IN THE ’HIGH COURT OF JUDICATURE AT BILASPUR " MISC APPEAL NOJOF 2005 /Dharamchandra Agrawal, S/o Late Shri Lakshmi Narayan Agrawa, aged about 46 years R/o ’I‘Ilak Marg, Lohar Road, PUranaganj Chowk, Rajnandgaon, Tahsil & Distt. Rajnandgaon (Chhattisgarh) VERSUS RESPNuENT /t>'EFEI~IIDANT /'Joaravarmal Shri Kaluram Daddha,S/o Dagga, aged Late about 79 ryearsrR/o Cinema Line, Rajnandgaon, District Rajnandgaon (Chhattisgarh) APPEA .UNDER ORDER XLnf‘i6LE 1 OF cone OF CIVIL - PROCEDURE 1908 AGAmST ORD v5ISTRICT JUDGE RAJNANADGAON IN E l d C HIGH COURT OF‘CHHATTISGARH : BILASPUR Misc. Appeal N0. 1163of 2005 Dharam chandra Agrawal Appella I Plaintiff’ (Delivered an of“ a) ag n Dhirendra ~Mishra1 ~J Thls Is the appellants miscellaneous cwll appeal dlrected agamst the pugned order by which hls applica\on for temporary Injunction restraining ' the respondent from rallenatlng the smt property ln a sUIt for speclfc performance of contract, has been rejected (Parties hereinafter referred to .e as' per their descriptionrbefore‘the trial Court.) Btief facts of the case necessary for adjudication of this appeal are that a suit was med by the plaintiff on the averment that parties to the suit entered into an agreement for ' sale on 02.08.2004 for a consideration of Rs. 24,59,100I- and the plaintiff paid Rs. 2 lakh ‘by way of advance was payable by Ols‘ October 2004 and accordingly the at, ount so agreed was paid by the plaintiff As per stipulation of the said greement the plaintiff“ was to pay the balance ofthe consideration by 30‘“ November 2004 and get the sale deed executed from the defendant In his favour, failing which the” agreement will be null andsvoid and the amount advanced was liable for agreement and the‘fuither amount of Rs.5;0001- by y advance as per i forfeiture. It was also stipulated in the, said agreement 'thatin‘case the , defendant’failed to execute the sale deed, the-plaintiff could gel the sale v deed executed by initiating legal proceedings and in that event the“ . de endan't’shall also be liableto pay damagesvto the plaint‘rffi it was further case of the plaintiffthat as per agreement the payment was-to be made as Def actual measurement and the liability of payment of dues etc. was to be the liability of the defendant However, the agreement is silent regarding disblosyre' of the title papers. '. l a lt i'sfuither pleaded by the plaintiff that the defendant avoided disclosure of thé title and other information with respect to loan etc. against the agreemented property despitebeing called for the same and therefore, the sale deedcould not bevexecuted in the absence of disclosure of the above - Information though the plaintiff was ready and walling to perform his part of the! contract A legal notice dated 22'” December 2004 callmg upon the defendant to execute the sale deed was sent, howeverin reply to the above notice the defendantasked for interest at the rate of 18% over the balance an'iount from 30‘“ November 2004‘to 03’“ January 2005 and only on that condition he expressed his readiness to execute the sale deed. Thereaner I correspondences continued between the parties and the defendant bonatidely expressed his willingness to execute the sale deed by 24’” February 2005 on the condition that the plaintiff deposits 18% additional " interest as demanded. Thus from pleadings of'the respective parties in sum substance the issue involved in the sutt is as to which of the parties was responsible for non- execution of the sale deed Within the stipulated period of 30“” November ‘ 2004 and whether in the facts and circumstances ofthe casethe time wa essence of the contract. Learned counsel for the appellant submits that the only thing to be‘ considered while disposing of application for grant of temporary iniunction under Order 39 Rule 1& 2 of the C P C is whetherthe plaintiff has a prima ‘ facie case and to ascertain this fact the real thing to be seen is only that the = l l l i l E . l s p‘aintiffs claim its not frivolous or vexatious and that there is' a serious question to be tried. lt is not necessary for the piaintiff at this stage to satisfy i the Court that he has. a clear legal rightto enforce the contract against the defendant and the onlyi requirement is to establish that the plaintiff has a fair q estion to raise as to the legal right claimed by him in the suit. He further algues that while considering the application, however, leamed District Judge rejected the application by recording a finding that the plaint'rff has failed to show any evidence that he was ready and willing to perform his part of the contract under the agreement, ignoring the fact that the plaintiff had paid a sum of Rs. 7 lakh by way of advance which itself expressed his willingness to pedomt his part ofthe contract. ‘ . l R‘elying upon theijudgment in the matterof Shankarlal Debiprasad Rathore Vs State of MP. and others reported in 1978 M.P.L.J. 419, tt is atgued that at the stage of deciding application for temporary injunction di‘sputed question of fact or difficult questions of law should be Ien to be decided at the conclusion of the trial. l Fjurther relying on the judgment reported in AIR 19?? 