Delhi High Court
Gourave Gupta vs Laxmi Rohra & Anr on 6 July, 2026
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 08th April, 2026
Pronounced on: 06th July, 2026
+ RFA 729/2018
GOURAVE GUPTA .....Appellant
Through: Mr. Jai Sahai Endlaw and Ms.
Shambhavi Kala, Advs.
Mob: 9818668876
Email: [email protected]
versus
LAXMI ROHRA & ANR. .....Respondents
Through: Mr. Sanjeev Anand, Sr. Adv. with
Ms. Sonam Anand and Mr. Akshay
Thakur, Advs.
Mob: 9711505029
Email:
[email protected]
+ RFA 730/2018
M/S LA MODE FASHIONS PVT. LTD. .....Appellant
Through: Mr. Jai Sahai Endlaw and Ms.
Shambhavi Kala, Advs.
Mob: 9818668876
Email: [email protected]
versus
LAXMI ROHRA & ANR. .....Respondents
Through: Mr. Sanjeev Anand, Sr. Adv. with
Ms. Sonam Anand and Mr. Akshay
Thakur, Advs.
Mob: 9711505029
Email:
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 1 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
[email protected]
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGEMENT
INTRODUCTION:
1. The present are Regular First Appeals (“RFAs”) filed under Section
96(1) read with Order XLI Rule 1 of the Code of Civil Procedure, 1908
(“CPC“), against two judgments and decrees, dated 26th July, 2018
(“impugned judgments”), passed by the Additional District Judge
(“ADJ”)-02 (District Central), Tis Hazari Courts, Delhi (“Trial Court”) in
two suits being CS No. 213/2016 and CS No. 280/2016 (Old Suit Nos. CS
(OS) 634/2006 and CS (OS) 635/2006), titled as Shri Gourave Gupta Versus
Mrs. Laxmi Rohra & Anr. and La Mode Fashions Pvt. Ltd. Versus Mrs.
Laxmi Rohra & Anr.
2. The aforesaid suits were filed by the plaintiffs, i.e., appellants herein
against the common defendants, i.e., respondents herein, inter alia seeking
specific performance and permanent injunction in respect of two inter-
connected properties bearing Municipal No. 6167, Ward No. XII,
constructed on a freehold plot of land bearing No. 8, Block-G, situated at
Northern City Extension Scheme No. I, Jawahar Nagar, Subzi Mandi,
Delhi-110007, comprising:
(i) a shop admeasuring 61.6 sq. yds. approx. on the Ground Floor
(‘suit property in RFA No. 729/2018’); and
(ii) the adjoining/inter-connected shop admeasuring approximately 70
sq. yds. approx. on the Ground Floor, together with a MezzanineSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 2 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
Floor area measuring approximately 100 sq. ft. (‘suit property in
RFA No. 730/2018’) (collectively, “suit properties”).
3. Respondents are common to both the captioned appeals as they are
the joint-owners of the aforenoted suit properties, both being inter-connected
and actually part of one property, i.e., Municipal No. 6167, Ward No. XII,
constructed on a freehold plot of land bearing No. 8, Block-G, situated at
Northern City Extension Scheme No. I, Jawahar Nagar, Subzi Mandi,
Delhi-110007.
4. Further, the appellant in RFA No. 730/2018, i.e., La Mode Fashions
Pvt. Ltd. is a private limited company, and is represented through its
Director, Shri A.K. Gupta, father of Gourave Gupta, i.e., the appellant in
RFA No. 729/2018.
5. As per the facts on record, two separate Agreements to Sell dated 18th
August, 2005 were entered into with respect to the suit properties, one in the
name of Shri. Gourave Gupta, son of Shri. A.K. Gupta, and the other in the
name of M/s La Mode Fashions Pvt. Ltd., having Shri A.K. Gupta as one of
its directors, for the total sale consideration of Rs. 1,68,00,000/- (Rupees
One Crore Sixty-Eight Lakhs Only), i.e., Rs. 84,00,000/- (Rupees Eighty-
Four Lakhs Only) under each of the said Agreements, out of which, Rs.
18,00,000/- (Rupees Eighteen Lakhs Only) were paid as an advance sum for
sale consideration – Rs. 9,00,000/- (Rupees Nine Lakhs Only) under each of
the Agreements to Sell.
6. The Trial Court, vide the impugned judgments, dismissed the suit of
the plaintiffs, i.e., appellants herein, recording that they are neither entitled
to the relief of specific performance, nor entitled to get back the advance
amount of Rs. 9,00,000/- (Rupees Nine Lakhs Only), paid to the
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 3 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
defendants/respondents in each case, while entering into the respective
Agreements to Sell dated 18th August, 2005.
7. Before adverting to the facts of the instant appeals, it is noted that this
Court, vide order dated 31st August, 2018, granted status quo qua the suit
properties, which was made absolute vide order dated 10th December, 2019
until the pendency of the appeals.
RELEVANT FACTS:
8. The facts germane to the adjudication of the present appeals, as
gathered from the pleadings and the documents placed on record, are as
follows:
Pre-Filing of Suit:
9. The respondents herein are the joint owners of the suit properties
described hereinabove. They entered into separate Agreements to Sell with
the appellants in respect of the suit properties, each for a sale consideration
of Rs. 84,00,000/- (Rupees Eighty-Four Lakhs Only).
10. Pursuant thereto, the parties reduced the terms and conditions
governing the sale and purchase of the respective suit properties into
writing, by executing documents titled as “Advance Receipt cum Agreement
to Sell and Purchase”, both dated 18th August, 2005 (“Agreements to
Sell”).
11. In terms thereof, the appellants paid a sum of Rs. 9,00,000/- (Rupees
Nine Lakhs Only) each, aggregating to Rs. 18,00,000/- (Rupees Eighteen
Lakhs Only), as part of the sale consideration, in respect of the suit
properties, in the following manner:
(i) a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) in respect of
each Agreement to Sell was paid through two cheques of Rs.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 4 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) each.
Accordingly, a total sum of Rs. 10,00,000/- (Rupees Ten Lakhs
Only) was paid through four cheques dated 18 th August, 2005,
bearing nos. 629771, 629772, 645398 and 645399, drawn on
Vijaya Bank, Bhikaji Cama Palace; and
(ii) the remaining sum of Rs. 4,00,000/- (Rupees Four Lakhs Only) in
respect of each Agreement to Sell, aggregating to Rs. 8,00,000/-
(Rupees Eight Lakhs Only), was paid in cash and the same was
recorded in the Agreements to Sell.
12. It was further agreed under Clause 2 of each of the Agreements to
Sell that the balance sale consideration of Rs. 75,00,000/- (Rupees Seventy-
Five Lakhs Only) in respect of each suit property, aggregating to Rs.
1,50,00,000/- (Rupees One Crore Fifty Lakhs Only), would be paid to the
respondents upon their handing over vacant and peaceful possession of the
suit properties to the appellants. In terms of the said Clause of the respective
Agreements to Sell, the parties agreed that the transaction would be
completed on or before 31st December, 2005.
13. The Agreements to Sell further stipulated under Clause 3 that, in the
event the vendees/appellants failed to pay the balance sale consideration
within the stipulated period, the transaction would stand cancelled, and the
advance amount paid by them would stand forfeited. Conversely, in the
event the vendors/respondents refused or failed to complete the requisite
formalities within the prescribed period, the vendees/appellants would be
entitled to recover double the amount of the advance money paid by them to
the vendors/respondents, and to seek specific performance of the
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 5 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
Agreements to Sell through a court of law at the cost of the
vendors/respondents.
14. This Court has perused both the Agreements to Sell and notes that the
terms and conditions contained therein are identical.
15. Further, it is to be noted that on 25 th February, 2006, a Legal Notice
was issued on behalf of the appellants to compel the respondents to perform
their part of the obligations. The said Legal Notice recorded that though as
per the Agreements to Sell, respondents were obligated to vacate the suit
properties on or before 31st December, 2005, simultaneously upon the
payment of balance sale consideration by the appellants, however, on 02nd
December, 2005, respondents had requested for some more time for
vacation of the suit properties and accordingly, via an endorsement made on
both of the Agreements to Sell, appellants granted another two months’ time
for the same, thereby, extending the deadline upto 28th February, 2006. The
Legal Notice also stated that the appellants were ready and willing to pay the
balance sale consideration.
16. Insofar as the suit property forming the subject matter of RFA No.
730/2018 is concerned, the notice further stated that the appellants had
procured Pay Order No. 132190 dated 22nd February, 2006, drawn on Vijaya
Bank, Service Branch, Delhi, for a sum of Rs. 37,50,000/- (Rupees Thirty-
Seven Lakhs Fifty Thousand Only), in favour of Mrs. Laxmi Rohra, and Pay
Order No. 132194 dated 22nd February, 2006, drawn on Vijaya Bank,
Service Branch, Delhi, for a sum of Rs. 37,50,000/- (Rupees Thirty-Seven
Lakhs Fifty Thousand Only) in favour of Shri Surjeet Rohra, aggregating to
Rs. 75,00,000/- (Rupees Seventy-Five Lakhs Only), being the balance sale
consideration payable in respect of the said suit property. The appellants
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 6 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
further stated that photocopies of the aforesaid Pay Orders had been
enclosed with the Legal Notice and that the original Pay Orders would be
handed over to the respondents at the time of delivery of vacant and peaceful
possession of the suit property, and the execution and registration of the Sale
Deed.
17. Vide Reply dated 03rd March, 2006, respondents inter alia denied the
factum regarding extension of time for completion of sale purchase
transaction. It was further stated that so far as the two Agreements to Sell
were concerned, the balance sale consideration, amounting to Rs.
1,50,00,000/- (Rupees One Crore Fifty Lakhs Only), i.e., Rs. 75,00,000/-
(Rupees Seventy-Five Lakhs Only) under each of the said Agreements, had
to be paid by the appellants on or before 31 st December, 2005, and that the
time fixed was of essence of the contract. It was stated that the Agreements
expressly provided that on account of failure to pay the balance
consideration within stipulated time, the transaction of sale will stand
cancelled and the advance sale consideration will be forfeited. Since the
appellants failed to arrange for the same within the stipulated time duration,
the transaction was terminated and the advance sale consideration received
was forfeited by the respondents.
18. Aggrieved thereby, the appellants, on 19th April, 2006, filed Suit Nos.
being CS No. 213/2016 and CS No. 280/2016 (Old Suit Nos. CS (OS)
634/2006 and CS (OS) 635/2006), titled as Shri Gourave Gupta Versus Mrs.
Laxmi Rohra & Anr., and La Mode Fashions Pvt. Ltd. Versus Mrs. Laxmi
Rohra & Anr, respectively, seeking specific performance of the Agreements
to Sell, executed between the parties.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 7 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
Post-Filing of Suit:
19. Vide order dated 19th April, 2006, Trial Court, while issuing summons
to the defendants/respondents herein, granted interim injunction in favour of
the plaintiffs/appellants herein, qua the suit properties, thereby, restraining
the defendants from disturbing the status quo till the next date of hearing.
