Bombay High Court
Sou. Latika Chandrakant Sawant vs Bhima Dagadu Shinde on 24 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:4951
62-SA-317-2017-2.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.317 OF 2017
WITH
CIVIL APPLICATION NO.179 OF 2018
IN
SECOND APPEAL NO.317 OF 2017
Latika Chandrakant Sawant ...Appellant/
Applicant
Versus
Bhima Dagadu Shinde & Ors. ...Respondents
--------------------
Mr. Ajay Joshi for the Appellant/Applicant.
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 24, 2024
P. C. :
1. Being dissatisfied with the Judgment dated 25th November, 2016
by which the Appeal by the original Plaintiff stands dismissed, the original
Plaintiff is before this Court.
2. Regular Civil Suit No. 415 of 2011 was instituted by the Plaintiff
seeking specific performance of an agreement of sale dated 5 th August,
1997. The case of the Plaintiff was that the father of the Defendants, one
Dagadu Mahadev Shinde was the owner of the suit land. That, he was in
need in money in the month of August, 1997 and gave proposal to the
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Plaintiff for purchase of suit land, which was accepted by the Plaintiff.
The parties negotiated and the purchase amount was fixed at Rs.
25,000/-. Accordingly, registered agreement of sale was executed. One of
the condition of the sale was that the father of the Defendant was to
obtain the necessary permission from Competent Authority for execution
of the sale deed and the said transaction had to be completed within a
period of one month from the date of sanction of permission by the
Competent Authority. That the Plaintiff paid the entire consideration of
Rs. 25,000/- on the date of agreement and was put in possession of the
suit land. It was further pleaded that the Plaintiff requested the father of
the defendant to obtain the permission and was assured by the father of
the Defendant that he would obtain necessary permission. In the mean
time, in the year 2001 the father of the Defendant expired and thereafter
the Plaintiff was pursuing with the legal heirs of the vendor for bringing
necessary permission. It is pleaded that the Defendants avoided to obtain
necessary permission for execution of the sale deed and as such, notice
was issued on 7th February, 2011.
3. The suit came to be resisted by the Defendants denying the
execution of the agreement of sale as also the payment made. It was
contended that after the death of the father, the name of the legal heirs
came to be entered into revenue records. It was contended that there was
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no legal necessity for sale of the suit property.
4. The parties went to the trial and the Trial court framed the issue as
regards the execution of the sale deed, readiness and willingness of the
Plaintiff and about limitation. The Trial Court held that the Plaintiff has
established the factum of execution of the sale deed, and that the Plaintiff
is not ready and willing to perform his part of the contract. The Trial
Court negated the issue of limitation and dismissed the suit.
5. As against the Judgment of the Trial Court, the original Plaintiff
preferred Regular Civil Appeal No. 153 of 2013. The Appellate Court
reversed the findings as regards the readiness and willingness as also the
findings on the issue of limitation. The Appellate Court considering the
facts of the case, held that the Plaintiff is not entitled to the equitable
relief of specific performance for the reason that the suit is filed after 14
years from the date of agreement of sale.
6. Heard Mr. Ajay Joshi, learned counsel for the Appellant.
7. Learned counsel for the Appellant submits that the substantial
question of law which arises is whether the Appellant was justified in not
exercising the discretion in favour of the Plaintiff despite holding that the
Plaintiff was ready and willing to perform his part of the contract and that
the suit is within limitation. He further submits that as per Article 54 of
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the Limitation Act, the suit is required to be filed within a period of three
years in event date is fixed for performance and in event when no such
date is fixed within a period of three years when the Plaintiff has notice
that performance is refused. He submits that the suit being within
limitation, the discretion ought to have been exercised in his favour.
8. Considered the submission and perused the record.
9. The agreement of sale has been executed between the parties in the
year 1997. The judgment of the Trial court and the Appellate Court
would indicate that sale deed was to be executed within a period of one
month after the permission for execution of the sale is obtained from the
Competent Authority. Being owner of the suit land, it was for the
Defendant to obtain permission for execution of the sale deed. Even if the
Defendant had not taken any steps to obtain necessary permission, for
period of 14 years there was total inaction on part of the Plaintiff. In the
meantime the vendor expired on 26 th October, 2001 and the suit property
was mutated in the name of his legal heirs. The document was executed in
the year 1997 and for a period of 14 years, no steps were taken by the
Plaintiff. It is only in the year 2011 that the notice came to be issued
calling upon the legal heirs of the original vendor to execute the sale deed.
Pertinently, before the Trial Court the pleading was that the Defendant
started to avoid to comply with his part of the obligation. However, the
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exact date is not pleaded and it appears that, after a period of ten years
from death of original vendor, in the year 2011, the notice for specific
performance was issued to the legal heirs of the Defendant. Even after the
expiry of the father of the Defendant, no steps were taken by the Plaintiff
in furtherance of the agreement for sale. Neither notice was sent to the
original vendor nor the suit was filed for specific performance, during the
life time of the vendor.
10. The response that it was for the Defendant to obtain the permission
from the Competent Authority cannot be an explanation for inaction of
almost 14 years. It was also necessary for the Plaintiff to take prompt and
effective steps lest the equitable relief be denied to the Plaintiff. In the
present case, even though it is held that the suit of the Plaintiff is filed
within a period of three years and the Plaintiff has been ready and willing
to perform his part, the relief being equitable relief, it is not the mandate
of law that the decree for specific performance should follow. Section 20
of Specific Relief Act provides that the Court is not bound to grant such
relief merely because it is lawful to do so, but the discretion of the Court
should not be arbitrary. The Appellate Court has refused to exercise the
equitable jurisdiction in favour of the Plaintiff considering total inaction
of the Plaintiff for the period of 14 years. Considering the facts of the
present case, it would be inequitable to grant decree of specific
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performance which would cause hardship to legal heirs of original vendor.
The discretion exercised by the Appellate Court cannot be said to be
arbitrary.
11. Having regard to the discussion above no substantial question of
law arises in the Second Appeal.
12. Appeal stands dismissed.
13. In view of dismissal of Second Appeal, Civil Application does not
survives for consideration and the same is disposed of as such.
(SHARMILA U. DESHMUKH, J. )
