1 SA49/99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 49 OF 1999 1 Bhagwan s/o Baburao Gajre, Aged 35 years, Occupation Agriculture, Resident of Shekta, Taluka Paithan, District Aurngabad Appellants 2 Vishnu s/o Baburao Gajre, Aged 25 years, Occupation Agriculture, Resident of as above V E R S U S Sardar Basantsingh s/o Sardar Mehar Singh Bindra, Aged 67 years, Occupation Agriculture, Resident of Osmanpura, Aurangabad Respondent Shri A.M. Dabir, Advocate for the appellants Shri B.A. Darak, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 21st October, 2011 ORAL JUDGMENT : 1. This second appeal challenges the Judgment and decree dated 19th November, 1998, passed by the learned IV Additional District Judge, Aurangabad, in Regular Civil Appeal No. 304 of 1994 which arose from the Judgment and decree dated 4th October, 1995, passed in Special Civil Suit No. 446 of 1992. 2. The appellants were defendants. The respondent filed the suit for specific performance. It is common ground that the appellants executed a registered document in favour of the respondent on 20th October, 1989. As per the contents of this document, apparently the appellants agreed to sell their agricultural land admeasuring 4 acre 18 gunthas to the respondent for a price of Rs.25,000/-. The document also shows that on that day Rs. 15,000/- were paid as earnest. The document further shows that the sale 2 SA49/99 deed would be executed after two years from the date of this document. The document mentioned clearly that the possession of the land remained with the appellants. It is the case of the respondent/ plaintiff that after two years, when he approached the appellants for completing the transaction, they refused to honour their commitment, and so, after giving them legal notice in 1992, he filed this suit for specific performance. The appellants / defendants took up a stand that they never agreed to sell the suit property to the respondent though they admitted that they were party to the suit agreement. They said that the respondent played fraud and got a different document prepared. It is their case that they received Rs.7,500/- from the respondent and had agreed to give him certain share in the agricultural produce of the suit land. They further mentioned that they could not have agreed to sell this land for such a low price, because the market value of the land at that time was @ Rs.30,000/- per acre. 3. The Courts below concurrently held that the respondent had proved the agreement(Exh.33). However, the learned Judge of the trial Court held that the respondent/plaintiff could not prove that he was ready and willing to perform his part of the contract and that he could not prove that he is entitled to a decree of specific performance also. He further held that the appellants could prove that the market value of the suit land at the relevant time was Rs.30,000/- per acre. So he decreed the suit partly and directed the appellants to pay Rs.15,000/- back to the respondent with 9% simple interest. 4. The respondent/plaintiff went in appeal and the learned Judge of the first appeal Court held on facts that the respondent could prove that he was ready and willing to perform his part of the contract. He further held that the 3 SA49/99 respondent was entitled to a decree of specific performance. However, surprisingly, the learned Judge of the first appeal Court did not deal with the question, as to whether the land in question had market value @ Rs. 30,000/- per acre at the relevant time as was held by the learned Judge of the trial Court. Since this was not discussed and since the learned Judge of the first appeal Court recorded finding that this is a case even for granting decree of specific performance, I assume that the learned Judge of the first appeal Court did not agree with the finding recorded by the learned Judge of the trial Court that the market rate of the suit land at the relevant time was Rs.30,000/- per acre. 5. The original defendant came to this Court in this second appeal. My learned predecessor noticed following substantial questions law : (1) Taking into consideration the contents of Exh.33, could it be said that the learned Judge of the lower Appellate Court was justified in granting specific performance ? (2) Is it necessary in every case where the contract is proved to grant specific performance ? (3) Does Exh. 33 suggest that time was not the essence of contract ? 6. The learned counsel appearing for the appellants pointed out the finding of the lower appellate court that this a fit case for granting specific performance is baseless and so is perverse. Her pointed outthere is something more in the agreement Exh.33 which would support his case on facts and which is not discussed by the courts below. He said it throws considerable light on the nature of the transaction and the market value of the suit property at the relevant time. He pointed out that the contents of Exh. 33 which inter alia mentioned that as per the ready reckoner, market 4 SA49/99 price of the suit land on the day of execution of the agreement was Rs. 47,000/-, but the parties agreed to fix the price of the suit property at Rs. 25,000/-. There is certainly a mark difference between the ready reckoner price of the suit property and the agreed price. It is almost 50% of the ready reckoner price. The respondent while recording his evidence did not explain as to why the ready reckoner price which is generally based on the market value of the property was not adhered to when the agreement was arrived at. He ought to have proved to the satisfaction of the Court that the agreed price of Rs.25,000/- at that time was the real market price of the land and that the ready reckoner price was not realistic. This aspect of the case would certainly go against the respondent, who sought specific performance of the contract. This would further support the case of the appellants that the market value of the suit property was more than the agreed price. The learned Judge of the lower Appellate Court did not give any thought to this and other circumstances and practically recorded no reasons why he would consider that this is a fit case for grant of specific performance which is a discretionary relief. It is settled Law that it is not necessary in every case where the contract is proved, specific performance of the contract is granted. 7. The agreement (Exh.33) says that after two years the sale-deed would be executed. It was thus not a time bound contract. The facts and circumstances of the case clearly rule out the possibility of the time being essence of the contract. In any case, it was for the appellants to execute the sale deed after two years, and if the Courts below held that despite demands the appellants did not execute the sale deed as per their promise, it can said that they themselves gave up the condition laid down in the agreement for execution of the sale-deed soon after two years. 5 SA49/99 8. In view of this, I hold that the learned Judge of lower Appellate Court committed grave error in granting specific performance to the respondent. This is a case where the Court ought to have refused such relief. In the result, the judgment and order passed by the learned Judge of the trial Court is required to be revived. The appeal is partly allowed. The impugned Judgment of the lower Appellate Court is replaced with the Judgment and decree of the trial Court. ( A.V. NIRGUDE, J. ) SRM/sa/49/99/20/10/11ok