High Court

Legal Reasoning

sa-26-2023.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 26 OF 2023WITH CA/839/2023Smt. Malti w/o Madhukar Chaudhary Died through Legal Heirs.1.Vilas s/o Madhukar Kulkarni (Chaudhary) Age 63 years, Occu. Service, R/o 43/10, Parekh Nagar, Jalgaon Tq. And Dist. Jalgaon.2.Vivek s/o Madhukar Chaudhary Died through Legal Heirs.2-A]Smt. Alka w/o Vivek Chaudhary, Age 64 years, Occu. Household, R/o Aurangapura, Aurangabad, Tq. And Dist. Aurangabad at present R/o Galli No.4, Dogambar Nagar, Vadgaon Sheri, Pune, Tq. And Dist. Pune.2-B]Tushar s/o Vivek Kulkarni (Chaudhary), Age 39 years, Occu. Service, R/o as above.2-C]Rupesh @ Yogesh s/o Vivek Kulkarni (Chaudhary), Age 37 years, Occu. Service, R/o as above.2-D]Minal w/o Sandip Muley, Age 41 years, Occu. Household, At present R/o Uttaranagari, Chikalthana, Aurangabad.3.Rajendra s/o Madhukar Kulkarni (Chaudhary) Age 59 years, Occu. Agri. & Business, R/o 13, Nana Kuti, Mundada Nagar, Jalgaon, Tq. And Dist. Jalgaon.4.Dilip s/o Baburao Palkhe, Age 67 years, Occu. Pensioner, R/o Near Ganpati Mandir, Bambhori, Dist. Jalgaon...Appellants sa-26-2023.odt(2)Versus1.Vasudev s/o Narayan Chaube, Age 73 years, Occu. Agri. & Business, R/o Abhinave Apartment, Near Lions Hall, Adarsh Nagar, Jalgaon, Tq. And Dist. Jalgaon.2.Prakash s/o Babulal Chaube Age 68 years, Occu. Agri. & Business, R/o Chaube House, Polan Peth, Jalgaon, Tq. And Dist. Jalgaon...Respondents...Advocate for Appellants : Mr. G.G. KadamAdvocate for Respondent Nos.1 & 2 : Mr. J.R. Shah h/f Mr. A.R. Syed... CORAM : S. G. CHAPALGAONKAR, J. DATED : AUGUST 11, 2025 ORDER :-1.Present appeal is filed impugning judgment and decreedated 30.08.2022 passed by District Judge, Jalgaon in Regular CivilAppeal No.189 of 2018 thereby upholding judgment and decree dated31.08.2008 passed by Civil Judge Senior Division, Jalgaon in SpecialCivil Suit No.310 of 2010 thereby dismissing suit ofappellant/plaintiff seeking decree of specific performance of contract. 2.The appellant/plaintiff instituted Special Civil SuitNo.310 of 2010 before learned Civil Judge Senior Division, Jalgaonseeking specific performance of contract based on agreement to saledated 21.05.2003. It is contention of plaintiff that land Block No.114is owned and possessed by defendant no.1 and land Block No.117 isowned and possessed by defendant no.2. The defendants jointly sa-26-2023.odt(3)agreed to sale suit land to plaintiff for consideration of Rs.8,75,000/-.On 21.05.2003, defendants executed agreement to sale afteraccepting Rs.50,000/- towards earnest money. It is contention ofplaintiff that defendants were under obligation to bring permissionfor sale transaction from District Collector, Jalgaon, further carryingout measurement of suit land before execution of sale deed apartfrom other terms and conditions in the agreement. According toplaintiff, although she was always ready and willing to perform herpart of contract, defendants failed to take necessary steps forexecution of sale deed. Ultimately, she issued a legal notice todefendants. Inspite of service of such notice, sale deed was notexecuted. Hence, the suit is filed for specific performance of contract,possession of suit land, perpetual injunction and in alternative forrefund of earnest money of Rs.50,000/- along with interest @ 18%p.a. 3.The defendants appeared in the suit. They admittedexecution of agreement to sale but contended that sale transactionwas to be completed within a period of four months from the date ofagreement. The plaintiff has manipulated the original agreement andinserted some terms and conditions which are not part of agreedcontract. The plaintiff was never ready and willing to perform herpart of contract. The agreement is already cancelled. Present suit isfiled with intention to extract money. sa-26-2023.odt(4)4.The Trial Court framed issues and recorded affirmativefinding on point of execution of agreement to sale. However, heldthat plaintiff failed to prove her readiness and willingness to performher part of contract and suit is barred by limitation. The Trial Courtaccepted contention of defendants that plaintiff has manipulated theterms and conditions in the contract. In result, dismissed the suit.The Appellate Court also concurred with the Trial Court anddismissed Regular Civil Appeal No.189 of 2018 filed by plaintiff.5.Mr. G.G. Kadam, learned advocate appearing forappellants submits that both Courts have concurrently held thatplaintiff has proved agreement to sale dated 21.05.2003, therefore, itwas imperative to grant decree of specific performance as prayed. Hewould submit that defendants were