Gujarat High Court
Kanchanben Wd/O Navinbhai Aambaliya ... vs Ashoksinh Popatbha Jadeja on 24 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 117 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 117 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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KANCHANBEN WD/O NAVINBHAI AAMBALIYA (LHS AND LRS OF
NAVINBHAI BHIKHABHAI AAMBALIYA) & ORS.
Versus
ASHOKSINH POPATBHA JADEJA
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Appearance:
VMP LEGAL(7210) for the Appellant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/06/2025
ORAL JUDGMENT
1. Heard the learned Advocate Mr. Vimal M. Patel for the
appellant.
2. The present appeal is filed under Order 43 Rule 1 of the Code
of Civil Procedure, 1908, against the judgment and order
dated 13th March 2025, passed below Exhibit - 5 (injunction
application) by the learned Principal Senior Civil Judge,
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Vankaner, in Special Civil Suit No. 2 of 2023.
3. The parties will be referred to as per their original positions
in the suit.
4. Short Facts:
4.1. The appellants herein are the original plaintiffs, whereas the
respondent herein is the original defendant. The suit, being
Special Civil Suit No. 2 of 2023, was instituted by the
plaintiffs seeking specific performance of an agreement to
sale executed by the predecessor of plaintiffs with defendant.
4.2. It appears from the record that an unregistered Agreement to
Sell came to be executed between the predecessor of the
plaintiffs and the defendant on 23rd February 2021, for a sale
consideration of Rs.62,00,000/- (herein after referred as
'ATS'). As per ATS, out of the total sale consideration of
Rs.62,00,000/-, a sum of Rs.20,50,000/- was paid, as reflected
in the agreement itself.
4.3. Nonetheless, according to the plaintiffs, a subsequent
payment of Rs.5,00,000/- was also paid to the defendant,
which, of course, is denied by the defendant in his written
statement.
4.4. Be that as it may, as per Condition No. 2 of the ATS, the
balance sale consideration i.e. Rs.41,50,000/-, was to be paid
by the predecessor of the plaintiffs to the defendant within
ninety (90) days from execution of ATS. Upon payment of
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such balance consideration, a Registered Sale Deed was to be
executed in favour of the predecessor of the plaintiffs.
4.5. It alleged that due to the COVID-19 situation, the
predecessor of the plaintiffs died on 17th April 2021.
Consequently, the plaintiffs, having lost their predecessor,
were unable to act as per the terms of the ATS and were
unable to make payment of the balance sale consideration to
the defendant within the stipulated period of ninety (90) days
as agreed. Of course, there was no extension sought by
plaintiffs to allow them to pay such amount beyond agreed
period of 90 days.
4.6. Further, almost after about 2 years from ATS, vide their legal
notice dated 6th May 2023, the plaintiffs have called upon the
defendant to execute the sale deed as per the aforesaid ATS,
wherein it was mentioned that after about one month from
the date of death of predecessor of plaintiff, the defendant
had visited to offer his condolences and met plaintiffs. It was
further stated that once the plaintiffs recovered from the
initial shock of their losing their predecessor, they contacted
the defendant on a number of occasions for the execution of
the sale deed, as the plaintiffs were and are ready and willing
to pay the balance sale consideration but defendant was not
ready to act upon his obligation as per ATS.
4.7. The defendant has replied to the aforesaid notice of the
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plaintiffs by his reply dated 12th June 2023, wherein he
denied the request to execute the Sale Deed in favour of the
plaintiffs. It has been further contended that as such due to
non-payment of the balance sale consideration by the
plaintiffs within the stipulated time, the process of obtaining
the NOC, which was required to clear the loan on the suit
land, could not be undertaken by the defendant. It was
further contended that the plaintiffs were/are not in a
position to pay the balance sale consideration and as such
told him that as & when the defendant sells the suit land, out
of total sale consideration, part performance which was
received from the predecessor of the plaintiffs, will be
returned back to the plaintiffs.
4.8. In light of these set of facts and having received reply of
refusal from the defendant to execute the sale deed, the
plaintiffs have filed the aforesaid suit on 17th June 2023. In
the suit, the plaintiffs have prayed for an injunction by filing
the impugned injunction application below Ex.5. After
hearing the parties, the learned trial Court has refused the
injunction, thereby dismissed the injunction application.
4.9. Feeling aggrieved and dissatisfied with the order impugned
in the present appeal, the original plaintiffs have questioned
it by filing the present appeal.
