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FA-335-2018 & FA-427-2017

CGHC010155042018 2026:CGHC:44669

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment Reserved on : 26.09.2026

Judgment Pronounced on : 15.10.2026

Judgment (Fully) Uploaded on : 15.10.2026

[Arising out of common judgment and decree dated 11.07.2017, passed

in Civil Suit No.286-A/2014 (Smt. M. Kamla vs. Smt. Gulaba

Manikpuri) by the Addl. District Judge, Bilaspur (CG)]

FA No. 335 of 2018

Smt. M. Kamla W/o Shri M.Govind Raju Aged About 60 Years R/o

Shankar Nagar, Ward No. 37 Near Gudakhu Factory Bilaspur, Tahsil

Bilaspur, P.S. Torwa, Civil And Revenue District Bilaspur, Chhattisgarh

(Plaintiff), District : Bilaspur, Chhattisgarh

--- Appellant/

Plaintiff

Versus

Smt. Gulaba Manikpuri W/o Shri Premdas Manikpuri Aged About 47

Years Caste Kayasth, R/o Shankar Nagar, Ward No.37 Near Gudakhu

Factory Bilaspur, Tahsil Bilaspur, P.S. Torwa, Civil And Revenue

District Bilaspur, Chhattisgarh (Defendant), District : Bilaspur,

Chhattisgarh

--- Respondent/

Defendant

WITH

FA No. 427 of 2017

Smt. Gulaba Manikpuri W/o Shri Premchand Manikpuri, Aged About

42 Years R/o Shankar Nagar, Ward No. 37, Near Gudakhu Factory,

Tahsil District Bilaspur Chhattisgarh., Chhattisgarh

---Appellant/

Defendant

Versus

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Smt. M. Kamla W/o Shri M. Govind Raju, Aged About 55 Years R/o R/o

Shankar Nagar, Ward No. 37, Near Gudakhu Factory, Tahsil District

Bilaspur Chhattisgarh. , Chhattisgarh

--- Respondent/

Plaintiff

Cause-title taken from Case Information System (CIS)

------------------------------------------------------------------------------------

For Plaintiff : Mr. Sunil Sahu, Advocate

For Defendant : Mr. Hemant Kesharwani, Advocate

------------------------------------------------------------------------------------

Single Bench: Hon’ble Mrs. Justice Sushma Sawant

CAV Judgment

1.Regarding being had to the similitude of the questions of facts

and law involved and being arising out of the a common judgment

dated 11.07.2017, on the joint request of learned counsel for the

parties, both these appeals are clubbed together, heard together

and being disposed of by this common judgment. However, for

the sake of convenience facts are taken from FA-335-2016 as

leading case.

2.FA-335-2016 , has been preferred by the plaintiff Smt. M.

Kamla, invoking the appellate jurisdiction of this Court under

Section 96 of the Code of Civil Procedure, 1908, challenging the

judgment & decree dated 11.07.2017, passed in Civil Suit No.286-

A/2014 (Smt. M. Kamla vs. Smt. Gulaba Manikpuri) by the Addl.

District Judge, Bilaspur (CG), by which the learned Additional

District Judge has dismissed the suit filed by the plaintiff Smt. M.

Kamla seeking specific performance of contract dated 31.03.2009

and permanent injunction by restraighten the defendant- Smt.

Gulaba Manikpur from selling the suit property in favour of any

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other person and further allowed the counter claim/suit filed by

the defendant. Whereas, FA-427-2017 has been preferred by

defendant Smt. Gulaba Manikpuri challenging the same

impugned judgment and decree dt. 11.07.20017, by which though

the learned trial Court allowed the counter-claim filed by the

defendant but directed her to pay an amount of Rs.3,58,700/- to

the plaintiff Smt. M. Kamla within a peri0d of two months, failing

which, the plaintiff Smt. M. Kamla, will be entitled for interest

on the said amount @ 6% from 31.03.2009.

3.The aforesaid challenge has been made on the following factual

backdrop: -

(For the sake of convenience, parties hereinafter will be referred as

per their status shown and ranking given in the civil suit before the

trial Court.)

