As per case facts, the original plaintiff filed a suit for specific performance of an agreement to sell land, asserting readiness and willingness. The original defendant disputed this, claiming a ...
RSA-4224-2013 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
114
RSA-4224-2013 (O&M)
Date of decision : 01.09.2025
Tehal Singh ...... Appellant
versus
Baldev Singh (since deceased) through his LRs and
ors
…... Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Aakash Singla, Advocate and
Ms. Vaishali Singla, Advocate
for the appellant.
Mr. Abhimanyu Tewari, Advocate and
Mr. Sidhant Awashti, Advocate
for the respondents.
*****
PANKAJ JAIN, J. (Oral)
1. Defendant is in second appeal. For convenience, parties
hereinafter are referred to by their original position before the Court of
the First Instance, i.e. appellant as defendant and respondent as plaintiff.
2. Plaintiff filed suit for possession by way of specific
performance of an agreement to sell dated 10.11.2004. As per plaintiff,
defendant agreed to sell land measuring 184 Kanal 2 Marlas in his
favour @ of Rs. 6,55,000/- per acre and executed agreement to sell
dated 10.11.2004 in writing after receiving Rs. 15 lakhs as earnest
money through cheque dated 10.11.2004. The parties agreed to get the
sale deed executed on or before 14.05.2005 on payment of balance sale
consideration by the plaintiff. It was also agreed that the defendants
would get the land redeemed before 14.05.2005. As per plaintiff, on
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10.11.2004, another agreement to sell qua Dera and the land beneath the
Dera was also executed between the parties. Plaintiff claims that he
always remained ready and willing to perform his part of contract,
however, defendants kept on delaying the same on one pretext or the
other. Plaintiff claims that on 08.05.2005, he came to know that the
defendant was negotiating qua sale of land with third parties. He
immediately approached defendant on 14.05.2005 for execution of the
sale deed. 14.05.2005 and 15.05.2005 were declared as public holidays.
Plaintiff claims to have remained present in the office of Sub-Registrar,
Karnal on 13.05.2005 along with balance sale consideration and
incidental charges. On the day after holidays, i.e. 16.05.2005, plaintiff
claimed that he again remained present in the office of Sub-Registrar,
Karnal. However, defendant failed to turn up to execute sale deed in his
favour. As per plaintiff, the defendants orally agreed to deliver actual
physical possession of the land which is joint with the plaintiff. Legal
notice dated 20.05.2005 was served upon the defendants without any
positive result. Plaintiff instituted present suit on 15.06.2005 claiming
decree of specific performance and in the alternative decree for
recovery of Rs. 30 lakhs, i.e. double the earnest money paid to the
defendants.
3. Suit was contested by the defendants claiming that plaintiff
is a practicing Advocate at District Courts, Karnal and was appearing in
Civil Appeal titled as ‘Jagir Singh v. Tehal Singh and another’ in the
Court of Additional District Judge, Karnal representing defendant No.1.
Plaintiff No.1 persuaded defendants to sell their agricultural land. They
agreed to sell the same @ Rs.7,90,000/- per acre in the presence of
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broker namely Lajwant Singh s/o Takhat Singh. Playing fraud, plaintiff
No.1 got the agreement to sell executed on 10.11.2004 for the land in
question @ Rs.6,55,000/- per acre instead of agreed rate of
Rs.7,90,000/- per acre. Plaintiffs were never ready to get the sale deed
executed and rather wanted to sell the same at higher rate with an intent
to earn profit. Prior to target date, i.e. 14.01.2005, defendants objected
to the agreement to sell regarding the rate mentioned as Rs.6,55,000/-
instead of Rs.7,90,000/-. It is admitted that on 14.05.2005 and
15.05.2005, it was Saturday and Sunday and Tehsil Complex at Karnal
was closed. Defendants claimed that plaintiffs orally extended the target
date from 14.05.2005 to 20.05.2005 and claimed that they remained
present in the office of Sub-Registrar Karnal on the extended date, but
the plaintiffs failed to turn up. Defendants claimed to have got their
presence marked on the said date. Receipt of earnest money of Rs.15
lakhs stands admitted. It is however claimed that plaintiffs were not in
possesion of amount Rs.1,35,73,187.50, i.e. balance sale consideration
apart from the requisite registration and stamp duty charges.
