and 2. Further, from the evidence on record it isseen that after the Agreement to Sell (Exh.65) the Defendant No.1 wentto USA, however the postal receipts show that the notice at Exh.67dated 31.01.2009 was dispatched at Aurangabad address. 35.In the plaint and in the evidence affidavit of GPA / PW1 –Syed Gulam Rasul Yasin, it is pleaded and stated more than once thatafter the execution of the Agreement to Sell (Exh.65), the Plaintiffrepeatedly, from time to time contacted the Defendants for execution ofthe sale deed, however every time the Defendants assured the executionof the sale-deed. The said pleadings are general in nature and vague. 33 FA1180/2014There is complete absence of particulars / specifications as to when thePlaintiff contacted the Defendants and by what mode. Such vague andgeneral pleadings and avernments in the affidavit without anyspecification are not sufficient to establish willingness to perform thepart of the contract.36.Learned Advocate for the Plaintiff further stressed on thecommunication dated 26.06.2008 issued by the Defendant No.3 to thePlaintiff. Undisputedly, the said communication is also not exhibitedand therefore not the part of the evidence. Learned Advocate for theDefendants No.1 and 2 have rightly submitted that even if it is read inevidence, the said communication by Defendant No.3 will not bind theDefendants No.1 and 2.37.Perusal of the pleadings in the plaint and the contents ofthe evidence affidavit of the General Power of Attorney of the Plaintiff,makes it clear that certain statements in the evidence affidavit were notsupported by the pleadings in the plaint. It is needless to state that noevidence can be led in the absence of foundational pleadings.38.The case of the Plaintiff that he was present in the Sub-Registrar’s Office on 20.08.2008 on the assurance given by theDefendants falls down as it is the evidence of the GPA / PW1 – SyedGulam Rasul Yasin that, they were aware that Defendant No.1 was notpresent at Aurangabad and it was not possible to get the sale-deed 34 FA1180/2014executed and registered on that day. As regards Plaintiff’s case oftelephonic talk with the Defendant No.1 at America, GPA / PW1 - SyedGulam Rasul Yasin in his evidence deposed that according to himminimum charge for phone call to America from India was Rs.30 to 32and the copy of receipt at Exh.86 show that Rs.2/- was paid towardscharges for the call to Defendant No.1 at America. If that is so, it is notpossible to accept the Plaintiff’s contention that talk had taken placebetween him and Defendant No.1 on the aforesaid date. 39.Even in the present Appeal, which is the continuation of thecivil suit and being the Appellate Court this Court is having the samepowers as are conferred by the Code of Civil Procedure on the Courts oforiginal jurisdiction in respect of the suits instituted therein, the learnedAdvocate for the Plaintiff was unable to state as to within what timethe Plaintiff could arrange for the remaining consideration required toexecute the sale-deed. PW2 – Mirza Parvez Ali Baig examined by thePlaintiff vide Exh.88, in no uncertain terms deposed that it was agreedbetween the parties that the Plaintiff should pay total considerationamount within 6 (six) months to the Defendants and on receiving theconsideration amount, the Defendants should execute the sale-deed infavour of the Plaintiff. As per the Agreement to Sell (Exh.65) thePlaintiff had agreed to perform his part of contract within six (6) monthsand he was required to perform his part of obligation within thestipulated period, one of which was that he was required to pay the 35 FA1180/2014remaining amount of consideration to the Defendants within thestipulated time. It is also clear from the cross-examination of the GPA /PW1 – Syed Gulam Rasul Yasin that six (6) months time was fixed forpayment of remaining consideration. 40.From the above discussion, it is established that the Plaintiffwas neither ready nor willing to perform his part of contract. In view ofthe above discussion, it is more than clear that the Plaintiff miserablyfailed to establish his continued readiness and willingness to perform hispart of contract and therefore, Point No.3 is answered accordingly.AS TO POINT NO.4 :41.As seen from the above referred rulings of the Hon’bleSupreme Court of India and the settled position under the law, time isnot the essence of the contract in the case of immovable properties,unless there are grounds to hold to the contrary. In the case on hand, asis clear from the pleadings and evidence on record the Suit Property is aplot compromising area of 70000 Sq. Ft. situated in the Aurangabadcity. The GPA / PW1 – Syed Gulam Rasul Yasin in his cross-examinationaccepted that the prices of landed property prevailing in the year 2008had escalated. Even there is pleading in Written-statement of theDefendant No.1 that the rates of the Suit Property had sky rocketed. Itis also clear that some of the portion of CTS No.20719 of which the Suit 36 FA1180/2014Property is also a part, was acquired by the Maharashtra Housing andArea Development Authority (MHADA). 