aware about the requisition ofpermission from Collector for alienation of sale deed. Accordingly,they were put under obligation to bring such permission. However,both Courts have erroneously ignored the aforesaid condition underpretext that it is subsequently inserted. Mr. Kadam further submitsthat assuming that plaintiff was not entitled for relief of specificperformance, at least decree for refund of earnest amount ought tohave been passed.6.Per contra, Mr. J.R. Shah, learned advocate appearing forrespondents submits that both Courts concurrently recorded findingthat plaintiff has unilaterally altered the terms of contract without sa-26-2023.odt(5)notice to respondents. Resultantly, the agreement stood automaticallycancelled. He would submit that if there is interpolation inagreement, the purchaser is precluded from seeking enforcement ofhis right under such forged agreement. According to Mr. Shah, theconduct of appellant is sufficient to discard her claim for discretionaryrelief of specific performance. Mr. Shah would further submit that thesuit is hopelessly barred by limitation as per terms of agreement. Theperiod for performance of contract was fixed for four months. Inresult, no substantial questions of law arises for consideration in thepresent case. Both Courts have recorded concurrent findings of factswhich need not be interfered in second appeal.7.Having considered submissions advanced, it cannot bedisputed that agreement to sale dated 21.05.2003 was executed byrespondents in favour of plaintiff in respect of suit land. It is also notdisputed that first time the plaintiff issued notice for specificperformance of contract on 08.12.2010 and filed present suit on23.12.2010. Evidently, plaintiff took no steps for getting execution ofsale deed from defendants for more than seven years. The plaintiffhas relied upon certain terms of agreement to sale which putobligation on defendants to obtain permission of sale from the officeof Collector and also cause measurement from competent authorityand produce copy of such measurement. All the aforesaid three termsare handwritten part of agreement whereas entire agreement is sa-26-2023.odt(6)typewritten. The defendants have brought on record the copy ofagreement, before it was notarized, wherein all aforesaid three termsare absent. Pertinently, during cross-examination plaintiff hascandidly admitted that aforesaid terms are inserted to save agreementbeing expired or barred by limitation. The aforesaid admissionrecorded during cross-examination of plaintiff clearly shows thatoriginal agreement is interpolated unilaterally by plaintiff.8.Apart from aforesaid position, the Trial Court held thatsuit of plaintiff is barred by limitation observing that the registeredsale deed was agreed to be executed within a period of four monthsfrom the date of agreement to sale. The agreement to sale is executedon 21.05.2003. The suit is filed on 23.12.2010. PW-2 has admittedin cross-examination that to save agreement being barred by law oflimitation, the interpolation is made by adding handwritten terms.From aforesaid facts, it can be gathered that plaintiff was aware thattime was essence of contract and with intention to save it beingrendered futile, interpolation has been introduced. It is also matter ofrecord that plaintiff issued legal notice to defendants on 08.12.2010and filed suit within 15 days of issuance of notice. No infirmity canbe found in observations of Trial Court holding that suit is barred bylimitation. 9.Thirdly, both Courts have concurrently held that plaintifffailed to prove readiness and willingness to perform her part of sa-26-2023.odt(7)contract. Apparently during period from 21.05.2003 i.e. from thedate of execution of agreement till date of issuance of legal notice on08.12.2010, plaintiff failed to take any steps to secure execution ofagreement to sale. Seven years silence on the part of plaintiff itself issufficient to demonstrate that she was not ready and willing toperform her part of contract. The terms which was later on insertedare held to be unilateral insertion and therefore, the plaintiff cannotbe allowed to rely upon such terms to contend that defendantsdefaulted in performing their part of contract or breach the conditionsof contract. 