Gauhati High Court
RSA/209/2017 on 15 July, 2026
GAHC010263682017
2026:GAU-AS:9624
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RSA No. 209/2017
On the death of late Pankaj Kumar Das, his legal heirs-
1.1 Smt. Putul Das (wife).
1.2 Shri Bijoy Das (son).
1.3 Smt. Mistu Das
D/o Late Pankaj Kumar Das,
W/o Shri Bikash Das,
Resident of near Promudini Guest House,
C/o Gobinda Paul, Lower Jail Road,
Shillong, Meghalaya, Pin-793001.
1.4 Shri Binoy Das (son).
1.5 Shri Debasish Das (son).
Sl. Nos.1.1, 1.2, 1.4 & 1.5 are resident of
Lanka College Road, Ward No.6,
Lanka Town, PO & PS-Lanka,
Dist.-Hojai, Assam, Pin-782446.
......Appellants.
-Versus-
Smt. Madhabi Mazumder,
W/o Shri Hari Mazumder,
Resident of Lanka Town, Ward No.6,
PO-Lanka, PS-Lanka, Dist.-Hojai,
Assam, Pin-782446.
......Respondent.
For the Appellants : Mr. B.K. Bhagawati.
……Advocate.
RSA 209/2017 Page 1 of 50
For the Respondent : Mr. P.C. Dey.
......Advocates.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date(s) of Hearing :- 10.03.2026 & 02.04.2026
Date on which judgment is reserved :- 02.04.2026
Date of pronouncement of judgment :- 15.07.2026
Whether the pronouncement is of :- N/A
the operative part of the judgment?
Whether the full judgment has been :- Yes
pronounced?
JUDGMENT AND ORDER
Heard Mr. B.K. Bhagawati, learned counsel for the appellants
and also heard Mr. P.C. Dey, learned counsel for the respondent.
2. This appeal, under Section 100 of the Code of Civil Procedure,
is directed against the judgment and decree, dated 23.12.2015,
passed by the learned Additional District Judge No.3, Nagaon, in
RSA 209/2017 Page 2 of 50
Title Appeal No.6/2015. It is to be noted here that vide impugned
judgment and decree, dated 23.12.2015, the learned Additional
District Judge No.3, Nagaon (First Appellate Court, hereinafter), has
affirmed the judgment and decree dated 23.02.2015, passed by the
learned Civil Judge, Nagaon, in Title Suit No.57/2010.
3. It is also to be noted here that for the sake of convenience
and to avoid confusion, the parties in this appeal will be referred to
by their original status in the Title Suit No.57/2010.
4. The background facts leading to filing of the present appeal
are briefly stated as under:-
“The respondent herein, as plaintiff, had instituted a title suit,
being Title Suit No.57/2010 for specific performance of
contract. The case of the plaintiff was that a plot of land,
measuring 1 katha 8 lechas, covered by Dag No.1540, periodic
patta No.724 of Lanka Town Kissam, Mouza-Lanka, in the
district of Nagaon, belongs to the defendant, namely, Pankaj
Chandra Das. On being need of money, the defendant
contacted the plaintiff to sell the suit land, fixing the
consideration at Rs.2,24,000/- (Rupee two lakh twenty four
thousand) and out of the said amount, the plaintiff paid a sum
of Rs.95,000/- (Rupees ninety five thousand) to the defendant
as advance on 26.04.2007. On the same date, the defendant
also executed a registered deed of agreement, videRSA 209/2017 Page 3 of 50
No.2095/2007, in favour of the plaintiff, wherein it was agreed
between the parties that if the defendant repays the advance
amount within 30 days of the month of Ashin in Assamese
calendar, then the plaintiff shall accept the amount and the
agreement shall come to an end. But, if the defendant fails to
repay the amount within that period, in that event, the
defendant on receipt of the balance amount of Rs.1,29,000/-
(Rupees one lakh twenty nine thousand) shall execute the
necessary sale deed in favour of the plaintiff, in respect of the
suit land, and shall handover possession of the land, to the
plaintiff within 30 days of the Assamese Poush month.
However, as per the terms of the contract, the
defendant had failed to repay the advance amount of
Rs.95,000/- (Rupees ninety five thousand) to the plaintiff and
therefore, the plaintiff approached the defendant and
tendered him the balance consideration of Rs.1,29,000/-
(Rupees one lakh twenty nine thousand) and requested him to
receive the amount and to execute the sale deed and to
deliver possession of the suit land to the plaintiff. Then on
16.05.2008, the plaintiff tendered him the balance amount and
requested him to accept the amount and to come to the Sub-
Registrar Office, Hojai, where the plaintiff has already
arranged for preparation of the sale deed and to execute and
register the same. But, the plaintiff did not come showing his
ill health. Finally, the plaintiff send demand notice to the
defendant on 26.11.2009 stating about the aforesaidRSA 209/2017 Page 4 of 50
registered agreement of sale, but the defendant made a reply
by making a false statement that the defendant has been
suffering from complicated diseases for last 12 years and he
cannot recollect from his memory about execution of the
registered agreement dated 26.04.2007, and asked the
plaintiff to send a copy of the agreement, in spite of the copy
of the agreement already sent to him, along with the pleader‟s
notice. Then the plaintiff instituted the suit for a decree of
specific performance of contract directing the defendant to
accept the balance consideration amount of Rs.1,29,000/-
(Rupees one lakh twenty nine thousand) and to execute the
necessary sale deed in favour of the plaintiff with respect to
the suit land and to deliver possession.
The defendant had contested the suit by filing written
statement. His stand is that there is no cause of action; the
suit is not maintainable; the suit is barred by law of limitation;
the so-called deed of agreement of sale is manufactured one;
there is no material of part performance in the suit; the suit is
bad for waiver, estoppel and acquiescence; bad for non-
joinder of necessary parties, the suit is not properly valued
and stamped and it is also stated that the plaintiff and the
defendant are neighbours and that the plaintiff is a school
teacher, rich and influential person and the defendant for his
ailment took a sum of Rs.90,000/- (Rupees ninety thousand)
as loan from the plaintiff with interest @ 5% and paid a sum
of Rs.64,000/- (Rupees sixty four thousand) as interest. At theRSA 209/2017 Page 5 of 50
time of taking the loan, the plaintiff took signature of the
defendant on some unwritten papers and she made the so-
called deed of agreement for sell, on those papers. The
defendant never desired to sell the land to the plaintiff. The
suit land is the only residential property of the defendant,
wherein he lived with his ailing daughter and other family
members and he also claimed that the deed of agreement is
not agreement to sell the land rather it is a bond with surety
to make the loan amount to repay and it is time barred. The
defendant within one month of receipt of the money on loan,
tendered the plaintiff the loan amount, but she on different
pretext refused to accept the money and ultimately came up
with the present suit and that the agreement of sale is not
enforceable in law being not in accordance with law, and
therefore, it is contended to dismiss the suit.
In the column of the actual state of affair, the
defendant stated as under:-
“The plaintiff and he are neighbors. The plaintiff is a
School Teacher, rich & influential person.
