1

2026:CGHC:1484-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Order Reserved on : 19.11.2025

Order Delivered on : 09.01.2026

First Appeal No. 132 of 2016

Sheikh Naim S/o Sheikh Hafeez Kuraishi, aged about 39 years, R/o

Khan Dresses Main Road, Dongargaon, Tahsil Dongargaon, District

Rajnandgaon (C.G.)

--- Appellant

Versus

Smt. Ganga Bai Gupta W/o Subhash Chandra Gupta, aged about 48

years, R/o Village Aari, Post Dongargaon, P.S. Dongargaon, Tahsil

Dongargaon, District Rajnandgaon (C.G.).

--- Respondent

(Cause-title taken from Case Information System)

For Appellant :Mr. Satish Chandra Verma, Senior

Advocate assisted by Mr. Abhishek Pandey,

Advocate

For Respondent :Mr. Gyan Prakash Shukla, Advocate

Hon'ble Smt. Rajani Dubey, Judge

Hon'ble Shri Amitendra Kishore Prasad, Judge

C A V Judgment

Per Amitendra Kishore Prasad, J.

1.Heard Mr. Satish Chandra Verma, learned Senior Counsel

assisted by Mr. Abhishek Pandey, learned counsel for the

2

appellant and Mr. Gyan Prakash Shukla, learned counsel

appearing for the respondent.

2.The appellant has challenged the judgment and decree dated

12.04.2016 (Annexure A/1) passed by the learned District Judge,

Rajnandgaon (C.G.) in Civil Suit No. 10-A/2014, whereby the suit

instituted by the respondent–plaintiff, Smt. Ganga Bai Gupta, has

been decreed against the present appellant–defendant, Sheikh

Naim. Being dissatisfied and aggrieved by the findings recorded

and the decree so passed, which, according to the appellant, are

contrary to the pleadings on record, evidence adduced by the

parties and the settled principles of law governing specific

performance of contracts, the present appeal has been preferred

assailing the legality, propriety and correctness of the impugned

judgment and decree with the following prayer :-

“It is, therefore prayed that this Hon'ble

Court may be kind enough to allow the present

appeal and the order Annexure A/1 may kindly

be set aside and quashed on the basis of facts

and grounds as mentioned above, it is further

humbly submitted and prayed that this Hon'ble

Court may be kind enough to set-aside the

order Annexure A/1 as bad in law and

unsustainable in the eyes of law.

3

Any other relief may also be granted in

favour of the appellant as it deem fit in the facts

and circumstances of the case.”

3.Brief facts of the case, in a nutshell are that the appellant is the

owner of land and building situated at Dongargaon bearing

Khasra No. 441/5 admeasuring 632 sq. ft., out of which a pakka

shop is constructed over 279 sq. ft. and the remaining 353 sq. ft.

is open land (hereinafter referred to as the “disputed property”).

On 20.04.2012, an agreement to sell (Ex. P/2) was executed

between the appellant and the respondent for a total

consideration of ₹14,80,000/-, whereunder the respondent paid

₹7,00,000/- as earnest money and the sale deed was agreed to

be executed before June 2012. As the respondent failed to get

the sale deed executed within the stipulated time, the agreement

was renewed on several occasions, lastly on 01.02.2013, fixing

28.02.2013 as the final date for execution of the sale deed;

however, even thereafter the respondent failed to perform her

part of the contract. The agreement itself disclosed the existence

of a tenant in the shop and recorded that the appellant would

make best efforts to hand over vacant possession, thereby

demonstrating complete transparency on the part of the

appellant.

4.Despite this, the respondent neither arranged the balance

consideration nor showed readiness and willingness to conclude

the transaction, and merely prolonged the matter for nearly two

4

years, during which period the appellant’s immediate financial

need was met otherwise and the value of the property increased.

After the tenant vacated the shop in November 2013 and the

appellant commenced repairs, the respondent filed a civil suit on

28.03.2014 and obtained interim injunction orders. It is the

consistent case of the appellant that he was always ready and

willing to execute the sale deed, whereas the respondent lacked

both intention and financial capacity, never stepped into the

witness box to depose during trial, and sought to blame the

appellant despite her own conduct.

5.The appellant also issued a legal notice dated 15.01.2014

informing the respondent of the changed circumstances and

offering to sell the property at the enhanced rate, to which no

proper response was given. The learned Trial Court, without

appreciating these material facts and circumstances, passed the

impugned order (Annexure A/1), which is contrary to law and

liable to be set aside.

6.Mr. Satish Chandra Verma, learned Senior Counsel assisted by

Mr. Abhishek Pandey, learned counsel for the appellant, submits

that the present dispute emanates from the persistent non-

performance of contractual obligations on the part of the

respondent despite repeated opportunities, indulgence, and

extensions granted by the appellant. It is contended that the

learned Trial Court has failed to appreciate the true factual matrix

5

and the settled principles governing grant of relief of specific

performance.

7.Learned Senior Counsel would submit that the appellant, Sheikh

Naim, is the undisputed owner and title holder of the land and

building situated at Dongargaon bearing Khasra No. 441/5,

admeasuring 632 sq. ft., out of which 279 sq. ft. consists of a

pakka constructed shop and the remaining 353 sq. ft. is open

land. Being in lawful possession and ownership, the appellant

was fully competent to alienate the said property. Owing to urgent

financial constraints, the appellant entered into an agreement to

sell dated 20.04.2012 with the respondent, Smt. Ganga Bai

Gupta, for a total consideration of ₹14,80,000/-, pursuant to which

an advance amount of ₹7,00,000/- was received.