5. Submissions of the Appellant-Plaintiffs
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5.1. Learned Advocate Mr. Patel would submit that the trial Court
has erroneously observed that time is of the essence of the
contract executed between the predecessor of the plaintiffs
and the defendant, by completely lost sight of the fact that
there was no condition stipulated in the agreement whereby
not making payment within 90 days or either amount paid as
part performance, would be forfeited and/or the defendant
would be absolved from his obligation to execute the sale
deed in favour of the predecessor of the plaintiffs.
5.2. Learned Advocate Mr. Patel would further submit that it is a
well-settled legal position of law that, so far as an agreement
to sell in relation to immovable land is concerned, time would
ordinarily not consider as the essence of the contract. It is
submitted that the trial Court has completely missed this
basic nicety of law and, by not appreciating the facts of the
present case, refused the injunction.
5.3. Learned Advocate Mr. Patel would further submit that when
a substantive payment has been made by the predecessor of
the plaintiffs, who died unfortunately during the COVID-19
situation, and when the plaintiffs were and are ready and
willing to pay the balance sale consideration to the
defendant, the refusal of the injunction by the Trial Court is
unwarranted. As such by not granting injunction as prayed
for, it would create a multiplicity of proceedings, as the
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defendant has already intended to sell suit land, as can be
inferred from his reply to the notice and so also written
statement.
5.4. To buttress his arguments, the learned Advocate relied upon
following judgments:
(i). Saradamani Kandappan V/s. S. Rajalakshmi and others,
[(2011) 12 Supreme Court Cases 18]
(ii) Manisha V/s. Madanlal, [(2023) 1 High Court Cases
(Bom) 414]
5.5. Making the aforesaid submissions, he prayed to allow the
present appeal.
6. No other and further submissions are made.
ANALYSIS
7. As present appeal is filed under Order 43 Rule 1 of CPC, it is
a well-settled legal position of law that present appeal is on a
principle, not on facts. Once the discretion used by the trial
Court, either in granting and/or refusing to grant an
injunction in favour of plaintiff as prayed for unless found to
be erroneous, perverse, arbitrary, or contrary to the settled
legal position of law, merely because a second view is
possible, this Court would not be entitled to interfere with
such an order passed by the Trial Court. [See: (1) Wonder
Ltd. And Another V/s. Antox India Pvt. Ltd., 1990 Supp1
SCC 727 and (2) Ramakant Ambalal Choksi V/s.
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Ambalal Choksi, 2024 SCCOnline SC 3538]
8. Now adverting to aforesaid facts of the present case, such
facts which are narrated hereinabove are not in dispute. After
the execution of the ATS on 23rd February 2021, the
predecessor of the plaintiffs unfortunately died due to the
COVID-19 pandemic on 17th April 2021. It can be understood
that for some time, the plaintiffs might have been under
immense shock of losing their beloved on and in a situation
like the COVID-19 pandemic, people would prioritize saving
their lives rather than acting upon the agreement which was
executed between parties. Nonetheless, for quite long time,
the plaintiffs did not act upon as per the terms of the ATS
executed by their predecessor albeit, in COVID-19 situation
itself. It is not even a case of plaintiffs that they were not
aware about ATS and its condition as regards to balance
payment to be made in 90 days from its execution. Still, they
have not thought it fit to seek extension of time by requesting
defendant.
9. It appears that for the first time, in May 2023, almost after 2
years from ATS, the plaintiffs called upon the defendant to
perform his part of the contract, wherein they have shown
their willingness to perform their part of the contract by
paying the balance sale consideration. Of course, it has been
so alleged in the notice that they were and are ready and
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willing to perform their part of the contract, but the
defendant, for any reason, was not fulfilling his obligation.
These facts, of course, are denied by the defendant, who has
his own version of events. Such facts are oral in nature, are
required to be proved by the plaintiffs during the course of
the trial by leading appropriate evidence and at this stage,
cannot be delved into or taken at its face value, inasmuch as,
there is nothing on record to show prima facie that the
plaintiffs, at given point of time ever contacted the defendant,
except mentioning that he was contacted on his mobile. No
further details regarding such conversation or any chat
between the parties placed on record. Even, plaintiffs have
not shown their financial status to pay balance consideration
to defendant which was though available and offered to
defendant but he did not accept it.
10. Be that as it may, when the plaintiffs have consciously
allowed such a long time to pass and suddenly woke up from
slumber after about two years from the completion of period
so mentioned in ATS as regards to make payment and
thereby, asked for performance of such agreement, the trial
Court, having noticed the conditions of ATS, was prima facie
of the opinion that as the agreement holder was required to
pay the balance sale consideration within 90 days and had
failed to do so, there was delays and laches on the part of the
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plaintiffs which disentitle them to secure the injunction as
prayed for in the impugned application. As such view taken
by trial court is plausible view which can not be interfered by
this Court merely a second view is also possible.