Factual Matrix

-:Admitted facts between the parties:-

4.The admitted facts between the parties are that the defendant

Smt. Gulaba Manikpuri had entered into an agreement with

the plaintiff Smt. M. Kamla on 31.03.2009 for sale of the suit

house situated at Mohalla Shankar Nagar, Ward No. 37, Tahsil

and District Bilaspur, Chhattisgarh, bearing Khasra No. 764/35,

admeasuring 538.21 square feet, out of which a house has been

constructed over the ground-floor portion measuring 444 square

feet (hereinafter referred to as the “suit property”) for a total sale

consideration of Rs. 4,70,000/-.

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-:Case of the Plaintiff- Smt. M. Kamla before the Trial

Court:-

5.According to the plaintiff Smt.M.Kamla, the defendant Smt.

Gulaba Manipiri disclosed that the suit property had been

mortgaged with the State Bank of Indore, Bus Stand Branch,

Bilaspur, against a commercial loan, in respect whereof a sum of

Rs. 3,96,000/- was outstanding, and that the said bank had

subsequently merged with the State Bank of India.

6.It is also the case of the plaintiff Smt. M. Kamla, that she

deposited Rs. 10,000/- in the defendant Smt. Gulaba

Manikpuri’s loan account on 31.03.2009 and executed an

agreement to sell the suit property before witnesses, which was

duly notarized by a Public Notary. The plaintiff Smt. M.

Kamla, thereafter paid Rs. 50,000/- to Shri Narayan Sahu on

10.04.2009 and Rs. 24,000/- on 25.04.2009 in cash, towards the

liability of the defendant Smt. Gulaba Manikpuri .

Consequently, an aggregate amount of Rs. 74,000/- stood

adjusted towards the sale consideration as advance/earnest

money under the agreement. Further, pursuant to the said

agreement, the possession of the suit property has also been

handed over by the defendant Smt. Gulaba Manikpuri to the

plaintiff Smt. M. Kamla, and from the date of agreement the

plaintiff Smt. M. Kamla, is in possession of the said house.

7.The plaintiff Smt. M. Kamla, further pleads that it was also

agreed by the defendant Smt. Gulaba Manikpuri that the

plaintiff Smt. M. Kamla, would, at her convenience or in one

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lump sum, deposit with the Bank the loan amount taken against

the suit house, which would be Rs. 3,86,000/- only, and in the

event of the loan amount being in excess thereof, the defendant

Smt. Gulaba Manikpuri would be liable to make payment of

such excess amount to the Bank. Immediately upon the entire

loan amount being cleared and the property being released from

the Bank’s charge/mortgage, the sale deed would be registered

forthwith. As per the agreement, the plaintiff Smt. M. Kamla,

continued to make payments towards the loan amount in

installments from time to time. On 12.12.2012, an installment

amount was also deposited by the plaintiff Smt. M. Kamla,

with the Bank. Thus, in all, a sum of Rs. 4,39,700/- has already

been paid to the defendant Smt. Gulaba Manikpuri towards

the advance sale consideration of the suit house. Out of the total

sale consideration stipulated under the agreement, only Rs.

30,300/- remains payable to the defendant Smt. Gulaba

Manikpuri, which the plaintiff Smt. M. Kamla, is ready and

willing to pay.

8.The plaintiff Smt. M. Kamla , further pleads that on

20.03.2014, the defendant Smt. Gulaba Manikpuri , after

repaying the entire loan amount due and payable, got the suit

house released from the mortgage/charge. Thereafter, the

plaintiff Smt. M. Kamla, contacted the defendant Smt.

Gulaba Manikpuri on 23.03.2014 and 06.04.2014 for getting

the sale deed registered. However, the defendant Smt. Gulaba

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Manikpuri kept giving evasive replies and, after discussing the

matter with the members of her family, refused to execute the sale

in favour of the plaintiff Smt. M. Kamla, and is prepared to

sell the suit property to some other person. The defendant Smt.

Gulaba Manikpuri is also ready and willing to demolish the

approximately 30-year-old tin-roofed house and

latrine/bathroom structure standing on the suit property, thereby

causing irreparable loss and injury to the Plaintiff. The plaintiff

Smt.M.Kamla had the remaining sale consideration amount,

stamp duty and registration charges, available with her from the

date of execution of the agreement. Hence, with aforesaid

pleading, the plaintiff Smt.M.Kamla filed a civil suit before the

learned trial Court seeking seeking specific performance of

contract dated 31.03.2009 and permanent injunction by

restraighten the defendant Smt. Gulaba Manikpuri from

selling the suit property in favour of any other person.

