Shabbir Bapu Mujawar vs Suresh Ramchandra Kulkarni And ...
2022 Latest Caselaw 4467 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
                  FIRST APPEAL (ST) NO.93871 OF 2020
                                   WITH
                 INTERIM APPLICATION NO.2785 OF 2022


Shabbir Bapu Mujawar                         ..     Appellant

                       Versus

Suresh Ramchandra Kulkarni & Ors.            ..     Respondents


                                       ...

Mr.Kuldeep U. Nikam for the Appellant/Applicant.
                                       ...

                          CORAM: BHARATI DANGRE, J.

DATED : 27th APRIL, 2022

P.C:-

INTERIM APPLICATION NO.2785 OF 2022

1. Heard the learned counsel Mr.Kuldeep Nikam for the

Appellant.

2. The appeal is fled, being aggrieved by the Judgment

delivered by the 3rd Joint Civil Judge, Sr.Division, Sangli dated

22/01/2020 in Special Civil Suit No.200 of 2013.

The appellant is the original plaintiff, who fled the suit

for specifc performance qua an agreement dated 13/07/2012,

with the specifc pleading that the plaintiff agreed to purchase

M.M.Salgaonkar

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the properties and the defendants have agreed to execute the

sale deed in favour of the plaintiff by accepting earnest money.

The trial Court settled the issue as to whether the

plaintiff proves that defendants have agreed to sell the suit

property and executed agreement and also the issue whether

the plaintiff proves that he has paid earnest amount. The trial

Court answered both the issues in the affrmative and the

burden to prove whether the time is the essence of the

contract was cast upon the defendant and on this count, the

plaintiff is aggrieved by the reasoning contained in para 20 of

the impugned judgment, overriding the general principle that

that the time is not the essence of contract in respect of

immoveable property, but in the present case, the time limit

for payment of consideration was specifcally set out in the

agreement for sale and, therefore, recording that intention of

the parties to treat the time as the essence of the contract, is

suffcient enough to displace the normal presumption, the suit

came to be dismissed.

The learned counsel Mr.Nikam placed reliance upon the

decision of the Hon'ble Supreme Court in the case of Chand

Rani (Smt) (dead) by L.Rs. Vs. Kamal Rani (Smt.)(dead) by

L.Rs. 1993(1) SCC 519 which is followed by the Hon'ble

M.M.Salgaonkar

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Supreme Court in the case of Govind Prasad Chaturvedi

Vs.Hari Dutt Shastri (1977) 2 SCC 539 . The learned Judge

has followed the principle as general presumption, which

prima facie does not appear to be correct.

Issue notice to the respondents, making it returnable on

04/07/2022.

Hamdast granted.

3. Considering the prima facie case, there shall be ad-

interim relief in terms of prayer clause (b).

( SMT. BHARATI DANGRE, J.)

M.M.Salgaonkar