SECOND APPEAL 627 of 2014 on 22 May 1986

ORAL JUDGMENT :

1. Heard Mr. C.R.Deshpande, learned counsel for the appellant and Mr. N.B.Khandare, learned counsel for the respondent at length.

2. Second Appeal No. 627 of 2014 is preferred by the original plaintiff, whereby his claim for specific performance is dismissed by the Courts below. Second Appeal No. 628 of 2014 is also preferred by the original plaintiff, by which the counter claim set out by the respondent herein – DEFENDANT for cancellation of registered agreement of sale dated 22/05/1986 and for handing over possession was allowed. The parties shall herein after be referred to as per their status before the trial Court.

3. The appellant instituted Special Civil Suit No. 32/1998, which was subsequently renumbered as R.C.S. No. 217/2013 for specific performance of agreement dated 22/05/1986. It is the case of the plaintiff that the defendant agreed to sell land admeasuring 4 Acres from 3 S.A. 627....2014 - [ J ]northern side of G.No. 83 in all admeasuring 7 Acres 36 gunthas situate at Salunkwadi, Taluka Ambajogai, District Beed (for short, ' suit property ' ). The defendant executed registered agreement on 22/05/1986 and the total consideration agreed between the parties was ` 40,000/- (Rupees Forty Thousand only ). Out of that, plaintiff paid ` 15,000/- (Rupees Fifteen Thousand only ) in the presence of Sub Registrar on the same day and balance consideration of ` 25,000/- (Rupees Twenty Five Thousand only ) was to be paid at the time of execution of sale deed (चैतरशु. १शके१९०९). The agreement further recited that in case the plaintiff fails to pay the balance consideration and get the sale deed registered, the defendant reserved his right to cancel the agreement. The defendant further agreed to get the land measured to the extent of 4 Acres agreed to be purchased by the plaintiff and till such time the land is not measured, time for execution of the sale deed would be extended. In pursuance of the agreement, plaintiff was put in possession of the suit land.

4. It is the case of the plaintiff that the defendant did not get the land measured and, therefore, transaction was

4 S.A. 627....2014 - [ J ]not completed in time. The plaintiff further contended that the defendant had approached him and received amount of ` 6,000/- (Rupees Six Thousand only ) on 13/08/1988 and ` 5,000/- (Rupees Five Thousand only ) on 26/02/1989 for education of children and marriages of daughters. Besides that, he had sold clothes to the defendant from time to time worth ` 1,576/- (Rupees One Thousand Five Hundred Seventy Six only ). Thus, he had paid ` 12,576/- (Rupees Twelve Thousand Five Hundred Seventy Six only ) out of the balance consideration. He was ready and willing to pay ` 12,424/- (Rupees Twelve Thousand Four Hundred Twenty Four only ) at any time and perform his part of contract subject to measurement of land. The Plaintiff further contended that with a view to avoiding his part of contract, defendant in collusion with one Balasaheb Dajirao Salunke filed R.C.S. No. 239/1989 against the plaintiff and others. The Suit was decreed exparte. This was also one of the grounds for delay in executing the sale deed. On 15/03/1989, plaintiff realized that the defendant is not interested and, therefore, he instituted the present Suit.

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Statement. The defendant contended that he issued notice dated 08/03/1991 calling upon the plaintiff to pay balance consideration and also get the sale deed executed. Despite the service of notice, plaintiff did not reply and, therefore, on 16/02/1996 defendant cancelled the agreement of sale. The defendant also instituted R.C.S. No. 45/1998 for cancellation of agreement of sale. That apart, defendant also set up counter claim and prayed for cancellation of sale and for possession of the suit land.

6. On the basis of the pleadings of the parties, learned trial Judge framed necessary Issues. The parties led oral as well as documentary evidence. After considering the material on record, trial Court dismissed the claim made by the plaintiff for specific performance of contract and decreed the counter claim made by the defendant and cancelled the agreement of sale. The trial Court also directed the plaintiff to hand over possession of the suit property to the defendant.

7. Aggrieved by that decision, plaintiff preferred Appeals which were dismissed. It is against these decisions, original plaintiff has filed Second Appeal No. 627 of 2014

6 S.A. 627....2014 - [ J ]challenging the refusal of relief of specific performance of contract and Second Appeal No. 628 of 2014 against the order passed by the Courts below allowing the counter claim.

