POPATLAL MANISHANKAR PANDYA Vs. NANALAL NAGARDAS VORA

JUDGEMENT

(1.) THE appellant -defendant Popatlal Manishankar Pandya has challenged in this appeal a decree for specific performance of a contract dated 4th August. 1977 (Ex. 42) passed by the Civil Judge, Senior Division, Amravati on 8th January, 1982 in Special Civil Suit No. 1 of 1978.

(2.) THE challenge mainly rests on three grounds. In the first place the learned counsel for the appellant, who took us through the record, contended that having regard to the stipulations in the contract, the conduct of the parties and the circumstances of the case, the time was essence of the contract. In the second place, it was contended that the conduct of the respondent -plaintiff Nanalal in making a false contention as regards payment of earnest money of Rs. 2,000/ - on 25th November, 1977 to the appellant -defendant showed that he did not come with clean hands and thirdly, that the entire conduct of the respondent -plaintiff from the beginning of the contract till the stipulated date and even thereafter showed that he was not ready and willing to perform his part of the contract for want of sufficient funds, and, therefore, the learned trial Court was not justified in granting to him the discretionary relief of specific performance of the contract dated 4th August, 1977 (Ex.42).

(3.) THE respondent -plaintiff Nanalal owns a shop of utensils just adjacent to the defendant's shop to its West. The parties were on extremely cordial relations with each other, used to borrow money from each other in times of need and the appellant -defendant also allowed the user of a telephone to the respondent -plaintiff. A number of shops of utensils sprang up around the suit shop premises which affected the business of the appellant -defendant, who decided to dispose of the shop premises. As the respondent -plaintiff Nanalal was engaged in the business of selling utensils, he contacted the defendant on knowing about his intention and the contract (Ex. 42) came into being.