For his ailment, he took Rs.90,000/- as a loan from the
plaintiff with interest at the rate of 5.00 and paid Rs.64,000.00
as interest. At the time of taking loan, the plaintiff took his
signatures on some un-written papers and she made the ‘So-
called’ deed of agreement of sale on those papers. He never
desired to sale his land to the plaintiff. The suit land is his onlyRSA 209/2017 Page 6 of 50
residential property where he lives with his ailing daughter &
other members of the family.
The so-called deed of agreement is not agreement to sale
the land. It is a bond with surety to make the loan amount re-
pay. It is time barred.”
Upon the aforementioned pleadings of the parties, the
learned Trial Court had framed following issues:-
1. Whether there is cause of action for the suit?
2. Whether the suit is maintainable in its present form?
3. Whether the plaintiff is always ready and willing to
perform his part of contract?
4. Whether the plaintiff is entitled to get the decree of
specific performance of contract on the basis of
agreement with the defendant?
5. Whether the plaintiff is entitled to the decree as prayed
for?
6. To what other relief/reliefs the plaintiff is entitled to?
Thereafter, the learned Trial Court has examined the
plaintiff as PW-1, who had exhibited 4 nos. of documents and
also examined 4 witnesses of the defendant, who had
exhibited one certified copy of Jamabandi, as Exhibit-Ka, and
thereafter, hearing arguments of both the parties, decreed the
suit directing the defendant to accept the balance
consideration of Rs.1,29,000/- (Rupees one lakh twenty nine
thousand) and to execute the sale deed in favour of the
RSA 209/2017 Page 7 of 50
plaintiff with respect to the suit land mentioned in Schedule-„A‟
of the plaint, within 4 months from the said date, and to
deliver possession and in the event of failure of the defendant
to execute and register the sale deed, the plaintiff is directed
to deposit the balance consideration in the Court and the sale
deed will be executed and registered by the Court and
possession will be delivered to the plaintiff by evicting the
defendant therefrom.
Being aggrieved by the said judgment and decree, the
defendant had preferred the Title Appeal No.6/2015 before
the Court of learned Additional District Judge No.3, Nagaon.
Thereafter, the learned First Appellate Court, after hearing
learned counsel for both the parties, vide impugned judgment
and decree, dated 23.12.2015, has dismissed the appeal and
affirmed the judgment and decree passed by the learned Trial
Court.”
5. Being aggrieved, the defendant preferred the present appeal
under Section 100 of the CPC, which was admitted by this Court for
hearing on the following substantial question of law:-
(i) Whether the Court below was correct in
applying the discretion for decreeing the suit
for specific performance of contract on the
face of stipulations made in Exhibit-1, the
alleged agreement for sale?
RSA 209/2017 Page 8 of 50
5.1. Subsequently, during the course of hearing following two
additional substantial questions of laws also formulated, marking the
same as additional substantial question of law, No.(i) and (ii), after
notifying both the parties:-
(i) Whether the impugned judgments and decrees
passed by the learned courts below, suffers
from perversity for non consideration of the
point of limitation, while deciding the Title
Suit No.57/2010 and Title Appeal No. 06/2015,
while such a plea was taken by the appellant
in the written statement.
(ii) Whether the finding recorded by the learned
first appellate Court in respect of Issue No.
3, which relates to readiness and willingness
on the part of the plaintiff to perform her
part of the contract, suffers from perversity
for failing to take note of the evidence of
P.W.1 (plaintiff) that after 16.05.2008, she
approached defendant only on 24.04.2009, after
elapse of one year.
6. Mr. Bhagawati, learned counsel for the appellants, submits
that in spite of the plea taken by the defendant that the suit is
barred by the law of limitation, none of the Courts below had
framed any issue, or point for determination on the point of
limitation. Mr. Bhagawati has pointed out that the agreement was
entered into by the parties on 26.04.2007, and as per the said
agreement, the amount was supposed to be returned on
RSA 209/2017 Page 9 of 50
15.10.2007, and from the pleader‟s notice, dated
26.11.2009(Exhibit-2) issued by the plaintiff it is apparent that from
the 1st day of Kartik, 1414 of Bengali Era, which, as per Gregorian
Calendar, was 19.10.2007, the cause of action arose on 20.10.2007.
And as such the suit ought to have been filed within 21.10.2010.
But, but the suit was filed on 08.11.2010. And in the meantime, the
period of limitation is over by 18 days in view of Article 54 of the
Limitation Act.
6.1. Mr. Bhagawati also submits that as per stipulation in the
agreement for sale, it is stated that in the event of failing to pay the
amount on 14.10.2007, the defendant has to accept the remaining
sale consideration and to execute the sale deed. And in fact it was
not an agreement for sale of land, but it was a bond executed to re-
pay the loan and such it was a surety, but this aspect was not at all
considered by both the Courts below. In support of the said
submission Mr. Bhagawati has referred to a decision of Hon‟ble
Supreme Court in Muddam Raju Yadav vs. B. Raja Shanker
(D) Through Lrs. & ors. Civil Appeal No. 3255 of 2026 (arising
out of S.L.P. (Civil) No. 6453 of 2024).
6.2. Further submission of Mr. Bhagawati is that, from the conduct
of the plaintiff, the readiness and willingness could not have been
found by the learned Courts below in her favour. He also pointed it
out that there is no mention about the source of income, the
capacity to pay in her plaint and also in her evidence, which are
RSA 209/2017 Page 10 of 50
essential conditions for granting specific performance. In support of
his submission, Mr. Bhagawati has referred to a decision of Hon‟ble
Supreme Court in the case of Hemanta Mondal and others v.
Ganesh Chandra Naskar, reported in (2016) 1 SCC 567.
6.3. Lastly, Mr. Bhagawati submits that the suit land is the only
plot of land of the defendant and if specific performance is granted
in respect of the alleged agreement concerning the suit land, then
the defendant and his family would suffer serious hardship, as he
has no land to live-in, and on equitable consideration and in view of
the Specific Relief (Amendment) Act, 2018, the
defendant/appellants herein, may be allowed to avail the alternative
remedy.
6.4. Mr. Bhagawati has also referred the following decisions in
support of his submission:-
(i) Usha Devi & Ors. vs. Ram Kumar Singh & Ors.,
reported in 2024 0 Supreme(SC) 657;
(ii) Nikhila Divyang Mehta & Anr. vs. Hitesh P. Sanghvi
& Ors., reported in 2025 4 Supreme 313;
(iii) Madhukar Nivrutti Jagtap & Ors. vs. Smt.
Pramilabai Chandulal Parandekar (Dead) Through
Legal Representatives & Ors., reported in (2020) 15
SCC 731; and
(iv) M/s Siddamsetty Infra Projects Pvt. Ltd. vs. Katta
Sujatha Reddy & Ors., reported in (2024) 20 SCC 140.