8. In support of these Appeals, Mr. Deshpande contended that the Courts below committed serious error in holding that the Suit for specific performance of contract was barred by limitation. He invited my attention to the of agreement of sale dated 22/05/1986. He submitted that, admittedly, the defendant did not get the land measured in terms of the recitals, so the time for execution of the sale deed was extended. The Courts below, therefore, were not justified in holding that the Suit is barred by limitation. He further submitted that the counter claim is barred by limitation. The defendant prayed for cancellation of registered agreement of sale. The defendant claims to have issued notice on 08/03/1991. The time will start running from that date. In view of Article 59 of the Limitation Act, 1963, the period of three years will start running from 08/03/1991. The counter claim is set up on 08/01/1999 which is clearly beyond the period of three years. The Courts below, therefore, committed error in 7 S.A. 627....2014 - [ J ]

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9. He further submitted that the defendant has committed breach of the terms of the agreement and, therefore, plaintiff is entitled to specific performance of contract. In support of his submission, he relied upon the decision of this Court in the case of Rosalie Roy Vs.Balasaheb Tupe, 2010 (6) Mh.L.J. 164. He further submitted that the valuation made by the defendant in counter claim is also defective. The defendant had paid court fees on the basis of valuation of assessment at ` 5/- (Rupees Five only) and accordingly had paid 20 times of the assessment, which comes to ` 100/- (Rupees One Hundred only). On that basis, he paid court fees of ` 10/- (Rupees Ten only) for ccncellation of the instrument and ` 40/- (Rupees Forty only) for declaration. In short, he submitted that the valuation made by the defendant in the counter claim was defective. The plaintiff had valued Suit at ` 40,000/- (Rupees Forty Thousand only) and paid court fees of ` 2,970/- (Rupees Two Thousand Nine Hundred Seventy only). As against this, defendant had paid court fee of ` 10/- plus ` 40/- i.e. total ` 50/- (Rupees Fifty only). He 8 S.A. 627....2014 - [ J ]

also relied upon the decision of this Court in the case of DilipKhadbage Vs. Leeladhar Ganorkar, 2011 (1) Mh.L.J. 969in support of his submission that the valuation made by the defendant in the counter claim was defective.

10. Mr. Deshpande further submitted that the Courts below also committed error in holding that the plaintiff failed to prove that he was and is ready and willing to perform his part of contract. Mr. Deshpande submitted that the points framed by the learned District Judge were not consistent with the pleadings of the parties. In other words, appellate Court did not exercise powers under Order XLI Rule 31 of C.P.C. while framing points covering all the issues, which has resulted in to mis-carriage of justice.

11. On the other hand, Mr. Khandare supported the impugned orders and submitted that the Courts below have concurrently held that the plaintiff was and is not ready and willing to perform his part of contract. The agreement of sale was executed on 22/05/1986. The Suit is instituted in the year 1998. Between 1986 and 1998, plaintiff did not do any overt act to show his readyness and willingness. The 9 S.A. 627....2014 - [ J ]Suit instituted by the plaintiff, therefore, can not be said to be instituted within a reasonable time. The Courts below held that the counter claim is within limitation as notice for cancellation of agreement was issued on 16/02/1996. The counter claim is for possession based on title and, therefore, the period of limitation would be three years from 16/02/1996 for the cancellation of the instrument document and 12 years under Article 65 of the Limitation Act. In any case, the counter claim set up by the defendant is within limitation. He submitted that no case is made out u/s 100 of C.P.C.

12. I have considered the rival submissions advanced by the learned counsel for the parties. I have also perused the material on record.

13. It is not in dispute that on 22/05/1986, defendant executed registered agreement of sale in favour of the plaintiff. The defendant agreed to sell 4 Acres land out of G.No. 83 in all admeasuring 7 Acres 36 gunthas. In pursuance of agreement of sale, plaintiff was put in possession. The Suit is instituted in the year 1998. The