8.It is further submitted that as per the express terms of the

agreement, the sale deed was to be executed and registered

before June 2012 on payment of the balance consideration.

However, the respondent failed to perform her part of the contract

within the stipulated time and instead sought extensions

repeatedly. Even upon mutual renewal of the agreement, first

extending the period till July 2012 and thereafter up to January

2013 and finally by executing a renewed agreement dated

01.02.2013 fixing 28.02.2013 as the outer limit, the respondent

did not come forward to have the sale deed executed. The

appellant, throughout this period, remained ready and willing to

6

complete the transaction, whereas the respondent consistently

avoided performance.

9.Learned Senior Counsel would vehemently contend that the

conduct of the respondent clearly reflects lack of bona fide

intention, particularly when she deceitfully altered the agreed

timelines to her advantage and failed to demonstrate financial

readiness to pay the balance consideration. It is urged that

repeated extensions cannot be construed as waiver of essential

terms of the contract, especially in transactions involving

immovable property where time, if not originally the essence,

gradually assumes significance due to prolonged delay and

escalation in property value. It is also submitted that by the time

the respondent issued a legal notice dated 13.01.2014 proposing

execution of the sale deed, there was no subsisting and

enforceable agreement in existence, the last agreement having

already expired by efflux of time. The appellant rightly replied vide

legal notice dated 15.01.2014, informing that the agreement

stood cancelled due to repeated defaults on the part of the

respondent, while expressing willingness to refund the earnest

money of ₹7,00,000/-. The refusal of the respondent to accept the

refund further substantiates her mala fide intent to keep the

transaction alive only for speculative gains. He submits that the

respondent never stepped into the witness box to prove her

readiness and willingness, which is a mandatory requirement

7

under Section 16(c) of the Specific Relief Act, 1963. The learned

Trial Court, despite serious lacuna, proceeded to decree suit,

which is unsustainable.

10.In light of the aforesaid facts, learned Senior Counsel submits

that the impugned judgment and decree dated 12.04.2016 suffer

from perversity, misreading of evidence, and non-application of

settled legal principles. The respondent’s conduct clearly

demonstrates that she never intended to complete the sale

transaction, whereas the appellant acted throughout in good faith.

Therefore, it is prayed that the appeal be allowed, the impugned

judgment and decree be set aside, and appropriate equitable

relief be granted in favour of the appellant to prevent further

injustice and hardship.

11.Reliance is placed upon the judgments rendered by the Hon’ble

Supreme Court in the matters of N.P. Thirugnanam v. R. Jagan

Mohan Rao (Dr), (1995) 5 SCC 115, K.S. Vidyanadam v.

Vairavan, (1997) 3 SCC 1, Saradamani Kandappan v. S.

Rajalakshmi, (2011) 12 SCC 18, Mohinder Kaur v. Sant Paul

Singh, (2019) 9 SCC 358, Manisha Mahendra Gala v. Shalini

Bhagwan Avatramani, (2024) 6 SCC 130 and Sangita Sinha v.

Bhawana Bhardwaj, 2025 SCC OnLine SC 723 , to buttress his

submissions.

8

12.On the other hand, Mr. Gyan Prakash Shukla, learned counsel

appearing for the respondent/plaintiff, submits that he has filed

the cross-objection under Order 41 Rule 22 of the Code of Civil

Procedure, 1908 (for short, ‘CPC’), assailing the impugned

judgment and decree dated 12.04.2016 passed by the learned

District Judge, Rajnandgaon (C.G.) in Civil Suit No. 10-A/2014, to

a limited extent. It is submitted that though the learned Trial Court

has rightly appreciated the pleadings and evidence on record and

has correctly decreed the suit for specific performance in favour

of the respondent/plaintiff, it has failed to grant the consequential

and legitimate relief of litigation costs, despite a specific prayer to

that effect in the plaint.

13.Learned counsel would contend that the respondent/plaintiff had

instituted the civil suit seeking a decree for specific performance

of the agreement to sell on account of the appellant/defendant’s

failure to execute the sale deed within the stipulated time. Upon

due consideration of the facts and circumstances of the case and

after recording categorical findings regarding the readiness and

willingness of the respondent/plaintiff to perform her part of the

contract, the learned Trial Court decreed the suit and directed the

appellant/defendant to accept the balance sale consideration of

₹7,80,000/- on or before 27.04.2016 and thereafter to execute the

registered sale deed on or before 30.06.2016. It was further

provided that in the event of default, the respondent/plaintiff

9

would be entitled to recovery of the advance amount of

₹7,00,000/- along with interest @ 6% per annum from the date of

institution of the suit.

14.However, learned counsel submits that despite such findings

being recorded entirely in favour of the respondent/plaintiff, the

learned Trial Court failed to exercise its discretion judiciously in

not awarding litigation expenses and costs, even though the

same were specifically claimed. It is urged that the basic rule

governing costs is that the unsuccessful party must ordinarily

reimburse the successful party, both to compensate the latter for

the expenses incurred in vindicating her legal rights and to deter

frivolous or unmeritorious litigation. The omission to award costs,

according to learned counsel, is arbitrary and contrary to the

settled principles governing award of costs under the CPC. He

further submits that the respondent/plaintiff was not found to be in

breach of any term of the contract and, on the contrary, the

learned Trial Court has unequivocally held that she was always

ready and willing to perform her contractual obligations. In such

circumstances, denial of litigation costs causes manifest injustice

and amounts to failure to exercise jurisdiction vested in the court

below. The issue, therefore, assumes the character of a

jurisdictional error, which squarely falls for consideration while

adjudicating the present appeal.

