1 SA 835.2005 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 835 OF 2005 _____________________________________________________________ Office Notes, Office | Memoranda of Coram, Court's or Judge's orders appearances, Court's | orders or directions and Registrar's orders | Mr. G.V.Wani, Advocate for the appellant. Mr. U.S. Malte, Advocate for resp. no. 1. .................. CORAM : S.V.GANGAPURWALA, J. DATE : 23/12/2010 PER COURT : 1. This is defendant’s Second Appeal. 2. The Suit for specific performance of contract filed by the present respondent/original plaintiff came to be decreed. The defendant preferred Appeal. The appellate Court dismissed Appeal confirming the Judgment and Decree passed by the trial Court. The defendant has assailed the same in the present Second Appeal. 3. Mr. G.V.Wani, learned counsel for the appellant contended that the Courts below have not properly construed Section 55 of the Indian Contract Act in as much as going through the recital of the agreement, the same shows that time was made essential ingredient of the 2 SA 835.2005 contract. According to the learned counsel, this is the only house belonging to the appellant and even as per Section 20 of the Specific Relief Act, the Courts below erred in granting decree for specific performance. 4. Per contra, Mr. Malte, learned counsel states that both the Courts on appreciation of evidence have arrived at just conclusion. The discretion in granting the relief of specific performance has already been exercised and there is no reason to interfere with the same. 5. With the assistance of the learned counsel, I have gone through the Judgments. 6. It is trite law that in a transaction of immovable property, time is never presumed to be essence of contract. The fact that the various agreements were entered itself negates the theory of the appellant that time was an essence of contract. Taking into account this aspect, the Judgments passed by the Courts can not be said to be erroneous. 7. The relief of specific performance is no doubt discretionery relief, but it is also equitable relief. Inflation is the order of the day. The record shows that the appellant is an old person and has no source of income. Mr. Malte, learned counsel states that the remaining amount of Rs. 13,000/- has been deposited by the plaintiff in the year 1998 itself. However, to 3 SA 835.2005 adjust the equities, I hereby direct the plaintiff to deposit the amount of Rs. 10,000/- more within fifteen ( 15 ) days and the present appellant on receipt of Rs. 10,000/- shall execute the sale deed in favour of the plaintiff. Failure on the part of the defendant to execute the sale deed, the plaintiff shall be entitled to get it executed through Court. The present Second Appeal is disposed of with above observations. 8. Rest of the decree passed by the trial Court is kept intact. [ S.V.GANGAPURWALA ] JUDGE knp/SA 835.2005