Jharkhand High Court
Md. Ujjair Khan @ Babu Khan vs Gulam Hussan Son Of Alim on 31 July, 2026
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
( 2026:JHHC:22923 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 217 of 2024
1. Md. Ujjair Khan @ Babu Khan, son of Amir Miya @ Khan, aged
about 65 years
2. Sabra Khatoon wife of Late Shahjan Khan, aged about 25 years
3. Jainab Praveen (Minor) Daughter of Late Shahjan Khan, aged
about 8 years
4. Asad Khan (Minor) son of Late Shahjan Khan, aged about 4 years
5. Babu (Minor) son of Late Shahjan Khan aged about 1 year
(Appellants No.3 to 5 are minor daughter and sons of the Appellant
No.2 and thus being represented by the Appellant No.2, who is
their natural mother.
All residents of Alaflah Colony, Road No.1, Pugmil, P.O. + P.S.-
Sadar District- Hazaribagh ... ... Appellants/Defendants
Versus
Gulam Hussan son of Alim, aged about 38 years, resident of Mauja
Noora, P.O. + P.S. and District- Hazaribagh.
... ... ... Respondent/Plaintiff
---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellants : Mr. Suraj Prakash, Advocate
: Mr. Zaid Ahmad, Advocate
For the Respondent : Mr. Anil Kumar, Advocate
---
C.A.V. On 08.04.2026 Pronounced on 31.07.2026
1. This first appeal has been filed against the Judgment and
Decree dated 29.02.2024 (Decree signed on 13.03.2024) passed by the
learned Civil Judge, Senior Division-VII, Hazaribagh in Original
(Title) Suit No. 204/2019 whereby the suit for specific performance of
Contract filed by the plaintiff was decreed in part, ex-parte against the
defendants/appellants and to accept the balance consideration amount
and to execute the agreement to sale dated 08.01.2015 in favour of
the plaintiff/respondent.
2. The appellants were the defendants and the respondent was the
plaintiff before the learned trial court.
3. The plaintiff had prayed for the following reliefs:
(a) That the Defendant Nos. 1 to 5 be directed to execute
Sale Deed in respect of Schedule-B lands under suit for
specific performance of contract as per Agreement for
Sale dated 08.01.2015 in favour of the Plaintiff by
accepting the balance consideration amount for the
land mentioned in Schedule-B. In default of the
( 2026:JHHC:22923 )Defendants, the same be executed through the process
of the Court in favour of the Plaintiff or his nominee.
(b) That consideration money may be permitted to be
deposited in the Court to the credit of the defendants.
(c) That in default of defendant, possession of the land
under contract as detailed in Schedule-B of the Plaint
be given to the Plaintiff.
(d) That by issue of permanent injunction, the defendants be
restrained from disposing or alienating the properties
under contract and for causing obstruction in peaceful
enjoyment of the Plaintiff.
(e) That cost of the suit be also awarded.
(f) That any other relief just and equitable plaintiff entitled
to be also awarded.
(g) That in alternative, consideration amount of
Rs.15,00,000/- paid by the Plaintiff in Advance to the
Defendants be ordered to be refunded back to the
Plaintiff together with interest (@ 18% per annum and
compensation and the same be recovered from person
and properties of Defendants and be paid to the
Plaintiff.
4. The suit property as mentioned in Schedule-B of the plaint is of
total Area 23.50 decimals which is a part of schedule A property. The
agreement of sale dated 08.01.2015 was between the plaintiff and
Shahzada Khan who was shot dead on 09.07.2018 and the suit was
filed by the plaintiff against the defendants, the legal heirs and
successors of Shahzada Khan.
5. Case of the Plaintiff/Respondent
A. The lands acquired by Shahzada Khan (son of Defendant No.1)
through Registered Sale Deeds have been described in schedule
A of the plaint. Defendant no.2 is the wife of Shahzada Khan
and defendant no.3 are the children of Shahzada Khan (now
deceased).
B. Shahzada Khan entered into an agreement of sale dated
08.01.2015 with Plaintiff with respect to schedule B property
for a total consideration price of Rs.38,50,000/- only. Part
payment of the sale consideration was made.
C. The Contract “Agreement to Sell” entered between the
Shahzada Khan and the plaintiff was valid from 08.01.2015 till
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07.01.2016 which was subsequently extended till 30.06.2016
with due consent by both the parties and by further part
payments. Total amount paid was Rs.15,00,000- (Rupees
Fifteen Lacs) only on different dates and time detailed and
described in Schedule-C .
D. The plaintiff repeatedly requested Shahzada Khan to accept the
balance consideration amount and to execute sale deed in
favour of plaintiff but Shahzada Khan avoided the same on one
pretext or the other and evaded the acceptance of money and
execution of sale deed. The plaintiff also personally went to
him and asked for the same. Shahzada Khan also told plaintiff
that whenever there will be need for money, he will ask plaintiff
and plaintiff has to pay.
E. The plaintiff further stated that he also sent Legal Notice dated
30.05.2018 to Shahzada Khan for performing his part of
contract by accepting the balance due consideration amount and
by executing the sale deed of the aforesaid lands.
