[Cites 5, Cited by 0]
Bombay High Court
Amit Vijay Bhatewara vs Avinash Vinayak Patwardhan And Anr on 28 January, 2026
Author: N. J. Jamadar
Bench: N. J. Jamadar
2026:BHC-AS:4225
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 401 OF 2022
Amit Vijay Bhatewara ...Appellant
Versus
Avinash Vinayak Patwardhan & Anr. ...Respondents
WITH
SANTOSH
INTERIM APPLICATION NO. 3044 OF 2022
SUBHASH IN
KULKARNI SECOND APPEAL NO. 401 OF 2022
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.01.28
20:13:43 +0530
Mr. Kaustubh Thipsay a/w Ms. Ketki Gadkari, for the
Appellant.
Ms. Shirin Merchant a/w Farinaz Pathan, for the Respondents.
CORAM: N. J. JAMADAR, J.
Reserved On: 21st JANUARY, 2026
Pronounced On: 28th JANUARY, 2026
JUDGMENT:
-
1. Heard the learned Counsel for the parties.
2. This second appeal is directed against a judgment and
decree dated 31st March, 2022 passed by the learned District
Judge, in Regular Civil Appeal No.104 of 2019, whereby the
appeal preferred by the appellant - plaintiff against a judgment
and decree in Special Civil Suit No.835 of 2010, dismissing the
suit for specific performance, came to be dismissed by affirming
the decree passed by the trial Court.
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3. Shorn of superfluities the background facts can be stated
as under:
3.1 The defendants - respondents are the owners of Flat No.2
alongwith a parking lot in Tridal Co-operative Society Ltd.,
Prabhat Road, Pune, ("the suit flat"). The defendants entered
into a registered agreement to sell the suit flat for a
consideration of Rs.50,00,000/-. A sum of Rs.1,00,000/- was
accepted thereunder as part consideration. The balance amount
was agreed to be paid at the time of execution of conveyance.
The possession of the suit flat was also agreed to be delivered
upon payment of balance consideration and execution of
conveyance. The parties agreed, inter alia, that the defendants -
transferors shall obtain the consent of Tridal Society (D2) for the
transfer of the suit flat before execution of the sale deed.
3.2 Defendant No.1 applied to the Society (D2) for grant of
consent for transfer. The Society did not give the consent.
Proceedings were initiated before the Deputy Registrar, Co-
operative Societies, for obtaining the consent of the Society for
the said transfer. In the meanwhile, the plaintiff paid a sum of
Rs.30,00,000/-, towards further consideration to the defendants
and the defendants executed a registered deed of receipt and
confirmation acknowledging the receipt of the sum of
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Rs.30,00,000/- on 30th August, 2007. Eventually, as the
defendants could not obtain the consent for transfer, on 19 th
September, 2007, a supplementary agreement came to be
executed and registered, under which the defendants refunded
the amount of Rs.30,00,000/-. It was agreed that the plaintiff
shall pay the balance consideration of Rs.49,00,000/- upon
obtaining the consent of the Society for the said transfer, and at
that time possession of the subject flat would be delivered.
3.3 It appears despite diligent efforts and proceedings before
the Deputy Registrar, Co-operative Societies, consent for
transfer could not be obtained. The defendants, thus,
addressed a communication to the plaintiff on 18 th April, 2008
seeking to cancel the agreement for sale and return the amount
of Rs.1,00,000/- to the plaintiff. This was followed by a further
communication dated 27th April, 2008, whereby the defendants
professed to cancel the agreement for sale and the
supplementary agreements, and offered to return the amount of
Rs.1,00,000/-. The plaintiff addressed a legal notice to the
defendants on 3rd March, 2010 seeking specific performance of
the contract. Upon refusal by the defendants, the suit for
specific performance of the contract was filed.
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3.4 After appraisal of the evidence and the material on record,
the learned Civil Judge dismissed the suit observing that the
plaintiff had not been ready and willing to perform his part of
the contract. The purported inaction on the part of the plaintiff
from the date of termination of the agreement for sale till the
issue of legal notice, and admissions in the cross-examination of
the plaintiff that the consent of the Society was not a legal
requirement for effecting the sale, were arrayed against the
plaintiff to return a finding that the plaintiff failed to establish
continuous readiness and willingness to perform the contract.