10

15.On these premises, learned counsel prays that the cross-

objection be allowed and the impugned judgment and decree be

suitably modified by awarding litigation costs in favour of the

respondent/plaintiff, in the interest of justice.

16.We have heard learned counsel for the parties at length and have

carefully perused the pleadings, evidence and the entire record of

the case, including the impugned judgment and decree as well as

the cross-objection filed by the respondent/plaintiff.

17.From perusal of the plaint, it transpires that the plaintiff and the

defendant are residents of the addresses mentioned in the cause

title and that the defendant is the owner of a shop situated behind

the old bus stand at Dongargaon, bearing Khasra No. 441/5,

admeasuring 632 sq. ft., out of which 279 sq. ft. is constructed

area and 353 sq. ft. is vacant land. It is pleaded that owing to his

financial need, the defendant agreed to sell the said shop to the

plaintiff for a consideration of ₹14,80,000/- and executed an

agreement to sell dated 20.04.2012, pursuant to which an

earnest amount of ₹7,00,000/- was paid, with an understanding

that the sale deed would be registered by the end of June 2012.

As the shop was under tenancy, the defendant assured vacant

possession and, on account of non-vacation, executed

subsequent agreements extending the time for registration, lastly

fixing 28.02.2013 as the outer limit. The plaint further avers that

despite the shop being vacated in November 2013, the defendant

11

avoided execution of the sale deed and ultimately refused to

register the property, compelling the plaintiff to issue a legal

notice dated 13.01.2014 and thereafter institute the suit for

specific performance, asserting her continuous readiness and

willingness to perform her part of the contract.

18.The power of attorney reveals that the plaintiff had entered into

an agreement for purchase of a shop along with open land

situated at Dongargaon through her son, Manish Kumar Gupta,

and on account of the defendant Sheikh Naim’s failure to act in

accordance with the agreement, she instituted Civil Suit No. 10-

A/2014 before the learned District Court, Rajnandgaon. It further

discloses that owing to her ill health and physical incapacity to

attend court proceedings and stand for long durations, the plaintiff

executed a Special Power of Attorney on 08.04.2015 at

Rajnandgaon, authorising her son Manish Kumar Gupta to

appear, plead, lead and adduce evidence, compromise, receive

or deposit money, file appeal and to do all such acts necessary

for effective conduct of the case on her behalf, which acts were to

be binding upon her in the same manner as if performed

personally.

19.From perusal of the affidavit dated 20.04.2012, it transpires that

Sheikh Naim, resident of Dongargaon, is the owner of land

bearing Khasra No. 441/5 admeasuring 632 sq. ft., situated

behind the old bus stand in P.H. No. 15, comprising a constructed

12

shop admeasuring about 269 sq. ft. and an open plot

admeasuring 353 sq. ft. The affidavit records that owing to his

financial need, he agreed to sell the said property to Smt. Ganga

Bai Gupta for a total consideration of ₹14,80,000/-, out of which a

sum of ₹7,00,000/- had already been received by him in cash as

earnest money, with the balance payable at the time of

registration. It further declares that the sale deed was to be

executed and registered on or before 16.06.2012, whereafter the

title and possession of the property would be handed over to the

purchaser. The deponent also affirmed that neither he nor his

family members had any objection to the sale, present or future,

and that any such objection, if raised, would render the

agreement illegal and false.

20.Further, from perusal of the agreement dated 01.02.2013, it is

evident that Sheikh Naim, son of Shri Sheikh Hafeez, resident of

Dongargaon, is the recorded owner of land bearing Khasra No.

441/5 admeasuring 632 sq. ft., situated behind the old bus stand

at Dongargaon, out of which a shop measuring about 279 sq. ft.

is constructed and the remaining 353 sq. ft. is open land. Owing

to his financial need, he agreed to sell the said property to Smt.

Ganga Bai Gupta for a total consideration of ₹14,80,000/-, and

received a sum of ₹7,00,000/- in cash as earnest money. The

agreement records that the balance amount was to be paid at the

time of registration and that the sale deed was required to be

13

executed and registered on or before 28.02.2013. It is further

stipulated that the seller would ensure vacation of the shop and

hand over vacant possession to purchaser prior to registration,

and that neither the seller nor his family members would raise

any objection to the sale, either at present or in future.

21.The registered notice dated 13.01.2014 shows that the plaintiff

called upon Sheikh Naim, owner of the shop and open land

situated behind the old bus stand at Dongargaon bearing Khasra

No. 441/5 admeasuring 632 sq. ft., to honour the agreement to

sell executed on 20.04.2012 and the subsequent renewed

agreements extending the time for execution of the sale deed up

to 28.02.2013. The notice specifically recites that despite

repeated assurances and undertakings to vacate the tenanted

shop and complete registration, the defendant had failed to do so

even after the shop was vacated in November 2013. It further

records that the plaintiff had always been ready and willing to get

the sale deed executed and called upon the defendant to appear

before the Sub-Registrar, Dongargaon on 20.01.2014 for

registration, failing which appropriate legal proceedings would be

initiated at the defendant’s cost and risk.

22.The letter dated 15.01.2014 shows that the appellant, through his

counsel, informed the respondent that the agreement to sell

dated 20.04.2012 pertaining to the shop and land admeasuring

632 sq. ft. bearing Khasra No. 441/5, Dongargaon, had not been

14

honoured by the respondent within the stipulated and

subsequently extended time. The letter records that despite

repeated indulgence and extensions granted up to April 2013, the

respondent failed to pay the balance consideration and get the

sale deed registered, thereby frustrating the transaction and

causing financial loss to the appellant, including cancellation of a

proposed purchase of another shop. It was further stated that due

to non-performance and lack of bona fide on the part of the

respondent, the transaction stood terminated and the earnest

money was forfeited, while cautioning the respondent not to act

upon the agreement and holding her liable for consequences and

costs in case of further legal action.

