KAMALABAI CHINNASWAMI Vs. D VIRA AND COMPANY

JUDGEMENT

(1.) THIS is an appeal preferred by the Original Defendants against the Judgment and order dated 22nd October 1986 passed by the Joint Civil Judge, Senior Division, Pune in a suit being Special Civil Suit No.312 of 1984 for specific performance, filed by the Respondent-Plaintiff. The trial Court granted the decree for specific performance and hence the present appeal by the original defendants.

(2.) BRIEFLY stated the facts giving rise to the present appeal are as follows :- The appellants being the owners of immovable property admeasuring 1000 sq.mts. being Eastern portion of the Final Plot No.160 of Town Planning Scheme No.1 of Lonawala and being part of R.S.No.114, Hissa No.1 of village Tungarli, Taluka Maval, Dist.Pune, entered into an agreement for sale on 26th April 1981 with the Respondent. The Respondent is a partnership firm carrying on business as builders. Some of the material terms of the agreement for sale were : That the total consideration was agreed to Rs.50,000/-, out of which Rs.5,000/- were to be paid and were paid as earnest on the date of the execution; that the transaction was to be completed within a period of 3 months from the date of execution; that if the transaction was not completed due to any default on the part of the purchaser, the earnest money of Rs.5,000/- paid to the Appellants was to he forfeited; that the Appellants were supposed to remove hutments at their own expenses from the portion agreed to be sold prior to completion of sale. It was also agreed that the application for sub-division of the plot would be made by the Appellants. The completion of the transaction pre-supposed obviously that the Appellants would make out a marketable title in respect of the suit land. On 4th September 1981, an application was made by the Appellants to the Lonawala Municipal Council and on 17th November 1981 permission was granted by the said Council for sub-division. From 1981 admittedly not a single letter has been addressed by the Respondent-purchaser to the Appellants. It is the Appellants' case that despite their being ready and willing to complete the transaction, it was the Respondents-plaintiff who failed to do so and, therefore, on 7th March 1984, the Appellants agreed to sell the whole land to third parties. On 30th March 1984, the Appellants by their Advocate's notice addressed to the Respondent, terminated the agreement. On 20th April 1984 a public notice was given by the Appellants in Marathi Daily "Prabhat" of Pune in respect of their intention to enter into a fresh agreement with a third party. The present suit being Special Civil Suit No.312 of 1984 was filed by the Respondent only on 7th June 1984 praying for specific performance of the agreement for sale dated 26th April 1981, alternatively for damages and return of earnest. On 23rd August 1985, the order of injunction was granted, against the Appellants by the trial Court by which time, the construction which had started much prior to the filing of the suit, had reached second slab. Thereafter the construction had stopped. The Appellants through their Constituted Attorney, filed Written Statement denying the claim of the Respondent. On the basis of the pleadings, relevant issues were raised by the trial Court. The material issues for our consideration, thus would be, whether there was an agreement for sale between the parties, whether the Respondent-Plaintiff was ready and willing to perform his part of the contract and if so, whether the relief for specific performance should be granted.

(3.) THE Respondent, after entering into the agreement for sale on 26th April 1981, has not addressed a single letter calling upon the Appellants to complete the proposed action. THE agreement for sale, inter alia stipulated that the sale was to be completed within a period of 3 months. However, no demand whatsoever was made even on expiry of three months or even before filing of the suit. THEre is not a single letter on record. It is true that in a transaction of sale of immovable property, time is never of an essense. However to see whether the purchaser was ready and willing to perform his part of the contract, his conduct has to be acrutinised. Apart from admittedly paying Rs.5,000/- as an earnest, there is not a single act performed by the Respondent towards the completion of the transaction. THE plaintiff-Respondent is significantly silent as to what happened between the date of agreement of sale i.e. 26th April 1981 and the date on which the notice dated 30th March 1984 was received from the Appellants' Advocate. It was stated across the bar that oral negotiations were taking place between the parties and oral demands were made by the Respondent on the Appellants, but we do not take any cognizance of such statements made across the bar in the abrenue of any evidence. In the evidence, there is nothing to support the statement made across the bar. THE partner of the Respondent who enteral the witness box has remained totally silent on this aspect. It was the responsibility of the Appellants to make out a marketable title. At the same time it is normally the anxiety of the purchaser to see that such obligations are carried out by the Vendor. THEre is not a single letter addressed, nor any averment made by the Respondent in the plaint that they had investigated the title and that they had found it marketable. No demand whatsoever is made. Not only that, the public notice given in the newspaper is also totally ignored by the Respondent. On the other hand, the Appellants did not only apply for the sub-division of the property to the Lonawala Municipal Council, but ultimately obtained permission also. Moreover, the Appellants waited for the said transaction to be completed right from 1981 to 1984 and only realising that the Respondent was not ready and willing, that they terminated the contract.