20. Further, by virtue of order dated 06th November, 2007, the Trial Court
continued the interim order dated 19th April, 2006. Vide the same order, the
Trial Court framed the following issues for consideration in the suits:
“xxx xxx xxx
1. Whether the plaintiff exerted any undue influence upon the
defendants to sell the suit property as alleged in para 6 of the
preliminary objection of the Written Statement? OPD
2. Whether the plaintiff has played a fraud on the defendants which has
vitiated the transaction between the parties? OPD.
3. Whether the defendants had got vacated and acquired the vacant
possession of the suit property by 31.12.2005 so as to hand over the
vacant physical possession of the suit property to the plaintiff? If so, its
effect? OPD
4. Whether the defendant No. 2 and son of defendant No. 1 Shri Kamal
Rohra had put their signatures on blank portion at the end on the last
page of the Agreement only as a token of having received the copy of
the Agreement and not to seek extension of time upto 28.02.2006 for
vacation of the suit property? If so, its effect? OPD
5. Whether time for the performance of the agreement was extended by
the parties as contended by the plaintiff? If not its effect? OPP
6. Whether time was the essence of the agreement dated 18th August,
2005? OPD
7. Whether the plaintiff has been ready and willing to perform his part
of contract? OPP
8. Whether the plaintiff is entitled to the relief of specific performance?
OPP
9. Whether the plaintiff is entitled to a decree of permanent injunction
against the defendants? OPP
10. Relief
xxx xxx xxx”
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 8 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
21. Further, this Court notes that at a later stage, in view of Notification
No. 27187/DHC/Orgl., dated 24th November, 2015, this Court vide order
dated 15th January, 2016, directed the parties to appear before the Court of
Learned District Judge, Tis Hazari Courts (Central) on account of change in
pecuniary jurisdiction.
22. The Trial Court passed the two impugned judgments and decrees
dated 26th July, 2018, separately dismissing the suits qua each of the suit
properties, thereby, denying the relief of specific performance to the
appellants, inter alia on the grounds that the extension for completion of sale
transaction by 28th February, 2006, could not be proved. Moreover, time
being the essence of the agreements between the parties, on account of
appellants’ failure to pay the due amount within the stipulated time, it
legitimised both cancellation of the Agreements to Sell as well as the
forfeiture of the advance amount paid qua each of the suit properties. The
Trial Court also found lack of readiness and willingness on the part of
appellants, a sine qua non for seeking relief of specific performance, and
therefore, denied the relief of specific performance and recovery of advance
amount paid by the appellants.
23. Aggrieved by the aforenoted impugned judgments and decrees of the
Trial Court, the appellants herein have preferred the instant appeals, seeking
setting aside of the same.
SUBMISSIONS OF THE APPELLANTS:
24. The appellants have raised the following contentions:
24.1 On 02nd December, 2005, respondent no. 2, accompanied by Sh.
Kamal Rohra, approached the appellant, Sh. Gourave Gupta, and sought
additional time to vacate the suit properties and hand over vacant possession
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 9 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
thereof. The appellant, despite being ready and willing to pay the balance
sale consideration, having no reason to doubt the bona fides of the
respondents, acceded to the said request. Consequently, it was mutually
agreed between the parties that the time for performance of their respective
obligations under the Agreements to Sell would stand extended by a period
of two months, i.e., up to 28th February, 2006, and thus the parties executed
the modification/endorsement in the Agreements to Sell.
24.2 With respect to issue nos. 1 to 3 regarding undue influence exercised
and fraud played by the appellants upon respondents and the question
regarding respondents having proved that they had the suit properties
vacated by 31st December, 2005, since the Trial Court ruled against
respondents in each of these issues, and the respondents having not preferred
any appeal as regards the mentioned issues, the findings of the Trial Court
qua the said issues have garnered finality.
24.3 So far as issue nos. 4 and 5 are concerned, which encapsulate the
controversy regarding signatures put by respondent no. 2 and son of
respondent no. 1, the Trial Court finding is incorrect as the said finding was
made based on surmises and conjectures without reference to the pleading or
evidence.
24.4 The onus for proving signatures on blank page rested on the
respondents. Mr. Kamal Rohra, son of respondent no. 1 was entitled to sign
the endorsement qua extension of time. The same is not disputed by
respondents in their joint written statements. Additionally, the testimony of
respondent no. 1 in her cross-examination states that her son went to meet
the appellants on 02nd December, 2005, with her consent and permission.
Therefore, Mr. Kamal Rohra accompanied respondent no. 2, as a
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 10 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
representative of respondent no. 1, acting on her behalf. Even otherwise, it is
submitted that it was not an issue for the Trial Court’s consideration and the
Trial Court erroneously entered into the question of entitlement.
24.5 Nevertheless, the placement of the signatures, exactly at the foot of
the last page of the respective Agreements to Sell, negates the respondents’
assertion that there was no hand-written endorsement regarding extension of
time at the time they signed the same.
24.6 The onus rested on the respondents to prove the signatures, if the
same were done as a way for acknowledging the receipt of photocopy,
which, does not stand satisfied by a mere assertion to that effect, especially,
considering that the photocopies were never produced in the Court. The fact
that three persons signed a mere receipt of photocopy becomes questionable,
and these circumstances were neither explained by the respondents nor
examined by the Trial Court while dealing with issue nos. 4 and 5.
24.7 Time was not essence of the agreement inter se the parties. If it were
so, the originally agreed date of completion of sale transaction, i.e., 31 st
December, 2005, would not have been decided four months subsequent to
the execution of the Agreements to Sell. Seeking extension of time for
completion of sale transaction militates against the respondents’ claim that
the time was of essence of the contract.
24.8 It is averred that along with the Legal Notice, the appellants enclosed
photocopies of two Pay Orders drawn on its account for a total sum of Rs.
75,00,000/- (Rupees Seventy-Five Lakhs Only), showcasing readiness and
willingness on their part.
24.9 Furthermore, the respondents’ claim that time was of essence since
they had taken loan, put their property on mortgage, and were having family
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 11 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
disputes is also false as they have failed to prove that they had informed the
appellants of their pending financial obligations or family disputes due to
which they were in a dire need to expeditiously sell the suit properties to the
appellants. Nonetheless, in transactions relating to sale of immovable
properties, time is not the essence of contract.
24.10 The Trial Court erred in concluding that the appellants were not ready
and willing to perform their contract. Respondents themselves stated that the
appellants were owner of big chain of fashion outlets, thereby, admitting to
the readiness and willingness of appellants. In that regard, it is also
submitted that in a suit for specific performance, appellants need not as a
condition show that they were ready with cash. The very fact that appellants
enclosed the demand drafts with the Legal Notice dated 25th February, 2006,
is a positive fact to prove that the appellants had the capacity to pay the sale
consideration. Unless the appellants are called upon to produce the accounts
either by the respondents or the Court orders them to do so, no adverse
inference can be drawn.
24.11 The Trial Court erroneously regarded the issuance of the Legal Notice
dated 25th February, 2006 as suspicious merely because it was sent three
days prior to the extended deadline of 28th February, 2006, for completion of
the sale transaction. However, the Trial Court failed to appreciate that the
issuance of the said Legal Notice constituted a bona fide act on the part of
the appellants, demonstrating nothing but their readiness and willingness to
perform their obligations under the respective Agreements to Sell.
24.12 Further, in so far as the readiness and willingness on part of appellants
is concerned, the Trial Court ought to have decided it in the context of
extension of time for completion, i.e., if the appellants were ready and
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 12 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
willing to perform their obligation on 28th February, 2006, and not earlier
thereto. This burden has been duly discharged by the appellants.
24.13 The readiness and willingness on the part of appellants to perform
their part of the contract is contingent upon the respondents doing
everything which was required for them to be done in terms of the respective
Agreements to Sell. Even though the respondents stated in their
examination-in-chief that they had vacated the suit property on 30 th
November, 2005, however, conversely, they relied upon receipt dated 15 th
December, 2005 for averring that they sold the stock of their business to
vacate the suit property.
24.14 Respondents also did not produce the income tax returns of the
business they were running from the suit properties. This also contradicts
their stand that they were ready to vacate the suit properties within the
stipulated time. That conduct of respondents is relevant and was ignored by
the Trial Court in the suits for specific performance.
24.15 The suits before the Trial Court were maintainable and the appellants
were not required to seek declaration for termination of the Agreements to
Sell as invalid in law. Further, the plea regarding maintainability of the suit
is required to be raised at the first instance in the pleadings and only then
such a plea can be adjudicated by the Trial Court on its merits as a
preliminary issue. Per contra, the Trial Court did not frame it as a
preliminary issue and even adjudicated it as one of the last issues to be
decided.
24.16 Moreover, unilateral cancellation of an Agreement to Sell by one
party is not permissible in law except where agreement is determinable in
terms of Section 14 of the Specific Relief Act, 1963 (“Specific Relief Act“)
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 13 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
and such cancellation cannot be raised as a defence in a suit for specific
performance.
24.17 The Trial Court also erroneously affirmed the forfeiture of earnest
amount paid by appellants, especially, when respondents failed to prove any
communication with regard to termination of the said Agreements to Sell
upon alleged failure of appellants to pay the balance sale consideration on
time. The respondents admittedly never met with the appellants after
execution of the Agreements to Sell. Therefore, without prejudice, the Trial
Court at least ought to have directed the respondents to return the advance
sale consideration, received by them along with the interest thereon.
24.18 The respondents also did not prove any loss or damage accrued to
them to be able to justify the forfeiture. In absence thereof, the Trial Court
could not have forfeited the advance money paid by the appellants with
respect to the suit properties.
24.19 Accordingly, the appellants pray for setting aside of the impugned
judgments and decrees passed by the Trial Court and seek the relief of
specific performance, thereby, directing the respondents to hand over the
vacant peaceful possession as against the payment of balance sale
consideration with respect to the suit properties.
SUBMISSIONS OF THE RESPONDENTS:
25. The respondents have raised the following contentions:
25.1 The appellant’s contention in the Legal Notice dated 25th February,
2006 regarding the alleged enclosure of photocopies of two Pay Orders
drawn on its account for a total sum of Rs. 75,00,000/- (Rupees Seventy-
Five Lakhs Only), is misleading as the alleged photocopies of the said Pay
Orders are not there on record. Additionally, in CS No. 213/2016 (Old Suit
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 14 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
No. CS (OS) 634/2006), it was never the plaintiff’s case that such Pay
Orders had been issued. The Legal Notice associated with the mentioned
suit is also completely silent on the issuance or enclosure of any such Pay
Orders.