11. So far as the judgments which are relied upon by the learned
Advocate Mr. Patel are concerned, in the case of Manisha
(supra), it can be seen that the agreement to sell was
executed on 7th May 2022, and within five months, the
defendant was called upon to perform his part of the contract
and immediately thereafter, the suit came to be filed before
the trial Court, wherein an injunction was granted in favour
of the plaintiff (who was the respondent before the Bombay
High Court). So, action of plaintiff was prompt and quick
shows his readiness and willingness to perform his part of
contract which refused by defendant then keeping peculiar
facts of that case, Bombay High Court not disturbed
injunction granted by trial court. Further, as noted
hereinabove, once discretion is exercised by the trial Court,
either in favour of the plaintiff or otherwise, normally
appellate court, while exercising its power under Order 43
Rule 1 of CPC, would not like to disturb such discretion
unless it falls within the criteria set out by the settled
principles of law in the judgment of Wonder Ltd. (supra) and
Ambala Choksi (supra).
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12. The second judgment which has been relied upon, in the case
of Saradamani Kandappan (supra), wherein there is a
broad principles laid down whereby the Honourable Apex
Court said that in which circumstances time can be said to be
the essence of a contract, So far as an agreement concerning
immovable land is concerned, there can be no cavil with the
law laid down by the Hon'ble Supreme Court of India on this
issue that ordinarily, time is not an essence of contract.
Nonetheless, it always depends upon the facts and
circumstances of each case and the conduct of the parties
needs to be considered, during the course of trial.
13. At this stage, it would be apt to refer to and rely upon the
decision of Honourable Supreme Court of India Alagammal
& Ors. V/s Ganesan & Anr. reported in (2024) 3 SCC
232 wherein held thus:
"35. The ratio laid down in K.S. Vidyanadam (supra) which had a
similar factual matrix squarely applies in the facts and
circumstances of the present case, on the issue that time was the
essence of contract and even if time is not the essence of the
agreement, in the event that there is no reference of any existence of
any tenant in the building and it is mentioned that within a period of
six months, the plaintiffs should purchase the stamp paper and pay
the balance consideration whereupon the defendants will execute the
Sale Deed, there is not a single letter or notice from the plaintiffs to
the defendants calling upon them to the tenant to vacate and get the
Sale Deed executed within time. Further, the Legal Notice was issued
after two and a half years from expiry of the time period in K.S.
Vidyanadam (supra), whereas in the present case, the Legal Notice
has been issued after more than six and a half years.
36. The relevant paragraphs from K.S. Vidyanadam (supra) read as
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under:
'10. It has been consistently held by the courts in India, following
certain early English decisions, that in the case of agreement of sale
relating to immovable property, time is not of the essence of the
contract unless specifically provided to that effect. The period of
limitation prescribed by the Limitation Act for filing a suit is three
years. From these two circumstances, it does not follow that any and
every suit for specific performance of the agreement (which does not
provide specifically that time is of the 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. That would amount to
saying that the time-limits prescribed by the parties in the agreement
have no significance or value and that they mean nothing. Would it be
reasonable to say that because time is not made the essence of the
contract, the time-limit(s) specified in the agreement have no relevance
and can be ignored with impunity? It would also mean denying the
discretion vested in the court by both Sections 10 and 20. As held by a
Constitution Bench of this Court in Chand Rani v. Kamal Rani, 1993
1 SCC 519: (SCC p. 528, para 25)
"25. ... it is clear that in the 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 that it is
to be performed in a reasonable time if the conditions are (evident?):
(1) from the express terms of the contract;
(2) from the nature of the property; and
(3) from the surrounding circumstances, for example, the object of
making the contract."
