Gujarat High Court
Hasmukhlal V Shah Decd.Through ... vs Pruithavishinh S Champavat on 30 September, 2022
Bench: A. P. Thaker
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2876 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HASMUKHLAL V SHAH DECD.THROUGH THE LRS
Versus
PRUITHAVISHINH S CHAMPAVAT & 1 other(s)
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Appearance:
APPEARANCE DELETED for the Appellant(s) No. 1
DECEASED LITIGANT for the Appellant(s) No. 1.1
HCLS COMMITTEE(4998) for the Appellant(s) No. 1.2,1.3,1.4,1.5
MR B C THAKKAR(11260) for the Appellant(s) No. 1.2,1.3
MR JAYANT P BHATT(169) for the Appellant(s) No. 1.4,1.5
MS NOOPUR K DALAL(11259) for the Appellant(s) No. 1.2,1.3
JENIL M SHAH(7840) for the Defendant(s) No. 2
MR KV SHELAT(834) for the Defendant(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 30/09/2022
ORAL JUDGMENT
1. The present First Appeal under Section 96 of the Civil
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
Procedure Code read with Order-41 Rule -1 has been
preferred by the original defendant against the
judgment and decree dated 28.6.1996 passed by the
learned City Civil Court No.4, Ahmedabad in Civil Suit
No. 3458/1986 whereby the decree of specific
performance of the contract is passed in favour of
the original plaintiffs - respondent herein.
2. The Appellant is the original defendant and
respondents are the original plaintiffs before the trial
Court. For brevity and convenience the parties are
referred to in this judgment as per the status
assigned to them before the trial Court i.e. plaintiffs
and defendant.
3. It appears from the record that the plaintiffs have
filed the Suit for specific performance of contract for
sale of a house in a Cooperative Housing Society
standing in the name of the defendant. It is the case
of the plaintiffs that the defendant is a member of
Shantivan Cooperative Housing Society Ltd.,
Narayannagar Road, Paldi, Ahmedabad. As per the
bye-laws of the Society, the Society was "tenant
ownership society" and the defendant was one of the
original promoters of the Society. Bungalow No.7 was
allotted to the defendant in the said Society. The
area of the Plot is 220 sq. yds and built-up area is 75
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
sq. yds. Initially, the defendant had let the said
bungalow to the plaintiff No.1 in the year 1970 and
since then he is in occupation thereof.
3.1 In the year 1979, the defendant filed a suit for
eviction against the plaintiff No.1 in the Small Causes
Court, Ahmedabad. During the pendency of the said
Suit, settlement was arrived at between the parties
and the defendant entered into an agreement to sell
the bungalow to the plaintiff No.1 and his wife
Plaintiff No.2. The said agreement to sell came to be
registered on 24.10.1983 and the price was fixed for
Rs.1,60,000/-. As per the recital in the said
agreement to sell, Rs. 5000/- was paid as earnest
money, which would be adjusted towards the said
transaction. It is contended that the period of the
agreement to sell was fixed upto 30.11.1984 and
during the said period, the plaintiffs were to pay
Rs.55,000/- to the defendant on or before 30.4.1984
and the balance amount of Rs. 1,00,000/- was to be
paid on or before 30.11.1984 and the defendant was
to execute the sale-deed on receiving the entire
amount. There was also stipulation that in case the
plaintiffs failed to pay the amount within the
stipulated period, the defendant was entitled to
forfeit the earnest money. There was also a
stipulation that if the plaintiffs failed to pay
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
Rs.50,000/- on or before 30.4.1984, they were liable
to pay interest at the rate of 12% on the said amount
till the sale deed is executed. There was also
stipulation that the defendant was to satisfy the
plaintiffs that he had a clear and marketable title and
if the defendant failed to execute the sale-deed
inspite of the plaintiff's readiness to pay the amount
during the period of the Banakhat the plaintiffs were
entitled to sue for specific performance of the
agreement. The Clause-5 of the said agreement casts
an obligation on the defendant to obtain Income-Tax
clearance certificate and permission under Urban
Land Ceiling Act and the expense for the same were
to be shared equally by the parties. According to
Clause-6 thereof, it was the responsibility of the
defendant to have his Membership shares and the
property transferred in the names of the Plaintiffs in
the books of the Society and he undertook to give his
signatures and statements wherever necessary and
to get the property transferred to the plaintiffs. It is
contended by the plaintiffs that as per Clause-7, the
parties were to pay in equal share, whatever transfer
fee or premium is payable to the Society.
3.2 It is contended that the Society had borrowed loan
from the Gujarat Cooperative Society Finance Limited
for the construction of houses and the defendant was
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liable to pay all installments of the loan and other
taxes and liabilities payable to the society till the
sale-deed was executed. There was Clause-9 in the
Agreement to the effect that the period as specified
in the Agreement was the essence of the Contract. In
Clause-11 thereof, it was noted that the H.R.P Suit
was being withdrawn on the same day but liberty
was reserved to the defendant to bring a fresh suit in
case the agreement could not be carried out because
of the plaintiff's default.
3.3 It is alleged by the plaintiffs that at the time of
execution of agreement to sell, they have paid
Rs.5000/- as earnest money and in addition to that,
they have paid Rs.15,000/- on 28.1.1985 to the
plaintiff by way of Draft and, therefore, the period of
execution of agreement to sell came to be extended
upto 31.7.1985. It is the stand of the plaintiffs that
they are still ready and willing to perform their part
of agreement to sell and ready to get executed the
sale-deed in their favour. It is also averred that on
29.4.1986 they have served the defendant, legal
notice for execution of sale-deed in their favour. It is
also averred that defendant has not informed them
till 31.7.1985 as to the issuance of title clearance
certificate under the Urban Land Ceiling Act as well
as regarding Income Tax permission and the consent
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
from the Society. It is also contended that even the
defendant has not informed them as to repayment of
the dues of the Society. It is also contended by the
plaintiffs that though defendant has been served with
the Notice for specific performance of the contract
and for execution of the sale-deed in favour of the
plaintiff, the defendant has not complied with the
same. On this basis, the plaintiff has filed the
aforesaid Suit for the decree of specific performance
of the contract and alternatively it is prayed that if in
the opinion of the Court, the plaintiffs are not entitled
to get executed the sale-deed, then the defendant be
directed to repay the amount of Rs.1,60,000/- along
with interest at the rate of 12% along with cost of the
Suit.