25.2 On 02nd December, 2005, respective copies of the Agreements to Sell
were handed over to respondent no. 2 who was accompanied by son of
respondent no. 1, Shri Kamal Rohra. Subsequent thereto, they were asked to
acknowledge the receipt of those photocopies to the Agreements to Sell by
putting their signatures on a blank portion at the end on the last page of the
said Agreements in token of having received the said copies. It is the case of
respondents that neither was anything written above their signatures nor was
anything written in their presence or with their knowledge thereafter.
25.3 Time was of essence of the Agreements dated 18th August, 2005 and
Rs. 75,00,000/- (Rupees Seventy-Five Lakhs Only) each under the two
Agreements, as balance sale consideration, were payable on or before 31 st
December, 2005 as stipulated under Clause 2 of the Agreements to Sell.
Since no payment was made to that effect by the appellants, despite knowing
fully well the reason and urgent need of said funds by the respondents, the
Agreements to Sell stood cancelled/terminated, the advance money forfeited
and there remains no subsisting agreement between the parties whose
specific performance the appellants can seek.
25.4 As regards issue nos. 4 and 5, not only the alleged handwritten portion
and signatures were in “different inks” but were also written using “different
pens”. This negates that the endorsement was made in the presence of, or
with the consent and permission of respondent no. 2 and Shri Kamal Rohra,
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 15 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
as recorded by the Trial Court. Kamal Rohra was not even competent to act
on behalf of Mrs. Laxmi Rohra, i.e., respondent no. 1.
25.5 There has been nothing placed on record by appellants to showcase as
to when the alleged endorsement was made and who made it. Further, Mr.
A.K. Gupta, in his cross-examination, admitted that the endorsement seemed
to be in handwriting of his accountant. However, the said accountant was
never produced before the Court during trial proceedings.
25.6 The Trial Court has rightly concluded that time was of essence of the
Agreements to Sell as the respondents had taken loan and had mortgaged the
joint family property and the sale proceeds from the suit properties were to
be utilized for paying the bank and getting the mortgaged property released
so as to settle the family disputes.
25.7 Appellants were aware that Clauses 2 and 3 were added at the
instance of respondents for them to receive the sale consideration on time, as
they were in dire need of the same. Even otherwise, the fact that respondents
specifically incorporated the said Clauses, with no room for extension, is
indicative of their intention to make time the essence for the fulfilment of
the contract.
25.8 As regards readiness and willingness on the part of appellants,
appellants were supposed to prove that right from the date of execution of
Agreements to Sell till the date the Court rendered the decrees, they had
always been ready and willing to perform their part of the contract. Mere
averment to that effect was not sufficient and the appellants were duty
bound to prove the same as well.
25.9 The appellants were never ready and willing to perform their
contractual obligation as:
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 16 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
i. Appellants admittedly never offered balance sale consideration
amounting to Rs. 1,50,00,000/-, and no draft sale deed was prepared
and sent to the respondents. Further, the appellants admittedly never
purchased stamp papers for execution of the Sale Deeds;
ii. Before 31st December, 2005, no letter was written by the appellants
that they were ready with the payment of the balance sale
consideration, which is admitted by Mr. A.K. Gupta.
25.10 Under both the Agreements to Sell, the appellants’ witnesses in the
trial, have specifically admitted that they did not have the requisite means or
even half of the total amount in the bank accounts to pay the mentioned
balance amount. Neither did the appellants file any documentary evidence to
prove their financial capacity nor did they examine any witness from the
bank or otherwise. The appellants’ claim that they were arranging for
balance payment to be made via cash, was just an attempt to cover up the
admission of non-availability of funds in their bank account or otherwise, in
their cross-examination.
25.11 Mr. A.K. Gupta, in CS No. 280/2016, in his cross-examination
admitted that there was nothing on record filed by him to show that he had
made arrangement of funds to make the balance payment in November,
2005. In the instant cases, the appellants have made only bald and self-
serving assertions that they were always ready and willing to pay the
balance sale consideration, without producing any cogent or credible
evidence in support thereof.
25.12 The alleged photocopies of the Pay Orders as mentioned by the
appellants in their Legal Notice dated 25th February, 2006, as well as in their
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 17 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
plaint are not on record, and no evidence has been led to prove that the said
alleged Pay Orders were even made from the Bank.
25.13 Considering the above, the Trial Court has rightly held that appellants
have failed to prove that they were ready and willing to perform their part of
the contract, in the sense that they have not even been able to prove that they
had the financial means and capacity to go forward with the transaction by
paying the balance sale consideration.
25.14 Appellants therefore, failed to fulfil their obligation to show readiness
and willingness on their part, which is a condition precedent for the Court to
be able to rule in their favour for granting the relief of specific performance.
25.15 On the issue of maintainability, it is submitted that suit qua specific
performance was not maintainable as the plaintiffs in the suit, the appellants
herein, did not seek for declaration of the termination of the Agreements to
Sell to be illegal/bad in law. The plaintiffs/appellants directly sought for
specific performance, despite the Agreements having been terminated, and
the fact that the Agreements had been terminated was in the knowledge of
the appellants and they were apprised about the same vide Reply dated 03rd
March, 2006. If there is a right of termination and such right has been
exercised, appellants had to seek declaration against such termination,
however, the appellants having failed to do so, the suits must necessarily
fail.
FINDINGS AND ANALYSIS:
26. I have heard learned counsels for the parties, and perused the
documents and evidence on record. For the purposes of the present cases, it
is appropriate to deal with the issues raised and dealt with by the Trial Court
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 18 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
in the said cases in a combined manner, the issues being identical and
common to both the suits.
ISSUE 4: Whether defendant no. 2/respondent no. 2 and son of
defendant no. 1/respondent no. 1, Shri Kamal Rohra had put their
signatures on the blank portion at the end on the last page of the
Agreement only as a token of having received the copy of the
Agreement and not to seek extension of time upto 28.02.2006 for
vacation of the suit property? If so, its effect?
ISSUE 5: Whether time for the performance of the agreement was
extended by the parties as contended by the plaintiffs/appellants? If not,
its effect?
27. As regards the issues in hand, it is to be noted that the contention of
the appellants is that the signatures of respondent no. 2 and the son of
respondent no. 1, constitutes an acknowledgment of extension of time for
performance and the said signatures were not a mere acknowledgment of
receipt of photocopies of the Agreements to Sell.
28. The appellants have contended that the burden of proving as to why
the signatures were allegedly put on a blank page rested on the respondents.
Nowhere in the Agreements is it expressly enumerated that the signatures
were put as an acknowledgment for receipt of photocopy. In absence
thereof, a mere assertion to that effect cannot discharge their burden,
especially, considering that the alleged photocopies of the Agreements to
Sell were never produced during the trial proceedings. Furthermore, the fact
that the signatures were placed exactly at the foot of the last page of the
respective Agreements to Sell, that too, just below the hand-written
endorsement negates the respondents’ assertion that there was no hand-
written endorsement regarding extension of time, at the time when they
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 19 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
signed the same. Lastly, Mr. Kamal Rohra, son of respondent no. 1 was
competent to act on behalf of respondent no. 1 and the same is expressed
through the testimony of respondent no. 1.
29. At this juncture, it is to be noted that the question regarding signatures
and its purpose foremost depends upon validity of the signatures executed
by respondent no. 2 and Mr. Kamal Rohra, i.e., son of respondent no. 1. If
the signatures per se are not valid in the context as purported, there is no
room to delve into the purpose. In that regard, the Trial Court has concluded
that Kamal Rohra, son of respondent no. 1, was not even the owner of the
suit properties, nor did he hold General Power of Attorney or Special Power
of Attorney for respondent no. 1. Therefore, he was legally incompetent to
request for any extension of time to complete the sale transaction.
30. In this regard, it would be of relevance to refer to the cross-
examination of the plaintiffs in both the suits. Reference to the cross-
examination of Mr. A.K. Gupta, PW-1 in RFA 730/2018 reveals that Mr.
A.K. Gupta has categorically admitted that he was aware that Mrs. Laxmi
Rohra was the co-owner of the suit property and that agreement to purchase
50% share of Mrs. Laxmi Rohra was entered into with her only. He further
admitted that she did not enter into any agreement or understanding with
them regarding extension of date for performance of the agreement and there
was nothing on record to show that she had given any consent or
authorisation to her son for extending the date for performance of the
contractual obligations under the agreement. The relevant portions of the
cross-examination of Mr. A.K. Gupta, PW-1 in RFA 730/2018, are
reproduced as under:
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 20 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
“xxx xxx xxx
…….. It is correct that 50% owner of the suit property is Mrs. Laxmi
Rohra. It is correct that the agreement to purchase 50% share of
Mrs. Laxmi Rohra was entered into with her only. It is correct that
subsequent to the execution of the agreement to sell dated
18.08.2005, there was no agreement or understanding arrived at
between me and Mrs. Laxmi Rohra with respect to the suit property.
It is correct that subsequent to the execution of the agreement to sell
I did not have any dealing with Mrs. Laxmi Rohra personally with
respect to the suit property. There is nothing in writing to show that
the defendant No. 1’s son had extended the date for performance of
the agreement with the consent and knowledge of the defendant No.
1……….
xxx xxx xxx”
(Emphasis Supplied)
31. It is also to be noted that in the cross-examination, Mr. A.K. Gupta,
PW-1 in RFA 730/2018, has admitted to even such an extent that he was
aware that any modifications in the agreement could have only been done in
agreement with the said owner or under a written authority of the said owner
in favour of some person. Relevant portion of the evidence of Mr. A.K.
Gupta, PW-1 in RFA 730/2018, is reproduced as under:
“xxx xxx xxx
……..It is correct that I was aware that once the agreement for the
purchase of the suit property was with the owner, any modification
of the said agreement could be only in agreement with the said
owner or under a written authority of the said owner in favour of
some person…….
xxx xxx xxx”
(Emphasis Supplied)
32. Furthermore, reference may also be made to the cross-examination of
Mr. Gourave Gupta, PW-1 in RFA 729/2018. In his cross-examination, he
had admitted that from the beginning he had dealt with Mrs. Laxmi Rohra
with respect to the property. Therefore, in the light of the aforesaid
deposition, the argument that the son of Mrs. Laxmi Rohra, i.e., Mr. Kamal
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 21 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
Rohra, was an authorised party for the purposes of purported extension of
time under the contract, cannot be accepted. It is clear that both the
plaintiffs/appellants were aware of the said aspect. The relevant portion of
the cross-examination of Mr. Gourave Gupta, PW-1 in RFA 729/2018, is
reproduced as under:
“xxx xxx xxx
…..I am 25 years old. I had dealing with Mr. Surjit Rohra and Mrs.
Laxmi Rohra in respect of the property on behalf of the defendants.
The dealings had been with the abovementioned person only in
respect of the property right from the beginning till the agreement
and thereafter with respect to everything that is mentioned in the
plaint…..
xxx xxx xxx”
(Emphasis Supplied)
33. It is also pertinent to note here that in his cross-examination, Mr.
Gourave Gupta, PW-1 in RFA 729/2018, deposed in categorical terms that
there was nothing in writing to show that respondent no. 1 herein, i.e., Mrs.
