Bombay High Court
Sudhakar Baburao Dharandale vs Sunanda Narsingrao Pandge on 2 July, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:27109 908-SA-320-2025+.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.320 OF 2025
Sudhakar Baburao Dharandale ...Appellant
Versus
Sunanda Narsingrao Pandge ...Respondent
WITH
INTERIM APPLICATION NO.7886 OF 2025
IN
SECOND APPEAL NO.320 OF 2025
Digitally
signed by
ARJUN
ARJUN VITTHAL
VITTHAL KUDHEKAR
KUDHEKAR Date:
Sudhakar Baburao Dharandale ...Applicant
2025.07.06
16:11:58 Versus
+0530
Sunanda Narsingrao Pandge ...Respondent
Mr. Pankaj Purway a/w. Mr. Prajwal Bhalgat, Mr. Shubham Yadav
and Ms. Shilpa Chhetri, for the Appellant.
CORAM: MADHAV J. JAMDAR, J.
DATED : 2nd JULY 2025
JUDGMENT:
1. Heard Mr. Purway, learned Counsel appearing for the Appellant.
2. The challenge in this Second Appeal is to the Judgment and Decree dated 29th November 2021 passed by the learned 10 th Joint Civil Judge Senior Division, Pune in Regular Civil Suit No.205 of Page 1 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC 2015 as well as to the Judgment and Decree dated 22 nd January 2015 passed by the learned Principal District Judge, Pune in Regular Civil Appeal No.54 of 2022.
3. Mr. Purway, learned Counsel submitted that the following substantial questions of law arise in this Second Appeal:
(a) As the time has been made essence of the contract by Agreement of Sale dated 6th February 2012, whether the Plaintiff has complied with her part of contract within time limit?
(b) Whether the suit is maintainable in absence of challenge to the notice dated 1 st October 2012 of termination of suit agreement?
(c) Whether the findings recorded by the learned Trial Court as confirmed by the learned Appellate Court that the Plaintiff is ready and willing to perform her part of the contract are the findings recorded contrary to the evidence on record?
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(d) Whether the learned Appellate Court has given cogent reasons to reject Application under Order XLI Rule 25 of the Code of Civil Procedure, 1908 ("CPC") for framing additional issues?
4. Before considering the substantial questions of law raised by Mr. Purway, learned Counsel, it is necessary to set out certain factual aspects:
i. Registered Agreement of Sale dated 6th February 2012 was executed between the present Appellant i.e. promoter and the Respondent i.e. flat purchaser by which, the Appellant agreed to sale flat No.8, 2 nd Floor, Atharva Park, Survey No.55/2, Village-Tuljabhavani Nagar, Kharadi, Pune having carpet area of 406.25 sq.ft. The important terms and conditions of the said agreement are as follows:
(a) The consideration amount fixed was Rs.20,00,000/-.
Rs.5,00,000/- were paid at the time of execution of the agreement and balance amount of Rs.15,00,000/- was to be paid at the time of handing over possession of the suit flat.
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(b) The said amount of Rs.15,00,000/- was to be paid within a period of two months at the time of handing over possession of the suit flat. The Appellant i.e. promoter to handover No Objection Certificate ("NOC") from Rajarshi Shahu Co-operative Bank, Swargate Branch, Pune ("said bank") at the time of completion of said transaction as the Appellant had obtained loan from the said bank for the purpose of making construction on the said plot of land and for that purpose, the entire property has been mortgaged with the said bank.
(c) The said balance amount of Rs.15,00,000/- is to be paid only after receipt of said NOC from the said bank.
(d) The said construction of building and flats will be in accordance with the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construciton, Sale, Management and Transfer) Act, 1963 ("MOFA") and the MOFA will be applicable.
