1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL No.679/2009 (With CA/4048/2009) Ganpat s/o Laxman Chandole, Age: 70 years, Occupation: Agriculture, resident of Chaitanya colony, Vithalwada, Simhagad Road, Pune. ...APPELLANT (ORIGINAL Defendant) VERSUS Venkatesh s/o Gangadharrao Kakde, Age: 27 years, Occupation: Agriculture & Business, Resident of Plot No.42, N-3, CIDCO,Aurangabad. ...RESPONDENT (ORIGINAL Plaintiff) Mr. D.V.Soman, Advocate, for the appellant. Mr. G.K.Thigale, Advocate, h/f Mr. Swapnil S.Patankar, Adv., h/f Mr. D.L.Vakil, Adv., for Respondent. --- CORAM : K.U.CHANDIWAL, J. DATE : 18/7/2009 *** P.C. : 1. The appellant, being owner and possessor of piece of land from Gat No.6 admeasuring 30.18 Gunthas, situated at Nakshatrawadi, taluka and district Aurangabad, executed an agreement for sale on 11.11.2003/4.11.2003, for consideration 2 of Rs.8,06,250/-. The respondent paid Rs. 20,000/- as earnest. The sale transaction was to be completed within six months, however, the appellant was to get the land measured and demarcated before execution of the sale deed through T.I.L.R. ( Taluka Inspector of Land Records). The appellant, within three months from the agreement, accepted to obtain all necessary permissions for transfer of the said property, if required and, also, to get the land measured and demarcated through T.I.L.R. and, thereafter, to execute the sale deed in favour of the purchaser/respondent, at the cost of vendor/appellant, or his nominee. 2. The non compliance of the terms by seller, resulted in the purchaser issuing notice dt.27.7.2006, which was returned unserved. By the subsequent notice dt.24.7.2007, through Advocate, specific performance of the contract was sought. The defendant replied the same through his Advocate dt.1st August, 2007, enclosing cheque of Rs.20,000/- in favour of the respondent purchaser, indicating termination of the agreement. Based on such correspondence, plaintiff filed a suit for specific performance of contract against the defendant-appellant, seeking execution of the sale deed. 3 3. The learned Judge, on evaluating the evidence, interpreting the agreement, by order dt.30th Jan.,2009, decreed the suit, in following terms: " The suit is decreed as follows:- (A) The plaintiff shall deposit the balance consideration amount in the court within three months from the date of this order. The defendant on receiving the balance consideration amount shall execute registered sale deed of suit property in favour of plaintiff. (B) If the defendant failed to execute the sale deed in favour of plaintiff then plaintiff is at liberty to get the sale deed executed through the machinery of Court. (D) The defendant do pay costs of the suit and shall bear his own. (E) Decree be drawn up accordingly. " The decree and judgment dt.30th Jan.,2009, is subject of challenge at the instance of the defendant/appellant/seller. 4. The parties are referred by their status in the original proceedings as plaintiff and defendant, for convenience. 5. Mr. D.V.Soman, learned Counsel for the 4 defendant/appellant would argue: (a) Plaintiff is not a genuine buyer as there was speculation in his purchase. (b) Land is urban land, near city, with high potentiality. (c) Defendant is now a paralytic patient, cannot move from bed, he has no other property in Aurangabad. (d) The suit is barred by limitation as six months period commenced from 5.11.2003 in the light of Art.54 of the Limitation Act. (e) The plaintiff paid an amount of Rs. 25,000/- on 17.12.2003, however, it was reimbursed to him, since the agreement was treated as terminated. (f) There is no equity in the transaction. (g) Injunction application was not pressed. 6. The Counsel for the plaintiff contended, (a) the injunction application was not pressed in the light of statement made in paragraph No.10 of affidavit-in-reply by the defendant, where the defendant accepted, he has not entered into any agreement nor he has any such desire. (b) The plaintiff is not a builder; he is a dealer in Gas agency. There is no evidence of in-equality in the matter. (c) The plaintiff did not desire controversy; he wanted specific 5 identification of the property, in terms of the agreement. The defendant was required first in time to obtain permission/measurement under Section 85(3) of the Maharashtra Land Revenue Code as mere measurement by itself will not serve the purpose. (d) There is no evidence of payment of Rs.25,000/- by the plaintiff nor there is any evidence of defendant reimbursing, as the correspondence from both the sides is silent. (e) There were reciprocal obligations. The plaintiff, by paying earnest money has complied his part. The second obligation was of the defendant to obtain permission, get the land measured and then the duty of the purchaser will come in picture, to get the sale deed by making payment. (f) The plaintiff/purchaser was always ready to perform his part of contract for which notice was issued upon the defendant but, it was not acted upon by the defendant. 7. In terms of the agreement, it was the defendant who was required to move the learned Tehsildar under Section 85(3) of Maharashtra Land Revenue Code, for sub division of the property and to get the land demarcated. Even if the defendant, has applied to the T.I.L.R., for carrying out measurement, which is carried on 6 25.11.2003, however, there is no proof tendered by the defendant that such measurement was communicated to the plaintiff. That apart, the transaction could not have been completed in its letter and spirit though the 7/12 extract indicate distinct name of the defendant but it is obviously a joint possession with several others. Consequently, it follows, since the agreement provided for necessary approval from Government for sub-division, the duty was cast on the defendant to get in requisite permission within stipulated period. The record illustrates, as on today, there is no such permission of sub division from the competent Revenue authorities. 