Gujarat High Court
Shah Bhikhabhia Chimanlal & vs Prajapati Babubhai Ambalal Deceased ... on 7 January, 2016
Author: R.D.Kothari
Bench: R.D.Kothari
C/SA/293/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 293 of 2015
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SHAH BHIKHABHIA CHIMANLAL & 1....Appellant(s)
Versus
PRAJAPATI BABUBHAI AMBALAL DECEASED THRO LEGAL
REPRESENTATIVE....Respondent(s)
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Appearance:
MR SUNIT SHAH, ADVOCATE WITH MR UDAYAN P VYAS, ADVOCATE for
the Appellant(s) No. 1 - 2
MR JA ADESHRA, CAVEATOR for the Respondent(s) No. 1.2 - 1.6
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 07/01/2016
ORAL ORDER
1. Heard learned advocates for the parties at considerable length.
2. Two courts below have concurrently come to the conclusion and have dismissed the plaintiffs' suit for specific performance.
3. An Agreement to Sell was executed in favour of present appellants / plaintiffs on 07.02.1990. The suit land is agriculture land. Under the Agreement to Sell the purchaser was required to take up necessary steps to obtain NA permission of the suit land within six months. It was also agreed that original owner would Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Mar 16 02:28:13 IST 2016 C/SA/293/2015 ORDER also cooperate to purchaser in obtaining the NA permission. It is say of the defendants that purchaser has not obtained NA permission within stipulated time and such reference for specific period in the Agreement to Sell clearly implies that parties have agreed that time is essence of contract. Both the courts below have inter alia held that time is essence of contract and since plaintiffs have failed to obtain the NA permission within specified time and on the other hand, considering alternate relief of return of amount with interest is claimed by the plaintiffs, specific performance as prayed for by the plaintiffs was refused.
4. Learned advocate Mr. Shah for the appellants has drawn attention of the Court to the case of Rajasthan State Road Transport Corporation and another versus Bajrang Lal reported in (2014) 4 SCC 693. Attention was drawn to head note 'C' of this decision, which reads as under : "C. Civil Procedure Code. 1908 - S. 100 - Second Appeal - Finding of fact - Interference with - Perverse findings - No embargo on High Court to entertain second appeal on question of fact in exceptional circumstances where factual findings are found to be perverse - In present case findings of trial Court and first appellate court being perverse, High Court erred in not interfering."
5. Drawing attention of the Court to the record of the case, reference was made to the issue framed by the trial Court. Issue No.2 reads thus : "Whether plaintiffs prove that plaintiffs are ready and willing to perform their part of the contract ?" It is Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Mar 16 02:28:13 IST 2016 C/SA/293/2015 ORDER answered in negative. Then Question No.3 "Whether plaintiffs prove that defendant is not ready and willing to perform his part of the contract ?" It is answered in affirmative. Such reply of the issue implies that either party were not ready and willing to perform their part of the contract. It was not pointed out that there is only incorrect mention in the recording the conclusion in para 7 and in the body of judgment, the court has come to some different and definite conclusion. Whereas as to the judgment of appellate court, Mr. Sunit Shah, learned advocate for the appellant has drawn attention of the Court to para 20 at page 16. Discussion of trial Court in respect of section 20 of Specific Relief Act is not prima facie satisfactory.
6. Learned advocate Mr. Adeshra appearing on caveat for the respondents has vehemently opposed the admission of appeal. It was submitted that case does not call for interference in second appeal. Strong reliance was placed on Agreement to Sell and condition Nos.2, 3 and 5. In condition No.2, it is stated that sale deed is to be executed within six months. Conditions No.3 and 5 relate to NA permission. Learned advocate also submitted that plaintiffs have not come forward with the clean hands and therefore, discretionary relief of specific performance ought not to be granted in favour of the plaintiffs and, therefore, no interference is called for.
7. Learned advocate Mr. Adeshra for the respondents has placed reliance on the decision of Naranji Makanji versus Bhagwanji Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Mar 16 02:28:13 IST 2016 C/SA/293/2015 ORDER Makanji Patel & Anr. reported in 1993 (2) GLR 1444. Learned advocate Mr.Adeshra submits that since alternate relief is claimed by the plaintiffs, courts below have rightly rejected the prayer of specific performance. In this regard, Mr. Shah, has drawn attention of the Court to the decision of Zarina siddiqui versus A. Ramalingam alias R. Amarnathan reported in (2015) 1 SCC 705 and Sebastia Luis Fernandes (dead through Lrs and Others versus K.V.P. Shastri (dead) through Lrs. And Others reported in (2013) 15 SCC 161.
8. Learned advocate Mr. Adeshra also submitted that plaintiffs have never paid 80% of the sale price as stipulated in Agreement to Sell and such conduct of the plaintiffs has also weighed with the trial Court.
9. Very broadly saying in the matter of purchase of immovable property, time cannot be considered as a essence of contract. There may be exceptions. In the present case, prima facie, it appears that emphasis was on obtaining NA permission within six months. However, there is also stipulation in Agreement to Sell itself that in case the plaintiffs fail to obtain such permission, the plaintiffs would pay 80% of the agreed sale price and would get the possession of agriculture land. Such alternate provision reduced the rigor of six months period considerably. Beside that, it was also pointed out permission of AUDA is obtained by the plaintiffs. Relevant documents in this regard at Exh.71 and 72. As to the submission that plaintiffs have not come forward with clean hands, Page 4 of 5 HC-NIC Page 4 of 5 Created On Wed Mar 16 02:28:13 IST 2016 C/SA/293/2015 ORDER there is some what inconsistency in the judgments of two courts below.
10. Beside above, it was also pointed out that defendants have not entered into witness box and they have given Power of Attorney to depose on their behalf.
11. Matter requires consideration. The appeal is ADMITTED on the following substantial questions of law : (I) Whether in the facts and circumstances of the present case, the courts below have committed serious error of law in appreciating the Agreement to Sell qua the condition of execution of sale deed visavis principle that time is essence of contract ?
(II) Whether in the facts and circumstances of the present case, the courts below have committed serious error law in refusing the decree of specific performance of contract, as prayed for by the plaintiffs ?
12. With joint request, the Office is directed to notify the Second Appeal for final hearing in the week commencing from 14.03.2016. Meanwhile, record and proceedings be called for.
(R.D.KOTHARI, J.) Amar Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Mar 16 02:28:13 IST 2016