FA-2424-2025-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO.2424 OF 2025

WITH

INTERIM APPLICATION NO.13477 OF 2025

IN

FIRST APPEAL NO.2424 OF 2025

Satpal Singh.J Chawla,

Age: 54 years, Occu.: Business,

R/at: Sukhmani Niwas, B-44/259,

Opp. Holly Child School, Gandhi

Road, Ulhasnagar-5, Dist. Thane.

…Appellant

Org.Plainti�

Versus

1) Subhash D. Sharma,

Age: 74 years, Occu.: Business

2) Amit S. Sharma,

Age: 36 years, Occu.: Business

3) Inderpal D. Sharma,

Age: 52 years, Occu.: Business,

No.1 to 3 R/at: Block No. A-257,

Room No. 513, Ulhasnagar,

District – Thane.

4) Suresh Deshraj Sharma,

Age: 74 years, Occu.:

R/at: Guru Niwas 292/19, First �oor,

V. P. Road, Grand Road, Mumbai 400 004 ...Respondents

——————

Mr. Girish R. Agrawal a/w Ms. Chitra Darekar for the Appellant/Applicant

Mr. Vijay Watwani a/w Mr. Toni S. for the Respondent Nos.1 & 2

Mr. S. S. Patwardhan a/w Ms. Anjali Raut i/b Mr. Sujit Padarat for the

Respondent No. 3

——————

SQ Pathan 1/34

SHAGUFTA

QUTBUDDIN

PATHAN

Digitally signed

by SHAGUFTA

QUTBUDDIN

PATHAN

Date:

2026.06.08

18:49:58 +0530

FA-2424-2025-J.doc

CORAM : SHARMILA U. DESHMUKH, J.

RESERVED ON : APRIL 17, 2026

PRONOUNCED ON : JUNE 8, 2026

JUDGMENT :

1.The present Appeal is at the instance of the original Plainti�

aggrieved by the impugned judgment of the Trial Court dated

29/12/2025 dismissing the Suit seeking speci�c performance of the

Agreement for Sale dated 19/01/2010. For sake of brevity, the parties

are referred to by their original status in the Trial Court.

2.Special Civil Suit No. 165 of 2014 was instituted seeking speci�c

performance of Agreement for Sale dated 19/01/2010 executed with

the Defendants, in respect of residential property described as Plot No.

172, Sheet No. 42 situated near Block No. A-257, Room No. 513,

admeasuring about 750 square yards, Ulhasnagar. The suit property is

compensation pool property and the Defendants represented to the

Plainti� that the Authorized Chief Settlement Commissioner, Mumbai

in Revision Petition No. 45 of 2008 had ordered the S.D.O-cum-

Managing O�cer, Ulhasnagar to issue Conveyance Deed in respect of

the suit property vide order dated 17/03/2009. After negotiations, the

Defendants agreed to sell the suit property to the Plainti� for

consideration of Rs.1,08,00,000/-. On 18/01/2010, the Plainti� paid

SQ Pathan 2/34

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Rs.21,00,000/- and Agreement for Sale dated 19/01/2010 came to be

executed between the parties. The plaint pleads that in view of stay to

the issuance of Conveyance Deed by the Hon’ble Apex Court, no time

limit was �xed for completing the transaction. The Defendants had

agreed to receive balance consideration on receipt of Conveyance

Deed from the Government and on execution of Sale Deed in favour of

the Plainti�. The Defendants, being in need of money, have further

received payment of Rs.15,98,000/-, the receipt whereof they have

acknowledged, and have lastly received the payment of Rs.10,000/- on

30/03/2014. It was pleaded that the sum of Rs.36,98,000/- was paid

and balance amount of Rs.71,02,000/- was to be paid at the time of

issuance of the Conveyance Deed by the o�ce of S.D.O. and execution

of �nal conveyance in favour of the Plainti�. It was pleaded that the

Plainti� has learned that the Hon’ble Apex Court has directed issuance

of Conveyance Deed and the Defendants are deliberately delaying the

same. The Plainti� is ready to perform his part of the contract and has

kept the balance amount ready. As the Defendants intended to sell the

suit property to some other purchasers, legal notice was issued on

14/05/2014 to the Defendants. The Defendant Nos. 1 and 2 have

responded to the said legal notice and have raised false contentions.

3.The cause of action is pleaded as having arisen on 30/03/2014

when the Defendants received part consideration and further arose on

SQ Pathan 3/34

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14/05/2014 and 23/05/2014 when the Defendants failed to perform

their part of the contract. The Suit came to be �led on 09/06/2014

seeking speci�c performance of the Agreement for Sale dated

19/01/2010.

4. Initially, the Suit came to be �led only against Defendant Nos. 1

to 3 and after the written statement was �led, the Defendant No. 4,

Suresh Deshraj Sharma, was impleaded.

