2025 INSC 450 SLP (C) No.28460 of 2024 Page 1 of 22

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4972 OF 2025

(Arising out of Special Leave Petition (C) No.28460 of 2024)

SANGITA SINHA .…. APPELLANT

VERSUS

BHAWANA BHARDWAJ AND ORS . ..…RESPONDENT S

J U D G M E N T

MANMOHAN , J

1. Leave granted.

2. The primary issue that arises for consideration in the present civil

appeal is whether a suit for specific performance of an Agreement to Sell is

liable to be decreed if the buyer had accepted the refund of majority of the

earnest money deposit/advance consideration, during the pendency of the

civil suit?

3. Brief facts leading to the present appeal are as under:-

3.1. Late Kushum Kumari (“original defendant” / “seller”) was

allotted the subject property by the People's Cooperative House

Construction Society Limited (“Society”) vide a registered sub-lease

dated 2

nd

April 1968.

SLP (C) No.28460 of 2024 Page 2 of 22

3.2. On 25

th

January 2008, an unregistered Agreement to Sell with

respect to the subject property was executed between the

“Respondent No.1-buyer”-plaintiff and the seller for a total sale

consideration of Rs. 25,00,000/- (Rupees Twenty Five Lakhs). At the

time of the execution of the Agreement to Sell, the Respondent No.1-

buyer paid a sum of Rs.2,51,000/- (Rupees Two Lakh Fifty One

Thousand) in cash to the seller and issued three post-dated cheques

worth Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand).

3.3. It is the case of Respondent No.1-buyer that when she visited

the subject property along with her husband on 11

th

February 2008,

the tenants of the seller created a scuffle and forced them to return.

In the circumstance, the Respondent No.1-buyer issued legal notices

dated 23

rd

February 2008 and 23

rd

April 2008, expressing her

intention to pay the balance sale consideration and to get the property

registered in her favour.

3.4. Upon the failure of the seller to execute the sale deed,

Respondent No.1-buyer filed a suit before the Trial Court, Sub

Judge-IV, Patna under the Specific Performance Act, 1963 (“Act,

1963)” seeking specific performance of the Agreement to Sell dated

25

th

January 2008 and the same was registered as Title Suit No.

TS/176/2008 (“subject suit”).

3.5. The subject suit was contested by the seller by filing a written

statement, stating therein that she came to know about the

Agreement to Sell dated 25

th

January 2008 on 5

th

February 2008 and

immediately thereafter, made a complaint dated 6

th

February 2008

with the Inspector of Police-cum-Station House Officer, Kankarbagh

SLP (C) No.28460 of 2024 Page 3 of 22

Police Station, Patna stating that her signatures had been fraudulently

taken on the Agreement to Sell dated 25

th

January 2008. It was further

stated that the seller issued a letter dated 7

th

January 2008 cancelling

the Agreement to Sell dated 25

th

January 2008 and refunded

Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand) through five

demand drafts dated 7

th

February 2008 in lieu of the cash and

returned two of the three post-dated cheques of Rs.2,50,000/-

(Rupees Two Lakh Fifty Thousand) each, which were issued by the

seller. Vide Order dated 16

th

December 2008, issues were framed by

the Trial Court.

3.6. Upon the demise of the seller, the Respondent No.3 herein,

who is the step grandson of the seller, was impleaded as substituted

defendant no. 1 and the appellant herein was impleaded as defendant

no. 3 as the subject property had been bequeathed in her favour by

way of a Will dated 23

rd

September 2002 executed by the original

owner/seller.

3.7. After consideration of the depositions of PW-1 (Respondent

No.1 herein) and her husband, PW-2, the Trial Court framed three

additional issues vide order dated 21

st

January 2013. The issues were

framed once again on 27

th

April 2018, and a judgment was passed in

favour of Respondent No.1-buyer on the same date.

3.8. The judgment dated 27

th

April 2018 and the decree dated 10

th

May 2018 were challenged by the appellant herein in First Appeal

No. 83 of 2018. The said appeal was dismissed by the Patna High

Court vide the impugned Judgment dated 9

th

May 2024.

SLP (C) No.28460 of 2024 Page 4 of 22

3.9. Upon the present Special Leave Petition being filed, this

Court, while issuing notice, had directed parties to maintain status

quo with respect to the possession on 20

th

August 2024.