F. On 25.06.2018, Shahzada Khan gave reply to the Legal Notice
of the plaintiff accepting the contract entered between him and
plaintiff and also accepting the advance money received by him
as part consideration price of the contract. He made false
allegations on plaintiff just to avoid execution of sale deed and
performing his part of contract.
G. On 09.07.2018, Shahzada Khan was shot dead by some
unidentified persons at Hazaribag near his residence.
H. Due to sudden incident in the family, the plaintiff waited for 40
days as per customs and rites of Muslim Law and then
approached Defendant No.1, father of Shahzada Khan and
showed him the agreement executed by his son and the
plaintiff. The plaintiff also requested Defendant No.1 and 2 to
accept the balance due amount under the agreement for sale and
to perform the execution of the sale deed as per law to which
Defendant Nos.1 and 2 out rightly denied the
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contract/agreement entered between Shahzada Khan and the
plaintiff and they further denied the execution of sale deed.
I. Ultimately, plaintiff again sent Legal Notice to Defendant
Nos.1 to 5 for performing their part of contract and to execute
sale deed in favour of the plaintiff after receiving the due
balance consideration amount. The Defendant Nos.1 to 5
replied on 11.06.2019 to the Legal Notice sent by the Plaintiff
denying all the facts and circumstances and they also denied the
existence of any such land in the name of Shahzada Khan and
so neither Shahzada Khan had entered into any such agreement
with the plaintiff, nor he received any sort of advance money
from the plaintiff, nor he was capable.
J. The plaintiff further stated that he is always ready and willing
to perform and still ready and willing to perform his part of
contract, but the defendants always deferred the matter on one
pretext or the other and always avoided the same.
K. He further stated that the cause of action for the suit arose on
08.01.2015, the day on which agreement to sell was executed
and payment was made: 25.01.2015 when payments were
made, 17.12.2015 when again payment was made, on
07.01.2016 the date on which Agreement to Sell land expired,
30.06.2016 the date for which agreement was extended, on
30.05.2018 when Legal Notice was sent to Shahzada Khan, on
25.06.2018 when Shahzada Khan replied to the legal Notice, on
09.07.2018 when Shahzada Khan was murdered, on 30.04.2019
when Legal Notice was sent to Defendant Nos.1 to 5, on
11.06.2019 when Defendants Nos.1 to 5 replied to the Legal
Notice and had flatly refused which cast a cloud and is
continuing day to day within the jurisdiction of the learned
court. The plaintiff valued the suit at Rs.38,51,000/- only i.e.
Rs.38,50,000/- as value of the land as given in agreement to sell
and Rs.1,000/- for injunction and paid the ad- valorem court
fee.
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6. The suit was filed on 26.09.2019 and admitted on 04.03.2020
and thereafter, summons were issued to the defendants, but they did
not appear in the case within the stipulated period and the learned trial
court vide order dated 20.01.2023 passed order to proceed the suit ex-
parte against the defendants.
7. The learned trial court framed following points to adjudicate the
claim of the plaintiff:
I. Whether the suit as framed and filed in its present
form is maintainable?
II. Whether the plaintiff has got valid cause of action
for the suit?
III. Whether the suit is hit by non-joinder and mis-
joinder necessary parties?
IV. whether the plaintiff is entitled to get a decree of title
of schedule land?
V. Whether the specific performance of contract for
sale deed dated 08.01.2015 executed between parties
is genuine and valid?
VI. Is the plaintiff entitled to the relief as claimed?
8. The learned trial court considered the materials available on
record and first took up Issue Nos. III, IV and V.
It has been recorded that issue no. III regarding non joinder and
mis-joinder of parties was not pressed.
While considering issue no. V as to, whether the specific
performance of contract for sell deed dt. 08.01.2015 executed
between parties is genuine and valid, the learned trial court held that
the agreement of sale was valid and also held that the plaintiff proved
in his favour that he was always ready and willing to perform his part
of the contract. The learned court discussed the materials on record in
the following manner: –
The plaintiff has produced and examined 4 (Four) witnesses
including himself. PW-1 is Md. Taslim, PW-2 is Jawed, PW-3
is Md. Kalim Ansari, PW-4 is Gulam Husain (Plaintiff). All
these witnesses have filed affidavits by way of their evidence
for purpose of examination-in-chief and all the witnesses in
examination-in-chief have supported the averments of the
plaint and supported the plaintiff.
None turned up for cross-examination of this witness because
ex-party of defendants and hence he was discharged without
cross-examination,
5
( 2026:JHHC:22923 )The documentary evidence has been adduced as Ext-1-
Certified copy of Agreement between Sahazada Khan and
Gulam Hussain Dt. 08.01.2015. Ext-2- Sale Deed no, 11200
dt.29.10.2009, Ext-3 Sale deed no. 12255 dt. 23.11.2009,
Marks X- Legal Notice dt. 30.05.2018, Marks-X1-Reply to
Legal Notice dt. 25.06.2018, Marks-X2- Legal Notice dt.
30.04.2019, Marks-X3 Reply to Legal Notice dt.11.06.2019.