42.The Plaintiff in his pleadings and evidence have averred andstated that the sale-deed was to be completed on or before 20.08.2008within a period of 6 (six) months from the date of agreement.Defendants No.1 and 2 in their Written-statements have categoricallyaverred that time was the essence of the contract. 43.Thus, in view of above undisputed factual aspects it is clearthat the parties were on one page that the transaction was to becompleted within the time stipulated in the Agreement to Sell (Exh.65),which establishes that the time was essence of the contract and thus,Point No.4 is answered accordingly.AS TO POINT NO.5 :44.It is submitted by learned Advocate for the Plaintiff thatDefendant No.3 has accepted the case of the Plaintiff and therefore, thepartial decree to the extent of Defendant No.3 be passed in favour of thePlaintiffs by modifying the Trial Court’s Judgment.45.As discussed earlier while considering the Point No.1 theDefendants have entered into Agreement to Sell (Exh.65) with thePlaintiff. Undisputely, the Defendant No.3 sided with the Plaintiff. Inhis Written-statement he admitted the Plaintiff’s claim or pleadings in 37 FA1180/2014the plaint. Categoric averment is made in the Written-statement byDefendant No.3 that he was ready and willing to perform his part ofcontract and to execute the sale-deed in favour of the Plaintiff. In hisWritten-statement he averred that necessary orders be passed. Further,Defendant No.3 declined to cross-examine the GPA / PW1 – Syed GulamRasul Yasin and PW2 – Mirza Parvez Ali Baig examined by the Plaintiff.For this point, the relevant provision is Order-XII, Rule-6 of the C.P.C.which reads as under : “6. Judgment on admissions. -(1)Where admissions of fact have been made either in thepleading or otherwise, whether orally or in writing, the Courtmay at any stage of the suit, either on the application of anyparty or of its own motion and without waiting for thedetermination of any other question between the parties, makesuch order or give such judgment as it may think fit, havingregard to such admissions.(2)Whenever a judgment is pronounced under sub-rule (1) adecree shall be drawn up in accordance with the judgment andthe decree shall bear the date on which the judgment waspronounced.”46.The evidence on record go to show and there is no disputeon the aspect that the three Defendants are real brothers and havingtheir undivided 1/3rd share each, in the Suit Property. The evidence onrecord go to show and on which there is no dispute between the partiesthat, Defendant No.2 had preferred the Spl. Civil Suit No.293 of 2006for partition in the properties left behind by his father, including the SuitProperty and all the Defendants had entered into the compromise in the 38 FA1180/2014said civil suit. The said compromise is brought on record at Exh.126 inthe evidence of the Defendant No.3. The said compromise is notdisputed by any of the party.47.It has come in the evidence of DW1 – Shaikh MajidullahShaikh Barkatullah that as per the said compromise dated 20.02.2008 inthe said Civil Suit it was agreed that they all three brothers (DefendantsNo.1 to 3) should sell the Suit Property jointly and terms and conditionswere also decided amongst them as to how to sell the Suit Property. Asseen from the cross-examination of Defendant No. 3 done by DW1 –Shaikh Majidullah Shaikh Barkatullah and DW2 – Sk. Khalilullah Sk.Barkatullah it is their case that Defendant No. 3 had put forward thePlaintiff and wanted to grab the Suit Property with the help of brother-in-law - Mr. Parvez. This material on record go to show that the termsbetween the Defendant No. 3 on one hand and Defendants No. 1 and 2on the other hand were not cordial. What is gathered from the pleadingand evidence on record is that the Defendant No. 3 – Shaikh MajidullaSk. Barkatulla and the Plaintiff – Gulam Ali s/o. Ismail Khan joinedhands and were trying to put spoke in the matters relating to the SuitProperty. As discussed earlier, the Suit Property was a big land withinthe city. The Defendant No.3 - Shaikh Majidulla Sk. Barkatulla couldhave executed the sale-deed to the extent of his 1/3rd undivided share infavour of the Plaintiff, if at all he was ready. He can even do it today ortomorrow. However, he did not do so. This lends credence to the 39 FA1180/2014above contention of Defendants No. 1 and 2 in respect of Plaintiff andDefendant No.3. The relief in the nature of Judgment on Admissions isdiscretionary and cannot be claimed as of right as held by the Hon’bleSupreme Court of India in S.M. Asif vs Virender