Laxmi Rohra, had either requested for or agreed to the extension of time for
concluding the sale transaction from 31st December, 2005 to 28th February,
2006. Relevant portion of the deposition of Mr. Gourave Gupta, PW-1 in
RFA 729/2018, is reproduced as under:
“xxx xxx xxx
Q: Is it correct that there is nothing in writing to show that Mrs.
Laxmi Rohra had either requested for or agreed to the extension of
time for concluding the sale transaction from 31.12.2005 to
28.02.2006?
A: Yes, it is correct. She requested me on phone to extend the time. It
is correct to suggest that no document was executed between me and
Laxmi Rohra extending the time from 31.12.2005 to 28.02.2006.
xxx xxx xxx”
(Emphasis Supplied)
34. It is trite in law that where an agreement involves multiple co-
owners/sellers, an extension or modification of a material term, in the instant
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 22 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
appeals, the deadline for payment, cannot be valid if it cannot be proven that
all of them validly executed or consented to such extension. In this regard,
reference may be made to the judgment in the case of Janardan Das and
Others Versus Durga Prasad Agarwalla and Others, 2024 SCC OnLine
SC 2937, wherein, it has been held that in contracts involving multiple co-
owners, if the owners do not personally execute the agreement, an agent can
act on their behalf through a valid and subsisting Power of Attorney. It has
categorically been laid down that in contracts involving multiple owners of
property, an agent’s authority to bind the principal must be valid and proper.
Without proper authority, an agent cannot bind the principals to a contract of
sale. Thus, the Supreme Court held as follows:
“xxx xxx xxx
25. In contracts involving multiple owners of property, it is
imperative that all co-owners either personally execute the
agreement to sell or duly authorise an agent to act on their behalf
through a valid and subsisting power of attorney. An agent’s
authority must be clear and unambiguous, and any limitations or
revocations of such authority must be duly considered. Without
proper authority, an agent cannot bind the principals to a contract
of sale.
26. The trial court examined the General Power of Attorney dated 30-
12-1982, purportedly executed by Defendants 6 to 8 and late
Soumendra in favour of Defendant 1 and held that the GPA was
unregistered and executed over a decade prior to the agreement to
sell. Moreover, the trial court also observed that GPA was not
referenced or relied upon in the agreement dated 6-6-1993 and there
was no mention that Defendant 1 was acting as an agent on behalf of
his sisters under the GPA. It was held that Defendant 1 signed the
agreement solely in his personal capacity, and there was no indication
that he was executing it on behalf of Defendants 6 to 8. The High
Court disagreed with the trial court, holding that the GPA was valid
and in force at the time of the agreement. It opined that the lack of
explicit reference to the GPA in the agreement did not invalidate
Defendant 1’s authority to act on behalf of his sisters.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 23 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
27. In our considered opinion, the High Court erred in its
assessment of the authority of Defendant 1 to bind Defendants 6 to
8. While it is legally permissible for an agent to bind a principal even
if the agency relationship is not disclosed, this principle applies
when the agent has valid and subsisting authority. In the present
case, the GPA was executed in 1982 and was unregistered. The
subsequent registered partition deed in 1988 allocated specific shares
to each co-owner and delineated their rights and authorities.
Moreover, the partition deed dated 17-2-1988 impliedly revoked any
prior authority granted under the GPA concerning the sale of the
property. By specifying that Defendant 1 was authorised only to
collect rent, it limited his authority and implicitly withdrew any
broader powers previously granted.
28. It must be emphasised that the agreement dated 6-6-1993 did not
mention the GPA or indicate that Defendant 1 was acting on behalf
of his sisters. He signed the agreement solely in his capacity, and
there was no representation made to the plaintiffs that he had the
authority to bind the sisters. This omission is significant, as the
plaintiffs were aware that the sisters’ consent was essential, which is
evident from the agreement’s stipulation that the sisters would come
to execute the sale deed within three months.
29. The plaintiffs were cognizant of the fact that Defendants 6 to 8
were not parties to the agreement and that their willingness and
participation were necessary for a valid sale. This is further
corroborated by the plaintiffs’ own admissions that they were
assured by Defendant 1 and late Soumendra that the sisters would
be brought to execute the sale deed. Thus, the plaintiffs cannot
claim that they believed Defendant 1 had the authority to bind the
sisters without their explicit consent. The appellants have rightly
pointed out that an agent’s authority must be explicit, and any
limitations or revocations thereof must be given due consideration.
In the absence of a valid and subsisting power of attorney
authorising Defendant 1 to sell the property on behalf of Defendants
6 to 8, the agreement cannot be enforced against them.
30. In view of the above, we hold that Defendant 1 lacked the
authority to bind Defendants 6 to 8 in the agreement to sell dated 6-
6-1993. The General Power of Attorney did not confer upon him the
power to sell the property on behalf of his sisters at the time of the
agreement, having been impliedly revoked by the partition deed. The
agreement was, therefore, incomplete and unenforceable against
Defendants 6 to 8, who collectively held a majority share in the
property. The plaintiffs’ knowledge of the necessity of obtaining the
sisters’ consent, coupled with their failure to secure such consent,Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 24 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
renders the agreement ineffective against Defendants 6 to 8.
Consequently, the agreement cannot be specifically enforced against
them, and the plaintiffs cannot claim any right over their shares in
the property based on the said agreement.
xxx xxx xxx”
(Emphasis Supplied)
35. The principles as laid out in the aforenoted case clearly indicate that
no third person can personally execute any ancillary/additional/modified
agreement, without the express authorization of the original signatory to the
instrument/agreement. Further, a valid authorization is a must, such as a
Power of Attorney/Special Power of Attorney, to act on behalf of a person,
who is party/signatory to such agreement, for execution/modification of any
part of an instrument related to such agreement.
36. Hence, from the aforenoted assessment, it can be inferred that for a
jointly owned property, consensus ad idem among all the co-owners is a sine
qua non. A hand-written endorsement modifying the terms of the
Agreements to Sell would require consent of both respondent no. 1 as well
as respondent no. 2, being the joint owners of the suit properties. In absence
thereof, the alleged endorsement purportedly extending the time for
completion of the transaction, cannot be deemed to be valid.
37. Additionally, the contention of the appellants that respondent no. 1 in
her testimony before the Trial Court admitted that her son, Kamal Rohra
visited Mr. Gupta on 02nd December, 2005 with her permission and consent,
does not in any manner establish that the alleged endorsement for purported
extension, was given with her consent. This is more so, in the light of the
fact that there is no Power of Attorney or express authority rendered by her
in favour of Kamal Rohra, to act on her behalf to extend time for
performance of the obligations under the Agreements to Sell.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 25 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
38. Further, Mrs. Laxmi Rohra, in her Evidence Affidavit as DW-2, has
categorically denied any consent/authorisation to her son, i.e., Mr. Kamal
Rohra, to sign any extension/endorsement, or enter into any negotiations on
her behalf. The relevant portion of the Evidence Affidavit of DW-2, i.e.,
Mrs. Laxmi Rohra, is reproduced as under:
“xxx xxx xxx
8. ……….. I state that I had not authorized my son Mr. Kamal Rohra
to approach the plaintiff with any instruction and authorization and
I had not authorized my son to request for extension of time for
vacating the suit property/clearance of the goods from the suit
property or to agree to the extension of time for payment by the
plaintiff upto 28th February, 2006. In fact I had not authorized my
son Mr. Kamal Rohra to enter into any discussion/negotiation or
agreement on any aspect of the sale transaction of the suit property
with the plaintiff. …….
xxx xxx xxx”
(Emphasis Supplied)
39. Perusal of the above testimony, makes it apparent that there was
merely a consent or permission given by respondent no. 1 to her son to visit
the buyers. However, it has been deposed expressly that no consent or
authorization was given by respondent no. 1 to her son to enter into any
negotiations on her behalf. Further, mere oral consent, that also given only
to meet a party, cannot be corroborated as an authorization being granted to
a person which is akin to powers granted through Power of Attorney or a
Special Power of Attorney. The entire objective of executing Power of
Attorney or Special Power of Attorney would be defeated in law, if by mere
consent or verbal authorisation, a third-party person is conferred with a
power to act on behalf of another person, in matters related to sale of
property.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 26 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
40. Additionally, it is to be noted that respondent no. 1 had signed on all
documents in relation to the transaction under the Agreements to Sell, and
even a prior Loan which the respondents had taken. Thus, the contention
that respondent no.1’s son signed on her behalf cannot be accepted, more so,
in the light of the settled law that no party can sign on behalf of another
party on any instrument without their express consent. In this regard, the
appellants/plaintiffs were themselves aware of this position in law, and the
same was categorically accepted in the cross-examinations.
41. This Court is of the considered view that the Trial Court has rightly
come to the conclusion that purported extension of time for performing the
obligations under the Agreement to Sell, could not be proved. The Trial
Court rightly held that Kamal Rohra was anyway not competent to act on
behalf of Mrs. Laxmi Rohra, i.e., respondent no. 1.
42. It is further to be noted that no evidence has come on record as to
when the said alleged endorsement was made and by whom. Admittedly,
neither of the parties has written the alleged endorsement. Mr. A.K. Gupta,
father of appellant, Mr. Gourave Gupta, admitted in his cross-examination
that the alleged endorsement seemed to be in handwriting of his accountant.
It is material to note that the said accountant was never produced as a
witness before the Trial Court. Thus, the alleged endorsement as relied upon
by the appellants, has not been proved in accordance with law. In this
regard, reference is made to the cross-examination of Mr. A.K. Gupta, PW-1
in RFA 730/2018, relevant portion of which, is reproduced as under:
“xxx xxx xxx
….. …..Volunteered; A photocopy was given to the other party. It is
incorrect to suggest that even photocopy of the agreement to sell was
not handed over to the defendants at the time of transaction. 1 do notSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 27 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
know that defendants at the time of the entering the agreement to sell
had informed me that they had mortgaged their family property at
Mukherjee Nagar for Rs. 30 lacs which they wanted to pay off from
the proceeds of the suit property. The writing at point A on Ex. P 1
appears to be in the handwriting of my Accountant Sh.Sarvesh.
……..
xxx xxx xxx”
(Emphasis Supplied)
43. The fact of the alleged endorsement regarding purported extension of
time for completion of the terms of Agreements to Sell not being proved, is
further buttressed by the fact that the alleged endorsement admittedly does
not even have the signature of Mr. Gourave Gupta, being the appellant in
one of the instant appeals, and one of the purchasers in the Agreements to
Sell in question. In this regard, reference is made to the cross-examination of
Mr. Gourave Gupta, PW-1 in RFA 729/2018, the relevant portion of which,
is reproduced as under:
“xxx xxx xxx
Q: Please point out your signatures on the endorsement at mark A on
Ext. P1?
