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Judgment
S.G. Shah, J.—Admit. Notice of admission is waived by learned advocate Mr. D.R. Bhatt on behalf of the respondent. Heard learned advocate Mr. P.P. Kasvala for the appellant and learned advocate Mr. D.R. Bhatt for the respondent. The Appeal from Order is pending for admission since July, 2012. Interim relief is in existence since 19.07.2012, therefore, both the learned advocates have agreed to decide the appeal finally.
The plaintiff has filed a Civil Suit No. 264 of 2011 before the City Civil Court, Ahmedabad for a specific performance of a agreement to sell dated 06.02.2004 alleged to be executed by the respondent. With such suit the plaintiff has prayed for interim relief to restrain the defendant from parting with the possession and from restraining the defendant to alter suit property in any manner what so ever being shop No. 62 admeasuring 150 sq. ft. and bearing City Survey No. 5206 in Sardarnagar area of Ahmedabad City. Such suit and interim application was filed on 03.02.2011.
By impugned order dated 30.06.2012 Chamber Judge of City Civil Court, Ahmedabad has dismissed the application for interim relief and vacated ex-parte relief granted earlier however, such relief remained in existence till date as aforesaid.
The sum and substance of the plaintiff''s case is to the effect that by agreement to sell dated 06.02.2004, defendants had agreed to sell the suit property to him against consideration of Rs. 14 Lac, out of which 50,000/- was paid at the time of such agreement to sell with a condition that remaining amount is to be paid in installment within 15 months and soon after the payment is made, defendant shall execute the sale deed in favour of the plaintiff. Therefore, irrespective of all other issues, basically, time is the essence of the contract, whereby it was specifically agreed upon between both the parties that remaining amount of sale consideration being 13,50,000/- is to be paid by the plaintiff/appellant within 15 months from 06.02.2004 to the defendant i.e. on or before 06.05.2005.
However, it is the case of the plaintiff that even after such date i.e. 06.05.2005, defendant has accepted some other amount and therefore, condition regarding 15 months does not survived and waived by the defendant. To prove such fact, plaintiff has produce on record the agreement to sell dated 06.02.2004, with two additional pages after the signatures, showing the date, amount and signature of defendant for some transaction in installment alleged as consideration of sale price of the suit property. However, prima facie such document does not give any impression and confirmation about its genuineness. On perusal of such pages, which specifically confirms that at least for confirming the payment of first installment of Rs. 50,000/- after the execution of agreement to sell dated 06.02.2004, on 12.02.2004 in stead of using a revenue stamp for issuance of receipt on revenue stamp for discharging, Court fee stamp of Rs. 1/- is affixed/used and it is in such a fashion that signature on such Court fee can not be ascertained. Moreover such documents further specifically confirms that after monthly installment up to 12.05.2004, plaintiff has paid nothing till November, 2004 and then again till May, 2005 thereafter, again till 10.02.2006 and thereafter, till April, 2007 and last installment is alleged to be endorsed on 26.01.2008. However, surprisingly at least for the endorsement dated 02.04.2007 and 26.01.2008 though signature and writing are there though there is no reference that what amount is paid on 02.04.2007 and 26.01.2008. Whereas from 12.02.2004 till 10.02.2006 that is for 24 months only Rs. 4 Lac are endorse. Thus, facts remains that plaintiff has not paid the agreed amount of Rs. 13,50,000/- within 15 months as agreed upon. Though, in the plaint plaintiff has contended that he has paid 7,50,000/- till filing of the suit and even there is no cogent and proper evidence to that effect.
In addition to such factual discrepancy, the defendant has submitted that the suit is not maintainable being filed after the period of limitation even if unregistered sale deed is permitted to be executed. It is contended that plaintiff has never turn up to perform his part of the contract and therefore, there is no error in the judgment of the Trial Court.