RSA 209/2017 Page 11 of 50
7. Per contra, Mr. Dey, learned counsel for the
plaintiff/respondent vehemently submits that there is no merit in
this appeal and the learned Courts below have rightly applied their
discretion while granting specific performance. Mr. Dey further
submits that there is concurrent finding of fact by both the learned
Courts below and that the dates given by the appellant are incorrect
and 30th Poush, as per Bangla Calendar, is 15th of January, 2008.
7.1. His further submission is that the suit was filed within the
period of limitation of three years, from the date fixed for execution
of sale deed. In support of his submission he has referred following
decisions:-
(i) Madina Begum and another vs. Shiv Murti Prasad
Pandey and others, reported in (2016) 15 SCC 322,
Para 15, 17, 19 & 20: “
(ii) Rathnavathi & Another v. Kavita Ganashamdas,
reported in (2015) 5 SCC 223, Paras – 41, 42 and 43.
(iii) Usha Devi & Ors. Vs. Ram Kr. Singh and others,
reported in 2024 0 Supreme (SC) 657 – Paras 8, 9.
7.2. It is also the submission of Mr. Dey that in respect of
continuous readiness and willingness on the part of the plaintiff, she
was always ready and willing to perform her part of the contract
and this is a finding of fact and after considering the evidence on
RSA 209/2017 Page 12 of 50
record both the learned Court below had arrived at a concurrent
finding of fact and sitting in second appeal this Court cannot re-
appreciate the same and arrive at a different finding. In support of
his submission Mr. Dey has referred following decisions:-
(i) Thiagarajan & Ors. vs. Sri Venugopalaswamy B.
Koil & Ors. reported in (2004) 5 SCC 762;
(ii) Harjeet Singh and Another – vs. Amrik Singh
and another – reported in (2005) 12 SCC 270.
(iii) A. Shahul Hameed vs. N. Malligarjuna and Ors.
reported in 2026 INSC 573
7.3. Mr. Dey further submits that the substantial questions of law,
as framed in this appeal are not involved and that impugned
judgment and decree suffers from no infirmity or illegality requiring
any interference of this Court. He also submits that no alternative
plea was made in the plaint and as such the relief as sought for
cannot be granted. And therefore he has contended to dismiss the
appeal.
7.4. In support of his submission, Mr. Dey has referred the
following decisions:-
(i) Abdul Ghani Memorial Trust vs. Bihar State Sunni
Wakf Board and another, reported in 1987 Supp (1) SCC
577;
RSA 209/2017 Page 13 of 50
(ii) Bijay Kumar Banerjee vs. Smt. Malati Banerjee,
reported in AIR 2007 Ori 155;
(iii) Shanti Devi (Smt.) (since dead) represented by LRs
and others vs. Ram Narain (since dead) represented
by LRs and others, reported in AIR 2004 Raj 232;
(iv) Hemanta Mondal (supra); and
(v) Kamal Kumar v. Premlata Joshi and others, reported in
(2019) 3 SCC 704;
8. Having heard the submission of learned counsel for both the
parties, this Court has carefully gone through the memo of appeal
and the grounds mentioned therein and also perused the impugned
judgment and decree passed by the learned Courts below and also
gone through the decisions referred by learned counsel for both the
parties.
9. In order to address this substantial question of law with
greater precision, this Court deems it necessary to extract the copy
of the Deed No.2095/2007 (Exhibit-1):-
“First Party- Smti. Madhabi Mazumdar, W/O Sri
Hari Mazumdar, Religion-Hindu, Occupation- House
wife, R/O Village-Lanka Town, Ward No-6 Mouza and
P.S- Lanka under Hojai Sub Registrar, District-
Nagaon, Assam.
Second Party- Sri Pankaj Chandra Das, S/O
Late Bhabaranjan Das, Religion-Hindu, Occupation
Household, R/O Village-Lanka, Ward No-6, Mouza andRSA 209/2017 Page 14 of 50
P.S- Lanka, under Hojai Sub Registrar, District-
Nagaon, Assam.
Whereas I am the owner and possessor of the
Schedule below land measuring 1 Katha 8 Lechas and
whereas I am in need of money and I expressed my
desire to execute a conditional sale to the first
party and the first party agreed to the proposal
of the second party, fixing the value of the land
at Rs.2,24,000 (Two Lakhs Twenty Four Thousands
only) and by this agreement the second party
received an advance amount of Rs.95,000/-(Rupees
Ninety Five Thousand only) and in the event the
second party return the advance amount within 30th
day of Ashin the first party shall be bound to
accept the advance money without any objection and
in the event of failure of the second party to
return back the advance money within the above
30th day of Ashin the second party will have to
execute the sale deed in favour of the first party
on payment of the balanced amount of Rs.1,29,000/-
by the First party without any objection within
30th day of Posh of the current Bangla era and the
Second Party will execute the Sale Deed in the
Office of the Sub Registrar Hojai and he would be
bound by that. If the Second party refuses to take
money on this or that plea or and if the First
party refuses to take the advance amount offered
within time on this or that plea then the First
party or second party would be free from the
liability of the other party by depositing the
money in the Court. If second party makes hurdle
by not accepting the balance money after the
expiry of time then the second party would be
liable to pay the entire compensation to the First
party in the event of taking recourse of law for
RSA 209/2017 Page 15 of 50
getting the land. It is agreed that both parties
will have no objection and none of our heirs would
raise any objection, and in the event of any
objection and demand raised by heirs that would be
invalid and would be rejected.
It is therefore on receipt of the advance
money from First party by the Second party, this
Sale Agreement is executed by putting signature
today on 26/04/2007 voluntarily with my knowledge
and sound mind.
SCHEDULE
Land measuring 1 Katha 8 Lessa under Dag No-1540
of Periodic Patta No-724 situated within Lanka
Town under Sub Registerar Office of Hojai under
P.S and Mouza Lanka District Nagaon (Assam).
Bounded By-
North- Sri Saheb and Saurav Majumder
South-Govt. Road
East-Smati Madhabi Mazumder
West-Sri Hari Mazumder
It is mentioned here that if the measurement
of the schedule land under possession is less or
more the amount of consideration will be adjusted.
Sd./- Madhabi Mazumder
Sd./- Pankaj Chandra Das
Read over to both the
parties
Sd/-Md. Samsur Rahman
Village-Lanka ward
Witnesses
1. Sd/- Smti Putul Das
Vill-Lanka Town
2. Sd/- Anil Ch. Ghosh
Vill-Lanka Town, Ward No-1
RSA 209/2017 Page 16 of 50
3. Sd/- Sri Fudiram Talukdar
Vill-Lanka Town
4. Sd/- Sri Tikendra Saha
Vill-Lanka Town”
10. Thus, a careful perusal of the aforesaid deed, it appears that
following dates are essential:-
1. Date of agreement : 26.04.2007
2. Date of return of the amount : 30th day of Ashin.
3. Date of execution of Sale deed: 30th day of Poush of
the current Bangla
era.
