Bombay High Court
Vishnudas Bankatlal Dhoot Deceased Thr ... vs Rajesh Kanhaiyalal Mundada on 26 February, 2025
2025:BHC-AUG:5934
(1) sa-50-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.50 OF 2025
WITH
CIVIL APPLICATION NO.1115 OF 2025
Vishnudas S/o Bankatlal Dhoot (Deceased),
Through L. Rs.
1] Pradipkumar S/o Vishnudasji Dhoot [Deceased]
Through L.Rs.
1/1] Chetankumar S/o Pradipkumar Dhoot,
Age: 38 years, Occ: Business,
R/o. Lokhand Galli, Latur.
1/2] Ravi S/o Pradipkumar Dhoot,
Age: 34 years, Occ: Education,
R/o. Lokhand Galli, Latur.
1/3] Smt. Sheela Pradipkumar Dhoot,
Age : 57 years, Occu. Household,
R/o. Lokhand Galli, Latur.
2] Sau. Satyawati W/o Kirankumar Bharadiya,
Age : 57 years, Occu. Household
R/o. Housing Colony, Ambajogai,
District - Beed.
3] Sau. Chitrakala @ Vishnudasji
Age : 57 years, Occu. Household,
R/o. Aurad (Shahajani),
Taluka - Nilanga.7
4] Jagdish S/o Vishnudasji Dhoot,
Age : 54 years, Occu. Business,
R/o. Lokhand Galli, Latur.
5] Kamallata W/o Vishnudasji Dhoot,
Age: 85 years, Occu. Household,
R/o. Lokhand Galli, Latur. ..Appellants
(Orig. Defendants)
Versus
Rajesh Kanhaiyalal Mundada,
Age: 50 years, Occ: Business,
R/o. Moti Nagar, Latur. ..Respondent
(Orig. Plaintiff)
(2) sa-50-2025.odt
...
Mr. P. R. Katneshwarkar, Senior Advocate i/by. Mr. S. S. Rathi,
Advocate for the Appellants.
Mr. S. V. Dixit, Advocate for Respondent.
...
CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON : 05th FEBRUARY, 2025.
PRONOUNCE ON : 26th FEBRUARY, 2025.
JUDGMENT:
-
1. The appellants/original defendants have filed present Second
Appeal impugning judgment and decree dated 08.07.2024 passed
by the Principal District Judge, Latur in Regular Civil Appeal
No.173/2015, thereby upholding judgment and decree dated
31.01.2014 passed by Civil Judge, Senior Division, Latur in Special
Civil Suit No.95/2007. (Hereinafter, parties are referred to by their
original status for the sake of convenience and brevity).
2. The respondent/plaintiff instituted Special Civil Suit
No.95/2007 seeking decree for specific performance of contract on
the basis of agreement to sale dated 23.02.2004 executed by
defendants in respect of suit plot being Survey No.37 situated
within Municipal limits of Latur. According to plaintiff, suit land
was originally owned by Jawahar Sahakari Kapus Utpadak Soot
Girani Limited, Latur, which went into liquidation. The
defendants alongwith two others purchased 75.25 R land out of
Survey No.37 from Liquidator. Initially, purchasers jointly
possessed the land. Later on, it was partitioned. The suit plot was
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allotted to the share of defendants. The defendants offered plot for
sell to plaintiff for total consideration of Rs.32,00,000/-.
Accordingly, agreement to sale dated 23.02.2004 was executed.
The plaintiff paid amount of Rs.5,00,000/- by way of earnest money
at the time of execution of agreement in presence of witnesses.
Although plaintiff was always ready and willing to perform his part
of the contract, as per condition in the agreement, hutments
present at suit site were not removed by defendants. The time was
not essence of the contract.
3. The plaintiff was waiting for removal of hutments, which
were ultimately removed in the year 2005. The plaintiff contacted
defendants and expressed his readiness and willingness to pay
balance consideration, but defendants avoided to perform their part
of contract. Lastly, plaintiff issued legal notice dated 11.08.2005 to
defendants, which was falsely replied by them on 22.08.2005,
stating that agreement to sale has been orally canceled. Again
plaintiff approached defendants with help of Mediator. At that
time, defendants represented that they would like to negotiate and
plaintiff shall not resort to file suit. Although several rounds of
negotiation were held, nothing fruitful came out. On 08.06.2007,
defendants flatly refused to execute sale deed that gave cause of
action to file present suit.