23.PW-1 Manish Kumar Gupta, power of attorney holder of Smt.

Ganga Bai Gupta deposed in his evidence that the entire

transaction for purchase of the shop and vacant land situated

behind the old bus stand, Dongargaon bearing Khasra No. 441/5

admeasuring 632 sq. ft. was conducted by him on her behalf

through his mother as special power of attorney holder, (Manish

Kumar Gupta). He stated that the defendant Sheikh Naim agreed

to sell the said property for a total consideration of ₹14,80,000/-

and received ₹7,00,000/- in cash as earnest money on

20.04.2012, whereafter a written agreement was executed fixing

the last week of June 2012 for registration. It was further stated

that since the shop was under tenancy, the defendant repeatedly

15

assured to get the shop vacated and, accordingly, several

subsequent agreements were executed extending the time for

registration, lastly up to 28.02.2013.

24.PW-1 further deposed that despite repeated assurances and

extensions, the defendant failed to get the shop vacated within

the agreed period and even after vacation of the shop in

November 2013, avoided execution of the sale deed, threatened

demolition and demanded higher consideration. She further

stated that due to the defendant’s inaction, a legal notice dated

13.01.2014 was issued calling upon him to execute the sale

deed, but instead of complying, the defendant repudiated the

agreement citing increase in market value. It was specifically

deposed that she was always ready and willing to perform her

part of the contract and possessed sufficient funds to pay the

balance consideration.

25.PW-1 also proved on record the series of agreements dated

20.04.2012, 30.06.2012, 29.12.2012 and 01.02.2013 (Ex.P-2 to

Ex.P-5), legal notices and replies (Ex.P-6 to Ex.P-10), police

complaint, municipal records, building permission obtained by the

defendant and various bank and postal account documents to

demonstrate financial capacity. During cross-examination, though

certain discrepancies in photocopies and alterations were

suggested, the witness denied any tampering with original

documents and reiterated that the delay in execution of the sale

16

deed was solely attributable to the defendant’s failure to evict the

tenant and his subsequent mala fide intention to resile from the

agreement due to escalation in property value.

26.PW-2 Riyajuddin Solanki has deposed in his evidence that he is

acquainted with Smt. Ganga Bai Gupta, her son Manish Kumar

Gupta and her nephew Kailash Gupta. He stated that in April,

2012 a deal regarding the shop and a portion of open land

situated behind the old bus stand, Dongargaon, belonging to

Sheikh Naim, was entered into in his presence for a total

consideration of ₹14,80,000/-. He further stated that the

agreement to sell was executed on 20.04.2012, duly notarized,

and was signed by Smt. Ganga Bai Gupta and Sheikh Naim, on

which he signed as a witness.

27.PW-2 deposed that as per the terms of the agreement,

registration of the property in favour of Smt. Ganga Bai Gupta

was to be completed by June, 2012. At the time of execution of

the agreement, a chicken shop was functioning in the disputed

shop and Sheikh Naim had undertaken to get the shop vacated

prior to registration. Since the shop could not be vacated by June,

2012, both parties mutually agreed to extend the time, and further

agreements were executed, including one in January, 2013, on

which he again signed as a witness. He further stated that

despite repeated extensions, Sheikh Naim failed to get the shop

vacated. Even thereafter, Manish Kumar Gupta informed him that

17

fresh documents had been executed extending the time for

registration. According to PW-2, the tenant ultimately vacated the

shop in November, 2013, yet the defendant did not execute the

sale deed. He stated that subsequently he saw Sheikh Naim

demolishing the shop and was informed that despite a stay order

obtained by the plaintiff, the defendant continued construction

activities, compelling the plaintiff to take legal action.

28.During cross-examination, PW-2 admitted that Exhibits P-2 and

P-3 were prepared at Hirwani Computer Center and that

signatures were obtained before a notary. He stated that the

amount of ₹7,00,000/- was paid in his presence, which he

personally counted and handed over to Sheikh Naim. He also

admitted that the condition regarding vacating the chicken shop

was orally agreed between the parties and was not expressly

mentioned in Exhibits P-2 and P-3. He denied the suggestion that

no monetary transaction took place in his presence or that his

affidavit was false or filed at the behest of Manish Kumar Gupta.

He further stated that to his knowledge, four agreements in total

were executed between the parties, though two were executed in

his absence, and that the repeated delays were attributable to the

defendant’s failure to honour his assurance to vacate the shop

and execute the sale deed.

29.PW-3 Sushil Pratap Awasthi has deposed in his evidence that he

was informed that the defendant’s shop and open land were

18

agreed to be sold in favour of Smt. Ganga Bai Gupta for

₹14,80,000/-. He deposed that since the shop was not vacated by

the tenant, the time for registration was extended through

subsequent agreements dated 29.12.2012 and 01.02.2013, on

both of which he signed as a witness, fixing the final date for

registration as 28.02.2013. He further stated that despite these

extensions, the defendant avoided registration, leading to

issuance of a legal notice in January 2014, and thereafter began

demolishing the shop in March 2014 even after a stay order. In

cross-examination, he admitted that he had knowledge of the

initial transaction through Manish Kumar Gupta, but affirmed his

role as a witness to the later agreements and denied that he

signed the documents at anyone’s behest.