Page 4 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC ii. On 10th September 2012 (Exhibit-43), notice has been given by the Respondent i.e. flat purchaser to the Appellant. Paragraph Nos.3 and 4 of the said notice are very relevant, which reads as under:
ß3½ jftLVMZ djkjukek rqeps o vkeps vf'ky ;kapse/;s lnj feGdrhps O;ogkj iq.kZ dj.ksiqohZ jktJh 'kkgw lgdkjh cWd a ;kaps ukgjdr i= vk.kwu ns.ksps vkgs] rks i;Zra moZfjr jDde fnyh tk.kkj ukgh] v'kh vV Bjyh gksrh- rlk mYys[k djkjkukrhy ifjPNsn dz-1 e/;s iku ua- 6 oj ueqn dsysyh vkgs-
4½ vkeps vf'kykuah rqEgkl ns.ksps jDde :- 15]00]000@& ph rtoht d:u vkeps vf'ky rqepsdMs vusdosGk ;sÅu lnj cWadsps ukgjdr i= n;k o moZfjr jDde :- 15]00]000@& ?ksÅu lnj ¶yWVpk rkck Bjysie z k.ks n;kok v'kh fouarh dsyh vlrk] rqEgh Qdr nksu fnolkar djrks] cWd a sps lkgsc HksVys ukghr] cWaddMwu vn;ki ukgjdr i= feGkys ukgh] cWadsps ukgjdr feGys dh yxsp nsrks] v'kh dkj.ks lkaxwu vkti;Zra VkGkVkG djhr vkyk vkgkrÞ-
English translation of the same is as under:
"3) It was a condition precedent that a No Objection Letter should to be obtained from Rajarshi Shahu Co-operative Bank before completing the transaction in respect of the said property, entered into between your client and my client under a Registered Agreement and that till that time, the balance amount would not be paid.
The said clause has been mentioned in Paragraph No.1, on Page No.6 of the Agreement.
4) On many occasions, my client visited you by making a provision of the sum of Rs.15,00,000/- to be paid to you and requested you to provide a No Objection Letter from the said Bank, accept the Page 5 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC balance amount of Rs.15,00,000/- and hand over possession of the said Flat, as decided. However, by giving excuses viz. I will do that within two days only, I could not meet the Bank Officer, No Objection Letter has not yet been received from the Bank, I will hand over immediately once I get a No Objection Letter from the Bank; you have been avoiding to do the same till today."
iii. Thus, the Respondent-Flat Purchaser has informed the Appellant-Promoter that the Respondent has made arrangement of said balance amount of Rs.15,00,000/-, the Respondent has approached the Appellant from time to time for completing the transaction, however, the Appellant on one pretext or the other is taking time for obtaining the NOC from the said bank and not completing the transaction. iv. On 1st October 2012 (Exhibit-46), the Appellant has issued notice to the Respondent and terminated the suit agreement dated 6th February 2012. The relevant paragraph 4 of the said notice dated 1st October 2012 is as under:
"4) mijksDr oj dye 1 e/;s o.kZu dsysY;k feGdrhps lanHkkZr cka/kdke dj.ksckcr vkeps vkf'ky jktJh 'kkgq egkjkt lgdkjh cWadsdMqu dtZ ?ksrysys vkgs lnjhy dtkZph ijrQsM >kY;kf'kok; cWd a sdMqu ukgjdr izek.ki= feGr ukgh vFkok cWda sdMqu lnj feGdrhiSdh feGdr rcnhy dj.;kl udkj fnysyk vkgs R;keqGs vkeps vf'ky djkjkrhy vVhph o 'krhZph iqrZrk d:
'kdr ukgh rlsp vkeps vf'ky lnjP;k dtZ QsMhckcrps ukgjdr izek.ki= vk.kqu ns.;kl vleFkZ vkgsr R;keqGs rqeps vf'kykacjkscj fn-
Page 6 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC 06/02/2012 jksthpk jftLVMZ djkjukek jnn gks.ks vko';d vkgs- rqeps vf'kykauh vkeps vf'kykauk jftLVMZ djkjukE;kUo;s fnysyh jDde :i;s 5,00,000/- ¼ikp yk[k QDr½ fLodk:u lnj feGdrhps jftLVMZ jnncknyi= 15 fnolkP;k eqn~rhe/;s d:u n;kos- vkeps vf'ky fnukad fn- 06/02/2012 jksthps jftLVMZ djkjukE;k vUo;s fLodkjysyh jDde :i;s 5,00,000/- ¼ikp yk[k QDr½ rqeP;k vf'kykal ns.;kl r;kj vkgsr- lnjhy jDde vkeP;k vf'kykadMqu fLodk:u vkeps vf'kykdMqu lnjps jftLVMZ djkjukE;kpk O;ogkj jnn djkok- vkeps vf'ky rwqeP;k vkf'kykal ;ksX; rh uqdlku HkjikbZ ns.;kl r;kj vkgsr- rjh ;k uksVh'khOnkjs rqeps vf'kykacjkscj oj dye 1 ;kr o.kZu dsysY;k feGdrhckcr fn- 06/02/2012 jksth >kysyk jftLVMZ djkjukek jnn djhr vkgksr ;kph let rqeps vf'kykauk n;kohÞ (Emphasis added) English translation of the same is as follows:
"4) My client has obtained a loan from Rajashri Shahu Maharaj Co-operative Bank for carrying out construction on the property, described in aforesaid Paragraph No.1. Unless the said loan is repaid, No Objection Certificate cannot be obtained from the Bank or the Bank has refused to transfer the property from out of the said property, and as a result thereof, my client is unable to comply with the terms and conditions mentioned in the agreement. Similarly, my client is unable to bring a No Objection Certificate in respect of repayment of the said loan and therefore, it is necessary to cancel the registered agreement dated 06.02.2012 that has been entered into with your client. Please accept the amount of Rs.5,00,000/- (in words - Rs. Five Lacs only) which your client had paid to my client under the registered agreement and execute a Registered Deed of Cancellation in respect of the said property within a period of 15 days. My client is ready to repay your client the amount of Rs.5,00,000/- (in words - Rs. Five Lakh only) which my client had accepted under the registered agreement on the Page 7 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC date 06.02.2012. The said amount should be accepted from my client and the transaction under the said registered agreement should be cancelled from the side of my client. My client is ready to pay an appropriate compensation amount to your client.
Therefore, kindly inform your client that by virtue of this Notice, we are cancelling the registered agreement dated 06.02.2012 in respect of the property described in Paragraph No.1 above that has been entered into with your client." v. Thus, on the ground that the Appellant is not in a position to procure the NOC from the said bank, as the Appellant is not in a position to repay the loan taken from the said bank, the said agreement is terminated. In the said notice dated 1 st October 2012, it is also mentioned that within a period of two months, the Respondent has not paid the balance amount. However, the said statement is incorrect as unless the NOC of said bank is handed over by the Appellant to the Respondent the said balace amount was not to be paid. vi. On 12th October 2012, a reply (Exhibit-47) has been sent to the Respondent stating that the contention that within two months the Respondent has failed to perform her part of the agreement is not correct as the construction of the suit flat Page 8 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC was not completed and the Appellant has failed to procure the NOC from said Bank.
vii.Thereafter also there was further correspondence between the parties.
viii. The present suit has been filed on 31 st January 2015 inter alia seeking the following reliefs:
"a] Suit of the Plaintiff may kindly be decreed.
b] Defendant may be directed to comply the statutory obligation under MOFA Act and handover the possessin of the suit property and alternatively the Defendants may kindly be ordered to execute Sale Deed in respect of the Suit Property which is more particularly described in para.(1) of the plaint in favour of the Plaintiff and hand over the possession of the suit property to plaintiff.
c] If the Defendants fails to execute the sale Deed in spite of the decree of the Hon'ble Court in that event, Court Commissioner be appointed to execute the sale Deed and to handover the possession in respect of the Suit Property in favour of the Plaintiff.
d] The Defendants, their servants, agents or anybody claiming through him kindly be restrained by an order of permanent injunction from creating any third party interest in any manner with respect to the suit property...."
(Emphasis added) Page 9 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC ix. It is relevant to note the contentions raised in the plaint and particularly, in paragraph Nos.8 and 9 of the same. The relevant part of the same, reads as under:
8. The Plaintiff submits that after the execution of the agreement to sale, the Plaintiff has arranged the remaining balance consideration and therefore approached the Defendant to get the sale deed registered in time and asked about the No Objection Certificate from the Rajarshi Shahu Bank, Swargate branch, Pune. The Defendant has informed that he will give the NOC as early as possible as the same is not given by the bank. The Plaintiff submits that the construction work was not completed within two months by the Defendant and also electricity meter was not installed in time, therefore, the Defendant informed the Plaintiff to wait for another four months from executing the sale deed and possession of the said flat.