Kumar Bajaj, (2015) 9SCC 287 and Hari Steel And General Industries Limited and Another vsDaljit Singh and Others, (2019) 20 SCC 425. Thus, in the facts andcircumstances of the matter, we consider it more appropriate not toexercise the powers under Order-XII, Rule-6 of the C.P.C. and hence,Point No.5 is answered accordingly.AS TO POINT NO.6 :48.As discussed earlier, it is established from the evidence onrecord that the Plaintiff had paid Rs.50,00,000/- as the earnest money inrespect of the transaction at the time of executing the above referredAgreement to Sell (Exh.65). The terms and conditions of the saidAgreement, which are reproduced above in Paragraph no.25 show that,it provides for right to the Vendors of forfeiture of the earnest money.There is no clause in the said Agreement providing automatic forfeitureof the earnest money. Thus, unless the said right is exercised, theearnest money will not get forfeited. 49.There is nothing to show that after the expiry of the six (6)months period which was agreed to complete the transaction, theDefendants exercised their right of forfeiture of the earnest money by 40 FA1180/2014informing the Plaintiff regarding the same. As the forfeiture was notautomatic on the expiry of stipulated period, unless the Defendantsexpressly exercise their right of forfeiture by their act, the earnest moneywon’t get forfeited. As there is no exercise of the said right by theDefendants, the earnest as referred in the Agreement to Sell (Exh.65)will have to be refunded by the Defendants to the Plaintiff. There isalternate prayer in the plaint for refund of earnest money with Interest@ 18% per annum.50.The evidence on record show that the Plaintiff was dealingin the business of purchase and sale of landed property. The evidence ofthe GPA of the Plaintiff / PW1 – Syed Gulam Rasul Yasin show that thePlaintiff intended to commercially develop the Suit Property after it waspurchased. The Development Agreement entered by Defendant No.2with the third party was also the commercial transaction. Section 34 ofthe C.P.C. is in respect of the Interest. It provides for interest more than6% per annum in case of commercial transactions. There is nothing toshow that the interest rate was agreed upon by the parties in case ofrefund of the earnest money. It is needless to state that the interest ratefor lending money by the Nationalized Bank in relation to commercialtransactions keep on fluctuating. Keeping this and the fact that theearnest money were paid in the year 2008, in view, we consider theInterest at the rate of 7.5% per annum, on the earnest money, from thedate of institution of Suit till its realization to be paid by the Defendants 41 FA1180/2014jointly and severally to the Plaintiff along with Rs.50,00,000/- i.e.earnest money. 51.It is clear from the Agreement to Sell (Exh.65) that it wasfor the Plaintiff to initially perform his part of contract by paying thebalance consideration amount within the stipulated period andthereafter it was for the Defendants to execute the sale-deed. There isno dispute on this aspect. There is no evidence to show that there wasany breach of Agreement to Sell (Exh.65) by the Defendants. Therefore,the Plaintiff would not be entitled for any compensation. Hence, PointNo.6 is answered accordingly.AS TO POINT NO.7 :52.We have perused the impugned Judgment and Order. Onreappreciation of the evidence on record, we do not see that the learnedTrial Court has committed any error by dismissing the suit on theground of readiness and willingness of Plaintiff to perform his part ofcontract and not awarding compensation. However, in view of ourfinding on Point No.6, impugned Judgment and Order / Decree requiresmodification. 53.The record show that the Civil Application No.1244 of 2024was preferred by the Plaintiff/Applicant to implead the third parties withwhom the Defendant No.2 had entered Development Agreement. ByOrder dated 21.02.2024 the parties agreed that the Application be 42 FA1180/2014considered at the time of final hearing. However, no arguments wereadvanced by the learned Advocates for the Parties on this Application.Even otherwise, in view of the above discussion, nothing survives in theApplication. 54.In view of above, we pass the following order : ORDER(i)The First Appeal is partly allowed. (ii)The Plaintiff is entitled for refund of the earnest money ofRs.50,00,000/- (Rs. Fifty Lakh) with interest @ 7.5% PerAnnum from the Defendants jointly and severally, from thedate of institution of Suit till its realization. (iii)The impugned Judgment and Order / Decree stands modifiedto that effect. (iv)Decree be drawn up accordingly. (v)Pending Civil Application Nos.1244 of 2024 and 5366 of 2014stand disposed of. (vi)Record and Proceedings be sent back to the learned CivilCourt. ( NEERAJ P. DHOTE, J. )( R. G. AVACHAT, J. )GGP