The glaring evidence brought on record would indicate that the defendants lastly served notice dated 16th June, 1972 (Exh. 67) on the plaintiffs which was received by them on 26th June, 1972 and the plaintiffs were called upon to execute the sale deed on, or before 30th June, 1972 meaning thereby, only two days time was left with the plaintiffs to perform their part of the contract. In such circumstances, the contentions that after 30th June, 1972, the defendants are entitled to repudiate the agreement of sale is devoid of any merit, because the appellate court has clearly recorded the findings that the plaintiffs were ever ready and willing to perform their part of the contract.
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Bombay High Court
Chandrabhan Lakhaji Dehankar ... vs Ganeshrao S/O Kashirao Ganjre, ... on 29 June, 2005
Equivalent citations: 2006 (1) MhLj 624
S.T. Kharche, J.
1. Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this second appeal is directed against the judgment and decree dated 13th July, 1989 passed by the learned Additional District Judge in Regular Civil Appeal No. 108/1985, whereby the suit of the respondents-plaintiffs for specific performance of the contract was decreed by setting aside the judgment and decree dated 31st December, 1984 passed by the trial Court in Regular Civil Suit No. 51/1975 by which the suit for specific performance of the contract is dismissed.
2. Defendant Nos. 1 and 2 along with defendant No. 3 jointly owned and possessed an agricultural filed bearing survey No. 228 ad measuring 15.21 acres situated Page 1438 at village Shirala Tq. Morshi. Defendant No. 1 had agreed to sell the suit field for consideration of Rs. 18,500 on receiving earnest amount of Rs. 3,000. The agreement of sale was executed on 8th March, 1972 and it was agreed that the plaintiff shall pay the balance of consideration on or before 15th May, 1972 and the defendants shall execute registered sale deed in respect of the suit field and thereafter, deliver the possession thereof. The agreement could not be fulfilled and it is not disputed that defendant Nos. 1, 2 and 3 effected partition of the suit field during the pendency of the suit. It is also not disputed that defendant No. 2 transferred his share of 7.31 acres land, out of the suit filed, in favour of defendant No. 4, Tukaram under registered sale deed dated 13th July, 1980 and he is in possession of the said portion of the suit field as a purchaser pendente lite.
3. It is contended by the plaintiffs that on the stipulated date of performance, i.e. on 15th May, 1975 they had been to Morshi and waited in the office of sub registrar till 4.00 p.m. but, defendants No. 1 to 3 did not turn up. It was a public holiday but they were unaware about the same. They served notice dated 16th May, 1972 to which, the defendants did not give any reply, but issued another notice dated 16th May, 1972 in the name of their brother Dnyaneshwar who is not a party to the agreement There were exchange of notices. The plaintiffs further alleged that all along, they were ready and willing to perform their part of the agreement, however, defendant Nos. 1 to 3 avoided to perform their part of agreement and committed breach of the contract Lastly, the notice dated 2nd June, 1972 was served on defendants No. 1 to 3 and they were called upon to execute the sale deed and perform remaining part of the agreement, but they did not give any reply to the notice nor they expressed desire to fulfill the agreement.
4. The stand taken by the defendants is that they had gone to the office of the Sub Registrar on 16th May, 1972 and the plaintiff's brother Dnyaneshwar Ganjre was the inter middler in the transaction and hence, notice was given to him on 16th May, 1972. The plaintiffs failed to perform their part of the contract and they are not ready and willing to fulfill the agreement and committed breach of the contract.
5. The trial court, on appreciation of the evidence has dismissed the suit for specific performance of contract and in the alternative granted decree for refund of earnest money with interest. The plaintiffs being aggrieved by the dismissal of their suit for specific performance carried appeal to the district court. The learned Additional District Judge on appreciation of the evidence and after taking into consideration the law position, set aside the dismissal of the suit and granted the decree for specific performance of contract in favour of the plaintiffs. This judgment and decree passed by the appellate court is under challenge in this second appeal.
6. Mr. Deshpande, learned Counsel for the defendants contended that it has been specifically mentioned in the plaint by the plaintiffs that as there was only one day left in the middle to perform his part, plaintiff No. 1 approached the defendants on 29th June, 1972 itself at village Ner along with Dattatray and requested the deceased defendant No. 1 to extend the time to arrange for the funds. Therefore, according to the learned Counsel for the defendants, the plaintiffs were not ready and willing to perform their part of the contract. Moreover, time was made essence of the contract by issuing notice dated 16th June, 1972 Page 1439 (Exh. 67) and the plaintiffs were called upon to get the sale deed executed on or before 30th June, 1972 and since the plaintiffs were not able to arrange for the funds, they could not perform their part of the contract and in such situation, the learned Additional District Judge has committed an error in granting decree for specific performance. He contended that this Court, while admitting the appeal has formulated the substantial question of law as to whether the plaintiffs were ready and willing to perform their part of the contract and in such circumstances, this appeal deserves to be allowed.
