SHANKARLAL BIJREJA Vs. ASHOK B AHUJA

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 28th July, 2007 passed by IXth Additional District Judge (FTC), Raipur in Civil Suit No. 45 -A/2004 dismissing the suit filed by the Appellant/Plaintiff for specific performance of the contract and permanent prohibitory injunction against the Respondents/ Defendants, the Appellant has filed this appeal under Section 96 of the Code of Civil Procedure.

(2.) Facts giving rise to this appeal briefly are as follows:

(3.) Shri B. P. Sharma, learned Counsel for the Appellant would contend that in case of sale of immovable property, time is never regarded as essence of contract; the Respondent himself extended the period of limitation by 31st December, 2003; also received consideration amount in part after execution of agreement and before filing of the suit in the form of three cheques amounting to Rs. 4,30,000/-, the Respondent is guilty of not performing his part of contractual obligation i.e. of delivering of vacant possession of the premises before the registration, tenants were in occupation of the premises even after filing of the suit and the Plaintiff cannot be expected to purchase the property against the terms of the contract and with the burden which may amount to purchase of litigation with the tenants. Learned trial Court has failed to consider the evidence in its proper perspective inasmuch as the Appellant has already deposited Rs. 14 lacs out of Rs. 24 lacs and showed his readiness and willingness to perform his part of the contract and it was the Respondent who were not ready and willing to execute the sale deed even after receiving huge amount of Rs. 14 lacs as part consideration amount. The conduct of the Respondent was inequitable and is relevant in a case relating to specific performance of contract. For this, reliance has been placed on the judgments of Supreme Court in case of Balasaheb Dayandeo Naik (dead) through L.Rs. v. Appasaheb Dattatraya Pawar, 2008 4 SCC 464; Silvey v. Arun Varghese, 2008 11 SCC 45; Swarnam Ramachandran (Smt.) v. Aravacode Chakungal Jayapalan, 2004 8 SCC 689, Chand Rani (Smt.) (Dead) by L.Rs. v. Kamal Rani (Smt.) (Dead) by L.Rs., 1993 1 SCC 519; Aloka Bose v. Parmatma Devi, 2009 2 SCC 582.