Specific performance requires continuous proof of readiness and willingness, which was found lacking in this case, leading to a dismissal of the claim.

JUDGMENT :

NEERAJ P. DHOTE, J.

This is the First Appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) against the Judgment and Order dated 21.11.2013 passed by the learned 2nd Jt. Civil Judge, (S.D.), Aurangabad dismissing the Spl. Civil Suit No.390/2011 instituted for Specific Performance of Contract. The operative Order of the impugned Judgment reads as under :

“. The suit of the plaintiff is hereby dismissed.

1. The prayer for specific performance of the contract is hereby rejected.

2. The prayer to refund earnest amount is hereby rejected.

3. The prayer for compensation is also hereby rejected.

4. Decree be drawn up accordingly.”

2. The facts, in brief, giving rise to the present Appeal are as follows:

2.1. The Appellants are the Legal Representatives of the original Plaintiff who died during the pendency of the Appeal. The original Plaintiff went before the learned Civil Court with the Plaint that he entered into an Agreement to Sell (Exh.65) with the Defendants on 20.02.2008 in respect of landed property admeasuring 70,000 Sq. Feet, bearing CTS No.20719, out of Survey No.2, situated at Kokanwadi, Aurangabad (hereinafter referred to as the ‘Suit Property’) for the total consideration of Rs.21,52,50,000/- (Twenty One Crore Fifty Two Lakh Fifty Thousand Only) at the rate of Rs.3,075/- (Rs.Three Thousand Seventy Five Only) per Sq. Feet. It was decided to execute the sale-deed within a period of 6 (six) months from the date of agreement. Time was essence of the contract. An amount of Rs.50,00,000/- was paid as the earnest money by the Plaintiff to the Defendants.

2.2. On 18.03.2008, the Plaintiff came across the notice published in the daily newspaper that, Defendant No.2 had already executed an Agreement to Sell with the third party in respect of the Suit Property. The Plaintiff contacted the Defendant Nos.2 and 3, who assured that the issue would be settled and they will execute the sale-deed with the Plaintiff. Though, the Plaintiff repeatedly contacted the Defendants for execution of the sale-deed by accepting balance consideration, the Defendants assured that they will execute the saledeed. By communication dated 26.06.2008 the Plaintiff requested the Defendants to execute the sale-deed in his favour as early as possible and the Defendants requested him to wait for some time. The Defendant No.3 by a reply dated 26.06.2008 showed his readiness to perform his part of contract. Even after the repeated requests by the Plaintiff, the Defendants did not execute the sale-deed. On 20.08.2008 the Plaintiff contacted the Defendants and requested them to complete the transaction before expiry of the stipulated period and the Defendants assured the Plaintiff to complete the transaction on 20.08.2008, however when the Plaintiff went to the office of Sub-Registrar to complete the necessary formalities, the Defendants did not turn up. Therefore, the Plaintiff went to the house of the Defendant No.2. The Plaintiff handed over one communication titled as ‘Samaj Patra’ intimating that he was ready and willing to complete the transaction and he was present for the same on 20.08.2008.

2.3. On 23.10.2008 the Plaintiff came across a notice published in the newspaper issued by Defendant No.2 stating that the Plaintiff failed to perform his part of contract within the stipulated period, to which the Plaintiff replied by a paper publication on 29.11.2008 stating that he was ready and willing to execute the sale-deed. The Defendant Nos.2 and 3 sought some time from the Plaintiff to execute the saledeed. On 3