11. Further, it appears from the record that when the defendant
had failed to execute the sale deed by accepting the balance sale
consideration the plaintiff had issued one legal notice to the
defendant on 26.11.2009. It also appears that the learned Trial
Court had held that in his cross-examination, the defendant had
admitted that he took money from the plaintiff and he admitted his
signature over the Exhibit-1, the deed of agreement and though he
had taken a plea that he had returned a sum of Rs.64,000/-
(Rupees sixty four thousand), yet, no document was produced and
thereafter, the learned Trial Court had held that the defendant had
failed to accept the balance sale consideration and to execute the
sale deed.
12. And while discussing Section 16(c) of the Specific Relief Act,
the learned Trial Court has held that the Section requires that
RSA 209/2017 Page 17 of 50
specific performance of a contract cannot be enforced in favour of a
person, 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.
12.1. The learned Trial Court had also held that from the evidence
of the plaintiff it is well established that she is ready and willing to
perform her part of contract and thereafter, it had held that the
plaintiff is entitled to get a decree for specific performance of
contract. Then the learned Trial Court has decided the Issue Nos.3
and 4 in favour of the plaintiff.
13. Further, from the learned First Appellate Court had held that –
Section 16(c) of the Specific Relief Act requires that specific
performance of contract cannot be enforced in favour of a person
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 the
performance of which has been prevented or waived by the
defendant.
13.1. Thereafter, it has held that the legal notice, Ext. 2, issued by
the plaintiff to the defendant through her Advocate establish that
the plaintiff was ready and willing to perform her part to pay the
RSA 209/2017 Page 18 of 50
balance amount as per agreement of the contract. It had also been
held that the evidence shows that she is ready to perform her part
of the contract, rather the defendant/appellant is not willing or by
this, or that pretext tried to escape to perform his part of the
contract. As such considering the above discussions it appears that
the plaintiff/respondent is entitled to get the decree of Specific
performance of contract as per agreement with the
defendant/plaintiff. Then it had held that the learned Trial Court had
committed no error in deciding the said two issues in favour of the
plaintiff/respondent and thereafter, it had decided both the issues in
favour of the plaintiff.
14. But, what eschewed consideration of both the learned courts
below is that in the written statement, the defendant had taken a
categorical plea that for his ailment, he took Rs.90,000/- as a loan
from the plaintiff with interest at the rate of 5.00 and paid
Rs.64,000.00 as interest. At the time of taking loan, the plaintiff
took his signatures on some un-written papers and she made the
‘So-called’ deed of agreement of sale on those papers. He never
desired to sale his land to the plaintiff. The suit land is his only
residential property where he lives with her ailing daughter & other
member of the family. The so-called deed of agreement is not
agreement to sale the land. It is a bond with surety to make the
loan amount re-pay.
RSA 209/2017 Page 19 of 50
14.1. Such a contention was also made in the alleged Agreement
for Sale, dated 26.04.2007 as under:-
“…….. by this agreement the second party
received an advance amount of Rs.95,000/-
(Rupees Ninety Five Thousand only) and in the
event the second party return the advance
amount within 30th day of Ashin the first party
shall be bound to accept the advance money
without any objection and in the event of
failure of the second party to return back the
advance money within the above 30th day of
Ashin the second party will have to execute the
sale deed in favour of the first party on
payment of the balanced amount of Rs.1,29,000/-
by the First party without any objection within
30th day of Posh of the current Bangla era and
the Second Party will execute the Sale Deed in
the Office of the Sub Registrar Hojai and he
would be bound by that…….”
14.2. In his evidence also the defendant had testified the same
and the witnesses examined by him also corroborated his version to
some extent. Mr. Bhagawati, the learned counsel for the defendant
also rightly pointed this out at the time of hearing and the decision
referred by him in Muddam Raju Yadav(supra) also strengthened
his submission.
14.3. Notably, in the case of Muddam Raju Yadav(supra)
Hon‟ble Supreme Court had held as under:-
RSA 209/2017 Page 20 of 50
“10. It is the case of the defendant(s) from
the very beginning that the sale agreement was
executed by way of security for a loan of
Rs.6,00,000/- (Rupees Six Lakh) advanced by the
plaintiff to the defendant(s) and the same was
clearly reflected as recited in the MoU
(Exhibit B-2). It is to be seen that said MoU
was on a non-judicial stamp paper bearing
document no.47663 and the no objection letter
(Exhibit A-2) executed by the sons of the
defendant was on Rs.100/- non-judicial stamp
paper bearing document no.47662. Both the
documents were dated 4.6.2002 and purchased
from the same stamp vendor. The witnesses to
both the documents were also one and the same.
All these would probablise the defence of the
defendant(s) that the agreement of sale was not
a genuine transaction but was executed as a
security for a loan transaction.”
14.4. In the case in hand also from the stipulation in the alleged
Agreement for Sale to the effect that in the event the second party
returns the advance amount within the 30th day of Ashin, the first
party shall be bound to accept the advance money without any
objection, goes to show that the same was executed as a security
for a loan transaction. Had the amount taken by the defendant been
paid, the matter would have ended then and there on the 30th day
of Ashin.
14.5. Further, the clause in the alleged agreement for sale, worded
as “the defendant shall execute sale deed on default after accepting
RSA 209/2017 Page 21 of 50
the balance amount”, has to be treated as a conditional security or
forfeiture type mechanism, not as a full -fledged agreement for sale
by itself. Therefore, a mere bond with such a clause,
cannot ordinarily be read as an enforceable agreement
for sale entitling the plaintiff to specific
performance of the sale. If the overall document is a
loan bond and the clause only says that the defendant
“shall execute sale deed on default” after receiving
the balance, it has to be seen as a mode of realizing
security, like a mortgage-cum-sale by default, rather
than a free, independent sale contract.
14.6. For specific performance, there should have been a
separate, independent agreement to sell or a clear sale framework
with mutual intention to transfer ownership, not just a one sided
default triggered sale, as because it lacks the features of a normal
sale agreement such as clarity of terms, mutual commercial intent,
and opportunity for the defendant to negotiate. It is however a fact
that alongside the bond, when there is a registered agreement to
sell, deposit of substantial consideration, and conduct showing the
parties such as handing over of possession, and part payment
shown as sale price, etc., the court may interfere to protect the
plaintiff‟s equitable interest, though still often by refusing strict
specific performance of the default sale clause and instead
decreeing money or other relief.
RSA 209/2017 Page 22 of 50
14.7. Thus, for being an enforceable agreement to sell, it is
generally expected that there should be clear intention to sell the
property, identifiable price treated as sale consideration, and usually
a separate or registered sale framework or, at least, conduct clearly
showing a sale intention, not just recovery by transfer.
14.8. In the instant case, there is no clear intention of the
defendant to sell and the same is apparent from the written
statement and also from the evidence adduced by him and also
from the submission of his learned counsel. Besides, the possession
of the land is also not handed over to the plaintiff. Further, it
appears from the submission of the learned counsel for the
defendant that the said plot of land is the only plot of land of the
petitioner and in the event of granting specific performance it would
cause much hard ship to the defendant as he has no place to live in.
Additional Substantial question of law No.(i)
15. It is the contention of Mr. Bhagawati, learned counsel for the
appellant that the suit was barred by the law of limitation, as it was
filed beyond the period of limitation of 18 days, and that this aspect
was overlooked by both the learned Courts below.
