HEMANT M DESHMUKH Vs. DIWAKAR DADAJI MICHKIN

JUDGEMENT

(1.) This is an appeal preferred by the appellant challenging the judgment and decree dated 27-1-1994 passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 486 of 1991 whereby the suit filed by the appellant for specific performance of the agreement came to be dismissed.

(2.) The brief facts of the case are as follows :

(3.) The respondent filed his written statement and disputed the contentions raised by the appellants. It was the case of the respondent that the conditions stipulated in the said agreement were not complied with by the appellants and as time was the essence of the contract, he called upon the appellants to execute the sale deed which the appellants had defaulted. The respondent did not dispute that the appellants had paid a sum of Rs. 1,25,000/- towards the earnest money. It was further the case of the respondent that it was specifically agreed that a sum of Rs. 1,00,000/- would be paid within the time specified in the agreement which the appellants had defaulted by paying only a sum of Rs. 75,000/-. The contention of the respondent that he had defaulted in complying with the stipulation in the agreement was expressly denied. It was further the contention of the respondent that the obligation to perform the said conditions were upon the appellants. It was further the contention of the respondent that the appellants were non agriculturists and it was incumbent upon them to take permission from the Collector, Nagpur to purchase an agricultural land as per the provisions of section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. But, until 20-6-1991, the appellants did not move the said Authority for grant of such permission. It is further the case of the respondent that the appellants never approached the Sub Divisional Officer for getting permission for the land nor the appellants sought any assistance from the respondent for obtaining such permission. Despite of reminders to obtain such permission, the appellants never moved the Authorities for obtaining said permission. With regard to the contention that No objection Certificate was to be obtained from the Income Tax Department, it is the case of the respondent that no such No Objection Certificate was required. It is further the case of the respondent that though the respondent was always ready and willing to perform his part of the contract, the defaults in complying with the essential terms of agreement were squarely upon the appellants. It was further the case of the respondent that the land was to be measured at the instance of the appellants which the appellants unilaterally and arbitrarily get measured by the Architect. It is further the contention of the respondent that despite of the notice served on the appellants dated 18-6-1991, the appellants refused to perform their part of the contract by falsely contending that Clauses 7, 8 and 9 had not been complied with by the respondent. It was further the contention of the respondent that the appellants had committed breach of the agreement and the appellants had committed the breaches of the terms of the agreement and were not prepared to get the sale deed executed by raising false contentions. The respondent further stated that the appellants are not entitled for any relief on account of default committed by the appellants and as such prayed that the suit deserves to be dismissed.