1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. First Appeal No.385 of 2009 [M/s. Rajat Housing Agency Society Vs. Shri Kanhaiyalal Ramasare Sonkar] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. P.K. Mishra, Adv., for the appellant. Mr. S.T. Dhurvey, Adv., for the respondent. ----- CORAM : A.H. JOSHI,J. DATE : 09th July, 2009. 1. This is an appeal by unsuccessful defendant. 2. Heard learned Adv. Mr. P.K. Mishra for the appellant and learned Adv. Mr. S.T. Dhurvey for the respondent sole. Perused the impugned Judgment, pleadings and copies of notice, reply and oral evidence of parties tendered for perusal by the parties. 3. Plaintiff had sued for specific performance of Agreement of Sale of a residential plot in a proposed un-sanctioned layout. 4. Agreed price, as disclosed in the 2 Agreement of Sale, is Rs.5,67,000-00, while by way of earnest money, a sum of Rs.1,00,000/- was paid by cash and Rs.50,000/- by cheque. 5. Receipt of earnest money, which is around thirty per cent of agreed consideration, is not in dispute. 6. Agreement of Sale prescribed two conditions, namely:- [a] The plot area of said Plot No. 122, which is 1800 sq.ft., shall be measured by the vendor, and if area varies, amount payable shall vary upon actual area soon after measurement. [b] Payment of balance consideration would be made within three months, and sale- deed shall be got executed. 7. Though agreement stipulates the payment by plaintiff within three months, the eventuality of payment had to occur only after Plot No.122 is got measured by the defendant, and it informs the plaintiff about exact area of plot found after measurement. 8. The three months time limit would, therefore, operate from the date when the 3 defendant applies for performance. Trial Court, therefore, rightly held that the time was not the essence of contract. 9. The defendant even now did not demonstrate that the plot was measured, area was ascertained, and this compliance was reported to the plaintiff. 10. It is clear from the Agreement of Sale that the party to contract, who was required to apply for performance , was the defendant. 11. The order of performance required the defendant to apply first, and then plaintiff to perform his part. This position is clear from facts noted in foregoing paras and Section 52 of Indian Contract Act, 1872. 12. Learned Trial Judge held that plaintiff was entitled for the decree for specific performance, and ruled against the defendant on the point of Defendant s plea of breach on the part of plaintiff. 13. Trial Court has, thus, rightly found all issues in favour of plaintiff. 14. Therefore, any arguable question of fact and/or law does not arise in the case. 15. Just because Defendant does not want to 4 perform its promise, and law provides for a right of appeal, does not mean that every appeal be entertained for final disposal. 16. Scrutiny done by this Court is adequate appellate supervision and, therefore, no further indulgence is warranted. 17. In the circumstances, appeal is dismissed being without merit. Judge |Hedau| 5