15.1. The counter submission of Mr. Dey, learned counsel for the
respondent is that the suit was filed within the period of limitation of
three years, from the date fixed for execution of sale deed.
RSA 209/2017 Page 23 of 50
15.2. It appears that the agreement for sale indicates that the sale
deed was supposed to be executed by the defendant on accepting
the balance amount of sale consideration, i.e. 1,29,000 (Rupees one
lac twenty nine thousand) on 30th Posh of 1414 Bengali era. And as
per the learned counsel for the plaintiff 30th Poush is 15th January
2008. The suit was filed on 18.11.2010.
15.3. It is to be noted here that Article 54 of the Limitation Act has
two parts. The first part deals with situations where the contract
fixes a date for performance. The period of limitation of three years
runs from the date fixed for completion of performance. The second
part deals with situations where the contract does not fix a date for
the performance of the contract. In such situations, the period of
limitation runs from the date, when the plaintiff has notice that the
defendant has refused performance.
15.4. In the case of Madina Begum(supra) Hon‟ble Supreme
Court has held as under:-
“Mere reading of Article 54 of limitation Act,
would show that if the date is fixed for the
performance of an agreement, then non-
compliance with the agreement on the date would
give a cause of action to file a suit for
specific performance within 3 years from the
date so fixed. But, when no such date is fixed,
the limitation of 3 years would begin when theRSA 209/2017 Page 24 of 50
plaintiff has notice that the defendant has
refused the performance of the agreement”.
15.5. In the case of Usha Devi & Ors. (supra), so referred in
this case, Hon‟ble Supreme Court has held that once there is specific
date fixed for performance of contract, the limitation period would
be three years from the said date.
15.6. Again in the case of Rathnavathi vs. Kavita
Ganashamdas, reported in (2015) 5 SCC 223, Hon‟ble
Supreme Court has held as under:-
“42. A mere reading of Article 54 of the
Limitation Act would show that if the date is
fixed for performance of the agreement, then
non-compliance with the agreement on the date
would give a cause of action to file suit for
specific performance within three years from
the date so fixed. However, when no such date
is fixed, limitation of three years to file a
suit for specific performance would begin when
the plaintiff has noticed that the defendant
has refused the performance of the agreement.”
15.7. In the instant case, date of execution of sale deed is
mentioned in the agreement itself. And as such the period has to
be counted from that date mentioned in the agreement as 30th Posh
of 1414 Bengali era. And as per the learned counsel for the plaintiff
30th Poush is 15th January 2008. Further it appears that the suit was
filed on 18.11.2010. And while the period is counted from 15th
RSA 209/2017 Page 25 of 50
January, 2008, till filing of the suit on 18.11.2010, the suit appears
to be filed within the period of limitation.
15.8. In that view of the matter the Additional Substantial
Question of Law No.(ii) is found to be not flows out of the impugned
judgment and decree. And accordingly, the same stands answered
in negative.
Additional Substantial Question of Law No.(ii)
16. This question relates to readiness and wiliness on the parties
to perform their part of contract. In this regard relevant provision is
Section 16(c) of the Specific Relief Act. The provision read as
under:-
Section 16(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, theRSA 209/2017 Page 26 of 50
contract according to its true
construction.
16.1. In the case of R. Kandasamy (since dead) and others
v. T.R.K. Sarawathy and another, reported in (2025) 3 SCC
513, while dealing with the consideration in grant or refusal of
specific performance Hon‟ble Supreme Court has held as under:-
“15. A three-Judge Bench of this Court
in Prakash Chandra v. Angadlal (1979) 4 SCC
393] held, the ordinary rule is that specific
performance should be granted. It ought to be
denied only when equitable considerations point
to its refusal and the circumstances show that
damages would constitute an adequate relief.
16. This Court in N.P. Thirugnanam v. R. Jagan
Mohan Rao (1995) 5 SCC 115] while reiterating
that the remedy of specific performance is
equitable in nature and that granting or
refusing specific performance is within the
discretion of the court, had the occasion to
observe : (SCC pp. 117-18, para 5)“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.
RSA 209/2017 Page 27 of 50
Section 16(c) of the Act envisages that the
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 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 wasRSA 209/2017 Page 28 of 50
always ready and willing to perform his part
of the contract.”
(emphasis supplied)
17. In Nirmala Anand v. Advent Corpn. (P)
Ltd. [Nirmala Anand v. Advent Corpn. (P) Ltd.,
(2002) 8 SCC 146] , a Bench of three Judges of
this Court discussed what are the
considerations that need to be kept in view
while considering grant or refusal of a decree
of specific performance in the following words
: (SCC p. 150, para 6)
“6. It is true that grant of decree of
specific performance lies in the
discretion of the court and it is also
well settled that it is not always
necessary to grant specific performance
simply for the reason that it is legal to
do so. It is further well settled that the
court in its discretion can impose any
reasonable condition including payment of
an additional amount by one party to the
other while granting or refusing decree of
specific performance. Whether the
purchaser shall be directed to pay an
additional amount to the seller or
converse would depend upon the facts and
circumstances of a case. Ordinarily, the
plaintiff is not to be denied the relief
of specific performance only on account of
the phenomenal increase of price during
the pendency of litigation. That may be,
in a given case, one of the considerations
RSA 209/2017 Page 29 of 50
besides many others to be taken into
consideration for refusing the decree of
specific performance. As a general rule,
it cannot be held that ordinarily the
plaintiff cannot be allowed to have, for
her alone, the entire benefit of
phenomenal increase of the value of the
property during the pendency of the
litigation. While balancing the equities,
one of the considerations to be kept in
view is as to who is the defaulting party.
It is also to be borne in mind whether a
party is trying to take undue advantage
over the other as also the hardship that
may be caused to the defendant by
directing specific performance. There may
be other circumstances on which parties
may not have any control. The totality of
the circumstances is required to be seen.”
18. In Kamal Kumar v. Premlata Joshi [Kamal
Kumar v. Premlata Joshi, (2019) 3 SCC 704, one
finds the following instructive passage: (SCC
pp. 705-706, paras 7-8).
“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:-
RSA 209/2017 Page 30 of 50
7.1. First, whether there exists a valid
and concluded contract between the parties
for sale/purchase of the suit property.
7.2. Second, whether the plaintiff has
been ready and willing to perform his part
of contract and whether he is still ready
and willing to perform his part as
mentioned in the contract.
7.3. Third, whether the plaintiff has, in
fact, performed his part of the contract
and, if so, how and to what extent and in
what manner he has performed and whether
such performance was in conformity with
the terms of the contract;
7.4. Fourth, whether it will be equitable
to grant the relief of specific
performance to the plaintiff against the
defendant in relation to suit property or
it will cause any kind of hardship to the
defendant and, if so, how and in what
manner and the extent if such relief is
eventually granted to the plaintiff;
7.5. Lastly, whether the plaintiff is
entitled for grant of any other
alternative relief, namely, refund of
earnest money, etc. and, if so, on what
grounds.
