HUSENABIBI AMIRBHAI YASINBHAI Vs. ABDULMIYA KASAMMIYA KURESHI

JUDGEMENT

(1.) By filing this Appeal under Section 96 of the Civil Procedure Code, the appellants have challenged the judgement and decree of of the learned Judge, City Civil Court, Ahmedabad dated 15-2-1994 passed in Civil Suit No.3399/1985. By the aforesaid judgement and decree, the learned trial Judge has dismissed the suit filed by the appellants " plaintiffs for getting decree for specific performance of the suit agreement. It is the case of the plaintiffs that there is a property belonging to the defendants no.1 to 3, which is situated in Dariapur Ward No.1 in Bukhara Mohalla, description of which is given in para 1 of the plaint. The plaintiffs were occupying first floor in the suit house as tenants. The said tenanted portion is having Municipal Census no.2724/1 and 2724/2. It is the case of the plaintiffs that they were occupying the aforesaid portion as a tenant of defendant nos.1 to 3. It is the case of the plaintiffs that defendants no.1 to 3 wanted to sell the suit property and, therefore, they executed an agreement to sell in favour of the plaintiffs on 28-5-1982 and earnest money of Rs.2,800/- was paid by the plaintiffs to said defendants No.1 to 3. As per the case of the plaintiffs, total consideration was fixed at Rs.28,000/- and the said Banakhat was also got registered and sale deed was to be executed within six months. The defendants No.1 to 3 were supposed to get the property marketable by getting title clearance within the aforesaid period. The property was also required to be cleared from the ULC Authority within a period of six months from the date of agreement to sell and necessary permissions were also required to be taken by defendants No.1 to 3 from the ULC authority. After getting such permission from the ULC authority, sale deed was to be executed within a period of 90 days by defendants no.1 to 3.

(2.) It is the case of the plaintiffs that defendants no.1 to 3 have failed to satisfy the plaintiffs about the title clearance of the property. Thereafter, the plaintiffs gave a notice to defendants no.1 to 3 on 21-12-1982 asking them to inform the plaintiffs whether the title of the property is clear and marketable and whether it is free from all encumbrances and if it is so, to execute the sale deed in favour of the plaintiffs. As per the averments made in paragraph 5 of the plaint, said notice was received by defendants no.1 to 3 on 24-12-1982. As per the averments made in paragraph 6 of the plaint, defendants no.1 to 3 sent a notice dated 20-12-1982, which was received by the plaintiffs on 27-12-1982, whereby defendants no.1 to 3 pointed out to the plaintiffs that Banakhat in question is cancelled. Thereafter, defendants no.1 to 3 sent a letter of attornment dated 3-1-1983 informing the plaintiffs that the property in question is sold to defendant no.4. As the defendants no.1 to 3 have not executed the sale deed in favour of the plaintiffs, the plaintiffs filed aforesaid suit for specific performance of agreement to sell dated 28-5-1982. The plaintiffs have asked for declaration to the effect that the sale deed executed by defendants no.1 to 3 in favour of defendant no.4 dated 3-1-1983 may be held to be illegal and not binding to the plaintiffs and it was also prayed that a decree may be granted asking defendants no. 1 to 3 to act as per the agreement dated 28-5-1982 and for directing defendants no.1 to 3 to execute sale deed in favour of the plaintiffs in connection with agreement to sell dated 28-5-1982.

(3.) The said suit was resisted by defendants. So far as defendants no.1 to 3 are concerned, they have filed their written statement at Exh.28 contending, inter alia, that the plaintiffs were not ready and willing to perform their part of the contract and the time was essence of the contract. It is also contended that though necessary documents were shown to the plaintiffs with regard to title clearance of the suit property, the plaintiffs have never tried to pay the remaining consideration and, because of that the Banakhat in question was cancelled by said defendants, therefore, suit was required to be dismissed. It is the say of the said defendants in their written statement that the plaintiffs were never ready and willing to perform their part of the contract and even though the plaintiffs were informed by letter dated 14-6-1982 that it is not necessary to take permission under the ULC Act, yet the plaintiffs have not taken any steps for paying the remaining amount. On this and other such grounds, the suit is resisted by the original owners, defendants no.1 to 3.