In contracts for the sale of immovable property, time is generally not of the essence unless explicitly stated, and parties must demonstrate readiness and willingness to perform their obligations.

JUDGMENT :

DIVYESH A. JOSHI, J.

1. With the consent of learned advocates for the parties, the present Appeal from Order is taken up for final disposal.

2. By filing present Appeal from Order under Section 104 and Order 43, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC” for short) the appellants have challenged the validity and legality of the order dated 29.06.2024 passed below application, Exh.5 by the learned 5th Additional Senior Civil Judge, Gandhinagar in Special Civil Suit No. 120/2020, whereby the injunction application preferred by the appellants has been rejected.

3. Heard learned Senior Counsel, Mr. Mihir Joshi assisted by learned advocate, Mr. Nishit Gandhi for the appellants and learned advocate, Mr. Jay Kansara for M/s. Wadiagandhy & Co. for respondent.

4. Learned Senior Counsel submitted that the appellants are the plaintiffs of Special Civil Suit No. 120/2020 filed by them and the respondent is the original defendant. Learned Senior Counsel submitted that aforesaid suit is filed before the court of learned Civil Judge, Gandhinagar inter alia praying for specific performance and along with the said suit, an application for interim injunction, Exh.5 was also filed, which was rejected by the learned Civil Judge by impugned order and, hence, the present appeal has been preferred. Learned Senior Counsel submitted that an agreement to sell came to be executed between the appellants and the respondent herein for the land bearing Survey Nos.147/2/a, 147/2/b, 147/3, 147/4, 148/2 & 149/1 situated in the sim of Village: Bhat, Tal. & District: Gandhinagar on 19.04.2016 on the terms and conditions mentioned in the said agreement to sell and it was agreed by and between the parties that the validity of the said agreement to sale was 27 months after getting title clearance certificate by the advocate concerned and at the time of execution of the agreement to sale, an amount of Rs.6,00,000/- was given through cheque, details of which are mentioned in the said agreement to sell. Learned Senior Counsel, however, submitted that the respondent herein has failed to perform his part of contract by executing registered sale deed in favour of the plaintiffs within prescribed time limit. Learned Senior Counsel submitted that as per the conditions of the agreement to sale, immediately after obtaining title clearance certificate of the lands, the respondent has to execute the registered sale deed on payment of sale consideration. Learned Senior Counsel submitted that it is an admitted position of fact that the agreement to sale was executed on 19.04.2016 but till September, 2020, the respondent has not taken care to obtain title clearance certificate of the said parcels of land, as a result of which, the registered sale deed could not be executed and during this period also, the appellants were showing their readiness and willingness to make the payment of sale consideration, however one fine day, the respondent has retracted from his version and demanded more amount than what was agreed between the parties, therefore, the appellants were constrained to file suit before the learned Civil Court. Learned Senior Counsel submitted that in fact, during the interregnum period, as the respondent was in need of money, the plaintiffs have paid total amount of Rs.81,71,000/- to the respondent through cheques and, thereafter, as the respondent was in need of money, the appellants have paid Rs.4,00,00,000/- to the respondent and executed the registered sale deed for the land bearing Survey Nos. 148/2 & 149/1 despite the fact that the said property was not cleared and disputes are pending before the learned Civil Court regarding the said parcels of land but that does not mean that the appellants have waived their right to seek title clearance certificate for rest of the lands. Learned Senior Counsel submitted that as stated above, it was agreed by and between the parties that as soon as the title clearance certificate is