1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 9 OF 2010 WITH CIVIL APPLICATION NO. 898 OF 2010 WITH CIVIL APPLICATIION NO. 14110 OF 2010 Dattu @ Dattatraya s/o Ramchandra Shinde and others ...Appellants Versus Kumar s/o Teumal Lakhawani and others ...Respondents ..... Mr. A.N. Nagargoje, advocate for the appellants Mr. S.V. Nathu, advocate for respondent No.1 ..... CORAM: S. S. SHINDE, J. DATED: 26TH OCTOBER, 2010 PER COURT:- 1 This Appeal from Order takes exception to the order dated 16.11.2009 passed by the learned C.J.S.D. Sangamner below Exh.5 in Special Civil Suit No. 7 of 2009. 2 Heard learned counsel appearing for the appellants and the counsel for respondent No.1. 2 3 Counsel for the appellants submits that the appellants herein are the original defendant Nos. 6 and 7. Defendant Nos. 1 to 3 have executed sale deed in favour of the appellant. The suit property is purchased and sale deed has been executed on 14.10.2008. Learned counsel invited my attention to the text of agreement to sale executed between the defendant Nos. 1 to 3 and the original plaintiff and submitted that the agreement to sale is dated 30.5.1997 and it was agreed between the parties that the final sale deed would be executed within a period of six months from 30.5.1997 and therefore, the time was essence of contract. He further submitted that the said agreement was registered on stamp paper of Rs.100/-. An earnest amount of Rs.11,000/- was paid at the time of agreement to sale. Learned counsel further submitted that as per contents of the agreement to sale, the sale deed was supposed to be executed within six months from 30.5.1997, now in 2009 respondent No.1 cannot say that he has right to execute the agreement to sale. According to the counsel for the appellant, even according to the last payment which was made by the plaintiff to defendant Nos. 1 to 3 on 16.4.1998 from that date, if the limitation is counted, the suit is filed after 11 years. The legal notice is given by the plaintiff after a period of 10 years from the said date. Learned counsel further submitted that trial court has observed in its order so far as payment of Rs.2.00 lacs to the defendant Nos. 1 and 2 by the plaintiff 3 is concerned, the said contention is not admitted and it is disputed in the written statement by the appellants herein. It is further submitted that at the most within three years from the agreement to sale the suit should have been filed and since the suit is filed after a period of 11 years, the same is time barred. It is further submitted that it was for the plaintiff to show willingness and readiness to execute the sale deed. The defendant Nos. 1 to 3 asked the plaintiff to remain present in the Registrar’s office on 13.10.2008, however, the plaintiff did not turn up. The sale deed between defendant Nos. 1 to 3 and the plaintiff has been executed on 14.10.2008. It is further submitted that it was old two storeyed building, which was demolished and the appellants have carried out further construction in accordance with the permission granted by the local body on 6.1.2009. It is further submitted that when written statement was filed, 40% constructions was completed by that time. It is further submitted that by the time stay was granted by the trial court, entire constructions of the ground floor of the suit property was completed. It is further submitted that total area of the ground floor is 42 sq. meters. Entire ground floor constructions has been completed and plaster, doors, shutters etc. are remained to done. There is no reason why the appellant should not be allowed to complete the remaining work and to run the shop on ground floor of the suit premises. Learned 4 counsel further invited my attention to Sections 16 and 21 of the Specific Relief Act and contended that it was for the plaintiff to take steps to execute the sale deed. Since the sale deed is executed in favour of the appellants, there is no reason why further construction should not be permitted to be carried out and further the appellants be allowed to run the shop in the said premises. Learned counsel in the alternate prayed that in case this court is not inclined to grant stay to the impugned order, in that event, the appellant may be allowed to put shutter and to do minor construction work on the ground floor of the suit property and further he may be allowed to run the shop. The sum and substance of the argument of the counsel for the appellant is that suit is not filed within limitation, even last payment which was made by the plaintiff to the defendant Nos. 1 to 3 was in November, 1998 and if the limitation is counted from that date, the suit is not within limitation and the suit is filed after a period of 11 years. It is further submitted that even legal notice issued to the plaintiff is after 10 yeas from the date on which the defendant Nos. 1 to 3 were supposed to execute the sale deed in favour of the plaintiff. It is further submitted that by his own conduct the plaintiff is not entitled for the relief of specific performance of agreement. He further submitted that there is no prayer in the suit praying therein to declare the sale deed 5 as null and void and for cancellation of the sale deed. Learned counsel invited my attention to the grounds taken in the appeal and the annexures thereto and submitted that the Appeal from Order deserves to be allowed. 