SUBMISSIONS ON BEHALF OF THE APPELLANT

4. Shri S.B. Upadhyay, learned senior counsel for the appellant, stated

that the signatures of the seller on the Agreement to Sell dated 25

th

January

2008 had been fraudulently obtained by Respondent No.3 herein. He stated

that the seller-defendant signed some blank papers believing the same to be

related to the Will that she had executed in favour of the appellant on 23

rd

September 2002.

5. He stated that upon the discovery of the Agreement to Sell dated 25

th

January 2008 on 5

th

February 2008, the seller made a criminal complaint

dated 6

th

February 2008 with the Inspector of Police-cum-Station House

Officer, Kankarbagh, Patna that her signatures had been fraudulently

obtained on the Agreement to Sell dated 25

th

January 2008.

6. He stated that on 7

th

February 2008, the seller wrote a letter to

Respondent No.1-buyer cancelling the Agreement to Sell dated 25

th

January 2008 enclosing therewith five demand drafts dated 7

th

February

2008 amounting to Rs. 2,11,000/- (Rupees Two Lakh Eleven Thousand) in

lieu of the cash and two of the three post-dated cheques of Rs.2,50,000/-

(Rupees Two Lakh Fifty Thousand) each, which were issued by the

Respondent No.1-buyer.

7. He pointed out that the Respondent No.1-buyer as well as her

husband-PW2, in their depositions, have admitted that they had received

five demand drafts dated 7

th

February 2008 amounting to Rs. 2,11,000/-

SLP (C) No.28460 of 2024 Page 5 of 22

(Rupees Two Lakh Eleven Thousand) in lieu of the cash and also received

two of the three post-dated cheques of Rs.2,50,000/- (Rupees Two Lakh

Fifty Thousand) along with the letter cancelling the Agreement to Sell dated

25

th

January 2008 in March 2008. He explained that five demand drafts

dated 7

th

February 2008 of Rs.2,11,000/- (Rupees Two Lakh Eleven

Thousand) were encashed by the Respondent No.1-buyer in July 2008, after

institution of the subject suit on 5

th

May 2008. He submitted that the

encashment of the demand drafts amounted to revocation of the Agreement

to Sell dated 25

th

January 2008. He contended that the subject suit was filed

by the Respondent No.1-buyer after revocation of the Agreement to Sell

dated 25

th

January 2008, without seeking any relief against the revocation

and without disclosing that she was in receipt of the demand drafts and post-

dated cheques.

8. He contended that the subject suit was filed on the basis of an

Agreement to Sell which stood cancelled and as such, the same was not

maintainable. He submitted that existence of a valid agreement is sine qua

non for grant of relief of specific performance. He pointed out that, in

similar circumstances, this Court in R. Kandasamy (Since Dead) & Ors.

vs. T.R.K. Sarawathy & Anr. (Civil Appeal No. 3015 of 2013 decided on

21

st

November 2024), had set aside the judgment and decree passed in

favour of the Respondent No.1-buyer inter alia on the ground that a non-

existent Agreement to Sell cannot be enforced by a Court of law.

9. Even otherwise, he contended that the Respondent No.1-buyer was

not ready and willing to perform the Agreement to Sell dated 25

th

January

2008. He stated that a mere averment that the Respondent No.1-buyer is

ready and willing to perform the contract will not suffice as readiness and

SLP (C) No.28460 of 2024 Page 6 of 22

willingness must be inferred in overall circumstances of the case, including

the conduct of the Respondent No.1-buyer prior and subsequent to the filing

of the suit.

10. He pointed out that the Respondent No.1-buyer in her cross-

examination, had admitted that at the time of execution of the agreement,

she was not aware of the balance in her bank account and at the time when

the three post-dated cheques for Rs.2,50,000/- (Rupees Two Lakh Fifty

Thousand) were issued, there was no sufficient balance in her account. He

contended that the conduct of the Respondent No.1-buyer in encashing the

demand drafts proved that she was not ready or willing to perform the

contract. In support of his contentions, he relied upon the judgments of this

Court in Mehboob-Ur-Rehman (Dead) through Legal Representatives vs.

Ahsanul Ghani, (2019) 19 SCC 415 and C.S. Venkatesh vs. A.S.C. Murthy

(Dead) by Legal Representatives and Ors., (2020) 3 SCC 280.

SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1

11. Per contra, Mr. Mungeshwar Sahoo, learned senior counsel for the

Respondent No.1-buyer stated that the suit had been decreed in favour of

the Respondent No.1-buyer by the Trial Court after rightly appreciating the

evidence and a sale deed had been executed subsequently in favour of the

Respondent No.1-buyer upon deposit of Rs. 24,61,000/- (Rupees Twenty

Four Lakh Sixty One Thousand) before the Trial Court. He contended that

the judgment and decree passed by the Trial Court had been rightly upheld

by the High Court. He stated that the entire case of the appellant in the

present proceedings is based upon reappreciation of evidence and the same

cannot be permitted at this stage.

SLP (C) No.28460 of 2024 Page 7 of 22

12. He stated that the entire earnest money/advance consideration had

not been refunded/returned by the seller. He stated that the Respondent

No.1-buyer had paid Rs.2,51,000/- (Rupees Two Lakh Fifty One

Thousand) in cash to the seller against which the seller had refunded

Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand) through five demand

drafts dated 7

th

February 2008. Therefore, according to him, an amount of

Rs. 40,000/- (Rupees Forty Thousand) remained with the seller as earnest

money/advance consideration. He contended that as the balance sale

consideration had been paid subsequently, the cancellation of the

Agreement to Sell dated 25

th

January 2008 was not valid.

13. Even otherwise, he stated that a bilateral agreement cannot be

unilaterally cancelled by a party by returning the earnest money. According

to him, a (bilateral) agreement can only be cancelled by a Court of law or

by executing a subsequent agreement, cancelling the prior agreement. He

stated that in the event parties are permitted to unilaterally cancel the

agreement, the purchaser will be left remediless as any third party can

intervene by offering a higher earnest money.

14. He contended that the seller passed away before she could prove her

defense by leading evidence. He stated that neither the appellant nor the

Respondent No.3 herein had deposed in support of the written statement

filed by the seller. He therefore stated that the written statement of the seller

had not been proved. He also contended that the appellant did not have the

locus to file the present appeal. According to him, the appellant had no

right, title or interest in the subject property and the findings of the Trial

Court or the High Court do not affect the appellant in any manner.

SLP (C) No.28460 of 2024 Page 8 of 22

COURT’S REASONING

RESPONDENT NO.1 WAS NOT WILLING TO PERFORM THE

AGREEMENT TO SELL

15. Having heard learned senior counsel / learned counsel for the parties

and having perused the paper book, the admitted position that emerges is

that Respondent No.1-buyer had paid Rs. 2,51,000/- (Rupees Two Lakh

Fifty One Thousand) in cash and handed over three post-dated cheques of

Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) each at the time of

execution of the Agreement to Sell dated 25

th

January 2008. It is also not

disputed that the Respondent No.1-buyer had subsequently received a letter

dated 7

th

February 2008 cancelling the Agreement to Sell dated 25

th

January

2008 enclosing therewith five demand drafts dated 7

th

February 2008

totaling to Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand) (in lieu of

the cash paid by the Respondent No.1-buyer) along with two of the three

post-dated cheques of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand)

each, which had been issued initially by the Respondent No.1-buyer.

Further, the third post-dated cheque which was not returned to the

Respondent No.1-buyer had not been encashed. The Respondent No.1-

buyer has admitted that the letter dated 7

th

February 2008 had been received

prior to filing of the suit for specific performance and five demand drafts

dated 7

th

February 2008 totaling to Rs.2,11,000/- (Rupees Two Lakh Eleven

Thousand) had been encashed in July, 2008 after institution of the subject

suit on 5

th

May 2008, without raising any objection with respect to the

difference in the cash amount and the demand drafts furnished by the seller.

16. It is settled law that under the Act, 1963, prior to the 2018

Amendment, specific performance was a discretionary and equitable relief.

SLP (C) No.28460 of 2024 Page 9 of 22

In Kamal Kumar vs. Premlata Joshi and Ors., (2019) 3 SCC 704, which

has been followed in P. Daivasigamani vs. S. Sambandan, (2022) 14 SCC

793, this Court framed material questions which require consideration prior

to grant of relief of specific performance. The relevant portion of the

judgment in Kamal Kumar (supra) is reproduced hereinbelow:

“7. It is a settled principle of law that the grant of relief of specific

performance is a discretionary and equitable relief. The material

questions, which are required to be gone into for grant of the relief

of specific performance, are:

7.1. First, whether there exists a valid and concluded contract

between the parties for sale/purchase of the suit property.