In other words, the court should look at all the relevant circumstances
including the time-limit(s) specified in the agreement and determine
whether its discretion to grant specific performance should be
exercised. Now in the case of urban properties in India, it is well-
known that their prices have been going up sharply over the last few
decades - particularly after 1973 [ It is a well-known fact that the steep
rise in the price of oil following the 1973 Arab-Israeli war set in
inflationary trends all over the world. Particularly affected were
countries like who import bulk of their requirement of oil.]. In this
case, the suit property is the house property situated in Madurai,
which is one of the major cities of Tamil Nadu. The suit agreement was
in December 1978 and the six months' period specified therein for
completing the sale expired with 15-6-1979. The suit notice was issued
by the plaintiff only on 11-7-1981, i.e., more than two years after the
expiry of six months' period. The question is what was the plaintiff
doing in this interval of more than two years? The plaintiff says that he
has been calling upon Defendants 1 to 3 to get the tenant vacated and
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execute the sale deed and that the defendants were postponing the
same representing that the tenant is not vacating the building. The
defendants have denied this story. According to them, the plaintiff
never moved in the matter and never called upon them to execute the
sale deed. The trial court has accepted the defendants' story whereas
the High Court has accepted the plaintiff's story. Let us first consider
whose story is more probable and acceptable. For this purpose, we
may first turn to the terms of the agreement. In the agreement of sale,
there is no reference to the existence of any tenant in the building.
What it says is that within the period of six months, the plaintiff should
purchase the stamp papers and pay the balance consideration
whereupon the defendants will execute the sale deed and that prior to
the registration of the sale deed, the defendants shall vacate and
deliver possession of the suit house to the plaintiff. There is not a
single letter or notice from the plaintiff to the defendants calling upon
them to get the tenant vacated and get the sale deed executed until he
issued the suit notice on 11-7-1981. It is not the plaintiff's case that
within six months', he purchased the stamp papers and offered to pay
the balance consideration. The defendants' case is that the tenant is
their own relation, that he is ready to vacate at any point of time and
that the very fact that the plaintiff has in his suit notice offered to
purchase the house with the tenant itself shows that the story put
forward by him is false. The tenant has been examined by the
defendant as DW 2. He stated that soon after the agreement, he was
searching for a house but could not secure one. Meanwhile (i.e., on the
expiry of six months from the date of agreement), he stated, the
defendants told him that since the plaintiff has abandoned the
agreement, he need not vacate. It is equally an admitted fact that
between 15- 12-1978 and 11-7-1981, the plaintiff has purchased two
other properties. The defendants' consistent refrain has been that the
prices of house properties in Madurai have been rising fast, that within
the said interval of 2 ½ years, the prices went up three times and that
only because of the said circumstance has the plaintiff (who had
earlier abandoned any idea of going forward with the purchase of the
suit property) turned round and demanded specific performance.
Having regard to the above circumstances and the oral evidence of the
parties, we are inclined to accept the case put forward by Defendants 1
to 3. We reject the story put forward by the plaintiff that during the
said period of 2 ½ years, he has been repeatedly asking the
defendants to get the tenant vacated and execute the sale deed and
that they were asking for time on the ground that tenant was not
vacating. The above finding means that from 15-12-1978 till 11-7-
1981, i.e., for a period of more than 2 ½ years, the plaintiff was
sitting quiet without taking any steps to perform his part of the
contract under the agreement though the agreement specified a
period of six months within which he was expected to purchase
stamp papers, tender the balance amount and call upon the
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defendants to execute the sale deed and deliver possession of the
property. We are inclined to accept the defendants' case that the values
of the house property in Madurai town were rising fast and this must
have induced the plaintiff to wake up after 2 ½ years and demand
specific performance.
11. Shri Sivasubramaniam cited the decision of the Madras High Court
in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar, 1952
AIR(Mad) 389 : (1952) 1 MLJ 44] holding that mere rise in prices is
no ground for denying the specific performance. With great respect, we
are unable to agree if the said decision is understood as saying that the
said factor is not at all to be taken into account while exercising the
discretion vested in the court by law. We cannot be oblivious to the
reality - and the reality is constant and continuous rise in the values of
urban properties - fuelled by large-scale migration of people from
rural areas to urban centres and by inflation. Take this very case. The
plaintiff had agreed to pay the balance consideration, purchase the
stamp papers and ask for the execution of sale deed and delivery of
possession within six months. He did nothing of the sort. The
agreement expressly provides that if the plaintiff fails in performing his
part of the contract, the defendants are entitled to forfeit the earnest
money of Rs 5000 and that if the defendants fail to perform their part
of the contract, they are liable to pay double the said amount. Except
paying the small amount of Rs 5000 (as against the total consideration
of Rs 60,000) the plaintiff did nothing until he issued the suit notice 2
½ years after the agreement. Indeed, we are inclined to think that the
rigor of the rule evolved by courts that time is not of the essence of the
contract in the case of immovable properties - evolved in times when
prices and values were stable and inflation was unknown - requires to
be relaxed, if not modified, particularly in the case of urban
immovable properties. It is high time, we do so. The learned counsel
for the plaintiff says that when the parties entered into the contract,
they knew that prices are rising; hence, he says, rise in prices cannot
be a ground for denying specific performance. May be, the parties
knew of the said circumstance but they have also specified six months
as the period within which the transaction should be completed. The
said time-limit may not amount to making time the essence of the
contract but it must yet have some meaning. Not for nothing could such
time-limit would have been prescribed. Can it be stated as a rule of
law or rule of prudence that where time is not made the essence of the
contract, all stipulations of time provided in the contract have no
significance or meaning or that they are as good as non-existent? All
this only means that while exercising its discretion, the court should
also bear in mind that when the parties prescribe certain time-limit(s)
for taking steps by one or the other party, it must have some
significance and that the said time-limit(s) cannot be ignored
altogether on the ground that time has not been made the essence of
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the contract (relating to immovable properties).
