M M J NAMAZI Vs. GANI

JUDGEMENT

(1.) (ORIGINAL side appeal preferred under Order XXXVI Rule 1 of O. S. Rules read with Clause 15 of Letters Patent against the judgment and decree of this Court dated 20. 2. 2003 passed in C. S. No. 273 of 1992.)Challenge is made to a judgment of the learned Single Judge of this Court made in C. S. No. 273 of 1992 whereby a suit for specific performance on an agreement for sale was dismissed.

(2.) THE case of the appellant/plaintiff is as follows: the suit property originally belonged to the first defendant. The second defendant has been the tenant under the first defendant since 1914. On the grounds of demolition and reconstruction, the first defendant initiated eviction proceedings against the second defendant. It went upto Apex Court. In order to purchase peace, the plaintiff, who is one of the partners of the second defendant, offered to purchase the suit property. Accordingly, an agreement for sale was entered into between the parties on 1. 11. 1990 whereby the sale consideration was fixed at Rs. 13. 15 lakhs, and an advance of Rs. 1. 10 lakhs was paid that day. As per the agreement, the sale was to be completed on or before 28. 2. 1991. Though the plaintiff made further payments, he could not proceed further since the first defendant handed over only the xerox copies of the title deeds. In November 1991, the first defendant agreed to complete the sale transaction provided the plaintiff paid the enhanced consideration. It was also agreed between the parties that the sale consideration would be Rs. 14. 25 lakhs, and the time for completing the sale was extended to 31. 1. 1992. An endorsement was made on the reverse of the original agreement as to the variation of the terms. Though the time was fixed, the same was not intended to be the essence of the contract. So far, the plaintiff has paid Rs. 8 lakhs. He has been ready and willing to pay the balance. But, the first defendant did not take steps to comply with the mandatory provisions of the Income Tax Act. While the matter stood thus, the first defendant sent a letter on 25. 2. 1992, cancelling the agreement. Hence the suit for specific performance.

(3.) THE suit was resisted by the first defendant by filing a written statement stating that as per the initial agreement, a sum of Rs. 3. 05 lakhs should be paid by the plaintiff on or before 30. 11. 1990; but, it was not done by the plaintiff; that under the circumstances, the plaintiff has committed breach as he did not have funds to pay the said sum; that time was the essence of the contract since the intention of the parties was to put a quietus to the litigation; that having fully aware of the same, the plaintiff sought for further time, and extension of time was given only because he did not have the funds; that increase in sale consideration was made only as a deterrent to avoid any further delay; that the objections regarding the title of the first defendant and non-production of the title deeds have been now raised only to cover up the lack of readiness and willingness on the part of the plaintiff; that the plaintiff was also aware that the originals were not with the first defendant; that under the circumstances, the plaintiff has committed breach; that the mere plea that the plaintiff was ready and willing will not help him in any way, and hence the suit was to be dismissed.