IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA-4519-2017 (O&M)

RAJEEV KUMAR

. . . .APPELLANT

Vs.

PRABH SARAN SINGH CHADHA

. . . . RESPONDENT

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RSA-6121-2017 (O&M)

RAJEEV KUMAR

. . . .APPELLANT

Vs.

PRABH SARAN SINGH CHADHA

. . . . RESPONDENT

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Reserved on:29.05.2025

Pronounced on: 02.07.2025

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CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA

Present:- Mr. Amit Jain, Senior Advocate with

Mr. Anupam Mathur, Advocate for the appellant.

Mr. Hemant Bassi, Advocate,

Mr. Anil Mehta, Advocate and

Mr. Nishant Jindal, Advocate for the respondent.

DEEPAK GUPTA, J.

Both these regular second appeals have been filed by the

defendant of the case - one against dismissal of his counter-claim; and the

other against decreeing of the suit of the plaintiff-respondent.

2. In order to avoid confusion, parties shall be referred as per their

status before the trial Court concerned.

3. Subject matter of dispute is Industrial plot No.317, Industrial

Area, Phase II, Panchkula, admittedly owned and possessed by Plaintiff -

Prabh Saran Singh Chadha (respondent herein). It is undisputed that vide an

agreement to sell dated 15.12.2004, owner-plaintiff Prabh Saran Singh

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Chadha agreed to sell the said plot to the defendant Rajiv Kumar (appellant

herein) for total consideration of ₹70 lakh. An amount of ₹16.5 lakh was paid

as earnest money in cash against a receipt executed on the back side of the

agreement to sell. Later on, an amount of ₹50,000/- was paid. On

28.01.2005, another amount of ₹8 lakh was paid by the defendant to the

plaintiff, thus making the total earnest amount as ₹25 lakh.

4.1 The plaintiff instituted the suit on 23.05.2005 seeking

declaration that the agreement to sell executed between the parties had

become null, void and inoperative upon expiry of the stipulated date, i.e.,

31.03.2005. He further sought a declaration that the earnest money paid by

the defendant stood forfeited in terms of the agreement. A decree of

permanent injunction was also prayed for, restraining the defendant from

seeking enforcement of the agreement after the said date.

Plaintiff’s Case:

4.2 As per the plaintiff’s pleaded case, clause 3 of the agreement to

sell obligated him to obtain a No Due Certificate and requisite permission to

transfer the suit property from the Estate Officer, HUDA, Panchkula. These

documents were to be furnished to M/s New Sagar Estates, the property

consultant, at least 10 days prior to the final date for execution of the

transfer documents and final payment, which was fixed as 31.03.2005.

Notably, both parties were required to appear before the said property

consultant on that date, regardless of whether the permission to transfer had

been granted or not.

4.3 It is the plaintiff’s case that the defendant was under an

unconditional obligation to pay the balance sale consideration by

31.03.2005. Plaintiff referred to correspondence sent by him to HUDA

between 11.01.2005 and 08.05.2005, whereby he sought issuance of the No

Due Certificate. However, despite repeated efforts, no response was

received from HUDA, and the certificate could not be obtained within the

stipulated time. The plaintiff averred that on 31.03.2005, both parties

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presented themselves at the office of M/s New Sagar Estates, where he

expressed readiness to execute the transfer documents, conditional upon

receipt of the remaining sale consideration, which the defendant had not

brought.

4.4 Thereafter, the plaintiff proceeded to the office of the Sub-

Registrar, Panchkula, to mark his presence. He alleged that the Sub-Registrar,

acting in collusion with the defendant, declined to record his appearance,

prompting the plaintiff to lodge complaints with the competent authorities.

4.5 The plaintiff further contended that the grant of transfer

permission was not a pre-condition for execution of the transfer documents.

According to him, it was the defendant, who breached the terms of the

agreement by failing to pay the balance amount and refusing to comply with

his part of the obligations. Consequently, as time was of the essence of the

contract, the agreement stood frustrated on 31.03.2005, and the earnest

money paid by the defendant became liable to forfeiture in accordance with

the contractual terms. Accordingly, the plaintiff sought the reliefs of

declaration and injunction as prayed.

Defendant’s Stand & Counter-claim:

5.1 In the written statement, the defendant contended that the

plaintiff’s obligation to obtain ‘No Due Certificate’ and transfer permission

from the Estate Officer, HUDA, Panchkula was a condition precedent to the

defendant’s duty to pay the balance sale consideration. It was asserted that

without compliance with this requirement, the defendant could not be called

upon to make the final payment or complete the transaction.

