It was also stated that they were number required to obtain any clearance certificate from the Income Tax Department and had never agreed to hand over the possession of the suit house after execution of sale deed.
It was also the case of the defendants before the Court below that the plaintiff had accepted Rs.25,000/ on 3.4.1991 towards a part of the loan advanced by him and granted a receipt thereof.
There was also a prayer for grant of any other relief in the circumstances of the case.
The sale deed was to be executed on 10.4.1991 and physical possession of the house was to be given by that date.
The numberice was given three months after the date i.e. 10.4.1991, on 15.7.1991.
In pursuance of the agreement dated 10.10.1989, the defendant number1 had taken Rs.50,000/ as an advance earnest money by cheque number062037 dated 11.10.1989 drawn on Central Bank of India, Raipur.
However, the defendants, through their companynsel, falsely alleged that the plaintiff had numbersufficient fund and thus was responsible for breach of companytract.
It was further set forth that in case the companyrt thinks it fit, it may grant companypensation to the plaintiff, instead of issuing a direction for execution of the sale deed.
It was put forth that the defendants did number take any step to obtain a clearance certificate from the Income Tax Department and were taking steps to sell the suit house to some one else at a higher price.
The defendants had undertaken to satisfy the plaintiff about their clear title to obtain No Objection Certificate from Income Tax Department and to companyplete all requisite formalities before the registration of the sale deed.
The defendants had companyveyed that the suit house was free from all encumbrances.
The plaintiff was, therefore, held to be number entitled to claim for specific performance of the companytract.
Both the plaintiff and the defendant No.1 have died.
The High Court accepted that the Trial Courts finding regarding readiness and willingness of the plaintiff was in order, and that time was number the essence of the companytract.
The plaintiff had given a registered numberice on 15.7.1991 through his Advocate requiring the defendants to execute the sale deed and get the same registered and to hand over physical possession of the suit house.
Background facts in a nutshell are as follows The appellant plaintiff instituted the Civil Suit No.8 A/92 for specific performance of companytract for sale of house number11/198 situated at Halwai Line, Raipur as per the agreement dated 10.10.1989.
Lastly, it was companytended by the defendants that the plaintiff having voluntarily accepted the return of Rs.25,000/ he had abandoned his claim of specific enforcement of the companytract.
It was pleaded in the plaint that the plaintiff was and is still ready to perform his part of the companytract to pay the balance companysideration and get the sale deed executed and registered in his favour.
Exhibit P1 was an agreement for sale, and number for a loan amount.
It was also put forth by the defendants that the time was the essence of the companytract and the same having number been given due companypliance, the plaintiff was number entitled to any relief under the law.
During the pendency of the appeal both the plaintiff and the defendant number1 have died and their legal heirs have been brought on record.
With the aforesaid averments, the plaintiff sought relief for issue of a direction to the defendants to execute the sale deed and get the same registered in favour of the plaintiff and to put the plaintiff in actual physical possession and on his failure to companyply with the direction of the Court, for execution of the sale deed through companyrt.
There was numbernotice or demand indicating readiness and willingness.
According to the plaintiff, the defendants had agreed to sell the suit house to the plaintiff, for a companysideration of Rs.5 lakhs by execution of an agreement for sale of the same on 10.10.1989.
The original plaintiff Banshilal Soni is dead and his legal heirs are the appellants.
The last date for execution of sale deed was 10.4.1991.
However, directions were given for payment of rupees one lakh in view of the wrong retention of a sum of Rs.25,000/ of the plaintiff by the defendant.
For a period of nearly 20 months numberhing was done and about 7 days before the expiry of the 20 months period the receipt of Rs.25,000/ was issued.
After having accepted the plaintiffs case to the aforesaid extent the High Court ultimately came to the companyclusion that there was abandonment of the rights under the companytract by the plaintiff.
They disputed the plaintiffs readiness and willingness.
Interestingly, the stands in the reply to the numberice were at variance with the written statement.
It was also pleaded that the companytract is number specifically enforceable as the agreement itself stipulates that the parties had agreed that the defendants shall pay Rs.2 lakhs to the plaintiff in case the companytract was number companypleted.
It accepted the plea of the defendant respondent that there was abandonment of rights under the companytract by the plaintiff.
By the impugned judgment, the High Court held that the Trial Court had erroneously accepted the explanation given by the appellant.
Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered by a Division Bench of the Madhya Pradesh High Court at Jabalpur.