It is not in dispute that parties are near relatives and that possession is with the defendant. As discussed herein above for the issue regarding waiver of condition for payment of remaining amount, it was categorically submitted by the defendant that suit is time barred inasmuch as the agreement to sell is dated 06.02.2004, whereas suit is filed on 03.02.2011. Learned advocate for the plaintiff is relying upon the receipt of payment below the agreement to sell contending that plaintiff has continued to accept the amount till 26.01.2008 and therefore, limitation has to be counted from such date. However, though this endorsement regarding payment after writing of agreement to sell is not only disputed but seems to be non-genuine. The fact remains that even on counting of limitation from the last date of payment i.e. 26.01.2008, the suit is barred at least by couple of days, since 3 years form 26.01.2008 would be over on 26.01.2011, whereas suit is filed on 03.02.2011. It is not disputed that plaintiff has not prayed for condonation of delay of such few days by assigning any sufficient and cogent reasons and that defendant has already filed an application before the Trial Court for dismissal of the suit being barred by limitation. Such application Exh. 17 is endorsed to be decided alongwith suit. Therefore, it can not be said that time of limitation has been waived and suit is within the period of limitation and if agreement to sell, which is prayed to be executed, is unregistered and that if period for performance of contract has already gone, there is no reason to grant the interim relief as prayed for by the plaintiff. Otherwise also so far as relief of specific performance is concerned, the law categorically confirms that such decree is discretionary and even it is lawful to grant such decree, the Court can deny to grant such decree. Therefore, also there is no reason to grant injunction in favour of the plaintiff when balance of convenience is in favour of the defendant.
To bring the suit within limitation, plaintiff has simply pleaded that defendant has refused to execute sale deed only on 30.01.2011 and therefore, suit is within limitation. However, the fact remains that suit is filed just within 3 days from such date and that even on 30.01.2011 suit was beyond limitation. However, in any case, there is no evidence to prove that plaintiff has shown his readiness and willingness to perform his part of contract within prescribed period of limitation and even for the sack of arguments, date of part payment is considered, then also it is clear that after 12.05.2004 plaintiff has not paid the installment regularly, but it is after couple of months and thereafter, beyond years together.
However, all above observation is only for deciding this appeal and it shall not preclude the Trial Court to decide the issue of limitation in accordance with law and evidence while deciding the suit finally.
Appellant/plaintiff is relying upon the judgment of this High Court in the case of Shantaben Vs. Hasmukhbhai Bhailalbhai Patel, wherein the Division Bench of this Court has, while consideration the provision of Article 54 of the Limitation Act regarding limitation for specific performance, confirmed that though limitation is to be counted from the date after considering the time limit is specified for performance of part of contract. However, in the present case the suit is filed even beyond such extended period of limitation and therefore, this judgment would not help the plaintiff.
Learned advocate for the respondent/defendant is relying upon the decision in the case of Pukhraj D. Jain and Others Vs. G. Gopalakrishna, Wherein the Apex Court has specifically held that specific performance of a contract cannot be enforced in favour of a person who fails to avert and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms performance of which has been prevented or waived by the defendant. It is further held that the plaintiff must avert performance of, or readiness and willingness to perform, the contract according to its true construction.
Defendant is also relying upon the judgment of this High Court in the case of Harshadkumar Kantilal Bhalodwala and Another Vs. Ishwarbhai Chandubhai Patel and Others, submitting that when agreement is disputed and receipt of part consideration made in cash is denied, plaintiff is required to produce some evidence to show that he was able to make payment on such date that is he must show the source of money by documents. It is further stated that even it there is prima facie case of plaintiff''s suit claim, if balance of convenience is not in favour of plaintiff or if plaintiff can be compensated in terms of money, interim injunction cannot be granted.
Defendant is also relying upon the judgment of this High Court in the case of Taraben D/o. Nanubhai Kasanbhai Patel and W/o. Navinkumar Patel & another v. Shaileshbhai Rangilbhai Patel & others, reported in 2013 (2) GLH 252 states that discretionary order does not call for any interference, it is further confirms that such principles is to be applied considering the facts and circumstances of each case, therefore, it has no much bring at present in view of the facts and circumstances when plaintiff has fail to prove that suit is within period of limitation and when agreement to sale is unregistered.
Therefore, when suit is filed beyond period of limitation and though amount of Rs. 14 Lac was to be paid within 15 months, even after 4 years such amount is not paid therefore, there is no substance in the appeal.
For the above discussion, there is no illegality in the impugned judgment and order, hence, I do not see any reason to interfere with the impugned order. Thus, appeal deserves to be dismissed and it is hereby dismissed.
Further Order
Learned advocate for the appellant is praying to stay the order and to continue the interim relief granted earlier for further 10 weeks'' so as to enable the appellant to take necessary steps. Considering the fact that some interim relief is in operation since February, 2011, it would be appropriate to continue such order for further period of 8 weeks''.