-:Written Statement of the Defendants before the Trial

Court:-

9.The defendant Smt. Gulaba Manikpuri filed its written

statement and denied the averments of the plaint except the

admitted facts and submitted that as on the date of the agreement

dated 31.03.2009, a loan of Rs. 3,96,000/- was outstanding

against the suit property. On the said date, the plaintiff

Smt.M.Kamla paid only Rs. 10,000/- towards the loan, whereas

the remaining amount of Rs. 3,86,000/- was, as per Clause 8 of

the agreement, required to be paid by the plaintiff

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Smt.M.Kamla either in the prescribed monthly installments or

in one lump sum. However, the plaintiff Smt.M.Kamla failed

to make the said payment.

10.It is further stated by the defendant Smt. Gulaba Manikpuri

that the plaintiff Smt.M.Kamla knowingly and deliberately

failed to repay the bank loan, as a result of which the interest

continued to accrue and the outstanding amount increased. The

plaintiff Smt.M.Kamla herself is responsible for the increase

in the said liability. The defendant Smt. Gulaba Manikpuri

further pleaded that the plaintiff Smt.M.Kamla did not make

payment of the bank loan in accordance with the stipulated

monthly installments, but instead made payments according to

her own convenience, as a result of which the Bank auctioned the

house/property. The Bank published an advertisement regarding

the auction in the daily newspaper Dainik Bhaskar dated

13.02.2014. The said information was also communicated to the

plaintiff Smt.M.Kamla, and she was requested to pay the

outstanding loan amount before the auction of the house.

However, the plaintiff Smt.M.Kamla did not make the

payment. Thereafter, the defendant Smt. Gulaba Manikpuri

borrowed money from a moneylender and, on 20.03.2014,

deposited the requisite amount and got the suit house released

from the mortgage/charge. The plaintiff Smt.M.Kamla failed

to pay the loan amount within the stipulated period and remained

negligent/defaulting in complying with the terms and conditions

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of the agreement. Thus, no cause of action arose in favour of the

plaintiff Smt.M.Kamla on 20.03.2014. The plaintiff Smt.

M.Kamla’s suit is barred by limitation and since the agreement

to sell was not registered, the suit is liable to be dismissed.

-:Counter claim of the defendant before the trial Court:-

11.In accordance with the averments of the written statement, the

defendant Smt. Gulaba Manikpuri has further stated in her

counter-claim that the suit house had been mortgaged under a

home loan, and as the loan could not be repaid, an agreement was

entered into with Narayan Sahu for sale of the house and

possession thereof was handed over to him. Subsequently, when

Narayan Sahu expressed his inability to repay the loan, the

plaintiff Smt.M.Kamla entered into an agreement to sell dated

31.03.2009 with the defendant Smt. Gulaba Manikpuri for a

sale consideration of Rs. 4,70,000/-, subject to certain terms and

conditions.

12.Since a loan amount of Rs. 2,96,000/- remained outstanding and

the plaintiff Smt.M.Kamla failed to comply with the terms of

the agreement, particularly the obligation to deposit/pay the loan

amount, the defendant Smt. Gulaba Manikpuri obtained a

loan from a moneylender and got the suit house released from the

mortgage. Therefore, on the basis of her ownership, the

defendant Smt. Gulaba Manikpuri is entitled to obtain

possession of the suit house from the plaintiff Smt.M.Kamla.

On the basis of the aforesaid averments, the defendant Smt.

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Gulaba Manikpuri has prayed that her counter-claim be

allowed and that an order/decree be passed directing the

plaintiff Smt.M.Kamla to hand over vacant possession of the

suit house, along with an order for costs of the suit.

-:Reply of the plaintiff to the counter-claim of the

defendant before the trial Court:-

13.In reply to the counter claim, it has been stated by the plaintiff

Smt.M.Kamla that the home loan was not Rs. 2,96,000/-

indeed it was Rs. 3,96,000/-. The remaining amount under the

agreement was also required to be paid to the defendant Smt.