In the result the Issue No. V is answered in an affirmative and
in favour of the plaintiff. Shahjada Khan Son of Defendant
No.1 entered contract to “Agreement to Sell” dated
08.01.2015 with Plaintiff for the Lands of Village Mauza Romi,
Thana Katkamsandi No.78, District Hazaribag. Khata No.35,
Plot No.1303, Area 03 decimals, Khata No.35. Plot No.1303,
area 04 decimals and Khata No.165, Plot No.1298, Area 16.50
decimals for a total consideration price of Rs 38,50,000
(Rupees Thirty-Eight Lacs Fifty Thousand) Only. The total
lands under contract/Agreement to sell 23.50 decimals. The
Details of Land under Agreement is detailed and described in
Schedule “B” of this Plaint. The Contract “Agreement to Sell”
entered between the Shahjada Khan and Plaintiff was valid
from 08.01.2015 till 07.01.2016 which was subsequently
extended till 30.06.2016 with due consent by both the parties
and by further part payments from time to time as detailed as
on 08.01.2015 for Rs.4,00,000/- vide Cheque No.019516 of
State Bank of India, Hazaribag, on 08.01.2015 for
Rs.3,00,000/- vide Cheque No.190373 of State Bank of India,
Hazaribag, on 25.01.2015 vide Cheque No.241289 for Rs.
5,00,000/- of Bank of India, Hazaribag and Rs.3,00,000-Cash.
Total amount being paid is Rs.15,00,000/- (Rupees Fifteen
Lacs) only. The total Payment made by the Plaintiff to
Shahjada Khan was Rs.15,00,000/- (Rupees Fifteen Lacs) only
on different dates and time detailed and described in Schedule
“C” of this Plaint. The Plaintiff repeatedly requested Khan to
accept the balance Shahjada khan to accept the balance
consideration amount and to execute the Sale Deed in favour
of Plaintiff for the aforesaid lands but Shahjada Khan avoided
the same on one pretext or the other and evaded the
acceptance of money and execution of Sale Deed. On
09.07.2018 when Shahjada Khan was murdered.
It is settled law that for Transfer of property Act 1882 and
relief of specific performance, on death of vendor, legal heirs
executed the contract and received balance consideration, the
Plaintiff has to prove that all along and till the final decision
of the suit, it is the bounden duty of the Plaintiff to prove his
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readiness and willingness by adducing evidence. In this suit,
the plaintiff proved in his favour that he was always ready and
willing to perform his part of the contract. Hence in this
circumstance, these above issues are decided against the
Defendants.
9. The issue no. IV as to, Whether the plaintiff is entitled to get a
decree of title of the schedule lands, was decided by the learned trial
court in the following manner: –
“Since, it has come in the findings that in the Shahjada Khan
Son of Defendant No.1 entered contract to “Agreement to Sell”
dated 08.01.2015 with Plaintiff for the Lands of Village/Mauza
Romi, Thana Katkamsandi No.78, District Hazaribag, Khata
No.35, Plot No.1303, Area 03 decimal: Khata No.35, Plot
No.1303, area 04 decimals and Khata No.165, Plot No.1298,
Area 16.50 decimals for a total consideration price of
Rs.38,50,000/-(Rupees Thirty-Eight Lacs Fifty Thousand)
Only. The Plaintiff repeatedly requested Shahjada Khan to
accept the balance consideration amount and to execute the
agreement in favour of Plaintiff. Issue No. IV is answered
accordingly and in favour of the plaintiff.”
10. The learned trial court took up Issue No. II, I and VI and
recorded its findings as under:
Issue No. II: Whether the plaintiff has got a valid cause of
action?
The cause of action is said to have arisen on several dates
when demand for to accept the balance consideration amount
and to execute the Sale Deed in favour of Plaintiff which lastly
was 11.06.2019 and the defendants refused for any amicable
execute the agreement. Further the Issue No. IV and V have
gone in favour of the plaintiff and hence, it is held that there is
a valid cause action for the suit. Issue No. II is answered in an
affirmative and in favour of the plaintiff.
Issue No.I Is the suit as framed and filed in its present from
maintainable?
Consequent to the Issues. No. II to V having been answered in
favour of the plaintiff, it is held that the suit is maintainable as
framed Issue No.I answered in an affirmative and in favour of
the plaintiff.
Issue No. VI: Is the plaintiff entitled to the relief as claimed?
The plaintiff is entitled to relief as claimed and after death of
vendor, legal heirs executed the agreement and received7
( 2026:JHHC:22923 )balance consideration. In the result the Issue No.VI is
answered accordingly.”
11. Accordingly, the learned trial court decided Issue Nos. I, II, IV,
V and VI in favour of the plaintiff and decreed the suit in part, ex-
parte against the defendants and passed an order against the
defendants to accept the balance consideration amount and to execute
the agreement in favour of plaintiff.
Arguments on behalf of the appellants
12. The learned counsel for the appellants submitted that the 1st
point which falls for consideration is that the suit was barred by
limitation which has not been taken care of by the learned court. The
proceeding was ex-parte, but the learned court was under an
obligation to consider whether the suit was filed within the period of
limitation.
13. He referred to Article 54 of the Limitation Act and submitted
that the suit has to be filed within the period of three years, if express
date is mentioned for performance of contract and if no date is
mentioned, then three years commences from the date of refusal to
perform the contract.
14. He has submitted that as per the agreement, the validity of the
agreement was for one year which was extended till 30.06.2016, but
the suit was filed beyond the period of limitation.
