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2016 Supreme(Guj) 2111
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.G. URAIZEE, J.
Ziyauddin Abdul Hamid Sheikh - Appellant
Vs.
Dinaz Bejan Ankleshwariya & Ors. - Respondents
Appeal From Order No. 301 of 2014 With Civil Application No. 7471 of 2014
In Appeal From Order No. 301 of 2014
Decided On : 05-07-2016
For the Appellant : Mr. Nikhil S. Kariel
For the Respondent: Mr. Vimal M. Patel
IMPORTANT POINT
Normally, in contract relating to immovable property, time is not essence of the contract unless there is a recital to that effect in the agreement to sell.
Headnote:Code of Civil Procedure, 1908 – Order 43 – Appellant challenges the order passed by the Principal Senior Civil Judge – Application for Restraining the respondent from alienating the suit property and for specific performance of the contract of the agreement to sell – The appellant contended that the Respondent executed an agreement to sell the suit property for Rs 4.37 Crores –Appellant advanced the money of Rs 2.18 crore at the time of the Execution of the Sale deed and the respondent also precluded the irrevocable sale deed in favour of the appellant – The Respondent contended that as per clause-6 of said Agreement, time is the essence of contract and non-compliance will result in no claim disability and the suit is not maintainable – Observed that the plaintiff has unconditionally agreed to pay the balance amount before handing over the possession – Agreement of sale of immovable property, regarding payment, time was not essence of the contract – Such payment not depends upon the owner in obtaining possession – FDR of Rs. 218 Crore shall remain with Nazir of the Trial Court till disposal of the suit – Trial court to decide the suit strictly on the merits of the case – Application undre Order 39, Rule 1& 2 is dismissed.
Result – Appeal allowed and application dismissed.
1. The appellant challenges order dated 16/5/2014 passed by learned Principal Senior Civil Judge, Ankleshwar below exh 5 in Special Civil Suit No.52/2013, whereby an application under Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908preferred by the appellant came to be dismissed.
2. The appeal was admitted on 9/7/2014. On the same day, the following order was passed in Civil Application No. 7471/2014, which the appellant has preferred for restraining the respondent from alienating the suit property. The following order was passed on Civil Application:
“Rule returnable on 9.9.2014.
1. Learned advocate Mr. Kariel for the applicant – original plaintiff states at bar that the applicant – plaintiff is not in possession of the suit land and further, the plaintiff is ready and willing to deposit balance consideration of Rs.219 lac with the trial Court, as the plaintiff has already paid a sum of Rs.218 lac to the respondent – defendant. Under the circumstances, parties to the suit are directed to maintain status quo position qua suit land as existing today. Upon Page 1 of 2 HC-NIC Page 1 of 2 Created On Fri Jul 15 16:41:48 IST 2016 deposit of Rs.219 lac by the plaintiff within two months with the trial Court, the leaned Judge shall deposit the said amount in the name of the plaintiff in any nationalized bank initially for a period of six months in cumulative FDR and it shall be renewed from time to time till further order passed by this Court in appeal from order. The original FDR shall be kept with the Registry of the trial Court.
2. It is clarified that order to maintain status quo position qua suit land is granted subject to deposit of balance consideration by the plaintiff with the trial Court. In case of default, the interim relief granted by this Court shall stand vacated without any further order. It is further clarified that no extension will be granted to deposit the amount. In case of difficulty, parties are at liberty to apply for early hearing.”
3. Mr. Nikhil Kariel, learned advocate for the appellant makes a statement at par that the appellant has deposited sum of Rs. 2.19 Crores in the Trial Court in compliance of the order dated 9/7/2014 passed by this Court in civil application.
4. This Court, on 26/4/2014, passed following order:
“Put up on 5.5.2016. Since the Appeal from Order is admitted, as per the joint request made by the learned Advocates for the parties, the same be heard finally along with the Civil application on that day.”
5. In view of the above order, the Appeal from Order was taken up for final hearing and the arguments of learned advocates for the contesting parties were heard at length.
6. The short fact giving rise to the present appeal are that the respondent executed sale deed dated 8/12/2011 and 9/12/2011 in respect of two plot bearing survey/block no. 193/1 situated at Bharuch District, sub-district – Ankleshwar moje village Diva for consideration of Rs.4.37 Crores. The appellate paid sum of Rs.2.18 Crores to the respondent at the time of execution of sale deed. The respondent also precluded one irrevocable power of attorney in respect of the suit land property in favour of the appellant. The said power of attorney was irrevocable, still, however, respondent by public notice dated 14/11/2012 inserted in vernacular daily “Sandesh” cancelled the power of attorney. The respondents were required to execute the sale deed in respect of the suit premises after getting the title clear and therefore, the appellant filed suit in the Court of learned Senior Civil, Ankleshwar for specific performance of the agreement to sell or in the alternative for compensation from the respondent to the tune of Rs.4.36 Crores with 24% interest. In the suit, the appellant also preferred an application exh 5 under Order 39 rule 1 & 2 of the Code restraining the respondent from alienating the suit property in any manner. The learned Trial Judge by the impugned order dismissed the application and therefore, the present
