Bombay High Court
Shivshankar S/O Uttamrao Wanjare vs Gajanan S/O Digambarao Katare And ... on 24 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1105
1.SA.575.2018 judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.575 OF 2018
Shivshankar S/o. Uttamrao Wanjare,
Aged 62 Yrs., Occu.: Cultivator,
R/o. Morgaon, Bhakre, Tq. and Distt. Akola .... APPELLANT
// V E R S U S //
1. Gajanan S/o. Digambarrao Katare,
Aged: 60 Yrs., Occ.: Agriculture/Business,
R/o. First Floor, Priya Towers,
Wankhade Nagar, Dabki Road,
Akola, Tq. and Distt. Akola
(Original plaintiff)
2. Dnyaneshwar S/o. Pandurangji Bhirad,
Aged : 48 Yrs., Occu.: Agriculture and Business,
R/o. Joglekar plots, Dabki Road,
Akola, Tq. and Distt. Akola ... RESPONDENTS
(original defendant No. 2)
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Mr C. A. Joshi, Advocate for the appellant
Mr S. A. Mohta, Advocate for the respondent No. 1/Caveator
Mr A. C. Dharmadhikari, Advocate for respondent No.2
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CORAM : G. A. SANAP, J.
DATE : 24/01/2024
ORAL JUDGMENT :
1 Heard.
2 ADMIT. Taken up for final disposal forthwith by the
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consent of learned Advocates for the respective parties.
Perused the record and proceedings. After filing the appeal,
the notice was issued to the respondents on the following
substantial question of law.
1. Whether the Courts below were justified in granting
decree of specific performance in favour of the
respondent No.1 (original plaintiff), by holding that he
was ready and willing to perform his part of the contract,
without examining the aspect of readiness and
willingness of respondent No.1 from 13/04/2000 to
15/11/2000 i.e. the date of agreement till the date
specified in the execution of the agreement?
3 The facts which give rise to the substantial
question of law need to be narrated in brief:
The appellant is the original defendant No.1. The
respondent No.1 is the original plaintiff. The respondent No.
2 is the original defendant No.2. In this judgment, parties
would be referred by their nomenclature in the plaint. The
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plaintiff filed the suit for specific performance of the
agreement dated 13.04.2000 executed by defendant No.1 in
his favour. As per the said agreement, the defendant No.1 had
agreed to sell the suit property, particularly described in the
plaint, to the plaintiff for total consideration of
Rs.11,00,000/-. On the date of the agreement the earnest
money of Rs.3,00,000/- was paid to the defendant No.1. The
defendant No.1 had agreed to execute the sale deed on or
before 15.11.2000. The plaintiff contended that throughout
he has been ready and willing to perform his part of the
contract. According to him, the defendant No.1 avoided to
execute the sale deed for one reason or another. The plaintiff
further contended that defendant No.1 without termination of
an agreement to sell executed Isar Chhitthi of the suit property
in favour of defendant No.2. The plaintiff, on failure of
defendant No.1 to execute the sale deed, filed the suit.
4 The defendant No.1 filed the written statement
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and denied the claim. According to him, the plaintiff was not
ready and willing to perform his part of the contract. He,
therefore, revoked the agreement executed in favour of the
plaintiff. He, thereafter, executed the agreement to sell the
suit property in favour of defendant No.2.
5 The parties adduced the evidence before the trial
Court. The learned Judge of the trial Court granted a decree
for specific performance of the contract by recording findings
that the plaintiff has been ready and willing to perform his part
of the contract and the defendant No.1 without any reason
failed to perform his obligation. The decree passed by the
learned Judge of the trial Court was challenged in the first
appeal. The learned appellate Court confirmed the findings of
fact recorded by the learned trial Judge on all the issues and
particularly, the finding on the issue of readiness and
willingness of the plaintiff to perform his part of the contract.
Against this judgment and order of the appellate Court, which
1.SA.575.2018 judge.odt
is concurrent with the judgment of learned Judge of the trial
Court, this second appeal has been filed. On the date of
issuance of notice, the substantial question of law was framed,
as above.
6 I have heard the learned Advocate Mr C. A. Joshi
for defendant No.1, learned Advocate Mr S. A. Mohta for the
plaintiff and Mr A. C. Dharmadhikari for defendant No.2.
Perused the record and proceedings.
7 Learned Advocate for defendant No.1 submitted
that there is hardly any evidence to prove that the plaintiff was
ready and willing to perform his part of the contract from
13.04.2000 to 15.11.2000. Learned Advocate submitted that
the finding on this issue has been recorded without evidence.
It is further submitted that no specific finding has been
recorded by the Courts below that the plaintiff was ready and
willing to perform his part of the contract from 13.04.2000 to
1.SA.575.2018 judge.odt
15.11.2000. Learned Advocate submitted that this concurrent
finding of fact is perverse and therefore, needs to be set aside.