8. The defendant contended that, since there was compliance from him, the plaintiff paid an amount of Rs.25,000/- on 17.12.2003. However, subsequently, plaintiff approached with Mr. Prabhakar Khole and indicated his disinclination to complete the transaction and, hence, the amount of Rs.25,000/- was paid to the plaintiff on 15th Jan.,2004. This stand of the defendant is not supported from any circumstance barring evidence of the attorney. It is not clear whether attorney was present when so called payment was reimbursed by his father on 15.1.2004. If, indeed, such payment was made, and transaction was terminated, the implicit result was, forfeiture of Rs.20,000/- received as 7 earnest by cheque but, there is nothing to this effect. That apart, there is no endorsement on the agreement of sale about such case of termination contemplated by the defendant. This stand taken by defendant is naturally an afterthhought as there is no reference thereof in the reply notice sent through Mrs.Nirmala More, Advocate, dt.1st August, 2007. It, thus, indicates that the evidence relating to the receipt of 7.12.2003, for Rs.25,000/- or, its reimbursement dt.15.1.2004, are illusory in nature, no such incident has taken place between the parties litigating. 9. It is in the evidence, even the agreement of sale refers that, apart from the purchase of property from defendant, the plaintiff had identical purchases from the same block of land, from other owners, to the knowledge of the defendant and, indeed, such sale deeds of the different piece of land from three such owners are completed by the plaintiff. It was expected of both the sides to have tendered the relevant sale deeds, to evince the date of such transaction, whether it was armed with permission of sub division under Section 85(3) of Maharashtra Land Revenue Code or that there was already a measurement from the T.I.L.R. In this scenario of the matter, it will be a lame excuse of the defendant, that on 17th Jan.,2004, the 8 transaction was terminated, or it was a speculative transaction. 10. The defendant, as seller of the property, in terms of what was agreed between the parties, was duty bound to get the land sub divided and demarcated by obtaining requisite orders from the Tehsildar under Section 85(3) of the Maharashtra Land Revenue Code. It is not as yet completed. In view of this impediment, the time of six months, referred in clause (3) of the agreement will not be operational as the initial obligation cast on the defendant is not discharged. 11. The plaintiff canvassed that he issued notice upon the defendant on 27.7.2006, it has returned unserved for insufficient address. Defendant disputed the same. However, on perusal of the envelope, I find that, address was short of Pin Code number of Pune, all the details in the postal envelope are identical with the subsequent notice dt.24.7.2007 and the suit summons were served upon the defendant at same address. It is, thus, indicative, the defendant knowingly avoided the service of notice dt. 27.7.2006. 12. It was subsequently, on 24.7.2007, the plaintiff again issued notice urging the defendant to complete the sale transaction in 9 terms of the agreement and also apprised him about the plaintiffs transaction with Prabhakar Khole, Anand Govind Muley, Narayan Sadavarte, legal heirs of Subhash Ganore. The reply through Smt. More, Advocate, was in the nature of evasiveness than accepting the fact of agreement or the reasons for non compliance indicated therein. This made the plaintiff to file the suit on 3rd August, 2007. Taking these details into consideration, it is difficult to to accept that time was essence of the contract between the parties, though there was stipulation to comply the same within a period of six months. The suit is not time barred. The Constitution Bench of the Hon'ble Supreme Court in the matter of Smt.Chand Rani (dead) by LRs., V. Smt. Kamal Rani (dead) by LRs. ( AIR 1993 SUPREME COURT 1742) have indicated that fixation of the period within which the contract has to be performed, does not make the stipulation as to time the essence of the contract and, ultimately, observed in paragraph no.28, " ....Therefore, we conclude that though as a general proposition of law time is not the essence of the contract in the case of sale of immoveable property yet the parties intended to make time as the 10 essence under clause (1) of the suit agreement. ... .." 13. The evidence, coupled with the circumstances, shows that the plaintiff as purchaser of the property has discharged his part of obligation and he was and is ready and willing to perform his part of the contract. There is no obvious deviation or any bickering to create rebel against the terms of agreement in such attempt from the side of the plaintiff. 14. The Counsel canvassed that the defendant is a paralytic patient and he has the only suit property. Though there is no medical record to accept such physical condition of the defendant, however, no importance can be given to the same. The defendant has, openly agreed to sell the property. He was conscious that, after its disposal, he may not have property at Aurangabad. It was his own decision and not under compulsion. Consequently, his remaining without any property after the sale will not be to the detriment of the plaintiff as purchaser. 