1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal NO. 152 OF 1993 WITH Civil Application No. 1239 of 1993 Amritlal Shivnarayan Mandore since deceased through his legal representative & heir Ujwala Amritlal Mandore, aged 16 years, Occu. Nil, Resident of Dhamangaon her gurdian Shri Ganpatlal Shivnaryan Mandore, Age 46 years, Occu. Agriculture, Residing at Dhamangaon, Tq. & Dist. Jalgaon. ... Appellant. Versus 1] Ajitprasad Bhagchand Pagaria, Age 43 years, Occu. Agricultural resident of Dhamangaon, Tq. & Dist. Jalgaon. 2] Ganpati Shivnarayan Mandore, Age 43 years, Occu. Business, Resident of Dhamangaon, Tq. & Dist. Jalgaon. 3] Suresh Shivnaryan Mandore, Aged 41 years, Occu. Business, Resident of Dhamangaon, Tq. & Dist. Jalgaon. ... Respondents. 2 -------- Shri. L.V. Sangit Advocate holding for V.J. Dixit, Senior Counsel for the Appellant. Shri. Sanket S. Kulkarni Advocate holding for Shri V.T. Choudhari Advocate, for Respondent No.1 -------- CORAM: V.R.KINGAONKAR, J. DATE: 9th NOVEMBER 2009 ORAL JUDGMENT : 1) This Second Appeal is preferred by Original defendant No. 1 (since deceased) through his legal representative i.e. daughter. It is directed against the judgment rendered by learned 2nd Additional District Judge, Jalgaon in Appeal (RCA No. 141 of 1983), whereby the decree rendered by the Trial Court is reversed and the appellant has been directed to execute sale deed in favour of respondent (Plaintiff), in pursuance to decree for specific performance of agreement of sale. 2) It would be convenient to refer the parties by their nomenclature in the Trial Court 3 and by reference to their first names. Respondent No.1 Ajitprasad is the original plaintiff. He filed suit against appellant- Amrutlal , Respondent No. 2 Ganpati and Respondent No.3 Suresh, for specific performance of agreement of sale. The suit property comprises of a house described in the claim clause, situated at Village Dhamangaon (District Jalgaon). 3) Briefly stated, the case of respondent No. 1- Ajitprasad was that defendant No. 1 Amrutlal owns the suit house and agreed to sale the suit house in his favour for consideration of Rs. 7,500/-. The agreement of sale was reduced into writing on 04-12-1984. He paid Rs. 1500/- towards part consideration being earnest amount to defendant No. 1 – Amrutlal. He subsequently gave cash amount, Jawar and wheat and also a bullock-cart from time to time, towards remaining amount of consideration. Thus, he parted with amount of Rs. 5180/- in pursuance to the agreement of sale. He was ready and willing to 4 purchase the suit house. On many occasions, he requested defendant No. 1- Amrutlal to execute sale-deed in his favour, however, defendant No. 1 avoided to execute such sale-deed. Consequently, on 27-11-1975 he issued notice and demanded compliance of the agreement of sale from Amrutlal. By his reply dated 06-12-1975, defendant No. 1- Amrutlal declined to execute sale-deed about the suit house. Hence, he filed the suit for specific performance of the agreement of sale. He also alternatively sought refund of Rs. 5150/-, if the amount of specific performance could not be granted. 4) Appellant- Amrutlal (Ori. Defendant No. 1) resisted the suit by filing written Statement (Exh. 22). He asserted that the suit house was jointly owned by himself and two brothers i.e. original defendant Nos. 2 & 3. He contended that, he was not the exclusive owner of the suit house , as it is property left by his father. He alleged that he had received only Rs. 1500/- by 5 way of earnest amount. He contended that the sale-deed was to be executed before December 1974 as a time was essence of contract. He alleged that Plaintiff-Ajitprasad committed breach of agreement of sale because remaining amount of Rs. 6,000/- was not paid within the stipulated period and demand for conveyance is not made within the given period stipulated under the contract. He denied thathe was subsequently paid cash amount and was given bullock-cart by plaintiff- Ajitprasad. He sought dismissal of the suit alleging that the earnest amount was forefeited due to latches committed by plaintiff-Amrutlal. Therefore, he was not required to comply with the terms of the agreement of sale. 5) The parties went to Trial over issues framed by the Civil Judge below Exh. 23. The learned Civil Judge held that plaintiff-Amrutlal was not entitled to discretionary relief of specific performance of the agreement of sale inasasmuchas time was essence of the contract. 6 The claim for specific performance was, therefore, dismissed. The learned Civil Judge, however, held that the amount of Rs. 3,000/- paid to deceased defendant No. 1- by plaintiff was liable to be refunded. Therefore, the suit was partly decreed and the appellant was directed to refund Rs. 3,000/- along with interest at the rate of Rs. 9% per annum from the date of suit till the realisation of amount. The decree was challenged by Plaintiff-Ajitprasad vide RCA No. 141 of 1983. The First Appellate Court held that time was not essence of contract and, therefore, the plaintiff was entitled to seek specific performance of the agreement of sale. Consequently, the appellant (defendant) was directed to execute registered sale-deed in favour of respondent No.1 -Ajitprasad by accepting remaining amount of consideration. Feeling aggrieved, the appellant has come up in Second Appeal. 