5.0. 1005 in the ntatter of Govind'Prasad Chaturvedi Vs. Hari Dutt Shastri and another, itlis argued that frxation of the period within which the contract has to be plerformed does not make the stipulation as to time the essence of the; I l ciontract, particularly when the contract relates to sale of immovable ptoperty the presumption is that the time is not the essence of the contract ahd the intention to treat time as essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal pit-esumption that in a contract of sale of land stipulation as to time is not the l l essence of the contract. x O£n the other hand, learned counsel for the respondent supporting the impugned order submitsuthat the exercise of discretion by the learned trial Court is based on the pleadings of the respectiv‘re parties and documents available on record. The Gourtbelow has arrived at the conclusion that the pjaintiff has failed to establish prima facie case in‘ his favour. lt is argued l l l l l l x l l l » x { that in a suit for specific performance of contract as per provisions of Section 16(c) of the Specific Performance Act (in short ‘the Act’) it is i cumbent upon the plaintiff to plead and prove the continuous readiness nd willingness from the date of the contract to the time of the hearing to perfomt his part of the contract and failure to make good that averment iLads to inevitable dismissal of the suit and to ascertain whether the plaintiff ms ready and willing to perform his part of the contract, the circumstances of the case and conduct of the parties are relevant. Grant of decree of specific performance is a discretionary relief and it is not necessary to grant such relief simply becauseit is legal to do so. lt is argued that in a suit for specific performance of the contract, the plaintiff is required to averthat he hasalso been ready and willing to perform the essential terms of the contract and the averment should conform in terms of Form 47 and 48 of l l l i x " the C.P.C. [learned counsel for the respondent in support of his contention places his feliance on the following judgments; il. AIR 1928 Privy Council 268, Ardeshir H. Mama Vs. Flora Sassoon, 1969 (2) $0.0. 539, Ouseph Varghese Vs. Joseph Alev and others (1389) 4 scc 313, Abdul Khader‘Rowther Vs. P.K. Sara Bai and others (1995) 5 scc 115. N.P. Thirugnanam (dead) By L.Rs. Vs. Dr. R.Jagan Mohan Rao and others V (1996) v5 SCG 589, Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy ‘ (1999) 2 scc 226, Bismillah Begum (3mm Dead hyL.Rs. Vs. Rahmatullah Khan (dead) by L.Rs. (2000)6 SOC 566,Aiaib Singh & others Vs. 'Tulsi Devi (Smt) {2002) 8 SCC 146, Nirmala Anand Vs. Advent Corporation?) .Ltd.and others. / _ rk‘W9’*“"“*#- 9F’‘vi9‘wM’1’W’4‘4’ !"*~A ‘#1 MW" g 2....»4 002‘ 9~~Scc 58-2 Pus aranis. Sundaram-vand'othé Vs. Pauline manomani James- (deceasedt i2003} 10 SCG 390, Maniunath Anandagga Urf ‘Shivagga- Vs. Tammanasa and others (2004} ? scc 2511 PukhraiwD. Jain and others Vs. Go. Gopalakrishna ' 10. lLear'ned counserfor the respcnde’nt submits that the’plaintiff entered into the agreement ahr getting himseifv satistied regarding title of the vender end'aiter perusing the documents relating to title and possession of the property duly described by the boundary marks In the deed and m the aforesaid circumstances, the parties to the agreement have slgned the a‘greement wrth open eyes which does not stipulate any ohlrgatlon on the part of the respondentldefendant to disclose any information. Even otherwise, there is no documentary evidence to show that the information ' as claimed was ‘sought'before the‘stipulated date i.e. 30‘“ November 20M. From perusal of the deed prime facie time appears to be essence of the contract inasmuch as there is a stipulation that the vender shall be at liberty r to dispose of the agreemented property after stipulated dated The vender bonafdely allowed the extended time to get the sale deed executed up to 24‘” February 2005, even then the plaintiff did not avail the opportunity simply because he was not in a position to perform his part ofthe contract {rhesscope of interference in the