4. Suit was put to trial by the Court of First Instance framing
following issues:-
“1) Whether defendant has entered into an agreement to sell the suit
property to plaintiff at the rate of 6,55,000/- per acre, vide agreement
dated 10.11.2004 and received 15,00,000/- as earnest money? OPP.
2) Whether plaintiff is still ready and willing to perform his part of
contract? OPP.
3) If issues no. 1 and 2 are proved, whether the plaintiff is entitled to
have a sale deed executed and registered in his favour? OPP.
4) Whether plaintiff has got no locus-standi to file and maintain the
present suit? OPD.
5) Whether suit of plaintiffs is not maintainable? OPD.
6) Whether plaintiff has got no cause of action to file and maintain
the present suit? OPD.
7) Whether suit of the plaintiffs has not been properly valued for the
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purpose of court fees and jurisdiction? OPD.
8) Whether plaintiffs have concealed material facts from the court?
OPD.
9) Relief.”
5. Answering all the issues in favour of the plaintiffs, Trial
Court decreed the suit. The findings recorded by the Court of the First
Instance stand affirmed by the Lower Appellate Court in the appeal
preferred by the defendants.
6. Dissatisfied with the decree, the defendant is in second
appeal before this Court. Counsel for the appellant has assailed the
findings recorded by the Courts below, asserting that the plaintiffs
having failed to prove their readiness, Courts below ought to have
dismissed their suit. The suit filed by the plaintiffs seeking decree of
specific performance has been allowed without there being any
evidence to prove their readiness. Reliance is being placed upon Section
16(c) of Specific Relief Act, 1963 to submit that there being a statutory
bar from granting decree of specific performance, Courts below erred in
decreeing the suit filed by the plaintiffs. In order to hammerforth his
contentions, counsel for the appellant relies upon ratio of law laid down
by Supreme Court in the case of J.P. Builders v. A. Ramadas Rao
(2011) 1 SCC 429, U.N. Krishnamurthy v. A.M. Krishnamurthy
(2023) 11 SCC 775.
7. Counsel for the appellant has further drawn attention of this
Court to the findings recorded by the Courts below, wherein both the
Courts rely upon compensation paid to the plaintiffs on account of
acquisition of his land to return the finding of readiness. He submits
that the finding is perverse and is a result of misreading of evidence on
record. Reference is being placed upon testimony of plaintiff Balkar
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Singh, who appeared as PW5, DW1 Anil Gupta Record Keeper, Record
Room Sessions Courts, Karnala and that of DW3 Pawan Kumar,
Ahalmad from the Court of ADJ Karnal. He submits that from the joint
reading of the statements made by the witnesses including plaintiff
himself, it is evident that plaintiff had no funds to perform his part of
contract and thus, cannot be held to be ready to perform his part as
contemplated under Section 16(c) of 1963 Act. He submits that
misreading of the evidence on record has led to perversity in the
judgment of the Courts below. The judgment and decree passed by the
Courts below being perverse, need to be set aside.