6) The Second Appeal was admitted on 7 three substantial questions of law raised by the appellant. They are as follows :- “1] Whether in the facts and circumstances of the present case, the Lower Appellate Court should have held that time was essence of the contract as agreed between the parties,and, therefore, the plaintiff i.e. the respondent No. 1 has no right to seek performance of the agreement of sale? 2] Whether in the facts and circumstances of the present case, the Lower Appellate Court should have seen that the respondent No. 1 has committed a mischief in scoring the data in the agreement of sale (Exh.52), and if the said act is accepted by the Lower Appellate Court, as per the version of respondent No. 1 himself, then whether it was proper on the part of the Lower Appellate Court to exercise discretion in favour of the plaintiff in granting 8 specific performance of the agreement of sale. 3] Whether in the facts and circumstances of the present case, the Lower Appellate Court has also not considered the judgment passed by the 2nd Additional District Judge of the same designation on 22-01-1982 in RCA No. 372 of 1982, in which the learned 2nd Additional District Judge, Jalgaon, in an appeal filed by the appellant, modified decree of the Trial Court to the extent of amount of Rs. 2,000/- and the Lower Appellate Court has confirmed dismissal of the suit of the plaintiff by the judgment and order dated 20-01-1988, and if this judgment would have been considered by the learned 2nd Additional District Judge, Jalgaon while deciding Civil Appeal No. 141/1993, he would not have arrived at different conclusion?” 9 7) Heard learned counsel for the parties. 8) At the outset, it may be stated that there is hardly any material to infer that time was essence of the contract. It is well settled that though there may be stipulation in the contract, yet, unless there is cogent evidence to draw otherwise inference, time cannot be treated as essence of, the contract in respect of transaction of sale of immoveabe property. In the agreement of sale, (Exh.52) there is no penal clause. There is no term to show that in case of failure of the defendant No. 1 -Amrutlal to execute the sale-deed, prior to end of December 1984, or in case of Plaintiff-Ajitprasad will commit default in payment of remaining consideration, the contract could be deemed as rescined. The execution of the agreement of sale dated 04-12-1974 is undisputed. It does not stand to reason that the outer limit of re- conveyance was fixed only till end of the month 10 of December 1974 Defendant No. 1- Amrutlal did not plead that he was in dire need of the amount and, therefore, the time was made essence of the agreement of sale. The First Appellate Court seems to have properly appreciated this aspect of the matter. Needless to say, merely because there is such time stipulated in the terms of agreement of sale (Exh. 52,) it cannot be concluded that the time was essence of the agreement of sale. So far as the exercise of judicial discretion is concerned, it is true that normally such discretion is required to be exercised in favour of prospective purchaser. Proviso to Section 20 of the Specific Relief Act, would make it amply clear that ordinarily, the Court is required to exercise discretion in favour of the purchaser. The exercise of such discretion ought to be within parameters as enumerated in Section 20. 9) Here-in, conduct of the parties is required to be considered. The testimony of PW-1 11 Ajitprasad (Plaintiff) would show that he scored out a portion of the original agreement of sale (Exh. 52). He admits as follows. “ Exh. 52 was in my possession. The contents of Exh. 52 are scraped out. It is true that the contents of Exh. 52 that the sale deed is to be executed in December 1974 last is scored out by me. It was not essential condition of the contract and therefore, I deleted this portion is not correct.” It is pertinent to note that he asserted that the amount of Rs. 5180/- was paid to defendant No. 1- Amrutlal as part of the consideration. The Trial Court noticed that the actual payment made was of Rs. 3,000/- and not Rs. 5180/-. The decree was challenged by defendant No. 1- Amrutlal by filing an appeal (RCA No. 372 of 1982). On perusal of copy of judgment rendered by the First Appellate Court in the said sister appeal, it is manifest the that, decree regarding the quantum 12 of amount refundable to plaintiff- Ajitprasad was slashed down to Rs.2,000/-. Obviously, it is the finding of the First appellate Court in the sister appeal (RCA No. 372 of 1982) that plaintiff Ajitprasad had blownup the claim about payment of part of consideration. Though he had paid only Rs. 2,000/-, yet, had claimed to have paid Rs. 5180/- to defendant No. 1-Amrutlal. This conduct of Plaintiff-Ajitprasad is certainly improper, and thus, he is found guilty of following mis-conducts.: i] That, he scored out the relevant portion pertaining to outer time limit enumerated in agreement of sale (Exh. 52), thereby fabricated a part of the said document; ii] Though he paid only Rs. 2,000/- to defendant -Amrutlal, yet, he asserted that amount of Rs. 5180/- was paid towards the part payment. In other words, he has not paid substantial amount of consideration in pursuance to the 13 agreement of sale. In view of these circumstances, it cannot be said that plaintiff- Ajitprasad was entitled to seek specific performance of the agreement of sale (Exh.52). By his conduct, he forfeitted his right for the specific performance of said contract. The judicial discretion cannot be used in favour of such person who had no compunsation in fabricating the document. Considering this aspect, the impugned judgment and decree deserves to be interferred with. 10) In the result, the appeal is allowed. The impugned judgment and decree regarding specific performance of the agreeent of sale is set aside. The decree rendered by the Trial Court for refund of Rs. 3,000/- to plaintiff Ajitprasad is modified and it is directed that Defendant No. 1 Amrutlal through his legal heir shall repay Rs. 2,000/- to respondent No. 1 Amrutlal within period of two months or else the amount may be recovered 14 through process of the court. The amount shall carry interest at the rate of 9% per annmum from the date of the suit till realasation of the amount. 11) The parties to bear their costs throughout. 12) In view of dispoal of Second Appeal No. 152 of 1993, Civil Application No. 1239 of 1993 does not survive and disposed of accordingly. (V.R. KINGAONKAR, J.) SDM/ 152.93 15