15. The learned counsel for the appellants further submitted that the
2nd point which falls for consideration is the point as to whether the
plaintiff has sufficiently proved readiness and willingness to perform
his part of contract. He submitted that mere bald statement of
readiness and willingness, without any particulars, is not sufficient to
establish readiness and willingness in terms of Section 16 of the
Specific Relief Act. In this case, no cogent evidence has been
produced in support of readiness and willingness.
16. No issue was framed on the point of readiness and willingness
by the learned trial court, but the court has examined the same.
17. Once the suit if found to be barred by limitation, there is no
question of grant of any relief.
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18. The learned counsel for the appellants relied upon the following
judgments in support of his argument which are as under: –
(i) (2024) 20 SCC 363 (A. Valliammai vs. K.P. Murali and
Others, Para- 21 and 22; Limitation for preferring a suit
for specific performance is 3 years.
(ii) (2012) 5 SCC 265 (C.N. Ramappa Gowda vs. C.C.
Chandregowda (dead) by LRs. And Anr. Para-17 and
29; Non filing of written statement- Even in absence of WS,
burden of proof would remain on plaintiff and his mere
assertion in plaint/affidavit would not be sufficient to
discharge the burden.
(iii) (2006) 5 SCC 558 (Anil Rishi vs. Gurbaksh Singh),
Para 8, 9 and 19; Burden of proving a fact rest on the
party who substantially asserts the affirmative issue and
not on the party who denies it, further initial onus is also
upon the plaintiff, which needs to be satisfactorily
discharged.
(iv) (1996) 4 SCC 526 (His Holiness Aacharya Swami
Ganesh Dassji vs. Sita Ram Thapar) Para-2; Hon’ble
Apex Court gave a clear distinction between readiness to
perform and willingness to perform the contractual
obligation and for determining the willingness to perform,
the conduct needs to be properly scrutinized.
(v) (2005) 6 SCC 243 [Umabai and Another vs. Nilkantha
Dhondiba Chavan (Dead) and Another] Para-30; The
conduct needs to properly observed mandatorily to
ascertain to readiness to perform and willingness to
perform the contractual obligation.
(vi) (2019) 9 SCC 381 (Ravi Setia vs. Madan Lal and
Others) Para- 9 and 16 Entirety of pleadings and
evidence along with attending circumstances need to
considered to determine the readiness and willingness.
(vii) (2023) 11 SCC 775 U.N. Krishnamurthy (since
deceased) through Legal representatives -vs- A.M.9
( 2026:JHHC:22923 )Krishnamurthy Para- 45 to 50 Principle of section 16
Specific Relief Act summarized.
(viii) 2025 SCC Online Jhar 3099 (Sobhagmal Jain and
Others -vs- Uday Lal Sahu & Others.
(ix) F.A. No. 25 of 2024 Para- 30 and 31- “The Hon’ble High
Court in abovementioned case has clearly held that the
fact of readiness and willingness does not only require to
be pleaded but same is also required to be proved, failing
which no relief for specific performance can be granted as
section 16 SRA 1963 specifically bars such relief on
violation of the provisions of the section 16.”
Arguments on behalf of the respondent
19. Learned counsel for the respondent submitted that no specific
time for performance was mentioned in the agreement and therefore,
the period of limitation will commence only when there is refusal to
perform, but there was no refusal by the son of the defendant, who has
expired.
20. The legal notice was issued on 30.05.2018 to the son of the
defendant wherein it was mentioned that he was trying to avoid
execution of the agreement but no refusal on the part of the son of the
defendant was mentioned and thereafter the son of the defendant, who
had executed the agreement of sale, expired on 09.07.2018 without
any refusal on his part to perform his part of the contract. After the
death of the son of the defendant, a legal notice was issued on
30.04.2019 to the defendant and the response was given by the
defendant on 11.06.2019 denying their obligation to execute the and
register the sale deed and ultimately the suit was filed on 26.09.2019.
Consequently, when the date of refusal is taken into consideration, the
suit was filed within the period of limitation.
21. There was no requirement of framing any specific issue as the
proceeding itself was ex-parte but the learned court has considered all
aspects of the matter and scrutinized the materials on record to come
to a finding that the plaintiff was ready and willing to perform his part
of the contract.
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22. He further submitted that the judgement passed by the learned
court is well reasoned and no occasion arises for this court to interfere
with the findings of the learned court.
23. Although an alternative plea for refund of the amount which
was paid by the plaintiff has been taken, but there was no occasion for
the court to pass any decree on such point as the plaintiff had
sufficiently proved readiness and willingness to perform his part of
the agreement.
24. The learned counsel for the respondent filed Synopsis of the
arguments citing the following judgments in support of his arguments:
(i) 2025 SCC Online SC 2378 (K.S. Manjunath and Others)
Para-82 to 88
(ii) (2017) 4 SCC 654 (Kanthamani versus Nasreen Ahmed)
Para- 24 to 26
(iii) (1997) 2 SCC 200 (Sukhbir Singh and Others versus
Brij Pal Singh and Others) Para-5
(iv) (2022) 14 SCC 793 (P. Daivasigamani v. S. Sambandan)
Para- 21 to 24, 27 and 34
(v) (1997) 4 SCC 481 (Bibi Jaibunisha versus Jagdish
Pandit and others) Para-4
25. The respondent -plaintiff has also raised the following
points: –
i. The defendants have admitted the execution of agreement and
the contents therein.
ii. The substantial amount has been paid through cheque and in the
reply to the notice, the executant to the agreement has not
denied the acceptance of the amount.
iii. The extension of agreement was also admitted by the
appellants.
iv. The Factum of payment of Rs.3,00,000/- on 17.12.2025 as
mentioned in plaint and mentioned in the notice to the Shahjada
Khan has not been denied, rather admitted.
