Bombay High Court
Yashodabai Ishwar Chaware vs Mathabai Narayan More on 11 January, 2021
Bench: V. V. Kankanwadi
(1) SA No.41/2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.41 OF 2021
with
CIVIL APPLICATION NOS.1128/2021 & 1129/2021
Yashodabai Ishwar Chaware = APPELLANT
(Orig.Plaintiff)
VERSUS
Mathabai Narayan More = RESPONDENT
(Orig.Defendant)
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Mr.PP Dhorde,Advocate for Appellant
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 11th February, 2021.
PER COURT :-
1. Present appeal has been filed by original
plaintiff to challenge the concurrent judgment and
decree in Regular Civil Suit No.68 of 2010 decided by
learned 3rd Joint Civil Judge Junior Division,
Shrirampur, Dist. Ahmednagar on 03-05-2014; which came
to be confirmed in Regular Civil Appeal No.35 of 2016
by learned District Judge-1, Shrirampur on 02-12-2019.
The suit, filed for specific performance of contract
and perpetual injunction, came to be dismissed by
learned Lower Court and it was confirmed in appeal.
Parties would be referred by their original status,
henceforth, for the sake of convenience.
2. Original defendant is the owner of
agricultural land bearing Survey No.188/1A, admeasuring
0H, 3.5R situated at Bhairavnath Nagar, Tal.
Shrirampur.
(2) SA No.41/2021
3. Original plaintiff has come with a case that
the defendant had agreed to sell and she had agreed to
purchase the suit property on 26-08-2002 for a
consideration of Rs.20,000/-. She had given earnest
amount of Rs.17,500/- on the date of agreement to the
defendant. It was decided that the sale-deed would be
executed within a period of one month and at that time
the remaining amount of Rs.1,500/- would be given. The
said agreement was executed before Notary. Possession
receipt was executed by the defendant on the next date
by handing over the possession of the suit land to him.
The defendant failed to execute the sale-deed within
the stipulated period. He had called upon the defendant
to execute the sale-deed, however, his notice was
replied but not favourably. Hence, the suit was filed.
4. The defendant resisted the claim of the
plaintiff by filing written statement. The defendant
denied the execution of any such document in favour of
the plaintiff. She denied the fact of parting with the
possession over the suit land. It was contended that
her son had obtained hand-loan from husband of the
plaintiff and at that time, her signatures were
obtained on some blank documents. The plaintiff has
fabricated the document and used it by showing that
there is such genuine agreement. In fact, at the time
of alleged execution of the document, value of the suit
land was around Rs.7,00,000/-. The plaintiff has
intention to grab the property and, therefore, filed
false suit. The suit is beyond the period of
limitation.
5. After the issues were framed, the parties
have led oral as well as documentary evidence. After
going through the evidence and hearing both sides, the
(3) SA No.41/2021
learned Lower Court has come to the conclusion that
plaintiff proved the execution of the agreement dated
26-08-2002, however, failed to prove that the defendant
has parted with the possession of the suit land with
plaintiff. It has been held that the plaintiff has
failed to prove the handing over the possession of the
suit land to her. The plaintiff was not ready and
willing perform her part of the contract. The suit is
beyond the period of limitation and, therefore, the
suit came to be dismissed. As aforesaid, the said
judgment and decree has been confirmed by the First
Appellate Court. Hence, this appeal under Section 100
of Code of Civil Procedure.
6. Heard learned Advocate Shri. P.P. Dhorde for
the appellant/plaintiff. Perused the impugned judgments
and other documents produced on record. It is not even
necessary to issue notice to the respondent/defendant.
No substantial questions of law are arising in this
case and, therefore, the appeal is required to be
dismissed in limine for the reasons stated below.