15. The Hon'ble Supreme Court, in the matter of M.P.Mathur & others V. D.T.C. and others ( AIR 2007 SUPREME COURT 414) have explained, in paragraph no.15 the term "equity" as under: 11 " The present suit is based on equity. The term "equity" has four different meanings, according to the context in which it is used. Usually it means "an equitable interest in property". Sometimes, it means "a mere equity", which is a procedural right ancillary to some right of property, for example, an equitable right to have a conveyance rectified. Thirdly, it may mean "floating equity", a term which may be used to describe the interest of a beneficiary under a will. Fourthly, "the right to obtain an injunction or other equitable remedy". In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the Court has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, the Court has to consider - the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the of the Court granting the decree. In such cases, the Court has to look at the contract. The Court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of 12 mutuality the Court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the Court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the Court will not grant the relief prayed for [Snell's Equity, 31st Edn., page366]. ... " On assessment of the evidence, I find that there was mutuality in the contract. There is no discrepancy or any ambiguity in the agreement between the parties. The defendant, as a seller, was conscious of his obligations and its performance was naturally within his realms. 16. It was contended, though time was not essence of the contract, the plaintiff is required to approach the Court within reasonable time. However, as stated earlier, no sooner there was denial to perform the terms of agreement, plaintiff approached the Court for seeking performance. Consequently, there is no inordinate or any delay on the part of the plaintiffs. 13 17. The Counsel for the appellant contended that, escalation of the prices in the vicinity and of the particular land, due to enormous delay, also needs consideration as the relief of specific performance is discretionary. There is no controversy that grant of decree of specific performance lies in the discretion of the Court. It is also well settled, it is not always necessary to grant specific performance for the reason it is legal to do so. By now the law is well settled, the Court in its discretion can impose any reasonable condition, including payment of additional amount, by one of the party to the other while granting or refusing decree of specific performance. 18. In the matter of Nirmala Anand V. Advent Corporation (P) Ltd. and others ( 2003(1) Mh.L.J.468, in an identically placed situation, the Hon'ble Lordships have observed, "... Phenomenal increase of price during the pendency of the litigation, as a general rule, cannot be considered. While balancing the equities, one of the considerations 14 to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether the party is trying to take advantage over the other as also the hardship that may be caused to the defendant by directing specific performance." 19. The factual matrix illustrates, the prices in the city of Aurangabad have multiplied abnormally. The transaction is of 2003, as against payment of paltry sum of Rs. 20,000/-. The equities required to be honoured, considering the high escalation and the valuation of the money. If the amount would have been paid in time, naturally, the defendant, as a seller, could be beneficial for its interest or other use. However, he lost such opportunities. The defendant is bound to face hardship if directed to comply specific performance on same terms. Taking survey of situation and circumstances prevailing in this case, coupled with the conduct of both the parties, I find that it will not be prejudicial to the plaintiff, as purchaser and, defendant, as a seller, if the plaintiff is directed to pay additional amount of Rs.8,06,250/- as sale price payable to the defendant. These situations, have creeped in in the present transaction as there is already 15 a purchase of the plaintiff of other blocks from the same land, he must be presumed to be aware about such permission under Section 85(3) of Maharashtra Land Revenue Code for the sub division by measurements. The plaintiff, on his part, did not issue notice immediately in between the stipulated time of six months, though plaintiff has stated having contacted the defendant and defendant has orally assured to comply. The apathy shown by the defendant in getting the sub division, added to the misery and for that the plaintiff alone need not be blamed. The balance can be striked, as indicated above. 20. Hence, order. The appeal is partly allowed with costs as under: (a) The Judgment and Decree under challenge remain unaltered. (b) In addition, the purchaser/Respondent Venkatesh Gangadharrao Kakde shall deposit an amount of Rs.8,06,250/- (Rupees eight lakhs six thousand and two hundred fifty) as additional price of the property, with learned CJSD, Aurangabad up to 18th September, 2009; (c) Failure to comply, the 16 decree of specific performance shall be treated as dismissed/set aside; (d) Upon the purchaser/Respondent – Venkatesh Gangadharrao Kakde, depositing the amount of Rs. 15,92,500/- (Rupees fifteen lakhs ninety-two thousand and five hundred), referred in the Judgment of learned CJSD, and vide clause (b) above, thereafter the seller/Appellant – Ganpat Laxman Chandole shall execute sale-deed in favour of purchaser/Respondent as per terms of agreement within two months, i.e. upto 18th November, 2009. Civil Application disposed of. ( K.U.CHANDIWAL) JUDGE agp/fa679-09