5.The written statement �led by the Defendant Nos. 1 and 2 raises

the issue of limitation. The Defendant No. 2 is the son of Defendant

No. 1. It was contended that Defendant No. 1 has two more brothers

besides Defendant No. 3, namely Dharampal Deshraj Sharma and

Suresh Deshraj Sharma, who are the successors to the suit property

and have 1/4

th

undivided share in the suit property. It was contended

that as the period for performance was not �xed, the same had to be

performed within a reasonable time which cannot be beyond three to

six months. The Plainti� has colluded with Defendant No. 3 and made

certain payments to Defendant No. 3, which Defendant No. 3 was not

authorized to receive on behalf of Defendant Nos.1 and 2 and the

Defendant No. 3 is not independently competent to give a valid

discharge. It was further contended that the parties had orally agreed

at the time of executing the Agreement for Sale that the period �xed

for performance is six months from the date of execution and the time

SQ Pathan 4/34

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period was kept blank and later on has been �lled by the Plainti� as

"issuance of C.D.". It was contended that the obligation was upon the

Plainti� to take necessary steps for obtaining the Conveyance Deed

and only signatures were required to be given by the Defendant Nos.1

and 2 to facilitate obtaining the Conveyance Deed. The Plainti� has not

taken any steps to obtain the Conveyance Deed nor expressed his

desire to perform his contractual obligation. It was further stated that

there is no such Supreme Court judgment in respect of the property of

the Defendants whereby the Defendants were prevented or prohibited

from obtaining the Conveyance Deed lawfully. It was contended that

unless and until the Conveyance Deed in respect of the property of

compensation pool is issued by the Competent Authority under the

provisions of the Displaced Persons (Compensation and Rehabilitation)

Act, 1952, it is the Union of India that continues to be owner of the

property and as no Conveyance Deed has been issued till date, the

Government continues to be the owner of the property, which was to

the knowledge of the Plainti� at the time of entering into the alleged

Agreement dated 19/01/2010. The Plainti� has failed to perform his

contractual obligation of tendering the remaining consideration within

a period of six months from the date of entering into the Agreement

for Sale dated 19/01/2010. It was denied that the Defendants have

received the sum as contended by the Plainti� from time to time and

SQ Pathan 5/34

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that the alleged payment by the Plainti� to Defendant No. 3 was not

authorized by these Defendants and the said transactions are not

binding upon the Defendants.

6.The Defendant No. 3 admitted the execution of the Agreement

for Sale dated 19/01/2010. He also admitted the receipt of money from

time to time from the Plainti�. He further contended that the

Defendant No. 3 and Subhash Sharma have relinquished their rights in

the property. He submitted that the Defendant No. 3 and his brother

are ready and willing to execute the Sale Deed and that at the time of

executing the Agreement for Sale, the other two brothers were not

present and the Defendant No. 1, being their eldest bro ther,

represented to the Plainti� that he can execute the Agreement for

Sale on behalf of the remaining younger brothers.

7.The Plainti�, Defendant No. 2 and Defendant No. 3 examined

themselves and were duly cross examined. The Plainti� produced the

the copy of legal notice dated 14/05/2014- Exhibit 48, the reply dated

27/05/2014- Exhibit 49, original Agreement for sale dated 19/01/2010-

Exhibit 50.

8.The cross examination of the Plainti� was concluded on

13/02/2025. An application was �led by the Plainti� on 20/06/2025

seeking permission to produce on record the copy of the order of

Hon’ble Apex Court in Civil Appeal No. 6079 of 2010 vacating the stay

SQ Pathan 6/34

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granted and the judgment of Chief Settlement Commissioner in

Revision Petition No. 45 of 2008. The Trial Court allowed production of

documents.

9.After the evidence was concluded, an application was �led by the

Plainti� on 31/07/2025, seeking permission to deposit

Rs.71,02,000/- in the Trial Court, which was allowed on 21/08/2025. On

17/09/2025, an application was �led by Defendant No. 3 seeking

permission to place on record the Conveyance Deed along with the

receipts evidencing deposit of money in the bank. It was contended

that the Plainti� had made necessary payment towards issuance of

Conveyance Deed, which was collected by Defendant No. 3 a nd

deposited in bank towards issuance of Conveyance Deed. The Plainti�

gave its no objection to taking the documents on record and the

application was opposed by Defendant Nos. 1 and 2 . Vide order dated

25/09/2025, the Trial Court held that all parties were acquainted with

the fact that sanad is obtained on 23/09/2021 and permitted the

documents to be taken on record, which were marked as Exhibit 117

and 118 respectively.

10.The Trial Court framed the necessary issues as under:

(1) Whether the Plainti� proves that the Defendant Nos. 1

and 2 failed to perform their part of contract?

SQ Pathan 7/34

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(2) Whether the Plainti� proves that he was and is ready

and willing to perform his part of contract?

(3) Whether the Suit su�ers from non-joinder of the

necessary parties?

(4) Whether the Plainti� is entitled for the reliefs sought?”

11.The Trial Court answered all the issues in the negative and

dismissed the Suit on the ground of absence of readiness and

willingness. The Trial Court noted the order of Settlement

Commissioner dated 17/03/2009, the decision in the case of Union of

India (SLP No.6703/2008), the order of Hon’ble Apex Court dated

25/02/2008 directing the Authorities not to implement the orders, and

the order dated 05/12/2008 by which the Hon’ble Apex Court ordered

the Authorities to decide the matter and pass appropriate orders. It

observed that other members are not owners of the suit property and

as per family arrangement, part payment was made to family members

of Defendants. Only Defendant No. 1 is allottee of the land and mere

formality remained to obtain sanad of allotted land by making

necessary payment. It held that parties were well acquainted with the

fact that performance of agreement was not possible unless sanad was

obtained and therefore the agreement mentions performance of

agreement on issuance of C.D.

