The court affirmed that the plaintiff was ready and willing to perform the agreement to sell, and time was not the essence of the contract, leading to the dismissal of the defendants' appeal.

JUDGMENT :

Narendra Singh Dhaddha, J.

1.This Civil First Appeal has been filed by the appellants-defendants (for short 'the defendants') against the judgment and decree dated 30.08.2018 passed by Additional District Judge No.2, Jaipur Metropolitan, Jaipur in Civil Suit No.22/2013, whereby the suit filed by the respondent-plaintiff (for short 'the plaintiff') for specific performance of the agreement, injunction and possession has been decreed.

2. Brief facts of the case are that plaintiff filed a suit for specific performance of the agreement to sell dated 22.03.2013, injunction and possession against the defendants to the effect that defendants had executed an agreement to sell dated 22.03.2013 in favour of the plaintiff purporting to sell their undivided 3/4th share in property i.e. 0.87 Hectares land in Khasra No.703 and 0.95 Hectares land in khasra No.704 (total admeasuring 1.82 Hectares land) situated in Village Neendad, Tehsil Amer, District Jaipur. At the time of execution of agreement to sell dated 22.03.2013, part-payment of Rs.1.85 Crore was paid to the defendants through cheques out of the total amount of sale consideration i.e. Rs.6.7 Crore. Rest amount of Rs.4.85 Crore was to be paid by the plaintiff to the defendants before 31.05.2013. It was agreed that possession would be handed over to the plaintiff at the time of registration of the sale deed. On several occasions, the plaintiff requested the defendants to get the balance amount of sale consideration and to get sale deed registered. The plaintiff sent the legal notice on 29.05.2013 to accept the balance amount of sale consideration and to get registered the sale deed. He was always ready and willing to perform his part of agreement. Plaintiff also sent a telegram to the defendants on 31.05.2013. Despite these communication, defendants had neither accepted the balance amount of sale consideration nor get the sale deed registered in favour of the plaintiff and rather they sent a reply to the notice on 01.06.2013 and on account of non obligation by the plaintiff, defendants had cancelled the sale deed. During the course of the proceedings, it also revealed that out of 0.87 hectares as comprised in agreement to sell dated 22.03.2013, 0.02 hectare land had been acquired by the Government and defendants had already received the compensation of the property in October 2012. The said amendment was incorporated by amendment under Order 6 Rule 17 CPC. Plaintiff also stated that cost of the acquired land be also deducted from balance amount of sale consideration.

3. Defendants had filed written statement and opposed the averments made by the plaintiff in the plaint and submitted that time was the essence of contract. Plaintiff had to pay the balance amount of sale consideration of Rs.4.85 Crore on or before 31.05.2013 in lieu of execution of agreement to sell dated 22.03.2013 but plaintiff never approached the defendants with the balance amount of sale consideration. The plaintiff had requested the defendants that he could not arrange the balance amount of sale consideration. So, he required 15-20 days time to arrange the balance amount of sale consideration. On denial of the defendants, plaintiff had sent the notice with malafide intention on 29.05.2013. He had not annexed any draft or cheque of the balance amount of sale consideration with the notice. So, the defendants cancelled the agreement to sell on 01.06.2013. Defendants also contended that plaintiff knew the fact of the acquisition of land at the time of agreement to sell. So, the defendants had not committed any fraud. So, suit filed by the plaintiff deserves to be dismissed.

4. On the basis of the pleadings of the parties, the trial court framed following issues:-

5. After amendment, trial court framed following additional issues:-

6. To prove its case, plaintiff got himself examined as PW1 Defendant got examined DW1-Bhagwati Prasad Parasrampuria, DW2-Nachuram, DW3-Anil Agarwal, DW4-Rajesh Sharma and DW5-Rakesh Akar