8 Learned Advocate for the plaintiff submitted that
the substantial question of law, as sought to be contended by
the defendant No.1, will not arise at all in this case inasmuch
as the Courts below have taken into consideration the entire
material, including the facts averred in the plaint as well as the
evidence of plaintiff and defendant No.1. Learned Advocate
pointed out that the conduct of the defendant No.1 was taken
into consideration to negative his contention that he acted
consistent with the terms and conditions of the agreement.
Learned Advocate submitted that the contract was not revoked
by the defendant No.1. It is also pointed out that the plaintiff
was not informed in writing about the revocation of the
contract. Learned Advocate submitted that there is evidence
on record to prove that from the date of agreement till filing of
the suit the plaintiff was ready and willing to perform his part
1.SA.575.2018 judge.odt
of the contract and as such, the finding recorded on this issue
is based on the evidence on record.
9 I have gone through the pleadings and evidence.
The undisputed facts having bearing with the question framed
by this Court need to be stated. There is no dispute about the
execution of the agreement, the total consideration for the
transfer of the property and the receipt of the earnest money.
The finding has been recorded based on the contents of the
agreement that time was not the essence of the contract. It is
undisputed that no notice was issued by the defendant No.1 to
the plaintiff informing him about the revocation of the
agreement after 15.11.2000.
10 The plaintiff has averred in the plaint that
throughout he was ready and willing to perform his part of the
contract but the defendant No.1 by putting forth his
difficulties, avoided to execute the sale deed. The plaintiff, by
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letter dated 21.02.2002 (Exh. 46), called upon the defendant
No.1 to execute the sale deed. In this letter, he contended that
since the date of the agreement he has been ready and willing
to perform his part of the contract. This letter was received by
the defendant No.1. The defendant No.1 in order to establish
his bona fides did not reply this letter/notice. As informed to
the defendant No.1 by letter dated 21.02.2002, the plaintiff
attended the office of the Sub Registrar, Akola, on
26.02.2002. He made the provision for the balance purchase
price. This has been proved by the evidence. The second
notice dated 28.02.2002 was issued by the plaintiff by paper
publication. The third notice is dated 04.03.2002. On the
same date i.e. on 04.03.2002, the defendant No.1 for the first
time disclosed his stand in writing by publication of notice in
the newspaper. For the first time, by this notice dated
04.03.2002, the defendant No.1 canceled the contract.
11 The relief of specific performance of the contract is
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a discretionary relief. It is a settled position in law that
discretionary relief cannot be granted in favour of the party,
who is guilty of delay and latches and also the conduct which
proves his or her mala fides. The initial burden in such a suit
is on the plaintiff to prove that he has been ready and willing
to perform his part of the contract. The plaintiff has to aver
the necessary relevant facts and prove the same. Whether the
purchaser is ready and willing to perform his part of the
contract is a question of fact and has to be addressed on the
basis of the available evidence adduced by the parties, the
conduct of the parties and the attending circumstances.
12 In this appeal, it is the basic contention of the
defendant No.1 that the Courts below have failed to record a
specific finding that the plaintiff was ready and willing to
perform his part of the contract from the date of the agreement
i.e. 13.04.2000 to 15.11.2000. In order to appreciate this
submission, I have minutely perused the judgment and order
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passed by the first appellate Court as well as by the trial Court.
On going through the judgment and particularly, the
concurrent findings of fact on this issue, I am satisfied that the
Courts below have considered the readiness and willingness of
the plaintiff to perform his part of the contract from the date of
execution of the agreement i.e. 13.04.2000 till the date of
filing of the suit.
13 Undisputedly, time was not the essence of the
contract. The seller is required to establish his readiness and
willingness to execute the sale deed. However, the conduct of
the seller having bearing with the issue of readiness and
willingness of the purchaser cannot be ignored. The evidence
adduced by the purchaser on this issue, coupled with the
conduct of the seller, needs to be considered and properly
analyzed to arrive at a just conclusion on this issue. In my
view, the evidence on record is sufficient to prove the
readiness and willingness of the plaintiff from the date of the
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execution of the agreement till the filing of the suit. The
Courts below have recorded the finding on this issue on the
basis of the facts averred in the plaint and proved on the basis
of the evidence. The conduct of the plaintiff in pursuing the
issue of execution of the sale deed continuously with the
defendant No.1 would go to show that the plaintiff throughout
intended to perform his part of the contract. The evidence has
been properly appreciated. There is no perversity in the
findings of fact recorded by the Courts below. In my view,
therefore, there is no substance in the appeal. Accordingly, I
answer the question against the appellant. The appeal stands
dismissed.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 29/01/2024 18:26:14