4. The defendant has resisted the Suit by filing written
statement at Exh-30, inter alia, contending that the
suit is barred by delay, laches, acquiescence and
estoppel. The defendant has admitted the factum of
his ownership over the bungalow in question as well
as the execution of the agreement to sell between
the parties and the stipulation made therein. It is the
specific case of the defendant that regarding title
and marketability of the property, he has already
satisfied the plaintiffs. It is also contended that for
obtaining Income Tax Clearance Certificate
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necessary proposal has been sent to the Income-Tax
Department. The defendant has contended that the
plaintiffs himself have committed the breach of the
condition as they have not paid Rs.55,000/- within
stipulated period i.e. 30.4.1984. According to the
defendant, therefore, there was no question of any
further action on his part for title clearance. It is also
contended that plaintiffs have not fulfilled their part
of obligation under the agreement to sell. It is also
contended that the defendant is paying regular
installment and the dues of the Society. It is
contended that it is the responsibility of the plaintiffs
to pay municipal tax and education cess and other
taxes to the municipality.
4.1 The defendant has denied the contention of the
plaintiffs that in addition to Rs.5000/- as earnest
money, the plaintiff has paid Rs.15000/- and thereby
period of agreement has been extended upto
31.7.1985. It is contended that as per the terms of
the agreement, the plaintiff has not paid stipulated
amount in stipulated period and, therefore, breach
has been committed by the plaintiffs and, therefore,
the averment made on behalf of plaintiffs that they
were ready and willing to perform their part of
contract, is false. It is also contended that the Notice
dated 29.4.1986, issued by the plaintiff to him, has
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been already been replied by him vide reply dated
21.5.1986. It is specifically stated by the defendant
that by Notice dated 19.9.1985 defendant has
already cancelled the agreement to sell and,
therefore, now there is no question of execution of
any sale-deed on the basis of the alleged agreement
to sell executed between them.
4.2 It is contended by the defendant that as the plaintiffs
could not arrange for making of the payment as
stipulated in the agreement to sell, the defendant
vide its Notice dated 2.11.1984, informed the plaintiff
for execution of agreement to sell. Thereupon, the
plaintiffs informed the defendant to come to
Ahmedabad on 29.1.1985 and receive the amount
and, therefore, the defendant came from Bombay on
the said date to Ahmedabad and at that time the
plaintiffs could arrange only for Rs.15000/-, and
requested the defendant to extend the period of
agreement upto 31.7.1985 and gave assurance that
within that period they will arrange for the remaining
amount and will get the sale-deed executed in their
favour. It is also contended that thereafter since no
amount was paid by the plaintiffs, the defendant
issued notice dated 19.9.1985 regarding the breach
of agreement to sell and informing that now there is
no question of performance of the agreement to sell
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
and plaintiffs were also informed that the earnest
money has been forfeited by the defendant. On all
these grounds, it is prayed by the defendant to
dismiss the Suit of the plaintiffs.
5. On the basis of the pleadings of the parties and the
material placed on record, the trial Court has framed
the following issues at Exh-18:
1. Whether the suit is barred by delay,
latches, acquiescence and estoppel?
2. Whether the plaintiffs prove that plaintiffs
were ready and willing to perform their part
of the contract contained vide the suit
Banakhat dated 24.10.83 at all material
time?
3. Whether the plaintiffs prove that defendant
has committed breach of the suit banakhat
dated 24.10.83. If yes, whether the
plaintiffs are entitled to specific
performance of the said Banakhat?
4. Is it proved that the banakhat dated
24.10.83 stood cancelled and the earnest
money paid by the plaintiffs stood forfeited
on account of breach committed by the
plaintiffs?
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
5. Whether the plaintiffs are entitled to claim
Rs.1,60,000/- by way of damages as an
alternative relief?
6. To what relief, if any, the plaintiffs are
entitled to claim?
7. What order and decree?
6. It appears from the record that the defendant No.2
Vimlaben Pruthvising Champavat has been examined
at Exh-21 and plaintiffs have also examined one Mr.
K.D.Acharya as witness at Exh-63. Whereas the
defendant has examined himself at Exh-82. It
appears that the parties have also produced
documentary evidence which consist of original
Banakhat and the Notice correspondence exchanged
between them.
7. On the basis of the evidence on record, the learned
trial Court has ultimately decided Issue Nos. 1 and 4
in Negative and Issue Nos. 2 and 3 in Affirmative and
Issue No.5 came to be answered as does not survive
and ultimately the Suit of the plaintiffs for specific
performance has been decreed with cost with the
direction to the plaintiff to deposit Rs.1,40,000/- in
the Court within 3 months and thus further directed
that from the amount being deposited, the defendant
shall take necessary steps for obtaining necessary
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
permission from Shantivan Cooperative Housing
Society to sell the house. It is also directed that the
plaintiff shall pay half of the transferred fee or
premium payable to the Society and on such
permission being granted, the defendant is directed
to execute registered sale-deed in favour of the
plaintiffs. Liberty has been reserved to the defendant
to withdraw the amount of deposited after the sale
deed is executed.
8. Being aggrieved by the aforesaid decree and
judgment of the trial Court, the original defendant
has preferred this First Appeal under Section 96
assailing the same on the grounds stated in the
memo of Appeal. The main grievance raised by the
defendant is that as there was a clear breach of
agreement to sell by the plaintiff and time being
essence of the contract and prior to the issuance of
the Notice by the plaintiffs to the defendant for
execution of the sale-deed, he has already informed
the plaintiffs regarding the cancellation of the sale-
deed as plaintiffs failed to pay the amount as
stipulated in stipulated period, there was no ground
available to the plaintiff to file the Suit and the trial
Court has materially erred in appreciating the entire
facts and circumstances and the evidence on record.
It is also contended that considering the peculiar
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
facts of this case, no decree for specific performance
ought to have been passed. It is also contended that
the trial Court has not properly appreciated the
evidence on record and erred in facts and law and
has materially erred in passing the decree of specific
performance in favour of the plaintiffs.
9. Heard Mr. Bhargav Thakkar, learned advocate for the
defendant- Appellant and Mr. Jenil Shah, learned
advocate for respondent No.2- original plaintiff at
length. Perused the material placed on record and
the decisions cited at bar.