8. In our opinion, the aforementioned
questions are part of the statutoryRSA 209/2017 Page 31 of 50
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.”
19. Quite recently, Kamal Kumar [Kamal
Kumar v. Premlata Joshi, (2019) 3 SCC 704, has
been followed in P. Daivasigamani v. S.
Sambandan, (2022) 14 SCC 793].
16.2. Again, while dealing with as to who can be said to be “ready
and willing” Hon‟ble Supreme Court in the said case held as under:-
20. In C.S. Venkatesh v. A.S.C. Murthy (2020)
3 SCC 280, this Court on consideration of
various decisions culled out what is implied by
the words “ready and willing”. It was held:
(SCC p. 286, para 16)
“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 andRSA 209/2017 Page 32 of 50
willingness on the part of the plaintiff
is a condition precedent to grant the
relief of performance. If the plaintiff
fails to either aver or prove the same, he
must fail. To adjudge whether the
plaintiff is ready and willing to perform
his part of contract, the court must take
into consideration the conduct of the
plaintiff prior, and subsequent to the
filing of the suit along with other
attending 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.”
21. Requisite pleadings and proof that are
required of a plaintiff to succeed in a suit
for specific performance are succinctly
captured in this Court’s decision of recent
origin in U. N. Krishnamurthy vs. A.M.
Krishnamurthy, (2023) 11 SCC 775. The relevant
passage reads : (SCC p. 783, para 24)
“24. To aver and prove readiness and
willingness to perform an obligation to
pay money, in terms of a contract, the
plaintiff would have to make specific
RSA 209/2017 Page 33 of 50
statements in the plaint and adduce
evidence to show availability of funds to
make payment in terms of the contract in
time. In other words, the plaintiff would
have to plead that the plaintiff had
sufficient funds or was in a position to
raise funds in time to discharge his
obligation under the contract. If the
plaintiff does not have sufficient funds
with him to discharge his obligations in
terms of a contract, which requires
payment of money, the plaintiff would have
to specifically plead how the funds would
be available to him. To cite an example,
the plaintiff may aver and prove, by
adducing evidence, an arrangement with a
financier for disbursement of adequate
funds for timely compliance with the terms
and conditions of a contract involving
payment of money.”
16.3. Again in the case of Muddam Raju Yadav(supra) in para
No.12 of the said decision Hon‟ble Supreme Court has also held as
under:-
“12. In a suit for specific performance, the
conduct of the parties is significant as it
assists the Court in evaluating the evidence to
find out the bona fides of the parties at the
time of execution of the agreement. Even a
slight doubt in the mind of the Court that the
plaintiff was not acting bona-fidely and that
the material facts, having bearing on the
agreement, have been withheld in the agreementRSA 209/2017 Page 34 of 50
itself and from the Court also, the equitable
and discretionary relief has to be denied.”
16.4. Again in the case of Madhukar Nivrutti Jagtap (supra)
Hon‟ble Supreme Court held as under:-
“13.2. The question as to whether the plaintiff
seeking specific performance has been ready and
willing to perform his part of the contract is
required to be examined with reference to all
the facts and the surrounding factors of the
given case. The requirement is not that the
plaintiff should continuously approach the
defendant with payment or make incessant
requests for performance. For the relief of
specific performance, which is essentially a
species of equity but has got statutory
recognition in terms of the Specific Relief
Act, 1963 [ Its forerunner being the Specific
Relief Act, 1877.], the plaintiff must be found
standing with the contract and the plaintiff’s
conduct should not be carrying any such
blameworthiness so as to be considered
inequitable. The requirement of readiness and
willingness of the plaintiff is not theoretical
in nature but is essentially a question of
fact, which needs to be determined with
reference to the pleadings and evidence of
parties as also to all the material
circumstances having bearing on the conduct of
parties, the plaintiff in particular. In view
of the contentions urged, we have scanned
through the record to examine if the finding of
the High Court in this regard calls for any
interference.”
RSA 209/2017 Page 35 of 50
16.5. It is to be noted here that in the case of Kamal
Kumar(supra), so referred by Mr. Dey, learned counsel for the
plaintiff, Hon‟ble Supreme Court has held that the issue of readiness
and willingness, in its view, is the most important issue for
considering the grant of specific performance of the contract and
the same being held by the two courts below up on the appreciation
of evidence, against the plaintiff, it is binding upon this Court. It
being essentially a question of fact, this Court is not inclined to
again appreciate the entire evidence, when the appellant has failed
to point out any material perversity or/and illegality in the finding so
as to call for interference.
16.6. What can be crystallized from the aforesaid discussion is
that the continuous readiness and willingness on the part of the
plaintiff is a condition precedent to grant the relief of specific
performance. 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. When
the plaintiff fails to either aver or prove the same, his case must fail.
Further, to adjudge whether the plaintiff is ready and willing to
perform his part of contract, the court must take into consideration
RSA 209/2017 Page 36 of 50
the conduct of the plaintiff prior, and subsequent to the filing of the
suit along with other attending circumstances.
17. In the instant case, from the pleadings and also from the
evidence adduced by the plaintiff, it appears that when the
defendant failed to repay the amount on 30th day of Posh of 1414
Bengali Era, the plaintiff first tendered the balance amount to the
defendant on 30.12.2007, with a request to execute the sale deed.
Then on the request of the defendant, she awaited for six months.
Thereafter, she had approached the defendant on 16.05.2008, but
this time the defendant stated that he was suffering from an ailment
and he would go outside for treatment and on returning home he
would execute the sale deed.
17.1. Then after one year, on 24.04.2009, she again approached
the defendant. But, this time also, the defendant delayed the matter
on this or that pretext. She then sent a pleader‟s Notice to the
defendant along with copy of agreement. The defendant had also
sent the reply. But the same failed to bear any fruit. And that she
has always and still been ready to perform her part of contract.
17.2. Thus, it becomes apparent that having approached the
defendant on 16.05.2008, on which the defendant stated that he
was suffering from ailment and he would go outside for treatment
and on returning home he would execute the sale deed, then after
one year, on 24.04.2009, she again approached the defendant.
RSA 209/2017 Page 37 of 50
Thus, it becomes clear that from 16.05.2008 till 24.04.2009, the
plaintiff remained silent.
17.3. But, it is no body‟s case that the defendant had returned
home from treatment at outside only after one year. Why she had
to wait for one year, is not at all averred in the plaint and also
deposed in her evidence. This is a material fact, which goes a long
way to demonstrate that the plaintiff was not ever ready and willing
to perform her part of contract, which is the condition precedent for
grant of specific performance of contract, as held by Hon‟ble
Supreme Court in the case of N.P. Thirugnanam(supra), Kamal
Kumar(supra), C.S. Venkatesh (supra) and in U. N.
Krishnamurthy (supra).
17.4. It is, however, well settled in the case of Madhukar
Nivrutti Jagtap (supra) that the requirement is not that the
plaintiff should continuously approach the defendant with payment
or make incessant requests for performance. But, herein this case
gap period is of one year, which is not a short period so as to
readily ignore the same.