9. The Plaintiff submits that on 27/07/2012 the electricity meter was installed upon the said flat and the posession was also handed over to the Plaintiff in the middle of August 2012 and therefore before executing the sale deed the Plaintiff has received the possession of the sid flat and put her own lock on the said flat. Even after this the Defendant was refusing to execute the registered sale deed and complete the transaction by accepting the balance consideration amount. The Plaintiff says that the Defendant has break the lock andhas taken the possession back without informing to the Plaintiff. The Plaintiff submits that the Defendant was avoiding to complete the transaction and to furnish the NOC by giving one and another reaons...."
(Emphasis added) Page 10 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC x. The learned Trial Court decreed the Suit and has held that as the Appellant i.e. original Defendant has violated the terms of the Agreement of Sale dated 6th February 2012, the Respondent i.e. the Plaintiff proved that she is ready and willing to perform her part of the contract and Plaintiff is entitled for the reliefs sought in the plaint. xi. In said Regular Civil Appeal No.54 of 2022 the Appellant filed Application bearing Exhibit-33 under Order 41 Rule 25 of CPC inter alia seeking that following issue be framed as additional issues :-
"d. Whether the defendant proves that the agreement was revoked and cancelled."
xii.Learned Appellate Court has held that the Appellant has violated the terms of the Agreement of Sale dated 6 th December 2012, the Respondent has performed or has been ready and willing to perform her part of the contract and that she is entitled for the reliefs claimed. The learned Appellate Court further held that the Appellant/Defendant is Page 11 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC not entitled for reliefs sought under Order XLI, Rule 25 of the CPC.
5. Perusal of both these Judgments i.e. of the learned Trial Court as well as of the learned Appellate Court shows that concurrent findings are recorded regarding readiness and willingness of the Plaintiff/Respondent and that it has been concurrently held that the Appellant has violated the terms and conditions of the agreement.
6. It is the main submission of Mr. Purway, learned Counsel of the Appellant that as the time is the essence of the contract, the Plaintiff has to prove readiness within the period of two months from the date of the contract, as two months period is specified in the contract for completion of the transaction. It is the further submission of Mr. Purway, learned Counsel that in any case, even the evidence on record do not show that the Plaintiff at any point of time has capacity to pay balance amount of Rs.15,00,000/-.
7. As far as the contention that time is essence of the contract, the Supreme Court in the case of Saradamani Kandappan vs. S. Page 12 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC Rajalaxmi & Ors. 1 has held that normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract.
8. As already noted herein above, as per the terms of the agreement, the Plaintiff was required to pay balance amount of Rs.15,00,000/- within a period of two months at the time of handing over possession of the suit flat by the Defendant to the Plaintiff and when the Defendant hands over the NOC from the said bank to the Plaintiff. Thus, balance payment of said amount of Rs.15,00,000/- was to be done by the Respondent within a period of two months from the date of the execution of the agreement subject to fullfillment of the following conditions by the Appellant:
(a) The Appellant shall handover possession of the subject flat to the Respondent.
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(b) The Appellant shall handover NOC of the said bank to the Respondent.
Thus, assuming that the time is the essence of the contract, the same is subject to above conditions. In any case,the terms of the contract do not indicate that the time is the essence of the contract.
9. It is an admitted position that the Defendant has failed to produce the said NOC from the said bank. It is also an admitted position that the construction of the said flat was not ready within the said period of two months. Thus, in any case, the Defendant cannot take benefit of his inability to perform his part of the contract. In fact, this is a case where the Appellant terminated the suit agreement inter alia on the ground that the Appellant is not in a position to perform his part of the contract namely that he is not able to procure the NOC from the said bank. Thus, there is no substance in the contention that time has been made essence of the contract and therefore, the Plaintiff should have been non-suited.
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10. Mr. Purway, learned Counsel, by relying on the various bank statements of the Respondent submitted that as Rs.15,00,000/- was not available in the Bank Account of the Respondent, it has to be held that the Respondent has failed to prove readiness and willingness. As far as the contention that the Respondent/Plaintiff has failed to prove the readiness and willingness, both the Courts have on the basis of the evidence on record recorded concurrent finding that the Plaintiff has proved her readiness and willingness. As far as the readiness and willingness is concerned, it is not that the Plaintiff should have shown availability of entire amount of Rs.15,00,000/- with her. Even in her notice dated 10 th September 2012 what the Plaintiff has stated that the Plaintiff has made arrangement of said amount of Rs.15,00,000/-. As against this the admitted position on record shows that Defendant is not in a position to perform his part of the contract as he has failed to produce the NOC of the said bank. Therefore, there is no substance in the contention that the Plaintiff has not proved her readiness and willingness.
