IMPORTANT POINT
The main legal point established in the judgment is that time was not the essence of the contract, and the conduct of the parties indicated an extension of time for performance.

JUDGMENT :

Goutam Bhaduri, J.

1. Challenge in this appeal is to the judgment and decree dated 21-10-2016 passed by the Additional District Judge, Bilaspur, in civil suit No.344-A/2014 wherein the suit for specific performance was dismissed.

2. The legal heirs of Manoj Agrawal namely; Smt. Sangeeta Agrawal, Satuti Agrawal & Mridulhari Agrawal filed a suit for specific performance against the legal heirs of Ashok Bhimnani namely; Dinesh Bhimnani, Santosh Bhimnani, Kamal Bhimnani, Simran and Smt. Mala.

3. (i) The facts of the case, in brief, are that Ashok Bhimnani (since deceased) and Manoj Agrawal (since deceased) entered into an agreement for sale of immovable property of part of share of Ashok Bhimnani of land bearing khasra No.1190, 1205, 1207, 1208, 1209, 1210, 1211, 1212, 1216/2 and 1217 admeasuring 3.77 acres and from individual land bearing khasra No.1204 and 1218 admeasuring 0.56 acres in total 4.33 acres. The plaint allegation and agreement purport that the total sale consideration was fixed at Rs. 52.00 lacs. Out of the said sale consideration, an amount of Rs. 10.00 lacs was initially paid i.e. Rs. 8.00 lacs was in cash and Rs. 2.00 lacs was in the form of cheque dated 16-11-2006. The lands are situated at Mouza Sendri, PH No.16, RI Circle, Tahsil & District Bilaspur. It was further agreed, according to the plaint and the agreement, that out of remaining amount an amount of Rs. 22.00 lacs would be paid by 11-1-2007 to the seller Ashok Bhimnani by the purchaser Manoj Agrawal as per convenience and rest of the amount of Rs. 20.00 lacs would be paid at the time of registration of sale deed.

(ii) According to the plaintiffs, the suit land would be demarcated and the seller on his own cost would get the partition of his own share and subsequently, the seller would also level the field at par with the adjacent land of Laxminarayan Sahu. The parties agreed that from the date of agreement i.e. 16-11-2006 up till October, 2007 the demarcation, partition, etc. would be done and it would be the duty of the seller to get the sale deed executed. The plaintiffs stated that on 21-1-2007 further an amount of Rs. 7.00 lacs was paid thereby time for execution of the agreement was extended and subsequently another agreement was executed on 14-11-2009 vide Ex.P/2 in acknowledgment of the amount received. The agreement was executed to show that an amount of Rs. 17.00 lacs was received and another Rs. 4.00 lacs in cash was received on 14-11-2009. According to the plaintiff, while execution of agreement dated 14-11-2009 the original document of the land and revenue papers were handed over to the purchaser. The plaintiff, therefore, contended that the time was extended and contract was kept alive.

(iii) The plaintiff stated that the seller was trying to sell the land, therefore, a notice was served on 25-9-2009 whereby Manoj Agrawal objected the registration and application was also filed and public notice was also issued. It is contended that the legal notice though was served vide Ex.P/7 the trial Court ignored the same. Ashok Bhimnani, the seller, died on 25-9-2010 and after a month Manoj Agrawal, the purchaser, also died on 25-10-2010. In between legal notice was issued and public notice was also carried out making the public aware about existence of the agreement and eventually the suit was filed on 10-5-2012.

4. The defendants contended that for the personal need of their father and family, he received the amount. They had denied the execution of agreement and also denied the fact that possession of the land was handed over on 16-11-2006. Rest of the plaint allegations were denied instead it was stated that Ashok Bhimnani was ailing and was treated in different cities, therefore, there was no occasion to execute the said agreement. The legal heirs who filed the written statement strenuously denied the fact about execution of agreement or receipt of any amount. It was stated that Ashok Bhimnani was not the sole owner and his brothers & sister