A: It is correct to suggest that the endorsement mark A on Ext. P1
does not bear my signatures.
xxx xxx xxx”
(Emphasis Supplied)
44. The appellants have contended that since the respondents have not
discharged their burden of signing on the blank portion, and considering
they did not produce the photocopy of the Agreements to Sell, therefore, an
adverse inference ought to be drawn against them. In this regard, it is to be
noted that a perusal of the documents on record and evidence relied upon by
the parties, shows that the photocopies of the Agreements to Sell have not
been placed on record, neither in the appeal nor in the proceedings before
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 28 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
the Trial Court. It is to be noted that the premise of the contentions of
respondents qua signatures, rested upon the fact that they received
photocopies of the Agreements to Sell.
45. However, in this regard it is to be noted that the standard applied in
civil cases is that of “preponderance of probabilities”, i.e., which side’s
version is more likely to be true, based on evidence presented. Further, the
Court under the said principle would balance the probabilities, as a fact may
depend on the probability of its existence. To balance the conflicting
probabilities, the Court would come to a conclusion regarding
preponderance in favour of existence of a particular fact, in the context and
circumstances of a particular case. Within the standard of preponderance of
probabilities, the degree of probability is based on the subject-matter
involved. (Refer to M. Siddiq (Dead) through Legal Representatives
Versus Mahant Suresh Das and Others, (2020) 1 SCC 1, Paras 720 to
725).
46. In the light of the same, on the basis of the evidence on record, it can
be concluded that Kamal Rohra, being the son of respondent no. 1, had no
authority to sign any alleged endorsement to amend the timelines for
completion of transaction of sale/purchase of the property, as originally
stipulated in the Agreements to Sell. Pertinently, Kamal Rohra, son of
respondent no.1, is not even the owner of the suit properties and the actual
owner did not sign any document extending the date of completion of the
transaction. Therefore, considering the hand-written, partially signed
endorsement which changes the deadline as agreed in the Agreement to Sell,
the preponderance of probabilities heavily favours the conclusion that the
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 29 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
alleged endorsement in the context and circumstances of the present case,
was not authentic and was legally invalid.
47. Accordingly, on the basis of the evidence on record, it cannot be said
that the time for performance of the agreement was extended by the parties,
nor can it be said that respondent no. 1 authorized her son to sign for
modification/endorsement/extension on her behalf, as has been contended on
behalf of the plaintiffs in the suit/appellants herein.
ISSUE 6: Whether time was the essence of the agreements dated 18th
August, 2005?
48. The appellants have contended that time was not essence of the
Agreements inter se the parties, as the originally agreed date of completion
of sale transaction, i.e., 31st December, 2005, was four months subsequent to
the execution of the Agreements to Sell, and seeking extension of time for
completion of sale transaction militates against the respondents’ claim that
the time was of essence of the contract. Furthermore, the respondents’ claim
that time was of essence since they had taken loan, put their property on
mortgage, and were having family disputes is also false as they have failed
to prove that they had informed the appellants of their pending financial
obligations or family disputes due to which they were in a dire need to
expeditiously sell the suit properties to the appellants. Furthermore,
appellants have submitted that in a contract for sale of immovable property,
time is not of essence of performing the contract.
49. Per contra, respondents have submitted that they had taken loan and
had mortgaged the joint family property and the sale proceeds from the suit
properties, were to be utilized for paying the bank and getting the mortgaged
property released so as to settle the family disputes, and for this reason the
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 30 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
respective Agreements envisaged the sale deeds to be executed by or before
31st December, 2005. The fact that respondents specifically incorporated the
Clauses envisaging strict time lines, with no room for extension is indicative
of their intention to make time of essence for the fulfilment of the contract.
50. The instant issue compels this Court to answer as to when, in case of
sale of immovable property, time is regarded as an essence of the contract.
In this regard, the Supreme Court in the case of Alagammal and Others
Versus Ganesan and Another, (2024) 3 SCC 232, while referring to the
case of K.S. Vidyanadam and Others Versus Vairavan, (1997) 3 SCC 1,
held that in a contract for sale of immovable property, there does not exist
any presumption of time being of essence in the contract and the Court has
to exercise its discretion by looking into various circumstances, including,
from the express terms of the contract, the nature of the property, or the
surrounding circumstances including the objective of the parties for entering
into the transaction. It has been held that while exercising its discretion, the
Court should bear in mind that when the parties prescribe certain time
limit(s) for taking steps by one or the other party, it must have some
significance and that the said time limit(s) cannot be ignored altogether on
the ground that time is not the essence of the contract. Thus, it has been held
as follows:
“xxx xxx xxx
36. The relevant paragraphs from K.S. Vidyanadam [K.S.
Vidyanadam v. Vairavan, (1997) 3 SCC 1] read as under: (SCC pp. 7-
10, paras 10-11 & 13)’10. It has been consistently held by the courts in India,
following certain early English decisions, that in the case of
agreement of sale relating to immovable property, time is not of the
essence of the contract unless specifically provided to that effect.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 31 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
The period of limitation prescribed by the Limitation Act for filing a
suit is three years. From these two circumstances, it does not follow
that any and every suit for specific performance of the agreement
(which does not provide specifically that time is of the essence of the
contract) should be decreed provided it is filed within the period of
limitation notwithstanding the time-limits stipulated in the
agreement for doing one or the other thing by one or the other party.
That would amount to saying that the time-limits prescribed by the
parties in the agreement have no significance or value and that they
mean nothing. Would it be reasonable to say that because time is not
made the essence of the contract, the time-limit(s) specified in the
agreement have no relevance and can be ignored with impunity? It
would also mean denying the discretion vested in the court by both
Sections 10 and 20. As held by a Constitution Bench of this Court in
Chand Rani v. Kamal Rani [Chand Rani v. Kamal Rani, (1993) 1 SCC
519] : (SCC p. 528, para 25)’25. … it is clear that in the case of sale of immovable property
there is no presumption as to time being the essence of the contract.
Even if it is not of the essence of the contract, the Court may infer
that it is to be performed in a reasonable time if the conditions are
(evident?):
(1) from the express terms of the contract;
(2) from the nature of the property; and
(3) from the surrounding circumstances, for example, the
object of making the contract.’In other words, the court should look at all the relevant
circumstances including the time-limit(s) specified in the agreement
and determine whether its discretion to grant specific performance
should be exercised. Now in the case of urban properties in India, it is
well-known that their prices have been going up sharply over the last
few decades — particularly after 1973 [ It is a well-known fact that
the steep rise in the price of oil following the 1973 Arab-Israeli war
set in inflationary trends all over the world. Particularly affected were
countries like who import bulk of their requirement of oil.]. In this
case, the suit property is the house property situated in Madurai,
which is one of the major cities of Tamil Nadu. The suit agreement
was in December 1978 and the six months’ period specified therein for
completing the sale expired with 15-6-1979. The suit notice was
issued by the plaintiff only on 11-7-1981 i.e. more than two years after
the expiry of six months’ period. The question is what was the plaintiffSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 32 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
doing in this interval of more than two years? The plaintiff says that
he has been calling upon Defendants 1 to 3 to get the tenant vacated
and execute the sale deed and that the defendants were postponing the
same representing that the tenant is not vacating the building. The
defendants have denied this story. According to them, the plaintiff
never moved in the matter and never called upon them to execute the
sale deed. The trial court has accepted the defendants’ story whereas
the High Court has accepted [Vairavan v. K.S. Vidyanandam, 1995
SCC OnLine Mad 105] the plaintiff’s story. Let us first consider
whose story is more probable and acceptable. For this purpose, we
may first turn to the terms of the agreement. In the agreement of
sale, there is no reference to the existence of any tenant in the
building. What it says is that within the period of six months, the
plaintiff should purchase the stamp papers and pay the balance
consideration whereupon the defendants will execute the sale deed
and that prior to the registration of the sale deed, the defendants
shall vacate and deliver possession of the suit house to the plaintiff.
There is not a single letter or notice from the plaintiff to the
defendants calling upon them to get the tenant vacated and get the
sale deed executed until he issued the suit notice on 11-7-1981. It is
not the plaintiff’s case that within six months’, he purchased the
stamp papers and offered to pay the balance consideration. The
defendants’ case is that the tenant is their own relation, that he is
ready to vacate at any point of time and that the very fact that the
plaintiff has in his suit notice offered to purchase the house with the
tenant itself shows that the story put forward by him is false. The
tenant has been examined by the defendant as DW 2. He stated that
soon after the agreement, he was searching for a house but could
not secure one. Meanwhile (i.e. on the expiry of six months from the
date of agreement), he stated, the defendants told him that since the
plaintiff has abandoned the agreement, he need not vacate. It is
equally an admitted fact that between 15-12-1978 and 11-7-1981, the
plaintiff has purchased two other properties. The defendants’
consistent refrain has been that the prices of house properties in
Madurai have been rising fast, that within the said interval of 2½
years, the prices went up three times and that only because of the said
circumstance has the plaintiff (who had earlier abandoned any idea of
going forward with the purchase of the suit property) turned round
and demanded specific performance. Having regard to the above
circumstances and the oral evidence of the parties, we are inclined to
accept the case put forward by Defendants 1 to 3. We reject the story
put forward by the plaintiff that during the said period of 2½ years,
he has been repeatedly asking the defendants to get the tenant
vacated and execute the sale deed and that they were asking for time
on the ground that tenant was not vacating. The above finding
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 33 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
means that from 15-12-1978 till 11-7-1981 i.e. for a period of more
than 2½ years, the plaintiff was sitting quiet without taking any steps
to perform his part of the contract under the agreement though the
agreement specified a period of six months within which he was
expected to purchase stamp papers, tender the balance amount and
call upon the defendants to execute the sale deed and deliver
possession of the property. We are inclined to accept the defendants’
case that the values of the house property in Madurai town were
rising fast and this must have induced the plaintiff to wake up after
2½ years and demand specific performance.
11. Shri Sivasubramaniam cited the decision of the Madras
High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswamy
Nadar [S.V. Sankaralinga Nadar v. P.T.S. Ratnaswamy Nadar, 1951
SCC OnLine Mad 217 : AIR 1952 Mad 389] holding that mere rise in
prices is no ground for denying the specific performance. With great
respect, we are unable to agree if the said decision is understood as
saying that the said factor is not at all to be taken into account while
exercising the discretion vested in the court by law. We cannot be
oblivious to the reality — and the reality is constant and continuous
rise in the values of urban properties — fuelled by large-scale
migration of people from rural areas to urban centres and by
inflation. Take this very case. The plaintiff had agreed to pay the
balance consideration, purchase the stamp papers and ask for the
execution of sale deed and delivery of possession within six months.