12.The Trial Court noted relevant Clause No. (8) of the Agreement

SQ Pathan 8/34

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for Sale imposing obligation on purchaser to bear the charges of

getting Conveyance Deed, for which no co-operation is required from

Defendant No 1. It further noted that the legal notice called upon

Defendants to execute the Conveyance Deed and there is no evidence

to show what kind of co-operation was required from the Defendants.

13.The Trial Court noted that the Plainti� and Defendant No. 3

adduced evidence but did not disclose the fact of obtaining of sanad.

The Plainti� has not established what steps were taken by the Plainti�

to obtain sanad of the suit property in name of Defendant No. 1, and

there is nothing on record to show that as on 14/05/2014, the Plainti�

was ready to pay the balance consideration as well as the expenses for

the sanad. It held that the Plainti� had failed to prove readiness and

willingness.

14.The Trial Court noted that on 23/09/2021, the sanad was issued

on payment and that upon issuance of legal notice on 14/05/2014, the

amount was required to be deposited. It further noted that to prove

readiness and willingness, the Plainti� deposited the amount of

Rs.71,02,000/- on 22/08/2025 after lapse of 11 years from institution of

Suit.

SUBMISSIONS :

15.Mr. Agrawal, learned counsel appearing for the Appellant, has

taken this Court through the various clauses of the Agreement for sale

SQ Pathan 9/34

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to contend that as per Clause (3), the obligation was upon the Plainti�

to pay the balance consideration only upon the issuance of the

Conveyance Deed, which Conveyance Deed was not issued due to the

stay order passed by the Hon’ble Apex Court. He submits that there

was no communication addressed by the Defendants to the Plainti�

calling upon him to make the payment for the Conveyance Deed and

the inaction was on account of stay order of Hon’ble Apex Court. He

would further point out order of Hon’ble Apex Court dated 28/04/2014

annexed to the present First Appeal directing the conce rned

authorities to decide the application expeditiously and within six

months from the date of making of such application. He submits that

subsequent thereto, notice was issued on 14/05/2014 calling upon the

Defendants to accept the balance consideration and execute the

registered Sale Deed. He has taken this Court through the contents of

the reply letter dated 23/05/2014 and would submit that false case

was set up about the time for performance being six months and that

earnest money stands forfeited without any such clause in the

Agreement.

16.He would further point out that the Agreement for Sale makes

speci�c mention of Revision Petition No. 45 of 2008 and the order

dated 17/03/2009 makes a reference to the stay order of the Hon’ble

Apex Court on 05/02/2008. He would submit that Defendant No. 3 has

SQ Pathan 10/34

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accepted the payments from the Plainti� and during the pendency of

the Suit, the balance consideration was also deposited by the Plainti�.

He submits that the Trial Court, though noted that Defendant No. 3

had �led an application stating that the amount was received from the

Plainti� and sanad has been issued, has failed to appreciate that the

Plainti� had complied with his obligations and nothing further

remained to be complied. He submits that under Clause (8) of the

Agreement for Sale, the responsibility was on the Plainti� to pay the

charges for the Conveyance Deed and unless and until the Defendants

called upon the Plainti� to make such payment, there was no occasion

for the Plainti� to pay the charges. He submits that it is only upon

vacating of stay order by the Hon’ble Apex Court on 28/04/2014, that

the Conveyance Deed could have been issued by the comp etent

authority and immediately thereafter, the notice was issued by the

Plainti�. He submits that the evidence on record proves readiness and

willingness of the Plainti� and therefore the discretionary relief ought

to have been exercised in favour of the Plainti�.

17. Mr. Watwani, learned counsel appearing for Respondent Nos.

1 and 2 submits that the handwritten words inserted in Clause (3) were

not within the knowledge of Respondent Nos. 1 and 2, as it was orally

agreed between the parties that the time for performance of the

contract was six months. He submits that the Plainti� had knowledge

SQ Pathan 11/34

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of the Revision Petition No. 45 of 2008 and the order passed thereon,

which is also set out in Clause (2) of the Agreement for Sale. He

submits that the order in the said Revision Petition regularized the

occupation of the Defendant No. 1. He submits that the obligation to

pay the charges for obtaining the Conveyance Deed was required to be

complied with by the Plainti�, which he has failed to do on the

specious ground that there was a stay on issuance of the Conveyance

Deed by the Hon’ble Apex Court. He submits that the Agreement is of

the year 2010 and after a period of four years, a notice was issued by

Plainti� on 14/05/2014. He submits that in the notice dated

14/05/2014, the version of the Plainti� has changed from the words

“on or before Conveyance Deed” to “at the time of getting the

Conveyance Deed”. He submits that in the entire notice, there is no

o�er made by the Plainti� to pay the charges for issuance of

Conveyance Deed. He further submits that it was speci�cally pointed

out in the reply notice that the time for performance was six months,

to which there was no response.

