1 fa1240.09 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1240 OF 2009 WITH CIVIL APPLICATION NO.3317 OF 2009 IN FIRST APPEAL NO.1240 OF 2009 Amir Moideen Shaikh. ....Appellant. Vs. Gulamali Mamadbhai Somji & Anr. ....Respondents Mr.N.R.Bubna for appellant. Mr. A.A.Kumbhakoni, Sr. Advocate with Mr. Amit Borkar for Respondent Nos. 1 and 2. CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JULY 15, 2010 P.C. 1. Heard Counsel for the parties. Judgment and Decree passed by the Court below in suit for specific performance filed by the Respondents herein is subject matter of challenge in this Appeal. 2. The first argument canvassed before us is that the Court below has committed manifest error while examining the fact that the amount, which was 2 fa1240.09 received by the Appellant/Defendant was in respect of transaction unrelated to the suit agreement Exh.58. In other words, while executing document Exh.58, there was no intention of sale of immovable property in question in favour of the Respondents/Plaintiffs. This argument though attractive does not commend to us. The trial Court has analysed the pleadings and evidence on record and has found as of fact that the Appellant failed to produce any evidence to substantiate the fact pleaded by him that the document Exh. 58 was executed for the purpose other than sale of immovable property in question. That discussion can be found in paragraph-16 and 17 of the impugned Judgment. We are in agreement with the opinion so recorded by the trial Court. 3. Counsel for the Appellant was at pains to point out that it is proved by way of contemporaneous record by the Appellant/Defendant that the amount which is received by the Appellant from time to time to the extent of Rs.25 Lakhs was in respect of some other transaction and not related to the said agreement Exh.58. Suffice it to observe that the case as pleaded by the Defendant in defence has not been substantiated. On the other hand, the Plaintiffs have not only proved the factum of execution of the agreement, but also that they were always ready and willing to pay the amount. Indeed, the Plaintiffs did not pay the amount within 90 days from the date of execution of 3 fa1240.09 the Exh.58. But the fact that the Plaintiffs offered payment to the Appellant/Defendant towards suit agreement, it was duly accepted and even acknowledged by the Defendant/Appellant. The Appellant having received the said amount, it is too late in the day to contend that the amount so received was unrelated to the suit agreement Exh. 58. As aforesaid, the fact that the amount so received by Appellant was in respect of some other transaction has not been proved in evidence. 4. The next argument canvassed before us is that the suit agreement Exh.58 records the fact that the sale deed should be registered within 90 days from the date of the said agreement. It is argued that time was essence of contract and the Respondents/Plaintiffs have failed to adhere to that rigime. As a result of which, they were not entitled for relief of specific performance. This contention has been pressed before this Court for the first time. No issue in that behalf was framed before the lower Court. Indeed, in the cross-examination of the Plaintiffs, it has been suggested to the Plaintiffs that they failed to pay the contractual amount within the specified time. That does not mean that the Plaintiffs are disentitled for relief of specific performance, especially having regard to the fact situation of the present case. As is noticed earlier, the Respondents/ Plaintiffs offered amount to the Appellant/Defendant in 4 fa1240.09 installments to the extent of agreement amount of Rs.25 Lakhs towards sale consideration, which was not only accepted by the Appellant/Defendant, but also acknowledged. It is not necessary for us to examine the issue in the context of Exh. 64 at page 100 of the additional paper book. The fact remains that the Appellant has realised the cheque issued in his favour by the Respondents. Having accepted the said cheque payment in installments after period of 90 days, the Appellant cannot be heard to complain about time being essence of contract. Be that as it may, the legal position is well-established. The Respondents have pressed into service the decision of the Apex Court in the case of Balasaheb Dayandeo Naik V/s. Appasaheb Dattatraya Pawar reported in (2008) 4 SCC 464. In paragraph-10 of the said decision, reference is made to the decision of the Constitution Bench of the Supreme Court in the case of Chand Rani V. Kamal Rani [(1993) 1 SCC 519 and other decisions to conclude that in the sale of immovable property, there is no presumption as to time being the essence of the contract. Understood thus, the second ground urged before us is also devoid of merits. 5. It is next contended that the Court ought not to have exercised the discretion in favour of the Plaintiffs. This argument will have to be stated to be rejected. For, none of the ground available under section 28 have been made 5 fa1240.09 good by the Appellant/Defendant. In any case, the Court having found as of fact that the agreement was arrived at between the parties and that the Plaintiffs were always ready and willing to discharge their part of the contract, the issue of irreparable loss will have to be answered in favour of the Plaintiffs. Suffice it to observe that there is no substance in this argument. 5. It is lastly contended that the Court below has not awarded any interest, whatsoever, for the delayed payment on and from 31st October, 2006 on the balance agreement amount, which is to the extent of Rs.9,70,000/-. In the context of this submission, Counsel appearing for the Respondents/Plaintiffs submits that the balance consideration amount is already deposited in court on 15th June, 2009. Considering the above, at best, the Appellant may be entitled to claim interest during the interregnum i.e. between 31st October, 2006 and 15th June, 2009. Counsel appearing for the Respondents/Plaintiffs submits that since transaction between the parties was of commercial nature, the Respondents/Plaintiffs will have no difficulty in paying interest on the balance amount of Rs. 9,70,000/- between 31st October, 2006 to 15th June, 2009. 7. Accordingly, the Appeal partly succeeds only to extent of the claim of interest on the balance amount, on the basis of the offer made by the 6 fa1240.09 Respondents through Counsel before this Court. The Respondents in addition to the decretal amount agree to pay interest on the balance consideration of Rs. 9,70,000/- between 31st October, 2006 to 15th June, 2009 at the rate of 12% per annum. Decree shall stand modified to the above extent. No order as to cost. 8. In view of disposal of the First Appeal, nothing survives for consideration in Civil application. The same is disposed of accordingly. (A.A.SAYED, J) (A.M.KHANWILKAR, J)