=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.506 NO.506 NO.506 OF 2003 OF 2003 OF 2003 IN IN IN SUIT SUIT SUIT NO.2831 OF 1991 NO.2831 OF 1991 NO.2831 OF 1991 M/s Simco Packaging Products ...Appellants v/s Hindustan Chemicals Works Ltd. ...Respondents Mr Rajesh Shah i/b Ms Rina H. Pujara for Appellants. Ms Mili Thakkar with Mr Girish Desai, Mr H.J. Engineer and Ms S.V. Thakkar i/b M/s Gordhandas ad Fozdar for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 5TH JANUARY 2009 5TH JANUARY 2009 5TH JANUARY 2009 =2= P.C.- 1. By this appeal, the appellants challenge the judgment and decree passed by the learned Single Judge of this Court dated 2nd May 2003 in suit No.2831 of 1991. That civil suit was filed by the present appellants. The present appellants, which is a partnership firm, claim that there was an agreement between the plaintiffs and the defendant - Company dated 20th August 1981. According to that agreement, the defendants agreed to sell to the plaintiffs block No.10 on the ground floor in the building which was to be constructed on plot No.410. The agreed consideration was Rs.6,25,000/-. Out of that amount, an amount of Rs.75,000/- was paid as earnest money on the date of the agreement. In the agreement, various dates are given for payment of the balance amount of consideration. The entire amount had to be paid by 31st December 1982 when the defendants were to handover possession of the unit of the plaintiffs. According to the averments in the plaint, the defendants could not start the construction as agreed because of some litigation. Ultimately that litigation came to an end. According to the averments in the plaint, in the month of May 1989 one Mohanlal on behalf of the defendants informed the partner of the =3= plaintiffs - Murad about settlement of the civil suit filed by the defendants between the parties to that civil suit. It was averred that at that stage in May 1989, Murad, partner of the plaintiffs informed Mohanlal that the entire consideration was ready since 1987 and that he is ready and willing to make the payment. However, Mr Mohanlal, Managing Director of the defendants told the plaintiffs that they need not make the payment and that they can make the payment of the balance amount at the time of handing over possession. It appears that thereafter, according to the plaintiffs, the attitude of the defendants changed and they declined to handover possession. The plaintiffs therefore filed the suit for specific performance of the agreement dated 20th August 1981. 2. The suit was resisted on behalf of the defendants. The defendants filed written statement denying principal averments made in the plaint. On the basis of rival pleadings, the Court by order dated 8th February 2000 framed following issues :- "1) Whether the claim in the suit is barred by law of limitation as stated in paragraph 2 of the written statement? 2) Whether the defendants prove that the =4= agreement dated 20-3-81 is not properly stamped, if yes what is its effect ? 3) Whether the plaintiffs prove that by agreement dated 20th August 1981 defendants agreed to sell to plaintiffs Block No.10 on the ground floor of the building on Plot No.410 and whether the same is subsisting and valid ? 4) Whether the plaintiffs prove that they have been and even now are ready and willing to perform their part of the agreement ? 5) Whether the plaintiffs prove that the defendants committed breach of the contract dated 20th August 1981 by not handing over possession of Block No.10 to the plaintiffs ? 6) Whether the defendants prove that the agreement dated 20th August 1981 has been cancelled and stands terminated ? 7) Whether the plaintiffs are entitled to decree for specific performance and =5= decree for damages ? 8) What relief / order ?" . It appears that thereafter the plaintiffs examined Mr Yusufali Haji Mahomed Murad as a witness and the defendants examined Mr Jitendra Mohanlal Shah as a witness. The leaned Single Judge thereafter heard the parties and passed the judgment and decree. The learned Single Judge declined to pass decree of specific performance of the agreement. The learned single Judge directed refund of the amount of Rs.1,75,000/-. The plaintiffs are in appeal against the order of learned Single Judge declining to make the decree for specific performance of the agreement. 3. We have heard learned counsel for both the sides. We have perused the record. In our opinion, following point arises for our consideration. "Whether the learned Single Judge has correctly exercised his discretion and declined to pass the decree of specific performance ?" . Perusal of the judgment of the learned Single Judge shows that the learned Single Judge has declined =6= to pass the decree of specific performance in favour of the plaintiffs principally because according to the learned Single Judge, the plaintiffs have failed to prove that the plaintiffs were ready and willing to perform their part of the contract. The learned single Judge has considered this aspect of the matter in detail in paragraph 24 of the order. It is an admitted position that by 1985, an amount of Rs.1,75,000/- was paid. The learned Single Judge has noted that the witness of the plaintiffs has admitted that construction of the fourth floor was completed by December 1989. The learned Single Judge has noted that as per the agreement, certain amount was to be paid on completion of the construction of fourth floor. The learned Single Judge has noted that even after completion of the construction of fourth floor in December 1989, the plaintiffs did not pay any amount which was to be paid on completion of the fourth floor. The learned counsel appearing for plaintiffs submitted that the learned Single Judge has committed an error in appreciating the evidence because according to him, the learned single Judge has not appreciated that there was an agreement reached between the parties that the balance amount of consideration was to be paid at the time of handing over possession and that two reasons were given by the plaintiffs why the defendants agreed to this modification, one was cordial relationship between the =7= parties and the second was that the defendants were not in a hurry to receive the money. The learned counsel seriously therefore urged that the learned Single Judge committed an error in not accepting this modification in the agreement. Now, in order to examine whether the submission made by the learned counsel for plaintiffs is capable of being accepted, if one peruses the record, it is found that as per averments made in paragraph 13 of the plaint, the modification of the agreement, according to the plaintiffs, came about in May 1989 when the defendants agreed that the plaintiffs will pay the balance amount of consideration at the time of handing over of the possession, but perusal of the evidence of the sole witness examined on behalf of the plaintiffs shows that according to him, the construction of fourth floor was completed in December 1989 and at that time, they offered to pay the defendants an amount of Rs.6,25,000/- less Rs.1,50,000/- being the balance consideration after the fourth floor was constructed. Now, if there was an agreement reached between the parties in May 1989 that the balance amount of consideration was to be paid at the time of handing over possession, there is no question of the plaintiffs again offering the amount as per the old agreement i.e. after completion of fourth floor. It is further to be seen that after going through the evidence, the learned counsel was unable to point out that his witness has =8= deposed anywhere that because of cordial relationship between the parties, the defendants agreed to receive the entire consideration at the time of handing over possession. Perusal of the judgment of the learned Single Judge shows that the learned Single Judge has noted that it is not possible to believe that the defendants will decline to receive the amount which they are entitled because of the completion of a particular stage of construction. The learned Single Judge has also noted that there is no reason given by the plaintiffs as to why the defendants did not even accept the amount to which they had become entitled because the amount had become due as per the agreement. In short, we do not find that the learned counsel was justified in submitting that the learned Single Judge ignored any material while appreciating the evidence. Passing a decree in a suit for specific performance is in the discretion of the Court. Once the learned Single Judge has exercised that discretion, one way or the other, unless the Appeal Court considers it that the learned Single Judge has committed gross error in appreciating the evidence, the Appeal Court will not be justified in interfering with the discretion exercised by the learned Single Judge. In our opinion, it cannot be said that this is a fit case where Appeal Court should interfere with the judgment impugned in the appeal. In the result therefore, appeal fails and is dismissed with no order =9= as to costs. The learned counsel appearing for defendants - respondents states that despite dismissal of the appeal, the respondents will continue to abide by the statement that was made by them and recorded at interim stage for a period of eight weeks from today. Statement is accepted. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)