High Court
Legal Reasoning
(1) sa-50-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.50 OF 2025WITHCIVIL APPLICATION NO.1115 OF 2025Vishnudas S/o Bankatlal Dhoot (Deceased),Through L. Rs.1]Pradipkumar S/o Vishnudasji Dhoot [Deceased]Through L.Rs.1/1] Chetankumar S/o Pradipkumar Dhoot,Age: 38 years, Occ: Business,R/o. Lokhand Galli, Latur.1/2] Ravi S/o Pradipkumar Dhoot,Age: 34 years, Occ: Education,R/o. Lokhand Galli, Latur.1/3] Smt. Sheela Pradipkumar Dhoot,Age : 57 years, Occu. Household,R/o. Lokhand Galli, Latur.2]Sau. Satyawati W/o Kirankumar Bharadiya,Age : 57 years, Occu. HouseholdR/o. Housing Colony, Ambajogai,District – Beed.3]Sau. Chitrakala @ Vishnudasji Age : 57 years, Occu. Household,R/o. Aurad (Shahajani),Taluka – Nilanga.74]Jagdish S/o Vishnudasji Dhoot,Age : 54 years, Occu. Business,R/o. Lokhand Galli, Latur.5]Kamallata W/o Vishnudasji Dhoot,Age: 85 years, Occu. Household,R/o. Lokhand Galli, Latur...Appellants(Orig. Defendants)VersusRajesh Kanhaiyalal Mundada,Age: 50 years, Occ: Business,R/o. Moti Nagar, Latur...Respondent (Orig. Plaintiff) (2) sa-50-2025.odt…Mr. P. R. Katneshwarkar, Senior Advocate i/by. Mr. S. S. Rathi, Advocate for the Appellants.Mr. S. V. Dixit, Advocate for Respondent.... CORAM : S. G. CHAPALGAONKAR, J.RESERVED ON: 05th FEBRUARY, 2025.PRONOUNCE ON : 26th FEBRUARY, 2025.JUDGMENT:-1.The appellants/original defendants have filed present SecondAppeal impugning judgment and decree dated 08.07.2024 passedby the Principal District Judge, Latur in Regular Civil AppealNo.173/2015, thereby upholding judgment and decree dated31.01.2014 passed by Civil Judge, Senior Division, Latur in SpecialCivil Suit No.95/2007. (Hereinafter, parties are referred to by theiroriginal status for the sake of convenience and brevity).2.The respondent/plaintiff instituted Special Civil SuitNo.95/2007 seeking decree for specific performance of contract onthe basis of agreement to sale dated 23.02.2004 executed bydefendants in respect of suit plot being Survey No.37 situatedwithin Municipal limits of Latur. According to plaintiff, suit landwas originally owned by Jawahar Sahakari Kapus Utpadak SootGirani Limited, Latur, which went into liquidation. Thedefendants alongwith two others purchased 75.25 R land out ofSurvey No.37 from Liquidator. Initially, purchasers jointlypossessed the land. Later on, it was partitioned. The suit plot was (3) sa-50-2025.odtallotted to the share of defendants. The defendants offered plot forsell to plaintiff for total consideration of Rs.32,00,000/-.Accordingly, agreement to sale dated 23.02.2004 was executed.The plaintiff paid amount of Rs.5,00,000/- by way of earnest moneyat the time of execution of agreement in presence of witnesses.Although plaintiff was always ready and willing to perform his partof the contract, as per condition in the agreement, hutmentspresent at suit site were not removed by defendants. The time wasnot essence of the contract.3.The plaintiff was waiting for removal of hutments, whichwere ultimately removed in the year 2005. The plaintiff contacteddefendants and expressed his readiness and willingness to paybalance consideration, but defendants avoided to perform their partof contract. Lastly, plaintiff issued legal notice dated 11.08.2005 todefendants, which was falsely replied by them on 22.08.2005,stating that agreement to sale has been orally canceled. Againplaintiff approached defendants with help of Mediator. At thattime, defendants represented that they would like to negotiate andplaintiff shall not resort to file suit. Although several rounds ofnegotiation were held, nothing fruitful came out. On 08.06.2007,defendants flatly refused to execute sale deed that gave cause ofaction to file present suit. (4) sa-50-2025.odt4.The defendants refuted plaintiff's claim alleging that it isbased on fabricated documents. They contend that propertypurchased from Liquidator was joint. There was no division orpartition. Hence, it cannot be transferred in the manner proposedby plaintiff. It is further contended that son of defendant was inurgent need of money to satisfy private loan. Hence, transactionwas to be completed before June-2004. The time was very muchessence of the contract. The plaintiff was never ready and willingto perform his part of the contract. He failed to comply hisobligation before 30.06.2004.5.The Trial Court framed issues based on pleadings of theparties, recorded evidence, finally accepted case of the plaintiff anddecreed suit. Aggrieved defendants filed Appeal before DistrictJudge at Latur, who dismissed same upholding decree of TrialCourt, hence, this Second Appeal.6.Mr. Katneshwarkar, learned