Mr. Rajendra Tathamal Bhandari vs M/S. Pragati Developers, ...
2022 Latest Caselaw 11587 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

                         SECOND APPEAL NO.169 OF 2017

Mr. Rajendra Tathamal Bhandari                                  ...Appellant
        vs.
M/s. Pragati Developers,
Promoters And Builders
(thr. Mr. Girish Gangadhar Valse)                              ...Respondent

....
Mr.Akshay P. Shinde, for the Appellant.
Mr.Jaydeep Deo, for the Respondent.
....

                                        CORAM : NITIN W. SAMBRE, J.

DATED : 15th NOVEMBER, 2022 P.C.:

1. This appeal is by the original defendant. Based on

undisputed agreement of sale Exhibit-54 dated 7 th August, 2006

Civil Suit No.640 of 2014 was taken out by the respondent for

specific relief which was decreed by the Court of Small Causes,

and Civil Judge Senior Division, Pune vide judgment and decree

dated 22nd July, 2014.

2. The appellant/defendant feeling aggrieved, preferred Civil

Appeal No.640 of 2014 which was also dismissed on 20 th

November, 2015. As such, this second appeal.

3. Both these judgments are assailed by the

appellant/defendant on the following questions of law:

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(a)        Whether in view of Clause 8 of the agreement of sale

Exhibit-54, time was essence of contract and whether the respondent has failed to adhere time limit?

(b) Whether the claim in the suit is in tune with the requirement under Order 6 Rule 3 of CPC read with Section 16(c) of the Specific Relief Act as the plaint lacks appropriate/necessary pleadings?

4. The aforesaid submissions are sought to be substantiated

from the pleadings in the plaint, the rival evidence of the party so

also the recital in Exhibit-54 i.e. agreement of sale. The counsel

for the appellant has drawn support from the judgment of Apex

Court in the matter of Padmakari and Ors. Vs. Dasayyan And

Ors.1 so as to substantiate the question of law No.2 i.e. the non-

compliance of the provisions of Order 6, Rule 3 of the CPC read

with Section 16(c) of the Specific Relief Act. He has specially

relied on the observation in para 19 to 23 of the aforesaid

judgment.

5. While opposing aforesaid prayer, Mr.Deo, learned counsel

appearing for respondent/plaintiff would urge that appeal lacks

any substantial question of law as both the Courts have

concurrently held against the appellant. He would draw support

from the recitals in Exhibit-54 so as to substantiate his claim that

time was not essence of the contract as the appellant/defendant

has failed to satisfy the very ingredients of the said agreement

1 (2015) 8 SCC 695

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by discharging his obligation. In addition he would draw support

from pleadings so also the admission given by the appellant in

cross-examination so as to claim that time was not essence of

the contract. He would further urge that there are sufficient

pleadings in the plaint so as to infer satisfaction of the

ingredients under Order 6 Rule 3 read with Section 16(c) of the

Specific Relief Act. According to Mr.Deo, the respondent has tried

to settle the matter with the appellant and the respondent has

volunteered to pay total amount Rs.15 lakhs after adjusting

amount of Rs.6 lakhs of consideration. He would invite my

attention to the fact that an amount of Rs.1 lakh was paid on the

date of the execution of the Exhibit-54 agreement so also

deposited balance amount of consideration in the trial Court. As

such, he would urge that the appeal is liable to be dismissed.

6. I have appreciated the said submissions.

7. With the assistance, I have perused recitals in agreement of

sale Exhibit-54. The execution of the said document is admitted

by the both the parties as is apparent from the evidence brought

on record. The total consideration agreed was Rs.6 lakhs, out of

which, the appellant acknowledges receipt of an amount of Rs.1

lakh. The recital further speaks of the payment of Rs.5 lakhs as

balance consideration. Clause 8 of the agreement specifically

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provides that the agreement shall be valid for the period of 180

days and agreement of sale shall be automatically cancelled if

the sale deed is not executed. The other recitals in the said

agreement particularly Clause 10(b) cast a responsibility on the

respondent to get the land released from the clutches of

provisions of Urban Land Ceiling Act. While getting release order

from the competent authority under the ULC Act, the

corresponding obligation on the appellant was of providing

necessary units.

