1. THE present Appeal from Order has been filed by the appellants-original plaintiffs for the prayer that the order passed by the learned City Civil Judge, City Civil Court, Ahmedabad, below Exh. 6/7 dated 19.7.2011 may be quashed and set aside and the injunction as prayed for may be granted on the grounds set out in the Memo of the Appeal, inter alia, that the order passed by the learned Judge suffers from improper reading of sec. 14(1)(c) and sec. 41(e) of the Specific Relief Act. It is also contended that the learned Judge has erred in reading and construing the provisions of the agreement of contract, particularly clause-18 of the agreement to sell/banakhat.

2. LEARNED Sr. Counsel Shri Mihir Joshi appearing with learned advocate Mr. N.K. Raval for the appellants referred to the agreement to sell/banakhat which is produced at page 20 of the paper-book and pointedly referred to clause 18 thereof and submitted that the time was not the essence of contract. Learned Sr. Counsel Shri Mihir Joshi, therefore, submitted that the court is required to consider whether the time is essence of the contract. He also submitted that if the time is not of essence of the contract as could be seen from the facts, then, whether unilateral cancellation of the said agreement to sell/banakhat is justified. He also referred to the document of cancellation dated 6.1.2011 and submitted that if the time was of essence of the contract, the respondents should have prayed to cancel the contract as soon as the time was over as stated in clause 16 read with clause 1 of the agreement. However, admittedly, the time was allowed to pass and even after six months it remained in existence and therefore since cancellation is not made on expiry of the period as mentioned in the agreement to sell/banakhat in the year 2007, and it remained valid till the cancellation of the agreement to sell/banakhat in the year 2011, it is arbitrary and illegal.

Learned Sr. Counsel Shri Mihir Joshi submitted that the moot question which is required to be considered is whether it is open to a party to unilaterally cancel an agreement to sell/banakhat in the year 2011 though the stipulated time in the agreement to sell/banakhat was six months and the the party could have exercised of option of cancellation immediately thereafter in the year 2007. He submitted that in spite of cancellation the the agreement, when the agreement to sell/banakhat remained in force during all this period, whether such unilateral cancellation of agreement to sell/banakhat is permissible when there is no default made by the appellants herein.

3. LEARNED Sr. Counsel Shri Mihir Joshi referred to the agreement to sell/banakhat and various clauses and strenuously submitted that as provided in the agreement to sell/banakhat, necessary permissions were required to be obtained and, as stated in the recitals, one person, Gaurang Buch, was given such job and on his getting necessary permission regarding conversion into residential zone (zoning certificate), the payment was to be made, and as that event has not occurred, there is no default committed by the appellants and, therefore, the respondents could not have unilaterally cancelled the agreement to sell/banakhat. Learned Sr. Counsel Shri Mihir Joshi also submitted that the party who commits the breach of contract cannot take advantage of its own wrong and as the necessary permission could not be obtained and he allowed the agreement to sell/banakhat to remain in force for some time, he cannot unilaterally cancel the contract inasmuch as it would amount to allowing the party to take advantage of its own wrong.

4. LEARNED Sr. Counsel Shri Mihir Joshi has referred to and relied upon the judgment in the case of Swarnam Ramachandra (Smt) and anr. v. Aravacode Chakungal Jayapalan, reported in (2004) 8 SCC 689, and submitted that unless there is gross default which entitles the other party to rescind or cancel the agreement, such unilateral cancellation is not