17.5. This unexplained period also caste a doubt in the mind of
this court about the plaintiff acting bona-fides, in performing her
part of the contract, as held by Hon‟ble Supreme Court in the case
of Muddam Raju Yadav(supra) that even a slight doubt in the
RSA 209/2017 Page 38 of 50
mind of the Court that the plaintiff was not acting bona fidely, the
equitable and discretionary relief has to be denied.
17.6. Thus, conduct of the plaintiff, in respect of continuous
readiness and willingness does not inspire confidence. This is a
condition precedent to grant the relief of specific performance and
this is a material and relevant fact and if the plaintiff fails to either
aver or prove the same, he must fail. This is one aspect of
the matter.
17.7. The other aspect is that – the record reveals that the
plaintiff, nowhere in the plaint had mentioned and also lead no
evidence to demonstrate the source of her income, the capacity to
pay, which are essential conditions for granting specific
performance, as held by Hon‟ble Supreme Court in the case of N.P.
Thirugnanam (supra), wherein Hon‟ble Supreme Court held that
the amount of consideration which he has to pay to the defendant
must of necessity be proved to be available. Same proposition is
echoed in the case of C.S. Venkatesh (supra) and
U.N.Krishnamurthy (supra). In the later case, it has been also
been held that – in other words, the plaintiff would have
to plead that the plaintiff had sufficient funds or was
in a position to raise funds in time to discharge his
obligation under the contract. Thus, the factum of
absence of pleading and proof regarding availability of
sufficient funds further raise doubt in the mind of the
RSA 209/2017 Page 39 of 50
Court that the plaintiff was not acting bona fidely.
And on this count also the equitable and discretionary relief has to
be denied.
17.8. Thus, applying the proposition of law, as discussed herein
above, to the given facts and circumstances of the case in hand, this
Court is unable to derive satisfaction that the plaintiff was always
ready and willing to perform her part of contract with the fund
available with her to perform her part of contract. And as held by
Hon‟ble Supreme Court in the case of N.P. Thirugnanam (supra)
C.S. Venkatesh (supra) and U.N.Krishnamurthy (supra).
Muddam Raju Yadav(supra) the case of the plaintiff must fail due
to absence of continuous readiness and willingness on her part of
contract with requisite fund.
17.9. Mr. Bhagawati, learned counsel for the defendant has rightly
pointed this out during arguments and this Court finds substance in
the same and accordingly record concurrence to his submission.
17.10. As submitted by Mr. Dey, learned counsel for the
respondent, it is true that there is a concurrent finding of fact in
respect of readiness and willingness on the part of the plaintiff. This
Court is not oblivious to the fact that in an appeal under Section 100
CPC, this Court is not entitled to re-appreciate the evidence when
concurrent finding of fact by both the learned Courts below. The
decisions referred by him also strengthened his submission.
RSA 209/2017 Page 40 of 50
17.11. But, it is well settled that concurrent findings are not
sacrosanct if they suffer from such defects. Reference in this context
can be made to a decision of Hon‟ble Supreme Court in the case of
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and
others, reported in (1999) 3 SCC 722, wherein dealing with
the scope of second appeals, Hon‟ble Supreme Court held that the
High Court can interfere under Section 100 CPC if the findings of
fact are perverse or recorded without evidence or by ignoring
material evidence.
17.12. In the case of KN Nagarajappa & Ors Versus H.
Narsimha Reddy.Civil Appeal No.(s). 5033-5034 of 2009
Hon‟ble Supreme Court has held that -“undoubtedly, the jurisdiction
which a High Court derives under Section 100 is based upon its
framing of a substantial question of law. As a matter of law, it is
axiomatic that the findings of the First Appellate Court are final.
However, the rule that sans a substantial question of law, the High
Courts cannot interfere with findings of the lower Court or
concurrent findings of fact, is subject to two important caveats. The
first is that, if the findings of fact are palpably perverse or outrage
the conscience of the court; in other words, it flies on the face of
logic that given the facts on the record, interference would be
justified. The other is where the findings of fact may call for
examination and be upset, in the limited circumstances spelt out in
Section 103 CPC.”, the Court held.”
RSA 209/2017 Page 41 of 50
17.13. In the said case i.e. KN Nagarajappa(supra) it has also
been held that- “these important aspects appeared to have
been not appreciated – and their import was overlooked.
As a consequence, the first appellate court fell into
error in overlooking important evidence and
appreciating the record in its true perspective and
reversed the decree of the trial court. Moreover, the
High Court, in second appeal proceeded to examine the
documents in light of the evidence led and corrected
the findings as it were under Section 103. If the
appellants’ arguments were to prevail, the findings of
fact based upon an entirely erroneous appreciation of
facts and by overlooking material evidence would
necessarily have to remain and bind the parties,
thereby causing injustice.”
17.14. In the case of Kulwant Kaur and others v. Gurdial
Singh Mann (Dead) by LRs and others, reported in (2001) 4
SCC 262, Hon‟ble Supreme Court has dealt with the limited leeway
available to the High Court in second appeal. To quote para 34:
(SCC pp.278-79)
“34. Admittedly, Section 100 has introduced a
definite restriction on to the exercise of
jurisdiction in a second appeal so far as the
High Court is concerned. Needless to record
that the Code of Civil Procedure (Amendment)RSA 209/2017 Page 42 of 50
Act, 1976 introduced such an embargo for such
definite objectives and since we are not
required to further probe on that score, we are
not detailing out, but the fact remains that
while it is true that in a second appeal a
finding of fact, even if erroneous, will
generally not be disturbed but where it is
found that the findings stand vitiated on wrong
test and on the basis of assumptions and
conjectures and resultantly there is an element
of perversity involved therein, the High Court
in our view will be within its jurisdiction to
deal with the issue. This is, however, only in
the event such a fact is brought to light by
the High Court explicitly and the judgment
should also be categorical as to the issue of
perversity vis-Ã -vis the concept of justice.
Needless to say however, that perversity itself
is a substantial question worth adjudication–
what is required is a categorical finding on
the part of the High Court as to perversity. In
this context reference be had to Section 103 of
the Code which reads as below:
‘103. Power of High Court to determine
issues of fact.- In any second appeal, the
High Court may, if the evidence on the
record is sufficient, determine any issue
necessary for the disposal of the appeal,–
(a) which has not been determined by the
lower r appellate court or by both the
court of first instance and the lower
appellate court, orRSA 209/2017 Page 43 of 50
(b) which has been wrongly determined by such
court or courts by reason of a decision
on such question of law as is referred
to in Section 100.”
The requirements stand specified in Section
103 and nothing short of it will bring it
within the ambit of Section 100 since the issue
of perversity will also come within the ambit
of substantial question of law as noticed
above. The legality of finding of fact cannot
but be termed to be a question of law. We
reiterate however, that there must be a
definite finding to that effect in the judgment
of the High Court so as to make it evident
that Section 100 of the Code stands complied
with.”