18.He submits that the Defendant No. 3 is in collusion with the

Plainti� and the payments are allegedly made by the Plainti� to

Defendant No. 3 without any authority from the Defendant No. 1. He

submits that the Suit �led in the year 2014 sought the relief of

direction to the Defendants to execute the Sale Deed, which itself was

SQ Pathan 12/34

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not maintainable as, without the Conveyance Deed being obtained, the

Sale Deed could not have been registered. He would further submit

that the cross-examination of PW-1 would indicate that the Plainti�

was aware that the Conveyance Deed was yet to be issued. He submits

that PW-1 has admitted that he is not aware as to whether any

communication was addressed as regards the Conveyance Deed. He

submits that the same implies that no steps were taken for issuance of

the Conveyance Deed. He would further point out the c ross-

examination of PW-1 admitting about releasing the money not only to

Defendant No. 3 but also to the wife and son of Defendant No. 3. He

would submit that the collusion between the Plainti� and Defendant

No. 3 is borne out from the evidence where PW-1 has admitted that

even post �ling of the Suit, payments were made by the Plainti� to

Defendant No. 3, which has been suppressed by the Plainti� in the

plaint. He would further point out the receipts endorsed by the

Defendant No. 3 and his family members to contend that the y

accepted payments even after �ling of the Suit. He submits that if the

case of the Plainti� was that the Defendant No. 1 was not cooperating

in obtaining the Conveyance Deed, then in the year 2021 , the

Conveyance Deed could not have been obtained.

19.He submits that it is only in the year 2025 that an application was

�led by the Plainti� seeking permission to deposit the balance

SQ Pathan 13/34

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consideration, which shows that there were no �nances available with

the Plainti� at the time of �ling of the Suit for completion of the sale.

He submits that in the Interim Application seeking stay of the

proceedings, the Supreme Court order has been annexed, which was

not part of the record.

20.In rejoinder, Mr. Agrawal points out the Supreme Court order

which is annexed along with the Interim Application and would submit

that the Conveyance Deed could be issued only after the stay granted

by the Hon’ble Apex Court was lifted. He submits that the Defendant

Nos. 1 and 2 accepted payments even in the year 2011. He submits that

DW-1 did not produce the photocopy of the Agreement for Sale in

order to substantiate their contention that time limit of six months was

�xed. He would submit that the Defendants are residing at the same

address as per the Agreement for Sale and therefore the payments

were made to Defendant No. 3, who had also executed the Agreement.

He submits that the Conveyance Deed which was executed makes a

reference to allotment letter, a�davit and indemnity bond executed

by the Defendants in the year 2021, which was not within th e

knowledge of the Plainti�. He submits that it was the duty of the

Defendants to inform the Plainti� about documents which were �led

for issuance of the Conveyance Deed, in which case the charges would

have been paid by the Plainti�.

SQ Pathan 14/34

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21.Mr. Patwardhan, learned counsel appearing for the Defendant

No. 3, submits that Defendant No. 3 was also a signatory to the

contract and has received payments from the Plainti�. He submits that

the Defendant No. 3 has led evidence and was cross-examined by the

Plainti�, but was not cross-examined by Defendant No. 1, and

therefore the evidence stands unchallenged. He submits that the

Defendant No. 3, by his application under Exhibit 115, has produced

the sanad. He would further submit that the said fact was noted by the

Trial Court in paragraph 36 of the judgment. He submits that the

Defendant No. 3 is ready and willing to execute the Sale Deed.

POINTS FOR DETERMINATION:

22. The facts of the case would give rise to the following points for

determination:

(1)Whether the parties had agreed that the Sale Deed would be

executed upon issuance of Conveyance Deed?

(2)Whether the Defendants have committed breach of their

obligation by failing to co-operate in obtaining the

Conveyance Deed?

(3)Whether the Plainti� is ready and willing to comply with his

obligations under the contract?

SQ Pathan 15/34

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(4)Whether in facts of the case, the equitable jurisdiction is

required to be exercised in favour of the Plainti�?

AS TO POINT NO.1 :

23.The Agreement for Sale was executed on 19/01/2010 between

the Plainti� and Defendant Nos. 1, 2 and 3. The execution of the

Agreement has not been disputed between the parties. Clause (2) of

the Agreement for Sale describes the suit property as Plot No. 172 in

Sheet No. 42 situated adjacent to Block No. A-257, Room No. 513,

Ulhasnagar-4, District Thane, admeasuring about 750 square yards,

ordered in Revision Petition No. 45 of 2008 before the Authorized

Chief Settlement Commissioner for Compensation Pool Properties-

cum-Custodian of Evacuee Properties, M.S., Mumbai dated 17/03/2009.

Clause (3) of the Agreement for Sale reads as under:

“3) That the Purchaser agreed to pay the balance sale

consideration amount of Rs.87 Lakhs/- (Rs. Eighty Seven Lakhs

Only), on or before issuance of C/D and the Vendors doth hereby

agreed for the same before witnesses.”

24.The words “issuance of C/D” in Clause (3) are handwritten. The

Plainti� contends that the Defendants had agreed to receive the

balance consideration on receipt of Conveyance Deed from t he

Government and on execution of Sale Deed in favour of the Plainti�.

The Defendant Nos. 1 and 2 plead that it was orally agreed between

SQ Pathan 16/34

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the Plainti� and the Defendants at the time of entering into the

Agreement for Sale that the period for reciprocal performance shall be

six months from the date of execution of the Agreement dat ed

19/01/2010 and that the handwritten words were inserted unilaterally,

which constitutes fraud. As fraud was pleaded, the burden was upon

the Defendants to prove fraud.