3.5 Being aggrieved, the plaintiff preferred an appeal before
the District Court.
3.6 By the impugned order, the learned District Judge
dismissed the appeal concurring with the view of the trial
Court. The delay on the part of the plaintiff in instituting the
suit after the notice of termination of the agreement for sale
dated 27th April, 2008 and the purported inaction, in the
intervening period, weighed with the learned District Judge to
answer the issue of readiness and willingness against the
plaintiff.
4. Mr. Thipsay, the learned Counsel for the appellant,
submitted that both the courts have committed a grave error in
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law in returning the finding that the plaintiff was not ready and
willing to perform his part of contract. Amplifying the
submission, Mr. Thipsay would urge, both the Courts have erred
in not properly appreciating the evidence, especially the fact
that the plaintiff had paid a substantial part of consideration
i.e. Rs.30,00,000/- and the said amount was refunded by the
defendants on account of their failure to obtain 'no objection'
from the Society. The parting of such huge consideration of
Rs.30,00,000/- underscored both readiness and willingness on
the part of the plaintiff to perform his part of the contract.
Such misreading of evidence and the documents which record
the circumstances in which the amount was refunded by the
defendants gives rise to a substantial question of law.
5. Secondly, Mr. Thipsay would urge, the learned Civil Judge
as well the learned District Judge completely misdirected
themselves in holding that there was delay on the part of the
plaintiff in seeking the relief of specific performance.
Incontrovertibly, the suit was instituted within the stipulated
period of limitation. Moreover, both the courts lost sight of the
well-recognized principle that in suits for specific performance
of contract to sell immovable property, time is not the essence of
the contract. Once the suit was instituted within the stipulated
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period of limitation, the courts could not have dismissed the
suit for specific performance on the ground that there was delay
in seeking specific performance of the contract. To buttress
these submissions, Mr. Thipsay placed reliance on the
judgments of the Supreme Court in the cases of Chand Rani
(Smt) (Dead) by LRs. vs. Kamal Rani (Smt)(Dead) By LRs. 1,
Bismillah Begum (Smt) Dead by LRs. vs. Rahmatullah Khan
(Dead) by LRs.2, P. Daivasigamani vs. S. Sambandan3 and R.
Lakshmikantham vs. Devaraji4.
6. Mr. Thipsay would further urge that, the learned Civil
Judge and the learned District Judge committed a manifest
error in placing reliance on the admissions in the cross-
examination that, in law, 'consent' of the Society (D2) was not
necessary for effecting a transfer, when there was an express
stipulation in the agreement for sale that the defendants would
obtain the consent of the Society before the sale of the subject
flat. Such misconstruction of the document and evidence has
resulted in a complete miscarriage of justice, submitted Mr.
Thipsay.
1 (1993) 1 Supreme Court Cased 519.
2 (1998) 2 Supreme Court Cases 226.
3 (2022) 14 Supreme Court Cases 793.
4 (2019) 8 Supreme Court Cases 62.
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7. Per contra, Ms. Merchant, the learned Counsel for the
respondents, submitted that the impugned decree is rested on
sound legal reasoning. The plaintiff, despite being cognizant of
the fact that the consent of the Society (D2) was not warranted,
insisted for the same and, thus, the courts were justified in
holding that the plaintiff was not ready and willing to perform
his contract. In the circumstances of the case, when the
defendants sought to terminate the agreement for sale, the
plaintiff never offered to complete the transaction by paying the
balance consideration, without insisting for the consent of the
Society. After a delay of almost two years, the plaintiff gave the
pre-suit legal notice. Thus, no question of law, much less a
substantial question of law, arises for determination in this
appeal, urged Ms. Merchant.