Gulaba Manikpuri herself, and the responsibility of getting the

suit house released from the mortgage did not lie upon the

plaintiff Smt.M.Kamla. On the basis of aforesaid submission,

the plaintiff Smt.M.Kamla prayed for dismissal of the counter

claim filed by the defendant Smt. Gulaba Manikpuri .

-:Findings of the learned trial Court:-

14.The learned Trial Court on the basis of the pleadings and the

written statement as well as the material evidence available on

record, has framed 6 issues and after due consideration of the

facts and circumstances of the case though dismissed the suit filed

by the plaintiff Smt.M.Kamla, but held her entitled for

recovery of an amount of Rs.3,58,700/- from the defendant

Smt. Gulaba Manikpuri and further allowed the counter-claim

filed by the defendant Smt. Gulaba Manikpuri by recording

thus:

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A.The Plaintiff shall hand over possession to the defendant

Smt. Gulaba Manikpuri, within two months from the date of

the decree, of the property situated at Mohalla Shankar Nagar,

Ward No. 37, Tehsil and District Bilaspur, Chhattisgarh, bearing

Khasra No. 764/35, measuring 538.21 square feet, out of which a

constructed portion measuring 444 square feet has a building

constructed thereon.

B.The defendant Smt. Gulaba Manikpuri shall pay a sum

of ₹3,58,700/- (Rupees Three Lakh Fifty-Eight Thousand Seven

Hundred only) to the plaintiff Smt. M. Kamla, within two

months. In the event of failure to make the payment within the

said period, interest at the rate of 6% per annum shall also be

payable from 31.03.2009 until the date of payment.

C.Payment of the aforesaid amount by the defendant Smt.

Gulaba Manikpuri shall be a condition precedent to the

plaintiff Smt. M. Kamla, handing over possession of the

property to the Defendant.

15.Being aggrieved by the aforesaid findings of the trial Court, FA-

335-2018 has been filed by the plaintiff Smt.M.Kamla on the

following grounds:-

(i)That, the impugned judgment and decree passed by the

learned trial Court is illegal, erroneous and contrary to law.

(ii) That the learned trial court has committed an error of law in

recording the findings that the plaintiff- Smt. M. Kamla has

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committed breach of agreement conditions and also committed

an error of law in allowing the counter suit of defendant.

(iii)That the learned trial court has committed an error of law in

dismissing the suit for specific performance of the contract

though the agreement to sale and acceptance of the amount has

been admitted by the defendant.

(iv)That the learned trial court has failed to see that the

agreement is admitted between the parties and the plaintiff- Smt.

M. Kamla has given the amount as per the terms and condition of

the agreement and she has deposited the installment in the Bank

and all the receipt were produce and proved therefore the

dismissal of the suit of plaintiff- Smt. M. Kamla is bad in eye of

law.

(v) That the learned trial court has failed to consider that the

house in question was not purchase by the defendant in auction

the major part of the loan has been deposited by the plaintiff and

defendant deposit the remaining balance amount and get released

the house from mortgage though in the auction proceedings the

highest bidder is one Mahadev Appa but the defendant deposit

the amount therefore auction sale has not been conformed in

favour of Mahadev Appa.

(vi)That the learned trial Court failed to see that the present

suit is for specific performance of the contract and plaintiff- Smt.

M. Kamla has proved the execution of agreement and giving the

amount therefore dismissal of the suit on relying the statement of

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DW-1 defendant is not in accordance with the provisions of

contract Act as the contract is admitted between the parties.

(vii)That the judgment of the trial court based on the

presumption, surmises and conjunctures which could not be

sustainable.

16.Whereas, being aggrieved by the findings of the trial Court to the

extent of paying an amount of Rs.3,58,700/- to the plaintiff

Smt. M. Kamla, within a peri0d of two months, failing which,

the plaintiff Smt. M. Kamla, will be entitled for interest on the

said amount @ 6% from 31.03.2009, the defendant has filed

FA-427-2017 on the following grounds:-

(i)That, the impugned Judgment and Decree is bed in law,

perverse, and against the fact, evidence and other material

available in the record.

(ii)That, the learned trial Court imposed the said condition in

the impugned decree without any claim in civil suit, which is not

sustainable.