10. Mr. Bhargav Thakkar, learned advocate for the
defendant- appellant has submitted that the
Bungalow in question belongs to the defendant and it
was rented to the plaintiffs. Thereafter, a suit for
eviction was filed against the plaintiffs. He has
submitted that during the pendency of the Suit, there
was a compromise arrived at between the parties
and it was agreed to sell the Bungalow in question to
the plaintiffs for consideration of Rs.1,60,000/- and
Banakhat to that effect was executed. Mr. Thakkar
has submitted that there were specific stipulation
regarding the mode of payment in a stipulated time
period. He has submitted that agreement was to be
executed till 30.11.1998. While referring to the
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
Banakhat, he has submitted that Rs.5000/- was paid
towards earnest money and the Plaintiffs were to pay
Rs.55,000/- on 30.4.1984 and remaining amount of
Rs.1,00,000/- was to be paid on 30.11.1984. He has
also submitted that there was stipulation in the
Banakhat that if the amount is not paid during the
stipulated time, then, the defendant has every right
to cancel the same and forfeit the earnest money.
According to his submission, the plaintiffs did not pay
the amount within the stipulated period and had
requested for extension of time by paying
Rs.15,000/-. He has submitted that even thereafter,
the plaintiffs did not pay the amount to the
defendant and hence, the defendant, by
communication cancelled Banakhat and informed the
plaintiff regarding forfeiture of the earnest money.
He has submitted that the plaintiffs have committed
breach of terms of the Banakhat and, therefore,
plaintiffs cannot insist for the specific performance of
the contract. He has submitted that the defendant is
residing at Bombay. He has submitted that even the
Notice issued by the plaintiff was duly replied by the
defendant and further submitted that when there
was a clear cut Notice issued by the defendant
regarding termination of agreement to sell way back
in the year 1985, now there is no question of any
obligation on the part of defendant to execute the
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
agreement to sell in question. He has submitted that
the Suit has been filed in the year 1986. While
referring to the evidence on record, he has submitted
that the trial Court has committed error of facts and
law by passing the impugned decree in favour of the
plaintiffs and against the defendant. He has
submitted that the once there was clear cut breach
committed by the plaintiffs in not paying the agreed
amount as per the stipulated period and the
termination of agreement by the defendant prior in
point in time, the trial Court ought not to have
passed the impugned decree against the defendant.
He has prayed to set-aside the judgment and decree
and dismiss the Suit of the plaintiff. He has relief
upon the following decisions in support of his
submissions:
10.1 In the case of Coromandel Indag Products Private
Limited v. Garuda Chit and Trading Company Private
Limited and Another, reported in (2011) 8 SCC 601,
wherein Para-20 reads as under:
"20) It is also relevant to point out the stand of the parties as
reflected in their pleadings and evidence. In terms of 16(c) the
Specific Relief Act, 1963, it is incumbent on the party, who wants
to enforce the specific performance of a contract, to aver and
prove that he has performed or has always been ready and
willing to perform the essential terms of the contract.
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Explanation appended to this sub-section (c) makes it clear that if
a contract involves the payment of money, it is not essential for
the plaintiff to actually tender to the defendant or to deposit in
Court any money except when so directed by the Court. However,
the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction. It is seen from the pleadings that necessary
averments have been made in terms of sub-section (c) of 16."
10.2 In the case of Vimaleshwar Nagappa Shet v. Noor
Ahmed Shariff and Others, reported in (2011) 12 SCC
658, wherein it is observed in Para-11, as under:
"11) It is settled law that Section 20 of the Specific Relief Act,
1963 confers discretionary powers. [vide: M. Meenakshi & Ors. vs.
Metadin Agarwal , Nirmala Anand vs. Advent Corporation (P) Ltd.
& Ors., Parakunnan Veetill Joseph's Son Mathrew vs. Nedumbara
Karuvila's Son & Ors. It is also well settled that the value of
property escalates in urban areas very fast and it would not be
equitable to grant specific performance after a lapse of long
period of time".
10.3 In case of Shankarlal Bijreja v. Ashok B. Ahuja,
reported in 2010 SCC OnLine Chh 287, wherein it is
observed in Para- 13 as under:
"13. By applying the aforesaid legal proposition laid down by
the Supreme Court in teh dicta of above referred cases in the
facts and circumstances of the present case, it is crystal clear
that the appellant utterly failed to prove his readiness and
willingness to perform his part of the contract. It cannot be
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
overlooked that the appellant never came forward with the
entire amount of consideration for getting the sale ded executed
in his favour. Every time, he insisted on delivery of possession
before such payment, also insisted for execution of sale deed in
part in proportion to the amount paid by him which was not
justified. Such an insistence could only be regarded as trying to
vary the terms of the agreement. On the whole, the transaction
failed primarily on account of non-payment of entire amount of
consideration either wihint the time stipulated in the agreement
or within the extended time i.e. till 31.12.2003. If on this account,
it was treated as a breach it was understabdable and could not
be said to be unjustified. If we analyse the amount paid by the
appellant in part on various occasions, it appears that the said
amount was also arranged by Shrichand Wadhwa i.e. brother-in-
law of the appellant. It appears, the appellant was not
completely aware about the fact, how and in what manner the
amount was paid to the respondent. This fact also shows lack of
readiness on the part of the appellant. This an be analyzed in
another way also. The appellant who was insisting upon regularly
on demarcation and prior possession of the suit property, has
suddenly come forward with the suit claiming specific
performance of contract without insisting upon prior possessio
and without disputing title, area description and identity of the
suit property. Had there been a case in which the appellant
would have come forward with the entire amount with the entire
amount of consideration and would have requested the
respondent: "please take the entire amount of consideratin and
execute the sale deed and hand over its vacant possession to
him" and if in that circumstances, the respondent was unable to
hand over possession of the suit property, it could have been said
that the respondent was at the fault. This is not a case here. In
the above circumstances, it cannot be said that equity lies in
C/FA/2876/1996 JUDGMENT DATED: 30/09/2022
appellant's favour and in our considered opinon, the suit has
rightly been dismissed".
10.4 In case of K.S. Vidyanadam and Others v. Vairavan,
reported in (1997) 3 SCC 1, wherein it is observed in
Para-14, as under:
"14. Sri Sivasubramanium then relied upon the decision in Jiwan
Lai (Dr) v. Brij Mohan Mehra to show that the delay of two years
is not a ground to deny specific performance. But a perusal of the
judgment shows that there were good reasons for the plaintiff to
wait in that case because of the pendency of an appeal against
the order of requisition of the suit property. We may reiterate
that the true principle is the one stated by the Constitution
Bench in ChandRani Even where time is not of the essence of the
contract, the plaintiffs must perform his part of the contract
within a reasonable time and reasonable time should be
determined by looking at all the surrounding circumstances
including the express terms of the contract and the nature of the
property".