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13. In the case before us, it is not mere delay. It is a case of total
inaction on the part of the plaintiff for 2 ½ years in clear violation of
the terms of agreement which required him to pay the balance,
purchase the stamp papers and then ask for execution of sale deed
within six months. Further, the delay is coupled with substantial rise
in prices - according to the defendants, three times - between the date
of agreement and the date of suit notice. The delay has brought about a
situation where it would be inequitable to give the relief of specific
performance to the plaintiff.'
(emphasis supplied)
37. The decisions relied upon by the respondents, relating to the
conduct of parties are of no avail to them in the circumstances, as even
if the case of later payments by the respondents to the appellants is
accepted, the same being at great intervals and there being no
willingness shown by them to pay the remaining amount or getting the
Sale Deed ascribed on necessary stamp paper and giving notice to the
appellants to execute the Sale Deed, it cannot be said that in the
present case, judged on the anvil of the conduct of parties, especially
the appellants, time would not remain the essence of the contract."
(emphasis supplied)
13.1 It would also apt to refer and to rely upon the decision of the
Honourable Apex Court in the case of R. Shama Naik Versus G.
Srinivasiah reported in 2024 SCC Online SC 3586 wherein it is
held as under,
"10. The law is well settled. The plaintiff is obliged not only to make
specific statement and averments in the plaint but is also obliged to
adduce necessary oral and documentary evidence to show the
availability of funds to make payment in terms of the contract in time.
11. There is a fine distinction between readiness and willingness to
perform the contract. Both the ingredients are necessary for the relief
of specific performance.
12. While readiness means the capacity of the plaintiff to perform the
contract which would include his financial position, willingness
relates to the conduct of the plaintiff."
(emphasis supplied)
14. So, in view of the aforesaid well settled principle of law and
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aforesaid facts and circumstances of the case kept in mind,
prima facie, it appears that plaintiffs have failed to show that
they were continuously ready and willing to perform their
part of ATS and having sufficient balance to pay balance
consideration to defendant. Further, as observed herein
above, considering time gap between expiry of period of 90
days as per ATS within which plaintiffs required to make
payment of balance sale consideration and legal notice issued
by plaintiffs, plaintiffs did nothing in regards to making any
payment to defendant and or any written offer of such
payment etc., would show that plaintiffs were inactive for
quite long time i.e. more than 2 years. Such inaction of
plaintiffs would disentitled them to secure injunction as
sought for in the impugned injunction application as it's a
discretionary relief. Even otherwise, due to delay/laches also,
plaintiffs would not entitled to secure interim injunction. [See
- Mandali Ranganna vs. T. Ramachandra, reported in
(2008) 11 SCC 1 (para-21/22), Ambalal Sarabhai
Enterprise Limited vs. K.S.Infraspace LLP Ltd. and
another, (2020) 5 SCC 410 (para-19/22/23), Veetrag
Holding Co. Ltd. Vs. Gujarat State Textile Corporation
Ltd., 1996 (3) GLR 536 (para-8)].
CONCLUSION
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15. In view of the aforesaid well-settled principles of law having
applied upon the facts and circumstances of the present case,
I do not find any reason to interfere with the impugned order
passed by the trial Court, as it is neither erroneous, perverse,
nor arbitrary in nature and or settled legal principle of law.
16. In view of the aforesaid, I do not find any merit in the present
appeal, which requires to be dismissed. According, it is
hereby dismissed. No order as to costs. As a sequel, Civil
Application filed therein stands disposed of.
17. No order as to costs. The Civil Application is also disposed of
accordingly.
(MAULIK J.SHELAT,J)
Nilesh