(iii)That, the trial Court has not considered the legal aspect

regarding the suit was filed beyond the limitation, the agreement

was entered on dated 31.03.2009 and suit was filed a 10.07.2014,

which is barred by limitation.

(iv)That, in impugned judgment and decree the trial Court

found that the plaintiff committed breach of condition therefore

not entitled for any relief, and thus, the trial Court dismissed the

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suit of plaintiff and allow the cross suit filed by the defendant,

however, erroneously imposed the condition to pay Rs.

3,58,700/- to the plaintiff which is not sustainable.

(v)That, the learned trial Court has not considered the fact that

the plaintiff has purchase the disputed house on auction held by

the Bank, the plaintiff invest huge amount in auction proceeding

and purchased the disputed house, this facts is admitted by the

plaintiff, however, the learned trial Court not considered the

aforesaid at all.

(vi)That, the learned trial Court has not considered that the

plaintiff has failed to pay installment within a time therefore, loan

amount was increased and due to non payment of the loan

amount the Bank proceeding auction of said disputed house.

-:Proceedings before Appellate Court :-

17.Heard on the Appeal. In the context of the appeal and arguments,

evidence and documents, available on record of the trial Court

were examined.

-:Points for determination :-

18.In order to dispose of both the First Appeals, following questions

are to be considered:-

(i) Whether the learned trial Court is justified in

dismissing the the suit filed by the plaintiff seeking

reliefs of specific performance of contract dated

31.03.2009 and permanent injunction by restraighten

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the defendant from selling the suit property in favour of

any other person ?

(ii) Whether the trial Court is justified allowing the

counter-claim of the defendant and directing the

plaintiff to hand over the possession of the suit property

to the defendant ?

(iii) Whether the trial Court is justified in directing the

defendant to pay an amount of Rs.3,58,700/- to the

plaintiff within a peri0d of two months, failing which,

the plaintiff will be entitled for interest on the said

amount @ 6% from 31.03.2009 ?

-:Arguments of the Plaintiff:-

19.On behalf of the plaintiff Smt.M.Kamla it is argued, with

reference to the grounds raised in the memorandum of appeal,

that the plaintiff Smt. M. Kamla, duly complied with the terms

and conditions stipulated in the agreement Ex.P-1. She regularly

deposited the amount in the bank in accordance with the agreed

terms and was also ready and willing to deposit the remaining

amount. Despite her compliance with the contractual obligations

and her readiness to perform the remaining part of the contract,

the learned Trial Court erred in deciding the matter against her

and dismissing the suit for specific performance. It is, therefore,

contended that the findings recorded by the learned Trial Court

are contrary to the evidence available on record and are liable to

be set aside.

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-:Arguments of the Defendant:-

20.Per contra, the learned counsel for the defendant Smt. Gulaba

Manikpuri, while supporting the order of restoration of

possession passed by the learned Trial Court, has advanced

arguments, in terms of the memorandum of appeal, challenging

the correctness of the decree for refund of the amount. Placing

reliance upon the judgment in Daya Ram v. Gyarsi Bai

Khandelwal, 2016 SCC Online Chh 190 it is contended that

the plaintiff Smt. M. Kamla, was never ready and willing to

perform her part of the contract and that, had she been so ready

and willing, her bank loan would not have increased. It is further

contended that the failure to perform the contract was

attributable to the plaintiff Smt. M. Kamla, herself and,

therefore, the learned Trial Court ought not to have granted a

decree for refund of the amount. In Daya Ram (supra) , this

Court declined to grant relief to the plaintiff Smt. M. Kamla,

on the ground that the plaintiff was not ready and willing to

perform her part of the contract. Reliance has also been placed

upon the judgments in Telikicherla v. Kalli Raj Rao, (2014)

15 SCC 743 and U.N. Krishnamurthy v. A.M.

Krishnamurthy, (2023) 11 SCC 775 in support of the

submissions concerning readiness and willingness.

21.The learned counsel for the defendant Smt.Gulaba Manikpuri,

has further questioned the admissibility of the sale agreement Ex.