5.2 The defendant pointed out that the plaintiff himself admitted to

have written to HUDA even on 08.05.2005—after the contractual deadline of

31.03.2005—seeking the requisite certificate. This, according to the

defendant, demonstrated the plaintiff’s own understanding that the transfer

permission was essential for execution of the transfer papers. The defendant

maintained that he had always been ready and willing to perform his part of

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the contract and make the balance payment, but the plaintiff’s failure to

secure the necessary permission frustrated the transaction. On this basis,

and by denying the remaining averments in the plaint, the defendant sought

dismissal of the suit.

5.3 In addition, the defendant filed a counter-claim seeking specific

performance of the agreement to sell dated 15.12.2004. He reiterated his

readiness and willingness to perform his contractual obligations and alleged

that the plaintiff, by failing to obtain the required ‘No Dues Certificate’ and

transfer permission, had wrongfully refused to execute the sale. Accordingly,

the defendant prayed for a decree of specific performance on payment of

the remaining sale consideration and further sought an injunction to restrain

the plaintiff from alienating the suit property in favour of any third party.

Response of the Plaintiff to Counter-Claim:

6.1 In written statement to the counter-claim, the plaintiff, while

modifying his earlier stand, asserted that the defendant was obligated to pay

the balance sale consideration on or before 31.03.2005, irrespective of any

other condition. He further stated that, at the time of paying the earnest

money, the defendant had already obtained the plaintiff’s signatures on the

requisite documents, including the application for transfer permission. It was

only after obtaining these signed papers that the earnest money was paid.

The plaintiff also contended that certain documents—such as the application

for change of project—were to be submitted by the defendant before any

request for transfer permission could be processed. Additionally, the

applicable transfer fee of ₹50 per square meter was to be borne by the

defendant. It was pleaded that both parties had agreed to pay commission to

the property dealer, who was entrusted with the responsibility of completing

the documentation on behalf of both sides. However, despite obtaining the

necessary documents from the plaintiff, the defendant failed to fulfil his

contractual obligations, and the property dealer too neglected his duties

under the agreement.

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6.2 According to the plaintiff, his only remaining obligation was to

deposit any dues as intimated by HUDA, but despite several communications

addressed to the authority, no such information was provided, allegedly due

to negligence or deliberate inaction on HUDA’s part.

6.3 He further alleged that the defendant never had a genuine

intention to complete the transaction by 31.03.2005 and, instead, sought to

delay the matter under various pretexts with the motive of making an undue

profit. The plaintiff reiterated that the agreement to sell stood terminated

after 31.03.2005, time being the essence of the contract, and that the

earnest money stood forfeited in accordance with the agreement.

6.4 Accordingly, the plaintiff prayed for dismissal of the counter-

claim.

7. Necessary issues were framed. Evidence produced by the parties

was taken on record.

Findings of Trial Court:

8. Learned Trial Court, in its judgment dated 13.01.2012, observed

that the plaintiff, a retired defence personnel, was pitted against two

property dealers i.e., the defendant and Mr. Ramesh Kakkar (DW2). The

Court noted that two lines on the reverse of the agreement to sell (Ex.D1),

purporting to be a receipt, were found to have been inserted subsequently

by the defendant. It was also observed that the name and signature of Sohan

Lal, as witness No. 2, appeared to have been added later on both in the

agreement to sell (Ex.P8) as well as the receipt on the back of Ex.D1. The Trial

Court further held that the statement of DW2 Ramesh Kakkar, and the SDM's

report (Ex.P1) regarding the defendant's possession of the balance sale

consideration on 31.03.2005 contradicted the defendant’s own admission (as

DW1), wherein he conceded that he neither carried cash nor any bank draft

to the office of the Sub-Registrar on the said date. The Court also found that

both parties failed to approach the Court with clean hands. Nevertheless, it

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was held that the plaintiff, having failed to obtain the No Due Certificate and

transfer permission from HUDA, could not justify forfeiture of the earnest

money. Accordingly, while dismissing the plaintiff’s suit, the trial Court

directed him to refund the earnest money of ₹25 lakhs to the defendant

within two months, failing which the amount would carry interest at the rate

of 18% per annum. The defendant’s counter-claim seeking specific

performance was also dismissed.

First Appellate Court’s findings:

9.1 Aggrieved by the above decision of the trial court, both parties

preferred appeals. The First Appellate Court, vide judgment dated

06.10.2014, allowed the plaintiff’s appeal and dismissed that of the

defendant.

9.2 However, a Coordinate Bench of this Court, in RSA No. 6420 of

2014, found that an application for additional evidence had not been

adjudicated. As a result, the appellate judgment dated 06.10.2014 was set

aside, and the matter was remanded to the First Appellate Court with a

direction to first decide the said application and thereafter, dispose of the

appeals afresh.