10 S.A. 627....2014 - [ J ]question is, whether the plaintiff can be said to be all along ready and willing to perform his part of contract and whether the Suit is within limitation. The Courts below after appreciating the evidence on record, have concurrently held that the plaintiff failed to prove his readyness and willingness. As noted earlier, the total consideration is ` 40,000/- (Rupees Forty Thousand only) and on the date of agreement of sale, plaintiff had paid ` 15,000/- (Rupees Fifteen Thousand only ). Thus, the balance amount of ` 25,000/- (Rupees Twenty Five Thousand only ) remained to be paid. The plaintiff came out with the case that on 13/08/1988, he has paid ` 6,000/- (Rupees Six Thousand only ) to the defendant. On 26/02/1989, he has paid ` 5,000/- (Rupees Five Thousand only ). Thus, as on 26/02/1989, plaintiff paid ` 11,000/- (Rupees Eleven Thousand only ) in cash to the defendant. He had also sold clothes of ` 940/- (Rupees Nine Hundred Forty only ) and ` 136/- (Rupees One Hundred Thirty Six only ). In short, his case is that in all he had paid ` 27,576/- (Rupees Twenty Seven Thousand Five Hundred Seventy Six only ) out of total consideration of ` 40,000/- (Rupees Forty Thousand only) and ` 12,424/- (Rupees Twelve Thousand Four Hundred 11 S.A. 627....2014 - [ J ]Twenty Four only ) remained to be paid. The Courts below after appreciating the evidence on record held that the plaintiff failed to establish that he had paid ` 11,000/- (Rupees Eleven Thousand only ) in cash and given clothes on credit to the defendant. The Courts below also noted that between 1986 and 1998 i.e. from the date of agreement of sale till the institution of Suit, plaintiff did not issue any notice calling upon the defendant to get the land measured and execute the sale deed. Even accepting the case made out by the plaintiff that since the defendant did not get the land measured, time for execution of the sale deed is postponed. Section 46 of the Indian Contract Act, 1872 lays down that where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.. Explanation thereto lays down that the question “what is a reasonable time” is, in each particular case, a question of fact. As noted earlier, the agreement of sale was executed on 22/05/1986. The Suit is instituted in the year 1998. The plaintiff did not establish payment of ` 11,000/- (Rupees Eleven Thousand only ) in cash as also selling of clothes worth ` 1576/- (Rupees One 12 S.A. 627....2014 - [ J ]Thousand Five Hundred Seventy Six only ). The plaintiff also did not issue any notice calling upon the defendant to get the land measured. The Courts below also held that plaintiff did not prove that he was and is ready and willing to perform his part of contract. I, therefore, do not find that Suit is filed within a reasonable time. By not calling the defendant to get the land measured, itself reflects on the readyness and willingness of the plaintiff. The Suit is instituted after 12 years, which also amounts to even abandonment of his right for specific performance of contract. I, therefore, do not find that the Courts below committed any error in refusing to grant relief of specific performance.

14. Apart from that, I have also examined the question from the point of view whether the Courts below have rightly exercised the discretion. Section 20 of the Specific Relief Act, 1963 lays down that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and 13 S.A. 627....2014 - [ J ]

capable of correction by a Court of appeal. After considering the material on record, I do not find that the Courts below committed any error in exercising the discretion while refusing the relief of specific performance of contract.

15. That brings me to the question whether the Courts below were justified in allowing the counter claim. Mr. Deshpande submitted that counter claim is time barred. Admittedly, the notice dated 08/03/1991 is not produced on record. By notice dated 16/02/1996, defendant revoked the agreement of sale on 22/05/1986. The period of three years as stipulated in Article 59 of the Limitation Act will begin from 16/02/1996. The counter claim is set up on 08/01/1999 which is within limitation. That apart, defendant has instituted Suit in the year 1998 for the cancellation of registered agreement of sale. It, therefore, can not be said that the counter claim is time barred. Mr. Deshpande submitted that the counter claim is not valued properly. He relied upon the decision of this Court in the case of Dilip Khadbage (supra). In that case, petitioner sought transfer on the ground that the Suit was valued at ` 70,600/- (Rupees Seventy Thousand Six Hundred only )

14 S.A. 627....2014 - [ J ]and the counter claim was of ` 40,000/- (Rupees Forty Thousand only ) together being above ` 1,00,000/- (Rupees One Lac only ) which exceeded the pecuniary jurisdiction of the Court of Junior Division. This Court considered the submission in paragraph 6 and observed that pecuniary jurisdiction is required to be satisfied independently by claim made in plaint and claim raised in counter claim. Court fee is also required to be paid separately on both. There is no question of clubbing both together for said purpose. That apart, though the plaintiff in Written Statement to the counter claim contended that the defendant herein had paid deficit court fee, he did not file application under section 8 of the Bombay Court fees Act, 1959 for holding enquiry. I, therefore, do not find that the valuation made by the defendant in counter claim was defective.

16. Mr. Deshpande submitted that in the present case the defendant has committed breach of the agreement by not getting the land measured. He relied upon the decision of this Court in the case of Rosalie Roy (supra). The facts in that case are materially different. In that case, defendant represented that she had clear and marketable 15 S.A. 627....2014 - [ J ]

title. The property therein was not free from encumbrance. The defendant had cleared dues on 22/02/2006. On 31/03/2006 , she terminated the agreement on the ground that plaintiff did not perform his part of contract. The plaintiff replied the notice on 22/04/2006 and enclosed along with reply a Demand Draft dated 13/04/2006 of balance consideration of ` 8,00,000/- (Rupees Eight Lacs only ). It is in that context this Court held that plaintiff was and is ready to perform his part of contract. In the present case, I have already held that the plaintiff was not and is not ready and willing to perform his part of contract.

17. For all these reasons, Appeals do not raise any question of law, much less any substantial questions of law. In view thereof, Appeals fail and the same are dismissed.

18. In view of dismissal of Second Appeal No. 627 of 2014, C.A. No. 10482 of 2014 for stay does not survive and the same is also disposed of.

[R.G.KETKAR, J.]

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