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v. The plaintiff has brought on record by way of Exhibit-1
(agreement to sale dated 08.01.2015) and the contents therein
have been admitted by the executant and as well by the
appellants.
vi. The Plaintiff has brought on record the sale deed by virtue of
which the schedule properties have been acquired by Shahjada
Khan (died) and therefore, there is denial of rights by the
appellants in reply to notice dated 11.06.2019.
vii. Shahjada Khan was communicated through notice (30.05.2018
Mark-X) that the plaintiff was ready and willing to take the sale
deed.
viii. The issuance to notice just after 40 days of death of Shahjada
Khan to the legal heirs shows the willingness and readiness to
take the sale.
ix. The statement with respect to readiness and willingness have
specifically been pleaded in the plaint which has never been
cross examined, however the plaintiff in his statement on oath
has also asserted in the deposition that he is still ready and
willing to take the deed and ready to make payment of
consideration amount.
x. That the impugned Judgment and Decree has been passed in ex-
parte proceedings; on the face of the Judgment, there is specific
finding with respect to the readiness and willingness of the
respondent/plaintiff to perform his part of the contract, as
required under Section 16 (C) of the specific Relief Act, 1963.
xi. It is submitted that the averment of readiness and willingness
has been specifically and categorically pleaded in the Plaint
filed by the respondent/plaintiff. It is well-settled that the
compliance of Section 16(C) of the Specific Relief Act, 1963
has to be in spirit and substance and not in letter and form. The
Hon’ble Supreme Court of Indian in P. Daivasigamani v.
Sambandan (2022) 14 SCC 793, relying upon the three- Judge
Bench decision in Syed Dastagir V.T.R. Gopalakrishna Setty,
(1999) 6 SCC 337, has unequivocally held as under: –
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“So the whole gamut of the issue raised is, how to
construe a plea specially with reference to Section 16(c)
and what are the obligations which the plaintiff has to
comply with in reference to his plea and whether the
plea of the plaintiff could not be construed to conform
to the requirement of the aforesaid section, or does this
section require specific words to be pleaded that he has
performed or has always been ready and is willing to
perform his part of the contract….No specific
phraseology or language is required to take such a
plea. The language in Section 16(c) does not require
any specific phraseology but only that the plaintiff must
aver that he has performed or has always been and is
willing to perform his part of the contract. So, the
compliance of ‘readiness and willingness’ has to be in
spirit and substance and not in letter and form…” (para
9, Syed Dastagir, as cited in Para 22, Daivasigamani).
xii. In ex-parte proceedings, the unchallenged evidence of the
Plaintiff stands unimpeached and must be accepted. The
Plaintiff examined himself on oath and categorically deposed
that he is ready and willing to perform his part of the contract
and ready to tender the balance consideration amount for
execution of the sale deed. This deposition, having gone
unchallenged, constitutes sufficient proof of readiness and
willingness. The Hon’ble Supreme Court in A. Kanthamani v.
Nasreen Ahmed, (2017) 4 SCC 654, has held as under:
“The plaintiff proved her readiness and willingness to
perform her part of the agreement and also proved her
financial capacity to purchase the suit property by
adducing adequate evidence.”
xiii. The readiness and willingness of the Plaintiff is conclusively
established by his conduct, which speaks more than any formal
pleading. The Hon’ble Supreme Court in P. Daivasigamani v.
S. Sambandan (2022) 14 SCC 793, has held that readiness
refers to the capacity of the plaintiff to perform the contract-
which would include his financial position to pay the purchase
prior- and willingness refers to the intention of the plaintiff as a
purchaser to perform his part of the contract, which is inferred13
( 2026:JHHC:22923 )by scrutinizing the conduct of the plaintiff purchaser, including
the attending circumstances.
On Conduct Establishing Readiness and Willingness
xiv. The following undisputed facts, borne out by documentary
evidence on record, conclusively demonstrate the readiness and
willingness of the Respondent/Plaintiff:
(a) The Respondent/Plaintiff paid Rs. 15,00,000/-out of the
total agreed consideration of Rs. 38,50,000/-, by way of
cheque and cash, on 08.01.2015, 25.01.2015 and
17.12.2015, as mentioned in Schedule C to the Plaint. This
payment was neither denied by Shahjada Khan in his reply
dated 25.06.2018, nor has it been disputed by the
Appellants in any subsequent proceedings.
(b) The Respondent/Plaintiff in his Plaint, in para 6 and 14 has
stated therein that the Plaintiff repeatedly requested
Shahjada Khan to accept the balance consideration and to
execute the Sale Deed but time and again Shahjada Khan
evaded the acceptance of money and execution of sale
deed. It has also been mentioned in the aforesaid
paragraphs that the Plaintiff himself personally went to
him for execution of the deed.