7.2. Second, 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.

7.3. Third, 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;

7.4. Fourth, 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;

7.5. Lastly, 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 Sections 16(c), 20, 21, 22, 23 of the

Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of

the Code of Civil Procedure]. These requirements have to be

properly pleaded by the parties in their respective pleadings and

SLP (C) No.28460 of 2024 Page 10 of 22

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.”

17. It is trite law that ‘readiness’ and ‘willingness’ are not one but two

separate elements. ‘Readiness’ means the capacity of the Respondent No.1-

buyer to perform the contract, which would include the financial position

to pay the sale consideration. ‘Willingness’ refers to the intention of the

Respondent No.1-buyer as a purchaser to perform his part of the contract,

which is inferred by scrutinising the conduct of the Respondent No.1-buyer

/purchaser, including attending circumstances.

18. Continuous readiness and willingness on the part of the Respondent

No.1-buyer /purchaser from the date of execution of Agreement to Sell till

the date of the decree, is a condition precedent for grant of relief of specific

performance. This Court in various judicial pronouncements has held that

it is not enough to show the readiness and willingness up to the date of the

plaint as the conduct must be such as to disclose readiness and willingness

at all times from the date of the contract and throughout the pendency of

the suit up to the decree. A few of the said judgments are reproduced

hereinbelow:-

A. In Gomathinayagam Pillai and Ors. vs. Palaniswami Nadar,

(1967) 1 SCR 227, it has been held as under:-

“6. But the respondent has claimed a decree for specific

performance and it is for him to establish that he was, since the date

of the contract, continuously ready and willing to perform his part

of the contract. If he fails to do so, his claim for specific

performance must fail. As observed by the Judicial Committee of

the Privy Council in Ardeshir Mama v. Flora Sassoon 1928 SCC

OnLine PC 43:

SLP (C) No.28460 of 2024 Page 11 of 22

“In a suit for specific performance, on the other hand, he treated

and was required by the Court to treat the contract as still

subsisting. He had in that suit to allege, and if the fact was

traversed, he was required to prove a continuous readiness and

willingness, from the date of the contract to the time of the

hearing, to perform the contract on his part. Failure to make

good that averment brought with it the inevitable dismissal of his

suit.”

The respondent must in a suit for specific performance of an

agreement plead and prove that he was ready and willing to

perform his part of the contract continuously between the date of

the contract and the date of hearing of the suit….”

(emphasis supplied)

B. In Vijay Kumar and Others vs. Om Parkash, 2018 SCC OnLine

SC 1913, it has been held as under:-

“6. In order to obtain a decree for specific performance, the

plaintiff has to prove his readiness and willingness to perform his

part of the contract and the readiness and willingness has to be

shown throughout and has to be established by the plaintiff….”

(emphasis supplied)

C. In J.P.Builders and Another vs. A. Ramadas Rao and Another,

(2011) 1 SCC 429, it has been held as under:-

“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.”

(emphasis supplied)

D. In Umabai and Another vs. Nilkanth Dhondiba Chavan (Dead)

By LRs. and Another, (2005) 6 SCC 243, it has been held as under:-

SLP (C) No.28460 of 2024 Page 12 of 22

“30. It is now well settled that the conduct of the parties, with a view

to arrive at a finding as to whether the plaintiff-respondents were

all along and still are ready and willing to perform their part of

contract as is mandatorily required under Section 16 (c) of the

Specific Relief Act must be determined having regard to the entire

attending circumstances. A bare averment in the plaint or a

statement made in the examination-in- chief would not suffice.

The conduct of the plaintiff- respondents must be judged having

regard to the entirety of the pleadings as also the evidence brought

on records.”

(emphasis supplied)

E. In Mehboob-Ur-Rehman (Dead) through Legal Representatives v.

Ahsanul Ghani (supra), it has been held as under:-

“16. Such a requirement, of necessary averment in the plaint, that

he has already performed or has always been ready and willing to

perform the essential terms of the contract which are to be

performed by him being on the plaintiff, mere want of objection by

the defendant in the written statement is hardly of any effect or

consequence. The essential question to be addressed to by the

Court in such a matter has always been as to whether, by taking

the pleading and the evidence on record as a whole, the plaintiff

has established that he has performed his part of the contract or

has always been ready and willing to do so...”