8. Counsel for the respondent has submitted that both the
Courts have adjudicated the dispute in favour of the respondents
returned concurrent finding of facts. It is beyond the scope of regular
second appeal to re-appreciate the evidence for the third time. He refers
to the findings recorded by the Trial Court to submit that there is
admission on part of the defendants regarding execution of agreement
to sell dated 10.11.2004. The defence projected by defendants
regarding difference in the rate of land to be sold has been disbelieved
by the Courts. The earnest money deposited by the plaintiff through
two cheques remained with the defendants. On readiness and
willingness, he submits that the Trial Court has rightly noted the
categoric averments made by the plaintiff regarding their readiness and
willingness to execute agreement to sell. The two affidavits Ex.P1 and
Ex.P3 dated 13.05.2004 and 16.05.2004 exhibit the willingness and
readiness of the plaintiff. He relies upon testimony of DW3 Pawan
Kumar and DW4 Anil Gupta to contend that an amount of
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Rs.62,69,611/- and Rs.28,40,698/- was awarded as compensation to
plaintiff Baldev Singh and Santosh Rani respectively. Trial Court relied
upon the statement made by Baldev Singh that he arranged funds from
his family and friends, who were in turned to be paid back from the
funds received from the Land Acquisition Collector. Counsel in order
to support his contention relies upon Azhar Sultana v. Rajamani
(2009) 17 SCC 27. He contends that it was not essential for the plaintiff
to keep ready and file proof of the entire amount of consideration. He
was only required to prove his capacity to pay the sale consideration.
Further reliance has been placed upon ratio of law laid down in Sukhbir
Singh & Ors v Brijpal Singh & Ors 1997 2 SCC 200 to contend that
presence of plaintiff before the Sub-Registrar is enough to prove his
readiness and willingness. Further reliance has been placed upon
Dhanpat v. Sheo Ram 2020 (16) SCC 209 to submit that question of
law is quintessential to entertain regular second appeal.
9. In the considered opinion of this Court, the issue that
requires consideration of this Court is:-
(i)Whether the Courts below erred in holding plaintiff to
be ready and willing to perform his part of agreement to sell
dated 10.11.2004?
10. Trite it is that plaintiff in order to succeed in a suit for
specific performance apart from execution of valid agreement needs to
plead and prove that he always remained ready and willing to perform
his part of the contract. Supreme Court in Kamal Kumar v. Premlala
Joshi (2019) 3 SCC 704 observed as under:-
“7.It is a settled principle of law that the grant of relief of
specific performance is a discretionary and equitable relief.
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The material questions, which are required to be gone into
for grant of the relief of specific performance, are:
7.1First, whether there exists a valid and concluded
contract between the parties for sale/purchase of the suit
property.
7.2Second, whether the plaintiff has been ready and
willing to perform his part of contract and whether he is still
ready and willing to perform his part as mentioned in the
contract;
7.3Third, whether the plaintiff has, in fact, performed his
part of the contract and, if so, how and to what extent and in
what manner he has performed and whether such
performance was in conformity with the terms of the contract;
7.4Fourth, whether it will be equitable to grant the relief
of specific performance to the plaintiff against the defendant
in relation to suit property or it will cause any kind of
hardship to the defendant and, if so, how and in what manner
and the extent if such relief is eventually granted to the
plaintiff;
7.5Lastly, whether the plaintiff is entitled for grant of any
other alternative relief, namely, refund of earnest money etc.
and, if so, on what grounds.
8. In our opinion, the aforementioned questions are part of
the statutory requirements [See Section 16(c), 20, 21, 22, 23
of the Specific Relief Act, 1963 and the Forms 47/48 of
Appendix A to C of the Code of Civil Procedure]. These
requirements have to be properly pleaded by the parties in
their respective pleadings and proved with the aid of evidence
in accordance with law. It is only then the Court is entitled to
exercise its discretion and accordingly grant or refuse the
relief of specific performance depending upon the case made
out by the parties on facts.”
11. While explaining the import of the two different
expressions, ‘readiness’ and ‘willingness’, Supreme Court in the case of
J.P. Builders (supra) observed as under:-
“21. Among the three clauses, we are more concerned about
clause (c). "Readiness and willingness" is enshrined in clause
(c) which was not present in the old Act of 1877. However, it
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was later inserted with the recommendations of the 9th Law
Commission's Report. This clause provides that the person
seeking specific performance must prove that he has
performed or has been ready and willing to perform the
essential terms of the contract which are to be performed by
him.