30.The appellant/defedant Sheikh Naim (DW-1) has deposed in his

evidence that he runs a business under the name “Khan

Dresses” in rented shops and owns a property measuring 632 sq.

ft. (Khasra No. 441/5) in Dongargaon, comprising a shop and an

open plot. He stated that he entered into an agreement with Smt.

Ganga Bai Gupta on 20.04.2012 for the sale of this property for

Rs. 14,80,000/-, receiving Rs. 7,00,000/- as earnest money, with

registration to be completed by the last week of June 2012.

Sheikh Naim deposed that the plaintiff failed to pay the balance

consideration within the stipulated time, repeatedly sought

extensions, and did not take any initiative to complete the

19

transaction, resulting in financial loss to him. He denied

undertaking any obligation to vacate the tenant or sell the shop

by a fixed date and stated that the tenant vacated only in

December 2013, after which he had to demolish and repair the

property due to its dilapidated condition. He further stated that the

agreements dated 20.04.2012 and 01.02.2013 bear the

signatures of both parties, while the agreement dated 29.12.2012

was signed by him in the presence of witnesses without the

plaintiff, and that none of the agreements specified termination of

the deal or forfeiture of the earnest money. Sheikh Naim also

clarified that all demolition and repair work was lawful, no

construction was done in contempt of any court order, and that

subsequent discussions on registration and property valuation

were verbal.

31.In cross-examination, DW-1 Sheikh Naim admitted that his

signatures appear on Ex. P-2 to P-5 and that he had read and

signed these agreements in the presence of witnesses. He

confirmed that the agreements do not state that registration was

not done due to lack of funds on the plaintiff’s part and that the

shop and plot were occupied by a tenant at the time of sale. He

acknowledged that he obtained building permission for repairs

but denied constructing additional shops, and stated that all

repair and demolition work was necessary for safety. He admitted

signing the agreement dated 29.12.2012 without the plaintiff

20

present, clarified that he had sent notices (Ex. P-9 and P-10)

regarding earnest money, and denied cancelling the deal due to

an increase in property value. DW-1 further stated that he did not

act in contempt of the court, did not obstruct registration, and that

all delays were caused by the plaintiff’s failure to pay the

consideration or take steps to complete the transaction.

32.In N.P. Thirugnanam (supra), the Hon’ble Supreme Court has

held as follows :-

“5. It is settled law that remedy for specific

performance is an equitable remedy and is in

the discretion of the court, which discretion

requires to be exercised according to settled

principles of law and not arbitrarily as

adumbrated under Section 20 of the Specific

Relief Act, 1963 (for short "the Act"). Under

Section 20, the court is not bound to grant the

relief just because there was a valid agreement

of sale. Section 16(c) of the Act envisages that

plaintiff must plead and prove that he had

performed or has always been ready and willing

to perform the essential terms of the contract

which are to be performed by him, other than

those terms the performance of which has been

prevented or waived by the defendant. The

continuous readiness and willingness on the

part of the plaintiff is a condition precedent to

grant the relief of specific performance. This

circumstance is material and relevant and is

required to be considered by the court while

21

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 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 of

necessity be proved to be available. Right from

the date of the execution till date of the decree

he must prove that he is ready and has always

been willing to perform his part of the contract.

As stated, the factum of his readiness and

willingness to perform his part of the contract is

to be adjudged with reference to the conduct of

the party and the attending circumstances. The

court may infer from the facts and

circumstances whether the plaintiff was ready

and was always ready and willing to perform his

part of the contract.”

33.The Hon’ble Supreme Court in K.S. Vidyanadam (supra) has

held as follows :-

“10. It has been consistently held by the courts

in India, following certain early English

decisions, that in the case of agreement of sale

relating to immovable property, time is not of the

essence of the contract unless specifically

provided to that effect. The period of limitation

prescribed by the Limitation Act for filing a suit

is three years. From these two circumstances, it

22

does not follow that any and every suit for

specific performance of the agreement (which

does not provide specifically that time is of the

essence of the contract) should be decreed

provided it is filed within the period of limitation

notwithstanding the time limits stipulated in the

agreement for doing one or the other thing by

one or the other party. That would amount to

saying that the time-limits prescribed by the

parties in the agreement have no significance or

value and that they mean nothing. Would it be

reasonable to say that because time is not

made the essence of the contract, the time-

limit(s) specified in the agreement have no

relevance and can be ignored with impunity? It

would also mean denying the discretion vested

in the cr.urt by both Sections 10 and 20. As held

by a Constitution Bench of this court in Chand

Rani v. Kamal Rani, [1993] 1 S.C.C. 519,

"it is clear that in the case of sale of

immovable property there is no presumption

as to time being the essence of the contract.

Even if it is not of the essence of the contract,

the court may infer that it is to be performed

in a reasonable time if the conditions are

(evident)? : (1) From the express terms of the

contract; (2) from the nature of the property;

and(3) from the surrounding circumstances,

for example, the object of making the

contract".