17.15. In S.R. Tiwari v. Union of India (2013) 6 SCC
602, after referring to the decisions of this Court, starting
with Rajinder Kumar Kindra v. Delhi Administration,
(1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6,
SCC p. 615)
“30. The findings of fact recorded by a
court can be held to be perverse if the
findings have been arrived at by ignoring or
excluding relevant material or by taking
into consideration irrelevant/inadmissible
material. The finding may also be said to be
perverse if it is “against the weight of
evidence”, or if the finding so outrageously
defies logic as to suffer from the vice of
irrationality. If a decision is arrived at
RSA 209/2017 Page 44 of 50
on the basis of no evidence or thoroughly
unreliable evidence and no reasonable person
would act upon it, the order would be
perverse. But if there is some evidence on
record which is acceptable and which could
be relied upon, the conclusions would not be
treated as perverse and the findings would
not be interfered with.”
17.16. In the instant case, it appears from the judgment of both
the courts below that both Courts below had failed to consider the
material part of evidence of the plaintiff in respect of approaching
the defendants by the plaintiff, especially for more than a year i.e.
from 16.05.2008 till 24.04.2009, while deciding the issue of
continuous readiness and willingness on the part of the plaintiff.
17.17. And failing to consider this material aspect, by both the
courts below while deciding the crucial issue of “readiness and
willingness” in a suit for specific performance to the considered
opinion of this Court amount to perversity and as such
the same qualifies as a substantial question of law
under Section 100 CPC. And this allows this Court to
interfere with the concurrent finding of fact on this
point, under Section 100 CPC (and potentially under
Section 103 CPC for re-appreciation in such cases). In
arriving at such a finding this Court derived authority from a
decision of Hon‟ble Supreme Court in the case of A. Shahul
Hameed (supra) where it has been held as under:-
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(i) Re-appreciation of evidence and interference
with concurrent findings is impermissible
under Section 100 unless the findings are
perverse, based on no evidence, suffer from
material illegality, misreading of evidence,
or ignorance of relevant evidence.
(ii) The High Court must demonstrate such
defects; mere possibility of another view is
insufficient.
(iii) Readiness and willingness under Section
16(c) of the Specific Relief Act is assessed
from the entirety of facts, conduct, and
evidence. Non-consideration of material
aspects can vitiate the decision.
17.18. Under the conspectus of factual and legal matrix, this
Court is of the view that the Additional Substantial question of law
No. (ii) is found to be flows out of the impugned judgment and
decree and accordingly, the same stands answered in affirmative.
Substantial question of law No.(i)
18. Mr. Bhagawati, learned counsel for the defendant/appellant
submits that both the Courts below are not correct in applying
discretion in decreeing the suit for specific performance of contract
and as such the substantial question of law is involved here in and
the same has to be answered accordingly.
18.1. This court has considered the submissions of Mr. Bhagawati
in the light of the facts and circumstances of the record and also in
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the light of the decisions referred by him. And this Court finds
substance in his submissions and the decisions referred by him also
fortified his submission. In the case of Hemanta Mandal (supra),
the crux of the matter lay in whether the court should enforce the
sale agreement or direct the refund of the earnest money paid by
the plaintiff. The Hon‟ble Supreme Court has held that enforcing the
specific performance of the sale contract was not the most equitable
remedy. Evaluating the discretionary power granted to the court
under Section 20 of the Act, it was emphasized that specific
performance is a potent remedy, it is not absolute and must be
exercised judiciously to uphold the ends of justice. It underscores
the judiciary‟s role in ensuring that remedies are equitable and just
preventing potential exploitation of contractual remedies that could
lead to an unfair advantage or undue hardship.
18.2. This Court has also considered the submission of Mr. Dey,
the learned counsel for the plaintiff and also gone through the
decisions referred by him. In the case of Abdul Ghani Memorial
Trust (supra) Hon‟ble Supreme Court has held that the High
Court can receive additional evidence, in the form of a document
and does not require any formal proof and proceed to determine the
matter in accordance with law. And it is not open to the High Court
to set aside the judgment of the lower appellate court and remit the
matter back to the lower appellate court for writing a fresh
judgment. Thus, this case proceeds on its own facts which are
RSA 209/2017 Page 47 of 50
clearly distinguishable for the case in hand and on such count the
said decision would not advance his argument.
18.3. This Court has also gone through the other decisions referred
by him. And this Court afraid the decisions so referred by him would
not advance his argument.
18.4. Thus, from the discussion aforesaid, this Court finds that on
the following counts the learned courts below are not correct in
applying their discretion and in decreeing the suit of the plaintiff:-
(i) The alleged agreement appears to be a security of the
loan obtained by the defendant and as held by Hon‟ble
Supreme Court in the case of Mudam Raju Yadav(supra)
it probablises the stand of the defendant that the
agreement of sale was not a genuine transaction but was
executed as security for a loan transaction. But, this
aspect eschewed consideration of both the learned courts
below.
(ii) The learned courts below failed to take note of the
material piece of evidence of the plaintiff while deciding
the issue of continuous willingness and readiness to
perform her part of the contract under Section 16(C) of
the Specific Relief Act. On such count the finding of both
the courts below are perverse as held in the case ofRSA 209/2017 Page 48 of 50
S.R.Tiwari (supra), that the findings of fact
recorded by a court can be held to be perverse if the
findings have been arrived at by ignoring or excluding
relevant material.
(iii) The learned courts below also failed to take note of the
fact that the plaintiff, neither in her plaint nor in her
evidence, pleaded and demonstrated that source of
income, the capacity to pay, which are, in view of the
decision of Hon‟ble Supreme Court in the case N.P.
Thirugnanam (supra) and C.S. Venkatesh (supra) and
U.N. Krishnamurthy (supra) must of necessity be proved
to be available.
(iv) The learned courts below also failed to take note of the
fact that the grant of specific performance would cause
serious hardship to the defendant as the suit land is the
only piece of land where the defendants are presently
residing. As held in the case of Hemanta Mandal
(supra), specific performance is a potent remedy; it is
not absolute and must be exercised judiciously to uphold
the ends of justice.
18.5. Thus, substantial question of law No. (i) is found to be flows
out of the impugned judgment and decree and the same has to be
answered in negative and accordingly, the same stands answered.
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19. In the result, this Court finds sufficient merit in this appeal and
accordingly, the same stands allowed. The impugned judgment and
decree, so passed by the learned First Appellate Court, stands set
aside. Consequently, the suit of the plaintiff stands dismissed.
However, drawing premises from the decisions of Hon‟ble Supreme
Court in Hemanta Mandal (supra) and also of R. Kandasamy
(supra), also in the given factual matrix this Court is inclined to
hold that it will be equitable, just and proper to direct the appellants
to pay back the amount of Rs 95,000/ (Rupees ninety five
thousand) to the plaintiff, within a period of three months from
today, with interest @ 9% per annum from 30th Ashin 1414 of
Bengali era. Order accordingly.
20. The Registry shall send down the record of the learned Courts
below with a copy of this judgment and order forthwith. The parties
have to bear their own cost.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
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