Punjab-Haryana High Court
Kishan Chand And Others vs Rashid And Others on 7 July, 2026
-1-
207 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-3196-1996
Date of Decision: 07.07.2026
KISHAN CHAND AND OTHERS ...APPELLANTS
VERSUS
RASHID AND OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE PARMOD GOYAL
Present: Mr.Rajinder Goel, Advocate
Mr. Purusharth Dhull, Advocate
for the appellants.
Mr. Sandeep Vermani, Advocate
Mr. Aditya Vermani, Advocate
Mr. Ajay Pal Singh Gill, Advocate
for the respondents.
PARMOD GOYAL, J. (ORAL)
Present regular second appeal has been preferred by
appellants/defendants being aggrieved by judgment of reversal dated
19.09.1996, passed by learned District Judge, Gurgaon vide which judgment
and decree dated 02.08.1995 passed by the then learned Additional Senior
Sub Judge, Ferozpur, Jhirka was set aside and suit of plaintiffs/respondents
which was dismissed by learned Court of first instance was decreed in
favour of plaintiffs and against present appellants/defendants.
2. Plaintiffs/respondents had preferred a suit for specific
performance wherein they claimed that an agreement to sell dated
12.06.1985 was executed by defendant No.3 Mool Chand who was general
power of attorney of defendants No.1 and 2 who were the owners of suit
property in favour of father of plaintiffs-Sultan who died prior to filing of
the suit. Last date to honour agreement was agreed as 11.06.1986, however
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despite presence of their father in office of Sub-Registrar, none came from
side of defendants to execute sale deed. The suit was filed on 12.06.1989 for
specific performance of agreement dated 12.06.1985.
3. The suit was contested by appellants/defendants primarily on
the ground that appellants/defendants had duly offered to execute the sale
deed on 30.06.1986 by issuing notice dated 20.06.1986 and sale deed could
not be executed as it was plaintiffs/respondents who were not ready and
willing to get the sale deed executed and, therefore, suit for specific
performance was liable to be dismissed. Dismissal of suit was also sought
being barred by limitation.
4. Replication was also preferred by respondents/plaintiffs
wherein they had denied having received the notice.
5. Following issues were framed by learned Court of first
instance :-
1. Whether the defendants No.1 and 2 through their
general power of attorney defendant No.3 executed the
agreement of sale dated 12.06.1985 in favour of the
plaintiffs’ father Sultan as alleged? OPP
2. If issue No.1 is proved what total amount was to be paid
as sale price and what amount was paid or adjusted as
earnest money? OPP
3. Whether plaintiff’s father always ready and willing to
perform his part of agreement as per terms and
conditions laid down in the agreement? OPP
4. Whether the defendant No.1 acknowledged the alleged
agreement by his own letters? OPD
5. Whether the suit is not maintainable? OPD
6. Whether the suit is bad for mis-joinder of parties? OPD
7. Whether the suit is time barred? OPD
8. Whether the suit is liable to be rejected? OPD
9. Whether the plaintiff has no right to file the present suit?
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OPD
10. Whether the defendants are ready to perform their part
of contract and plaintiff’s father had no money to
perform the contract? OPD
11. Whether the defendant No.3 as general power of
attorney served a legal notice dated 20.06.1986 to
execute the contract? OPD
12. Relief.
6. Issues No.1, 2, 3 and 10 were decided in favour of plaintiffs.
Issue No.7 was decided in favour of defendants. Issues No.4, 5, 6, 8 and 9
were also decided in favour of plaintiffs. Suit was dismissed by learned
Court of first instance being time barred. Appellate Court had reversed the
finding of learned Court of first instance and had decreed the suit.
7. In the present case, facts as regards to execution of agreement
dated 12.06.1985 by appellant/defendant No.3 are not in dispute. Agreement
was for total consideration of Rs.46,000/- out of which Rs.5,000/- were paid
as earnest money. It is also not in dispute that appellant/defendant No.3
being general power of attorney was duly entitled to execute agreement to
sell as well as to execute sale deed.
8. Plaintiffs/respondents had claimed that they were ready and
willing to get the sale deed executed and therefore, on the last date fixed for
execution of sale deed i.e. on 11.06.1986, father of plaintiff-Sultan had duly
appeared before office of Sub Registrar and got his presence marked,
however, none had appeared on behalf of appellants/defendants.