11. As far as the contention that suit is not maintainable and could not have been decreed as the suit agreement has been Page 15 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC terminated by notice dated 1st October 2012 and the said termination has not been challenged in the suit, it is required to note that the reliefs sought in the plaint are that the Defendant be directed to comply with the statutory obligation under MOFA and handover the possession of the suit property and alternatively the Defendants may kindly be ordered to execute Sale Deed in respect of the suit property to the Plaintiff.
12. A learned Single Judge in the decision of Vrindavan (Borivali) Co-operative Housing Society Limited vs. Karmarkar Bros. 2 has held that the suit in that case filed by the plaintiff was not the suit simplicitor for specific performance. It is a suit to enforce the compliance with a statute. The provisions of section 12 providing a penalty for non-compliance with the statute also are relevant. Section 12 of the said Act provides that the flat owners who contravene sub-section (1) of section 12 are liable to criminal action. Section 13 also provides that a promoter who fails to comply with the provisions of this Act is liable to criminal actions. It is further held that as the non-performance is main offence, the intention of the Legislature seems to be that the parties governed 2 1982 SCC OnLine Bom 27: 1982 Mah LJ 607 Page 16 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC by the MOFA must comply with the provisions and non-compliance with the provisions has been made an offence. It has been further held that the agreement which is the basis of the suit cannot be said to be similar to one which can be the subject-matter of an ordinary contract of sale as in case of ordinary contract of sale is violated there will be only a remedy of damages or for specific performance and no such penal consequence could follow. The relevant discussion is in paragraphs 19 to 22, which reads as under:
"19. The arguments of the counsel for the respondent and the learned Government Pleader who adopted the same arguments that under section 6(xi) of the Bombay Court Fees Act the suit should be valued according to amount of consideration for conveyance, does not seem to be justified. Because, under section 6(xi) of the Bombay Court Fees Act the contract of sale ordinarily would mean a contract entered into by parties voluntarily and according to their will and pleasure without any reference to any statute. It is a contract settled by the parties inasmuch as such a contract is fully dependent on the volition of the parties. The words used in the provisions of section 6 providing the contract of sale will apply only to such a contract and the present suit is also not a suit in the sense that specific performance of only a contract is sought. The provisions of section 6(xi) of the Bombay Court Fees Act clearly show that the contract of sale as known to it, has nothing to do with statutory obligations. Therefore the suit Page 17 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC governed by section 6(xi) of the Bombay Court Fees Act is a different suit than the present one which is filed by the plaintiff. The obligations flowing from the contract of sale mentioned in section 6(xi) of the Bombay Court Fees Act are the obligations, in my opinion, restricted to a contract wherein there is no question of any compliance with any statute. Mere statutory right is not a subject-matter of such contract. Therefore the provisions of section 6(xi) are not attracted for the payment of court-fees in the present suit.
20.The present suit filed by the plaintiff is not a suit simpliciter for specific performance. It is a suit to enforce the compliance with a statute. The provisions of section 12 providing a penalty for non- compliance with the statute also are relevant. Section 12 of the said Act provides that the flat owners who contravene sub-section (1) of section 12 are liable to criminal action. Section 13 also provides that a promoter who fails to comply with the provisions of this Act is liable to criminal actions. The reason for referring this penal provision is that the intention of the Legislature seems to be that the parties governed by this Act must comply with the provisions and non- compliance with the provisions has been made an offence. From this it can be reasonably inferred that the agreement which is the basis as provided by section 4 for conveyance to be executed cannot be said to be similar to one which can be the subject- matter of an ordinary contract of sale. Because, if an ordinary contract of sale is violated there will be only a remedy of damages or for specific performance and no such penal consequence could follow.
