(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 13/2011. Vimal Ramdas Tandale VERSUS Bhaskar Sharadchandra Kamone ________________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. CORAM : R. M. SAVANT, J. DATED : FEBRUARY 09, 2011. Heard Shri D.V. Chauhan, the learned Counsel for the appellant. This Appeal takes exception to the judgment and decree dated 30.09.2010 passed in Regular Civil Appeal No. 49/2008, by which the decree passed by the learned Trial Court of specific performance, came to be confirmed. The appellant herein is the original defendant and the respondent herein is the original plaintiff. The plaintiff had filed a suit for specific performance of the agreement dated 01.11.1999, by which (2) the defendant had agreed to sell the suit property which is a shop block, to the plaintiff. The consideration fixed was Rs. 1,40,000/-, out of which Rs. 45,000/- was paid by the plaintiff at the time of the agreement and Rs. 95,000/- was to be paid at the time of registration of the sale deed. The covenant in the sale-deed stipulated that the sale-deed was to be executed within a period of 6 months. The record discloses that the plaintiff issued notice to the respondent on 20.04.2000 asking the defendant to remain present in the office of the Sub- Registrar to execute the sale deed by accepting the remaining balance amount of Rs. 95,000/-. The defendant replied to the said notice and agreed to remain present. Both of them were accordingly present before the Sub- Registrar, however, the document could not be registered on the purported ground that the no objection certificate from Nagpur Improvement Trust (NIT) was required for such registration. Thereafter though called upon the defendant did not reciprocate the plaintiff’s readiness and willingness to comply with her part of the agreement. This resulted in the plaintiff filing a suit for specific performance of the said agreement for sale dated 01.11.1999. (3) The trial Court on appreciation of the evidence on record, inter-alia recorded a finding that time was not the essence of contract and the readiness and willingness of the plaintiff was borne out by the material on record, whereas the intransigence of the defendant was writ large on the record. The trial Court resultantly decreed the suit. Aggrieved by the said decreeing of the suit, the defendant filed Regular Civil Appeal being Regular Civil Appeal No. 49/2008. The Appellate Court confirmed the findings of the trial Court on the aspect of time being not the essence of the contract as well as on the aspect of readiness and willingness of the plaintiff. The Appellate Court considering the aspect of the correspondence enforced into by the plaintiff with the Nagpur Improvement Trust had noted that though the correspondence related to a period after the six month period was over, however, taking into consideration the said correspondence, the First Appellate Court observed that the Sub-Registrar might have not allowed the document to be registered, on the ground that the No objection certificate of the Nagpur Improvement Trust was not obtained. (4) Both the Courts below have also taken into consideration that fact that the defendant in turn, in her cross examination has stated that she had not obtained the no objection certificate from the Nagpur Improvement Trust, as she did not want to execute the sale-deed in favour of the plaintiff. Both the Courts below, therefore, have concurrently held on the question of time being not the essence of the contract as well as the readiness and willingness of the plaintiff, against the defendant. The reliance of the learned Counsel for the Appellant on the judgment of the Hon'ble Apex Court reported in AIR 2010 SC 577 in the matter of A.K. Laxmipathy and others .vrs. R.S. Pannalal H. Lahoti Charitable Trust, is misplaced in the facts of the instant case. In the instant case it is specifically stated by the defendant in her cross examination that she did not obtain the no objection certificate from the Nagpur Improvement Trust as she did not want to execute the sale-deed. From the said statement, two things become clear, that the no objection certificate of the Nagpur Improvement Trust was required and that the defendant was not ready and willing to perform her part of the (5) contract. In my view, therefore, the Second Appeal does not involve any substantial question of law, which is accordingly dismissed. No costs. The decree not to be acted upon for a period of four weeks from date. JUDGE Rgd