Gitabai Anant Limaye vs Farhatulla Khan Hameed Khan
2018 Latest Caselaw 1050 Bom

                                    (1)                      1- AO 84 of 2016



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                    1 APPEAL FROM ORDER NO. 84 OF 2016

Gitabai w/o. Anant Limaye
Age: 47 years, Occu.: Agriculture,
R/o.Bilwa, 12/A, Shilpa Nagar,
Station Road, Aurangabad.                             ..Appellant

               VERSUS

Farhatulla Khan s/o. Hameed Khan
Age: 59 years, Occu.: Business,
R/o.Behind Johar Hotel, Mill Corner,
Aurangabad.                                           ..Respondent

                             ...
         Advocate for Appellant : Mr.Amar D.Soman 
     Advocate for Respondent : Mr.Shaikh A.T.Patel and
                        Mr.G.M.Patel
                             ...

                                    CORAM :  M.S.SONAK, J.
                                    DATE  : 29.1.2018

ORAL JUDGMENT:-

1)    The   challenge   in   the   appeal   is   to   the   order   dated

18.9.2015   made   by   the   Trial   Court   on   appellant's

application   at   Exh.18   in   Special   Civil   Suit   No.162   of

2015.  The original plaintiff has instituted his suit for

specific   performance.     In   the   said   Suit,   the   appellant




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                                     (2)                     1- AO 84 of 2016



herein who is defendant, made categorical statement that

the appellant is willing and ready to execute sale-deed

in   terms   of   agreement   of   sale   dated   4.9.2014   for   its

specific   performance   applied   for,   providing   the

respondent i.e. original plaintiff pays/deposits balance

consideration amount of Rs.5,25,10,000/- in the Court.



2)    The Trial Court, after hearing the parties, disposed

of   the   said   application   by   the   impugned   order   dated

18.9.2015.     Paragraph   Nos.5   and   6,   which   include   the

operative portion of the impugned order reads as follows:



     "5. Taking   into   consideration   the   fact   that,
     plaintiff   has   filed   present   suit   against
     defendant   contending   that,   he   is   ready   and
     willing   to   perform   his   part   of   contract   but
     defendant is not ready to perform her part.   It
     is   necessary   for   plaintiff   to   show   his
     willingness   to   pay   the   remaining   amount   of
     consideration.     Ld.   Advocate   for   defendant   Shri
     Gangtire   argued   that,   defendant   is   not   asking




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                                    (3)                     1- AO 84 of 2016



plaintiff   to   pay   the   remaining   amount   of
consideration   to   the   defendant   but   praying   that
the amount be deposited in the Court.


6.      The   controversy   regarding   situation   and
measurement of suit property is concerned it can
be   resolved   during   the   trial.   I   agree   with   the
argument   of   the   Ld.   Advocate   for   defendant   as
defendant   as   ready   and   willing   to   perform   the
contract   if   plaintiff   deposits   balance
consideration   amount   in   the   Court.     It   is   also
necessary   to   show   ready   and   willingness   of
plaintiff   to   perform   his   part   of   contract   by
depositing balance amount of consideration in the
Court.     Hence,   I   proceed   to   pass   the   following
order:-
                               O R D E R

1]       Application is allowed.


2]      Plaintiff   to   deposit   balance   amount   of

consideration Rs.5,25,10,000/- in the Court.


3]      Application is disposed of.

                                   Sd/-
Place: Aurangabad             (K.V.More)
                     rd
Date: 18-09-2015    3  Joint C.J.S.D.Aurangabad"




                                     (4)                   1- AO 84 of 2016



3)    From the aforesaid, it is clear that infact, Exh.18

was substantially decided in favour of the appellant,

however, the appellant is only aggrieved by the omission

on the part of the Trial Court in not fixing a time limit

for deposit of balance consideration amount. It is

pointed out that on account of such omission, respondent

is refusing to deposit the amount and went on raising one

dispute and other as to avoid deposit. The limited

challenge in this appeal therefore is related to the

omission on the part of the learned Trial Court to fix

time limit for deposit of the balance consideration

amount.

4) This appeal from order, came up for hearing on

several occasions and was adjourned from time to time in

order to enable Mr.Patel learned counsel appearing for

the respondent to take instructions as to time limit

within which such amount will be deposited. This was on

the basis that it was an obvious omission on the part of

(5) 1- AO 84 of 2016

the learned Trial Court to fix the time limit. The

impugned order as noted the above, clearly directs the

respondent to deposit the balance consideration amount.

However, since, no time limit is specified, the Trial

Court has rendered its own order ineffective thereby

affording an opportunity to the respondent to avoid

deposit. This is a case of obvious omission, which

borders on the arena of error apparent on the face of

record. However, on realizing that the amount involved

is substantial and with that view for fairly granting the

respondent some time to deposit the amount to show

bonafides, this Court has been indulging the respondents.

This is quite evident from the various orders made from

time to time in this matter.

