Dismissed

Shardaben Wd/O Ranchhodbhai Dahyabhai Mistry v. Kapilaben Kantibhai Patel

Gujarat HC19 Jul 2018SA/216/2018

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal filed by a plaintiff challenging the dismissal of her suit for specific performance of an agreement to re-convey land. The Court held that the appeal did not raise any substantial question of law and refused to interfere with the concurrent findings of lower courts.

What did the court decide?

The Second Appeal was dismissed, and the judgment and decree of the courts below were affirmed.

Shardaben Wd/O Ranchhodbhai Dahyabhai Mistry Vs… — Specific Performance | Gujarat HC (2018)

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C/SA/216/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SECOND APPEAL NO. 216 of 2018

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With CIVIL APPLICATION NO. 1 of 2018

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SHARDABEN WD/O RANCHHODBHAI DAHYABHAI MISTRY

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Versus KAPILABEN KANTIBHAI PATEL

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Appearance:

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MR YOGESH G DEV(5700) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 19/07/2018

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ORAL ORDER

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This Second Appeal under Section 100 of the CPC is at the instance of the original plaintiff and is directed against the judgment and order dated 29.09.2017 passed by the 9^th Additional District Judge, Vadodara, in the Regular Civil Appeal No.24/2012 arising from the judgment and decree dated 26.12.2011 passed by the Additional Civil Judge at Padra in the Regular Civil Suit No.121/1996.

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It appears from the materials on record that the appellant herein - original plaintiff preferred a Regular Civil Suit for redemption of the mortgage by conditional sale and in the alternative prayed for a decree of specific performance of the

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Page 1 of 13

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C/SA/216/2018 ORDER

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contract for re-conveyance.

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The case of the plaintiff as averred in the plaint is that they are the owners of the land bearing survey No.48 (new Block No.59). As the plaintiff was in need of money, she offered to sell her land and in such circumstances, executed an agreement to sale dated 13.03.1975 in favour of the defendants for a sum of Rs.19,500/-. On 02.09.1975, the plaintiff executed a sale deed in respect of the suit land in favour of the defendants for a sum of Rs.19,500/-. On 06.09.1975, the defendants once again executed an agreement in favour of the plaintiff to re-convey the said land on condition of payment of Rs.19,500/-. The understanding was that the defendants would re-convey the land if the amount of Rs.19,500/- was paid within 15 years from the date of execution of the agreement. The day fixed was Akhatrij, as it is supposed to be a very auspicious day. The documents, i.e. the sale deed dated 02.09.1975 and the agreement for reconveyance dated 06.09.1975, were registered in the office of the Sub Registrar on 06.09.1975. It is the case of the plaintiff that on 20.04.1996, she requested the defendants to accept the amount of Rs. 19,500/- and re-convey the land. However, the defendants declined to do so. In such circumstances, the

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Page 2 of 13

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C/SA/216/2018 ORDER

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plaintiff served a notice to the defendants on 16.10.1996 by a registered post A.D. Despite the service of notice, the defendants failed to perform their part of the obligation. It appears that prior to 16.10.1996 also one notice was issued sometime in the year 1994. As the defendants declined to reconvey the land, the suit came to be filed. The defendants appeared and contested the suit by filing their written statement vide Ex-49. The stance of the defendants in the written statement is that the understanding arrived at between the parties was very clear that if the plaintiff would pay the amount of Rs.19,500/- at any point of time within 15 years, on Akhatrij, the defendants would re-convey the land. According to the defendants, the plaintiff was never ready and willing to perform her part of the contract. At no point of time, she requested for extension of time, nor the defendants ever agreed orally to extend the time.

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Having regard to the pleadings of the parties, the Trial Court framed the following issues vide Ex-13:

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(1) Whether the plaintiffs prove that they are the owners of the suit property and that there was a conditional sale between the plaintiffs and the defendants ?

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(2) Whether the plaintiff proves that he is ready and

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Page 3 of 13

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C/SA/216/2018 ORDER

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willing to perform his part of the contract in accordance with the agreement ?

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(3) Whether the plaintiffs are entitled to the reliefs prayed for in the suit ?

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The issues framed by the trial Court referred to above came tobe answered as under:

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In Negative.

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In Negative.

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In Negative.

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6. The relevant findings of the trial Court are as under:

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“(10) So far as to issue no.2 is concerned,

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 The plaintiff deposed produced vide
Exhibit 28 that the plaintiff on 20/4/1996
i.e. AKHATRIJ coming in the 15 years from
the date of execution of the agreement,
requested the defendant to receive his
consideration money and to re-convey the
land but he delayed the matter, whereupon
the plaintiff sent registered legal notice
to the defendant on 16/10/1996 produced
vide Exhibit-35, but even then the
defendant failed to perform his part of
contract.

