PARBHUBHAI DALABHAI PATEL Vs. NIRUBEN BABUBHAI DESAI

JUDGEMENT

(1.) The present Second Appeal is filed by the appellantsoriginal defendants under Section 100 read with Section 151 of the Civil Procedure Code being aggrieved and dissatisfied with the judgment and order in Regular Civil Appeal No.97/2005 by the Additional District Judge, Navsari dated 15.09.2015 dismissing the appeal and confirming the judgment and decree passed in Special Civil Suit No.66/1982 by the Civil Judge (SD), Navsari dated 12.03.1985 posing substantial questions of law as follows:

(2.) Heard learned advocate, Shri N.V. Gandhi for the appellants and learned advocate, Shri Zubin Bharda for the respondents.

(3.) Learned advocate, Shri Gandhi referred to the background of the facts and submitted that the agreement to sale was entered into between the plaintiffs and the defendants for the purchase of the land on 25.12.1979 and the defendants had agreed to sell the land subject to the rate and terms and conditions as stated in the agreement to sell. Thus the sale consideration was Rs.48,478/ was to be paid as stipulated in the agreement to sell within the period prescribed. He submitted that initially payment of Rs.2,000/ was made and further amount of Rs.5,000/ was to be paid within 15 days and entire amount of consideration was to be paid within a period of five months and the sale deed was to be executed by the defendants in favour of the plaintiffs. However, the learned advocate, Shri Gandhi referred to the papers and submitted that both the Courts below have failed to appreciate as to whether the plaintiffs were ready and willing to execute the sale deed on payment of consideration. He submitted that the agreement to sell is not a registered agreement and, therefore, it could not have been relied upon. For that purpose, he referred to Section 17 of the Registration Act. However he mainly focused on the aspect of readiness and willingness to perform his part by making payment of the consideration. Learned advocate, Shri Gandhi referred to the papers and submitted that as the plaintiffs have failed to show that he was ready and willing to perform the contract and fulfillment of his obligation, the decree for specific performance could not have been granted. He again emphasized that time is essence of the contract, which has not been considered at all. In support of his submissions, learned advocate, Shri Gandhi also referred to and relied upon Section 16(c) of the Specific Relief Act and submitted and readiness and willingness should be shown as required under Section 16(c) of the Act. He submitted that as the plaintiffs have failed to comply with the requirement of Section 16(c) of the Act for fulfillment of his obligation, the specific performance could not have been granted and, therefore, the present Second Appeal may be entertained. He further submitted that the Court may also examine the passage of time and the price escalation stating that even if the consideration which is permitted to be paid, would not be sufficient and, therefore, in equitable consideration, appropriate order may be passed. In support of his submission, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Zarina Siddiqui Vs. A. Ramalingam @ R. Amarnathan, reported in (2015) 1 SCC 705. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Aniglase Yohannan Vs. Ramlatha & Ors., reported in (2005) 7 SCC 534.