He did nothing of the sort. The agreement expressly provides that if
the plaintiff fails in performing his part of the contract, the
defendants are entitled to forfeit the earnest money of Rs 5000 and
that if the defendants fail to perform their part of the contract, they
are liable to pay double the said amount. Except paying the small
amount of Rs 5000 (as against the total consideration of Rs 60,000)
the plaintiff did nothing until he issued the suit notice 2½ years after
the agreement. Indeed, we are inclined to think that the rigour of the
rule evolved by courts that time is not of the essence of the contract
in the case of immovable properties — evolved in times when prices
and values were stable and inflation was unknown — requires to be
relaxed, if not modified, particularly in the case of urban immovable
properties. It is high time, we do so. The learned counsel for the
plaintiff says that when the parties entered into the contract, they
knew that prices are rising; hence, he says, rise in prices cannot be a
ground for denying specific performance. May be, the parties knew of
the said circumstance but they have also specified six months as the
period within which the transaction should be completed. The said
time-limit may not amount to making time the essence of the
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 34 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
contract but it must yet have some meaning. Not for nothing could
such time-limit would have been prescribed. Can it be stated as a
rule of law or rule of prudence that where time is not made the
essence of the contract, all stipulations of time provided in the
contract have no significance or meaning or that they are as good as
non-existent? All this only means that while exercising its discretion,
the court should also bear in mind that when the parties prescribe
certain time-limit(s) for taking steps by one or the other party, it
must have some significance and that the said time-limit(s) cannot
be ignored altogether on the ground that time has not been made the
essence of the contract (relating to immovable properties).
* * *
13. In the case before us, it is not mere delay. It is a case of total
inaction on the part of the plaintiff for 2½ years in clear violation of
the terms of agreement which required him to pay the balance,
purchase the stamp papers and then ask for execution of sale deed
within six months. Further, the delay is coupled with substantial rise
in prices — according to the defendants, three times — between the
date of agreement and the date of suit notice. The delay has brought
about a situation where it would be inequitable to give the relief of
specific performance to the plaintiff.’
xxx xxx xxx”
(Emphasis Supplied)
51. Applying the aforesaid principle to the facts of the instant case, it can
be concluded that the respective Agreements to Sell expressly stipulated a
time limit for the performance of the obligations of the parties thereto.
Clause 2 of the respective Agreements to Sell envisages that the payment of
the balance sale consideration by the respective buyers and the handing over
of vacant and physical possession by the sellers were to be completed by 31st
December, 2005. Clause 3 stipulates the consequences of failure on the part
of the parties to perform their respective obligations.
52. Having held that the endorsement extending the time to be invalid, the
date stipulated under the respective Agreements to Sell validly stands as 31 stSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 35 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
December, 2005. In view thereof, it can be concluded that the Agreements
inter se the parties, having been duly entered into and executed with their
consent, expressly provides for a time limit for performance, and therefore,
time was of the essence of the contract.
53. This Court also takes note of the documents placed on record by the
respondents, i.e., Loan Agreement dated 05th February, 2005 and the Letters
dated 16th June, 2005 and 13th February, 2006 issued by the Bank enhancing
the interest on the loan, which establish that liabilities existed upon the
respondents to make payments. As rightly observed by the Trial Court, the
defendants/respondents have relied upon the home loan equity documents,
which demonstrate that they had mortgaged another one of their properties
to secure a loan of Rs. 30,00,000/- (Rupees Thirty Lakhs Only) from the
Bank. Further, the defendants/respondents have also pleaded that owing to
certain family disputes, they were desirous of getting the mortgaged
property released from the Bank by repaying the loan amount at the earliest.
54. Moreover, the Agreements to Sell was executed on 18th August, 2005
and the balance sale consideration had to be paid on or before 31st
December, 2005, indicating that the compliance of the Agreements to Sell,
had a short frame of time. The aforesaid documents and pleadings, taken
together, further establish that time was of the essence of the respective
Agreements to Sell, and buttresses the aspect that the suit properties were
being sold in a manner of urgency, when seen together with the existence of
the Loan.
55. Accordingly, no error is found in the finding of the Trial Court that
time was essence of the Agreements between the parties.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 36 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
ISSUE 7: Whether plaintiffs/appellants have been ready and willing to
perform their part of contract?
ISSUE 8: Whether plaintiffs/appellants are entitled to the relief of
specific performance?
ISSUE 9: Whether plaintiffs/appellants are entitled to a decree of
permanent injunction against the defendants/respondents?
ISSUE 10: Relief.
56. It is the case of appellants that the Trial Court erred in concluding that
the appellants/plaintiffs herein were not ready and willing to perform their
part of the contract. The appellants had, on multiple occasions showcased
their readiness and willingness, inter alia by sending Legal Notices dated
25th February, 2006, i.e., three days prior to the extended deadline and
enclosing the photocopy of Pay Orders along with the said Legal Notices.
Nonetheless, in a suit for specific performance, appellants need not as a
condition show that they were ready with cash.
57. Further, the appellants claim that in so far as the readiness and
willingness on part of appellants is concerned, the Trial Court ought to have
decided it in the context of extension of time for completion, i.e., if the
appellants were ready and willing to perform their obligation on 28 th
February, 2006, and not earlier thereto, the burden for which stands duly
discharged.
58. Moreover, it is the case of the appellants that respondents’ averment
that they were ready and willing to hand over the physical possession of the
suit properties does not stand so much so that with respect to issue regarding
respondents vacating suit properties by 31st December, 2005, the Trial
Court’s ruling against them qua Issue No. 3, has attained finality. Since theSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 37 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
readiness and willingness on the part of appellants to perform their part of
the contract is contingent upon the respondents doing everything which was
required for them to be done in terms of the respective Agreements to Sell,
therefore, the Trial Court erred in adjudicating the instant issue.
59. With regard to the issues at hand, it is pertinent to note that for the
purposes of a suit for specific performance, Section 16(c) of the Specific
Relief Act, makes it incumbent upon the plaintiff to showcase their
readiness and willingness for performing the contract, which acts as a pre-
requisite for the plaintiff to be able to seek the relief of specific
performance. In this regard, it is to be noted that the Specific Relief Act
underwent an amendment in the year 2018 which had a prospective effect.
Pre-amendment, the mandate was to both aver as well to prove readiness and
willingness, however, post-amendment the stipulation is regarding proving
the readiness and willingness to perform the essential terms of the contract
by the plaintiff. The instant suits were filed prior to the amendment, and the
position existing pre-amendment has been fulfilled in the present case, as the
plaintiffs have averred and attempted to prove readiness and willingness.
60. Nevertheless, be it the pre or post amendment position, the aspect of
proving the readiness and willingness remains constant. Thus, it was
incumbent upon the plaintiffs/appellants to prove their readiness and
willingness to perform the essential terms of the contract to be performed by
them, for seeking the relief of specific performance. In this regard, reference
is made to the judgement in the case of Pydi Ramana alias Ramulu Versus
Davarasety Manmadha Rao, (2024) 7 SCC 515, wherein, it has been held
as follows:
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 38 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
“xxx xxx xxx
11. At the outset, it requires to be clarified and made clear that in the
instant case the amendment brought to the Specific Relief Act by Act
18 of 2018 would be inapplicable. The amendment is prospective in
nature and cannot be applied to those transactions which took place
prior to amendment. [Katta Sujatha Reddy v. Siddamsetty Infra
Projects (P) Ltd., (2023) 1 SCC 355 : (2023) 1 SCC (Civ) 201] In
order to prove [Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC
512 : (2010) 4 SCC (Civ) 239] that the plaintiff is entitled to the
specific performance as per the law existing prior to amendment, the
plaintiff has to establish:
(a) That a valid agreement of sale was entered into by the
defendant in his favour;
(b) That the defendant committed breach of the agreement;
and
(c) That he was always ready and willing to perform his part of
the obligations in terms of the agreement.
xxx xxx xxx”
(Emphasis Supplied)
61. The language of Section 16(c) of the Specific Relief Act makes it
clear that relief of specific performance cannot be granted in favour of the
party seeking it, if there is failure on their part to prove that they already
have or have always been both ready as well as willing to perform
contractual obligations required of them, to be performed under the contract.
62. The law relating to readiness and willingness of a party to a contract
has been delved in detail by the Supreme Court in the case of C.S.
Venkatesh Versus A.S.C. Murthy and Others, (2020) 3 SCC 280, wherein,
the Supreme Court has expounded the law, as follows:
i. The plaintiff is obligated to show continuous readiness and
willingness to perform his part of the contract.
ii. The amount which the plaintiff has to pay the defendant must of
necessity be proved to be available.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 39 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
iii. Mere plea that the plaintiff is ready to pay the consideration, without
any material to substantiate this plea, cannot be accepted.
iv. Right from the date of the execution of the contract till the date of
decree, plaintiff must prove that he is ready and willing to perform his
part of the contract.
v. Willingness on the part of the plaintiff is to be adjudged from the
conduct of the plaintiff, prior and subsequent to the filing of the suit
along with other attending circumstances.
63. Thus, in the aforesaid case of C.S. Venkatesh (Supra), the Supreme
Court has held as follows:
“xxx xxx xxx
16. The words “ready and willing” imply that the plaintiff was
prepared to carry out those parts of the contract to their logical end
so far as they depend upon his performance. The continuous
readiness and willingness on the part of the plaintiff is a condition
precedent to grant the relief of performance. If the plaintiff fails to
either aver or prove the same, he must fail. To adjudge whether the
plaintiff is ready and willing to perform his part of contract, the
court must take into consideration the conduct of the plaintiff prior,
and subsequent to the filing of the suit along with other attending
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.
xxx xxx xxx
18. In Pushparani S. Sundaram v. Pauline Manomani
James [Pushparani S. Sundaram v. Pauline Manomani James, (2002)
9 SCC 582], this Court has held that inference of readiness and
willingness could be drawn from the conduct of the plaintiff and the
totality of circumstances in a particular case. It was held thus: (SCC
p. 584, para 5)
“5. … So far these being a plea that they were ready and
willing to perform their part of the contract is there in the pleading,
we have no hesitation to conclude, that this by itself is not sufficientSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 40 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
to hold that the appellants were ready and willing in terms of Section
16(c) of the Specific Relief Act. This requires not only such plea but
also proof of the same. Now examining the first of the two
circumstances, how could mere filing of this suit, after exemption
was granted be a circumstance about willingness or readiness of the
plaintiff. This at the most could be the desire of the plaintiff to have
this property. It may be for such a desire this suit was filed raising
such a plea. But Section 16(c) of the said Act makes it clear that
mere plea is not sufficient, it has to be proved.”
xxx xxx xxx
21. In the instant case, the plaintiff has alleged that he was ready to
pay Rs 35,000 to the defendants and called upon them to execute the
re-conveyance deed. However, in para 11 of the plaint it is pleaded
that the plaintiff was running contract business wherein he suffered
heavy loss and as such he gave up the business. It is also pleaded that
at present the plaintiff has no business or profession and has no
source of income. He has no property, either movable or immovable.