(emphasis supplied)

F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal

Representatives & Ors. (supra), it has been held as under:-

“16. The words “ready and willing” imply that the plaintiff was

prepared to carry out those parts of the contract to their logical end

so far as they depend upon his performance. The continuous

readiness and willingness on the part of the plaintiff is a condition

precedent to grant the relief of performance. 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 contract, the

court must take into consideration the conduct of the plaintiff prior,

and subsequent to the filing of the suit along with other attending

SLP (C) No.28460 of 2024 Page 13 of 22

circumstances. The amount which he has to pay the defendant must

be of necessity to be proved to be available. Right from the date of

the execution of the contract till the date of decree, he must prove

that he is ready and willing to perform his part of the contract.

The court may infer from the facts and circumstances whether the

plaintiff was ready and was always ready to perform his contract.

17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P.

Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115], it was

held that continuous readiness and willingness on the part of the

plaintiff is a condition precedent to grant of 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 conduct of the plaintiff prior to and subsequent

to the filing of the suit along with other attending circumstances.

The amount of consideration which he has to pay to the defendant

must necessarily be proved to be available.

18. In Pushparani S. Sundaram v. Pauline Manomani

James [Pushparani S. Sundaram v. Pauline Manomani James,

(2002) 9 SCC 582], this Court has held that inference of readiness

and willingness could be drawn from the conduct of the plaintiff and

the totality of circumstances in a particular case. It was held thus:

(SCC p. 584, para 5)

“5. … So far these being a plea that they were ready and willing

to perform their part of the contract is there in the pleading, we

have no hesitation to conclude, that this by itself is not sufficient

to hold that the appellants were ready and willing in terms of

Section 16(c) of the Specific Relief Act. This requires not only

such plea but also proof of the same. Now examining the first of

the two circumstances, how could mere filing of this suit, after

exemption was granted be a circumstance about willingness or

readiness of the plaintiff. This at the most could be the desire of

the plaintiff to have this property. It may be for such a desire

this suit was filed raising such a plea. But Section 16(c) of the

SLP (C) No.28460 of 2024 Page 14 of 22

said Act makes it clear that mere plea is not sufficient, it has to

be proved.”

(emphasis supplied)

19. Consequently, the readiness and willingness of the buyer to go ahead

with the sale of the property at the time of the institution of the suit loses its

relevance, if the Respondent No.1-buyer is unable to establish that the

readiness and willingness has continued throughout the pendency of the

suit.

20. After examination of the pleadings and evidence in the present suit

as well as the conduct of the Respondent No.1-buyer, this Court is unable

to agree with Respondent No.1-buyer that she was willing to perform the

Agreement to Sell dated 25

th

January, 2008 and go ahead with the purchase

of the property. This Court says so because admittedly, as noted above, the

five demand drafts dated 7

th

February 2008 for Rs. 2,11,000/- (Rupees Two

Lakh Eleven Thousand) were encashed by the Respondent No.1-buyer in

July, 2008. The conduct of the Respondent No.1-buyer in encashing the

demand drafts establishes beyond doubt that the Respondent No.1-buyer

was not willing to perform her part of the Agreement to Sell and proceed

with execution of the sale deed; for the Respondent No.1-buyer would not

have encashed the demand drafts if she was indeed willing to perform the

contract and have a sale deed executed. Consequently, once it is established

that the Respondent No. 1-buyer is not willing to perform the contract, the

fact that the entire advance consideration/earnest money had not been

returned to Respondent No.1-buyer is irrelevant and immaterial.

SLP (C) No.28460 of 2024 Page 15 of 22

THE AGREEMENT TO SELL DATED 25

TH

JANUARY 2008 STOOD

CANCELLED / TERMINATED.

21. This Court is also of the view that the act of the Respondent No.1-

buyer in encashing the demand drafts leads to an irresistible conclusion that

the agreement in question stood cancelled.

22. The contention of the learned counsel for the Respondent No. 1-

buyer that the Agreement to Sell dated 25

th

January 2008 could not have

been cancelled unilaterally is contrary to facts as the letter dated 07

th

February 2008 along with the refund of the demand drafts and two post-

dated cheques was nothing but repudiation of the Agreement to Sell dated

25

th

January 2008 by the seller and the encashment of the demand drafts

was acceptance of such repudiation by the Respondent No.1-buyer, leading

to cancellation of the Agreement to Sell dated 25

th

January 2008.