10.5 In case of His Holiness Acharya Swami Ganesh Dassji
v. Sita Ram Thapar, reported in (1996) 4 SCC 526,
wherein it is observed in Para-2, as under:
"2. There is a distinction between deadiness to perform the
contract and willingness to perform the contract. By readiness
may be meant the capacity of the plaintiff to perform the
contract which includes his financial position to pay the purchase
price. For contract, the conduct has to be properly scrutinised.
There is no documentary proof that the plaintiff had ever funds
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to pay the balance of consideration. Assuming that he had the
funds, he has to prove his willingness to perform his part of the
contract. According to the terms of the agreement, the plaintiff
was to supply the draft sale deed to the defendant within 7 days
of the execution of the agreement, i.e., by 27.2.1975. The draft
sale deed was not returned after being duly approved by the
petitioner. The factum of readiness and willingness to perform
plaintiff's part of the party and the attending circumstances. The
court may infer from the facts and circumstances whether the
plaintiff was ready and was always ready and willing to perform
his part of the contract. The facts of this case would amply
demonstrate that the petitioner/plaintiff was no ready no
capacity to perform his part of the contract as he had no
financial capacity to payt the consideration in cash as contracted
and intended to bit for the time which disentitles him as time is
the essence of the contract".
10.6 In case of Chand Rani(Smt) (Dead) by LRs. v. Kamal
Rani (Smt) (Dead) by Lrs, reported in (1993) 1 SCC
519, wherein Para-9, reads as under:
"9. Aggrieved by the same, the matter was taken up in appeal
under R.F.A. (O.S) No. 15/75. The Division Bench of the High
Court on an elaborate consideration of the oral and documentary
evidence held that the non-payment of Rs. 98,000 by the
plaintiffs on or before 6.9.71 would entitle the defendant to
treat it as a breach of contract. The insistence of the plaintiffs to
obtain the income-tax clearance certificate and redemption of
the property before the payment of Rs. 98,000 was unjustified.
Such an insistence could only be regarded as trying to vary the
terms of the agreement. On the whole, the transaction failed
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primarily on account of non-payment of Rs. 98,000 by 6th of
September, 1971. If on this account it was treated as a breach it
was understandable and could not be said to be unjustified. In
the result, the decree for specific performance was set aside. The
plaintiffs were held entitled to the refund of the sum of Rs.
30,000. To this effect, a decree was granted in their favour.
Challenging the same, special leave to appeal was preferred. This
Court while granting special leave ordered as under:
"We grant leave in the light of the observations brought to
our notice in an earlier decision of this Court referred to by
the High Court. Nevertheless, we feel the position of law
so decided deserves reconsideration by this Court. And
therefore we direct that this appeal be placed before the
learned C.J. for directions that it be heard by a larger
Bench. Stay appln. allowed to be withdrawn".
10.7 In case of Fatehji and Company and Another v. L.M.
Nagpal and Others, reported in (2015) 8 SCC 390,
wherein it is observed in Para-5 as under:
"5.......Article 54 of the Limitation Act stipulates that the
limitation for filing the suit for specific performance of the
contract is three years from the date fixed for the performance
or if no such date is fixed, when the plaintiff has notice that
performance is refused."
10.8 In case of Kanshi Ram v. Om Prakash Jawal and
Others, reported in (1996) 4 SCC 593 , wherein Para-
3 reads as under:
"3.The learned counsel for the appellant has fairly contended
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that specific performance of the contract is within the discretion
of the Court and is not a matter of course. The courts in granting
the decree for specific performance should exercise the discretion
on sound principles of law. In the event of working out the
equities, the courts would in an appropriate case, grant
alternative relief, stead of granting the decree for specific
performance. In support thereof, he sought to place reliance on
the judgment of this Court in S.Rangaraju Nidu v. S.
Thiruvarakkarasu. He contended that the appellant is prepared
to pay a sum Rs.10 lakhs as alternative relief; though the
respondent claimed Rs.12,000/- instead of granting specific
performance at this distance of time which word be unjust,
inequitable and unfair".
11. Per contra, learned advocate Mr. Jenil Shah for the
plaintiffs has vehemently submitted that the trial
Court has not committed any error of facts as, as per
Clause-4 of the Banakhat duty was casted upon the
seller to get title clearance. He has also referred to
the various Clauses of Banakhat and has submitted
that the title of the defendant was not cleared by the
defendant. He has submitted that there are notice
transactions between the parties since the defendant
did not execute the sale-deed in favour of the
plaintiffs, the plaintiffs were constrained to file suit in
the year 1986 for specific performance of contract.
He has submitted that when the execution of
agreement to sell is admitted by the defendant, in
view of the amended Section 20 of the Specific Relief
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Act, no discretion is available to the Court and the
Court has to pass decree of specific performance in
case of breach of terms of agreement to sell by the
seller. He has also submitted that in view of the
decree passed by the trial Court, the plaintiffs have
already deposited the amount before the trial Court.
He has also submitted that the original decree is of
the year 1996 and considering the time lapsed, it is
unjust to set-aside such decree at this point of time.