P-1, placing reliance upon the judgment of this Court in

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Swadhin Nag Chaudhary v. Ajay Francis @ Subba, 2026

SCC Online Chh 462. It is contended that possession of the suit

property was delivered to the plaintiff at the time of execution of

the said document and, therefore, in the absence of proper

stamping, the document is inadmissible in evidence. On this

basis, it is submitted that no relief could have been granted to the

plaintiff Smt. M. Kamla, on the strength of the said document.

-: Details of evidence and documents available before

the trial Court:-

22.Before the trial Court, in support of its case, the plaintiff

examined herself as Smt. M. Kamla (PW-01) and exhibited

documents vide Ex.P/01 to Ex.P/38. Whereas, in defence,

though defendant examined herself as Smt. Gulaba Manikpuri

(DW-01) but not exhibited any document.

-:Analysis of the Appellate Court:-

Points for determination No. (i) to (iii)-

23. All three issues are interdependent on each other and, therefore,

they are being decided together.

24.Although both parties adduced extensive oral and documentary

evidence before the Trial Court and subjected the witnesses

examined on behalf of the opposite party to detailed cross-

examination in support of their respective stands, the execution of

the agreement to sell in respect of the suit property is not in

dispute. Thus, notwithstanding the extensive evidence brought on

record and the elaborate contest between the parties, the

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controversy, in its essential nature, is confined within a relatively

narrow compass.

25.The real point of disagreement is not whether the agreement to

sell was executed, but rather the manner in which its terms and

conditions were required to be performed, the respective

obligations undertaken by the parties thereunder, and the party

upon whom the responsibility for fulfilling the stipulated

conditions rested. In other words, the central issue requiring

adjudication is the proper interpretation of the terms of the

agreement and the determination of the respective obligations of

the parties in relation to its performance.

26.The plaintiff, Smt. M. Kamla, instituted a suit before the Trial

Court seeking specific performance of the contract. The

agreement to sell, marked as Ex. P.-1, stipulated that the

plaintiff Smt. M. Kamla, would purchase the suit house, which

was mortgaged with the bank by the defendant, Smt.Gulaba

Bai, for a consideration of ₹4,70,000/-. Out of the said

consideration, the plaintiff was required to deposit ₹3,86,000/-

with the bank, either in installments or in a lump sum, and the

sale deed was to be executed after the property was released from

the mortgage.

27.Upon consideration of the evidence adduced by both parties

before the Trial Court, it is apparent that neither party disputes

the terms and nature of Ex. P-1. Since the plaintiff Smt. M.

Kamla, has instituted the suit seeking specific performance of

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the contract, the burden of establishing her entitlement to the

relief claimed rests upon her. Therefore, even if Ex. P-1 is

accepted in the form in which it stands, certain material aspects

emerge from its terms.

28.It is evident that, from the very date of execution of the

agreement, the plaintiff Smt. M. Kamla, was aware that the

suit house was mortgaged with the bank and that installments

were required to be paid towards discharge of the outstanding

bank liability. Consequently, she was also aware that, in the event

of regular installments not being paid, the outstanding liability of

the bank would continue to increase. Thus, the plaintiff Smt.

M. Kamla, must necessarily be taken to have understood that

the amount of ₹3,86,000/- mentioned in Ex. P-1 represented the

bank liability as it stood on the date of execution of the agreement

and that, if the said amount was not deposited with the bank on

that date, the outstanding liability would continue to increase on

account of accruing interest and other applicable charges.

29.It is true that Ex. P-1, the agreement to sell, also contains a

stipulation that, in the event of an increase in the outstanding

amount, the enhanced amount would be paid by the defendant.

However, in the facts and circumstances of the present case, the

question as to which party was liable to pay the enhanced amount

is not the material consideration. The more significant question is

whether the plaintiff was at all times ready and willing to

perform her part of the contract.

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30.The parties to an agreement are at liberty to incorporate such

terms and conditions as they mutually consider appropriate. In

the present case also, the plaintiff Smt. M. Kamla, and the

defendant Smt. Gulaba Manikpuri have incorporated the

terms and conditions according to their own convenience. If both

parties abide by the terms so agreed upon, no difficulty would

ordinarily arise. However, when a party approaches the Court

seeking legal relief on the basis of such an agreement, the

entitlement to such relief must be examined in the light of the

applicable legal requirements.