25. It is pertinent to note that as per Clause (12) of the Agreement

for Sale, the original of the Agreement was to remain with the

Purchaser and the xerox copy of the same was to remain with the

Vendors. The best possible evidence which was available with the

Defendant Nos. 1 and 2 was the photocopy of the original agreement

which would have established that the words “issuance of C/D” were

inserted unilaterally without their consent. The photocopy of the

Agreement for Sale would have clearly established whether, at the

time of execution, the clause about time of performance, was kept

blank, ;which was later �lled in by the Plainti�.

26. DW-1 has deposed that the agreement was that reciprocal

performance shall be six months from date of execution of the

agreement. He has further deposed that the Defendant Nos. 1 and 2

were made to sign the agreement containing the gap with the promise

to �ll in the date of six months and the addition is unilateral. In the

cross-examination, he has admitted that he has not produced the

SQ Pathan 17/34

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photocopy of the Agreement for Sale. He has further admitted that the

period of six months has not been mentioned in the Agreement for

Sale.

27.DW-1 has deposed that after a period of six months, when he

approached the Plainti�, the Plainti� showed him that there was no

period mentioned in the Agreement for Sale. In event, it was orally

agreed between the parties that the period of six months would be

inserted as the time for performance, the normal conduct of a person,

upon expiry of six months, would be to call upon the Plainti� to

perform the agreement and pay the balance consideration.

28.It is pertinent to note that DW-1 has deposed that he

approached the Plainti� after a period of six months and that the

Plainti� had shown that the period has not been mentioned in the

Agreement for Sale. He has admitted that even after perusing the

Agreement for Sale, he has not adopted any legal proceedings.

29.The subject property assumes signi�cance while considering

whether the period of six months could have been agreed upon by the

parties. The suit property is Compensation Pool property and

Conveyance Deed was required to be obtained for the ownership to

vest in the Defendant No 1. Without obtaining Conveyance Deed in

favour of Defendants, the Plainti� would acquire no rights in the suit

property and it is improbable that the Plainti� would agree for parting

SQ Pathan 18/34

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with entire consideration without Conveyance Deed being obtained.

Considering the evidence on record, the Defendants have failed to

establish fraud by unilateral insertion of time of performance or that

the time of performance was six months.

30. The clauses in the Agreement for Sale discloses that the parties

made arrangement for the expenses to be borne by the Plainti� and

co-operation to be extended by the Defendants for obtai ning

Conveyance Deed. If it was the intention of the parties to provide for

time bound programme of six months in obtaining the Conveyance

Deed, the intention would have manifested in the clauses of the

agreement. In such event, possibly, the parties would have set out a

time schedule for the necessary documents to be executed by the

Defendants for obtaining the Conveyance Deed, the time for payment

of charges by the Plainti�, etc. The inclusion of Clause (13) that if the

Revision Petition gets terminated or disputed, the vendors shall give

full co-operation to apply for fresh revision petition and/or get the

order amended discloses the requirement of obtaining Conveyance

Deed as precondition for execution of the Sale deed. The clauses of the

Agreement are a strong indicator that the parties were aware of the

requirement of obtaining a Conveyance Deed and that a Sale Deed

could not be executed in favour of the Plainti� unless a Conveyance

Deed was �rst executed in favour of the Defendants.

SQ Pathan 19/34

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31.The Trial Court has rightly interpreted the time for performance

and has held that the parties to the Suit were well aware of the fact

that unless and until sanad was obtained in favour of Defendant No. 1,

performance of Agreement was not possible, and therefore, in the

Agreement, it is properly mentioned that the performance of

Agreement is contingent upon issuance of C.D. in favour of the

Defendant No. 1, and there is no condition speci�cally mentioned that

balance payment has to be made within three to six months.

32. The Defendant Nos. 1 and 2 have failed to prove that it was

orally agreed between the parties that the period for performance of

six months and that the words “issuance of C/D” was inserted

unilaterally and constitutes fraud. The evidence on record establishes

that the time for performance of the agreement was upon issuance of

C/D. Point No 1 is answered accordingly.

AS TO POINT NOS. 2 and 3:

33.Both the points can be considered together as �nding on breach

of the agreement would involve determination of respective

obligations of the parties and whether there was compliance thereof.

In event of non compliance of obligation by the Plainti�, the same

would constitute absence of readiness and willingness on part of the

Plainti�.

SQ Pathan 20/34

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34.The Agreement for Sale of 2010 sets out the respective

obligation of the parties. As per the said Agreement, the total

consideration which was agreed upon was Rs.1,08,00,000/-, out of

which a sum of Rs.21,00,000/- was paid prior to the execution of the

Agreement on 18/01/2010. As per Clause (3), the balance sale

consideration amount of Rs.87,00,000/- was to be paid on or before

issuance of Conveyance Deed. Clause (8) of the Agreement reads as

under:

“8) That the Charges for getting Conveyance Deed (C.D.) against

the order of R.P. Revision Petition No.45/2008, will be borne by the

Purchaser alone.”

35.The obligation of the Vendor as set-out in Clause (5) reads as

under:

“5) That the Vendor shall hand over all relevant documents of

the said property to the Purchaser at the time of execution of the

�nal sale agreement, and the Purchaser agreed for the same

before witnesses.”

36.Clause (10) of the Agreement for Sale reads as under:

“10) That all the Signatures/Statements required for obtaining

Conveyance Deed (C.D.) and all other relevant documents from the

concerned authorities will be given by the Vendors without any

hesitation and/or without demanding any amount whatsoever.”