4 On the other hand, learned counsel appearing for respondent No.1 submitted that defendant Nos. 1 to 3 i.e. vendors have not filed any written statement. It is further submitted that the defendants themselves have asked the plaintiff to remain present in the Registrar’s office on13.10.2008, that itself shows that time was not essence of contract and therefore, suit is well within limitation. It is further submitted that the notice by the plaintiff was not issued to the vendors only but it was issued to the appellants and the appellants have taken risk to purchase the suit property and further to carry out construction on the suit property. Learned counsel also invited my attention to the fact that the original vendors have not filed any reply and not denied the payment of Rs.2,00,000/-, as observed by the trial court. Denial of the appellant herein is of no use since original vendors have received payment of Rs.2.0 lacs. Learned counsel further submitted that after granting stay by the trial court, the appellants herein have carried out further construction. Learned counsel submitted the contention of the appellants that 50% construction work is carried out in 2010 is without any basis. It is further submitted that when the appellants have in utter disregard to 6 the said orders passed by the court below carried out further construction, they are not entitled for the relief claimed by them. Learned counsel also invited my attention to the provisions of Section 22 of the Specific Relief Act and submitted that in the suit which is filed for specific performance of agreement, the alliterate prayer is required to be made. Learned counsel in support of his contention placed reliance on the reported judgment in the case of Hydroclave System Corporation and others Vs. Jain Hydraulic Pvt. Limited, reported in 2003 1 Bom. C.R. 642 and the judgment of the Hon’ble Supreme Court in the case of Skyline Education Institute (India) Private Limited vs. S.L. Vaswani and another, reported in (2010) 2 SCC 142. Relying on the said judgments, counsel would submit that while exercising the appellate powers unless the court comes to the definite conclusion that the possible view is not taken by the trial court then only the appellate court can interfere in the discretionary relief granted by the trial court. The sum and substance of the argument of the counsel for the respondent is that all questions can be decided in the suit if the hearing of the suit is expedited. Obviously, passing of any interim order in this proceedings would only create confusions and make further complications in the matter, 5 I have given due consideration to the rival submissions advanced on behalf of the counsel for the parties. In my opinion, the trial court has taken into consideration all documents, which are placed 7 on behalf of the original plaintiff. So far as the point of limitation is concerned, as stated by the counsel for the respondent that it is undisputed position that the plaintiff was asked to remain present in the Registrar’s office on 13.10.2008 to execute the sale deed, therefore, the suit cannot be said to be beyond period of limitation. It is further relevant to mention that 40% construction work is carried out as per the written statement filed by the appellant, before the trial court till 16.2.2009. It is not in dispute that the stay is granted by the trial court on 26.3.2009. Therefore, assertions of the appellants that remaining construction of 60% has been carried out from 26.2.2009 to 16.3.2009 is required to be accepted cautiously. At this stage, it would not be in the interest of the parties to make comments on violation of stay granted by the trial court. Suffice it to say that humanly it is not possible to do 60% construction work from 26.2.2009 till 16.3.2009. After all, the relief of injunction is discretionary relief and in the given set of facts the court has exercised its discretion on the basis of the material brought on record by the parties. Possible view has been taken by the trial court. 6 Taking into consideration over all facts and circumstances of the matter and the findings recorded by the trial court, in my opinion, any interference in the order passed by the trial court, would only create confusion and further complications in the matter. The counsel for the 8 respondent submits that there is violation of the stay order passed by the trial court and on the other hand, counsel for the appellant submits that there is no violation of the stay granted by the court below. On the strength of the material placed on record, it is difficult to conclude that there is no violation of the stay order granted by the trial court. The possible view has been taken by the trial court. In my opinion, there is no case made out for interference in the impugned order. Appeal from Order is therefore, dismissed. However, the trial court is directed to expedite the hearing of the suit and dispose of the same within a period of four months from today and send compliance report to this court. With these observations, Appeal from Order stands dismissed. 7 In view of dismissal of Appeal From Order, nothing remains to be decided in t civil application Nos. 898 of 2010 and 14110 of 2010, the same are disposed of as infructuous. Ad-interim relief, if any, stands vacated. 8 It is made clear that the trial court should not get influenced by any observations made in this order and decide the suit on its own merits. All questions are left open to the parties concerned, to be agitated before the trial court. ( S. S. SHINDE. J.) rlj/ 9