1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.159 OF 1992 IN WRIT PETITION NO.3546 OF 1990 Amruta Tukaram Patil .... Appellant. V/s Shri Tukaram Chandrappa Mane, since deceased by his heris:- 1A) Shri Deepak Tukaram Mane and Ors. ..... Respondents. ----- Mr. A.Y. Sakhare i/b YKS Legal for the appellant. Mr. S.L. Kapse Respondent Nos.1A to 1C. ----- CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATE : 24th January, 2008. P.C.: 1. The appellant challenges the judgment and order passed by the learned Single Judge of this Court dated 22/08/1991 in Writ Petition No.3546 of 1991, whereby, the Writ Petition was dismissed and the order passed by the Co-operative Appellate Court dated 12/07/1990 was confirmed. 2. Brief facts, in nutshell, are as under:- 3. The appellant is an ex-serviceman and the respondent No.2 is the Co-operative Housing Society registered under the provisions of 2 Maharashtra State Co-operative Housing Finance Society Act, 1960. The suit property in question is a plot vide plot No.107, admeasuring 5,400 sq.ft. The Government of Maharashtra had given the land to the respondent No.2 - Society on lease for a period of 99 years and the plot in question is one of the plots in the said land. The said Plot No.107 was allotted to Tukaram Chandrappa Mane - respondent No.1 herein. The said respondent No.1 constructed the premises on the said plot, admeasuring 10’ X 24’. He has also raised loan from the Maharashtra State Co-operative Housing Finance Society Ltd. for construction on said plot. Since he was unable to repay the said loan, he agreed to transfer the said plot to the appellant with the consent of respondent No.2 - Society on the condition that the appellant would repay the loan to the said Society. Accordingly, the appellant accepted the condition and repaid the loan and further paid an additional amount of Rs 3000/- to respondent No.1 on 30/06/1981. The loan of the respondent No.1 was also paid on 29/06/1981. The appellant also obtained the requisite permission from the Urban Land Ceiling Authorities. However, before the formalities could be completed, respondent No.1 informed the Society not to transfer the plot in favour of the appellant. The Society, therefore, declined to transfer the plot in the name of the appellant. 4. The appellant, therefore, filed a dispute bearing C.C.S.No.222/82 for specific performance and perpetual injunction in the Co-operative Court, Kolhapur. The respondents filed their Written Statement. The Co-operative Court passed an award in favour of the appellant by its judgment and order dated 13/03/1989, directing the 3 appellant to pay the remaining amount within two months from the date of the order with a direction to the Society to transfer the plot in favour of the appellant. 5. Being aggrieved by the judgment and order passed by the Co- operative Court, the respondent No.1 preferred an appeal vide appeal No.221 of 1989. The appellate Court, however, set aside the order passed by the Co-operative Court and directed the respondent No.1 to pay the amount of Rs 14,353.33 alongwith interest @ 16% p.a. from 30/06/1981 till the realisation of the amount. Being aggrieved by the aforesaid order, the appellant preferred Writ Petition in this Court which was dismissed in limine by the learned Single Judge. 6. The learned Counsel appearing on behalf of the appellant submitted that no reasons were assigned by the learned Single Judge while dismissing the Writ Petition and the Petition was dismissed only by stating that it was rejected. He submitted that the appellate Court was not justified in setting aside the award passed by the Co-operative Court. He submitted that the appellant was entitled to the order of specific performance and perpetual injunction in view of the fact that he had shown his readiness and willingness to pay the entire amount and that the respondent No.1 had no apparent reason to rescind from the contract and had not completed his end of the bargain. 7. The submissions made by the learned Counsel appearing on behalf of the appellant cannot be accepted. It has to be borne in mind that the order granting specific performance is a discretionary order 4 which can be passed by the trial court or the appellate court. It is a well settled position in law that one of the reasons why discretion should not be exercised in favour of the plaintiff is a long lapse of time from the date of the agreement and the date of the decree which is passed by the Court. In the present case, more than 20 years have passed from the date of the original agreement. The apex court, in catena of cases, has observed that the increase in land prices is one of the factors about which a judicial notice can be taken by the Court and that can be a ground for refusing to exercise discretion for granting decree of specific performance. Taking into consideration the ratio of the judgments of the Supreme Court on the said aspect, we do not see any reason to set aside the order passed by the learned Single Judge of this Court, confirming the order passed by the appellate Court. 8. Appeal is accordingly dismissed. In the circumstances, there shall be no order as to costs. 9. Since the appeal is disposed of Civil Application Nos.308/2002, 41/2003 & 42/2004 are also disposed of. (D.K. DESHMUKH, J.) (V.M. KANADE, J.) 5