He has submitted that there was no fault on the part
of the plaintiff and time was not the essence of the
contract and the contract being related to immovable
property as well as considering the fact once time
was extended by the defendant, by accepting
Rs.15,000/-, passing of the decree by the trial Court
in favour of the plaintiff for specific performance of
the contract is legal and valid. He has submitted that
when it is the stand taken by the defendant that
there was breach committed by the plaintiff, then it
was for the defendant to prove such breach and as
the defendant failed to do so, the impugned decree
of the trial Court does not require any interference of
this Court. He has prayed to dismiss the present
Appeal and confirm the decree passed by the trial
Court. Mr. Shah, learned advocate has relied upon
the following decision in support of the submission:
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11.1.In the case of R.C. Chandiok v. Chuni Lal Sabharwal,
reported in 1970 (3) SCC 140, wherein it is observed
in Paras- 6 and 7, as under:
"6. We are unable to concur with the reasoning or the
conclusions of the High Court on the above main points. It
is significant that the lease deed was not executed in
favour of the respondents by the Government until April
21, 1956. So long as their own title was incomplete there
was no question of the sale being completed. It is also
undisputed that according to the conditions of the lease
the respondents were bound to obtain the sanction of the
Rehabilitation Ministry transferring the plot to any one
else. The respondents were fully aware and conscious ,of
this situation much earlier and that is the reason why on
August 11, 1955 it was agreed while extending the period
for execution of the sale deed that the same shall be got
executed after receipt of the sanction. The statement
contained in Exhibit P-7 that the execution of the sale
deed "by us cannot be complete without the said sanction"
was unqualified and unequivocal. The respondents further
undertook to inform. the appellants as soon as sanction
was received and thereafter the sale deed had to be
executed within a week and got registered on payment of
the balance amount of consideration. We are wholly
unable to understand how in the presence of Exhibit P-7 it
was possible to hold that the appellants were bound to
get the sale completed even before any information was
received from the respondents about the sanction having
been obtained. It is quite obvious from the letter Exhibit P-
8 dated June 15, 1956 that the respondents were having
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second thoughts and wanted to wriggle out of the
agreement because presumably they wanted to transfer it
for- better consideration to some one else or to transfer it
in favour of their own relation as is stated to have been
done later. The respondents never applied for any sanction
after August 11, 1955 and took up the position that they
were not prepared to wait indefinitely in the matter and
were therefore cancelling the agreement "for want of
certainty". We are completely at a loss to understand this
attitude nor has any light been thrown on the uncertainty
contemplated in the aforesaid letter. It does not appear
that there would have been any difficulty in obtaining the
sanction if the respondents had made any attempt to
obtain it. This is obvious from the fact that when they
actually applied for sanction on November 11, 1956 it was
granted after a week. The statement contained in Exhibit
P-10 dated July 4, 1956 that the sanction was not
forthcoming has not been substantiated by any cogent
evidence as no document was placed on the record to
show that any attempt was made to obtain sanction prior
to November 11, 1956. Be that as it may the respondents
could not call upon the appellants to complete the sale
and pay the balance money until the undertaking given in
Exhibit P-7 dated August 11, 1955 had been fulfilled by
them. The sanction was given in November, 1956 and even
then the respondents did not inform the appellants about
it so as to enable them to perform their part of the
agreement of safe. There was no question of time having
ever been made the essence of the contract by the letters
sent by the respondents nor could it be said that the
appellants had failed to perform their part of the
agreement within a reasonable time.
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7. On behalf of the respondents it has been urged
that in spite of the letters of the respondent by which the
agreement had been cancelled the appellants did not
treat the agreement of sale as having come to an end and
kept it alive. They were therefore bound to send a draft of
the conveyance and call upon the respondents to execute
the sale deed and get it registered on payment of the
balance of the sale price as soon as they came to know
directly from the Housing and Rent Officer that sanction
had been granted. This they failed to do and it must be
inferred that they were not ready and willing to perform
their part of the agreement Our attention has been invited
to a statement in Halsbury's Laws of England, Vol. 34,
Third Edn. at page 338 that in the absence of agreement
to the contrary it is the purchaser who has to prepare the
draft conveyance and submit it to the vendor for approval.
No such point was raised at any prior stage and in any case
we do not consider that after the cancellation of the
agreement by the respondents it was necessary or
incumbent on the appellants to send any draft
conveyance. The very fact that they promptly filed the suit
shows their keenness and readiness in the matter of
acquiring the plot by purchase. It must be remembered
that the appellants had not only put in an advertisement
in newspapers about the existence of the agreement but
had also sent a letter Exhibit P-13 on September 12, 1956
declaring their readiness and willingness to pay the
balance of the purchase price on the respondents
procuring the sanction. The appellants further made
enquiries directly from the authorities concerned about
the sanction. 'Readiness and,willingness cannot be treated
as a straight jacket formula. These have to be determined
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from the entirety of facts and circumstances relevant to
the intention and conduct of the party concerned. In our
judgment there was nothing to indicate that the
appellants at any stage were not ready and willing to
perform their part of the contract. The High Court had
taken another aspect of readiness and willingness into
consideration, namely, the possession of sufficient funds
by the appellants at the material time for payment of the
balance of the sale price. Romesh Chand P.W.6 had stated
that his father was a Head Master since 1922 in a High
School and he was also doing import business. He gave up
service in 1934. The son joined the father in his business in
the year 1928 and his other brother appellant No. 2 also
joined that business some years ago. The bank account
was produced which showed that between July 18, 1955
and December 31, 1955 the appellants' father had in his
account a credit of over Rs. 15,000/- but thereafter
between January, 1956 and March, 1956 an amount of Rs.
15,000/- odd had been withdrawn. According to the High
Court after these dates there was nothing to show that
the appellants had any funds. The evidence of Romesh
Chand P.W. 6 that the family had an amount of Rs.
40,000/- lying at their house was not believed. Now in the
first place the relevant period for determining whether the
appellants were in a position to pay the balance of the
sale price was after November, 1956 when sanction had
obtained by the respondents for transfer of the plot from
the Rehabilitation Ministry. The appellants had admittedly
paid without any difficult Rs. 7,500/- as earnest money
and the bank account of the father showed various credit
and debit entries from time to time. On March 5, 1956 an
amount of Rs. 12,720/- had been withdrawn by a cheque
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in favour of Romesh Chand P.W. 6. According to his
statement this amount was withdrawn because his father
was very ill and it was decided to withdraw the amount at
that time. It was deposited with his mother and remained
with her throughout. There is no material or evidence to
show that this amount had been expended or spent and
that the statement of Romesh Chand was false on the
point. Even if the version that Rs. 40,000/- in cash were
lying at the house of the appellant is discarded at least an
amount of Rs. 12,720/- must have been available at the
material and relevant time. The appellants were carrying
on business and there is nothing to indicate that they were
not in a position to arrange for the remaining sum to make
up the total of Rs. 15,000/-. We are, therefore, unable to
accept that the appellants, who had all along been trying
their utmost to purchase the plot, did not have the
necessary funds or could not arrange for them when the
sale deed had to be executed and registered after the
sanction had been obtained".
12. In rejoinder, Mr. Thakkar has submitted that the
Plaintiffs were tenants in the Bungalow and that they
were knowing that the title of the defendant is clear.