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Page 4 of 13

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C/SA/216/2018 ORDER

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contended that since the promise given by
the Defendant to return the property upon
the plaintiff returning Rs.19,500/- on the
stipulated time was contained in a separate
document i.e. agreement of reconveyance of
the land dated 06/09/1975, produced vide
Exhibit 30.

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(10.2)The decision of the hon'ble Supreme
Copurt, Gauri Shankar prsad v/s Brahma Nand
Singh, A.I.R. 2009 S.C. (Supp) 917, wherein
it has been held by the Apex court of the
country that “if sale and agreement to re-
purchase are embodied in separate
documents, it cannot be a case of the
mortgage and in such cases relating to re-
conveyance time is always the essence of
the contract.”

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 14...In the case of agreement of re-
purchase, the conditions of re-purchase
must be construed strictly against the
original vendor and the stipulation with
regard to time of performance of the
agreement must be strictly complied with as
the time must be treated as being of the
essence of the contract in the case of an
agreement of re-conveyance. “Gauri Shankar
prsad v/s Brahma Nand Singh, A.I.R. 2009
S.C. (Supp) 917.

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C/SA/216/2018 ORDER

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(10.3) The claim of the plaintiff that he
issued a legal notice, Exhibit-33 with the
cheque, for the value of Rs. 19,500/-
Exhibit 34 i.e. the consideration amount,
dated 09/05/1994 is also of no assistance
because the period of limitation expired on
23/04/1990 i.e. Akhatrij coming in the 15
years from the date of agreement i.e. the
agreement of reconveyance dated 06/09/1975
produced vide Exhibit 30 and the suit was
filed on 23/10/1996.

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(10.4) So in view of the above discussion,
it transpires that there was an agreement
of reconveyance (exhibit 30) and there was
specific stipulation for re-conveyance of
the land within a period of 15 years i.e.
Akhatrij coming in the 15 years from the
date of agreement which was admittedly not
complied by the plaintiff.

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(10.5) After considering the deposition of
the plaintiff, and carefully perusing the
documents produced by the plaintiff and the
provision of Section 58 of the transfer of
Property Act, this Court is of firmly
opinion that the plaintiff was not ready to
perform the essential terms of the
agreement of reconveyance. So my finding
on issue no.2 is in negative.”

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C/SA/216/2018 ORDER

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The suit ultimately came to be dismissed. The plaintiff being dissatisfied with the judgment and decree passed by the trial Court dismissing the suit, preferred the Regular Civil Appeal No.24/2012 in the District Court at Vadodara. The lower Appellate Court on reappreciation and reevaluation of the evidence on record, affirmed the judgment and decree passed by the trial Court dismissing the suit and thereby, dismissed the appeal filed by the plaintiffs. The relevant findings recorded by the lower Appellate Court are as under:

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“16.Thus, the whole case of the
plaintiff is based upon these three
documents. Now, if we minutely read the
document at Exh.41, the same is Sale Deed
by virtue of which the original owner
Ranchhodbhai Dahyabhai i.e. deceased
husband of the plaintiff had sold and
conveyed the land in dispute to Kantibhai
Ranchhodbhaid. Nowhere in the entire
document, it has been stated about
conditional sale. This is a simple deed
of sale by virtue of which Kantibhai
Ranchhodbhai had become absolute owner
and occupier of the captioned land i.e.
Survey No.48 of village Luna.

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17.While drawing the attention of this
Court towards Exh.23, Ld. Advocate for

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C/SA/216/2018 ORDER

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the plaintiff has emphasized on the point
that the plaintiff had issued notice to
the defendant on 07/05/1994 and has
called upon him to perform his part of
contract. Along with the said notice the
plaintiff had also sent a bank cheque of
Rs.19,500/- drawn on State Bank of India
dated 09/05/1994. Thereafter, again the
plaintiff had issued another notice on
15-16/10/1996 (Exh.35) and thereby had
called upon Kantibhai Ranchhodbhai to
remain present at the office of the Sub-
Registrar, Padra for the purpose to
execute re-conveyance deed by accepting
Rs.19,500/-.

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18.Now, so far Kantibhai Ranchhodbhai
is concerned, on receipt of the notice
dated 07/05/1994 from the plaintiff, he
has replied the said notice by his reply
dated 22/06/1994 whereby he had expressed
malafide intention of the plaintiff to
extort money from the defendant and along
with the said reply he had returned the
banker cheque of Rs.19,500/- to the
plaintiff, which was received by the
plaintiff.

