Rajendra Mohanlal Agrawal vs Abhay Tejraj Rathod And Anr
2022 Latest Caselaw 2487 Bom

                                .. 1 ..                                 SA.144/2022

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                         SECOND APPEAL NO.144 OF 2022

Shri Rajendra Mohanlal Agrawal                               .. Appellant

         Versus

Shri Abhay Tejraj Rathod and another                         .. Respondents
                                ...

Mr. R.N. Dhorde, Senior Advocate i/by. Mr. Mukul S. Kulkarni,
Advocate for the Appellant

Mr. Pramod C. Mayure, Advocate for Respondent No.1 (Caveator)
                               ...
                                          WITH

                      CIVIL APPLICATION NO.3587 OF 2022
                                      IN
                        SECOND APPEAL NO.144 OF 2022
                                      ....

                                          CORAM :   MANGESH S. PATIL, J.

                                          DATE :    14-03-2022

PER COURT :

.                 Heard both the sides on the point of admission.

2. The appellant is the original plaintiff, who is seeking

specific performance of a registered agreement of sale dated

18-06-2004 whereby the respondents agreed to sell the suit property

for total consideration of Rs.36,01,000/- by receiving Rs.5,00,000/-

as earnest money. The sale-deed was to be executed before

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10-12-2004. On failure to get the sale-deed executed, the balance

amount of consideration was to carry interest at the rate of 12% per

annum.

3. The appellant issued a public notice on 11-08-2005

calling upon the objections to the sale. The respondents responded

by issuing two public notices soon thereafter contending that the

agreement was cancelled and also contending that in fact no

agreement was entered into and nothing was accepted as earnest.

The appellant again responded with another notice on 29-08-2005

disclosing his identity. He then by the notice through his advocate

dated 12-01-2006 called upon the respondents to execute the sale

deed. By the reply dated 13-02-2006 they refused to execute the

sale-deed. He then issued a telegram dated 02-11-2006 and

instituted the suit on 05-12-2007.

4. The respondents contested the suit by filing

written statement. They admitted execution of the agreement and

having received earnest amount. However, they contended that the

time was the essence of the contract and the agreement stood

cancelled due to non-performance. They also contended that they

were present in the office of the Registrar on 30-08-2005 to execute

.. 3 .. SA.144/2022

the sale-deed.

5. The trial court framed necessary issues. The appellant

stepped into the witness box and was cross-examined on behalf of the

respondents, but, they did not lead any evidence on their own. The

trial court upheld the agreement, but refused to grant specific

performance by recording a negative finding to the issue regarding

readiness and willingness of the appellant and directed refund of

earnest together with interest @ 6% per annum from the date of the

suit till realization of the decreetal amount.

6. The appellant challenged the judgment of the trial court

before the district court which concurred with the findings of the trial

court and dismissed the appeal, however, awarded future interest to

the appellant @ 12 % per annum in stead of 6% awarded by the trial

court.

7. The learned Senior Advocate Mr. R.N. Dhorde for the

appellant would vehemently submit that the agreement was in

respect of purchase of the immovable property and therefore, it

cannot be said that time was the essence of the contract. Though the

performance was sought in time, the courts below erred in recording

.. 4 .. SA.144/2022

a perverse and arbitrary finding that the appellant was not ready and

willing to perform his part of the contract. In fact, the respondents

were not consistent with their stand. In one of the notices they

denied to have ever entered into any agreement and also denied to

have received any earnest money, but then complained of time being

the essence of the contract and the agreement having been cancelled.

He would further submit that unlike the appellant, the respondents

did not dare to step into the witness box to substantiate their

allegations. The courts below though have concurred in material

particulars, have recorded perverse and arbitrary findings. They have

clearly overlooked that in view of the amendment in the Specific

Relief Act the element of discretion which was vesting with the courts

has been taken away and granting specific performance is now made

a rule of law. The courts below have deviated from this principle.

Substantial questions of law arise for determination in this Second

Appeal, which deserves to be admitted.

8. Mr. Dhorde would also rely upon the decision in the case

of Bhavyanath represented by Power of Attorney Holder Vs. K.V.

Balan (Dead) Through Legal Representatives, (2020) 11 SCC 790, to

substantiate his argument that it is not always necessary to lead

evidence to prove that the plaintiff claiming specific performance has

.. 5 .. SA.144/2022

financial condition to pay balance amount of consideration.

9. Per contra, learned advocate Mr. Pramod C. Mayure for

respondent no.1 would vehemently submit that since this is a Second

Appeal this Court cannot enter into the realm of facts which have

been concurrently held to have been proved by the courts below.

They have taken a reasonable and plausible view of the evidence that

was available before them. Going by the wording of the agreement,

the specific performance was to be had before a stipulated day else

the appellant had undertaken a liability to pay interest @ 12% per

annum. No steps were taken either before that day or immediately

thereafter to disclose his intention to seek specific performance. He

allowed the time to lapse. There was no evidence to demonstrate

that he was having financial capacity to pay the remainder of the

consideration except his bald statement. All these facts and

circumstances were considered by the courts below while recording a

concurrent finding that he had failed to prove that he was ready and

willing to perform his part under the agreement as is contemplated

under Section 16 of the Specific relief Act. Though the agreement

stood proved, that would not automatically make him entitle to claim

specific performance unless he was able to show his readiness and

willingness to get the sale-deed executed. Since the concurrent

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findings in this respect are based on clear and reasonable

appreciation of the evidence on record, no substantial question of law

arises for determination by this Court.