He has also submitted that since it is a Bungalow
there is no applicability of the provisions of the Urban
Land Ceiling Act. He has also submitted that there is
no evidence produced on record regarding readiness
of the plaintiffs to make payment. He has also
submitted that as per Exh-71 and 72 dues of the
Society were already paid by the defendant and title
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was already cleared, however, the plaintiffs did not
pay the amount in stipulated period. He has also
submitted that as per the stipulation in the
agreement to sell, unless and until defendant
receives the entire sale consideration, he cannot
apply to Society for permission to sell the Bungalow
in question to the plaintiffs. He has submitted that
considering the overall facts and circumstances of
the case, it is a case wherein there is a breach
committed by the plaintiffs and as per the stipulation
in the agreement itself, the defendant has already
exercised its right of cancellation of the agreement to
sell and forfeiture of the earnest money prior to the
issuance of the notice by the plaintiff. Therefore,
according to him, there was no question of granting
any relief of specific performance of the contract by
the defendant. He has submitted that the trial Court
has committed serious error of facts and law in
passing the impugned decree. Regarding the
decision cited by learned advocate for the plaintiffs-
respondents herein, Mr. Thakkar has submitted that
the facts of that case was different from the present
one and, therefore, the cited decision is not
applicable in the present facts situation.
13. Admittedly, this First Appeal is filed under Section 96
of the CPC. Being the First Appellate Court, as a last
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Court of findings of fact, it is necessary for this Court
to re-appreciate the entire oral and documentary
evidence and to find out as to whether the impugned
judgment and decree is sustainable in the eyes of
law or not.
14. Now, admittedly, in present case, considering the
pleadings of the parties, there is not dispute as to the
factum that defendant is owner of the property and
the plaintiffs were residing as tenant in the premises
and there was rent Suit filed between the parties and
it was agreed by way of agreement to sell (Banakhat)
that the suit property Bungalow would be sold by the
defendant to the tenant in consideration of
Rs.1,60,000/-. It is not disputed that the agreement
to sell was executed between the parties, which is
having various stipulations regarding payment of
earnest money as well as the time period for making
the payment of entire sale transaction. There is also
stipulation in the agreement that in case of failure on
the part of the purchaser in making payment in
stipulated period, the vendor i.e. seller is entitled to
cancel the agreement and to forfeit the earnest
money. Now, there is no dispute regarding the
execution of such agreement to sell between the
parties. The main question is as to who is at fault for
non-fulfillment for agreement to sell. The defendant
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has accepted that there was agreement to sell and it
is specific stand that plaintiffs have committed
breach of agreement to sell and thus burden is
shifted on the defendant to prove the breach of
condition of agreement to sell on behalf of plaintiffs.
Therefore, considering pleadings of the parties and
the documentary evidence, the following points arise
for determination of the present Appeal:
1. Whether the defendant proves that the
plaintiff has committed breach of terms of
the agreement to sell?
2. Whether the defendant proves that time
was the essence of the contract and within
stipulated period the plaintiffs have not
paid the consideration price to him?
3. Which party is at fault for the breach of
agreement to sell?
4. Whether the impugned judgment and
decree of the trial Court is sustainable in
the eyes of law?
5. Whether the plaintiffs are entitled to claim
damages as an alternative relief?
6. What order and decree?
15. My findings on the above points, for the reasons
given below, are as under:
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1. In the affirmative.
2. In the affirmative.
3. Plaintiffs are at fault.
4. In the Negative.
5. In the Negative.
6. As per final order.
16. REASONS:
POINT NOS. 1 TO 5: Since the evidence and facts
on record, pertaining to all these issues are
interwoven, to avoid repetition, the same are
discussed together. Plaintiff No.2 Vimlaben
Pruthvisinh Champavat in her evidence at Exh-21;
has narrated the relation between the parties of the
execution of the agreement to sell with stipulations
and has deposed that once the agreement to sell was
executed, the outer limit was fixed as 30.11.1984. It
is stated by her that during that period, defendant
has to get title clearance from the Cooperative
Housing Society. According to her, the defendant did
not complied the said procedure within stipulated
period. She has stated that as per the terms of
agreement, they have to pay Rs. 55,000/- before
30.4.1984 to the defendant but since defendant was
residing at Bombay, he never met the plaintiff. She
has stated that as defendant was not available, the
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plaintiffs had met Mr. Thakkar, learned advocate for
the defendant and told that the outer limit of
Banakhat has come to an end. It is her version that
Mr. Thakkar told that the defendant will come within
one or two months and the sale-deed will be
executed and, therefore, they have waited for more
than one month and thereafter the defendant came
to Ahmedabad and met the Plaintiffs. She has
deposed that at that time, the defendant had
demanded Rs.1,30,000/- from the plaintiffs and told
them that he will get it registered after completion of
proceedings regarding the Society. She has deposed
that at that time she had told the defendant that the
defendant should accept the entire sale
consideration and execute the sale-deed. It is her
version that at that time the defendant told them to
pay some amount so that time for execution of
agreement to sale be extended. She has deposed
that, therefore, on 28.1.1985, they have paid
Rs.15,000/- by Draft to defendant and on that basis,
the defendant had extended the time to execute the
said agreement to sell upto 31.7.1985 and he has
also put his signature to that effect in the agreement
to sell at Exh-22.
16.1 She has also deposed that thereafter, after one
month the defendant came to Ahmedabad and
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demanded further Rs.15,000/- and at that time the
plaintiff paid Rs.12,500/- and at that time the
defendant told them that the receipt will be issued by
his advocate on the next date . It is her version,
thereafter, the defendant left for Bombay and his
advocate did not give any receipt for this amount.
She has also stated the defendant did not came to
Ahmedabad on 31.7.1985 nor has he initiated any
proceedings for getting necessary permission from
the Society.
16.2 She has also stated that thereafter the plaintiffs have
issued Notice dated 29.4.1986, which has been
received by the defendant. She has stated that the
plaintiffs are ready and willing to perform their part
of agreement to sell and they have already deposited
the entire amount of consideration in the Bank in
Fixed Deposit. She has stated that now the price of
the Bungalow is raised and it would be more that
Rs.2,50,000/-.