22. The words "ready" and "willing" imply that the person
was prepared to carry out the terms of the contract. The
distinction between "readiness" and "willingness" is that the
former refers to financial capacity and the latter to the conduct
of the plaintiff wanting performance. Generally, readiness is
backed by willingness.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995)
5 SCC 115] at SCC para 5, this Court held: (SCC pp. 117-18)
"5.... Section 16(c) of the Act envisages that the
plaintiff must plead and prove that he had performed
or has always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than those terms the
performance of which has been prevented or waived
by the defendant. The continuous readiness and
willingness on the part of the plaintiff is a condition
precedent to grant the relief of specific performance.
This circumstance is material and relevant and is
required to be considered by the court while granting
or refusing to grant the relief. If the plaintiff fails to
either aver or prove the same, he must fail. To adjudge
whether the plaintiff is ready and willing to perform
his part of the contract, the court must take into
consideration the attending circumstances. The amount
of consideration which he has to pay to the defendant
must of necessity be proved to be available. Right
from the date of the execution till date of the decree he
must prove that he is ready and has always been
willing to perform his part of the contract. As stated,
the factum of his readiness and willingness to perform
his part of the contract is to be adjudged with reference
to the conduct of the party and the attending
circumstances. The court may infer from the facts and
circumstances whether the plaintiff was ready and was
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always ready and willing to perform his part of the
contract."
24. In P. D'Souza v. Shondrilo Naidu [(2004) 6-SCC 649] this
Court observed: (SCC p. 654 paras 19 and 21)
"19. It is indisputable that in a suit for specific
performance of contract the plaintiff must establish his
readiness and willingness to perform his part of
contract. The question as to whether the onus was
discharged by the plaintiff or not will depend upon the
facts and circumstances of each case. No straitjacket
formula can be laid down in this behalf.
21.... The readiness and willingness on the part of the
plaintiff to perform his part of contract would also
depend upon the question as to whether the defendant
did everything which was required of him to be done
in terms of the agreement for sale."
25. Section 16(c) of the Specific Relief Act, 1963 mandates
"readiness and willingness" on the part of the plaintiff and it is
a condition precedent for obtaining relief of grant of specific
performance. It is also clear that in a suit for specific
performance, the plaintiff must allege and prove a continuous
"readiness and willingness" to perform the contract on his part
from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C.
Chandiok v. Chuni Lol Sabharwal [(1970) 3 SCC 140] that
"readiness and willingness" cannot be treated as a straitjacket
formula. This has to be determined from the entirety of the
facts and circumstances relevant to the intention and conduct
of the party concerned.
27. It is settled law that even in the absence of specific plea by
the opposite party, it is the mandate of the statute that the
plaintiff has to comply with Section 16(c) of the Specific
Relief Act and when there is non-compliance with this
statutory mandate, the court is not bound to grant specific
performance and is left with no other alternative but to
dismiss the suit. It is also clear that readiness to perform must
be established throughout the relevant points of time.
"Readiness and willingness to perform the part of the contract
has to be determined/ascertained from the conduct of the
parties.”
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12. The aforesaid ratio laid down in the case of J.P. Builders
(supra) has been followed in subsequent judgments including those
rendered in U.N. Krishnamurthy (supra), Sangita Sinha vs. Bhawna
Bhardwaj and others 2025 Online SCC 73 and Jagjit Singh vs.
Amarjit Singh (2018) 9 SCC 805.
13. In the present case, there is no dispute with respect to
willingness of the plaintiff as he has been able to prove his presence
before the office of Sub-Registrar on 16.05.2006. Issue is readiness.
Trite it is that plaintiff in order to prove his readiness, is not required to
carry amount of consideration in cash and wave off the same but is
certainly required to prove that he had the capacity to perform his part.