(c) It has also been averred in the Plaint that the Plaintiff has
always been ready and willing to perform his part of
contract, but the Defendant has deferred the matter and
avoided the same.
(d) It is also submitted that the Sole Respondent is his
deposition, which has never been contradicted, has
mentioned that he went to the house of the Appellant with
Rs. 23,50,000/- for execution of the sale deed.
(e) Plaintiff issued a legal notice upon Shahjada Khan on
30.05.2018 demanding execution of the sale deed and
acceptance and willingness.
(f) Within 40 days of the death of Shahjada Khan, the
Respondent/plaintiff issued a notice dated 30.04.2019 to
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the Appellants (his legal heirs), which fact itself
demonstrates the uninterrupted readiness and willingness
of the Respondent to perform his party of the contract.
(g) The suit was filed on 26.09.2019, well within the period of
limitation prescribed under Article 54 of the Limitation
Act, 1963.
xv. It is not necessary for the Plaintiff to produce his bank passbook
or to carry cash with him or to deposit the balance amount in
court at the time of filing the suit in order to prove readiness
and willingness. It is sufficient to establish the capacity to pay
the sale consideration. Reliance has been placed upon the
judgement passed by the Hon’ble Supreme Court in Sukhbir
Sing v. Brij Pal Sing, (1997) 2 SCC 200, Para 5.
On the admission by the appellants’ predecessor
xvi. It is submitted that the Reply dated 25.06.2018 issued by
Shahjada Khan the original vendor and predecessor-in-interest
of the Appellants, in response to the legal notice dated
30.05.2018, specifically admitted the execution of the
Agreement to Sell dated 08.01.2015 and the consideration
amount received thereunder. The Appellants, being the legal
heirs of Shahjada Khan, are bound by this admission. In
Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654, the
Hon’ble Supreme Court held that where the defendant did not
dispute the execution of the agreement, and the plaintiff proved
readiness and willingness with evidence, the decree for specific
performance was rightly granted. The same ration applies with
full force to the present case.
xvii. The Agreement to Sell dated 08.01.2015 has been exhibited on
record as Exhibit-1. Its contents have been admitted by the
Appellants’ predecessor, Shahjada Khan, through his reply
notice. The Appellants cannot now be permitted to resile from
this admitted position. In A. Kanthamani v. Nasreen Ahmet,
(2017) 4 SCC 654, the Hon’ble Supreme Court held that the
purchaser need not prove possession of sufficient money or
15
( 2026:JHHC:22923 )
vouch for specific scheme for financing transaction and
payment of the half of the sale consideration in advance is
indicative of the Plaintiff’s readiness and willingness to
perform his/her part of the agreement, as mentioned in Para- 24
and 32.2 of the said judgement .
On the absence of a framed issue not vitiating the decree
xviii. The argument of the appellants that the absence of a specific
framed issue on readiness and willingness vitiates decree is
wholly untenable in law. It is settled that where a fact is
specifically pleaded in the plaint and evidence is led thereon-
whether or not a separate issue is formally framed – the Court’s
finding on such a fact is not rendered a nullity. In the present
case, the Respondent/Plaintiff not only pleaded readiness and
willingness in the Plaint but also proved the same by adducing
evidence. The Appellants, by their consistent default in
appearing before the Trial Court, voluntarily surrendered the
opportunity to cross-examine the Plaintiffs witnesses. They
cannot now be heard to complain of a deficiency in the ex parte
proceedings that their own conduct occasioned.
xix. It is relevant to note that the Appellants appeared before the
Learned Trial Court on 18.08.2023, the ex- parte order recalled
on 18.09.2023, and were directed to file Written Statement,
Written Statements were indeed filed on 11.10.2023 and
11.12.2023. However, the Appellants thereafter again took no
steps to have their Written Statements placed on record on
20.12.2023, 06.01.2024. and 19.01.2024, compelling the
Learned Trial Court to once again proceed ex -parte on
01.02.2024. A party who defaults at every stage of the trial,
despite multiple opportunities granted by the Court, cannot
challenge the ex parte decree on grounds of procedural
deficiency.
xx. The said principle applies with equal force to the submission of
the Appellants in the present case. The Appellants filed a
Written Statement but failed to have it taken on record by their
16
( 2026:JHHC:22923 )
own default. Having not pressed the plea of absence of
readiness and willingness before the Learned Trial Court, as
they were never present, they may not be permitted to raise the
same for the first time in this Frist Appeal.
On the question of time being of the essence
xxi. The appellants have sought to benefit from the fact that the
Agreement’s original period expired on 07.01.2016 and was
extended to 30.06.2016. It is submitted that time is not of the
essence of the contract for the sale of immovable property
unless the agreement specifically stipulates so and there are
special facts and circumstances supporting such a finding.
Reference has been made to the judgement passed by the
Hon’ble Supreme Court in Bibi Jaibunisha v. Jagdish Pandit,
(1997) SCC 481, in Para 4 and 6.
xxii. The Hon’ble Supreme Court in P. Daivasigamani v. S.
