1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR First Appeal No. 693 of 2008 Pralhad Kisan Aakhade & Ano. Vs. Dinesh Parasramji Sahare Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri H. N. Bhondge Adv. for appellant. Shri A. Shelat Adv. for respondent. CORAM: C. L. PANGARKAR J. Dated: 6 th October, 2008. Heard counsel for the appellant and the respondent. This appeal has been preferred by the appellant against the judgment and decree passed by the Civil Judge Senior Division. Appellant had instituted a suit for specific performance of contract of purchase of a plot. It was agreed that defendant would sell the suit plot to the appellant for a consideration of Rs. 6,50,000/-. Plaintiff paid Rs. 50,000/- to the respondent. It was 2 agreed between the parties that sale deed would be executed on 30.11.2004. It was also agreed that as per the agreement all development charges and other taxes would be paid by the appellant before the execution of the sale deed and thereafter the sale deed would be executed. It is the contention of the appellant that respondent paid the development charges without letting plaintiff know that they have been paid. It is also the contention of the appellant that they were always ready and willing to perform their part of the contract and defendant has wrongly refused to execute the sale deed and further that the time was not the essence of the contract. The defendant/respondent resisted the suit by filing written statement and contended that plaintiffs were not ready and willing to perform their part of the contract. Since the plaintiff never approached the defendant for execution of the sale deed defendant issued a notice to the plaintiff/appellant that they have not performed their part of the contract and therefore defendant was not liable to execute the sale deed. Trial 3 Court after framing issues found that plaintiffs were not at all ready and willing to perform their part of contract and as such refused to grant a decree for specific performance of contract. The learned counsel for the appellant contended before me that plaintiffs were in fact ready and willing to perform their part of contract. They have even issued notice to the respondent that they were so ready and they are even today are ready. He submits that time was never the essence of contract and I do not even for a moment dispute that in cases of immovable property time is never essence of contract. The learned counsel for the appellant had relied on the decision reported in ...2002(2) Civil Law Journal, 505, wherein Their Lordships made the similar observations. Learned Judge of the trial Court on facts has found that the plaintiffs were never ready and willing to perform their part of contract. He has observed that even though it is specifically mentioned in the agreement of sale that development charges and taxes were to be paid by the appellants-purchasers, the plaintiffs tried to lead evidence to the effect that there was an 4 oral agreement that those charges would be paid by the respondent-defendant. To my mind the fact that plaintiffs tried to lead evidence contrary to the contents of the documents itself suggest that the plaintiffs were not ready to pay the amount of development charges and taxes else there was no reason to have taken the plea which is contrary to the contents of the documents itself. The record shows that plaintiffs never issued any notice to the defendant before 30.11.2004 showing their readiness and willingness to perform their part of the contract. It is observed by the learned Judge that the plaintiffs never produced before him any documents showing that they have had enough money to pay consideration including the bank pass book. If the plaintiffs have had such an amount they had no difficulty to produce such documents to show that they have enough of money and they could have paid the amount within time. It was the defendant who have issued notice to the plaintiffs first and it is thereafter the plaintiffs issued notice to the defendant. The relief of specific performance is discretionary relief. The appellant Court is not in any way supposed to interfere with the discretion of the trial 5 Court unless it is shown that finding of the trial Court is perverse or against the evidence on record. Primafacie I find that the learned Judge of the trial Court has rightly appreciated the evidence in holding that plaintiffs were not ready and willing to perform their part of contract and has rightly passed a decree for refund of the earnest. I see no merit in the appeal. Appeal is dismissed in limine. JUDGE svk