SA-J-436-17 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.436 OF 2017
Ramesh s/o Satyanarayan Gupta,
Aged 52 years, Occ. Business,
R/o 165, City Post Office Road,
Opposite Haldiram Khapripura,
Itwari, Nagpur. ... Appellant
-vs-
Shantidevi wd/o Tarachand Marotiya,
Aged about70 years, Occ. Household,
R/o Khapripura, Itwari,
Nagpur. ... Respondent
Ms Ritu P. Jog, Advocate, i/b Shri A. C. Dharmadhikari, Advocate for
appellant.
Shri S. V. Bhutada, Advocate for respondent.
CORAM : A. S. CHANDURKAR, J.
DATE : September 07, 2017 Oral Judgment :
The unsuccessful defendant who has suffered a decree for specific performance of agreement dated 28/03/2007 passed by the trial Court and confirmed by the first appellate Court has filed the present second appeal.
2. It is the case of the respondent-plaintiff that on 28/03/2007 the defendant entered into an agreement for sale of house property admeasuring ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:04 ::: SA-J-436-17 2/9 about 52.18 sq. mt. for a consideration of Rs.30,00,000/-. As per said agreement the sale deed was to be executed within a period of six months. The defendant was to produce all necessary documents to facilitate execution of the sale deed. According to the plaintiff initially an amount of Rs.16,25,000/- was paid to the defendant. The balance amount was to be paid while executing the sale deed. According to the plaintiff, the defendant started avoiding her just prior to the scheduled date fixed for having the sale deed executed. The plaintiff was ready on the date fixed for completing the transaction but the defendant did not turn up. Hence after issuing notice to the defendant on 06/10/2007 the suit came to be filed immediately.
3. In the written statement the execution of the agreement was not seriously disputed. It was however pleaded that time was the essence of the contract and as the plaintiff had failed to perform her part of contract within the stipulated period, she was not entitled to claim the relief of specific performance. It was denied that the plaintiff was ready and willing to perform her part of the contract.
4. Before the trial Court the plaintiff examined her son and two more witnesses. The defendant examined himself. The trial Court after holding the agreement to be duly proved, found that the plaintiff was ready and willing to perform her part of the contract. It therefore decreed the suit ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:04 ::: SA-J-436-17 3/9 and directed execution of the sale deed of the suit property in favour of the plaintiff. This decree has been confirmed by the first appellate Court.
5. Ms R. Jog, learned counsel for the appellant submitted that both the Courts erred in granting the decree of specific performance. There was no evidence on record to indicate readiness and willingness of the plaintiff to complete the transaction. It was submitted that time was the essence of contract in view of the fact that it had been so stipulated in the agreement. The earlier view that time was not the essence of the contract had now undergone a change. The defendant was in need of the aforesaid amounts and therefore it was incumbent upon the plaintiff to have completed the transaction by the agreed date. It was submitted that the plaintiff had come with a false case that the defendant did not supply necessary documents for completing the transaction. In fact no objection certificate of any Authority was not at all required for executing the sale deed. As the plaintiff did not have necessary funds, she had come up with the case that it was the defendant who was avoiding the transaction. It was then submitted that the suit property being the only property owned by the defendant, hardship was likely to be caused to the defendant if the decree was passed. On the basis of evidence on record, it was submitted that the defendant intended to purchase some other property but this could not be done on account of the plaintiff's inaction. In support of her submissions, the learned counsel ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:04 ::: SA-J-436-17 4/9 placed reliance on the following decisions :
(i) Saradamani Kandappan vs. S. Rajalakshmi and ors. (2011) 12 SCC 18.
(ii) N. P. Thirugnanam (dead) by Lrs. vs. Dr R. Jagan Mohan Rao and ors.
(1995) 5 SCC 115.
(iii) Pushparani S. Sundaram and ors. vs. Pauline Manomani James (deceased) and ors. (2002) 9 SCC 582.
(iv) Jugraj Singh and anr. vs. Labh Singh and ors. AIR 1995 SC 945
(v) Pramod Buldings and Developers Pvt. Ltd. vs. Shanta Chopra (2011) 4 SCC 741.
(vi) Padmakumari and ors. vs. Dasayyan and ors. (2015) 8 SCC 695 (vii) Prakash Chandra vs. Narayan (2012) SCC 403.
6. On the other hand Shri S. V. Bhutada, learned counsel for the respondent supported the impugned judgment. It was submitted that both the Courts rightly found the plaintiff to be ready and willing to perform her part of contract. The plaintiff had paid more than the agreed amount prior to the dates fixed in the agreement. She was ready to have the sale deed executed on the agreed date. It was rightly found that the defendant was avoiding to complete the transaction. He submitted that the conduct of the plaintiff indicated her readiness and willingness inasmuch as notice came to be issued within ten days from the agreed date for completing the transaction. The suit was also filed within a month of the agreed date. In fact as per the reply given by the defendant to the plaintiff's notice, he was demanding additional consideration for completing the sale deed. It was then submitted that the pleadings with regard to hardship were not ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:05 ::: SA-J-436-17 5/9 sufficient. The trial Court did not frame any issue in that regard and no grievance was made by the defendant in that respect before the first appellate Court. He referred to the provisions of Section 20 of the Specific Relief Act, 1963 and submitted that the hardship as alleged was not something which was not foreseen. He therefore submitted that the findings of fact recorded by both the Courts did not deserve to be interfered with.