SQ Pathan 21/34

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37.The Clauses of the Agreement indicate that the only obligation

upon the Vendors was to give all signatures required for obtaining the

Conveyance Deed. Clause (8) and Clause (10) when read together,

discloses that the obligation was upon the Plainti� to take steps for

obtaining the Conveyance Deed and to pay the charges fo r the

Conveyance Deed. Clause (10) imposes an obligation upon the

Defendants to only give signatures for obtaining Conveyance Deed

without any further demand for money. In event, the obligation to

obtain the Conveyance Deed was upon the Vendors, Clause (10) would

have been worded di�erently, speci�cally setting out that the Vendor

is required to obtain the Conveyance Deed. The use of the words “all

the signature/statement, will be given by the Vendors without any

hesitation” clearly conveys that the parties had agreed that the

Vendors shall only execute the necessary documents required for

obtaining Conveyance Deed (C.D) without demanding any further

amount.

38.The interpretation of clause (10) is also supported by the

admission of PW-1 that in the year 2010, the Plainti� was engaged in

the business of construction in addition with the business of purchase

and sale of properties. It therefore stands to reason that it was the

Plainti� who had agreed to take all necessary steps for obtaining the

SQ Pathan 22/34

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Conveyance Deed, including the payment of the charges thereof. Even

assuming for the moment, that the obligation was upon the

Defendants to obtain the Conveyance Deed. Upon failure o f

Defendants to obtain Conveyance Deed, there would at least be a

communication on record calling upon the Defendants to complete the

formalities for obtaining the Conveyance Deed.

39.The Plainti� seeks to justify the inaction in obtaining the

Conveyance Deed on the ground that there was stay order of Hon’ble

Apex Court. PW-1 has deposed that the Conveyance Deed was not

issued in favour of the Defendants, though the Authorized Chief

Settlement Commissioner had ordered the issuance, as there was a

stay on issuance of Conveyance Deed from the Hon’ble Apex Court. He

has further deposed that he has learned from reliable source that the

Hon’ble Supreme Court has directed the issuance of the Conveyance

Deed. In cross examination, PW-1 has stated that his advocate is aware

as to when the Hon’ble Supreme Court had given stay in respect of the

Conveyance Deed. He has denied the suggestion that he has not

produced the stay order on record.

40. In the cross-examination, PW-1 has admitted that he is unable to

depose as to when the order of stay was passed by the Hon’ble Apex

Court. He has further admitted that he is unable to recollect whether

SQ Pathan 23/34

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he has issued any notice to the Defendants about execution of the

Conveyance Deed. The deposition of PW-1 would indicate that PW-1 is

totally unaware about the date of the order of stay, or about the order

directing issuance of the Conveyance Deed.

41.After conclusion of the Plainti�’s evidence, an application was

�led by Plainti� on 20/06/2025 for placing on record the order of

Hon’ble Apex Court in Civil Appeal No. 6079 of 2010 and the Chief

Settlement Commissioner’s judgment, which came to be allowed. The

Plainti� did not �le any application for leading further evidence in

respect of the documents and merely produced the documents on

record. The orders so produced, were for obvious reasons not marked

as Exhibits and thus cannot be read in evidence. The Defendant Nos. 1

and 2 had set up a speci�c case in the written statement that there is

no such Supreme Court judgment in respect of the property of the

Defendants staying issuance of the Conveyance Deed and that no such

copy of the Supreme Court judgment or order of stay has been placed

on record by the Plainti�. It was speci�cally pleaded that no such order

of the Supreme Court was ever passed whereby the Defendants were

prevented or prohibited from obtaining the Conveyance De ed

lawfully. Considering the speci�c case set up in the written

statement, the Plainti� was expected to lead necessary

SQ Pathan 24/34

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evidence to prove that stay was granted by the Hon’ble Apex Court,

which has been subsequently vacated giving rise to now claim speci�c

performance.

42. DW-1 has speci�cally deposed that there is no order of the

Supreme Court of stay on obtaining the Conveyance Deed, and the

Plainti� has not cross examined DW-1 on the said deposition, which

remained uncontroverted. There is not even a suggestion given to

DW-1 that by reason of stay of the Hon’ble Apex Court, the Conveyance

Deed was not executed.

43.There is no cogent evidence led by the Plainti� to prove that

there was stay granted by the Hon’ble Apex Court by reason of which

Conveyance Deed could not be issued.

44.Even accepting the order of Hon’ble Apex Court as evidence, the

order of 28/04/2014 passed in Civil Appeal No. 6079 of 2010 directs

the Respondent Nos. 6 and 8 therein to continue to decide the cases

and proceedings pending on the date of said Repeal Act, 2005 and

implement the decisions in the said cases under the unrepealed

Displaced Person Compensation and Rehabilitation Act, 1954 and other

related Acts. The order dated 28/04/2014 does not establish that stay

was granted by Hon’ble Apex Court to issuance of Conveyance Deed.