7. Mr. Chandrurkar, learned Counsel for the plaintiffs contended that no substantial question of law is involved in this appeal in as much as the appellate Court has recorded findings on appreciation of evidence that the defendants were not ready and willing to perform their part of the contract. He contended, that the time was not the essence of the contract and the defendants did not give reasonable time to the plaintiffs for due performance of the agreement of sale. Since the time was not made essence of the contract, the appellate Court was perfectly justified in granting specific performance and no interference into the impugned judgment and decree is warranted and the appeal may kindly be dismissed.
8. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not disputed that the suit field which is an agricultural land is owned by defendants No. 1 to 3 and they had entered into an agreement of sale dated 8th March, 1972 for consideration of Rs. 18,500 on receiving earnest amount of Rs. 3,000. The parties had agreed that the sale deed would be executed on or before 15th May, 1972 on payment of balance consideration by the plaintiffs.
9. It is settled law, that generally in case of immovable property, time is not always essence of the contract, but it can be made essence by issuing notices by the parries in peculiar facts and circumstances of each case. However, it will depend upon the facts and circumstances of each case as to whether, the parties have intended to make the time essence of the contract. In the present case the recital of the agreement of sale would reveal that the performance was agreed to be done on or before 15th May, 1972 on making payment of balance consideration by the plaintiffs. But then it appears that the parties never intended to make a time essence of the contract. The appellate Court on appreciation of the evidence has clearly observed, that plaintiff No. 1 had come to Morshi along with the balance amount of consideration and visited the office of Sub Registrar on 15th May, 1972, but no one from the side of defendants turned up, and therefore, on the same day a notice (Exh. 60) was served on the defendants calling upon them to execute the sale deed. The recitals of the notice would reflect readiness and willingness on the part of the plaintiffs to perform their part of the agreement. Thereafter, in reply notice dated 18th May, 1972 (Exh. 64), the performance of the agreement was postponed to 16th May, 1972 by mutual agreement on that day. It is significant to note that defendants Nos. 1 to 3 did not make the time essence of the contract by issuing notice earlier, on or before 16th May, 1972.
10. The glaring evidence brought on record would indicate that the defendants lastly served notice dated 16th June, 1972 (Exh. 67) on the plaintiffs which Page 1440 was received by them on 26th June, 1972 and the plaintiffs were called upon to execute the sale deed on, or before 30th June, 1972 meaning thereby, only two days time was left with the plaintiffs to perform their part of the contract. In such circumstances, the contentions that after 30th June, 1972, the defendants are entitled to repudiate the agreement of sale is devoid of any merit, because the appellate court has clearly recorded the findings that the plaintiffs were ever ready and willing to perform their part of the contract.
11. Mr. Chandurkar, learned Counsel for the plaintiffs rightly relied on the decision of the Supreme Court in the case of Sukhbir Singh and Ors. v. Brij Pal Singh and Ors., 1998 (3) Current Civil Cases 43 (SC), wherein the ratio has been laid down that; in a suit for specific performance, it is sufficient for plaintiffs to establish that they had capacity to pay sale consideration and it is not necessary that they should always carry money with them from date of the suit till date of decree.
12. In the present case also the conduct of the plaintiffs shows that they were ready to perform their part of the contract because they had been to the office of Sub Registrar on the stipulated date i.e. on 15th May, 1972 on which day there was public holiday and the defendants were not there. The visit of the plaintiffs to the office of the sub registrar would show that they were having sufficient funds in their hands to carry out their part of the contract. Therefore, the aforesaid ratio is squarely applicable to the present case also.
13. Mr. Chandurkar, learned Counsel also rightly relied on the another decision in the case ofVeerayee Ammal v. Seeni Ammal, , wherein, it has been held in para 10 as under:
"The question of law formulated as substantial question of law in the instant case cannot, in any, be termed to be a question of law much less a substantial question of law. The question formulated in fact is a question of fact Merely because of appreciation or evidence another view is also possible, would not clothe the High Court to assume the jurisdiction by terming the question as substantial question of law. In this case issue 1, as framed by the trial court, was admittedly, an issue of fact which was concurrently held in favour of the appellant-plaintiff and did not justify the High Court to disturb the same by substituting its own finding for the findings of the courts below, arrived at on appreciation of evidence."
14. In the present case, the appellate court has recorded findings of fact that the plaintiffs were ever ready and willing to perform their part of the contract and since the appellate court is a final Court for facts finding, no interference into the impugned judgment and decree is warranted for want of involvement of any substantial question of law in this appeal. This Court is of the considered view that there is no merit in the present appeal which is liable to be dismissed and it is dismissed accordingly.
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