9. On the other hand, case of appellants/defendants is that though
appellants/defendants could not appear on 11.06.1986, however,
immediately on 20.06.1986 a registered legal notice was issued by
appellant/defendant No.3 who was the general power of attorney of
CHIRANJEEV SINGH appellants/defendants No.1 and 2 wherein he had explained reasons for his
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failure to appear on 11.06.1986 as he had fallen ill when he was away to
Faridabad and had shown his readiness and willingness to perform his part
of contract within 10 days from the date of issuance of notice on 30.06.1986.
It is worth noticing that this very ground was duly taken by
appellants/defendants in their written statement.
10. In U. N. Krishnamurthy Vs. A. M. Krishnamurthy, (2023) 11
SCC 775, the Hon’ble Supreme Court had noticed as under:-
“32. In a suit for specific performance of a contract, the
Court is required to pose unto itself the following
questions, namely:
32.1. Whether there is a valid agreement of sale binding on
both the vendor and the vendee.
32.2. Whether the plaintiff has all along been and still is
ready and willing to perform his part of the contract as
envisaged under Section 16(c) of the Specific Relief Act,
1963.”
If any of the conditions is not met, suit for specific performance cannot be
decreed.
11. In present case, due execution of agreement is concerned, it is
not being disputed by either of the parties. Therefore, same stands proved.
The only dispute is whether plaintiffs/respondents were ready and willing to
perform their part of contract especially in view of plea taken by
appellants/defendants that they duly asked respondents/plaintiffs to get sale
deed executed on 30.06.1986, however despite offer by
appellants/defendants, respondents/plaintiffs had failed to get the sale deed
executed in their favour which shows that they are not ready and willing to
perform their part of contract.
12. The issue of readiness and willingness is also not res integra.
Hon’ble Supreme Court in number of judgments had considered the scope of
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term readiness and willingness. In U. N. Krishnamurthy v. A. M.
Krishnamurthy (supra), it was held as under:-
“22. The primary question for determination is whether the
respondent-plaintiff has proved his readiness and willingness to
perform his part of the contract or not?
23. Section 16 of the Specific Relief Act, 1963, as it stood at
the material time (prior to amendment with effect from 1-10-
2018), inter alia, provides:
“16. Personal bars to relief. — Specific
performance of a contract cannot be enforced in favour
of a person–
(a) who would not be entitled to recover compensation
for its breach; or
(b) who has become incapable of performing, or violates
any essential term of, the contract that on his part
remains to be performed, or acts in fraud of the contract,
or wilfully acts at variance with, or in subversion of, the
relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or
has always been ready and willing to perform the
essential terms of the contract which are to be performed
by him, other than terms the performance of which has
been prevented or waived by the defendant.
Explanation.–For the purposes of clause (c),–
(i) where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when
so directed by the court;
(ii) the plaintiff must aver performance of, or readiness
and willingness to perform, the contract according to its
true construction.”
24. Section 16 (c) of the Specific Relief Act, 1963 bars the
relief of specific performance of a contract in favour of a
person, who fails to aver and prove his readiness and
willingness to perform his part of contract. In view of
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Explanation (i) to clause (c) of Section 16, it may not be
essential for the plaintiff to actually tender money to the
defendant or to deposit money in court, except when so directed
by the Court, to prove readiness and willingness to perform the
essential terms of a contract, which involves payment of money.
However, Explanation (ii) says the plaintiff must aver
performance or readiness and willingness to perform the
contract according to its true construction.
25. To aver and prove readiness and willingness to perform
an obligation to pay money, in terms of a contract, the plaintiff
would have to make specific statements in the plaint and adduce
evidence to show availability of funds to make payment in terms
of the contract in time. In other words, the plaintiff would have
to plead that the plaintiff had sufficient funds or was in a
position to raise funds in time to discharge his obligation under
the contract. If the plaintiff does not have sufficient funds with
him to discharge his obligations in terms of a contract, which
requires payment of money, the plaintiff would have to
specifically plead how the funds would be available to him. To
cite an example, the plaintiff may aver and prove, by adducing
evidence, an arrangement with a financier for disbursement of
adequate funds for timely compliance with the terms and
conditions of a contract involving payment of money.
