PREETAM KAUR Vs.

PRAKASH RAMDEO JAISWAL

LAWS(BOM)-2011-4-35
HIGH COURT OF BOMBAY (AT: NAGPUR)
Decided on April 20,2011

PREETAM KAURAppellant
VERSUS
PRAKASH RAMDEO JAISWALRespondents

JUDGEMENT
R. M. Savant, J. - (1.) The above Appeal has been filed by the Original Defendant, challenging the
Judgment and Order dated 21st April 2003 passed in Special Civil Suit No.20 of 2000 by which the Suit filed
by the Plaintiff/Respondent for specific performance of contract came to be decreed and the Defendant was
directed to execute the sale deed pertaining to the suit property as described in Para 2 of the Plaint in
favour of the Plaintiff after receiving balance consideration within three months from the date of the Decree.
In default, on the part of the Defendant in executing the said sale deed as per the Decree, the Plaintiff was
to be at liberty to get the said sale deed executed through Court but at the costs of the Defendant. The
parties would be referred to as per their status in the trial Court.
(2.) The Appellant herein is the original Defendant in the said Special Civil Suit No.20 of 2000 and the
Respondent herein is the original Plaintiff . It was the case of the Plaintiff that on 30.7.98 the Defendant had
agreed to sell suit land i.e. Property bearing T S K No.30, Thak No.92 situated at Mouza Fulchur Tah and
Dist. Gondia to the Plaintiff for the consideration of Rs.7,01,000/- on executing an Agreement for Sale dated
30.7.98 after receiving earnest amount of Rs. 1,01,000/ out of which Rs.50,000/- was paid by cheque and
Rs.51,000/- was paid in cash. It was the case of the Plaintiff that he had also got cleared the challan for
purchasing the nonjudicial stamp papers worth Rs.60,510/- on 28/4/99. The sale deed was to be executed
on 30.4.99. It was the case of the Plaintiff that as the defendant was avoiding to execute the sale deed, the
Plaintiff had issued a telegraphic notice on 29/ 4/99 and had called upon the Defendant to remain present in
SubRegistrar's Office on 3.5.99 because the preceding dates 30/4/99,1/ 5/99 and 2/5/99 were holidays. As
the Defendant did not turn up on 3.5.99 at the SubRegistrar's Office, the Plaintiff served the Defendant
notice dated 20.5.99 for executing sale deed upon receiving the balance consideration of Rs.6,00,000/-. It
was the case of the Plaintiff that the Defendant received notice on 22/5/99 and thereafter the husband of
Defendant requested for six months extension of time to execute the sale deed on some personal ground. It
was the case of the Plaintiff that to avoid strained relations, the Plaintiff agreed to wait for six months.
However, even at the end of six months, when the steps were not taken by the Defendant for execution of
sale deed, the Plaintiff sent another notice on 18.1.2000 calling upon the Defendant to execute the sale
deed. As the Defendant did not pay any heed to the said notice and, since the Plaintiff was always ready and
willing to perform his part of the contract, as the consideration was more than Rs.5,00,000/- and the
Defendant as a vendor was under the obligation to obtain Income Tax clearance certificate before execution
of the registered sale deed, and since in the inquiry made by the Plaintiff, it was revealed that the Defendant
had not even obtained I.T. Clearance certificate, the Plaintiff was constrained to file the Special Civil Suit
No.20/2000 for specific performance ofthe Agreement for Sale dated 30/7/98. Alternatively, the Plaintiff had
also prayed for refund of earnest amount of Rs. 1,01,000/-along with damages by way of interest @ 36%
per annum from the date of agreement.
(3.) The Defendant appeared before the Court in the above Suit and filed her written statement. The
Defendant accepted the execution of Agreement of Sale, the total consideration fixed and the receipt of the
earnest amount by her. The agreed date for execution of the sale deed was also not disputed by the
Defendant. The Defendant however, denied that the Plaintiff had approached her prior to 30/4/ 99 for
accepting the balance consideration amount and for execution of sale deed. In fact, it was the case of the
Defendant that she had approached the Plaintiff on many occasions prior to 30/4/99 for getting the sale
deed executed. In so far as challan dated 28/4/99 for purchase of stamp papers is concerned, it was the
case of the Defendant that it was a manipulated document. The Defendant accepted the receipt of
telegraphic notice dated 29.4.99. However, it was the case of the Defendant that the Plaintiff did not choose
to get the sale deed executed on 29.4.99 and therefore issued a telegraphic notice to take advantage of
holidays falling thereafter and called upon the Defendant to remain present on 3.5.99. It was the case of the
Defendant that it was the Plaintiff, who had not come to the SubRegistrar's Office on 3.5.99, and it was
further the case of the Defendant that her son was present in the SubRegistrar's Office through out the day
and as the Plaintiff did not turn up, the Defendant issued a telegraphic notice cancelling the agreement and
forfeiting the earnest amount. It was the case of the Defendant that even after receiving telegraphic notice
dated 3.5.99, the Plaintiff did not respond and only after a period of 17 days i.e. on 20.5.99 had issued a
notice to the Defendant wherein there was no reference to the telegraphic notice issued by the Defendant.
The Defendant has specifically denied that her husband had sought six months time for execution of sale
deed. In so far as the Income Tax clearance certificate is concerned, it was the case of the Defendant that
the Plaintiff had agreed that he would get the sale deed executed in two parts in two different names with a
view to obviate the requirement of IT clearance certificate. It was further the case of the Defendant that the
Plaintiff had agreed that if there was to be only one sale deed, he would himself arrange for the said I.T
Clearance certificate by obtaining signature of Defendant on necessary forms. It was the case of the
Defendant that her husband had reminded the Plaintiff on various occasions prior to 30/4/99 for obtaining
the I.T. clearance certificate. However, the Plaintiff avoided to take steps for obtaining the said I.T.
clearance certificate. It was the case of the Defendant that the time was the essence of contract and since
the Plaintiff failed to get the sale deed executed before the stipulated date, the Defendant has cancelled the
agreement and forfeited the earnest amount, the Plaintiff was not entitled to the specific performance of the
contract. In view of the amendment to the Plaint carried out by the Plaintiff wherein the facts that District
Gondia was declared as District on 1.9.99 and the location of Collectors Office, the price of land in that area
had sky rocketed, was incorporated the Defendant had averred in the written statement that since the
Plaintiff had earlier realized that he had agreed to purchase the suit land at much higher cost and therefore
he avoided the performance of contract. The Defendant lastly averred that the grant of specific performance
of contract to the Plaintiff would be unjust and improper in view of the changed circumstances as the
Defendant would be subjected to an unfair loss.;