* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 261 OF 2008 Ananda Baburao Bhalerao & Ors. .........Appellants V/S. Vitthal Ramaji Ghonge .............Respondents. Mr. C.G. Gavnekar with Mr. Hiranandani, adv.for appellants Mr. U.B. Nighot, adv.for respondents. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 14TH DECEMBER, 2009. P.C. :- 1. Heard learned counsel for both sides. 2. This Second Appeal is preferred to challenge the concurrent findings of the courts below in suit filed for specific performance of the agreement by the appellants. Both the courts have held that (i) suit filed by the appellants is bared by limitation, (ii) the appellants have not established their readiness and willingness to perform their part of the contract and (iii) the decree for specific performance cannot be granted in view of the provisions of the Bombay Prevention and Fragmentation and Consolidations (Holdings) Act, 1947. * 2 * 3. Mr.Gavnekar, the learned counsel for the appellants, submits that the findings of the courts below on the question of limitation is erroneous as both the courts have proceeded on the presumption that the time fixed by the agreement of performance was of 3 years and time was the essence of contract. What was agreed between the parties was that the registered conveyance would be executed as per the convenience of the parties within a period of 3 years, when the balance amount of consideration would be handed over. Mr. Gavnekar, submits that the specific performance sought being of sale of immovable property as per the general principles, time can never be essence of the contract. 4. In the instat case, both the courts below have rightly considered that time agreed upon by the parties for performance of the contract was of 3 years. The convenience of the parties which is referred to does not relate to the period of 3 years but it only relates to time period below 3 years. Therefore, it cannot be construed to mean that after the period of 3 years the parties could have completed the contract at any time as per the mutual convenience. The agreement of sale is dated 27th September, 1984. Almost 10 years thereafter i.e. on 22nd May 1993, the appellants sent notice to the respondent calling upon him to perform his part of * 3 * the contract. The notice was not replied to by the respondent and therefore suit came to be filed on 5th July 1994. The appellant has not stated a word of explanation in the pleadings and the evidence, about the delay. Taking into consideration, that the notice calling upon the respondent to complete the same was issued nine years after the agreement, it has been opined by the courts below that the appellants were not willing to perform their part of the contract. 5. The courts have also held that the suit is hit by the provisions of the Bombay Prevention and Fragmentation and Consolidations (Holdings) Act, 1947, because the property that is required to be sold under the agreement is only of 20 R out of the land admeasuring 12 acres and 25 gunthas. Therefore, the findings of the courts below are completely supported by the evidence on record and do not require any interference. Hence, the appeal is dismissed. [SMT. R.P. SONDURBALDOTA, J]