5) However, it is unfortunate to record that the

respondent has attempted to exploit such indulgence. For

example, with the same direction to obtain instructions,

the matter was posted on 24.1.2018. On such date, an

(6) 1- AO 84 of 2016

adjournment was applied for on the ground that Mr.Patel

was sick and therefore, unable to attend this Court.

Since adjournment was applied on learned counsel's

sickness, the same was granted, however, this Court made

the following order on 24.1.2018:-

"1 On the last occasion, learned Counsel for the respondent was requested to take instructions from the respondent as to the time limit within which they would deposit before the trial Court an amount of Rs.5,25,10,000/- in terms of the order made by the trial Court below Exhibit-18.

2 Today, when the matter is called out, Mr.Govind Kulkarni, who holds for Mr.Ashpaq Patel, learned Counsel for the respondent, seeks time on the ground that Mr.Patel is sick.

3 Mr.A.D.Soman, learned Counsel for the appellant, submits that on last several occasions, when the matter has been adjourned, to enable learned Counsel for the respondent to take instructions as to the time limit within which the amount is to be deposited, on the following

(7) 1- AO 84 of 2016

dates, learned advocate Mr.Patel has reported sick. He submits that this is a repeat of what has happened on the past few occasions and, therefore, he submits that no further adjournment should be granted in this case.

4 Without commenting upon what may or may not has happened on the past occasions, now that adjournment is applied for on the ground of Mr.Patel's sickness, it is only proper that the matter is adjourned till 29th January, 2018, so as to enable Mr.Patel to make a statement, however, it is made clear that if, by Monday, Mr.Patel is unable to attend the Court proceedings or is unable to obtain any instructions, then, alternate arrangement will have to be made because, it is not possible to keep on adjourning this matter. Mr.Kulkarni undertakes to inform Mr.Patel about this order today itself.

Stand over to 29.01.2018, first on board.

Sd/-

M.S.SONAK JUDGE"

6) Today, when the matter was called out, Mr.Patel

(8) 1- AO 84 of 2016

appeared and tendered affidavit in reply. To the pointed

query as to whether instructions have been obtained as to

the time limit within which the balance consideration

amount will be deposited, again Mr.Patel argues that

since the appellant is yet to perform his part of the

contract, the direction for deposit ought not to have

made. What is most surprising is that on 24.1.2018 on

the date which Mr.Patel was reported to be sick, the

respondent has instituted a Writ Petition to challenge

the order dated 18.9.2015 i.e. order impugned in this

appeal. Such writ petition has been instituted after

more than 2 and 1/2 years. Such writ petition has been

instituted after seeking time to obtain instructions as

to time limit within which the deposit will be made.

Such writ petition has been instituted possibly to see

whether the hearing of this appeal is derailed since, the

assignment of taking up writ petitions is not before this

Court. Be that as it may, as of now, the order dated

18.9.2015, to that extent, it requires the respondent to

(9) 1- AO 84 of 2016

deposit the balance consideration stands. The only

question is whether the omission to prescribe time limit

was justified. Clearly, the omission to prescribe time

limit was not at all justified and to that extent the

impugned order dated 18.9.2015 is required to be

modified.

7) Mr.Patel's submission that the land is covered under

Ceiling Act or is covered under certain other

Legislations, which prohibits sale without permission of

Collector or some other authorities cannot be entertained

in this case. In any case, Mr.Patel clarifies that such

contentions do not apply to Appeal from Order No.84 of

2016 but apply to Appeal from Order No.82 of 2016.

Admittedly, Appeal from Order No.82 of 2016 relates to

some other property and on the basis of the same, hearing

in this petition was again attempted to be derailed by

Mr.Patel by submitting that this appeal is ordered to be

heard alongwith Appeal for Order No.82 of 2016. However,

( 10 ) 1- AO 84 of 2016

Mr.Patel was unable to show any such order.

8) In any case, it is necessary to clarify that

whatever objections that respondent may have, have not

been shut-out by the Trial Court. The impugned order does

not direct payment of balance consideration directly to

the appellant. The impugned order only directs the

deposit of said consideration.

9) In the facts and circumstances of the present case,

such a direction is quite correct because it is for the

respondent/plaintiff to establish that he was not only

ready and willing to fulfill his part of the contract,

but further he continues to and willing to continue his

part of contract.

10) The impugned order is accordingly modified. The

respondent/original plaintiff is directed to deposit

before the Trial Court the balance consideration of

( 11 ) 1- AO 84 of 2016

Rs.5,25,10,000/- within a period of two weeks from today,

failing which it will be open to the Trial Court to make

such order as is permissible under law. In making such

an order, the Trial Court will not be influenced by its

earlier order dated 8.7.2016 by which the application

under Order 7 Rule 11 came to be rejected.

11) The appeal is accordingly allowed in the aforesaid

terms.

12) The respondent shall pay costs of Rs.5,000/- to the

appellant, again within a period of two weeks from today.

[M.S.SONAK, J.]

SPT/1- AO 84 of 2016