In other words, the court should look at all the

relevant circumstances including the time-limits

23

specified in the agreement and determine

whether its discretion to grant specific

performance should be exercised. Now in the

case of urban properties in India, it is well-

known that their prices have been going up

sharply over the last few decades - particularly

after 1973*. In this case, the suit property is the

house property situated in Madurai, which is

one of the major cities of Tamil Nadu. The suit

agreement was in December 1978 and the six

months' period specified therein for completing

the sale expired with 15th of June, 1979. The

suit notice was issued by the plaintiff only on

11.7.1981, i.e., more than two years after the

expiry of six months' period. The question is

v/hat was the plaintiff doing in this interval of

more than two years? The plaintiff says that he

has been calling upon Defendants 1 to 3 to get

the tenant vacated and execute the sale deed

and that the defendants were postponing the

same representing that the tenant is not

vacating the building. The defendants have

denied this story. According to them, the plaintiff

never moved in the matter and never called

upon them to execute the sale deed. The Trial

Court has accepted the defendants' story

whereas the High Court has accepted the

plaintiffs story. Let us first consider whose story

is more probable and acceptable. For this

purpose, we may first turn to the terms of the

agreement. In the agreement of sale, there is

no reference to the existence of any tenant in

the building. What it says is that within the

24

period of six months, the plaintiff should

purchase the stamp papers and pay the

balance consideration whereupon the

defendants will execute the sale deed and that

prior to the registration of the sale deed, the

defendants shall vacate and deliver possession

of the suit house to the plaintiff. There is not a

single letter or notice from the plaintiff to the

defendants calling upon them to get the tenant

vacated and get the sale deed executed until he

issued the suit notice on 11.7.1981. It is not the

plaintiffs case that within six months, he

purchased the stamp papers and offered to pay

the balance consideration. Defendants' case is

that the tenant is their own relation, that he is

ready to vacate at any point of time and that the

very fact that the plaintiff has in his suit notice

offered to purchase the house with the tenant

itself shows that the story put forward by him is

false. The tenant has been examined by the

defendant as DW-2. He stated that soon after

the agreement, he was searching for a house

but could not secure one. Meanwhile [i.e., on

the expiry of six months from the date of

agreement], he stated, the defendants told him

that since the plaintiff has abandoned the

agreement, he need not vacate. It is equally an

admitted fact that between December 15, 1978

and July 11, 1981, the plaintiff has purchased

two other properties. The defendants'

consistent refrain has been that the prices of

house properties in Madurai have been rising

fast, that within the said interval of 2 1/2 years,

25

the prices went up by three times and that only

because of the said circumstance has the

plaintiff [who had earlier abandoned any idea of

going forward with the purchase of the suit

property] turned round and demanded specific

performance. Having regard to the above

circumstances and the oral evidence of the

parties, we are inclined to accept the case put

forward by Defendants 1 to 3. We reject the

story put forward by the plaintiff that during the

said period of 2 1/2 years, he has been

repeatedly asking the defendants to get the

tenant vacated and execute the sale deed and

that they were asking for time on the ground

that tenant was not vacating. The above finding

means that from 15.12.1978 till 11.7.1981, i.e.,

for a period of more than 21/ 2 years, the

plaintiff was sitting quiet without taking any

steps to perform his part of the contract under

the agreement though the agreement specified

a period of six months within which he was

expected to purchase stamp papers, tender the

balance amount and call upon the defendants

to execute the sale deed and deliver

possession of the property. We are inclined to

accept the defendant's case that the values of

the house property in Madurai town was rising

fast and this must have induced the plaintiff to

wake up after 2 1/2 years and demand specific

performance.

11. Sri Sivasubramanium cited the decision of

the Madras High Court in Section V.

26

Sankaraninga Nadar v. P.T.S. Ratnaswamy

Nadar A.I.R. 1952 Mad. 389 holding that mere

rise in prices is no ground for denying the

specific performance. With great respect, we

are unable to agree if the said decision is

understood as saying that the said factor is not

at all to be taken into account while exercising

the discretion vested in the court by law. We

cannot be oblivious to the reality - and the

reality is constant and continuous rise in the

values of urban properties - fuelled by larger-

scale migration of people from rural areas to

urban centers and by inflation. Take this very

case. The plaintiff had agreed to pay the

balance consideration, purchase the stamp

papers and ask for the execution of sale deed

and delivery of possession within six months.

He did nothing of the sort. The agreement

expressly provides that if the plaintiff fails in

performing his part of the contract, the

defendants are entitled to forfeit the earnest

money of Rs. 5,000/- and that if the defendants

fail to perform their part of the contract, they are

liable to pay double the said amount. Except

paying the small amount of Rs. 5,000/- [as

against the total consideration of Rs. 60,000/-]

the plaintiff did nothing until he issued the suit

notice 2 1/2 years after the agreement. Indeed,

we are inclined to think that the rigor of the rule

evolved by courts that time is not of the

essence of the contract in the case of

immovable properties - evolved in times when

prices and values were stable and inflation was

27

unknown - requires to be relaxed, if not

modified, particularly in the case of urban

immovable properties. It is high time, we do so.

learned Counsel for the plaintiff says that when

the parties entered into the contract, they knew

that prices are rising; hence, he says, rise in

prices cannot be a ground for denying specific

performance. May be, the parties knew of the

said circumstance but they have also specified

six months as the period within which the

transaction should be completed. The said time-

limit may no amount to making time the

essence of the contract but it must yet have

some meaning. Not for nothing could such time-

limit would have been prescribed. Can it be

stated as a rule of law or rule of prudence that

where time is not made the essence of the

contract, all stipulations of time provided in the

contract have no significance or meaning or that

they are as good as nonexistent? All this only

means that while exercising its discretion, the

court should also bear in mind that when the

parties prescribes certain time-limits for taking

steps by one or the other party, it must have

some significance and that the said time-limits

cannot be ignored altogether on the ground that

time has not been made the essence of the

contract [relating to immovable properties].