10.1 Upon remand, the learned Additional District Judge, Panchkula

vide judgment dated 22.03.2017 dismissed the defendant’s application for

additional evidence, by which he sought to examine a handwriting expert.

The appellate court affirmed the Trial Court’s finding that the two lines on

the reverse of Ex.D1 had been interpolated later. It also held that the receipt

dated 28.01.2005, although forming part of Ex.D1, was not proved through

any admissible mode under the Evidence Act.

10.2 However, the Appellate Court held that the Trial Court erred in

directing refund of the earnest money. It concluded that the agreement to

sell became null & void after 31.03.2005 due to the defendant’s failure to

pay the balance sale consideration, which was a condition precedent under

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the terms of the agreement. It was also found that the defendant was not

ready and willing to perform his contractual obligations. Accordingly, the

plaintiff’s appeal was allowed, entitling him to forfeit the earnest money.

10.3 Simultaneously, the appeal filed by the defendant/ counter-

claimant, seeking specific performance, was dismissed.

11. The common judgment dated 22.03.2017, whereby the First

Appellate Court allowed the plaintiff’s appeal and dismissed that of the

defendant, is assailed in the present two regular second appeals filed by the

defendant/ counter-claimant.

Present RSAs:

12.1 In RSA No. 6121 of 2017, the appellant-defendant has filed CM

No. 7057-C-2022 under Order 41 Rule 27 CPC, seeking permission to place on

record a handwriting expert’s report dated 14.03.2020 (Annexure A1), which

has been strongly opposed by the respondent.

12.2 In another appeal, RSA No. 4519 of 2019, the respondent-

plaintiff has filed CM No. 9138-C-2022, seeking to bring on record the

judgment dated 28.10.2022 passed by the learned JMIC, Panchkula, whereby

the appellant-defendant Rajiv was convicted under Sections 193, 465, 467,

468, and 471 read with Sections 120 and 120-B IPC; and was sentenced vide

separate order dated 05.11.2020

.

13. This Court has considered submissions of both the sides and has

perused the entire record including the trial Court record carefully. Written

synopsis filed by both sides have also been considered.

Contentions raised for the appellant:

14. The contentions raised by Ld. Senior Advocate for the Appellant-

Vendee are as under:

(A) Non-Fulfilment of Conditions Precedent by the Respondent-Plaintiff: It is

contended by Ld. Senior advocate that Clause 3 of the Agreement to Sell (Ex.

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P8/D1) casts a categorical obligation upon the seller (respondent-plaintiff) to

clear all dues pertaining to the property and to obtain a "No Dues Certificate"

(NDC) and transfer permission from HUDA, Panchkula, at least 10 days prior

to the stipulated date for execution of transfer documents. However, PW1

(HUDA official) as well as PW3 (plaintiff himself) admitted that dues of

approximately ₹19 lakhs remained unpaid and that no NDC or permission

was ever obtained. Ex.P6 and P7, including a letter dated 08.05.2005 (after

the purported forfeiture date of 31.03.2005), demonstrate continued

attempts by the plaintiff to comply, thereby showing obtaining of NDC &

transfer permission as condition precedent. In such circumstances, the

plaintiff could neither seek forfeiture nor demand performance from the

appellant - defendant. Reliance is placed on Basavaraj vs. Padmavathi 2023

LiveLaw (SC) 17. It is urged that the trial court rightly upheld this contention;

but, the First Appellate Court erred in reversing the finding.

(B) Time Not Being the Essence of the Contract: It is argued further that

though Clause 4 fixed 31.03.2005 as the date for execution of transfer

papers, but the said obligation was conditional upon the plaintiff's fulfilment

of his prior obligations. Clause 5 clearly deferred the obligation to pay

balance sale consideration until the stage of execution of transfer papers.

Since no date was fixed for execution before the Sub-Registrar, and the

essential pre-conditions were unmet, the time clause could not be deemed

to have been of the essence. The plaintiff’s own post-dated conduct—such as

writing to HUDA on 08.05.2005—belies his assertion that the agreement

stood automatically forfeited on 31.03.2005.

(C) Disputed Receipt dated 28.01.2005 and Allegations of Forgery: Ld.

Counsel contends that the receipt dated 28.01.2005 on the reverse of Ex. D1,

acknowledging an additional payment of ₹8 lakhs, also extended the

performance date to 31.05.2005. The plaintiff disputed only the last two lines

of this receipt, but admitted the receipt itself and his signature on it. Ld.