SQ Pathan 25/34

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45. The Agreement was executed in the year 2010 and no steps

were taken by the Plainti� for obtaining the Conveyance Deed. The

delayed performance is attributed by the Plainti� to the stay order of

Hon’ble Apex Court, which the Plainti� has failed to prove. PW-1 has

placed on record the notice issued by the Plainti� to the Defendants

on 14/05/2014. The notice does not call upon the Defendants to

execute the documents for the purpose of executing the Conveyance

Deed nor does it indicate willingness to pay the charges required for

obtaining the Conveyance Deed. The notice calls upon the Defendants

to accept the balance consideration of Rs.71,02,000/- and to convey the

property by executing the registered Sale Deed. PW-1 has deposed

that the Defendants are delaying getting the Conveyance Deed

without any speci�c deposition that the Defendants have refused to

execute the necessary documents for obtaining Conveyance Deed.

46.A unique way was adopted by the Defendant No. 3 to produce

the Conveyance Deed and receipts evidencing deposit of money in

State Bank of India obtained in the year 2021 by �ling an application

below Exhibit 115 stating that the Plainti� has complied with his

obligation under Clause (8) and that the payments were made, which

were collected by Defendant No. 3 and deposited in the State Bank of

India towards issuance of Conveyance Deed and that the Conveyance

SQ Pathan 26/34

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Deed has been executed on 22/09/2021. Neither the Plainti� nor

Defendant No. 3 stepped in the box to lead evidence in support of the

documents sought to be produced. The application appears to have

been �led after the evidence was concluded. The Trial Court

surprisingly marked the documents as Exhibits 117 and 118 and

considered the documents. As the documents were not tendered in

evidence and no opportunity was given to the Defendant Nos. 1 and 2

to cross-examine the witness on the said documents, the Trial Court

could not have read the documents in evidence.

47.The Defendant No 3 �led his a�davit in lieu of examination in

chief on 26/10/2023. If the money had been paid by the Plainti� to the

Defendant No. 3 towards obtaining the Conveyance Deed in the year

2021. Defendant No.3 would have deposed about the same in his

evidence. Similarly, the Plainti�, in his cross examination, which took

place in the year 2024/2025 would have stated about the said payment

and the obtaining of the Conveyance Deed. The documents not being

proved in manner known to law could not have been read in evidence.

On the basis of evidence on record, it is di�cult to come to a �nding

that the Plainti� complied with his obligation of taking steps for

obtaining the Conveyance Deed.

SQ Pathan 27/34

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48. The Agreement imposed the obligation upon the Plainti� to

take steps for obtaining the Conveyance Deed and to make payment

for the same and the only obligation was upon the Defendants to

execute all necessary documents for the same. There is no evidence

adduced by Plainti� to establish that it was due to breach of the

obligation by the Defendants and on the contrary the evidence shows

non compliance of the Plainti�’s obligations under the contract.

49.Coming to the issue of readiness and willingness, in His Holiness

Acharya Swami Ganesh Dassji vs. Sita Ram Thapar

1

, the Hon’ble

Apex Court drew a distinction between readiness to perform the

contract and willingness to perform the contract. It was observed that

by readiness, it may be meant the capacity of the plainti� to perform

the contract which would include the �nancial position to pay the

purchase price. As far as the willingness to perform the contract is

concerned, the conduct of the Plainti� has to be properly scrutinised

along with attendant circumstances. On the facts available, the Court

may infer whether or not the plainti� was always ready and willing to

perform his part of the contract. It was held in paragraph 2 as under:

“2. There is a distinction between readiness to perform

the contract and willingness to perform the contract. By

readiness may be meant the capacity of the plainti� to perform

the contract which includes his �nancial position to pay the

purchase price. For determining his willingness to perform his

1 (1996) 4 SCC 526

SQ Pathan 28/34

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part of the contract, the conduct has to be properly scrutinised.

…….…... The factum of readiness and willingness to perform

plainti�'s 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 plainti� was ready and was always ready and willing to

perform his part of the contract. The facts of this case would

amply demonstrate that the petitioner/plainti� was not ready

nor had the capacity to perform his part of the contract as he

had no �nancial capacity to pay the consideration in cash as

contracted and intended to bide for the time which disentitles

him as time is of the essence of the contract.”

50.In L.S. Sikandar (Dead) by LRs. v. K. Subramani & Ors.

2

, this

Court noted that the Plainti� is required to prove that from the date of

execution of the Agreement for Sale till the date of the decree, he was

always ready and willing to perform his part of the contract. In facts of

that case, looking at the attendant facts and circumstances, the Court

upheld the view of the Trial Judge that the Plainti� had no money to

pay the balance sale consideration and was apparently not capable of

making necessary arrangements for payment of the balance

consideration. It was held in paragraph 45 and paragraph 47 as under :

“45.……..Further, the plainti� is required to prove the fact that

right from the date of execution of the agreement of sale till

the date of passing the decree he must prove that he is ready

and has always been willing to perform his part of the contract

as per the agreement. ……”

“47. Further, there is nothing on record to show that the

plainti� could have made arrangement for payment of the

balance consideration amount to them. But, on the other hand

the trial court has recorded the �nding of fact to the e�ect

that the correspondence between the parties and othe r

2 (2013) 15 SCC 27

SQ Pathan 29/34

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circumstances would establish the fact that the plainti� had no

money for payment of balance sale consideration …….”