16.3 During her cross-examination, she has accepted that
her husband Plaintiff-1 is tenant in the said premises
since last 25 years and they are knowing since very
beginning that the defendant is residing at Bungalow
and they also know his address of Bombay. She has
admitted that suit was filed by the defendant for
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eviction against her husband. She has admitted that
they have received the Notice dated 26.11.1985 at
Exh-37 sent by the defendant. The Registered A.D.
thereby is at Exh-38. She has also stated that they
have issued public notice in Gujarat Samachar Daily
on 27.1.1984. She has stated that the defendant has
not informed them regarding the clearance from
Income Tax as well as title clearance from the
Society. She has denied that no objection was raised
by the Society against the public notice issued by
them. She has admitted that the residents of
Bungalow Nos. 9 and 10 have raised objection
against the public notice issued by them. She has
admitted that she knows the factum of
correspondence in relation to that objection. She has
shown her ignorance as to what correspondence has
been exchanged between the defendant and the
Society. She has admitted that when they received
the letter dated 7.2.1984, there was no elected body
of the Society and Registrar was appointed as
Administrator. She has admitted that the residents of
Bungalow Nos. 9 and 10 have no objection if the
defendant transfers the Bungalow in question in
favour of the plaintiff.
16.4 She has also admitted that the Suit between her
husband and the defendant regarding eviction from
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the Bungalow is pending. She has stated that her
husband has also filed Application for fixation of
standard rent against the defendant. She has
admitted that she knows various Clauses of the
agreement to sell at Exh-22. She has admitted that
they have received the notice at Exh-36 dated
26.11.1985. She has stated that necessary reply has
been sent by their advocate. She has denied the
suggestion that no reply to the aforesaid notice was
given by their advocate or by them. She has
admitted that as per Clause-3 of the agreement to
sell, the plaintiffs have to pay Rs.55,000/- to the
defendant before 30.4.1984. She has admitted that
the plaintiffs had to pay Rs. 1 lakh before 30.11.1984
to the defendant. She has denied the suggestion that
during the period from 30.4.1984 to 30.11.1984 the
plaintiffs have not paid the requisite amount as
stipulated in the agreement to sell to the defendant.
She has voluntarily stated that as defendant was not
residing at Ahmedabad, his advocate has told them
that they should not worry. She has stated that this
fact has been known to them when the legal suit
notice was issued as well as at the time of filing the
Suit. She has admitted that on the payment of
Rs.15,000, the defendant has extended period of
agreement to sell upto 31.7.1985. She has also
admitted that Bungalow No.7 has been allotted to the
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defendant and it is also mutated in the government
record in the name of the defendant. She has
admitted that the defendant has informed them vide
Exh-42 that the objection is raised by residents of
Bungalow Nos. 9 and 10 and even withdrawn by
them. She has admitted that she has not verified the
record of the Society as to the outstanding
installment against the defendant. She has admitted
that there was a stipulation in the agreement that if
the plaintiffs failed to pay Rs.55,000/-, on or before
30.4.1984, then the defendant will be entitled to get
interest at the rate of 12% p.a. thereof and the entire
amount was to be paid before 30.11.84. She has
stated that there were correspondence regarding
agreement to sell and the same are produced in the
matter. She has denied that the agreement to sell
has already been cancelled by the defendant vide
Notice dated 30.9.85 and yet they have filed a false
suit.
17. On perusal of the evidence of Plaintiff's witness
Kantilal Devshankar Acharya at Exh-63, it is revealed
that he is a witness who, at the relevant point of
time, was member of the Society and the factum of
administration of the Society by the Registrar and
regarding the ownership of the Bungalow No.7 by the
defendant and regarding payment by defendant to
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the Society. He has produced bye-laws of the Society
and the correspondence entered into between the
parties. However, from his evidence, it is revealed
that Bungalow No.7 was allotted to the defendant
and the plaintiffs are residing in the same.
18. On perusal of the evidence of the defendant
Hasmukhlal Shah at Exh-82, it reveals that he has
narrated the factum of his ownership of the
Bungalow and regarding the agreement to sell being
executed between the parties. He has narrated that
the time was essence of the Contract and as plaintiffs
were not in a position to pay the entire amount, they
have paid Rs.15,000/- and the execution of the
agreement to sell was extended upto 31.7.1985 and
he has made endorsement thereof below Exh-22 i.e.
agreement to sell to that effect. He has deposed that
thereafter the plaintiffs have not paid any amount.
He has denied that the plaintiffs have paid further
amount of Rs.12,500/-. He was ready and willing to
execute the sale-deed if the entire amount is paid on
or before 31.7.1985. He has stated that as the
plaintiffs have failed to fulfill their obligation, he has
issued legal notice vide Exh-50 and has forfeited the
earnest money. He has also stated that he has
deposited the requisite amount of the Society in the
Account of the Society, which was in the Ahmedabad
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District Cooperative Bank. He has produced the
receipt thereof at Exh-72. He has stated that the
residents of Bungalow Nos. 9 and 10 have raised
objection as per Exh-47 and, therefore, he has given
reply to them and on that basis, they have withdrawn
their objection. He has stated that there was no need
of any permission of Urban Land Ceiling. He has
stated that as per the agreement to sell, he had to
pay the installment of the Society for the period upto
30.11.1984, which he has already deposited. He has
also stated that as agreed between the parties, when
the entire amount is paid and Draft of sale-deed is
prepared then at that time he had to get Income Tax
Clearance Certificate. He has stated that the plaintiffs
have issued Notice dated 31.4.1986, which he has
replied at Exh-85 and 86. He has stated that the
plaintiffs have never written any letter to him at his
Bombay address showing that they are willing to pay
the entire amount on or before 31.7.1985. He has
stated that he has filed eviction suit against the
plaintiff being No. 1675/86, which is pending, wherein
the plaintiff is not depositing the rent regularly. He
has also stated that defendant No.2 has his own
Bungalow No.4 in the Hatkesh Society, which has five
rooms. He has specifically stated that he has never
told the plaintiff that he has no time to execute the
sale-deed. He has stated that the plaintiffs have
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never tendered the entire sale consideration. He has
stated that as the plaintiff has paid Rs.15,000/-, time
to execute the sale-deed was extended by him for six
months only and thereafter they have not paid any
amount to him.