Sambandan, (2022) 14 SCC 793, has reiterated that the
principle that time is not the essence of the contract in the case
of immovable properties, unless there are grounds to hold to the
contrary, is applied without being unfair and inequitable to the
defendant seller. It was further observed in Para 29 that the
purpose of a sale can vary from the need for liquid cash,
education, medical, child’s marriage or purchasing another
property- and the court should not ignore that a person sells
property when he needs money and therefore expects the
money in stipulated or reasonable time. The offer of the
plaintiff purchaser in writing and the time and occasion when
the offer to pay the balance amount is made is an important
factor when the court examines the question of discretion. It the
present case, the Plaintiff not only paid Rs. 15,00,000/- as
advance but also repeatedly called upon the vendor- and, after
his death, upon his legal heirs- to execute the deed,
demonstrating continuous readiness and willingness.
On the question of limitation
17
( 2026:JHHC:22923 )
xxiii. In the present case, Shahjada Khan did not respond to the
respondent’s demands after the extended period. After the death
of Shahjada Khan on 09.07.2018, notice was issued to the legal
heirs on 30.04.2019; the suit was filed on 26.09.2019, which is
indisputably within three years of the date of refusal. The suit is
not barred by limitation.
On the discretionary nature of specific performance and its
proper exercise
xxiv. It is submitted that the grant of relief of specific performance is
a discretionary and equitable relief, but the discretion is not
arbitrary- it is guided by sound and reasonable judicial
principles. The material questions to be gone into for the grant
of specific performance have been enumerated by the Hon’ble
Supreme Court in P. Diavasigamani v. S Sambandan, (2022)
14 SCC 793, at Para 25.
xxv. In the present case, all the aforesaid prerequisites are met: (a)
the Agreement to Sell dated 08.01.2015 is a valid and
concluded contract, admitted by the vendor himself in his reply
notice dated 25.06.2018: (b) the respondent/plaintiff has been
and is ready and willing to perform his part, as demonstrated by
his conduct, payments made, notices issued and deposition on
oath; (c) the Plaintiff has in fact part- performed the contract by
paying Rs. 15,00,000/- as advance; (d) no particular hardship to
the Appellants has been demonstrated, they are the legal heirs
of a vendor who himself never denied the agreement; and (e)
there is no question of the suit being for alternative relief as the
Plaintiff seeks only specific performance. The Learned Trial
Court has thus rightly exercised its discretion in decreeing the
suit.
xxvi. It is submitted that continuous readiness and willingness on the
part of the plaintiff purchaser, from the date the balance sale
consideration was payable in terms of the agreement, till the
decision of the suit, is a condition precedent for the grant of
relief of specific performance. In the present case, the
18
( 2026:JHHC:22923 )
Respondent has categorically stated on oath that he is still ready
and willing to pay the balance consideration and take the sale
deed. This deposition was not cross-examined by the
Appellants.
Findings of this court.
26.This court finds that the learned trial court had decided the issue
with regard to the genuineness of the agreement of sale dated
08.01.2015 executed between the parties which was marked as
Exhibit-1 and the learned court on the basis of materials on record
decided issue no. (v) in favour of the plaintiff by holding that
Shahzada Khan, son of defendant no. 1 entered into contract of
agreement of sale dated 08.01.2015 with the plaintiff with respect
to Schedule-B property of the plaint, which was valid from
08.01.2015 till 07.01.2016 and was subsequently extended till
30.06.2016 with due consent of both the parties and a total
payment of Rs. 15 lacs were made whose details has been
mentioned in Schedule-C of the plaint.
27.The aforesaid finding with respect to the genuineness of the
agreement of sale, its initial validity till 07.01.2016 and its
extension till 30.01.2016 and payment of Rs. 15 lacs out of total
consideration amount of Rs. 38.50 lacs are well established from
the evidences placed on record and no argument has been
advanced by the learned counsel for the appellants with respect to
the aforesaid finding. The last payment of Rs. 3 lakhs was made by
the plaintiff on 17.12.2015 when the agreement was extended till
30.06.2016.
Points for determination.
28. Considering the disputes involved in the case and the arguments
advanced, the following points of determination arise in the present
first appeal:
(i) Whether the suit filed by the plaintiff was barred by
limitation?
(ii) Whether the plaintiff has sufficiently proved his readiness
and willingness to perform his part of contract in terms of19
( 2026:JHHC:22923 )Section 16 of the Specific Relief Act?
29. In course of trial, the plaintiff examined 04 witnesses in support
of his case. PW-1 is Md. Taslim, PW-2 is Jawed Khan, PW-3 is Md.
Kalim Ansari and PW-4 is Gulam Husain, who is the plaintiff of the
case.
30. PW-1 (Md. Taslim) filed his examination-in-chief on affidavit
stating that he is well acquainted with the facts of the case and he
knows and identifies both the parties. He further stated that an
agreement dated 08.01.2015 was entered into between the plaintiff
and Shahjada Khan, the son of the Defendant No.1 for sale and
purchase of 23.50 decimals of land situated at Village- Romi, Circle-
Katkamsandi, District- Hazaribag for a consideration amount of
Rs.38,50,000/-. The plaintiff has already paid Rs.15,00,000/- to
Shahjada Khan, the son of Defendant No.1, but on 09.07.2018, he
came to know that Shahjada Khan has been murdered. The plaintiff
sent a legal notice to the defendants for selling the land. The first
notice was sent to Shahjada Khan and thereafter, the second notice
was sent to the Defendant No.1 and other defendants who are the wife
and children of Shahjada Khan. He denied the claim of the defendants
that the son of Defendant No.1 had not entered into any agreement.