23. The contention that the demand drafts were encashed under protest

is misconceived on facts as there is nothing on record to show that the

demand drafts were encashed under protest. In fact, PW-2, who is the

husband of the Respondent No.1-buyer, has deposed that upon receipt of

the demand drafts and cheques, the Respondent No.1-buyer had not issued

any letter to the seller stating that the amounts received by them were less

than the earnest money paid by them.

ABSENT A PRAYER FOR DECLARATORY RELIEF THAT

CANCELLATION OF THE AGREEMENT IS BAD IN LAW, A SUIT FOR

SPECIFIC PERFORMANCE IS NOT MAINTAINABLE

24. This Court further finds that the seller had admittedly issued a letter

dated 7

th

February 2008 cancelling the Agreement to Sell dated 25

th

January

2008, prior to the filing of the subject suit on 5

th

May 2008. Even though

SLP (C) No.28460 of 2024 Page 16 of 22

the demand drafts enclosed with the letter dated 07

th

February, 2008 were

subsequently encashed in July, 2008, yet this Court is of the view that it

was incumbent upon the Respondent No.1-buyer to seek a declaratory relief

that the said cancellation is bad in law and not binding on parties for the

reason that existence of a valid agreement is sine qua non for the grant of

relief of specific performance.

25. This Court in I.S. Sikandar (Dead) By LRs. v. K. Subramani and

Others, (2013) 15 SCC 27 has held that in absence of a prayer for a

declaratory relief that the termination of the agreement is bad in law, the

suit for specific performance of that agreement is not maintainable. Though

subsequently, this Court in A. Kanthamani Vs. Nasreen Ahmed, (2017) 4

SCC 654 has held that the declaration of law in I.S. Sikander (Dead) By

LRs. v. K. Subramani (supra) regarding non-maintainability of the suit in

the absence of a challenge to letter of termination is confined to the facts of

the said case, yet the aforesaid issue has been recently considered in R.

Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra)

authored by brother Justice Dipankar Datta and the conflict between the

judgment of I.S. Sikander (Dead) By LRs. v. K. Subramani (supra) and A.

Kanthamani Vs. Nasreen Ahmed (supra) has been deliberated upon. In R.

Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra), it

has been clarified that the appellate court would not be precluded from

examining whether the jurisdictional fact exists for grant of relief of

specific performance, notwithstanding the fact that the trial Court omitted

or failed to frame an issue on maintainability of the suit. The relevant

portion of the judgment in R. Kandasamy (Since Dead) & Ors. v. T.R.K.

Sarawathy & Anr. (supra) is reproduced hereinbelow:

SLP (C) No.28460 of 2024 Page 17 of 22

“25. What follows from A. Kanthamani (supra) is that unless an

issue as to maintainability is framed by the Trial Court, the suit

cannot be held to be not maintainable at the appellate stage only

because appropriate declaratory relief has not been prayed.

xxx xxx xxx xxx

43. In Shrisht Dhawan (Smt) v. Shaw Bros., (1992) 1 SCC 534, an

interesting discussion on ‘jurisdictional fact’ is found in the

concurring opinion of Hon’ble R. M. Sahai, J. (as His Lordship then

was). It reads:

“19. *** What, then, is an error in respect of jurisdictional

fact? A jurisdictional fact is one on existence or non-existence

of which depends assumption or refusal to assume jurisdiction

by a court, tribunal or an authority. In Black’s Legal

Dictionary it is explained as a fact which must exist before a

court can properly assume jurisdiction of a particular case.

Mistake of fact in relation to jurisdiction is an error of

jurisdictional fact. No statutory authority or tribunal can

assume jurisdiction in respect of subject matter which the

statute does not confer on it and if by deciding erroneously the

fact on which jurisdiction depends the court or tribunal

exercises the jurisdiction then the order is vitiated. Error of

jurisdictional fact renders the order ultra vires and bad

(Wade, Administrative Law. In Raza Textiles [(1973) 1 SCC

633] it was held that a court or tribunal cannot confer

jurisdiction on itself by deciding a jurisdictional fact wrongly.