One who seeks decree of specific performance needs to demonstrate
that had the other party turned up one scheduled date, he was ready to
honour his part of promise. The Lower Appellate Court while returning
findings with respect to readiness of the plaintiff observed as under:-
“59.This is also important to mention here that the suit for
perpetual injunction, which was subsequently amended in the
present form, vide order dated 8.6.2005, was instituted on
12.5.2005. The plaintiffs served legal notice Ex. P-6 upon the
defendants and to this effect, plaintiff Baldev Singh has
specifically stated on oath. Plaintiff Baldev Singh has been
practicing lawyer in District Courts, Karnal, since 1978.
Plaintiff Baldev Singh, while deposing in the witness box as
PW-5, during his cross-examination, stated that he managed
money from his relatives and close persons. The defendants
have exhibited on the record documents Ex. D-6 to Ex. D-9
which are copies of the bank passbooks in the names of the
plaintiffs.
60. However, PW-5 plaintiff Baldev Singh, during his
cross-examination, deposed that on dated 16.5.2005 in his
Saving Account No. 8944 in Union Bank of India, there was
balance of
` 2,11,759.14P. He withdrew 660/- on 16.5.2005
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from that account. He further stated that in May, 2005, a sum
of
` 1,58,646/- was lying as balance in Saving Account No.
40530 in Union Bank of India in the name of his wife. He
further stated that in May, 2005, a sum of 3606/- was lying as
balance in Saving Account No. 0286000100213928 in Punjab
National Bank in his name. Similarly, in May, 2005, a sum of
` 343/- was lying as balance in Saving Account No.
0286000100213919 in Punjab National Bank in the name of
his wife. This witness further stated that his 14 acres of land
was acquired and about one crore was paid to him as
compensation. This is an admitted fact on the record that some
lands of the plaintiffs were acquired by Land Acquisition
Collector.
61. As per the statement of DW-3 Pawan Kumar, Ahlmad,
Land Acquisition Collector, deposited the enhanced
compensation on account of land acquisition in favour of the
plaintiffs. DW-4 Anil Gupta, Record-keeper deposed that
Land Acquisition Collector, released the land compensation in
favour of plaintiff Baldev Singh to the tune of
` 62,69,611/-
and in favour of Santosh Rani to the tune of
` 28,40,698/-.
62. The above said evidence shows that plaintiff No.1 was
a man of means and had the financial capability and resources
to raise
` 1.50 crore for execution of the sale deed. But in the
case in hand, the plea that the plaintiffs were not ready and
willing to perform their part of the contract, is not available to
the defendants. In Jora Singh vs. Lakhwinder Kumar &
Ors. 2011(2) C.C.Cases 113 the Hon'ble High Court of
Punjab & Haryana held that the defendant denied execution of
agreement saying that he was never ready and willing to
perform his part of the contract. It did not lie his mouth to
contend that plaintiff was ready and willing to perform his
part of the contract.
63. In Surjeet Singh vs. Kartar Singh (deceased)
represented by L.R's. 1987 S.L.J. 342, it was held by
Hon'ble High Court of Punjab & Haryana that when the
vendor did not provide any opportunity to the vendee to
tender the balance amount of consideration, it was not
necessary for the vendee to prove that he had sufficient
Financial resources to pay the balance amount of
consideration.
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64. In Amar Kaur and others vs. Lashu Ram and
others 2011(2) P.L.R. 18, the Hon'ble High Court of Punjab
and Haryana held that even before the expiry of date
stipulated in the agreement for execution of the sale deed, the
plaintiff had to file a suit for permanent injunction when the
defendants were trying to alienate the suit land to somebody
else. This circumstance would depict the readiness and
willingness of the plaintiff to perform his part of the contract.
65. In the light of the above said authorities, it is held that
the defendant cannot question the readiness and willingness of
the plaintiffs to execute the agreement to sell, which is
otherwise proved by the evidence on record. As far as the
authorities of the defendant are concerned, they are not
applicable to the facts of the case and are hones not relied
upon.”