Mere plea that he is ready to pay the consideration, without any
material to substantiate this plea, cannot be accepted. It is not
necessary for the plaintiff to produce ready money, but it is
mandatory on his part to prove that he has the means to generate the
consideration amount. Except the statement of PW 1, there is
absolutely no evidence to show that the plaintiff has the means to
make arrangements for payment of consideration under the
reconveyance agreement.
xxx xxx xxx”
(Emphasis Supplied)
64. Likewise, holding that readiness and willingness on the part of the
plaintiff, is a condition precedent for obtaining relief of grant of specific
performance, the Supreme Court in the case of J.P. Builders and Another
Versus A. Ramadas Rao and Another, (2011) 1 SCC 429, has held as
under:
“xxx xxx xxx
22. The words “ready” and “willing” imply that the person was
prepared to carry out the terms of the contract. 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.
xxx xxx xxx
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 41 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
25. Section 16(c) of the Specific Relief Act, 1963 mandates
“readiness and willingness” on the part of the plaintiff and it is a
condition precedent for obtaining relief of grant of specific
performance. It is also clear that in a suit for specific performance,
the plaintiff must allege and prove a continuous “readiness and
willingness” to perform the contract on his part from the date of the
contract. The onus is on the plaintiff.
xxx xxx xxx
27. It is settled law that even in the absence of specific plea by the
opposite party, it is the mandate of the statute that the plaintiff has to
comply with Section 16(c) of the Specific Relief Act and when there
is non-compliance with this statutory mandate, the court is not
bound to grant specific performance and is left with no other
alternative but to dismiss the suit. It is also clear that readiness to
perform must be established throughout the relevant points of time.
“Readiness and willingness” to perform the part of the contract has
to be determined/ascertained from the conduct of the parties.
xxx xxx xxx”
(Emphasis Supplied)
65. In this regard, reference may be made to the cross-examination of the
plaintiffs/appellants, which clearly indicates that they did not possess the
financial capacity or readiness/willingness to perform their part of the
Agreement, i.e., payment of balance sale consideration, neither on the
agreed date of completion of sale transaction, i.e., 31st December, 2005, nor
on the alleged extended date, i.e., 28th February, 2006.
66. Reference to the cross-examination of Mr. A.K. Gupta, PW-1, in RFA
730/2018, shows that he has admitted that no letter was written before 31 st
December, 2005 to the defendants/respondents herein, to state that he was
ready with the payment of the balance consideration. The relevant portion of
the said cross-examination, reads as under:
“xxx xxx xxx
……It is correct that before 31.12.2005 no letter was written by me
that I was ready with the payment of the balance Sale consideration.
(Vol. I had given a reminder on 30.11.2005 that I am ready with theSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 42 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
balance payment). No reminder was given by me in writing. (vol. I
casually asked them when they were vacating the suit premises)……
xxx xxx xxx”
(Emphasis Supplied)
67. The aforesaid witness, i.e., Mr. A.K. Gupta, PW-1, in RFA 730/2018,
further admitted that there was nothing on record to show that he had funds
to pay in November, 2005 and that he had not purchased any stamp papers.
The relevant portion of the deposition of Mr. A.K. Gupta, PW-1, in RFA
730/2018, is reproduced as under:
“xxx xxx xxx
……It is correct that there is nothing on record of the suit file to
show that I had arrangement of funds to make the balance payment
any time in November 2005.
I had sufficient funds to pay the balance amount in the month of
November 2005. It is correct that I did not offer any payment to the
defendants in November 2005 in writing. It is wrong to suggest that
I did not offer the payment even verbally. It is correct that the
property subject matter of Ex. P.1 and the property for which
agreement was entered into in the name of my son with the
defendants form part of one premises. I did not purchase stamp
papers for the execution of the Sale Deed……….
xxx xxx xxx”
(Emphasis Supplied)
68. It is also pertinent to note that Mr. A.K. Gupta, PW-1, in RFA
730/2018, also mentioned in the cross-examination on 18th November, 2008
that he had approached the defendants in November, 2005. However, in
complete volte-face during the cross-examination held on 04th February,
2009, he stated that the defendants approached him.
69. Further, it is also to be noted that it was the case of Mr. A.K. Gupta,
PW-1 in RFA 730/2018, that he had prepared Pay Orders for the balance sale
consideration, and photocopies of the same were sent by him along with the
Legal Notice. However, the said witness has categorically admitted that no
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 43 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
such Pay Orders had been placed on record. The relevant portion of the
cross-examination of Mr. A.K. Gupta, PW-1 in RFA 730/2018, is
reproduced as under:
“xxx xxx xxx
…..On the perusal of the record I say that it is correct that there are
no pay orders on the record of this file……
xxx xxx xxx”
(Emphasis Supplied)
70. Reference may also be made to the cross-examination of Mr. Gourave
Gupta, PW-1 in RFA 729/2018. He admitted that he did not have a personal
savings account during the course of cross-examination on 14th September,
2009, in the following manner:
“xxx xxx xxx
……I have no personal saving account. I had no personal saving
account even in the year of 2005…….
xxx xxx xxx”
(Emphasis Supplied)
71. It is noted that Mr. Gourave Gupta, PW-1 in RFA 729/2018, had
entered into the Agreement to Sell in his personal capacity. He had stated
that he was going to make the payment in cash and through the company
account in Vijaya Bank. The deposition by Mr. Gourave Gupta, PW-1 in
RFA 729/2018, is reproduced as under:
“xxx xxx xxx
……It is correct that no written intimation was sent to defendants
either in November or December in respect of the fact that the
plaintiff was ready with the payment. It is correct that I have not
placed any document on record showing that in Nov. and Dec. 2005
plaintiff had sufficient funds to make the balance……
Q: I put it to you that you did not have the arrangement of funds for
the payment of the balance sale consideration in Nov. 2005 or Dec.
2005?
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 44 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
A: There were no sufficient funds in the accounts however, since the
defendants had asked for cash payment I had already arranged for
the same.
xxx xxx xxx
In February, 2006 I was ready with the funds for balance payment.
Q: Please tell this balance payment was in which bank, kindly give
the name of the bank and the bank account No.?
A: It was Vijaya Bank, however, I do not remember the account No.
The account is in the name of L.M. Fashions which is my sole
proprietorship firm. It is correct to suggest that in February, 2006
the said bank account did not have Rs.75 lacs the balance sale
consideration payable under the agreement. (Vol. first the
defendants asked for 50% cash of the total amount and therefore, 1
was trying to make arrangements from my bank as also by
borrowing.) I do not remember the exact amount which 1 could
arrange in my account in Vijaya Bank. I can produce the bank
statement of the Vijaya Bank pertaining to February, 2006. It is
incorrect to suggest that no notice or letter was written to the
defendant regarding arrangement of payment. (Vol. a notice dated
25.2.2006 was sent to the defendant informing them about the
arrangements.)
I offered to pay 50% of the total amount through draft, a copy of the
draft was also sent to the defendant. The defendants were also duly
informed regarding arrangement of cash to the extent of 50%. I have
placed copies of the drafts on record. There were two drafts totaling
an amount of Rs.37 lacs approximately. I do not remember the exact
amount, however, it was 50% of the total amount. The drafts are not
there on record.
xxx xxx xxx”
(Emphasis Supplied)
72. Thus, it is apparent that there are no documents on record to show the
readiness and willingness of the appellants/plaintiffs to make payment of the
balance sale consideration.
73. It is to be noted that there is nothing on record to show that Mr.
Gourave Gupta, PW-1 in RFA 729/2018, had any cash or funds available in
the bank account. The said witness of the appellants/plaintiffs further
admitted that as on February, 2006, the payable balance consideration was
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 45 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
not available in the Vijaya Bank account also. Thus, even on the purported
extended date in February, 2006, the plaintiffs did not have the financial
capacity. The said witness further deposed similar to his father, Mr. A.K.
Gupta, that two drafts were made totalling to approximately Rs. 37,00,000/-
(Rupees Thirty-Seven Lakhs Only), and the draft nos. and details were sent
and mentioned in the Legal Notice sent by the appellants to the respondents.
However, the said witness admitted likewise that no such drafts had been
placed on record. In this regard, it would not be out of place to infer that any
prudent person who claims existence of a financial instrument, i.e., Pay
Orders/drafts for a substantial amount, admittedly in their possession, would
at the least keep a copy of the same, and produce the same before the Court,
especially when it is their case that they had even served a copy upon the
other party.
74. Thus, the reading of the cross-examination of the plaintiffs/appellants
clearly indicates that they only made bald statements that they were willing
to pay the balance payment. However, nothing to corroborate the same was
placed on record. Further, even the conduct of the plaintiffs and the
statements made by them regarding availability of funds in their bank
accounts, shows that they were not financially capable of paying the balance
amount.
75. In this regard, reference is made to the judgement of the Supreme
Court in the case of R. Shama Naik Versus G. Srinivasiah, 2024 SCC
OnLine SCC 3586, wherein, the Supreme Court recorded that readiness
refers to the actual financial capacity of the plaintiff to make payments in
terms of the contract in time, while willingness is an evaluation of the
conduct and intention. Plaintiff seeking relief of specific performance is,
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 46 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
therefore, obligated to adduce necessary oral and documentary evidence to
show the availability of funds at all material times. Thus, it has been held as
follows:
“xxx xxx xxx
10. The law is well settled. The plaintiff is obliged not only to make
specific statement and averments in the plaint but is also obliged to
adduce necessary oral and documentary evidence to show the
availability of funds to make payment in terms of the contract in
time.
11. There is a fine distinction between readiness and willingness to
perform the contract. Both the ingredients are necessary for the
relief of specific performance.
12. While readiness means the capacity of the plaintiff to perform
the contract which would include his financial position, willingness
relates to the conduct of the plaintiff.
xxx xxx xxx”
(Emphasis Supplied)
76. Furthermore, in the case of Vijay Kumar and Others Versus Om
Parkash, (2019) 17 SCC 429, it was held that plaintiff could not prove his
readiness and willingness as he could not produce any document to show
that he had the requisite amount on the relevant date, nor was he able to
name the friends from whom he raised money or was able to raise the
money. Furthermore, he did not place on record his account book, passbook
or the statement of accounts or any other negotiable instrument to establish
that he had the money with him at the relevant point of time to perform his
part of the contract. Thus, it was held as follows:
“xxx xxx xxx
6. In order to obtain a decree for specific performance, the plaintiff
has to prove his readiness and willingness to perform his part of the
contract and the readiness and willingness has to be shown
throughout and has to be established by the plaintiff. In the case in
hand, though the respondent-plaintiff has filed the suit for specific
performance on 29-4-2008, the respondent-plaintiff has not shown hisSignature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 47 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
capacity to pay the balance sale consideration of Rs 22,00,000
(Rupees twenty-two lakhs). In his evidence, the respondent-plaintiff
has stated that he has borrowed the amount from his friends and
kept the money to pay the balance sale consideration. As rightly
pointed out by the trial court, the respondent-plaintiff could not
produce any document to show that he had the amount of Rs
22,00,000 (Rupees twenty-two lakhs) with him on the relevant date;
nor was he able to name the friends from whom he raised money or
was able to raise the money. Furthermore, as rightly pointed out by
the trial court, the respondent-plaintiff could have placed on record
his accounts book, passbook or the statement of accounts or any
other negotiable instrument to establish that he had the money with
him at the relevant point of time to perform his part of the contract.