21. Then section 16 provides that the provisions of the said Act are in addition to the provisions of Transfer of Property Act and shall take effect Page 18 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC notwithstanding anything to the contrary contained in any contract. The object of the section 16 seems to be that the provisions of this Act shall have an over-riding effect and they are in addition to the provisions already existing. Section 3 of the said Act provides the liabilities of the promoter. It is specifically mentioned that the promoter has to make full and true disclosure from the nature of the title. It is to be duly certified by an Advocate not less than 3 years standing. He has to disclose encumbrances. In clause (f) of section 3 he has to specify the date by which possession of the flat is to be handed over. By clause (g) of section 3 he has to prepare a list of flats and by clause (h) he has to state in writing the precise nature of the organisation of persons to be constituted. All these liabilities read with further obligations under sections 10, 11 and 12 go to show that the promoter is under a statutory obligation who should complete the title and pass a conveyance to the organisation named therein.
22.The position which emerges from the reading of this provision is seeking to enforce only the statutory obligations. Therefore principal relief which plaintiff is claiming relates to the performance of the obligation under the statute and such a relief being incapable of monetary valuation the valuation made by the plaintiff in this case relying on the clause 6(j) of the Court Fees Act is correct."
(Emphasis added) Thus, what has been held by a learned Single Judge is that the suit of such a nature is totally different than the ordinary suit Page 19 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC of specific performance and the suit is seeking compliance of the statutory obligation under MOFA.
13. As far as the contention that the suit agreement has been terminated by the Appellant and therefore unless the said termination was challenged the suit was not maintainable, it is very relevant to note that the said agreement was terminated for the default of the Appellant himself for failure by him to procure the NOC from said Bank. Thus, the Respondent is not responsible for the same.
14. It is settled legal position that the jurisdiction to consider the suit for specific performance is an equity jurisdiction. This is a case where the Defendant on the pretext that he is not in a position to handover the NOC of said bank, has terminated the suit agreement for his failure. In fact, the evidence on record shows that the requirement of the said bank for issuance of the NOC is payment of only Rs.5,00,000/-. The said Rs.5,00,000/- has already been paid by the Plaintiff at the time of entering into the agreement. Thus, the position on record clearly shows that all the actions of the Appellant are to avoid his statutory duty under MOFA. It is the Page 20 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC statutory duty of the promoter under MOFA to handover the possession of the flat after obtaining NOC as agreed in the agreement.
15. Thus, there is no substance in the contention that unless the termination could have been challenged, the suit is not maintainable and deserves to be dismissed on that ground.
16. As far as the substantial question that the Application filed under Order XLI, Rule 25 of the CPC seeking framing of additional issue to the effect "Whether the Defendant proves that the agreement was revoked and cancelled" has been rejected without giving proper reasons. However, in this behalf it is required to be noted that the learned Appellate Court has specifically framed point No.5 inter alia concerning the said Application. The same is discussed in detailed in paragraph No.27, which reads as under:
"27] Now, coming to the application under Order 41 Rule 25 of the CPC. I have gone through the pleading, the additional issues sought to be framed by application Exh.33 are not necessary in view of the issues framed by the trial Court. All the proposed issues are impleaded in those issues. The defendant was having an opportunity to object the issues and to file the application for amendment Page 21 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 ::: 908-SA-320-2025+.DOC and alteration, no such steps were taken in the Trial Court. So I am of the view that the issues framed by the trial Court includes all the issues sought by the defendant in this application. Those are not necessary to decide the suit on merit. Therefore, the application Exh.33 is rejected. "
(Emphasis added) Thus, it has been observed that issues framed by the learned Trial Court includes the issue sought to be framed by the Appellant-Defendant as additional issues at the appellate stage. Perusal of the record shows that the contention raised even concerning said additional issue are considered by the learned Trial Court and learned Appellate Court. In any case, Suit filed is mainly seeking performance of the statutory duty by the Appellant- Defendant (Promoter) under MOFA. Thus, there is no substance in the said substantial question of law.
17. Thus, for the above reasons and in the facts and circumstances of this case, there is no substance in any of the substantial questions of law raised by the Appellant.
18. Accordingly, the Second Appeal is dismissed, however, with no order as to costs.
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19. In view of the dismissal of the Second Appeal, nothing survives in the Interim Application and the same is also dismissed.
20. At this stage, Mr. Purway, learned Counsel seeks stay of this order. However, in the facts and circumstances and as the Appellant has failed to perform his statutory duty under MOFA, the said prayer is rejected.
[MADHAV J. JAMDAR, J.] Page 23 Sonali ::: Uploaded on - 06/07/2025 ::: Downloaded on - 12/07/2025 07:28:24 :::