Counsel submits that though the plaintiff introduced a different version (Ex.

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P9) but it was only after the receipt was put to him in cross-examination,

claiming forgery. However, the handwriting expert (PW4) conceded in cross-

examination that Ex. D1 was in one handwriting and written with the same

instrument. The material discrepancies between Ex.D1 and Ex.P9—especially

that the latter was on a plain sheet—raise doubts about its authenticity. The

refusal by the First Appellate Court to permit additional evidence, despite

this Court's earlier remand order dated 24.01.2017 in RSA-6420-2014, is

seriously prejudicial.

(D) Readiness and Willingness of the Appellant-Defendant: Ld. Senior

advocate contends further that defendant - appellant remained ready and

willing to perform his part and was present at the Sub-Registrar's office on

31.03.2005 with the sale consideration. The Enquiry Officer’s report (Ex. P1),

based on the plaintiff - respondent’s own complaint, confirms the presence

of both parties at the venue. However, the sale deed could not be registered

solely due to the respondent’s failure to produce NDC and HUDA’s transfer

permission. Ld. Counsel refers to Section 51 of the Indian Contract Act, which

provides that in reciprocal promises to be performed simultaneously, neither

party is bound to perform unless the other is ready and willing. However, the

plaintiff became dishonest by claiming forfeiture of earnest money on

24.5.2004, compelling the defendant – appellant to file the counter-claim on

27.05.2005 within two months of 31.3.2005, which was well within

limitation.

(E) Conduct and Mala Fides of the Respondent-Plaint iff:

Ld. Senior advocate for the appellant also points out towards the conduct of

the respondent, who received ₹25 lakhs from the appellant but failed to

perform essential obligations, and instead initiated suit seeking forfeiture of

the amount with nominal court fees of ₹200. In contrast, the appellant paid

ad-valorem court fee on ₹70 lakhs on multiple occasions. It is argued that the

plaintiff, was dominant in structuring the contract, made unilateral changes,

and subsequently tried to shift his own obligations onto the appellant. His

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deposition as PW3 falsely claimed that the obligation to obtain HUDA

permissions lay on the appellant. Further, the plaintiff admitted to a prior

dispute with another buyer (Mr. Chhabra) and admitted having entered into

yet another agreement during the pendency of the current proceedings,

refusing to disclose the details—suggesting a pattern of dishonest conduct.

Besides, plaintiff’s plea of forfeiture is contradicted by his conduct and

correspondence post 31.03.2005. His failure to plead or prove readiness and

willingness, as required under Section 16 of the Specific Relief Act, further

disentitles him to any relief.

With all the above submissions, Ld. Senior advocate prays for

allowing both the appeals and to decree the counter-claim of the defendant-

appellant and to dismiss the suit.

Contentions raised by the Respondent-Vendor:

15. In response to the above contentions, it is pointed out by Ld.

Counsel for the respondent – plaintiff that:

I) Regarding Forgery: The appellant-defendant has, for the first time, taken

the plea that the time for performance under the agreement to sell was

extended up to 31.05.2005. This plea was based on a forged and tampered

receipt purportedly dated 28.01.2005, which had two additional lines

inserted to create an impression that the last date for performance was

extended from 31.03.2005 to 31.05.2005. However, this stand is wholly

beyond the pleadings and is devoid of any merit for the following reasons:

 In the written statement as well as in the counter-claim, both filed on

27.05.2005, there is no mention whatsoever of any extension of time.

 No issue regarding the alleged extension was either framed by the trial

court or pressed by the appellant. On the contrary, the issues as

framed clearly treated 31.03.2005 as the final date for performance.

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 If the time had indeed been extended to 31.05.2005, there would have

been no occasion for the appellant to file a counter-claim on

27.05.2005—before the extended date had even expired.

 The plea of extension was taken for the first time during the cross-

examination of the plaintiff on 17.02.2010, almost five years after the

written statement and counter-claim were filed. It was at this stage

that the appellant attempted to introduce a forged document marked

as Mark X-1.

 The original receipt dated 28.01.2005 (Ex.P9) does not contain any

such endorsement of extension. The document Mark X-1 was never

pleaded nor included in the appellant's affidavit, and was merely

referred to in his oral statement at the time of tender.

 Both the Trial Court and the first Appellate Court found clear evidence

of tampering with the receipt, holding that the additional lines

appeared to have been inserted later.

 The falsity of the appellant’s version is further exposed by the fact that

he claimed to have appeared before the Sub-Registrar on 31.03.2005

with the balance consideration. This contradicts his plea of extension,

as there would be no reason to appear before the Sub-Registrar, if the

performance date had been extended to 31.05.2005.

