VISHAL KUMAR NEMICHAND KAKAD Vs. SHANKAR MAHADEO KUBDE

JUDGEMENT

(1.) By this Appeal under section 96 of the Code of Civil procedure, the original plaintiff challenges dismissal of his Special Civil Suit 184/1991 for specific performance by Civil Judge (Senior Division) Nagpur on 22/6/1992. Trial court found that plaintiff could not prove that the present respondent/original defendant avoided to execute sale deed in his favour and also found him not entitled to alternate relief of refund of Rs. 93,650/- (Rs. Ninety Three Thousand Six Hundred and fifty only. ) with interest at 18%. It concluded that time was essence of contract and defendant established that plaintiff failed to get sale deed executed in his favour within stipulated period and hence the agreement stood cancelled and earnest amount stood forfeited.

(2.) Plaintiff stated that he and defendant entered into an agreement on 24/2/1988 for purchase and sale of six acres of land out of total land admeasuring 11. 44 acres (4. 03 hectors) bearing Khasra No. 555, situated at Mouza Gondkhairi, P. H. No. 24, Tahsil kalmeshwar, District Nagpur. Rate agreed was Rs. 35,100/- per acre i. e. total consideration amount settled was of Rs. 2,10,600/- (Rs. Two Lakh Ten Thousand Six Hundred only). He also pointed that Rs. 5000/- were paid as earnest on 24/2/1988 and also payments made by him from time to time to defendant totaling to Rs. 50,000/ -. These basic facts are not in dispute between parties. He then stated that the land was to be demarcated after measurement on or before 15/4/1988 by defendant, but defendant failed to do so despite several requests by him. He further stated that he was ready and willing to pay the balance sale consideration but defendant avoided demarcation itself. Hence on 18/11/1988 he forwarded a legal notice/ telegram calling for execution of sale-deed and its registration. As there was no response, he forwarded another notice dated 3/4/1990 which was received back with postal endorsement

(3.) In this background I have heard Advocate Parchure for plaintiff/appellant and advocate Shingane for defendant/respondent. Their contentions in short can be stated to be thus : -Appellant/plaintiff contends that there is inconsistency in application of mind by trial Court. Having recorded a finding that plaintiff was ready and willing to perform his part of contract, conclusion that defendant did not avoid to execute sale deed or to perform his part of agreement is being assailed as contradictory one and hence unsustainable. It is argued that service of reply notice dated 22/11/1988 calling upon plaintiff to remain present before Sub-Registrar for execution of sale deed is not at all established and hence on that account, alleged failure of plaintiff to obtain sale deed could not have been inferred. Even postal receipt in proof of having delivered to Post Office envelop with said notice dated 22/11/1988 has not been placed on record. As piece of six acres was not demarcated by defendant, its sale deed could not have been executed or registered. Obligation was upon defendant to separate and demarcate said six acres portion and also to obtain necessary clearance from income tax authorities and as he failed to do so, it was fault on part of defendant and hence decree for specific performance could not have been denied by trial Court. Defendant accepted amount of Rs. 15,000/- from plaintiff on 15/4/1988 by which date the property was to be demarcated. It is further stated that plaintiff was placed in possession of suit property and he paid substantial amount to defendant and was waiting for defendant to take steps to demarcate the property after having informed him of his obligations under the agreement. Defendant did not forward any reply and having waited for reasonable period, plaintiff issued him another notice which came to be refused and hence he filed suit. Advocate Parchure states that time was never the essence of contract and finding to that effect delivered by Court below is perverse. Burden has been wrongly shifted upon plaintiff and in law, defendant being owner, has to obtain income tax clearance. It is contended that there was no clause for forfeiture of earnest and still earnest money has been forfeited. It is further argued that there was even no notice of repudiation of agreement by defendant to plaintiff. Respondent defendant states that if plaintiff was in possession, he could have got the property demarcated if there was no demarcation. It is contended that demarcation was done on 15/4/1988 itself and as plaintiff had no funds with him, he avoided to get sale deed executed. It is pointed out that plaintiff has paid Rs. 15,000/- as per agreement to defendant on said date. Advocate Shingane states that issuance of reply notice dated 22/11/1988 is accepted by court below and same is not perverse. Even otherwise defendant had personally gone on morning of 24/11/1988 to the residence of plaintiff informing him to come to the office of Sub-Registrar for getting sale deed executed. He further states that plaintiff did not take any steps either to get property demarcated or enabling/calling upon defendant to obtain any clearance certificate from income tax department. Notice allegedly sent on 3/4/1990 was not tendered to defendant at all and its refusal by defendant has not been established. Suit has not been filed with due diligence. Learned Advocate argues that alleged justification evolved by plaintiff is by way of afterthought and trial Court has correctly concluded that time was essence of contract.