JUDGMENT S.B. Shukre, J. 1. Heard. Admit. Taken up for final hearing by consent of learned counsel for the parties. 2. In a suit filed for specific performance of the contract, the appellants' application for grant of temporary injunction was rejected by 2nd Joint Civil Judge, Sr.Dn., Amravati by the order dated 6.1.2014 against which the present appeal has been filed. 3. It was the case of the appellants that as per agreement dated 4.5.2011 the respondent-owner of suit lands bearing Survey No. 91/1/A and 89/2, had agreed to sell these lands, hereinafter referred to as suit lands, for consideration of Rs.20,84,062/-. At the time of execution of the agreement, an amount of Rs.5,21,015/-was paid by the appellants to the respondent and later on an amount of Rs. one lac was also paid by them to the respondent as part payment of the consideration of agreement to sell. Appellants' counsel submitted that last date of execution of sale-deed was 4.11.2011 and it was specifically mentioned that upon failure of the appellants to get the sale-deed executed by the time so stipulated, the respondent would be entitled to forfeit the earnest money. Certain liabilities were also imposed upon the respondent, one of which was that he would be carrying out measurements of the suit lands at his expenses. 4. The appellants further submitted that on 4.11.2011 they were present in the office of Sub Registrar, but the respondent did not turn up and, therefore, sale-deed could not be executed, although they were ready and willing to perform their part of contract. On the same day, the appellants also executed an affidavit showing their presence at the office of Sub Registrar. Thereafter the appellants sent a notice to the respondent calling upon him to fulfill the promise under the agreement, but in vain. Therefore, the appellants preferred a suit for specific performance of contract against the respondent and also claimed injunction against him. 5. The application for grant of temporary injunction was resisted by the respondent. Basically, it was his case that the agreement to sell alleged to be executed by him in favour of the appellants was a nominal document and underlying transaction was of money lending. He submitted that he had obtained an amount of Rs. 5. The application for grant of temporary injunction was resisted by the respondent. Basically, it was his case that the agreement to sell alleged to be executed by him in favour of the appellants was a nominal document and underlying transaction was of money lending. He submitted that he had obtained an amount of Rs. one lac from the appellants by way of loan and since the appellants threatened him to not lend him the money and that he was badly in need of money, he was compelled to sign the stamp paper in black as well as certain papers also in blank. He also submitted that one of the lands bearing survey no. 89/2, being a fragment, could not have been sold by him in view of bar under Bombay Prevention of Fragmentation and Consolidation of Holdings Act (for short Fragmentation Act). He also submitted that the fact that boundaries of one of the lands were not described at all in the agreement to sell, would itself show that the agreement was sham and bogus. On these grounds, he urged that the temporary injunction application should be rejected. 6. The contentions of respondent were upheld and by the order dated 6.1.2014 the learned Civil Judge rejected the application for grant of temporary injunction. 7. Learned counsel for the appellants submits that the order of rejection of temporary injunction application is illustrative of perverse appreciation of agreement of sale dated 4.5.2011 and the arbitrary exercise of discretion in refusing the relief of temporary injunction to the appellant. In support, he has taken me through the agreement to sell dated 4.5.2011 and also the impugned order dated 6.1.2014. 8. Learned counsel for the respondent strongly resisting the contentions, submits that the impugned order is correct and it does not exhibit any perverse or arbitrary exercise of discretion in the matter and so this Court cannot interfere with the same. He has also taken me through the agreement in question and also the impugned order in support of his argument. 9. Upon going through the impugned order and also the agreement to sell dated 4.5.2011, I find that there is great force in the argument of learned counsel for the appellants and no merit in the argument of learned counsel for the respondent. 10. 9. Upon going through the impugned order and also the agreement to sell dated 4.5.2011, I find that there is great force in the argument of learned counsel for the appellants and no merit in the argument of learned counsel for the respondent. 10. It is seen from the impugned order that the learned Civil Judge has refused to grant temporary injunction in favour of the appellants on the grounds that there has been delay and laches on the part of the appellants, that there was no readiness and willingness on the part of the appellants and that one of the lands which is the land bearing survey no. 89/2 being a fragment, its transfer was not permissible under Fragmentation Act. These grounds, on a closer look at the agreement to sell as well as other documents filed on record of the appeal appear to be the result of perverse appreciation of agreement to sell carried out by the learned Civil Judge. 11. I do not understand how delay and laches can be inferred only because notice in the matter had been issued on 7.4.2012 by the appellants. Last date of execution of the sale-deed, prima facie, was 4.11.2011 and as respondent neither got the suit land measured by this date nor did remain present at Sub-Registrar's office on that date, limitation period of three years, as provided for specific performance of contract under Article 54, Limitation Act, 1963, commenced, prima facie from 4.11.2011. Notice was issued in about five months from 4.11.2011, though it may not have been necessary, time being of the essence of contract, and it was well within limitation. When the notice was well within limitation, one is appalled to note the reasoning of learned Civil Judge that a notice issued about 5 months after the last date of performance indicated delay and laches. 12. I have already found that time was of the essence of contract. Reasons being that the agreement fixed the date of 4.11.2011 to be the last date of performance and provided also for forfeiture of earnest money by the respondent upon failure of the appellants to get the sale-deed executed by that date. Then, there was also a clause in the agreement that the respondent himself would get measured the suit lands at his expenses. Then, there was also a clause in the agreement that the respondent himself would get measured the suit lands at his expenses. There is no prima facie evidence of measurement of suit lands or any effort taken by the respondent in that regard. Therefore, the failure to fulfill his part of the contract, prima facie, was of the respondent and not of the appellants. The appellants had paid, prima facie, part of the consideration and were willing to perform their part, as can be seen at this stage from their presence at Sub-Registrar's office on 4.11.2011, disclosed by their affidavit. The respondent did not go to Sub-Registrar's office on that date, there being no prima facie evidence to that effect. These facts, prima facie, would only show that willingness and readiness of appellants and not of respondent was writ-large. Here also, the learned Civil Judge has gone completely against the record of the case by recording a perverse finding that appellants were not prima facie ready and willing to perform their part of the contract. 