14. Testing the aforesaid findings recorded by the Courts
below on the parameters of the binding precedents as referred to
hereinabove, this Court finds that the Courts below erred in holding that
the defendant cannot question the readiness and willingness of the
plaintiff to execute agreement to sell having denied the execution
thereof. The findings cannot be sustained for more than one reason.
15. This is not a case wherein the defendant has denied the
execution of agreement to sell. Even if it was a case of denial of
execution of agreement to sell, plaintiff in order to succeed in his claim
for specific performance, was required to clear the statutory bar as
contemplated under section 16(c) of 1963 Act dehors the plea raised by
the defendant.
16. A bare perusal of statement of the plaintiff PW5 Baldev
Singh would show that he is totally evasive regarding the source of
money. In his examination-in-chief by way of affidavit Ex.PW5/A, he
does not disclose anything about his capacity to pay the balance sale
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consideration which was more than rupees one crore. His examination-
in-chief reads as under:-
“3.We have always been and are still ready and willing to
perform our part of the agreement, to pay the balance sale
consideration and to get the sale deed in respect of the land in
question executed and registered from the defendants in our
favour, at our expenses but the defendants have been
prolonging the matter on one pretext or the other. After the
above agreement to sell was executed in our favour, we also
came to know that a litigation with regard to the land in
question is pending between the defendants and their brother
Sh. Jagir Singh.
4. That on 8.5.2005 we came to know that the defendants are
negotiating with certain persons to dispose off the land in
question. We immediately contacted the defendants and
requested them to settle their score with their brother Sh. Jagir
Singh, to accept the balance sale consideration and to execute
the requisite sale deed in our favour, but the defendants told
us that they are not bound to execute the sale deed before the
target date i.e. 14.5.2005. Apprehending that the defendants
may execute the sale deed in respect of the land in question in
favour of some other persons, we filed a suit for permanent
injunction against the defendants.
5. That since 14.5.2005 and 15.5.2005 happened to be
holidays, the plaintiffs waited for the defendants in the office
of Sub Registrar, Karnal during office hours on 13.5.2005 and
on 16.5.2005 along with the balance sale consideration and
the money needed for stamps and registration of the sale deed,
to get the sale deed in respect of the land in question executed
and registered in their favour but the defendants did not turn
up and as such on 13.5.2005 and also on 16.5.2005 the
plaintiffs sworn an affidavit about their readiness and
willingness to get the requisite sale deed executed their
favour. The affidavit dated 13.5.2005 was also got attested by
the plaintiffs from Sh. Anil Kumar Notary Public Karnal and
the affidavit dated 16.5.2005 was got attested by the plaintiffs
from the Sub Registrar Karnal, exercising the powers of
Executive Magistrate.”
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17. In his cross-examination recorded on 19.08.2009, he claims
that prior to the target date, he had withdrawn certain amount from his
bank accounts. But when asked about the bank account from which the
amount was withdrawn, he remained evasive. Then he claimed that he
borrowed some money from his brother Gurmail Singh and cousin
brother and certain other sources. When asked about the amounts
borrowed by him, he was clueless.
18. He was recalled for further cross examination on
02.12.2009. He produced on record passbooks pertaining to his saving
accounts. As per the same, on 16.05.2005, he had Rs.2,11,759.14 in
one of his bank accounts with Union Bank of India. On 16.05.2005, he
had withdrawn 600 rupees. In his other saving account with Union
Bank of India, the balance in May 2005 was Rs.1,58,646/-. No money
was withdrawn from the same in May 2005. After narrative of
withdrawal of money from Bank fell flat, he shifted his stance relying
on acquisition of land. He claimed that he received Rs. 1 crore as
compensation thereof on 24.12.2004. Both the Courts below have
heavily relied upon the aforesaid compensation on account of
acquisition of land. Plaintiff failed to bring on record any evidence with
respect to payment of the aforesaid compensation prior to the target date
on 24.12.2004. He rather admitted that he has no document to show
when he received the said compensation.
