( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 440 OF 2010 Keshav s/o. Shankar Kshirsagar .. Appellants since deceased through his L.Rs. & Ors. Versus Dr. Paraji Dagdu Bhusari since deceased through his L.Rs. & Ors. .. Respondents Shri S.V. Jaigude h/f. Shri S.D. Kotkar & Shri C.K. Shinde, Advocate for the appellants. Shri D.G. Nagode, Advocate for respondent Nos. 1A, 1C and 1E. CORAM : P.R. BORKAR,J. DATED : 20.07.2010 P.C. :- 1. This Second Appeal filed by original plaintiff whose suit for specific performance was dismissed by the First Appellate Court, though the First Appellate Court partly allowed the appeal and allowed refund of earnest amount of Rs. 80,000/- and Rs. 7475/- towards payment of occupancy charges. ( 2 ) 2. Heard Adv. Shri S.V. Jaigude h/f. Adv. Shri S.D. Kotkar & Adv. Shri C.K. Shinde for the appellants and Adv. Shri D.G. Nagode for respondent Nos. 1A, 1C and 1E. 3. The specific performance was mainly refused as the First Appellate Court came to a conclusion that the appellant/plaintiff failed to prove that he was and is ready and willing to perform his part of the contract in respect of agreement dated 28.01.1987 and secondly he also came to the conclusion that the time was essence of the contract. 4. The learned advocate for the appellants vehemently argued that the transaction was regarding sale of immovable property and ordinarily in such contracts time would not be essence of contract. It is also stated by the advocate for the appellants that it is residential plot. On the other hand Adv. Shri Nagode for the respondents pointed out paras 13, 14, 16 and 17 of the judgment of the First Appellate Court. 5. Some of the facts giving rise to this appeal are ( 3 ) admitted at this stage. Respondent – Dr. Bhusari/original defendant had entered into agreement of sale with appellant – Keshav Kshirsagar/original plaintiff on 28.01.1987. The plot was sold for Rs. 1,45,000/-. On the date of agreement, an amount of Rs. 60,000/- was paid in cash towards earnest money. On same day towards earnest money a cheque of Rs. 20,000/- of that date was issued. Admittedly, it is encashed. On 28.01.1987 at the time of agreement, another cheque of Rs. 20,000/- dated 16.02.1987 was issued. Admittedly, said post dated cheque came to be dishonoured, on the ground of insufficiency of funds. As per the agreement, balance amount was to be paid within 13 months from the date of agreement. So, the sale was to take effect on or before 28.02.1988. Admittedly, first notice was given by the plaintiff on 14.10.1989 to show willingness and readiness to perform his part of the contract. It was about 20 months after the date of execution of the agreement. 6. The First Appellate Court held that there was no evidence to show that the appellant was always ready and willing to perform his part of the contract before he issued notice on 14.10.1989. The instance of dishonour of post ( 4 ) dated cheque of Rs. 20,000/- was considered, which is in respect of cheque dishonoured on the ground of insufficiency of funds. So, on or after 16.02.1987 the plaintiff had failed to arrange for Rs. 20,000/-. It is argued by the advocate for the appellant that the appellant had such cash and it is also said that the cheque came to be dishonoured mainly because the respondent/defendant has not paid occupancy charges of Rs. 7475/- as per the agreement. That could not have been reason for dishonour of cheque of Rs. 20,000/- and even if it was to be a reason, the plaintiff ought to have immediately issued notice that he would not pay the amount of post dated cheque, unless occupancy charges were deposited by the defendant in Tahsil Office. The First Appellate Court also stated in para 17 that the time was essence of contract because the appellant/plaintiff wanted to raise money for meeting expenses of education of his children and letters written by son of the appellant demanding money for payment of fees were produced on record. Even demand letters issued by concerned college have also been produced on record. Said documents are at Exh. 84 to 93. Thus, the First Appellate Court has held that the time was essence of the contract because the sale was for raising money for ( 5 ) education and fees were to be paid. 7. Considering the reasons given by the First Appellate Court and after hearing advocates for both sides in detail, in my opinion, the First Appellate Court has taken reasonable & proper view and it is not perverse finding or wrong use of discretion. In the circumstances, the Second Appeal is dismissed at the stage of admission. [P.R. BORKAR,J.] snk/2010/JUL10/sa440.10