31.In a suit for specific performance of a contract, the Court must

examine whether the plaintiff Smt. M. Kamla, has performed,

or has always been ready and willing to perform, the essential

terms of the contract required to be performed by him, as

mandated under Section 16(c) of the Specific Relief Act,

1963. Merely incorporating terms in an agreement is not

sufficient; the plaintiff must establish her readiness and

willingness to perform her contractual obligations.

32.In this regard, the Hon’ble Supreme Court has also given a

detailed interpretation in various precedents. In the matter of

M/s J.P. Builders & Anr. Vs. A.Ramadas Rao & Anr.,

2011 (1) SCC 429, the Hon'ble Supreme Court while clarifying

the difference between "readiness" and "willingness"

emphasized that, "Readiness" means proving financial

capability, and "willingness" means proving conduct that

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indicates the intention that “I truly want to complete the

sale agreement.” The relevant portion of the opinion is as

follows.

“20.Section 16 of the Specific Relief Act, 1963

provides for personal bars to relief.

“16. Personal bars to relief .—Specific

performance of a contract cannot be enforced in

favour of a person—

(a) who would not be entitled to recover

compensation for its breach; or

(b) who has become incapable of performing, or

violates any essential term of, the contract that

on his part remains to be performed, or acts in

fraud of the contract, or wilfully acts at variance

with, or in subversion of, the relation intended to

be established by the contract; or

(c) who fails to aver and prove that he has

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

terms the performance of which has been

prevented or waived by the defendant.

Explanation.—For the purposes of clause (c),—

(i) where a contract involves the payment of

money, it is not essential for the plaintiff to

actually tender to the defendant or to deposit in

court any money except when so directed by the

court;

(ii) the plaintiff must aver performance of, or

readiness and willingness to perform, the

contract according to its true construction.”

21.Among the three sub-sections, we are more

concerned about sub-section(c). “Readiness and

willingness” is enshrined in clause (c) which was not

present in the old Act of 1877. However, it was later

inserted with the recommendations of the 9th Law

Commission’s report. This clause provides that the

person seeking specific performance must prove that

he has performed or has been ready and willing to

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perform the essential terms of the contract which are

to be performed by him.

22.The words “ready” and “willing” imply that the

person was prepared to carry out the terms of the

contact. The distinction between “readiness” and

“willingness” is that the former refers to financial

capacity and the latter to the conduct of the plaintiff

wanting performance. Generally, readiness is backed

by willingness.”

33.Similarly, in another Judgment N.P. Thirugnanam Vs. Dr. R.

Jagan Mohan Rao & Ors., (1995) 5 SCC 115 , the Hon'ble

Supreme Court while interpreting Section 16 (c) of the Specific

Relief Act, 1963 in relation to "readiness" and

"willingness" has opined that, For such relief, it is a

precondition that the plaintiff must continuously prove readiness

and willingness; it is necessary for him, before filing the suit, i.e.,

from the date of execution of the contract up to the date of

passing of the decree, to prove his readiness and willingness. The

relevant portion is as follows:-

“.....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

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 alongwith other

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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

always ready and willing to perform his part of the

contract.”

34.In case of R.C. Chandiok & Anr. vs. Chuni Lal Sabharwal

& Ors. (1970) 3 SCC 140, the Hon'ble Supreme Court is also of

the view that the intent of "readiness" and "willingness"and

the conduct of the plaintiff can be tested by the facts and

circumstances of the case, the relevant portions of which are as

follows:

“‘readiness and willingness’ cannot be treated as

a straight jacket formula. This has to be

determined from the entirety of the facts and

circumstances relevant to the intention and

conduct of the party concerned.”

35.In the light of the principles held above, it would be appropriate

to examine the present case as to whether the circumstances of

this case indicate that the plaintiffs were, from the very beginning,

“ready and willing” to complete the contract of sale ?

36.In this regard, a perusal of the documents produced by the

plaintiff Smt. M. Kamla, herself, namely, Ex. P-2 to P-35,

through which she sought to establish the deposit of amounts

with the bank, as well as Ex. P-36, being the notice issued by her

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to the defendant in relation to performance of the agreement,

reveals that the plaintiff had made payments towards the bank

liability only up to 12-12-2012.