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4. The defendants refuted plaintiff's claim alleging that it is
based on fabricated documents. They contend that property
purchased from Liquidator was joint. There was no division or
partition. Hence, it cannot be transferred in the manner proposed
by plaintiff. It is further contended that son of defendant was in
urgent need of money to satisfy private loan. Hence, transaction
was to be completed before June-2004. The time was very much
essence of the contract. The plaintiff was never ready and willing
to perform his part of the contract. He failed to comply his
obligation before 30.06.2004.
5. The Trial Court framed issues based on pleadings of the
parties, recorded evidence, finally accepted case of the plaintiff and
decreed suit. Aggrieved defendants filed Appeal before District
Judge at Latur, who dismissed same upholding decree of Trial
Court, hence, this Second Appeal.
6. Mr. Katneshwarkar, learned Senior Advocate appearing for
the appellants would submit that Courts below erred in decreeing
the suit of the plaintiff, which has been filed after three years from
the date of execution of agreement. According to him, time was the
essence of contract looking to the exigency of defendants, who was
in urgent need of money. Similarly, plaintiff failed to prove his
readiness and willingness to perform his part of contract in terms
of Section 16 (C) of the Specific Relief Act. According to him,
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aforesaid aspects of matter raises substantial questions of law in
this Second Appeal. In support of his contentions he relies upon
observations of Supreme Court of India in following cases:
1. Usha Devi and Others Vs. Ram Kumar Singh and
Others1.
2. Rajeshwari Vs. Puran Indoria2.
3. B. K. Sri Harsha (Dead) by L.Rs. And Another Vs.
Bharat Heavy Electricals Ltd.3.
4. His Holiness Acharya Swami Ganesh Dassji Vs. Sita
Ram Thapar4.
7. Per contra, Mr. Dixit, learned Advocate appearing for the
respondent submits that Courts below have elaborately considered
aforesaid aspects of the matter and recorded concurrent findings of
facts that plaintiff was always ready and willing to perform his
part of contract, so also time was not essence of the contract in
facts of the present case.
8. Having considered submissions advanced, apparently
substantial questions of law are proposed for consideration on two
aspects of the matter. Firstly, as to whether the time was essence
of contract and secondly, as to whether plaintiff was ready and
willing to perform his part of contract and complies requirement
under Section 16(C) of Specific Relief Act.
1 2024 SCC OnLine SC 1915.
2 (2005) 7 SCC 60.
3 (2008) 4 SCC 48.
4 (1996) 4 SCC 526.
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9. On perusal of agreement to sale, following facts can be
highlighted:
(i) On 23.02.2004, agreement entered between parties as to
the sell of suit property.
(ii) The total consideration was fixed to Rs.32,00,000/-, out of
which amount of Rs.5,00,000/- was parted by plaintiff
towards earnest money.
(iii) The balance of Rs.27,00,000/- was to be paid at the time of
execution of sale deed.
(iv) The sale deed was to be executed by end of June,
particularly after execution of sale deed by Govindpurkar
(owner of part of land).
(v) The defendant was intending to sell the suit land to satisfy
his family needs and purchase another suitable property.
(vi) The possession was to be handed over as per measurement
to be carried before execution of sale deed.
10. Plain reading of the agreement nowhere stipulates that
vendor had specific exigency to complete transaction within
stipulated period. Although it was generally agreed to complete
transaction by end of June, the condition precedent was execution
of sale deed by Govindpurkar. The agreement to sale nowhere
provides specific consequences of delay in completion of transaction
beyond June. Pertinently, sale deed of Govindpurkar has been
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executed on 06.04.2005. Thereafter on 11.08.2005, plaintiff issued
notice asking defendant to complete transaction. On 22.08.2005,
defendant replied notice stating that time was essence of contract
and due to non-adherence, agreement has been orally canceled.
11. The aforesaid sequence of events together, with the contents
of the agreement to sale and reply notice would show that time was
never essence of contract. The plaintiff has first time introduced
such defence in his reply notice. From conduct of parties and
covenant in agreement to sale, it is not discernible that defendant
entered into agreement with specific exigency in his mind.
Therefore, first contention raised on behalf of defendant/appellant
that time was essence of contract cannot be countenanced. The
Trial Court as well as Appellate Court concurrently held that
defendant failed to prove that time was essence of contract. No
perversity is discernible in findings. Hence, no substantial
question of law would emerge for consideration in this Second
Appeal on this aspect.