10.Section 16 of Specific Relief Act creates personal bars tosuits. Clause (c) of Section 16 mandates that party seeking specificperformance of contract was always ready and willing to performessential terms of contract. In case of PYDI Ramana Alias RamuluVs. Davarasety Manmadha Rao reported in (2024) 7 SCC 515, theHon’ble Supreme Court observed in paragraph nos.13 and 15 whichreads thus :“13. In order to obtain a decree for specific performance, theplaintiff must aver and prove that he has performed his part ofthe contract and has always been ready and willing to performthe terms of the contract which are to be performed by him.Section 16(c) of the Specific Relief Act mandates “readinessand willingness" of the plaintiff to be averred and proved and itis a condition precedent to obtain the relief of specificperformance. sa-26-2023.odt(8)15. As per the recital in the agreements, the defendant wasrequired to get the suit land surveyed and as such the totalconsideration was agreed to be settled after such survey. Onthe one hand, the plaintiff contends that the defendant nevergot surveyed the suit land. On the other hand, pleadings andevidence of the plaintiff is silent on steps taken by the plaintiffas expected of a reasonable person which has not been taken inthe instant case, namely, the plaintiff has not produced anyevidence either oral or documentary to establish that there wasany demand made by him for the land being surveyed by thedefendant. No witnesses have been examined on behalf of theplaintiff to establish that at any point of time there has beendemand made by the plaintiff with the defendant by callingupon him to get the suit land surveyed as agreed under theagreement of sale Ext. A-1.”11.The aforesaid exposition of law would depict thatplaintiff must show positive steps taken by him to secure specificperformance. Long standing silence defeats right to claim specificperformance. In present case, plaintiff miserably failed to show hiswillingness. The delay of seven years to initiate proceeding in suit isfatal to claim of plaintiff.12.Mr. J.R. Shah, learned advocate appearing forrespondents is justified in contending that once it is found thatmaterial alteration in original contract which varies the rights,liabilities, or legal position of the parties as ascertained by the deed inits original state or otherwise varies the legal effect of the instrumentas originally expressed, or reduces to certainty and as such renders it sa-26-2023.odt(9)void. The effect of making such an alteration without the consent ofthe party bound is exactly the same as that of cancelling the deed. Insupport of his contention, he rightly relied upon the observations ofPrivy Counsel in the case of Nathu Lal and Others Vs. MusammatGomti Kuar and Others reported in AIR 1940 PC 160. Similarly, Mr.Shah invites attention of this Court to observations of Hon’bleSupreme Court in case of Loonkaran Sethia Vs. Mr. Ivan E. John andOthers reported in AIR 1977 SC 336, particularly para 30 which readsthus :“30. As the above mentioned alterations substantially vary therights and liabilities as also the legal position of the parties, theycannot be held to be anything but material alterations and sincethey have been made without the consent of the defendants firstset, they have the effect of cancelling the deed. Question No. 5 is,therefore, answered in the affirmative.”13.Mr. Shah has further invited attention of this Court tojudgment of Division Benches of Madras High Court in case of JanabMHM Yakoob (died) and others Vs. M. Krishnan (died) and othersreported in AIR 1992 Mad 80, wherein it is held that in case ofinterpolation in agreement regarding recitals, the purchaser cannotenforce his right under agreement and no specific relief can begranted.14.In light of aforesaid exposition of law, when plaintiffadmitted in cross-examination regarding interpolation in original sa-26-2023.odt(10)agreement thereby causing material alterations as to obligations ofrespective parties, the plaintiff has lost his right to seek specificperformance of contract. In such case, no sanctity can be attached tothe agreement and no relief can be granted based on the same. 15.Although Mr. Kadam, learned advocate appearing forappellants contends that the Courts below ought to have grantedalternate prayer for refund of earnest money, this Court finds that theinterpolation in documents would vitiate entire contract as observedin the judgments referred above. Further, the agreement executed inthe year 2003 is sought to be exhausted in the year 2010. As such,even it is assumed that plaintiff had right to recover the amount ofearnest money, such claim would be beyond the period of limitation.In that view of matter, no substantial question of law exist in thisappeal, no case is made out to cause interference under Section 100of Civil Procedure Code.16.In result, second appeal stands dismissed.17.Civil Application No.839 of 2023 stands disposed of.(S.G. CHAPALGAONKAR, J.)Mujaheed//