 Significantly, the appellant has been convicted on 28.10.2022 for

offences under Sections 193, 465, 467, 468, 471, and 120-B IPC on the

basis of the forged receipt, following a criminal complaint initiated by

the Court itself. He was sentenced to undergo rigorous imprisonment

up to three years vide order dated 05.11.2022.

II) Lack of Readiness and Willingness: It is urged that the appellant-vendee

failed to establish his readiness and willingness to perform his part of the

contract. He did not produce any evidence to show that he had the requisite

funds to pay the balance consideration on 31.03.2005. In fact, he himself

admitted that he did not possess the money on that date as, according to

him, the deadline stood extended to 31.05.2005. This admission contradicts

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his stand that he was present before the Sub-Registrar on 31.03.2005 with

the required amount. Further, if the deadline was indeed 31.05.2005, there

was no reason for the counter-claim to be filed on 27.05.2005. These

inconsistencies reveal that the plea of readiness and willingness is a mere

afterthought. The appellant failed to produce any statement of accounts, did

not purchase any stamp papers, and did not obtain the requisite permissions.

He himself failed to secure the NDC and permission from HUDA, which was

his own responsibility. It is urged that in order to cover up his financial

incapacity and inability to perform, the appellant resorted to forging the

receipt (Mark X-1) and raised a false plea of extension during cross-

examination—nearly five years after the initial pleadings. In the

circumstances, the Trial Court rightly held that the appellant lacked the

readiness and willingness required under Section 16(c) of the Specific Relief

Act and the first Appellate Court concurred with this finding.

III) Responsibility to Obtain NOC Rested with the Appellant: It is argued

further that the appellant himself admitted during cross-examination that he

is a property dealer by profession. He further stated that he regularly keeps

pre-typed, blank agreements to sell, which are later filled in with the consent

of the parties. He categorically admitted that it is his usual responsibility to

obtain the necessary permissions and NDCs from HUDA on behalf of the

sellers. He also acknowledged that he usually prepares all related documents

for the sellers. Therefore, having undertaken the obligation to obtain the

necessary NOC and HUDA permission himself, the appellant cannot now

escape liability for his own failure to perform this obligation. Thus, the

appellant, being a seasoned property dealer, who had assumed responsibility

for the necessary clearances, cannot now seek to shift the blame onto the

seller. His own conduct shows a calculated attempt to mislead the Court,

cover up his failure to arrange the balance consideration, and manipulate

judicial proceedings through forgery and falsehood.

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IV) With all the above submissions, Ld. advocate for the respondent –

plaintiff concluded that the appellant’s conduct : his failure to obtain

mandatory permissions, lack of readiness and willingness, reliance on forged

documents, and attempt to mislead the Court, demonstrates that he is not

entitled to any equitable relief. Both the Trial Court and the First Appellate

Court have recorded concurrent findings on material aspects, and therefore,

the present second appeal, raising no substantial question of law, is liable to

be dismissed with costs

.

Court Analysis and Findings:

16. It is not in dispute that the agreement to sell dated 15th

December 2004 was executed between the parties and was drawn on a 4

page pre-printed, cyclostyled format typically maintained by property

dealers. Irrelevant clauses were deleted, and certain new terms were

inserted with pen or amended with the mutual consent of the parties, who

duly signed the agreement. This position is consistently reflected in the

testimonies of both plaintiff Prabh Saran Singh (PW3) and defendant Rajiv

Kumar (DW1). As per their statements, after the agreement was finalized, a

photocopy was made, and both the original and the copy were signed by the

contracting parties. The original document was retained by the defendant

(vendee) Rajiv Kumar, while the photocopy bearing original signatures was

handed over to the plaintiff (vendor) Prabh Saran Singh. The plaintiff

produced his copy as Ex.P8, while the defendant, during cross-examination of

the plaintiff, confronted him with his own copy, which was put as Mark X-1,

and subsequently, tendered the same as Ex.D1 along with his affidavit

Ex.DW1/A in evidence.

17. Before considering the submissions of both the sides, it will be

useful to reproduce the abovesaid agreement to sell (Ex.P8/Ex.D1), which is

as under:

“AGREEMENT TO SELL/TRANSFER

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This deed of agreement to sell/transfer is made at Panchkula on 15

th

Day of December 2004.