26. In Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC
512, this Court held that:
“40. … A person who fails to aver and prove that he has
performed or has always been ready and willing to
perform the essential terms of the contract which are to
be performed by him (other than the terms the
performance of which has been prevented or waived by
the defendant) is barred from claiming specific
performance. Therefore, even assuming that the
defendant had committed breach, if the plaintiff fails to
aver in the plaint or prove that he was always ready and
willing to perform the essential terms of contract which
CHIRANJEEV SINGH are required to be performed by him (other than the
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RSA-3196-1996 -7-terms the performance of which has been prevented or
waived by the plaintiff), there is a bar to specific
performance in his favour. Therefore, the assumption of
the respondent that readiness and willingness on the part
of the plaintiff is something which need not be proved, if
the plaintiff is able to establish that the defendant refused
to execute the sale deed and thereby committed breach, is
not correct. Let us give an example. Take a case where
there is a contract for sale for a consideration of Rs 10
lakhs and earnest money of Rs 1 lakh was paid and the
vendor wrongly refuses to execute the sale deed unless
the purchaser is ready to pay Rs 15 lakhs. In such a case
there is a clear breach by the defendant. But in that case,
if the plaintiff did not have the balance Rs 9 lakhs (and
the money required for stamp duty and registration) or
the capacity to arrange and pay such money, when the
contract had to be performed, the plaintiff will not be
entitled to specific performance, even if he proves breach
by the defendant, as he was not “ready and willing” to
perform his obligations.”
27. In Pt. Prem Raj v. DLF Housing Co. Construction (P)
Ltd. and Anr., AIR 1968 SC 1355 cited by Mr Venugopal, this
Court speaking through Ramaswamy, J. held that :
“5. … It is well settled that in a suit for specific
performance the plaintiff should allege that he is ready
and willing to perform his part of the contract….” and if
the fact is traversed, he is required to prove a
continuous readiness and willingness from the date of
the contract to the time of the hearing, to perform the
contract on his part. For such conclusion the learned
Judge relied upon the opinion of Lord Blanesburgh, in
Ardeshir Mama v. Flora Sassoon 55 IA 300 at pg.
372:AIR 1928 PC 208..
27. In DLF Housing Co. Construction (P) Ltd. (supra), in
the absence of an averment on the part of the plaintiff in the
CHIRANJEEV SINGH plaint, that he was ready and willing to perform his part of the
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RSA-3196-1996 -8-contract, it was held that the plaintiff had no cause of action so
far as the relief for specific performance was concerned. In this
case, of course, there is an averment in the plaint that the
respondent-plaintiff was all along ready and willing to perform
his obligations under the contract. The question is whether the
respondent-plaintiff had proved his readiness and willingness to
perform his obligations under the contract.
28. In N.P. Thirugnanam v. R. Jagan Mohan Rao and Ors.
(1995) 5 SCC 115, this Court reiterated that Section 16(c) of
the Specific Relief Act, 1963 envisages that the plaintiff must
plead and prove that he had performed or has always been
ready and willing to perform the essential terms of the contract
which were to be performed by him other than those terms, the
performance of which has been prevented or waived by the
defendant. In N.P. Thirugnanam (supra) this Court said that the
continuous readiness and willingness on the part of the plaintiff
was a condition precedent for grant of the relief of specific
performance.
29. This Court, in effect, held that for determining whether
the plaintiff was ready and willing to perform his part of the
agreement it is necessary for the Court to consider the conduct
of the plaintiff prior and subsequent to filing the suit for specific
performance. The relevant part of the judgment is extracted
hereinbelow:
“5. … Section 16(c) of the Act envisages that plaintiff
must plead and prove that he had performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than those terms the performance of which has
been prevented or waived by the defendant. The
continuous readiness and willingness on the part of the
plaintiff is a condition precedent to grant the relief of
specific performance. This circumstance is material and
relevant and is required to be considered by the court
while granting or refusing to grant the relief.”