***

14. Sri Sivasubramanium then relied upon the

decision in Dr. Jiwan Lai and Ors. v. Brij Mohan

Mehra and Anr. [1973]2SCR230 to show that

28

the delay of two years is not a ground to deny

specific performance. But a perusal of the

judgment shows that there were good reasons

for the plaintiff to wait in that case because of

the pendency of an appeal against the order of

requisition of the suit property. We may reiterate

that the true principle is the one stated by the

Constitution Bench in ChandRani Even where

time is not of the essence of the contract, the

plaintiffs must perform his part of the contract

within a reasonable time and reasonable time

should be determined by looking at all the

surrounding circumstances including the

express terms of the contract and the nature of

the property.”

34.In Mohinder Kaur (supra), the Hon’ble Supreme Court has held

as follows :-

“6. We have considered the submissions on

behalf of the parties. It is an undisputed fact that

the suit property stood redeemed from mortgage

on 04.07.1989. The appellant sent due

intimation by registered post to the respondent

on 27.07.1989 and also provided him with a

photocopy of the release deed, requiring the

respondent to take steps for execution of the

sale deed. The respondent by reply dated

02.08.1989 insisted on the nodues certificate,

denying receipt of the release deed. The

respondent then gave a power of attorney on

02.11.1989 to PW1. The witness was naturally

unaware of the preceding events and denied

29

receipt of the notice dated 27.07.1989 itself. The

witness was therefore also incompetent to deny

receipt of photocopy of the release documents

by the respondent. It was for the respondent to

establish his readiness and willingness for

execution of the agreement by entering the

witness box and proving his capacity to pay the

balance consideration amount. Except for the

solitary statement in the plaint no evidence

whatsoever was led on behalf of the respondent

with regard to the same, if PW1 was competent

to depose with regard to the same because

these were facts which had to be personal to the

knowledge of the respondent alone. Had the

witness even led any documentary evidence on

behalf of the respondent, in support of the plea

for readiness and willingness on part of the

respondent, different considerations may have

arisen. The witness also sought to deny any

knowledge regarding the cancellation of the

agreement on 01.09.1989.

7. In Janki Vashdeo Bhojwani v. Indusind Bank

Ltd., (2005) 2 SCC 217, it was held that a power

of attorney holder, who has acted in pursuance

of the said power, may depose on behalf of the

principal in respect of such acts but cannot

depose for the principal for the acts done by the

principal and not by the power of attorney

holder. Likewise, the power of attorney holder

cannot depose for the principal in respect of

matters of which the principal alone can have

personal knowledge and in respect of which the

30

principal is entitled to be crossexamined. In our

opinion, the failure of the respondent to appear

in the witness box can well be considered to

raise an adverse presumption against him as

further observed therein as follows :

“15. Apart from what has been stated, this

Court in the case of Vidhyadhar v. Manikrao

observed at SCC pp. 583-84, para 17 that:

“17. Where a party to the suit does not appear

in the witness box and states his own case on

oath and does not offer himself to be cross-

examined by the other side, a presumption

would arise that the case set up by him is not

correct….”

35.Recently, in Manisha Mahendra Gala (supra), the Hon’ble

Supreme Court has held as under :-

“28. The law as understood earlier was that a

General Power of Attorney holder though can

appear, plead and act on behalf of a party he

represents but he cannot become a witness on

behalf of the party represented by him as no

one can delegate his power to appear in the

witness box to another party. However,

subsequently in Janki Vashdeo Bhojwani vs.

IndusInd Bank Ltd., (2005) 2 SCC 217, this

Court held that the Power of Attorney holder

can maintain a plaint on behalf of the person he

represents provided he has personal

knowledge of the transaction in question. It was

opined that the Power of Attorney holder or the

31

legal representative should have knowledge

about the transaction in question so as to bring

on record the truth in relation to the grievance

or the offence. However, to resolve the

controversy with regard to the powers of the

General Power of Attorney holder to depose on

behalf of the person he represents, this Court

upon consideration of all previous relevant

decisions on the aspect including that of Janki

Vashdeo Bhojwani (supra) in A.C Narayan vs.

State of Maharashtra, (2014) 11 SCC 790

concluded by upholding the principle of law laid

down in Janki Vashdeo Bhojwani (supra) and

clarified that Power of Attorney holder can

depose and verify on oath before the court but

he must have witnessed the transaction as an

agent and must have due knowledge about it.

The Power of Attorney holder who has no

knowledge regarding the transaction cannot be

examined as a witness. The functions of the

General Power of Attorney holder cannot be

delegated to any other person without there

being a specific clause permitting such

delegation in the Power of Attorney; meaning

thereby ordinarily there cannot be any sub-

delegation.

29. It is, therefore, settled in law that Power of

Attorney holder can only depose about the

facts within his personal knowledge and not

about those facts which are not within his

knowledge or are within the personal

knowledge of the person who he represents or

32

about the facts that may have transpired much

before he entered the scene. The aforesaid

Power of Attorney holder PW-1 had clearly

deposed that he is giving evidence on behalf of

plaintiff Nos. 2 to 4 i.e. the Gala’s. He was not

having any authority to act as the Power of

Attorney of the Gala’s at the time his statement

was recorded. He was granted Power of

Attorney subsequently as submitted and

accepted by the parties. Therefore, his

evidence is completely meaningless to

establish that Gala’s have acquired or

perfected any easementary right over the

disputed rasta in 1994 when the suit was

instituted.”

36.Very recently, in Sangita Sinha (supra), the Hon’ble Supreme

Court while dealing with the similar issue, has held as follows :-

“16. It is settled law that under the Act, 1963,

prior to the 2018 Amendment, specific

performance was a discretionary and equitable

relief. 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:

33

“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,

34

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

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

35

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:

“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

36

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

37

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:-

“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)

38

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

39

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 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.