37.Furthermore, the statement of the plaintiff, Smt. M. Kamla

(P.W.-1), in paragraph 14 of her cross-examination also

brings out the fact that the notice of auction of the suit house was

issued on 13-12-2014. This circumstance indicates that the

plaintiff had not paid the consideration amount up to 13-12-

2014. The documentary evidence produced by the plaintiff

Smt. M. Kamla, herself, particularly Ex. P-1, when read in

conjunction with her admissions in cross-examination, assumes

significance in assessing whether she had the financial capacity

and continued readiness and willingness to perform her

contractual obligations.

38. The material on record indicates that the entire consideration

stipulated in Ex. P-1 was never available with her at any point of

time. Had the plaintiff Smt. M. Kamla, possessed the requisite

amount, she could have deposited the same in the bank in one

lump sum. Further, she did not produce even a copy of her bank

account to establish that she had sufficient funds available with

her at the time of execution of the agreement.

39.Ex. P-1 was executed in the year 2009, whereas the payment of the

consideration amount continued to be made in installments up to the

year 2014. This circumstance supports the inference that the plaintiff

Smt. M. Kamla, was never financially ready to perform her part of

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the contract. In such circumstances, the learned Trial Court has

committed no error in recording an adverse finding against the

plaintiff Smt. M. Kamla, on this aspect. The judgment relied upon

by the defendant, Telikicherla v. Kalli Raj Rao, (2014) 15

SCC 743 and U.N. Krishnamurthy v. A.M.

Krishnamurthy, (2023) 11 SCC 775 also supports the same

proposition.

40.As regards the decree directing restoration of possession of the

suit property to the defendant, once the agreement to sell the suit

property cannot be specifically enforced in favour of the plaintiff

Smt. M. Kamla,, her continued possession of the suit property

cannot be sustained on that basis. Consequently, the original

owner is entitled to recover possession of the suit property.

Therefore, the learned Trial Court has committed no error in

directing the plaintiff Smt. M. Kamla, to restore possession of

the suit property to the defendant.

41.The defendant Smt. Gulaba Manikpuri has placed reliance

upon the judgment in Swadhin Nag Chaudhary v. Ajay

Francis @ Subba, 2026 SCC OnLine Chh 462 , and

challenged the admissibility of Ex.P-1, contending that no relief

could be granted against her on the basis of the said document.

However, Ex.P-1 does not contain any mention of the transfer or

delivery of possession of the suit property pursuant to the

agreement to sell. In the absence of any such mention, the

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document cannot be treated as a “conveyance” on the ground

that possession was delivered thereunder.

42.Therefore, the principle relied upon in the aforesaid judgment,

concerning the requirement of payment of stamp duty applicable

to a conveyance, is not attracted to the facts of the present case. It

is also noteworthy that no objection regarding the admissibility of

Ex.P-1 was raised before the learned Trial Court. In any event,

the said objection does not assume significance in the context of

the remaining relief claimed in the present case.

43.The learned Trial Court has recorded a well-reasoned finding that

the plaintiff Smt. M. Kamla, had paid an amount of ₹3,58,700

towards the sale consideration to the defendant, as reflected in

Ex.P-2 to Ex.P-35, (except Ex.P-34). The Trial Court has also

passed a reasoned order directing refund of the said amount. No

other legal objection has been raised warranting interference with

this finding. Accordingly, the finding and direction of the learned

Trial Court regarding refund of the amount do not call for any

interference.

-:Final Conclusion:-

44.In view of the foregoing discussion, this Court finds no merit in

either of the appeals. The learned Trial Court has rightly declined

the relief of specific performance of the agreement to sell and has

also committed no error in directing restoration of possession of

the suit property to the defendant Smt. Gulaba Manikpuri

and refund of the amount paid by the plaintiff Smt. M. Kamla,

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towards the sale consideration. The findings recorded by the

learned Trial Court do not warrant any interference by this Court.

45.Accordingly, First Appeal No. 335 of 2018 and 427 of 2017

are hereby dismissed. The judgment and decree passed by the

learned Trial Court are affirmed.

46.In the facts and circumstances of the case, the parties shall bear

their own costs.

A decree be drawn up accordingly.

sd/-

(Sushma Sawant)

JUDGE

S@if