CHIRANJEEV SINGH 30. In Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC
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243, this Court held that a finding as to whether the plaintiffs
were all along and still ready and willing to perform their part
of the contract, was a mandatory requirement under Section
16(c) of the Specific Relief Act. The Court would necessarily
have to arrive at the finding that the plaintiff all along were,
and still are ready and also willing to perform their part of the
contract, taking into account the entirety of the pleadings as
also the evidence brought on record. To quote this Court :
“So far there being a plea that they were ready and
willing to perform their part of the contract is there in
the pleading, we have no hesitation to conclude, that
this by itself is not sufficient to hold that the appellants
were ready and willing in terms of Section 16(c) of the
Specific Relief Act. This requires not only such plea but
also proof of the same. Now examining the first of the
two circumstances, how could mere filing of this suit,
after exemption was granted be a circumstance about
willingness or readiness of the plaintiff. This at the most
could be the desire of the plaintiff to have this property.
It may be for such a desire this suit was filed raising
such a plea. But Section 16(c) of the said Act makes it
clear that mere plea is not sufficient, it has to be
proved.”
31. In K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1, B.P.
Jeevan Reddy, J. said that grant of the relief of specific
performance is discretionary and the Court is not bound to
grant it. This Court further held that though time is not of
essence to a contract relating to transfer of property, such
contracts need to be completed within a reasonable time period.
Thus, the time element cannot be completely ignored.
13. In C.S. Venkatesh v. A.S.C. Murthy, 2020 (3) SCC 280,
Hon’ble Supreme Court, had culled out what is implied by the words ‘ready
and willing’ as under :
“16. The words “ready and willing” imply that the plaintiff was
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RSA-3196-1996 -10-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.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P.
Thirugnanam v. R. Jagan Mohan Rao, 1995 (5) SCC 115, it
was held that continuous readiness and willingness on the part
of the plaintiff is a condition precedent to grant of the relief of
specific performance. This circumstance is material and
relevant and is required to be considered by the court while
granting or refusing to grant the relief. If the plaintiff fails to
either aver or prove the same, he must fail. To adjudge whether
the plaintiff is ready and willing to perform his part of the
contract, the court must take into consideration the conduct of
the plaintiff prior to and subsequent to the filing of the suit
along with other attending circumstances. The amount of
consideration which he has to pay to the defendant must
necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline Manomani James
[Pushparani S. Sundaram v. Pauline Manomani James, 2002
(9) SCC 582, this Court has held that inference of readiness
and willingness could be drawn from the conduct of the
plaintiff and the totality of circumstances in a particular case.
CHIRANJEEV SINGH It was held thus: 2026.07.13 17:16 I attest to the accuracy and integrity of this document RSA-3196-1996 -11-
“5. …So far these being a plea that they were ready and
willing to perform their part of the contract is there in
the pleading, we have no hesitation to conclude, that
this by itself is not sufficient to hold that the appellants
were ready and willing in terms of section16(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.””
14. In Madhukar Nivrutti Jagtap v. Pramilabai Chandulal
Parandekar, 2020 (15) SCC 731, Hon’ble Supreme Court held that
‘readiness and willingness’ of the plaintiff to perform his part of the contract
has to be examined with reference to all the facts and circumstances and held
as under:
“13. When the agreements in question were for the sale of suit
property, the plaintiffs were entitled to take up the action
seeking specific performance. However, in order to succeed in
their claim, the plaintiffs were required to aver and prove that
they were always ready and willing to perform their part of the
contract. ……..
………
13.2. The question as to whether the plaintiff seeking specific
performance has been ready and willing to perform his part of
the contract is required to be examined with reference to all the
facts and the surrounding factors of the given case. The
requirement is not that the plaintiff should continuously
approach the defendant with payment or make incessant
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requests for performance. For the relief of specific performance,
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RSA-3196-1996 -12-which is essentially a species of equity but has got statutory
recognition in terms of the Specific Relief Act, 1963 [Its
forerunner being the Specific Relief Act, 1877.], the plaintiff
must be found standing with the contract and the plaintiff’s
conduct should not be carrying any such blameworthiness so as
to be considered inequitable. The requirement of readiness and
willingness of the plaintiff is not theoretical in nature but is
essentially a question of fact, which needs to be determined with
reference to the pleadings and evidence of parties as also to all
the material circumstances having bearing on the conduct of
parties, the plaintiff in particular. …
… … …
13.5. … when the plaintiffs had the limitation of three years for
filing the suit for specific performance, it cannot be said that
during the aforesaid period, the plaintiffs were required to show
overt act by them in furtherance of the agreement in question. …
In Pushparani S. Sundaram [Pushparani S. Sundaram v.