8. It is trite, in case of sale of immovable property, there is a
presumption against time being the essence of the contract. In
the case of Chand Rani (supra), the Constitution Bench of the
Supreme Court, after analysis of the precedents, enunciated
that in case of sale of immovable property there is no
presumption as to time being the essence of the contract. Even
if it is not of the essence of the contract the Court may infer
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that, it is to be performed in the reasonable time if the
conditions are evident;
(i) from the express terms of the contract;
(ii) from the nature of the property; and
(iii) from the surrounding circumstances, for example; the
object of making the contract.
9. In the facts of the case, the suit appeared to be within the
statutory period of limitation, as the suit was instituted on 10 th
October, 2010, even if it is assumed that the refusal to perform
the contract became known to the plaintiff from the
communication dated 27th April, 2008. The Courts have
proceeded on the premise that there was delay in instituting the
suit from the date of the termination of the agreement for sale
and, therefore, the plaintiff was not entitled for the discretionary
relief of specific performance of the contract.
10. In the case of R. Lakshmikantham (supra) the Supreme
Court did not approve the view of the High Court that the delay
in filing the suit indicated that the plaintiff was not ready and
willing to perform his part of the contract in the said case. The
Supreme Court enunciated, in India it is well settled that the
rule of equity that exists in England, does not apply, and so long
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as a suit for specific performance is filed within the period of
limitation, delay cannot be put against the plaintiff.
11. It would be contextually relevant to note that in a suit for
specific performance, the element of delay comes in the frame in
different contexts. Even if the delay does not exceed the
stipulated period of limitation (in which case the suit would be
barred by limitation) in a given fact-situation the length of delay
bears upon the exercise of discretion.
12. In the case of Motilal Jain vs. Ramdasi Devi (Smt) and
others5, the Supreme Court expounded the aspects of delay
which become relevant in a suit for specific performance. The
Supreme Court reminded that, "it may be apt to bear in mind
the following aspects of delay which are relevant in a case for
specific performance of contract for sale of immovable property:
(i) Delay running beyond the period prescribed under the
Limitation Act;
(ii) Delay in cases where though the suit is within the period of
limitation, yet:
(a) due to delay the third parties have acquired rights in
the subject-matter of suit;
5 (2000) 6 Supreme Court Cases 420.
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(b) in the facts and circumstances of the case, delay may
give rise to plea of waiver or otherwise it will be inequitable to
grant a discretionary relief."
13. In the case of K. S. Vidyanandam and others vs. Vairavan 6,
the Supreme Court expressly observed that from the
presumption that the time is not essence of the contract in the
case of agreement for sale and that the period of limitation
prescribed for filing a suit for specific performance was three
years, it does not follow that any and every suit for specific
performance of the agreement (which does not provide
specifically that, time is essence of the contract) should be
decreed provided it is filed within the period of limitation,
notwithstanding the time limits stipulated in the agreement for
doing one or the other thing by one or the other party.
14. In the case of Saradamani Kandappan vs. S. Rajalakshmi
and others7, after following the pronouncement in the case of
Chand Rani (supra), the Supreme Court postulated that the
time stipulated for payment of balance consideration will be
considered to be essence of the contract where such intention is
evident from the express terms or the circumstances
6 (1997) 3 Supreme Court Cases 1.
7 (2011) 12 Supreme Court Cases 18.
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necessitating the sale. The observations of the Supreme Court
in paragraph 28 read as under:
"28. The intention to make time stipulated for payment of
balance consideration will be considered to be essence of the
contract where such intention is evident from the express
terms or the circumstances necessitating the sale, set out in
the agreement. If for example, the vendor discloses in the
agreement of sale, the reason for the sale and the reason for
stipulating that time prescribed for payment to be the
essence of the contract, that is, say, need to repay a
particular loan before a particular date, or to meet an urgent
time bound need (say medical or educational expenses of a
family member) time stipulated for payment will be
considered to be the essence. Even if the urgent need for the
money within the specified time is not set out, if the words
used clearly show an intention of the parties to make time
the essence of the contract, with reference to payment, time
will be held to be the essence of the contract."
