DHARAMBIR PRASAD Vs. DEVENDER GOPE

JUDGEMENT

(1.) Heard the learned Counsel for the appellants and learned Counsel for the Respondent.

(2.) The instant First appeal has been filed on behalf of the appellant against the judgment dated 28.4.2005 and decree dated 16.5.2005 passed by Sri Shiv Pujan Tiwary, Subordinate Judge-II in Title Suit No. 20 of 1996 by which judgment the suit filed by the plaintiff-appellant for specific performance of the contract dated 10.1.1996 was dismissed on contest with cost.

(3.) It is submitted by learned Counsel for the appellant that the learned trial court has committed an error of law and fact in giving a finding while deciding issue No. 4 that the time was the essence of contract and since, the plaintiff failed to deposit the money as per the contract of sale, hence as per the contract they have lost the right to get the sale deed executed and have forfeited their earnest money. It is submitted that the plaintiff has proved by its documents that he was always ready and willing to perform his part of the contract and it is the defendant-respondent, who have failed in keeping their promise. Learned Counsel for the plaintiff has relied upon the judgment of the Supreme Court reported in ", A.I.R. 2000 SCC 2408 in the case of Motilal Jain", "where it has been settled that the time is generally not the essence of contract in sale and there is no delay in asking for execution of sale even after 9 months". He also relied upon a judgment in a case reported in " in the case of Balasaheb Dayandeo Naik and Ors. v. Appasaheb Datatraya Pawar,2008 AIR(SC) 304".