BETWEEN

1. Prabh Saran Singh Chadha s/o Shri K.S. Chadha R/o House No.1858,

Sector 34A, Chandigarh

(herein after referred to as the Seller/s/Transferor/s which term shall where

the context so admits include his/her/their heirs, assigns, executors,

successors, legal representatives, administrators) of the one part

AND

2. Sh. Rajiv Kapoor S/o Sh. A.K. Gupta, Resident of House No.339,

Sector 11, Panchkula

(hereinafter referred to as the Purchaser/s/Transferee/s which term shall

where the context so admits include his/her/their assigns, executors, legal

representatives & administrators) of the other part of this Deed

WHEREAS the above said Seller/s/Transferor/s is/are the sole and

absolute owner and allottee/s/GPA/ Agreement to sell holder in respect of

one Industrial Plot No. 317 Sector II, Urban Estate, Panchkula measuring

2100 sq. meter duly allotted by the Estate Officer, HUDA, Panchkula and the

said Industrial Plot is free from all sorts of encumbrances i.e. sale/ gift/

mortgage/will, claim deemed ,charges, litigation etc.

AND WHEREAS the said seller/s/transferor/s is/are interested in the

sale of his/her/their abovesaid plot and the said purchaser/s is/are also

interested in purchase/accept the transfer of the abovesaid plot and both

the parties have agreed with each other on the following terms and

conditions: -

Now this deed further witnesses as follows: -

1. That the total sale price of the abovesaid residential plot size has

been fixed at Rs.70,00,000/- (Rupees Seventy Lakh only).

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2. That the said purchaser/s/transferee/s have paid to the said seller/s a

sum of Rs.16,50,000/- (Rupees Sixteen Lakh Fifty Thousand only) vide CASH

as an earnest money, for which amount the said seller/s hereby

acknowledges the receipt in the presence of the marginal witnesses.

3. That the said seller/s/transferor/s will bear all the outstanding dues

against the said property (i.e. towards price, increased price, enhanced

compensation, interest/penalty, extension fee) and will get No due

certificate and the permission to sell/transfer the said property from the

Estate Office, HUDA, Panchkula and handover the same to M/s New Sagar

Estate, SCO 48, Sector 8, Panchkula, 10 days before the last day of

execution of transfer papers/final payment. The seller will have full rights

to claim refund for above charges from HUDA.

4. That the last day for execution of transfer papers has been

fixed on or before 31.03.2005 and both the parties shall present themselves

in the office of the said property consultants as per the time fixed through

them, irrespective of whether permission to transfer is received or not.

5. That the balance payment after deducting the earnest money

from the abovesaid total sale price will be paid by the purchaser/s to the

said seller/s at the time of execution of transfer papers.

6. That the purchaser/s can get the said industrial plot

transferred in his/her/their own name/s or in the name/s of his/her/their

nominee/s or any other person/s whomsoever and the said Seller/s shall

have no objection for the same. That the said Purchaser/s or his/her/their

nominee/s shall hereinafter be responsible and entitled for all type of loss or

profit arising of said deal/bargain and said purchaser/s is authorized by the

said Seller/s to receive any amount of earnest money/advance from any

other person/s by virtue of this Agreement to Sell and the said Seller/s shall

not have any objection for the same at any later stage, but the said

Purchaser/s shall be responsible to make the full and final payment to the

said Seller/s as per provision of Clause No.1 of this "Agreement to Sell”. That

all expenses on transfer permission including transfer fee shall be borne by

the said purchaser/s.

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7. That if the permission to transfer is not granted/refused by the Estate

Officer, HUDA, Panchkula due to any reason then the last date for full and

final payment shall be extended with the mutual consent of both the parties

of this deed.

8. That the said seller/s will hand over all the documents and papers in

original, pertaining to this residential Plot to the said Purchaser/s at the time

of execution of transfer paper/s final payment.

9. That this bargain has been finalized with the best efforts of M/s New

Sage Estate, SCO 48, Sector 8, Panchkula to whom both the parties the

seller/s and the Purchaser/s will pay 1% commission separately on the total

sale price and defaulter party shall pay 4% commission to the said Property

Consultants. No payment will be considered as paid without property

receipt.

This payment is time bound as per Mr.P.S.S. Chadha has to make

further payment from another deal. If payment is not made in time, then

this agreement automatically becomes null and void and no claim can be

lodged in the Courts.

10. That if the purchaser/s will backout from this bargain, then

his/ her/their earnest money shall stand forfeited in favour of the said

seller/s and if the said seller/s backs out from this bargain then he/she/they

will pay double of the earnest money received by his/her to the said

purchaser/s being the liquidated damages and the Purchaser/s shall have

the option either to accept the damages or to get the said residential Plot

transferred/executed through sale deed in his/her favour through the Court

of law under the Specific Performance of the Relief Act and the said

Purchaser/s shall have the first charge over the said site.