40

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 said Act

makes it clear that mere plea is not sufficient,

it has to be proved.”

(emphasis supplied)

41

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.”

37.Reverting to the facts of the present case in the light of above

judicial precedents, it is quite vivid that the appellant–defendant,

Sheikh Naim, is the undisputed owner of the property bearing

Khasra No. 441/5, Dongargaon, comprising a constructed shop

admeasuring 279 sq. ft. and an open plot of 353 sq. ft., totaling

632 sq. ft. The respondent–plaintiff, Smt. Ganga Bai Gupta,

entered into an agreement to purchase the said property on

20.04.2012 for a total consideration of ₹14,80,000/-, paying

₹7,00,000/- as earnest money, with the sale deed to be executed

within the stipulated period. As the property was under tenancy at

the relevant time, the appellant assured the respondent that he

would make best efforts to provide vacant possession, which

demonstrates the appellant’s transparency and bona fide intent.

38.The agreement to sell was subsequently extended multiple times

due to practical difficulties in obtaining vacant possession,

including renewals on 30.06.2012, 29.12.2012, and 01.02.2013,

ultimately fixing 28.02.2013 as the final date for execution of the

sale deed. Despite these repeated opportunities and extensions,

the respondent failed to pay the balance consideration and

42

complete the registration within the agreed period. During this

time, the appellant remained ready and willing to perform his part

of the contract, while the respondent delayed, avoided taking

steps to complete the transaction, and did not personally depose

in the trial to prove her continuous readiness and willingness as

required under Section 16(c) of the Specific Relief Act, 1963.

39.The evidence on record, including the testimony of PW-1 Manish

Kumar Gupta, power of attorney holder of Smt. Ganga Bai Gupta,

PW-2 Riyajuddin Solanki, PW-3 Sushil Pratap Awasthi, and the

appellant himself (DW-1), clearly establishes the following:

•The appellant was in lawful possession of the property and

fully competent to sell the same.

•The respondent had paid earnest money and executed

agreements reflecting her initial intent to purchase.

•The respondent failed to demonstrate financial readiness and

willingness to perform her obligations continuously from the

date of the first agreement until the filing and conclusion of

the suit.

•The appellant issued legal notice on 15.01.2014 declaring the

termination of the agreement due to repeated defaults,

offering to refund the earnest money, which the respondent

refused to accept.

43

•The respondent’s reliance on her Power of Attorney (son

Manish Kumar Gupta) for adducing evidence does not cure

the defect of personal non-deposition, as held in Janki

Vashdeo Bhojwani (supra), and clarified in Manisha

Mahendra Gala (supra).

40.The conduct of the respondent clearly demonstrates a lack of

bona fide intention to perform the contract. The repeated

extensions cannot be construed as a waiver of the essential

terms of the contract, especially when coupled with the increase

in market value of the property and the respondent’s attempts to

resile from the agreement. As held by the Hon’ble Supreme Court

in N.P. Thirugnanam (supra), and reaffirmed in Sangita Sinha

(supra), the Court must consider the continuous readiness and

willingness of the plaintiff from the date of the contract until the

date of decree, failing which specific performance cannot be

granted.

41.Furthermore, the learned Trial Court, while decreeing the suit in

favor of the respondent, failed to properly examine these crucial

aspects, did not adequately consider the appellant’s evidence,

and ignored the legal principles governing the equitable relief of

specific performance. The learned counsel for the appellant has

rightly contended that specific performance is discretionary under

Sections 20 and 21 of the Specific Relief Act, 1963, and must be

44

refused where the plaintiff has not been continuously ready and

willing to perform contractual obligations.

42.In light of the above discussion, the following conclusions

emerge:-

•The appellant was always ready and willing to perform his

part of the contract, including providing vacant possession of

the shop and open land, and executing the sale deed upon

receipt of the balance consideration.

•The respondent failed to demonstrate continuous readiness

and willingness to perform her part of the contract, a condition

precedent for grant of specific performance as enshrined in

Sections 16(c) and 20 of the Specific Relief Act, 1963.

•The learned Trial Court erred in decreeing the suit in favor of

the respondent without adequately considering the appellant’s

evidence, repeated defaults of the respondent, and relevant

equitable considerations.

•The agreements to sell dated 20.04.2012 and subsequent

renewals stand terminated due to the respondent’s failure to

perform essential contractual obligations.

43.Accordingly, in exercise of appellate jurisdiction, the appeal is

hereby allowed. The judgment and decree dated 12.04.2016

passed by the learned District Judge, Rajnandgaon (C.G.) in Civil

Suit No. 10-A/2014 are set aside and quashed. The appellant–

45

defendant is absolved from any further liability in relation to the

agreements to sell.

44.Considering equitable justice, the respondent/plaintiff is entitled to

receive advance amount of ₹ 7,00,000/- (Rupees Seven Lacs)

along with interest @ 6% per annum from the date of institution of

suit that is from 24.01.2014 till the realization of the amount.

45.As a consequence thereof, the cross-objection filed by the

respondent/plaintiff is hereby dismissed.

46.A decree be drawn up accordingly.

Sd/- Sd/-

(Rajani Dubey) (Amitendra Kishore Prasad)

Judge Judge

Yogesh

The date when the

judgment is

reserved

The date when the

judgment is

pronounced

The date when the judgment is

uploaded on the website

Operative Full

19.11.2025 09.01.2026 ------ 09.01.2026