Senior Advocate appearing forthe appellants would submit that Courts below erred in decreeingthe suit of the plaintiff, which has been filed after three years fromthe date of execution of agreement. According to him, time was theessence of contract looking to the exigency of defendants, who wasin urgent need of money. Similarly, plaintiff failed to prove hisreadiness and willingness to perform his part of contract in termsof Section 16 (C) of the Specific Relief Act. According to him, (5) sa-50-2025.odtaforesaid aspects of matter raises substantial questions of law inthis Second Appeal. In support of his contentions he relies uponobservations of Supreme Court of India in following cases:1.Usha Devi and Others Vs. Ram Kumar Singh andOthers1.2.Rajeshwari Vs. Puran Indoria2.3.B. K. Sri Harsha (Dead) by L.Rs. And Another Vs.Bharat Heavy Electricals Ltd.3.4.His Holiness Acharya Swami Ganesh Dassji Vs. SitaRam Thapar4.7.Per contra, Mr. Dixit, learned Advocate appearing for therespondent submits that Courts below have elaborately consideredaforesaid aspects of the matter and recorded concurrent findings offacts that plaintiff was always ready and willing to perform hispart of contract, so also time was not essence of the contract infacts of the present case.8.Having considered submissions advanced, apparentlysubstantial questions of law are proposed for consideration on twoaspects of the matter. Firstly, as to whether the time was essenceof contract and secondly, as to whether plaintiff was ready andwilling to perform his part of contract and complies requirementunder Section 16(C) of Specific Relief Act. 12024 SCC OnLine SC 1915.2(2005) 7 SCC 60.3(2008) 4 SCC 48.4(1996) 4 SCC 526. (6) sa-50-2025.odt9.On perusal of agreement to sale, following facts can behighlighted:(i)On 23.02.2004, agreement entered between parties as tothe sell of suit property.(ii)The total consideration was fixed to Rs.32,00,000/-, out ofwhich amount of Rs.5,00,000/- was parted by plaintifftowards earnest money.(iii)The balance of Rs.27,00,000/- was to be paid at the time ofexecution of sale deed.(iv)The sale deed was to be executed by end of June,particularly after execution of sale deed by Govindpurkar(owner of part of land).(v)The defendant was intending to sell the suit land to satisfyhis family needs and purchase another suitable property.(vi)The possession was to be handed over as per measurementto be carried before execution of sale deed.10.Plain reading of the agreement nowhere stipulates thatvendor had specific exigency to complete transaction withinstipulated period. Although it was generally agreed to completetransaction by end of June, the condition precedent was executionof sale deed by Govindpurkar. The agreement to sale nowhereprovides specific consequences of delay in completion of transactionbeyond June. Pertinently, sale deed of Govindpurkar has been (7) sa-50-2025.odtexecuted on 06.04.2005. Thereafter on 11.08.2005, plaintiff issuednotice asking defendant to complete transaction. On 22.08.2005,defendant replied notice stating that time was essence of contractand due to non-adherence, agreement has been orally canceled.11.The aforesaid sequence of events together, with the contentsof the agreement to sale and reply notice would show that time wasnever essence of contract. The plaintiff has first time introducedsuch defence in his reply notice. From conduct of parties andcovenant in agreement to sale, it is not discernible that defendantentered into agreement with specific exigency in his mind.Therefore, first contention raised on behalf of defendant/appellantthat time was essence of contract cannot be countenanced. TheTrial Court as well as Appellate Court concurrently held thatdefendant failed to prove that time was essence of contract. Noperversity is discernible in findings. Hence, no substantialquestion of law would emerge for consideration in this SecondAppeal on this aspect.12.The second proposed substantial question of law is as toalleged non-fulfillment of mandate of Section 16(C) of the SpecificRelief Act. It is trite that plaintiff has to plead and prove hisreadiness and willingness to perform part of contract while seekingdecree of specific performance of contract. It is argued on behalf ofdefendant that plaintiff failed to perform his part of contract on or (8) sa-50-2025.odtbefore 30.06.2004. Eventually, by oral agreement as well as act ofparties, such contract has been canceled. The evidence on recorddepicts that there is hand written insertion that sale deed shall beexecuted by June of year 2004. It is also matter of record thatcondition precedent for execution of