19. Defendant summoned DW3 Pawan Kumar, Ahalmad
from the Court of ADJ Karnal and DW4 Anil Gupta Record
Keeper, Sessions Court, Karnal. From the testimony of DW3 and
DW4, though it is evident that both the plaintiffs were entitled to
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compensation on account of their land having been acquired by State of
Haryana. However, it is evident that till the target date for execution of
the sale deed, no amount was deposited by the Land Acquisition
Collector.
20. Even during the course of arguments, counsel for the
plaintiff was asked to show any evidence to prove that plaintiff was in
financial capacity to pay the balance sale consideration of more than Rs.
1 crore on the target date. Counsel for the plaintiff could not point out
any evidence on record to show that plaintiff had the capacity to honour
the commitment of paying balance sale consideration of Rs.
1,35,73,187.50 on 16.05.2005, i.e. the target date. There is no quarrel
with the proposition of law laid down in the case of Azhar Sultana
(supra) that readiness and willingness of the plaintiff in the suit seeking
decree of specific performance has to be ascertained from his conduct.
No hard and fast rule can be laid to guage the same.
21. In the present case, counsel for the plaintiff wants to argue
that since the plaintiffs were entitled to receive compensation for the
acquired land, they were in capacity to borrow the amount from their
kiths and kins. Needless to say relief of specific performance is a
discretionary relief. Plaintiff in his testimony claimed that he had
withdrawn certain amount from his saving accounts and has borrowed
some amounts from his relatives. Withdrawal from the bank account
has been proved to be false statement. Likewise, borrowing from near
dear ones, also has no basis. Thereafter, he tried to take refuge under
the amount of compensation received by him on account of acquired
land. The said statement made by him was also found to be against the
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record and was falsified from the testimony of DW3 and DW4.
Plaintiff repeatedly shifted his stand having cross examination. Each of
his stands lacked credence.
22. In view thereof, this Court finds that the Courts below
erred in misreading of evidence on record to return a perverse finding in
favour of plaintiff regarding his readiness to perform agreement to sell
dated 10.11.2004. Plaintiff being not ready to perform his part, cannot
be held entitled to the main relief of specific performance.
23. Mr. Tewari is right in contending that in view of ratio of
law laid down by 05 Judges Bench in the case of ‘Pankajakshi vs.
Chandrika’ (2016) 6 SCC 157, the regular second appeals in Punjab
and Haryana High Court are to be dealt in accordance with Section 41
of the Punjab Courts Act, 1930. Section 41 of the Punjab Courts is pari
materia to Section 100 CPC, 1908 prior to 1976 amendment.
Accordingly, question of law is necessary to entertain and interfere in
the regular second appeal. Trite it is that where misreading of evidence
leads to perversity in the findings, it breeds substantial question of law.
Thus, this Court having held that the findings recorded by the Courts
below are perverse being result of misreading of evidence on record,
objection raised by Mr. Tewari regarding pure finding of fact sans merit
and is hereby rejected.
24. Coming on to the next issue of the relief to which the
plaintiff is entitled, this Court finds that keeping in view that the
execution of agreement to sell and the payment of earnest money is not
denied, plaintiff is entitled to alternate relief of recovery of Rs.30 lakhs,
i.e. double the amount of earnest money along with interest @ 6% per
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annum from the date of filing of the suit till the date of actual
realization.
25. The judgment and decree passed by the Courts below is
ordered to be modified to the extent that the plaintiff is held entitled for
alternate relief of recovery of Rs.30 lakhs along with 6% interest.
26. Disposed off, accordingly.
27. Since the main case has been decided, pending
miscellaneous application, if any, shall also stands disposed off.
(PANKAJ JAIN)
JUDGE
01.09.2025
Dinesh
Whether speaking/reasoned : Yes
Whether Reportable : No
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