1 S.A. 722.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 722 OF 2010 Narayan Raybhan Chavan .... APPELLANT V E R S U S Shivaji Walhu Gawande & another .... RESPONDENTS ---------------------------------------------------------------------------------------------------------------- Mr. P.K.Nikam, Advocate for the appellants. ---------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 03/12/2010 ORAL ORDER : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for specific performance of contract and for possession. The trial Court decreed the Suit. The defendant preferred Appeal. The appellate Court allowed the Appeal and dismissed the Suit of the plaintiff. The plaintiff has assailed the said Judgment and decree in the present Second Appeal. 3. Mr. Nikam, learned counsel for the appellant strenuously contended that: 2 S.A. 722.2010 (i) When the trial Court had exercised the discretion, the appellate Court should not have interfered with the said discretion. The discretion exercised by the trial Court was reasonable and proper. For the said purpose, he relied on the Judgment of the learned Single Judge of this Court in the case of Parashram Vithoba Ubhedal V/s Rashadbee Rajmohmad Shaikh & Oths. Reported in 2009 (2) Bom. C.R. - 159. (ii) Normally the relief of specific performance should be granted. The learned counsel further contended that in a transaction of immovable property, time is never the essence of contract. No time if fixed. As such the limitation would start from the date of refusal and the refusal was after the notice was given by the plaintiff in the year 2005 and hence the Suit is within limitation. (iii) When the defendant has not come with clean hands and is guilty of delay and laches, then in that case, the decree for specific performance should be granted. For that purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Haren Krishnakumar Mehta V/s Kamla Pribhdas Nebhanani reported in AIR 2001 Bombay – 187. (iv) To butress his submission that time is not an essence of contract and the limitation starts only when the plaintiff had noticed that performance has been refused. He relies on the Judgment of the Apex Court in the case of Panchanan Dhara and others V/s Monmatha Nath Maity (dead) through L.Rs. and another reported in 2006 (5) – Mh.L.J. - 209. 3 S.A. 722.2010 (v) There are no equities in favour of the respondents as they have not approached with clean hands. They have also ventured to deny the agreement. In such circumstances, ordinarily specific performance should be granted. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Shrikrishna Ganuji Sonone V/s Vithal S/o Shankar Bajre reported in 2010 (2) ALL MR – 175. (vi) The trial Court after appreciating the evidence on record, had passed the dictum and decree the Suit for specific performance of contract. The lower appellate Court has not dealt with the reasonings given by the trial Court. 4. The legal position as canvassed by the learned counsel for the appellant can not be the subject matter of debate. If the 4pplicant proves all the necessary ingredients, such as the agreement, readyness and willingness, then in such circumstances, ordinarily the relief of specific performance should be granted. In the present case, the question is, whether the plaintiff has satisfied the said ingredients. The said agreement relied upon by the plaintiff is dated 5/5/1986, which lays down that the plaintiff shall pay the remaining amount by ‘ Shravan Vadya ’ of the said year. Thereafter, he relies on the Bharna Pawti dated 30/5/1986, wherein it is suggested that part of the amount is paid and the remaining amount would be paid after ‘ Pola ’ and the registered sale deed would be executed. Even in para no. 3 of the plaint, the plaintiff has stated that the remaining amount of Rs. 3016/- would be paid after ‘ Pola ’ of the same year. This shows that the remaining amount of consideration of Rs. 3016/- was to be 4 S.A. 722.2010 paid in the same year after ‘ Pola ’. The meaning of the said agreement is certain i.e. remaining amount shall be paid in the same year after ‘ Pola ’. Even taking the liberal interpretation of the said document, the amount could have been paid by the end of 1986. The Suit is filed in the year 2005. There is nothing on record to substantiate that said period was extended. As such, the Suit itself would not be within limitation. No doubt, time is never an essence of contract in case of transaction of immovable property, but when the meaning is certain that the remaining amount was to be paid in the same year after ‘ Pola ’, then in that case, limitation would begin to run after the end of the said year unless by positive evidence it is shown that the parties on their own volition had extended the said period. In the present case, after the execution of the said Bharna pawti, there is no document on record to substantiate the said fact. 5. The other question of readyness and willingness is also germane to the present case. The plaintiff has merely stated that he had asked the father of the defendants to execute the sale deed, but he did not execute the same. No dates are mentioned as to when the plaintiff had sought to tender the amount. The pleadings are as vague as they can be. Even the pleadings do not suggest the persons in whose presence the plaintiff had offered to tender the amount. The plaintiff has also miserably failed to prove his readyness and willingness as is required under Section 16 (c) of the Specific Relief Act. 6. In light of the above facts that the plaintiff has failed to prove his readyness and willingness, so also has filed Suit after long slumber i.e. after 19 years, the 5 S.A. 722.2010 plaintiff can not be held entitled for relief of specific performance, even if it is assumed that the plaintiff has proved the execution of the agreement of sale and Bharna pawti. The Second Appeal as such being sans substantial question of law is dismissed, however, with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/S.A. 722.2010