***

(emphasis supplied)

44. Borrowing wisdom from the aforesaid passage, our deduction is

this. An issue of maintainability of a suit strikes at the root of the

proceedings initiated by filing of the plaint as per requirements of

Order VII Rule 1, CPC. If a suit is barred by law, the trial court has

absolutely no jurisdiction to entertain and try it. However, even

though a given case might not attract the bar envisaged by section 9,

CPC, it is obligatory for a trial court seized of a suit to inquire and

SLP (C) No.28460 of 2024 Page 18 of 22

ascertain whether the jurisdictional fact does, in fact, exist to enable

it (the trial court) to proceed to trial and consider granting relief to

the plaintiff as claimed. No higher court, much less the Supreme

Court, should feel constrained to interfere with a decree granting

relief on the specious ground that the parties were not put

specifically on notice in respect of a particular line of attack/defence

on which success/failure of the suit depends, more particularly an

issue touching the authority of the trial court to grant relief if the

‘jurisdictional fact’ imperative for granting relief had not been

satisfied. It is fundamental, as held in Shrisht Dhawan (supra), that

assumption of jurisdiction/refusal to assume jurisdiction would

depend on existence of the jurisdictional fact. Irrespective of whether

the parties have raised the contention, it is for the trial court to satisfy

itself that adequate evidence has been led and all facts including the

jurisdictional fact stand proved for relief to be granted and the suit

to succeed. This is a duty the trial court has to discharge in its pursuit

for rendering substantive justice to the parties, irrespective of

whether any party to the lis has raised or not. If the jurisdictional

fact does not exist, at the time of settling the issues, notice of the

parties must be invited to the trial court’s prima facie opinion of non-

existent jurisdictional fact touching its jurisdiction. However, failure

to determine the jurisdictional fact, or erroneously determining it

leading to conferment of jurisdiction, would amount to wrongful

assumption of jurisdiction and the resultant order liable to be

branded as ultra vires and bad.

45. Should the trial court not satisfy itself that the jurisdictional fact

for grant of relief does exist, nothing prevents the court higher in the

hierarchy from so satisfying itself. It is true that the point of

maintainability of a suit has to looked only through the prism of

section 9, CPC, and the court can rule on such point either upon

framing of an issue or even prior thereto if Order VII Rule 11 (d)

thereof is applicable. In a fit and proper case, notwithstanding

omission of the trial court to frame an issue touching jurisdictional

fact, the higher court would be justified in pronouncing its verdict

upon application of the test laid down in Shrisht Dhawan (supra).

SLP (C) No.28460 of 2024 Page 19 of 22

46. In this case, even though no issue as to maintainability of the suit

had been framed in course of proceedings before the Trial Court,

there was an issue as to whether the Agreement is true, valid and

enforceable which was answered against the sellers. Obviously,

owing to dismissal of the suit, the sellers did not appeal.

Nevertheless, having regard to our findings on the point as to

whether the buyer was ‘ready and willing’, we do not see the

necessity of proceeding with any further discussion on the point of

jurisdictional fact here.”

26. Since in the present case, the seller had issued a letter dated 07

th

February, 2008 cancelling the agreement to sell prior to the institution of

the suit, the same constitutes a jurisdictional fact as till the said cancellation

is set aside, the respondent is not entitled to the relief of specific

performance.

27. Consequently, this Court is of the opinion that absent a prayer for

declaratory relief that termination/cancellation of the agreement is bad in

law, a suit for specific performance is not maintainable.

APPELLANT HAS THE LOCUS STANDI TO FILE THE APPEAL

28. The preliminary objection raised by the Respondent No.1-buyer that

the issue of her readiness and willingness should not be examined by this

Court as the appellant lacked the locus standi to file the present appeal as

she did not have any right, interest or title over the subject property is

misconceived on facts. The appellant was impleaded as defendant no. 3 in

the subject suit as she is a beneficiary under the Will dated 23

rd

September

2002 executed by the original owner/seller, whereby the subject property

has been bequeathed in her favour. Consequently, the appellant, being a

necessary and interested party to the lis, has the locus to file the present

SLP (C) No.28460 of 2024 Page 20 of 22

appeal. Further, the onus to establish readiness and willingness is on the

Respondent No.1-buyer and the failure to establish the same disentitles the

Respondent No.1-buyer from the equitable and discretionary relief of

specific performance.