15. In the backdrop of the aforesaid position in law, reverting
to the facts of the case, the circumstances in which the
agreement for sale was professed to be terminated by the
defendants assumed critical salience. Firstly, the defendants
had done all that was within their power in obtaining the
consent of the Society (D2). Initially, the defendants applied to
the Society (D2). Upon its refusal, the defendants approached
the Deputy Registrar, Co-operative Societies, for the redressal of
their grievance. Secondly, the plaintiff conceded in the cross-
examination, in no unequivocal terms that, he was aware that,
'no objection certificate', from the Society was not a necessary
requirement for completing the sale transaction. Thirdly, the
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defendants had put the plaintiff to notice that on account of the
delay, the defendants were suffering financial loss. The letters
dated 18th April, 2008 and 27th April, 2008 spell out the then
situation in the life of the defendants. As there was no response
to the first letter dated 18th April, 2008, it appears the
defendants terminated the agreement vide communication dated
27th April, 2008. The said letter was served on the plaintiff on
30th April, 2008. Fourthly, in response to the letter dated 18 th
April, 2008 though the plaintiff declined to terminate the
agreement, yet, did not offer to make payment of the balance
consideration. Fifthly, there was complete inaction on the part
of the plaintiff from May 2008 till the legal notice was addressed
on 3rd March, 2010.
16. The submission of Mr. Thipsay that since there was a
stipulation in the agreement for sale that the defendants would
obtain the consent of the Society before the execution of the sale
deed, there was nothing wrong on the part of the plaintiff in
insisting for the compliance of the said condition, though
appealing at the first blush, on a close scrutiny, reflects upon
the willingness of the plaintiff to perform his part of the
contract. The plaintiff could not have insisted for the
performance of the said condition, which was neither necessary
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for the completion of the transaction nor possible to be
performed by the defendants as there was no obligation on the
part of the Society (D2) to issue such consent. In a sense, the
plaintiff insisted for performance of an impossibility.
17. In the totality of the circumstances, where the plaintiff
was put to notice that, on account of the advanced age of the
defendants, and the financial loss, the defendants were
suffering on account of the delay, the transaction was required
to be completed by payment of balance consideration, the
Courts have not committed any error in arraying the aspect of
delay against the plaintiff in assessing the readiness and
willingness on the part of the plaintiff. In the peculiar facts of
the case, the acceptance of the refund of Rs.30,00,000/-,
indicates the strictness with which the plaintiff insisted for the
compliance of the condition of obtaining consent of the Society
(D2) rather than demonstrating the readiness and willingness
on the part of the plaintiff, as was sought to be canvassed by
Mr. Thipsay.
18. In the aforesaid view of the matter, I am not inclined to
accede to the submissions on behalf of the appellant that the
misconstruction of the documents and evidence gives rise to a
substantial question of law on the aspect of appreciation as to
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the readiness and willingness to perform the contract on the
part of the plaintiff. The learned Civil Judge as well the learned
District Judge have correctly exercised the discretion in refusing
the specific performance. Resultantly, the second appeal
deserves to be dismissed.
19. Hence, the following order:
:ORDER:
(i) The appeal stands dismissed.
(ii) In view of dismissal of the appeal, IA/3044/2022 stands
disposed.
[N. J. JAMADAR, J.]
At this stage, the learned Counsel for the appellant seeks
continuation of the status quo.
Having regard to the nature of the controversy and the
reasons which weighed with this Court in dismissing the
Second Appeal, the prayer for continuation of the status quo
stands rejected.
Mr. Thipsay, the learned Counsel for the appellant,
without prejudice to the rights and contentions of the appellant,
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seeks a direction for the refund of the sum of Rs. 1 Lakh which
was paid by way of earnest amount.
Ms. Merchant, the learned Counsel for the respondents -
defendants, on instructions, submits that the respondents -
defendants are willing to return the said amount of Rs.1 Lakh to
the appellant.
In view of the consent of the respondents - defendants, the
respondents - defendants are directed to refund the amount of
Rs.1 Lakh to the appellant, within a period of four weeks from
today, without prejudice to the rights and contentions of the
parties.
[N. J. JAMADAR, J.]
