R,M,S. KHANDEPARKAR, J.:- This appeal arises from the judgment and order dated 30-4-2004 passed in Suit No.364 of 1978. Only ground on which the impugned decree is sought to be challenged is that inspite of answering all the issues in favour of the appellants/plaintiffs on the point of agreement between the parties, willingness and readiness of the plaintiffs to perform the agreement, the specific performance has been denied solely on the ground that the suit was pending for 25 years when that could not be a ground to refuse to exercise discretion in favour of the plaintiffs for grant of specific performance of the agreement.

2. We have heard the learned counsel for the appellants, None has appeared for the respondents, though served. We have' also perused the records.

3. The suit was filed by the appellants for specific performance of the agreement of sale dated 27-3-1976 by which the appellants had agreed to purchase the Flat No.304 comprising of three rooms and a kitchen and other amenities, situated on the third floor of the building and admeasuring 970 sq.ft. buildup area for a total consideration of Rs. 1,05,100/ - and had paid sum of Rs.21,OOO/- to the respondents/defendants by way of earnest money, In view of dispute having arisen between the parties in relation to the claim for specific performance of the agreement by the appellants, the suit came to be filed which was contested by the respondents and the learned single Judge framed the following issues on the basis of the pleadings of the parties:

"Issues Findines

1.Whether the Plaintiffs prove that they have been ready and willing at all time to perform their part of the obligations? Yes

2. Whether the Defendants prove that the Agreement dated 27th March, 1976 is null and

void and unenforceable in law') No

3. Whether the Agreement dated 27th March, 1976 has been cancelled and/or abandoned and/or terminated as alleged in paragraph 2 of the Written Statement of Defendant Nos.1 to 4 ? No

4. Whether the Plaintiffs failed and neglected to perform their part of Agreement dated 27th March, 1976, as alleged in paragraph 3 of the Written Statement of Defendant Nos. I to 4 ? No

5. Whether the Defendant Nos.1 to 4 have sold the suit flat to the 5th Defendant on 28th February, 1978 and put him in possession thereof as alleged in paragraph 3 of the Written Statement of Defendant Nos. 1 to 4 ? No

6. Whether the 5th Defendant was a bona fide purchaser for value of suit flat without notice as alleged in paragraph 3 of the Written Statement of Defendant Nos.1 to 4? No

7. Whether the suit as against the 5th Defendant is misconceived, bad in law, false, frivolous, baseless and vexatious as alleged in paragraph 2 of the Written Statement of Defendant No

8. Whether the suit is bad for misjoinder of parties and, therefore, liable to be dismissed as alleged in paragraph 3 of the Written Statement of the Defendant No.5 Does not

survive

9. Whether the Defendant Nos.1 to 4 failed to furnish to the plaintiffs inspect of documents and/or title certificate as alleged in paragraphs 3 and 4 of the Plaint? No

10. Whether the Certificate of Title dated 17th January, 1977. issued by M/s. Shah & Sanghavi, certified the title of Defendant Nos.1 to 4 with reservations and thus, Defendant Nos.1 to 4 failed to make out a marketable title to the said property as alleged in paragraph 5 of the Plaint? Yes

11. Whether the purported termination and/or cancellation and/or revocation of Agreement was illegal and unjustified? Yes

12. Whether the Defendants Advocate had issued a certificate of clear marketable title on 3rd August, 1977 to Bombay District Central Comoperative Bank Ltd ? Yes

13. Whether the 5th Defendant is a nominee of and has been put up by the Defendant Nos. 1 to 4 to defeat the claim of the Plaintiffs & has no right, title or interest in the suit flat and Agreement dated