We are, therefore, in agreement with the view taken by the trial
court that the respondent-plaintiff has not been able to prove his
readiness and willingness on his part.
xxx xxx xxx”
(Emphasis Supplied)
77. In this backdrop, it can be inferred that the Trial Court has rightly held
that the appellants/plaintiffs herein could not show their readiness and
willingness, as they could not establish that they had the financial means and
capacity to proceed with the transaction for payment of the balance amount
of Rs. 1,50,00,000/- (Rupees One Crore Fifty Lakhs Only) in total in both
the cases. The appellants/plaintiffs admitted that half amount was to be paid
in cash and half through cheque. However, it was admitted that they did not
have the requisite or even half of the amount required in their bank accounts
to pay to the respondents. Additionally, no documentary evidence was
placed on record to prove their financial capacity, nor was any examination
done of any witness from the bank or otherwise. The alleged Pay Orders
relied upon by the appellants, are not on record. This clearly evinces that
strict compliance of Section 16(c) Specific Relief Act, has not been made
out.
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 48 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
78. As per the established law, a plaintiff must demonstrate that he had
the command over funds during the performance window. Admitting to
deficient bank accounts and a bland averment regarding cash arrangement
without a verified source of income, leads to only one conclusion, that there
was no readiness and willingness on the part of the appellants/plaintiffs from
the date of the agreements, until the decree was rendered by the Trial Court.
ISSUE: Maintainability
79. As regards the issue of maintainability, it is noted that the respondents
have contended that the suits filed by the appellants/plaintiffs herein were
not maintainable as the plaintiffs in the suit, i.e., the appellants herein, did
not seek declaration of the termination of the Agreements to Sell to be bad
in law and directly sought for specific performance, despite the Agreements
having been terminated.
80. The Trial Court has held that since Clause 3 of the Agreements to
Sell expressly stipulated that if the purchaser fails to make payment of
balance amount, then the transaction will be considered as cancelled and
advance money shall stand forfeited, the said clause being unambiguous and
express, no relief of declaration is required. Thus, it has been held that the
suit would be maintainable and there would be no requirement for seeking a
prayer/relief for declaration of termination as invalid.
81. It is to be noted that the Trial Court dealt with the issue of
maintainability and recorded the suit to be maintainable, however, no
explicit issue as regards issue of maintainability was framed thereto. It is
further to be noted that the Trial Court has held the suits to be maintainable,
and in view of other findings in favour of the defendants/respondents herein,
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 49 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
it is noted that the defendants/respondents have not filed any appeal against
the said issues.
82. In this regard, reference is made to the judgment of the Supreme
Court in the case of R. Kandasamy (Since Dead) and Others Versus T.R.K.
Sarawathy and Another, 2024 SCC OnLine SC 3377, wherein, it has been
held as follows:
“xxx xxx xxx
40. Having held thus, allowing the appeal is the inevitable result.
However, before we part, there seems to be a discordant note struck
by the decision in A. Kanthamani [A. Kanthamani v. Nasreen Ahmed,
(2017) 4 SCC 654 : (2017) 2 SCC (Civ) 596] while distinguishing I.S.
Sikandar [I.S. Sikandar v. K. Subramani, (2013) 15 SCC 27 : (2014) 4
SCC (Civ) 365] , which could create uncertainty and confusion. It is,
therefore, considered worthwhile to attempt and clear the same.
41. A comprehensive reading of the two decisions reveals that in a
fact scenario where the vendor unliterally cancels an agreement for
sale, the vendee who is seeking specific performance of such
agreement ought to seek declaratory relief to the effect that the
cancellation is bad and not binding on the vendee. This is because
an agreement, which has been cancelled, would be rendered non-
existent in the eye of the law and such a non-existent agreement
could not possibly be enforced before a court of law. Both the
decisions cited above are unanimous in their approval of such legal
principle. However, as clarified in Kanthamani [A.
Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654 : (2017) 2 SCC
(Civ) 596] , it is imperative that an issue be framed with respect to
maintainability of the suit on such ground, before the court of first
instance, as it is only when a finding on the issue of maintainability is
rendered by the trial court that the same can be examined by the first
or/and second appellate court. In other words, if maintainability were
not an issue before the trial court or the appellate court, a suit cannot
be dismissed as not maintainable. This is what Kanthamani [A.
Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654 : (2017) 2 SCC
(Civ) 596] holds.
42. The aforesaid two views of this Court, expressed by coordinate
Benches, demand deference. However, it is noticed that this Court
in Kanthamani [A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654
: (2017) 2 SCC (Civ) 596] had not been addressed on the effect of
non-existence of a jurisdictional fact (the existence whereof would
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 50 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
clothe the trial court with jurisdiction to try a suit and consider
granting relief) i.e. what would be its effect on the right to relief
claimed by the plaintiff in a suit for specific performance of contract.
43. In Shrisht Dhawan v. Shaw Bros. [Shrisht Dhawan v. Shaw Bros.,
(1992) 1 SCC 534] , an interesting discussion on “jurisdictional fact”
is found in the concurring opinion of Hon’ble R.M. Sahai, J. (as his
Lordship then was). It reads : (SCC pp. 551-52, para 19)
“19. … What, then, is an error in respect of jurisdictional fact? A
jurisdictional fact is one on existence or non-existence of which
depends assumption or refusal to assume jurisdiction by a court,
tribunal or an authority. In Black’s Legal Dictionary it is explained as
a fact which must exist before a court can properly assume
jurisdiction of a particular case. Mistake of fact in relation to
jurisdiction is an error of jurisdictional fact. No statutory authority or
tribunal can assume jurisdiction in respect of subject-matter which the
statute does not confer on it and if by deciding erroneously the fact on
which jurisdiction depends the court or tribunal exercises the
jurisdiction then the order is vitiated. Error of jurisdictional fact
renders the order ultra vires and bad. [ Wade, Administrative Law.]
In Raza Textiles [Raza Textiles Ltd. v. CIT, (1973) 1 SCC 633 : (1973)
87 ITR 539] it was held that a court or tribunal cannot confer
jurisdiction on itself by deciding a jurisdictional fact wrongly.”
(emphasis supplied)
44. Borrowing wisdom from the aforesaid passage, our deduction is
this. An issue of maintainability of a suit strikes at the root of the
proceedings initiated by filing of the plaint as per requirements of
Order 7 Rule 1 CPC. If a suit is barred by law, the trial court has
absolutely no jurisdiction to entertain and try it. However, even
though a given case might not attract the bar envisaged by Section 9
CPC, it is obligatory for a trial court seized of a suit to inquire and
ascertain whether the jurisdictional fact does, in fact, exist to enable
it (the trial court) to proceed to trial and consider granting relief to
the plaintiff as claimed. No higher court, much less the Supreme
Court, should feel constrained to interfere with a decree granting
relief on the specious ground that the parties were not put
specifically on notice in respect of a particular line of attack/defence
on which success/failure of the suit depends, more particularly an
issue touching the authority of the trial court to grant relief if “the
jurisdictional fact” imperative for granting relief had not been
satisfied. It is fundamental, as held in Shrisht Dhawan [Shrisht
Dhawan v. Shaw Bros., (1992) 1 SCC 534], that assumption of
jurisdiction/refusal to assume jurisdiction would depend on
existence of the jurisdictional fact. Irrespective of whether the
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 51 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
parties have raised the contention, it is for the trial court to satisfy
itself that adequate evidence has been led and all facts including the
jurisdictional fact stand proved for relief to be granted and the suit
to succeed. This is a duty the trial court has to discharge in its
pursuit for rendering substantive justice to the parties, irrespective
of whether any party to the lis has raised or not. If the jurisdictional
fact does not exist, at the time of settling the issues, notice of the
parties must be invited to the trial court’s prima facie opinion of
non-existent jurisdictional fact touching its jurisdiction. However,
failure to determine the jurisdictional fact, or erroneously
determining it leading to conferment of jurisdiction, would amount
to wrongful assumption of jurisdiction and the resultant order liable
to be branded as ultra vires and bad.
45. Should the trial court not satisfy itself that the jurisdictional fact
for grant of relief does exist, nothing prevents the court higher in
the hierarchy from so satisfying itself. It is true that the point of
maintainability of a suit has to be looked only through the prism of
Section 9 CPC, and the court can rule on such point either upon
framing of an issue or even prior thereto if Order 7 Rule 11(d)
thereof is applicable. In a fit and proper case, notwithstanding
omission of the trial court to frame an issue touching jurisdictional
fact, the higher court would be justified in pronouncing its verdict
upon application of the test laid down in Shrisht Dhawan [Shrisht
Dhawan v. Shaw Bros., (1992) 1 SCC 534].
46. In this case, even though no issue as to maintainability of the
suit had been framed in the course of proceedings before the trial
court, there was an issue as to whether the agreement is true, valid
and enforceable which was answered against the sellers. Obviously,
owing to dismissal of the suit, the sellers did not appeal.
Nevertheless, having regard to our findings on the point as to
whether the buyer was “ready and willing”, we do not see the
necessity of proceeding with any further discussion on the point of
jurisdictional fact here.
47. However, we clarify that any failure or omission on the part of the
trial court to frame an issue on maintainability of a suit touching
jurisdictional fact by itself cannot trim the powers of the higher court
to examine whether the jurisdictional fact did exist for grant of relief
as claimed, provided no new facts were required to be pleaded and no
new evidence led.
xxx xxx xxx”
(Emphasis Supplied)
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 52 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
83. Therefore, in view of the aforesaid position of law, since this Court
has already affirmed the findings as regards the appellants/plaintiffs not
being entitled to relief of specific performance, this Court is not required to
delve into the issue of jurisdictional fact at this stage.
CONCLUSION:
84. In the light of the aforesaid, since appellants are not entitled to the
relief of specific performance, they are also not entitled to the relief of
permanent injunction.
85. In view of the detailed discussion hereinabove, no merit is found in
the present appeals. The same are, accordingly, dismissed.
MINI PUSHKARNA
(JUDGE)
JULY 06, 2026
Kr/Au/AK/c/SK
Signature Not Verified
Digitally Signed RFA 729/2018 & RFA 730/2018 Page 53 of 53
By:HARIOM SHARMA
Signing Date:06.07.2026
18:47:43
