CAV Judgment

Per Goutam Bhaduri, J.

1. Both these appeals are being heard and decided together as similar question of facts and law are involved.

2. Facts of this case are that two agreements were entered by plaintiff Motilal Dayalani with respondent No.1 Ashok Kumar Guha on 05.07.2010. One agreement was for purchase of land bearing Khasra No.621/44 ad- measuring 1510 sq.ft., and the shops, slab house and other structures built thereon situated at Mouja Tifra, Ward No.7, Gurughashidas Nagar Ward, diverted sheet No.27, Block No.20, Plot No.408 by one agreement. Another agreement was executed on the same date for purchase of adjacent diverted plot bearing Khasra No. 622/4 ad-measuring 3500 sqft and the two storied slab-house built thereon situated at Mouja Tifra, Ward No.7, Gurughashidas Nagar Ward at Ring Road No.2. According to the plaintiff, though the defendant agreed to sell the same on a particular price after carrying out the demarcation, sale deed was not executed and notices were exchanged between the parties. Eventually the sale deeds having not been executed, suit for specific performance was filed.

3. The defendant in his written statement contended that the plaintiff was required to pay the sale consideration by a target date of 31/03/2011 and since the amount having not been paid by the plaintiff the agreement of sale was not honored. Consequently, since the time was essence of contract to pay the amount, the sale deed was not executed.

4. Learned trial court on the basis of the pleading primarily framed three issues in both the cases and gave findings thereof i.e., (i) Whether the agreement dated 05/07/2010 was in existence or not ? The trial Court answered it in negative and held that time was essence of the contract and it was the object of parties, therefore, in such situation, when the amount of sale consideration was not paid by 31.03.2011, it cannot be said that the contract agreement was in existence. (ii) The second issue was whether the defendant no.1 has received the earnest money at the time of execution of agreement dated 05.07.2010. The trial Court answered this issue in favour of plaintiff and directed the defendant to return the earnest money which was paid by the plaintiff. (iii) The third issue was whether the plaintiff was ready and willing to execute his part of contract dated 05/07/2010. The trial Court answered it in negative and held that the plaintiff was not ready and willing to complete his part of the agreement. The learned trial court, eventually dismissed both the suits. Being aggrieved by the impugned judgment and decree, the plaintiff has preferred these two appeals.

5. Learned counsel for the appellant would submit that certainly two agreements were executed for purchase of property, one was for Rs.60 lakhs and another was for Rs.40 lakhs. He submits that in second agreement though consideration of Rs.40 lakhs was written in figures, but in words Rupees Sixty Lakhs was shown and the respondent took the advantage of it to say that sale consideration was Rs.60 lakhs and not Rs.40 lakhs. He would further submit that when the intervention was made by the Society members, the appellant to save the sale forcefully agreed for sale consideration of Rs.60 lakhs each in order to avoid further delay to get the sale deed registered. He would further submit that according to the agreement, time was not the essence of the contract. While going through the contents of the agreement in both the cases Ex.P-1, he would submit that no-where it is termed in agreement that in absence of payment within the target date of 31.03.2011, the earnest money paid would stand forfeited. Instead, the agreement postulates that if any of the parties does not follow the terms of agreement, the said party would be obliged to pay damages. Consequently the time was not essence of the contract and the Court below arrived at a wrong finding.

6. He would submit that the specific clause of waiver existed in agreement and in case o