Ramesh S/O Satyanarayan Gupta vs Shantidevi Wd/O Tarachand ...
2017 Latest Caselaw 6882 Bom

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

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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

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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

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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

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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

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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

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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

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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

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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