11. That in case of any dispute arises amongst the parties to this deed

then the same shall be referred to Panchkula Courts.

12. That this deed of Agreement to Sell/Transfer is made in duplicate.

Original will be kept by the Purchaser/s and copy thereof by the said Seller/s

for their records and ready reference.

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IN WITNESS THEREOF both the parties have set their hands on this

deed at Panchkula on the day, month and year mentioned above the

presence of marginal witnesses.

Witness No.1 (Sd/-) 1. Seller/s (Sd/-)

Witness No.2 -------- 2. Purchaser/s (Sd/-)”

18. It may be clarified here that bold & italicized portion in the

abovesaid reproduced agreement has been inserted by the parties by filling

in blanks. Clause N: 7 forming part of formatted agreement has been

deleted; whereas, a new clause in between clauses N: 9 & 10 was added with

pen. All the additions and alteration are duly signed by both the parties.

19. Still further, though not pleaded either in the written statement

or the counter-claim, defendant – appellant tried to project in his evidence

that time for execution of transfer papers was extended up to 31.5.2005

while executing the receipt of ₹ 8 Lacs dated 28.1.2005 on the reverse side of

page N:2 of the agreement Ex.D1.

20. On analyzing the entire evidence on record and considering the

contentions of both the sides, it is found by this court that:

20.1 I. Plea of Extension of Time – Forged Document: The entire

edifice of the appellant’s case rests on the assertion that the date of

performance under the agreement to sell was extended from 31.03.2005 to

31.05.2005. This assertion is untenable for the following reasons:

 The written statement and counter-claim, both filed on 27.05.2005, do

not contain any whisper of such extension.

 No issue was framed on this alleged extension of time, nor was any

such plea pressed during the trial.

 The receipt containing the alleged extension was introduced only

during the cross-examination of the plaintiff on 17.02.2010, nearly five

years after the suit.

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 No application was ever moved by the defendant to amend the

written statement or counter-claim to incorporate the plea of

extension of time.

 The said endorsement on reverse of Page N: 2 of Ex.D1/Mark X-1, was

not proved by any permissible mode of evidence, as PW3 – plaintiff

was confronted with copy of main agreement Mark X-1, which was put

as Ex.D1 by defendant, while tendering his affidavit.

 The above endorsement on reverse of Page N: 2 of Ex.D1/Mark X-1

was found to be forged and tampered with. The additional two lines

were added later to create a false impression of extension.

 Both courts below have recorded concurrent findings, based on the

circumstances and the report of Forensic Document Expert – PW4

Devender Prasad that the said interpolation was a deliberate act of

forgery.

 Furthermore, the appellant has been convicted under Sections 193,

465, 467, 468, 471 and 120-B IPC by the Criminal Court vide judgment

dated 28.10.2022, with sentence awarded on 05.11.2022, though the

said conviction & sentence are under appeal.

 This plea is therefore not only contrary to the pleadings and

procedural fairness, but stands discredited by judicial findings and a

criminal conviction.

20.2 As per consistent position of law, a plea not taken in the

pleadings cannot be permitted to be raised at a later stage. Besides, a forged

document cannot be the basis for enforcing or defending a contract. As such,

this Court concurs with the concurrent findings of the Courts below that the

plea of extension is an afterthought based on a forged document. Hence, the

agreed date remained 31.03.2005.

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21.1 II. Readiness and Willingness of Appellant, & Relief of Specific

Performance: The doctrine of readiness and willingness is codified under

Section 16 (c) of the Specific Relief Act. It casts a mandatory burden on the

person seeking specific performance or resisting forfeiture to prove that he

was and continued to be ready and willing to perform his part. Besides,

readiness & willingness must be established throughout the transaction and

must be proved by concrete evidence, not merely by oral assertion.

However, in present case,

 the appellant failed to produce any evidence—documentary or oral—

to show financial capacity on the date of performance, i.e.,

31.03.2005.

 He did not produce any account statements, bank details, or stamp

paper purchases to show preparedness.

 His own admission that he did not have the balance consideration on

31.03.2005 discredits his stand that he was ready and willing.

 His appearance before the Sub-Registrar on 31.03.2005, if true,

contradicts his own claim that the performance date had been

extended to 31.05.2005.

21.2 Not only above, the conduct of the appellant, by attempting to

mislead the Court by using a forged document to show extension of time,

taking inconsistent pleas, and failing to make payment as per clause inserted

between clause N: 9 & 10 making time the essence, which clause he never

assailed on any ground, completely disentitles him from the equitable relief

of specific performance. A party, who seeks equity must come with clean

hands. A party who has engaged in fraud or forgery cannot seek equitable

relief.