Pauline Manomani James, (2002) 9 SCC 582], the basic
requirements of Section 16 of the 1963 Act were reiterated. In
contrast to what is suggested on behalf of the appellants, we
may point out that recently, in R. Lakshmikantham v.
Devaraji [R. Lakshmikantham v. Devaraji, (2019) 8 SCC 62],
this Court has again explained that when the suit for specific
performance is filed within the period of limitation, delay cannot
be put against the plaintiff. This Court has said: (SCC p. 66,
para 11)
“11. … In the aforesaid circumstances, the High Court
was also incorrect in putting a short delay in filing the
suit against the plaintiff to state that he was not ready
and willing. In India, it is well settled that the rule of
equity that exists in England, does not apply, and so long
as a suit for specific performance is filed within the
period of limitation, delay cannot be put against the
plaintiff — See Mademsetty Satyanarayana v. G. Yelloji
Rao [Mademsetty Satyanarayana v. G. Yelloji Rao, AIR
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RSA-3196-1996 -13-1965 SC 1405] (para 7) which reads as under: (AIR p.
1409)
‘7. Mr. Lakshmaiah cited a long catena of English
decisions to define the scope of a court’s discretion.
Before referring to them, it is necessary to know the
fundamental difference between the two systems–
English and Indian–qua the relief of specific
performance. In England the relief of specific
performance pertains to the domain of equity; in India,
to that of statutory law. In England there is no period of
limitation for instituting a suit for the said relief and,
therefore, mere delay–the time lag depending upon
circumstances–may itself be sufficient to refuse the
relief; but, in India mere delay cannot be a ground for
refusing the said relief, for the statute prescribes the
period of limitation. If the suit is in time, delay is
sanctioned by law; if it is beyond time, the suit will be
dismissed as barred by time; in either case, no question
of equity arises.'””
15. Again in Rajesh Kumar v. Anand Kumar and Others, (2024)
13 SCC 80 Hon’ble Supreme Court while denying the relief of specific
performance on account of long delay in filing the relief of specific
performance held as under:
“23. The effect of filing a suit for specific performance after long
delay, may be at the fag end of period of limitation fell for
consideration before this Court in K.S. Vidyanadam v.
Vairavan [K.S.Vidyanadam v. Vairavan, (1997) 3 SCC 1]
wherein this Court held thus in para 10: (SCC p. 7)
“10. It has been consistently held by the courts in India,
following certain early English decisions, that in the case
of agreement of sale relating to immovable property, time
is not of the essence of the contract unless specifically
provided to that effect. The period of limitationCHIRANJEEV SINGH
prescribed by the Limitation Act for filing a suit is three
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RSA-3196-1996 -14-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)….”
24. In Azhar Sultana v. B. Rajamani [Azhar Sultana v. B.
Rajamani, (2009) 17 SCC 27 : (2011) 1 SCC (Civ) 761], this
Court held thus in para 28: (SCC p. 35)
“28. … The court, keeping in view the fact that it
exercises a discretionary jurisdiction, would be entitled
to take into consideration as to whether the suit had been
filed within a reasonable time. What would be a
reasonable time would, however, depend upon the facts
and circumstances of each case. No hard-and-fast law
can be laid down therefor. The conduct of the parties in
this behalf would also assume significance.”
25. In Saradamani Kandappan v. S.
Rajalakshmi [Saradamani Kandappan v. S. Rajalakshmi
(2011) 12 SCC 18 : (2012) 2 SCC (Civ) 104], this Court held
that every suit for specific performance need not be decreed
merely because it is filed within the period of limitation by
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RSA-3196-1996 -15-
ignoring time-limits stipulated in the agreement. The courts will
also frown upon suits which are not filed immediately after the
breach/refusal. The fact that limitation is three years does not
mean that a purchaser can wait for one or two years to file a suit
and obtain specific performance.