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19.As stated above, as agreed between
the parties, the plaintiff had to pay

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C/SA/216/2018 ORDER

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Rs.19,500/- to Kantibhai Ranchhodbhai on
Akhatrij coming after 15 years. Now the
said condition was agreed between the
parties on 06/09/1975 when the sale deed
for re-conveyance conditional sale was
executed.Accordingtothesaid

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condition, the plaintiff had to pay
Rs.19,500/- to the defendants in the year
1990, more particularly on 23/04/1990.
There is nothing on record to prove that
the plaintiff has shown his readiness and
willingness to pay the said amount of
Rs.19,500/- to defendants on 23/04/1990

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to get re-conveyed his land. Then, in the
year 1994 more particularly on 07/05/1994
the plaintiff had all of a sudden wake up
and served notice to defendants for
specific performance for re-conveyance
deed conditional sale. At the cost of
repetition it is worth to note that along
with said notice the plaintiff had also
sent banker cheque of Rs.19,500/- which
was refused and returned back to the
plaintiff.Thereafter,againthe
plaintiff had remained silent up to 15-
16/10/1996 i.e. the date on which second
notice was issued by the plaintiff.

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20.The plaintiff has claimed a relief
of specific performance of contract of

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re-conveyance. In the said contract there
is specific condition and a specific time
limit was fixed for performance of the
said contract, which the plaintiff is
miserably failed to do so. According to
specified condition of the contract, the
plaintiff ought to have paid Rs.19,500/-
to the defendants on or before
23/04/1990, and if the plaintiff had
tried his level best to comply with the
said condition and even though the
defendants had denied or refused to
perform their part of contract, in that
event, the plaintiff was required to file
suit against the defendants within three
years from such refusal i.e. on or before
22/04/1993. But, if we go through the
plaint, it becomes clear that the
plaintiff wake up in the year 1996 i.e.
on 22/10/1996. Thus, the suit of the
plaintiff is time barred.

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21.For the foregoing reasons, this
Court is of the considered opinion that
the suit of the plaintiff was nothing,
but a frivolous and vexatious attempt to
make the title of defendants cloudy,
however, remained unsuccessful. Under the
circumstances I do not find any reason to
interfere with the judgment and decree

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Page 10 of 13

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C/SA/216/2018 ORDER

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passed by the learned Trial Court. In
view of the above, issue no.1 is answered
in “negative” and issue no.2 is answered
in “Affirmative”. Out growth of the above
discussion, present appeal fails, and
thus, following order.”

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Being dissatisfied with the judgment and order passed by the lower Appellate Court, the plaintiffs are here before this Court with this Second Appeal under Section 100 of the CPC. In the memorandum of the Second Appeal, the following questions have been formulated as the substantial questions of law.

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“1.Whether the suit was filed within
limitation and or whether the limitation
to file suit and cause of action got
extended because of legal embargo or
pending litigation with other forums.

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2.Whether unjustifiedly respondent

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refused to specific right to acquire any
property or performance of his contract
when the appellant was ready and willing
to perform his part of contract as per
agreement dated 6/09/1975.

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3.Whether the proviso to Sec. 58 of
the T.P. Act will be applicable when the

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transactions are connected and conducted
in a series.”

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Having heard the learned counsel appearing for the appellant - original plaintiff and having gone through the materials on record, I am of the view that none of the questions formulated in the memorandum of the Second Appeal could be termed as substantial questions of law. What is sought to be relied upon is the agreement of the year 1975. The suit came to be filed in the year 1996. If we go by the terms of the agreement, and even if such agreement is believed for the time being, then the re-conveyance should have been by 1990. The understanding between the parties was that, if the amount would be paid within 15 years, on the day of Akhatrij, then the defendants would reconvey the land to the plaintiffs. There are concurrent findings recorded by both the Courts below as regards the readiness and willingness on the part of the plaintiff to perform her part of the contract. Even otherwise, a decree for specific performance of contract is discretionary and it is not necessary that the Court should grant it because it is lawful for the Court to do so. As regards the grant of relief for specific performance, there are many factors which the Court must take into consideration. I am conscious of the fact that mere delay by itself may not be

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sufficient to deny specific performance, but at the same time, the overall facts and circumstances should be looked into before such discretionary relief is granted.

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Both the Courts below have declined to grant the relief. In my view, the findings recorded by the Courts below could not be termed as erroneous or illegal, giving rise to any substantial question of law. It will not be appropriate for this Court in the matter of the present nature to interfere and disturb the concurrent findings.

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In the result, this Second Appeal fails and is hereby dismissed.

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(J.B.PARDIWALA, J)

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MAYA

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Shardaben Wd/O Ranchhodbhai Dahyabhai Mistry v. Kapilaben Kantibhai Patel

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Shardaben Wd/O Ranchhodbhai Dahyabhai Mistry v. Kapilaben Kantibhai Patel

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