Nisha Gupta, J. - (1.) THIS first appeal under Section 96 CPC has been filed against the judgment and decree dated 6.8.2013 passed by Additional District Judge, Kishangarh, Distt. Ajmer in Civil Suit No. 58/2011 (34/2010) (102/2009) whereby a decree for specific performance and injunction has been passed against the appellants.
(2.) THE brief facts of the case are that plaintiffs respondents filed a suit for specific performance of the contract and permanent injunction stating therein that appellants No. 1 and 2 agreed to sale five shops including basement and roof to the plaintiffs in the tune of Rs. 63 lacs and agreement was also executed on 27.8.2009 and plaintiffs paid Rs. 6,50,000/ - cash to the appellants at the time of execution. It was further agreed between the parties that the entire payment shall be made on or before 30.11.2009 and the sale deed would be executed in favour of plaintiffs. It was further agreed that if plaintiffs failed to make compliance within the stipulated time period then the advance payment shall be forfeited and the agreement would be cancelled automatically and if the appellants did not execute the sale deed then he will return twice of advance money received by them. It was further sated that Rs. 10 lac as also been paid to the appellants on 3.9.2009 and total 16,50,000/ - has been received by the appellants inspite of this appellants did not execute the sale deed. A public notice was published on 6.12.2009 but the appellants did not execute the sale deed. The plaintiffs have stated that they are ready and willing to perform their part but appellants are denying the execution of the same hence suit has been filed. In written statements the appellants have admitted the execution of the agreement but the contentions were that the time was the essence of the contract, plaintiffs did not make the payment upto 30.11.2009, hence the agreement became cancelled and plaintiffs were not ready and willing to perform their part as per the condition of agreement and suit should be dismissed. After considering the pleadings of the parties, the learned trial Court framed the following four issues: To prove his case, the plaintiffs have produced PW/1 Sanjay Garg, PW/2 Omprakash Rathi, PW/3 Ganesh Prasad Rathi and PW/4 Dinesh Garg and defendants have also produced D.W./1 Padam Chand Kothari, D.W./2 Virendra Kumar Kothari and D.W./3 Deepak Jain. After completion of hearing the suit has been decreed, hence this appeal.
(3.) THE contention of the present appellants is that the time was the essence of the agreement and till 30.11.2009, the money has not been paid to him, hence in terms of the agreement, it was automatically cancelled and decree for specific performance should not be passed and other contention is that respondents were not ready and willing to perform his part of contract, they were not having remaining sale consideration with them hence the court below has erred in passing the impugned decree. Per contra, the contention of the respondents is that time was not the essence of the contract, they were ready and willing to perform their part of contract, they have given legal notice to the appellants and also published a public notice, the court below has not framed any issue that the time was essence. The respondents were ready and wiling to perform their part and decree has rightly been passed, no interference is needed.;