8. Admittedly, both the parties have not taken recourse to

steps under the provisions of ULC Act. Rather the units which

were to be made available by the appellant so as get sanction to

a scheme for getting land release from the ULC authority is also

not furnished.

9. Similarly, the clause in regard to payment of consideration

is concerned, it does not say that the amount of Rs.5 lakhs i.e.

balance consideration is to be paid within a period of 180 days as

has been agreed in Clause 8 of the agreement. The Clause 11 of

the agreement further provides that the appellant to carry out

the measurement and the expenses of the said measurement

was to be paid by the respondent/plaintiff. From the evidence of

appellant, it cannot be inferred that the appellant has applied for

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the measurement of the suit property and has raised a memo

thereby asking the respondent to pay the measurement cost. As

such, what can be inferred is the corresponding obligations on

the appellant were equally not discharged by him. Apart from

above, the measurement, the release of the land from the ULC

authority, no outer limit of time is fixed for securing compliances

of said obligations. As such, the cumulative effect of the recitals

which are employed in the agreement Exhibit-54 does not

prompt this Court to form an opinion that the time was essence

of the contract. Both the Courts below have as such were

justified in inferring that time was not essence of contract.

10. As such, the contention put forth by the counsel for the

appellant that time was not essence cannot be accepted.

11. As regards the absence of necessary of pleadings

particularly having regard to the provisions of Order 6 Rule 3 of

CPC read with Section 16(c) of the Specif Relief Act is concerned,

the fact remains that the appellant has acknowledged the receipt

of the notice from the respondent/plaintiff as regards the specific

performance of the contract. The plaint in categorical terms

speaks of the readiness and willingness of the respondent to

perform and discharge his part of the obligation under the

agreement.

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12. The fact that the ULC Act was repealed on 29 th November,

2007, primarily prompt this Court to believe that the obligation

on the part of the appellant to provide units so also on the part of

the respondent/plaintiff to get the land released from the

clutches of ULC Act is not required to be complied with by either

of the parties, particularly, when it is admitted position on record

that the appellant claims that possession of the suit property

was never taken over by the ULC authority. In the aforesaid

background, what can be appreciated is the appellant in the

cross-examination of the respondent was unable to establish that

on the date of the claim put forth by the respondent for specific

performance, he was incapacitated financially or otherwise to

discharge his burden so as to perform his part of the contract by

paying balance consideration. The perusal of the pleadings in the

plaint, the evidence on record primarily prompt this Court to form

an opinion that the respondent has specifically pleaded about his

readiness and willingness and rightly so established the same.

The respondent has already deposited the balance consideration

in the Courts of below after the suit was decreed. May be such

fact will be of hardly any consequences pursuant to the

provisions of Section 16(c) of the Specific Relief Act. However,

This court is required to be sensitive to the fact the respondent

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has also voluntarily agreed to offer higher compensation to the

appellant and the parties have tried to negotiate a settlement

which has failed. Be that, as it may. The statement made by the

respondent/plaintiff that in addition to the amount of agreed

consideration of Rs.6 lakhs, the respondent is willing to deposit

amount of Rs.9 lakhs in the Trial Court towards the

compensation/damages, is also accepted as an undertaking to

this Court

13. Pursuant to the aforesaid statement made by the

respondent, he is at liberty to deposit additional amount of Rs.9

lakhs within a period of six weeks from today in the Court below.

14. As a sequel of above, the support drawn by the counsel for

the appellant from the judgment of Apex Court in the Padmakari

(supra) will be of hardly any assistance particularly when the

respondent has also established readiness and willingness to

perform his part of the contract.

15. That being so, the present second appeal which sans

involvement of any question of law and preferred against the

concurrent findings is liable to be dismissed and stands

dismissed accordingly.

16. At this stage, the counsel for the appellant submits that the

execution of the decree be stayed for a period of four weeks

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which opposed by Mr.Deo, counsel for the respondent.

17. However, having regard to the fact that decree is not

executed for last about six years, the interim protection is

extended as prayed.

18. Pending application also stands disposed of.

(NITIN W. SAMBRE, J.)