IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 881 of 1978 With CIVIL APPLICATIONS No.606 & 607 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE K.R.VYAS ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MIYAJI ALLARAKHA DESAI THROUGH HIS HEIRS Versus NARENCHANDRA P MODI -------------------------------------------------------------- Appearance: Mr.S.N.Shelat,Sr.Advocate for Mr.P.G.Desai for appellants. MR BP TANNA for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE K.R.VYAS Date of decision: 26/10/1999 ORAL JUDGEMENT 1. The respondent-plaintiff filed a suit being Civil Suit No. 1442 of 1971 in the City Civil Court, Ahmedabad for obtaining a decree from the deceased appellant-defendant for specific performance of an agreement for sale executed by the deceased appellant in his favour for sale of the suit property. Alternatively, the respondent- plaintiff also prayed for recovery of Rs. 26,000/- by way of damages on the ground of breach of contract by the deceased appellant and for refund of Rs. 30,000/paid to the deceased appellant pursuant to the said agreement for sale and, thus, he claimed a total sum of Rs. 57,460/with interest at the rate of 9% p.a. from the deceased appellant. 2. The learned Principal Judge, City Civil Court, Ahmedabad, on 29.3.1978 decided the suit in favour of the respondent- plaintiff and ordered the deceased appellant to execute the sale deed in respect of the suit property described in paras 1 and 9(a)(1) of the plaint in favour of the respondent by accepting Rs. 48,660/- being the remaining amount of sale consideration in accordance with the condition of the suit banakhat dated 29.1.1971 for selling 874 sq.yds. of the suit land at the price of Rs. 90/- per sq.yd. Upon the deceased appellant- defendant's failure to execute the sale deed, the respondent- plaintiff was held to be entitled to have sale deed executed through Commissioner appointed by the Court. 3. Having heard the learned Counsel appearing for the parties at length, I am of the opinion that no case is made out for any interference. From the evidence on record, it is clear that the respondent has successfully established that he was ready and willing to perform his part of the agreement dated 29.1.1971 and the deceased appellant has committed breach of the agreement as alleged and the deceased appellant has refused to execute the sale deed. In my opinion, the respondent cannot be blamed for not executing the sale deed and there was no negligence or any fault on his part. On the contrary, it is established beyond any manner of doubt that the deceased appellant was not ready and willing to perform his part of the agreement. In the circumstances, no exception can be taken to the findings recorded by the learned trial judge to the effect that the respondentplaintiff is entitled to the reliefs claimed. At this stage, the learned Counsel appearing for the appellants suggested that the deceased appellant does not insist for the reasoned order and, therefore, it is not necessary for me to reappreciate the evidence on record. There being no substance in the appeal, the same is dismissed. No order as to costs. In view of the order passed in the appeal, no order in Civil Application. ---- sonar/-