12. The second proposed substantial question of law is as to
alleged non-fulfillment of mandate of Section 16(C) of the Specific
Relief Act. It is trite that plaintiff has to plead and prove his
readiness and willingness to perform part of contract while seeking
decree of specific performance of contract. It is argued on behalf of
defendant that plaintiff failed to perform his part of contract on or
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before 30.06.2004. Eventually, by oral agreement as well as act of
parties, such contract has been canceled. The evidence on record
depicts that there is hand written insertion that sale deed shall be
executed by June of year 2004. It is also matter of record that
condition precedent for execution of sale deed was execution of sale
deed by Govindpurkar in favour of plaintiff. There is no further
stipulation as to within how much time after sale deed of
Govindpurkar, subject transaction was to be completed. The
stipulation in agreement would further show that defendant was to
carry the measurement, fix the boundaries, execute sale deed and
hand over possession at the time of execution of sale deed as per
boundaries fixed on measurement. It is also matter of record that
within short span of execution of sale deed by Govindpurkar,
plaintiff issued notice dated 11.08.2005 asking defendant to
execute sale deed and defendant replied that agreement has been
orally canceled. If that is so, the delay in completion of transaction
cannot be attributed to defendant.
13. Plaintiff has specifically pleaded that he was always ready
and willing to perform his part of contract. Although it is
contended on behalf of defendant that plaintiff was not having
sufficient funds, on the basis of statement in cross-examination of
plaintiff, plaintiff has explained that his debtors were owing him
the amount of Rs.27,00,000/- and he was intending to take finance
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from Shivshakit Developers. The Appellate Court observed that
defendant has admitted that plaintiff's brother-in-law namely
Shamsundar Gilda is contractor having big turn over. He used to
take loan from Bank and private money lender. His borrowings
are from Rs.25 lakhs to Rs.5 crores. Therefore, Courts below
accepted financial capacity of plaintiff to arrange Rs.27,00,000/-
required for completing transaction.
14. So far as willingness is concerned, plaintiff came with a case
that he started pursuing defendant to execute sale deed since date
of execution of sale deed by Govindpurkar, but defendant killed
time and protracted transaction. On 08.06.2007, defendant refused
to execute sale deed, hence suit has been filed. Apparently, suit is
within period of limitation. Both the Courts have recorded
findings that delay in filing suit has been caused due to tactics
played by defendant and plaintiff cannot be blamed for delay. The
Appellate Court relying upon judgment of Supreme Court of India
in case of P. Daivasigamani Vs. S. Sambandan5 observed that
mere delay in filing of suit for specific performance, without
reference to the conduct of the plaintiff, cannot be a ground for
refusing the said relief, when the suit was filed within the
statutory time limit. Both the Courts have observed that although
grant of decree of specific performance is discretionary relief, in
absence of material to show that plaintiff would derive unfair
5 AIR 2022 SC 5009.
(10) sa-50-2025.odt
advantage and defendant would face undue hardship, specific
performance shall not be refused. In present case, no such
circumstances are brought on record, except statement that there
is escalation of land prices. However, that itself cannot be ground
to refuse specific performance. Since there are concurrent finding
on both issue i.e. readiness and willingness of plaintiff and that
time was not essence of contract, this Court would not venture into
such findings. At this stage reference can be given to law espoused
by Supreme Court of India in case of Gurdev Kaur and Ors. Vs.
Kaki and Ors.6, wherein in paragraph no.69, the Supreme Court
observed as under:
"Now, after 1976 Amendment, the scope of Section 100 has
been drastically curtailed and narrowed down. The High
Courts would have jurisdiction of interfering under Section
100 C.P.C. only in a case where substantial questions of law
are involved and those questions have been clearly
formulated in the memorandum of appeal. At the time of
admission of the second appeal, it is the bounden duty and
obligation of the High Court to formulate substantial
questions of law and then only the High Court is permitted
to proceed with the case to decide those questions of law. The
language used in the amended section specifically
incorporates the words as "substantial question of law"
which is indicative of the legislative intention. It must be
clearly understood that the legislative intention was very
clear that legislature never wanted second appeal to become
"third trial on facts" or "one more dice in the gamble"."
15. In view of aforesaid exposition of law, no case is made out to
cause interference in concurrent findings of facts, which are based
on appreciation of evidence. No substantial question of law arises
for consideration in this Second Appeal.
6 AIR 2006 SC 1975.
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16. Consequently, Second Appeal sans merit and accordingly
stands dismissed.
17. In view of dismissal of Second Appeal, nothing survives in
Civil Application and same is accordingly disposed of.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/February-2025
