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Second Appeal No. 235 of 2018

Decided On: 23.06.2021

Appellants: Basheer Ahmed Noor-ul-Hussain Farooqui Vs. Respondent: Shaikh Hamad

Hon'ble Judges/Coram:
Avinash G. Gharote


Avinash G. Gharote, J.

1. Heard. Rule. Rule returnable forthwith. The following substantial questions of law arises for consideration.

"a) Whether the benefit of Section 14 of the Limitation Act, 1963 were available to the plaintiff considering, that he was prosecuting remedies under the Consumer Protection Act, 2019 in respect of the agreement in question?

b) Whether time was of essence of contract?

c) What is the scope and ambit of Section 16 (c) of the Specific Relief Act, 1963?

2. I have heard the learned counsel for the parties on the above substantial questions of law. The entire paper book alongwith the exhibited documents have been placed on record and therefore, there is no need to call for the Record and Proceedings.

3. The present appeal challenges the concurrent findings rendered by the courts below, holding that Section 14 of the Limitation Act, was not applicable and therefore, the suit for specific performance as filed by the appellant/plaintiff, was barred by limitation and so also the findings, that the plaintiff was not ready and willing to perform his part, as time was the essence of contract. The parties are referred hereto in the same nomenclature as they were before the trial court.

4. Facts giving rise to the present appeal are as under:

5. The agreement of sale dated 04.04.2006 and its terms and conditions, the issuance of the notice dated 04.10.2006 and the reply dated 14.11.2006 stand admitted. So also, the filing of RCS No. 83 of 2007 and its withdrawal also stand admitted.

6. Mr. Mustafa, learned counsel for the appellant contends, that the findings of the learned trial court that the plaintiff failed to prove his readiness and willingness as the balance consideration of Rs. 2,00,000/-, was not paid within the period of eight months from the date of the agreement, and on this count, the agreement stood automatically canceled, are not sustainable on the face of the record. He submits, that insofar as the plea regarding applicability of Section 14 of the Limitation Act, 1963, the finding that since the suit had been filed in the year 2011, the factum, that the plaintiff was prosecuting proceedings before the Consumer Forum and the State Commission, would not enure to the benefit of the plaintiff, as he was aware that no service had been rendered to him by the defendant, by the trial court, is per se illegal and without any substance whatsoever and the plaintiff was entitled to the benefit of Section 14 of the Limitation Act. He submits, that the readiness and willingness is demonstrated by the fact that major part of the consideration already stood paid on the date of the agreement of sale itself and the issuance of the notice dated 04.10.2006. He submits, that to demonstrate readiness and willingness, it is not necessary for the plaintiff to have a ready-made scheme of finance. Insofar as time being of the essence of contract, he submits, that the property was mortgaged with the Buldhana Urban Credit Co-operative Society and it was for the defendant to get it cleared. He submits, that it was therefore necessary for the defendant to produce a No Dues Certificate from the Buldhana Urban Credit Co-operative Society in this regard as the same was necessary for the execution and registration of the ........