SUPPRESSION OF MATERIAL FACTS DISENTITLE S THE BUYER

FROM THE EQUITABLE AND DISCRETIONARY RELIEF OF SPECIFIC

PERFORMANCE

29. A perusal of the record shows that not only did the Respondent No.

1-buyer fail to seek a declaratory relief, but also it failed to disclose in the

plaint that the seller had issued the cancellation letter dated 7

th

February

2008 enclosing therewith the demand drafts dated 7

th

February 2008 and

two of the three post-dated cheques. The failure of the Respondent No. 1-

buyer to disclose the same in her plaint amounts to suppression of material

fact, disentitling her from the discretionary relief of specific performance.

This Court in Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates

Private Limited and Another, (2011) 9 SCC 147 has held as under:

“57. There is another aspect of the matter also. In the instant case

by asking for specific performance of the contract, the plaintiff

purchaser is praying for a discretionary remedy. It is axiomatic

that when a discretionary remedy is prayed for by a party, such

party must come to court on proper disclosure of facts. The plaint

which it filed before the court in such cases must state all the

facts with sufficient candour and clarity. In the instant case the

plaintiff purchaser made an averment in the plaint that the

defendant vendor be directed to return the advance amount of Rs

10,00,000 with interest at the rate of 24% from the date of

payment of the said amount till the realisation and an alternative

prayer to that effect was also made in the prayer clause (c).

58. However, the fact remains that prior to the filing of the suit

the defendant vendor returned the said amount of Rs 10,00,000

SLP (C) No.28460 of 2024 Page 21 of 22

by its letter dated 4-9-1996 by an account payee cheque in favour

of the plaintiff and the same was sent to the plaintiff under

registered post which was refused by the plaintiff on 6-9-1996.

The plaintiff suppressed this fact in the plaint and filed the suit

on 9-9-1996 with a totally contrary representation before the

court as if the amount had not been returned to it by the vendor.

This is suppression of a material fact, and disentitles the plaintiff

purchaser from getting any discretionary relief of specific

performance by the court.

59. In this connection we may refer to the Principle of Equitable

Remedies by I.C.F. Spry, (4th Edn., Sweet & Maxwell, 1990).

Dealing with the question of “clean hands” the learned author

opined that where the plaintiff is shown to have materially misled

the court or to have abused its process, or to have attempted to

do so, the discretionary relief of specific performance can be

denied to him. In laying down this principle, the learned author

relied on a decision of the English Court

in Armstrong v. Sheppard & Short Ltd. [(1959) 2 QB 384 :

(1959) 3 WLR 84 : (1959) 2 All ER 651 (CA)] , QB at p. 397.

(See Spry, Equitable Remedies, p. 243.)

60. This Court has also taken the same view in Arunima

Baruah v. Union of India [(2007) 6 SCC 120] . At p. 125, para

12 of the Report, this Court held that it is trite law that to enable

the court to refuse to exercise its discretionary jurisdiction

suppression must be of a material fact. This Court, of course,

held that what is a material fact, suppression whereof would

disentitle the suitor to obtain a discretionary relief, would depend

upon the facts and circumstances of each case. However, by way

of guidance this Court held that a material fact would mean that

fact which is material for the purpose of determination of the lis.

61. Following the aforesaid tests, this Court is of the opinion that

the suppression of the fact that the plaintiff refused to accept the

cheque of Rs 10 lakhs sent to it by the defendant under registered

post with acknowledgment due in terms of Clause 9 of the

contract is a material fact. So on that ground the plaintiff

purchaser is not entitled to any relief in its suit for specific

performance.”

SLP (C) No.28460 of 2024 Page 22 of 22

CONCLUSION

30. Keeping in view the aforesaid findings, this Court is of the view that

the Agreement to Sell cannot be specifically enforced. Accordingly, the

present appeal is allowed and the impugned Judgment dated 27

th

April,

2018 as well as decrees dated 10

th

May, 2018 and 09

th

May, 2024 are set

aside. Further, the sale deed executed in favour of Respondent No.1-buyer

in pursuance of the impugned judgments is declared as null and void and

the Appellant is directed to refund the balance sale consideration amount of

Rs.24,61,000/- (Rupees Twenty Four Lakh Sixty One Thousand) deposited

by Respondent No.1-buyer in pursuance to the impugned judgment and

decrees.

...…...……………….J.

[DIPANKAR DATTA]

……………….J.

[MANMOHAN ]

New Delhi;

April 04, 2025.