26. In Atma Ram v. Charanjit Singh [Atma Ram v.
Charanjit Singh, (2020) 3 SCC 311 : (2020) 2 SCC (Civ) 107],
this Court has observed in para 9 thus: (SCC p. 316)
“9. … No explanation was forthcoming from the
petitioner for the long delay of three years, in filing the
suit (on 13-10-1999) after issuing a legal notice on 12-
11-1996. The conduct of a plaintiff is very crucial in a
suit for specific performance. A person who issues a
legal notice on 12-11-1996 claiming readiness and
willingness, but who institutes a suit only on 13-10-1999
and that too only with a prayer for a mandatory
injunction carrying a fixed court fee relatable only to the
said relief, will not be entitled to the discretionary relief
of specific performance.”
16. The impact of unexplained delay on claiming an equitable relief
was considered by Hon’ble Supreme Court in Rajesh Kumar Vs. Anand
Kumar & Ors. (supra) in following terms.
“39. Now, let us examine the conduct of the appellant/plaintiff
on the aspect of approaching the Court for relief of specific
performance at a belated stage.
40. It is settled that for claiming an equitable relief such as
that of specific performance, the conduct of the party claiming
it must be beyond reproach. This includes that the plaintiff
approaches the Court on time, which does not merely mean
within the period of limitation itself but also promptly with
diligence and equitability.
43. After examining the entire facts of the case and the
evidence produced on record, we are of the definite view
that this is not a fit case where the discretionary relief of
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RSA-3196-1996 -16-specific performance can be granted in favour of the appellants.
Keeping in view the twin statutory mandate of ‘readiness’ and
‘willingness’, the appellants not only failed to demonstrate their
readiness and willingness but also failed to approach the Court
with quite promptitude, which disentitle them from grant of the
equitable relief of specific performance.”
17. Therefore, it is not in doubt that suit for specific performance
can be decreed by the Courts only if following facts are duly established on
record.
(i) Due execution of agreement between the parties;
(ii) That plaintiff/purchaser was and has been willing to
perform his part of contract throughout;
(iii) That purchaser had sufficient financial capacity to pay
balance consideration amount can be looked into by
Courts to find readiness and willingness on the part of
purchaser;
(iv) That plaintiff/purchaser had not slept over his right and
delayed the matter taking advantage of passing of time
by not preferring suit within reasonable time.
18. To prove that plaintiffs are not entitled to specific performance
as they had failed to get sale deed executed and to prove due issuance of
notice, appellants/defendants had duly examined Advocate Sh. Moti Lal
Gupta, author of legal notice as DW2. Perusal of evidence of DW2 goes to
show that he had duly asserted to have issued notice dated 20.06.1986 on
behalf of defendants through general power of attorney (defendant No.3) and
the fact that it was sent through registered post and registered envelop was
received back with report of postal authorities that the addressee namely
Sultan i.e. predecessor-in-interest of respondents/plaintiffs had refused to
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receive the same. DW2 had duly proved the postal receipt as Ex.D2, notice
as Ex.D3 and envelop received back unserved upon refusal by Sultan-
predecessor of respondents/plaintiffs with report of postal authorities as
Ex.D1. Evidence of DW2 was supported by DW3-Postman who had duly
stated that he had taken the registered letter to the addressee-Sultan and met
him, however, Sultan had refused to receive the same. There is no rebuttal to
the evidence of appellants/defendants in the shape of evidence of DW2 and
DW3.
19. Appellants/defendants have therefore, succeeded in proving that
they had issued notice on 20.06.1986, wherein they had clearly shown their
willingness to execute the sale deed on 30.06.1986. Mool Chand, the general
power of attorney of appellant/defendant No.1 also appeared as DW4 and
had clearly stated to have issued notice on 20.06.1986 for executing the sale
deed as was stated by DW2. Nothing from cross-examination of DW2 or
DW3 or DW4 could be made out as to doubt their assertions in examination-
in-chief. Issuance of notice has therefore, has gone unchallenged and
unrebutted.