51.The burden is upon the Plainti� to prove that from the date of

Agreement of Sale till passing of the decree, the Plainti� is ready and

willing to perform his obligations under the contract. As discussed

above, insofar as the obligation of obtaining Conveyance Deed and

making payment of the same, there are no steps taken by the Plainti�

to comply with the said obligation. Even accepting that the only

obligation was to make payment of the Conveyance Deed charges, in

the notice of 14/05/2014, there is no readiness and willingness

demonstrated to make the payment of the Conveyance Deed charges.

52.Insofar as payment of balance consideration is concerned, it is

well settled that the aspect of readiness refers to �nancial capacity of

the Plainti�. PW-1 has not produced any evidence, oral or

documentary, to prove that the Plainti� was �nancially capable of

paying the balance consideration or that the balance amount was ready

and available with the Plainti�. There is not even an oral deposition to

that e�ect. In the cross examination, PW-1 in answer to speci�c

question as to the amount which is ready for payment, has deposed

that he is unable to state the exact �gure. PW-1 has further stated

that he is unable to state the exact �gure which had been accumulated

by him to complete the transaction. He has further stated that he is

SQ Pathan 30/34

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unable to state whether the balance consideration will be paid through

cheque, or bank or through any other mode. He has further deposed

that he is unable to depose as to the source through which the balance

consideration was kept ready.

53.The payments made by the Plainti� as endorsed on the

Agreement for Sale are small amounts paid from time to time

aggregating to Rs.15,98,000/-, whereas the balance consideration as

per the Agreement for Sale was Rs.87,00,000/-. The last payment

received on 30/03/2014 was of Rs.10,000/-. The payment of smaller

amounts indicates that the Plainti� was not in a �nancial position to

make the payment of the entire balance consideration and was biding

time for completion of the sale. If it is the Plainti�’s case that the

balance consideration was payable upon obtaining the Conveyance

Deed, there is no acceptable explanation for making such small

payments from time to time.

54.The Trial Court has rightly noted that the Plainti� deposited the

sum of Rs.71,02,000/- in the year 2025 i.e. after a period of 11 years

from institution of Suit and that mere averment in the notice of

14/05/2024 is insu�cient to establish readiness and willingness.

55.Upon cumulative appreciation of the evidence and the attendant

facts and circumstances, the Plainti� has failed to prove readiness and

willingness to perform his obligation of obtaining the Conveyance

SQ Pathan 31/34

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Deed and to make payment of the balance consideration. Point Nos. 2

and 3 are answered accordingly.

AS TO POINT NO 4:

56.It is well settled that the remedy of speci�c performance is an

equitable remedy and discretion is conferred on the Court and it is not

necessary to grant speci�c performance simply because it is legal to do

so. In addition to the �nding of non compliance of his obligations by

the Plainti� and absence of readiness and willingness, the conduct of

the Plainti� disentitles him to the equitable relief of speci�c

performance.

57.In the cross-examination, PW-1 has admitted that the sum of

Rs.15,98,000/- was paid to the persons who have acknowledged the

receipt on the Agreement for Sale. He has further admitted that the

receipts overleaf page Nos.1,2,3,4 and 5 of Exhibit 50 have been

executed by Defendant No. 3. He had admitted that one of the receipts

on page No. 5 has been executed by Sunita I. Sharma, wife of

Defendant No.3. He has admitted that receipts of 13/3/2016 ,

18/3/2016 and 12/3/2016 contain the signature of Defendant No. 3

and the receipts of 5/04/2016, 19/05/2016 and 25/04/2016 have been

executed by Punit Indrapal Sharma, who is the son of Defendant No 3.

He has admitted that further receipts executed on Page No. 6 and

SQ Pathan 32/34

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thereafter have been signed by Defendant No. 3. He has further

admitted that he has not received any written communication to make

the payment to the wife of Defendant No. 3. He has deposed that the

amounts paid to the son of Defendant No. 3 were on the instructions

of Defendant No. 1. In response to a speci�c question, he has

deposed that as the Defendant Nos. 1 and 3 were present at the time

of making the payment to the wife and son of Defendant No. 3, no

authority letter was sought. He has further deposed in response to the

speci�c question as to why the signatures of Defendant Nos. 1 and 3

were not taken if they were present, that he had taken the signatures

of the party to whom the payment was made. He has further deposed

that from time to time he has made the payment to Defendant No. 3

and even after �ling of the Suit, the payments have been made to

Defendant No. 3. In response to a speci�c question as to why there is

no deposition as regards the payments made to Defendant No. 3 were

not brought on record in the plaint, he has deposed that as the

Defendants were willing to proceed with the transaction, he kept on

making the payment and did not bring the said payments on record. He

has further deposed that even after �ling of the Suit till 2018, he has

made payments.

58.The admissions of PW-1 proves payments made to wife and son

of Defendant No.3, who were not signatories to the agreement. There

SQ Pathan 33/34

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is no explanation worth accepting, tendered for making substantial

payments to Defendant No.3 and his family members. There is also no

acceptable explanation as to why even after �ling of the Suit,

payments were made to Defendant No 3. The Plainti� and Defendant

No.3, in collusion, have suppressed the payments made after the �ling

of the Suit. The conduct of the Plainti� disentitles him to the

equitable relief of speci�c performance. Point No 4 is answered

accordingly.

59. Resultantly, the following order is passed:

ORDER

(1) The First Appeal stands dismissed.

(2) The Interim Application does not survive for consideration

and stands disposed of accordingly.

(SHARMILA U. DESHMUKH, J.)

SQ Pathan 34/34