10. I have carefully considered the rival submissions and

perused the record. Obviously, both the courts below having upheld

the fact that the respondents agreed to sell the suit property to the

appellant for the consideration and executed the registered

agreement of sale by receiving the earnest money, apart from the fact

that the respondents did not step into the witness box to deny it, one

needs to proceed with the assumption that this finding of the courts

below upholding that there was agreement of sale is clearly

unassailable. Even the learned advocate for the respondents rightly

refrained from making any submissions in this respect.

11. So far as the requirement of complying with the

provision of Section 16 of the Specific Relief Act is concerned,

obviously the burden was on the appellant to lead sufficient and

cogent evidence to demonstrate that since inception he was ready

and willing to perform his part under the agreement. Both the courts

below have rightly expected him to establish these facts

demonstrating his intention.

.. 7 .. SA.144/2022

12. True it is that the courts below have rightly upheld that

the suit was within limitation. But, then the finding on the point of

issue can hardly be resorted to to appreciate and record a finding as

to the readiness and willingness expected by Section 16 to be

established. One cannot jump to the conclusion that the appellant

was ready and willing merely because the suit was filed within the

period of limitation provided therefor.

13. Much emphasize was laid by learned Senior Advocate

Mr. Dhorde on the fact that the respondents had agreed to sell the

suit property specifically mentioning in their capacity as karta of their

joint families. According to Mr. Dhorde, this was the reason why the

appellant was apprehensive about their title to the suit property and

wanted the confusion to be cleared. If some time was lost in

ascertaining this fact, no adverse inference should have been drawn

against him holding him not to be keen to get the sale-deed executed.

14. However, as has been correctly pointed out by the courts

below, during his cross-examination the appellant specifically

admitted that he was aware about the fact that the suit property was

free from all encumbrances and had agreed to purchase it because he

.. 8 .. SA.144/2022

was sure that the suit property was having a clear and marketable

title and even the respondents assured him about it. These replies of

the appellant clearly demonstrate that the excuse for not getting the

sale-deed executed promptly is not factually tenable. Since it is a

finding of fact based on correct appreciation of the evidence

concurred by the courts below, this Court cannot undertake a further

scrutiny to ascertain if the finding is borne out from the evidence.

15. Still, if one decides to undertake such a scrutiny, there

are few other circumstances apparently skipped by the courts below

which would justify their inference and the conclusion that the

appellant was not ready and willing to perform his part of the

contract.

16. As can be seen from the wording of the agreement about

which there is absolutely no dispute, one of the conditions was that

the sale-deed was to be registered by 24-12-2004. It was specifically

mentioned that it was to be an important condition of the agreement.

It specifically recites that for any reason whatsoever if the appellant

was not able to complete the transaction he would pay to the

respondents interest @ 12% per annum on the remainder of the

consideration amount from 24-12-2004, as damages. Conspicuously,

.. 9 .. SA.144/2022

this condition mentions that this liability of the appellant would be

irrespective of the actual cause for the delay in getting the sale-deed

executed. When, admittedly, the appellant had never positively

demonstrated by calling upon the respondents to get the sale-deed

executed before 24-12-2004 or soon thereafter, though he published

several notices and replies after several months, at no point of time

did he make it clear in these notices and replies that in terms of this

condition in the agreement, he was ready and willing to pay the

interest component. If really he was ready and willing to get the

sale-deed executed and was calling upon the respondents to do that,

he should have expressly disclosed his intention to pay the interest as

was agreed. But neither in the notice nor even in the

examination-in-chief did he come with any such express statement.

On the contrary, in para no.6 of his examination-in-chief he

specifically refuted his liability to pay the interest. If such is the state-

of-affairs, certainly this would be an additional circumstance, though

not referred to by the courts below, which would justify their

inference that the appellant was not ready and willing to perform his

part of the contract.

17. True it is that the lower appellate court has not correctly

interpreted this clause and has apparently increased the rate of future

.. 10 .. SA.144/2022

interest awarded by the trial court @ 6% per annum to 12 % per

annum in ignorance of the fact that the liability to pay the interest

was only foisted on the appellant and in no case the respondents

were made liable to pay it. But since they have not preferred any

appeal to the extent of that direction one need not examine that

aspect. Same, this is a circumstance which clearly belies the stand of

the appellant of being ever ready and willing to perform his part of

the contract.

18. True it is that a party seeking specific performance of an

agreement to purchase a property need not strictly prove that he

possesses sufficient resources to pay the balance amount of

consideration, still, there ought to have been at least some attempt on

the part of the appellant to prove that he was having sufficient

income or assets to pay all the remainder consideration of more than

Rs.30,00,000/-. Except his bald statement he did not lead any

evidence to demonstrate this fact. Even in the matter of Bhavyanath

(surpa), the Supreme Court had undertaken an exercise to decipher

the material on the record to demonstrate as to how the evidence was

led in respect of the plaintiff's assets sufficient enough to pay the

balance amount of consideration. Therefore, strictly speaking the

appellant is not entitled to reap any benefit from this decision.

.. 11 .. SA.144/2022

19. No substantial question of law arises in the Second

Appeal and it is dismissed with costs.

20. Learned Senior Advocate Mr. Dhorde for the appellant

submits that since the execution of the judgment and decree was

stayed pending the matter before the lower appellate court, which

was decided on 03-12-2021, the relief may be continued for a

reasonable period to enable the appellant to approach the Supreme

Court.

21. Execution of the decree shall stand stayed for a period of

four weeks from today.

22. In view of disposal of the Second Appeal, nothing

survives for consideration in the pending Civil Application No.3587 of

2022 and the same stands disposed of.

( MANGESH S. PATIL ) JUDGE ...

Gajanan