20. In the present case, once it is proved that appellants/defendants
were ready to execute sale deed on 30.06.1986 after initial default on their
part on 11.06.1986, it was incumbent upon plaintiffs/respondents to explain
as to why the said offer was not accepted and why they had preferred the suit
not within the reasonable time but on the last date of limitation as admittedly
suit for specific performance for which last date was 11.06.1986 was
preferred by plaintiffs/respondents only on 12.06.1989 (11.06.1989 being
Sunday) during summer vacations.
21. Faced with above, learned counsel for plaintiffs/respondents
argued that the delay in filing the suit was on account of the fact that father
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of plaintiffs/respondents who had entered into agreement dated 12.06.1985
had died and all the above facts were not known to plaintiffs/respondents
and it was subsequently, when they came to know about execution of
agreement and failure on the part of appellants/defendants to execute the
same, they had preferred the suit. It is also argued that since in the
agreement the only remedy available to plaintiffs/respondents was to get the
sale deed executed through Court of law, therefore, plaintiffs/respondents
were not bound to appear and get the sale deed executed on 30.06.1986.
22. Learned counsel for appellants/defendants however states that
the argument being raised by learned counsel for plaintiffs/respondents is in
direct contradiction with pleadings of plaintiffs/respondents wherein they
have claimed that immediately after death of their father, they had
approached appellants/defendants for execution of sale deed but they had
refused.
23. In the present case, since appellants/defendants have succeeded
in proving that they had issued notice dated 20.06.1986 showing their
willingness to execute the sale deed on 30.06.1986, therefore, it was
incumbent upon plaintiffs/respondents to show justification for not getting
the sale deed in their favour. Not accepting the offer of
appellants/defendants to execute the sale deed on 30.06.1986 goes to show
that it was plaintiffs/respondents who had defaulted as they have failed to
get the sale deed executed in their favour when so offered by
appellants/defendants. This failure on the part of plaintiffs in fact establishes
that plaintiffs were not ready and willing to perform their part of contract
and they have slept over their rights till last day of limitation. The discretion
to allow specific performance, therefore, cannot be exercised in favour of
plaintiffs.
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24. Moreover, no evidence was led by plaintiff to show that
plaintiffs i.e. their predecessor-in-interest had financial capacity to honour
his part of contract. Except for assertion that Sultan (predecessor-in-interest)
was present on 11.06.1986, no evidence to show that Sultan had means to
pay balance consideration was led. Failure to accept offer to execute sale
deed on 30.06.1986 by defendant No.3 would raise adverse inference
regarding his capacity to pay balance consideration. Learned Court below
failed to take notice of this aspect of the case and had failed to conclude that
it was plaintiffs who were not ready and willing throughout to perform their
part.
25. In present case, last date for execution of sale deed was
11.06.1986. Legal notice dated 20.06.1986 was issued to predecessor of
plaintiffs i.e. Sultan by defendants asking him to get sale deed executed on
30.06.1986. Thereafter, no steps were taken to get the agreement enforced.
The suit was preferred after three years. No notice to get the sale deed
executed was issued. No explanation as to why no steps to enforce the
agreement is forthcoming. This conduct of plaintiff in fact goes to show that
plaintiff had no financial capacity to perform his part of agreement and
therefore, he delayed the matter. Out of Rs.46,000/- only, Rs.5,000/- was
paid as earnest money. Therefore, delay in filing suit immediately after
refusal by appellants/defendants would go against plaintiffs/respondents
seeking specific performance.
26. In view of above discussion, learned Appellate Court has erred
in not appreciating that plaintiffs/respondents have failed to prove their
readiness and willingness throughout to succeed in the suit for specific
performance. However, since agreement was never cancelled by
appellants/defendants and time is not the essence in an agreement to sell,
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therefore, the amount of earnest money of Rs.5,000/- has to be returned by
appellants/defendants along with interest @ 9% p.a. from the date of receipt
till its realization.
27. Present appeal is allowed in above terms. Judgment and decree
passed by First Appellate Court is set aside. Judgment and decree of learned
Court of first instance is restored subject to above modification. Suit of
plaintiffs/respondents is dismissed, subject to recovery rights of recover
earnest money.
28. Pending application(s), if any, is/are disposed of accordingly.
(PARMOD GOYAL)
07.07.2026 JUDGE
Chiranjeev/Sunil
Whether Speaking/Reasoned : Yes/No
Whether Reportable : Yes/No
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