7. It has been submitted on behalf of the
appellant-plaintiff that both the Courts below have not
properly grasped the facts and evidence. Both the
Courts have come to wrong conclusion that the suit has
been filed beyond the period of limitation. Both the
Courts have correctly held that the plaintiff has
proved that the defendant had agreed to sell the suit
land to the plaintiff and plaintiff has paid the
earnest amount. The possession receipt was executed by
the defendant on the second day and since then the
plaintiff is enjoying the suit land. The plaintiff was
always ready and willing to perform her part of the
contract. She had paid substantial amount as earnest
(4) SA No.41/2021
amount on the date of agreement. Only amount of
Rs.1,500/- was remained to be paid. This fact itself
would show that she was ready and willing to perform
her part of the contract. Both the lower Courts have
also not passed the order of refund of earnest amount
to the plaintiff. Therefore, the substantial questions
of law are arising in this case.
8. At the outset, it can be seen that both the
Courts have come to the conclusion that the plaintiff
has proved that the defendant had agreed to sell suit
land to the plaintiff and agreement to that effect had
taken place on 26-08-2002 (Ex.37). Perusal of said
agreement Ex.37 would show that the plaintiff had given
earnest amount of Rs.17,500/- to the defendant on that
date. The consideration was fixed at Rs.20,000/-. There
is no whisper about handing over of possession to the
plaintiff on that date, in that agreement. It is not
made clear by the plaintiff as to why the alleged
possession receipt was executed on the next date and
not on the same date. If the possession would have been
handed over on the same date, then such agreement
should have been compulsorily registered under Section
17 of the Indian Registration Act. If the plaintiff
intends to protect the alleged possession over the suit
land under Section 53A of Transfer of Property Act,
then it should be proved by him that the said agreement
is in writing and it is registered. Here, the plaintiff
has failed to give that explanation in respect of
possession and, therefore, both the Courts have rightly
held that he has failed to prove the possession.
Discretionary relief of injunction has been rightly
refused.
9. Now turning to the relief of specific
(5) SA No.41/2021
performance of the contract, it can be seen that the
said agreement was executed on 26-08-2002. The
plaintiff has filed the suit on 22-04-2010, i.e. after
a period of about 8 years. Perusal of agreement Ex.37
would show that in clause No.2 thereof, it was
specifically mentioned that the plaintiff should give
the remaining amount of Rs.1,500/- within a period of
one month, then defendant would execute sale-deed. No
other condition was imposed. No doubt, the remaining
amount of consideration was meager but limitation or
duration of its tender was important. It is not the
case of the defendant that plaintiff could have not
have raised the remaining amount within the period of
one month. However, when plaintiff was just to tender
that amount and get the sale-deed executed within one
month from 26-08-2002, then it was for the plaintiff to
explain as to why she had not taken any such step to
fulfill the said part of the contract. Taking into
consideration the duration fixed for the payment of
remaining amount of consideration, it can be said that
the parties had the intention to treat time as the
essence of contract. Though there is no clause for
forfeiture of the earnest amount, yet the duration
itself speaks about the intention of the parties. The
said duration appears to have been fixed taking into
consideration the amount remained to paid/given. The
plaintiff has not at all explained as to why she had
not taken any such step to get the sale-deed executed
within the period of said 8 years. Even if we consider
that time was not essence of the contract, yet, the
action, which should be taken by the plaintiff, should
be within a reasonable period. Absence of any action
for a considerable period of 8 years can not be said to
be a reasonable period. The plaintiff has not come with
a case that she had tried to tender the remaining
(6) SA No.41/2021
amount within the aforesaid period, but was not
accepted by the defendant. The burden to prove
'readiness and willingness' was on the shoulders of the
plaintiff, in which she has failed. Both the Courts
below have, therefore, rightly come to the conclusion
that the plaintiff is not entitled to get the relief of
specific performance.
10. When the action was not taken within a period
of reasonable period, then it will have to be held that
the suit filed after a period of 8 years is beyond the
period of limitation. When the suit itself is beyond
the period of limitation, no question arises for
directions to the defendant to refund the earnest
amount.
11. Both the Courts below have not committed any
error of fact or of law. No substantial questions of
law, as contemplated under Section 100 of Code of Civil
Procedure, are arising in this case and, therefore, the
second appeal deserves to be dismissed in limine. It is
dismissed accordingly. Pending Civil Applications stand
disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
