1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.105 OF 2010 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 29.03.2011. 1. This is plaintiff's Second Appeal. The plaintiff had initially filed a dispute before the Cooperative Court for specific performance of contract. The same was filed on 2.11.1991. The defendants appeared and raised objection of jurisdiction. The same was pending. Thereafter, the plaintiff filed a Purshis seeking withdrawal of the suit so as to file the same before the appropriate forum. The same was filed in 2001 and thereafter the present suit came to be filed before the Civil Court for specific performance of contract. The trial Court dismissed the suit on the ground that the plaintiff could not prove his readiness and willingness, the suit is not within 2 limitation and that the defendant No.2 is a bonafide purchaser of the suit property for value without notice. The plaintiff preferred appeal. The appellate Court confirmed the findings of the trial Court and dismissed the appeal. The plaintiff assailed the said judgment in the present Second Appeal. 2. Mr.Katneshwarkar, learned counsel for the appellant vehemently contended that the Courts below have not properly interpreted Section 14 of the Indian Limitation Act and thereby have arrived at an erroneous conclusion that the suit is barred by limitation. For the said purpose, the learned counsel relied on the judgment of the Apex Court in a case of "Shakti Tubes Limited through director Vs. State of Bihar and others" reported in (2009) 1 Supreme Court Cases 786. The learned counsel further contended that the concept of good faith and bonafide has to be liberally construed. According to the learned counsel just because the proceedings were pending before a wrong forum, it can not be said that the plaintiff was not ready 3 and willing to perform his part of the contract. So also the finding that defendant No.2 is a bonafide purchaser is improper as he is a purchaser during pendente lite of the dispute before the Cooperative Court. It was further contended that when the agreement of sale was proved, the grant of specific performance is a rule. 3. Per contra, Mr.Yawalkar, learned counsel for the original defendant No.2 and Mr.Tripathi, learned counsel for the legal heirs of defendant No.1 submit that in fact, the suit before the Civil Court was barred by limitation, the plaintiff would not be entitled for benefit of Section 14 of the Limitation Act, inasmuch as though the objection to the limitation was raised in the year 1992 itself, the plaintiff did not take any steps for nine years and filed an application for withdrawal of the suit with liberty to institute the suit in a proper forum in 2001. This itself shows that the proceedings were not prosecuted bonafide and in good faith and the same is sufficient to imply that the plaintiff was not ready and willing to perform 4 his part of the promise. It was further contended by them that defendant No.2 after having purchased the property is residing in the same and it would also cause hardship to grant relief of specific performance and as such as per Section 20 of the Specific Relief Act, the plaintiff is not entitled for relief of specific performance. 4. With the assistance of the learned counsels, I have gone through the judgments. The finding regarding bonafide purchase may not be strictly in tune with the legal proposition as in the year 1990 only agreement was executed between defendant NO.1 and defendant No.2. The dispute was filed in the year 1991. Admittedly, till the date of filing of dispute no conveyance was executed nor the defendant No.2 was enrolled as a member of the society. However, the defendant No.2 subsequently in the year 1997 was inducted as a member and is allotted the said house and is residing there. The question of hardship would be relevant. 5. It is also matter of record that in the year 1992 itself, the defendant has raised the issue 5 about jurisdiction. For long slumber of nine (9) years, the plaintiff did not take any steps and for the first time in the year 2001 filed an application for withdrawal of the suit on the ground that the suit would be instituted before the Civil Court. This period of nine (9) years is too long a period and it can not be said that the plaintiff was prosecuting the said proceedings bonafide and in good faith. The judgment of the Apex Court in case of "Shakti Tubes Limited through Director Vs. State of Bihar and others" referred supra would not be strictly applicable to the facts of the present case inasmuch as in a case before the Apex Court, the Writ Petition was admitted for hearing and the same was maintainable. In that context, the Apex Court has held that the said proceedings were bonafide. In the present case, the suit was not maintainable before the Cooperative Court and this fact was brought to the notice of the plaintiff by the defendant in 1992 itself, still, for nine (9) years the plaintiff did not take any steps nor did prosecute the matter. This itself shows ;acl of 6 bonafide and good faith. Moreover, the plaintiff had only paid Rs.11,000/- (Rupees eleven thousand) under an agreement, whereas the total consideration is of Rs.1,01,000/- (Rupees one lac one thousand), so a paltry sum was paid. Both the Courts on evaluation of the evidence have come to the conclusion that the plaintiff could not prove that he was and is ready and willing to perform his part of the contract. 6. The relief of specific performance is a discretionary relief. It is a trite law that the appellate Court has to be loath in interfering with the discretion exercised by the Courts below. The discretion has been exercised in a plausible manner by the Courts below. 7. In light of the above, the Second Appeal does not involve any substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.29.03.2011. asp/office/sa105.10 7