18.1 During his cross-examination, he has stated that
when the plaintiffs called him at Ahmedabad for
execution of the sale-deed, he remained present in
Ahmedabad. He has stated that he has not received
any notice prior to 31.7.1985. He has stated that he
was to get Rs.55,000/- before 30.4.84 and the
remaining amount was to be paid before 30.11.84 by
the plaintiffs. He has stated that since the amount
was not paid, he had no occasion to ask for
permission from the Society. He has stated that as
the plaintiffs have no money to pay to him, he has
not asked for any permission from the Society. He
has denied the suggestion that as he could not get
the permission from the Society for sale of the
Bungalow, the plaintiffs did not pay any amount to
him. He has denied the suggestion of the plaintiffs
that he has not fulfilled his obligation under the
agreement to sell. He has stated that the plaintiffs
did not pay Rs.55,000/- within time. He has denied
the suggestion that he has told the plaintiff to extend
the period of agreement on receipt of Rs.15000/-. He
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has denied the suggestion that as he could not
complete the necessary formalities, he himself has
extended the period of execution of sale-deed. He
has denied the suggestion that the plaintiffs have
sufficient amount for payment to him and they have
put it in Fixed Deposit. He has stated that unless and
until the plaintiffs pay the entire consideration
amount, there was no question of asking any title
clearance certificate from the Income Tax
Department.
19. On appreciation of oral evidence, it clearly transpires
that the plaintiffs has admitted that prior to issuance
of the legal notice in the year 1986, they have
received the notice regarding the forfeiture of the
earnest money and intimation from the seller that he
is not willing to sell the property to him as per Exh-50
dated 19.9.1985. The intimation at Exh-50 clearly
reveals that by narrating the factum of non-payment
of entire sale transaction within stipulated period and
regarding extension of period of agreement to sell at
the instance of the plaintiffs, the defendant has
informed the plaintiffs that earnest money is forfeited
and now he is not willing to sell his bungalow to the
plaintiffs. Thus, in the year 1985 itself, the plaintiffs
were knowing that the agreement to sell has already
been cancelled by the defendant for non-receipt of
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the sale transaction within a stipulated period and
regarding forfeiture of the earnest money. It also
reveals from the Notice dated 26.11.1985, issued by
the defendant to plaintiff at Exh-37, regarding
intimating the plaintiff to pay the rent of the
premises and on failure of which, he would be
constrained to file Suit for possession against them. It
reveals from the said Notice that the defendant has
clearly averred regarding the cancellation of the
agreement to sell for non-payment of the
consideration amount within stipulated period. Thus,
even in November, 1985, the plaintiffs were knowing
that agreement to sell has already been terminated
by the defendant.
20. The plaintiffs are relying upon the communication
made by the defendant to Mr. K.D. Acharya and Mr.
H.B.Shah for withdrawal of their objection as due to
their objection there is some problems in execution
of sale-deed in favour of the plaintiff. However, both
these letters at Exh-71 and 72 is prior to the issuance
of Notice at Exh-37.
21. Now, considering the overall facts coupled with the
oral and documentary evidence, it clearly transpires
that even before the issuance of the legal notice in
the year 1986, by the plaintiffs to the defendant for
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execution of the agreement to sell, the plaintiffs were
within the knowledge that agreement to sell at Exh-
22 has already been terminated by the defendant
and their earnest money is already been forfeited. It
also reveals that at the relevant time, the time period
for execution of the agreement to sell was extended
upto 31.7.1985 at the instance of the plaintiffs and
on payment of Rs.15,000/- to the defendant. Thus,
considering the overall facts and circumstances of
the case, it clearly transpires that the defendant was
not ready and willing to extend the period thereof as
the plaintiffs could not manage to pay the entire
consideration amount to be paid as stipulated in the
agreement to sell. Of course, it is the stand of the
plaintiffs that they had sufficient amount to pay to
the defendant for execution of the sale-deed and
have put the amount in Fixed Deposit, however, no
documentary evidence whatsoever has been
produced by the plaintiffs in this regard. Considering
the facts of this case, especially when the defendant
has already informed in September, 1985 to the
plaintiffs regarding the forfeiture of their earnest
money, the plaintiff as a prudent man, ought to have
immediately replied to the defendant, whose address
they were knowing, as to having sufficient amount
being kept in Fixed Deposit in a particular bank.
Considering the overall facts and circumstances of
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the case, therefore, it clearly appears that the
plaintiffs were at the fault for non-execution of the
agreement to sell by the defendant. It is clearly
established by the defendant that plaintiffs have not
fulfilled their part of agreement to sell and have not
paid stipulated amount of consideration in a
stipulated period. It clearly establishes from the
evidence on record that prior to issuance of the suit
Notice for execution of sale-deed and specific
performance of agreement to sell, the defendant has
already cancelled the agreement to sell in the year
1985 itself and has forfeited the earnest money.
22. The plaintiff has also sought for alternative relief of
damages. However, considering the entire facts on
record, it clearly transpires that as per the stipulation
made in agreement to sell, in case of failure on the
part of the plaintiffs in making payment in stipulated
manner,right was reserved to the defendant seller to
forfeit the earnest money. Now, considering the
evidence on record, when the plaintiffs were at fault
and they were already informed by the defendant
way back in the year 1985 regarding the cancellation
of the agreement to sell and forfeiture of the earnest
money, no fault can be found on the part of the
defendant. Therefore, the alternative relief sought for
by the defendant for recovery of the entire
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consideration amount along with interest is not
tenable in the eyes of law. Considering the facts of
the case, the alternative relief sought for by the
plaintiffs, is not available to the plaintiffs.
23. Considering all the facts of the case and the evidence
as produced in the matter and on re-appreciation
thereof, it clearly appears that the trial Court has
committed serious error of facts and law in passing
the impugned judgment and decree in favour of the
plaintiffs. On re-appreciation of entire evidence, it is
clearly found that the Suit of the plaintiffs is liable to
be dismissed. Considering the facts and
circumstances of the case, therefore, I have
answered the Points raised hereinabove accordingly.
24. POINT NO.6: In view of the above discussion, the
present Appeal is liable to be allowed and hence in
the interest of justice, I pass the following final order.
ORDER
The present appeal is hereby allowed. The
impugned judgment and decree dated 28.6.1996
passed by the learned City Civil Court No.4,
Ahmedabad in Civil Suit No. 3458/1986, are hereby
quashed and set-aside. The Suit of the plaintiffs
stands dismissed.
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Considering the facts of the case, the parties to
bear respective cost of the Appeal.
The amount, if any, deposited by the Plaintiffs in
trial Court, be refunded to the plaintiffs.
Decree to be drawn accordingly in this Appeal.
Along with copy of this judgment and decree,
the R&P of the Suit be sent back to the trial Court
forthwith.
(DR. A. P. THAKER, J)
SAJ GEORGE