13. Learned counsel for the respondent questions genuineness of the agreement itself. I am not impressed by the argument that this document prima facie cannot be held to be genuine for the simple reason that on the agreement there appears to be signatures of appellants as well as signatures of respondent. This agreement is in five pages. By merely saying that the respondent had affixed his signatures on some blank papers would not be enough. Respondent ought to have specifically stated as to how many such blank papers were there on which, according to him, his signatures were affixed. Even otherwise, it is a matter of defence and, therefore, would require its consideration on merits of the case, as detailed evidence is not available at this stage. At this stage, one has to go by the prima facie nature of the agreement and upon a careful perusal of the agreement, one can see prima facie that the agreement cannot be said to be nominal or not genuine. Had it been only a nominal agreement there would not have been any need for the parties to stipulate the date by which the sale-deed was to be executed. Had it been only a nominal agreement there would not have been any need for the parties to stipulate the date by which the sale-deed was to be executed. Such condition present in the agreement would lend credence to the submission of learned counsel for the appellants that at this stage, prima facie genuineness of the document cannot be questioned. Then, survey nos. of suit lands were mentioned in the agreement, which would be sufficient at this stage to identify them. Therefore, failure to mention boundaries of one of the suit lands would also not make the agreement, at this stage, doubtful. 14. So, upon over all consideration of terms and conditions of the agreement which has been found to be prima facie genuine, as discussed above, I find that the responsibility for the delay and laches in the matter cannot be shifted to the appellants nor unwillingness nor unreadiness of the appellants can be discerned. In fact, the appellants had not only paid earnest money at the time of execution of agreement to sell but also later on paid additional amount of Rs.75,000/-through online transfer and Rs.25,000/-through direct deposit in the account of the respondent. This would also support the contention that the agreement is prima facie genuine. 15. At this stage, I consider it necessary to deal with the reasons given by the learned Civil Judge to find absence of readiness and 8 willingness on the part of the appellant. The learned Civil Judge states in para 11 thus : "As regards the terms and conditions as mentioned in the agreement, at page 4 of the said agreement, it is mentioned that before the execution of sale-deed, the defendant agreed to measure the suit property and thereafter remaining consideration was to be paid as per the actual measurement. It was, therefore, incumbent on the plaintiffs to show as to what effective steps were taken by them to get measured the suit property and to show readiness and willingness on their part. However, it reveals that no effective steps are taken till 04.11.2011 which was agreed date to execute sale-deed of the suit property. Moreover, it reveals that the plaintiffs have issued a notice on 07.04.2012 after passing the agreed date for execution of the sale-deed." The learned Civil Judge was interpreting a clause in the agreement executed in Marathi language imposing a clear obligation upon the respondent only. Moreover, it reveals that the plaintiffs have issued a notice on 07.04.2012 after passing the agreed date for execution of the sale-deed." The learned Civil Judge was interpreting a clause in the agreement executed in Marathi language imposing a clear obligation upon the respondent only. The interpretation assigned to this clause, and which is reproduced earlier, is absurd. Prima facie, the clause shows that it were the respondent who had to initiate the action and get the lands measured. If the respondent did not do it, absence of readiness and willingness would be on the part of respondent and not otherwise. 16. The third reason relates to one of the suit lands being hit by bar under Fragmentation Act. Without going into the merits of the objection taken by the learned counsel for the respondent in this behalf, I must say that at least there is one land in respect of which agreement to sell has been executed, which has not been prima facie hit by the bar under the said Act. Therefore, at least, in respect of one of the lands therein, the injunction as sought for could have been granted. As regards the land in respect of which objection of bar under Fragmentation Act has been taken, I must say that although same can be considered on merits of the case, there is another angle from which the issue needs to be approached at this stage. By agreeing to sell even this piece of land, prima facie, respondent has shown his knowledge that the land is not covered by the bar of fragmentation, and if the respondent is to be heard on this objection at this stage, as rightly submitted by the learned counsel for appellants, it would amount to allowing the respondent to take advantage of his own wrong. 17. In view of the above discussion, I find that this is a case wherein the appellants have established existence of prima facie case in their favour. Substantial amount of sale consideration has prima facie been paid by the appellants to the respondent. Therefore, balance of convenience would tilt in their favour. The property in question is an immovable property which prima facie appears to have non agricultural potentiality. Therefore, if injunction is refused, there is a possibility of causing of irreparable loss to the appellants, also arising of complications in the matter. Therefore, balance of convenience would tilt in their favour. The property in question is an immovable property which prima facie appears to have non agricultural potentiality. Therefore, if injunction is refused, there is a possibility of causing of irreparable loss to the appellants, also arising of complications in the matter. Accordingly, I find that the order impugned herein cannot be sustained in law and it deserves to be quashed and set aside. 18. In view of the above, appeal is allowed. Impugned order is hereby quashed and set aside. Application (Ex.5) for condonation of delay is granted in terms of its prayer clause (i) till final disposal of the suit. Parties to bear their own costs.