7. I have heard the learned counsel for the parties at length and I have also perused their pleadings and the evidence on record. The execution of the agreement dated 28/03/2007 is not in dispute. It is to be noted that as per the said agreement initially an amount of Rs.5,00,000/- was to be paid as earnest amount. Further amount of Rs.5,00,000/- was to be paid on a date agreed and the balance amount of Rs.20,00,000/- was to be paid by having the sale deed executed. The plaintiff however paid an amount of Rs.5,00,000/- on 05/04/2007, Rs.3,75,000/- on 25/04/2007, Rs.5,00,000/- on 09/05/2007 and Rs.2,50,000/- on 07/09/2007. Thus total amount of Rs.16,25,000/- was paid. The balance amount to be paid was Rs.13,75,000/- as against the amount of Rs.20,00,000/- that was agreed to be paid while executing the sale deed.
8. In the agreement it was stated that the sale deed would be ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:05 ::: SA-J-436-17 6/9 executed by 27/09/2007 and that the defendant was in need of the amount agreed due to which said agreement was entered into. It has been urged that the agreement being for sale of immovable property, time was the essence of the contract and that the plaintiff ought to have taken necessary steps for having the sale deed executed within the time agreed. Having not done so, the plaintiff was not entitled for a decree of specific performance. In this regard it is to be noted that the defendant agreed to obtain all necessary permissions and documents for executing the sale deed. He also agreed to pay all taxes till execution of the sale deed. In his cross- examination the defendant admitted that he had not obtained any no- objection certificate nor had he issued any notice to the plaintiff to have the sale deed executed.
On the other hand, on 29/09/2007 i.e immediately after two days of the date fixed for executing the sale deed, the plaintiff issued a notice to the defendant calling upon the defendant to accept the balance consideration and execute the sale deed. It was stated that on the scheduled day the plaintiff was ready for having the sale deed executed. In response to this notice, the defendant issued a reply on 01/11/2007. In this reply it was stated that all necessary papers for executing the sale deed were ready with the defendant and the same were also handed over to the plaintiff. However the plaintiff did not act as per the terms and conditions agreed. It was further stated that on account of the delay in completing the transaction the ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:05 ::: SA-J-436-17 7/9 value of the property had increased. The defendant expressed his readiness to execute the sale deed by accepting a total amount of Rs.40,00,000/-.
9. From the aforesaid conduct of the parties, it can be seen that the plaintiff issued notice immediately after two days of the date fixed for executing the sale deed. From the reply given by the defendant, it is clear that the defendant was ready to have the sale deed executed even on 01/11/2007 but by accepting a higher amount. The demand of an additional amount of Rs.10,00,000/- within a period of one month is also not justified. It is to be noted that even before the defendant issued his reply, the plaintiff on 17/10/2007 had already filed the suit for specific performance. In other words within a period of sixteen days from the date it was agreed to have the sale deed executed, the plaintiff had filed the suit for specific performance. In the light of these facts, the submission as urged on behalf of the appellant that time being the essence of contract and the plaintiff failed to abide by the stipulated agreement cannot be accepted. By examining the facts of the present case and the evidence as led, I am satisfied that the plaintiff has succeeded in proving her readiness and willingness to perform her part of the contract. This is after considering the observations made in paragraph 43 of the decision in Sardamani Kandappan as well as the ratio of other decisions relied by the appellant (supra). The present is not a case for refusing specific performance on the ground that time was the essence of the ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:05 ::: SA-J-436-17 8/9 contract.
10. On the question of hardship it has to be seen that in the written statement it was pleaded that the suit property was the only property of the defendant and due to increase in prices of properties it was not possible for the defendant to purchase any other property. The hardship as pleaded therefore is with regard to the agreement being entered into with regard to the only property of the defendant. It has been rightly submitted on behalf of the respondent that this hardship was one which was foreseen by the defendant. By entering into the agreement dated 28/03/2007 the defendant intended to sell his only property to the plaintiff. In view of provisions of Section 20 read with explanation (2) thereof of the Specific Relief Act, 1963 it cannot be said that this hardship was not foreseen by the defendant when he entered into the agreement. The decision in Prakash Chandra (supra) does not assist the case of the appellant. Moreover it was generally stated by the defendant that he had searched for alternate premises after the aforesaid agreement was entered into without giving any details thereof.
11. In view of aforesaid discussion, I do not find that both the Courts committed any error when they found that the plaintiff was entitled for a decree of specific performance. Her readiness and willingness was duly proved and the defendant failed to make out any case of hardship. I do not ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:05 ::: SA-J-436-17 9/9 find any reason to arrive at a different conclusion than one arrived at by both the Courts. Hence the second appeal is dismissed with no order as to costs.
12. At this stage, learned counsel for the appellant prays that the decree passed by the trial Court may not be executed for a period of eight weeks.
This request is opposed by the learned counsel for the respondent. In the facts of the case, the decree passed by the trial Court shall not be executed for a period of eight weeks from today.
This protection shall come to an end automatically after the said period.
JUDGE Asmita ::: Uploaded on - 11/09/2017 ::: Downloaded on - 12/09/2017 01:32:05 :::