AIR 2009 (NOC) 258 (BOM.) = 2008 (5) AIR BOM R 536 (NAGPUR BENCH) ::2008 (5) AIR Bom R 536 ::2008 A I H C 3723

Bombay High Court ( Nagpur Bench )

Hon'ble Judge(s): B. P. Dharmadhikari , J

(C) Specific Relief Act (47 of 1963) S. 22 — Forfeiture of earnest money — When can be ordered — Agreement for sale of property — Not containing any stipulation of forfeiture of earnest money or advance towards sale consideration — Defendant-owner could not prove that property was demarcated and identified by specified date so as to subject it to agreement — No proof by defendant of his forwarding notice to plaintiff-purchaser calling upon him to remain present before sub-registrar on specified date, by producing any postal receipt of notice — Defendant not forwarding any communication terminating agreement and forfeiture of amount received by him, on plaintiff’s alleged failure to appear before sub-registrar as aforesaid — Retention of amount paid by plaintiff and not denied by defendant to have received it, unsustainable — Defendant directed to return amount to plaintiff with simple interest at 6% from date of filing suit (Para 10)

(A) Contract Act (9 of 1872) S. 55 — Whether time was essence of contract — Determination — Agreement for sale of property — Demarcation of property, a condition precedent as per agreement — Failure of defendant to prove that he got property demarcated on or before specified date for same in agreement — Failure of defendant to prove service of notice upon plaintiff to remain present on certain date before sub-registrar to have sale deed executed in his favour — Defendant not demonstrating by any other evidence that on account of certain special circumstances time was required to be made essence of contract — Defendant did not repudiate contract even after alleged failure of plaintiff to appear before sub-registrar — Even conduct of defendant not showing that time was essence — Held, that time was not essence of contract AIR 1997 SC 1751; AIR 1967 SC 868; AIR 1977 SC 1005, Followed (Para 6)

(B) Specific Relief Act (47 of 1963) S. 16 (c)— “Ready and willing to perform” — Agreement for sale of property — Demarcation of property by defendant-owner, condition precedent as per agreement — Plaintiff-purchaser already in possession of property — No effort made by him to get property demarcated which he could have easily done being in possession of property — Plaintiff instead only blaming defendant for not carrying out demarcation — No grievance about non-demarcation made by plaintiff in his legal notice for specific performance sent to defendant — Plaintiff not pointing out to Court that he was ready with necessary amount either in cash or otherwise for honouring his commitment — Plaintiff in such case cannot bank upon defendant’s failiure to send reply to his notice etc — Held that, plaintiff failed to prove that he was always ready and willing to get sale-deed registered in his favour AIR 1985 All 223; AIR 1996 SC 116; AIR 2005 SC 3503; AIR 2006 SC 2172, Foll (Para 9) .....