sale deed was execution of saledeed by Govindpurkar in favour of plaintiff. There is no furtherstipulation as to within how much time after sale deed ofGovindpurkar, subject transaction was to be completed. Thestipulation in agreement would further show that defendant was tocarry the measurement, fix the boundaries, execute sale deed andhand over possession at the time of execution of sale deed as perboundaries fixed on measurement. It is also matter of record thatwithin short span of execution of sale deed by Govindpurkar,plaintiff issued notice dated 11.08.2005 asking defendant toexecute sale deed and defendant replied that agreement has beenorally canceled. If that is so, the delay in completion of transactioncannot be attributed to defendant. 13.Plaintiff has specifically pleaded that he was always readyand willing to perform his part of contract. Although it iscontended on behalf of defendant that plaintiff was not havingsufficient funds, on the basis of statement in cross-examination ofplaintiff, plaintiff has explained that his debtors were owing himthe amount of Rs.27,00,000/- and he was intending to take finance (9) sa-50-2025.odtfrom Shivshakit Developers. The Appellate Court observed thatdefendant has admitted that plaintiff’s brother-in-law namelyShamsundar Gilda is contractor having big turn over. He used totake loan from Bank and private money lender. His borrowingsare from Rs.25 lakhs to Rs.5 crores. Therefore, Courts belowaccepted financial capacity of plaintiff to arrange Rs.27,00,000/-required for completing transaction. 14.So far as willingness is concerned, plaintiff came with a casethat he started pursuing defendant to execute sale deed since dateof execution of sale deed by Govindpurkar, but defendant killedtime and protracted transaction. On 08.06.2007, defendant refusedto execute sale deed, hence suit has been filed. Apparently, suit iswithin period of limitation. Both the Courts have recordedfindings that delay in filing suit has been caused due to tacticsplayed by defendant and plaintiff cannot be blamed for delay. TheAppellate Court relying upon judgment of Supreme Court of Indiain case of P. Daivasigamani Vs. S. Sambandan5 observed thatmere delay in filing of suit for specific performance, withoutreference to the conduct of the plaintiff, cannot be a ground forrefusing the said relief, when the suit was filed within thestatutory time limit. Both the Courts have observed that althoughgrant of decree of specific performance is discretionary relief, inabsence of material to show that plaintiff would derive unfair5AIR 2022 SC 5009. (10) sa-50-2025.odtadvantage and defendant would face undue hardship, specificperformance shall not be refused. In present case, no suchcircumstances are brought on record, except statement that thereis escalation of land prices. However, that itself cannot be groundto refuse specific performance. Since there are concurrent findingon both issue i.e. readiness and willingness of plaintiff and thattime was not essence of contract, this Court would not venture intosuch findings. At this stage reference can be given to law espousedby Supreme Court of India in case of Gurdev Kaur and Ors. Vs.Kaki and Ors.6, wherein in paragraph no.69, the Supreme Courtobserved as under:“Now, after 1976 Amendment, the scope of Section 100 hasbeen drastically curtailed and narrowed down. The HighCourts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of laware involved and those questions have been clearlyformulated in the memorandum of appeal. At the time ofadmission of the second appeal, it is the bounden duty andobligation of the High Court to formulate substantialquestions of law and then only the High Court is permittedto proceed with the case to decide those questions of law. Thelanguage used in the amended section specificallyincorporates the words as "substantial question of law"which is indicative of the legislative intention. It must beclearly understood that the legislative intention was veryclear that legislature never wanted second appeal to become"third trial on facts" or "one more dice in the gamble".”15. In view of aforesaid exposition of law, no case is made out tocause interference in concurrent findings of facts, which are basedon appreciation of evidence. No substantial question of law arisesfor consideration in this Second Appeal.6AIR 2006 SC 1975.
Decision
(11) sa-50-2025.odt16.Consequently, Second Appeal sans merit and accordinglystands dismissed.17.In view of dismissal of Second Appeal, nothing survives inCivil Application and same is accordingly disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/February-2025