discretionary order in the matter of granting Eor refusing order of temporary injunction in appeal is very limited and it is not open to the appellate Court to substitute its own exercise of discretion y for the discretion already exercised by the judge and it is not permissible lunless the appellate Court reaches to the clear conclusion that there has been a wrongful exercise of discretion and no weight or no sufficient weight has been given to the relevant considerations urged by the appellant. Learned counsel for the respondent further relies upon the judgments reported in 1941 (It) All .England‘Law Regorts 245‘, Charles Osenton &' “ix 2 rs s ~ Co. Vs. Johnston and AIR, 1988 (Supp) 5.6.6. 796; Gotiector 0f Customs, BombavVs. SwasticWoollens (P)Ltd.and others. e hed ld>consl r te ps. i hav ar earneue fo h anie v Th learned istrict Judge fter csidarin th‘pleadinga document e D a ong esnd s aduce hh spective parties ha arn‘ve a-th olusio hat platifdooav prima acie cas an ots grou he mpug gardr g the p iion ha b pd ihe smin of d cns e i a ' ‘dn L m ha the lainti ad ntere nto an greemen nd paid s of R. lakh s part prformanc of t contrac as off t e sha aa b r‘ad wng e rn pt of ect H d d be _ eted e ona n ar o v d l e p t pl t nnt h a ile bs e dee could b execute a t deed cod ot e execut becaus of ta the part of t efend. dd y‘te re s d te cncn t the inf‘esnt‘he a f e d n‘hi nd t ined >' e rejectin apiication of temporary njunct s een asse. T ubssio iearne ouei for th appeiiant s summarized s une c s 7 a ee he t; He h ered tha h ll lwys e eadyn illi to perform th emainig ar thontrac. owever, the dee coul not xecu becaus f‘iction o the pt f the ender as he id no disse h elevant information/cuents ertainin the . t clo te r dom pg to r agreemnted roperty to satisfy he aintiffthat he defeda I ad cler and marketable tt on the ais of which the sal d e d nd thus he ul n b ed e helpse on he dant l l (2) that efendanid o each to the egistration ffice n 3 Novembe 200 ad tarte emai ditiona inte f b way eply o th ie y the laintif, ic 18% y of r t e notc sent b pf whh is“ contrar o thetem'is the cntract y t of o; (3 that from perusal the tipulationn the greent a the attding ircumstaces, it is nt edenced that ti as h essenc of t ontrac. On th er n th ub of earne coui or respondent may be summarized as under that the averment in the plalnt is not complete in terms of Stion 16(c) of the Act as also in terms of Form 47 and 48‘” (1) i tt pff h ed i at a 'a um the dt'd nt r r o o n” r 4‘ n sd dndng adl rest o: en cn o vi me w teir I e he ct l ); of si ame nd or. e oth had e smission ld nse f the ec of the C.P.C. which is mandatory for grant of discretionary decree for specific performance of title. that the piaintiff was never ready and wiiling to perform his part of the contract which is evident fromthe conduct of the plaintiff as he did not take any step to get the sale deed executed before the stipulated date and ven after the ime was extended V tt the learned Distric Judge has passe t impugne o‘rder by properl and validly exercisin th discretionar power vested in im and t same cnot be substituted the appreciatio, appellate f stag aterial as available e sa on is ecord based and on pro sound icial principles. ' ; V 0 the ba of the pleags an document evidenc avabl o reor canno be s tha he ourt below has exered s cren be the subns mad by plaf wh may result any rparable ry to . i a case respece of the pa a case of th prties, in th presen situation the balance of convenence lies in fau of the efendant because in cas an order of temporary injunction is pase against heefendt restraining him from alienating roperty i uestion nd ultimately the defendant succeeds, in tha case he shall be f deprived o the right to transfer is ropert for the period for which the st s ending n tus irreparable injury may caused to hi. O the other had, in case te laintiff succeeds and the st is decreed nd i the absence of any prohibitory order the defendant alienates the property dur‘ing pendency of the suit, in that case such transfer shall be subject to the: decree uitimately passed and the consequences shall follow andithe plaintiff will not be subjected to any in'eparable injuiy. 16. ThL‘is in view of the aforesaid analysis the appeal preferred by the appellant fails and the same is accordingly dismissed NW i r r Sci/- x ,4»;/ ms m” Judge r f e t . ha t d he d y g e y i h he an at ‘ i n o m e th me r per jud l n sis din d ary e aile n cd It t aid t t C cis rt distio y ignoring missio e the intif hic in ire Inju him n ny irtiv rim fcie e a e t i vor d e pd tdan the p n qi a t ' f h py ui i p ad h be m n n h p ui a n