21.3 In view of above observations and the concurrent findings of the

courts below that the buyer - defendant was not ready and willing, it is clear

that the requirement under Section 16(c) of the Specific Relief Act is not

satisfied and so, courts below rightly declined the relief of specific

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performance to the buyer - appellant – defendant, by dismissing his counter

claim.

22.1 III. Terms of the Agreement, and the Right to Forfeiture by Seller:

Clause 3 of the agreement made it incumbent upon the seller - plaintiff to

obtain all clearances and permissions from HUDA, and provide a No Dues

Certificate 10 days before 31.03.2005. Clause 4 fixed the last date for

execution of transfer papers as 31.03.2005, regardless of whether permission

was received. As per Clause 5, purchaser was to pay balance amount at time

of execution. Though, Clause 7 allowed for extension by mutual consent, but

this clause was deliberately deleted by both the parties. A new clause

inserted with pen between clause N: 9 & 10 made time the essence,

providing that non-payment by due date would cause the agreement to

become automatically null and void, and bar any court claims.

22.2 It is well-settled that in agreements for sale of immovable

property, time is ordinarily not of the essence, unless expressly made so. In

the present case, though clause 4 fixed the outer date for execution of

transfer documents as 31.03.2005, but clause 3 imposed pre-conditions

including clearance of dues and obtaining of NOC, whereas clause 5

postponed the obligation to pay balance consideration to the stage of

execution of transfer papers. Thus, the timeline of 31.03.2005 was not

absolute, but contingent on fulfillment of earlier obligations.

22.3 Admittedly, plaintiff did not obtain the NDC or permission to

transfer. Though he argues that the buyer being a property dealer had to

handle this, but the express language of Clause 3 cannot be re-written, as the

primary obligation lay with the seller. No doubt that as per own admission of

the defendant (DW1), he did not bring the cash or draft to pay balance sale

consideration on 31.3.2005, but his obligation to pay was conditional upon

the seller - plaintiff obtaining statutory clearances. The plaintiff's failure to do

so rendered defendant’s non-payment justified in principle.

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22.4 The newly inserted clause between clause N: 9 & 10 with

mutual consent providing for automatic cancellation in place of a previously

existing clause 7 that permitted extension of time, though intended to make

time the essence and to terminate the agreement upon non-payment,

irrespective of reason, but this clause is to be read in consonance with other

clauses of the agreement and cannot be allowed to override statutory rights

of the defendant under Section 51 of the Contract Act.

22.5 The seller himself being in breach of Clause 3, he cannot be

permitted to take advantage of his own default and so, his claim for

forfeiture cannot be justified under equity and restitutionary principles.

When obligations are interlinked and dependent on conditions precedent,

failure to satisfy them disentitles a party from claiming breach. Thus, though

the clause providing for non-payment by due date, would cause the

agreement to become automatically null and void, but it would not entitle

the plaintiff – respondent to forfeit the amount of ₹ 25 Lacs received by him

from the defendant.

Conclusion and Final Order

23. In view of the foregoing discussion, this Court is of the

considered opinion that the appellant–defendant is not entitled to the relief

of specific performance, as the agreement in question has lawfully and

contractually come to an end. However, considering that the seller–plaintiff

also failed to perform his obligation under the agreement—specifically, by

not obtaining the requisite NOC—he cannot be permitted to unjustly enrich

himself by retaining the amount of ₹25 lakhs received under the agreement.

Principles of equity require that the said amount be refunded to the

appellant–defendant.

24. Accordingly, the appeal challenging the denial of specific

performance is dismissed, and the concurrent findings of the courts below

being based on proper appreciation of the evidence are affirmed, warranting

no interference. However, the finding of the first appellate court declining

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the refund of ₹25 lakhs and permitting the respondent–plaintiff to forfeit the

same is set aside. Modifying the judgment of Trial court in this regard,

respondent - plaintiff is hereby directed to refund the amount of ₹ 25 Lacs to

the defendant – appellant, along with interest @ 9% per annum from the

date of filing of the suit before trial court till this order in present RSAs. The

defendant – appellant shall be further entitled to future interest @ 6 % on

the amount of ₹ 25 Lacs, from the date of this decision till actual realisation.

Parties shall bear their own costs throughout. Both the appeals stand

disposed of accordingly.

25. Misc. applications, moved by both the sides, also stands

disposed of.

26. A photocopy of this order be placed on the file of connected

case.

02.07.2025

Vivek 

(DEEPAK GUPTA)

JUDGE

Whether speaking/reasoned? Yes

Whether reportable? No