He stated that the claim of the plaintiff is true.
31. PW-2 (Jawed Khan) filed his examination-in-chief on affidavit
stating that he is well acquainted with the facts of the case and he
knows and identifies both the parties. He further stated that an
agreement dated 08.01.2015 was entered into between the plaintiff
and Shahjada Khan, the son of the Defendant No.1 for sale and
purchase of the land and Shahjada Khan had put his signature in his
presence and he had also signed as a witness in the agreement which
consists of 4 pages. He further stated that the agreement was executed
with mutual consent for sale and purchase of 23.50 decimals of land
situated at Village- Romi, Circle- Katkamsandi, District- Hazaribag
for a consideration amount of Rs.38,50,000/-. The plaintiff has
already paid Rs.15,00,000/- to Shahjada Khan, the son of Defendant
No.1, but on 09.07.2018, he came to know that Shahjada Khan has
20
( 2026:JHHC:22923 )
been murdered. The plaintiff sent a legal notice to the defendants for
selling the land. The first notice was sent to Shahjada Khan and
thereafter, the second notice was sent to the Defendant No.1 and other
defendants who are the wife and children of Shahjada Khan. He
denied the claim of the defendants that the son of Defendant No.1 had
not entered into any agreement. He stated that the claim of the
plaintiff is true.
32. PW-3 (Md. Kalim Ansari) filed his examination-in-chief on
affidavit stating that he is well acquainted with the facts of the case
and he knows and identifies both the parties. He further stated that an
agreement dated 08.01.2015 was entered into between the plaintiff
and Shahjada Khan, the son of the Defendant No.1 for sale and
purchase of the land. The agreement was prepared in his presence and
Shahjada Khan had put his signature and he had also signed as a
witness in the agreement. He further stated that the agreement was
executed with mutual consent for sale and purchase of 23.50 decimals
of land situated at Village- Romi, Circle- Katkamsandi, District-
Hazaribag for a consideration amount of Rs.38,50,000/-. The plaintiff
has already paid Rs.15,00,000/- to Shahjada Khan, the son of
Defendant No.1, but on 09.07.2018, he came to know that Shahjada
Khan has been murdered. The plaintiff sent a legal notice to the
defendants for selling the land. The first notice was sent to Shahjada
Khan and thereafter, the second notice was sent to the Defendant No.1
and other defendants who are the wife and children of Shahjada Khan.
He denied the claim of the defendants that the son of Defendant No.1
had not entered into any agreement. He stated that the claim of the
plaintiff is true.
33. PW-4 (Gulam Husain) is the plaintiff of the case. He filed his
examination-in-chief on affidavit stating that he is well acquainted
with the facts of the case and he knows and identifies the defendants
of the case. He further stated that Shahjada Khan, the son of the
Defendant No.1 had purchased 23.50 decimals of the land situated at
Village- Romi, Circle- Katkamsandi, District- Hazaribag vide Sale
Deed No.11200 dated 29.10.2009 and Sale Deed No.12255 dated
21
( 2026:JHHC:22923 )
23.11.2009 and Shahjada Khan had got possession over the land. He
further stated that an agreement dated 08.01.2015 was entered into
between him and Shahjada Khan, the son of the Defendant No.1 for
sale of the land. The agreement consisting of 4 pages was prepared /
written in his presence and Shahjada Khan and the witnesses had
signed on it in his presence. He further stated that the agreement dated
08.01.2015 was executed between him and Shahjada Khan with
mutual consent for sale and purchase of 23.50 decimals of land
situated at Village- Romi, Circle- Katkamsandi, District- Hazaribag
for a consideration amount of Rs.38,50,000/-. The agreement was for
the period from 08.01.2015 to 07.01.2016 and later on, with consent
of Shahjada Khan, the agreement period was extended upto
30.06.2016. He further stated that he has already paid Rs.15,00,000/-
to Shahjada Khan i.e. Rs.4,00,000/- vide Cheque No.019516 dated
08.01.2015 of State Bank of India, Hazaribag Rs.3,00,000/- vide
Cheque No.190373 dated 08.01.2015 of State Bank of India,
Hazaribag, Rs.5,00,000/- vide Cheque No.241289 dated 25.01.2015 of
Bank of India, Hazaribag and Rs.3,00,000/- in cash.
He stated that when he went to the house of Shahjada Khan with
Rs.23,50,000/- and requested him to execute sale deed for the land,
Shahjada Khan avoided to sell the land. Thereafter, he sent a legal
notice dated 30.05.2018 to Shahjada Khan. Shahjada sent his reply to
the legal notice on 25.06.2018. On 09.07.2018, he came to know that
Shahjada Khan has been murdered. After 40 days of the occurrence,
when he met the father and family of Shahjada Khan and informed
them about the sale purchase agreement, they flatly refused on the
matter. When he requested the Defendant Nos.1 and 2 to accept the
rest consideration amount of the agreement and to execute the sale
deed for the land, they flatly refused. Thereafter, on 30.04.2019, the
again sent a legal notice to the defendants for selling the land. On
11.06.2019, the defendants sent their reply to the legal notice refusing
to have executed any agreement by Shahjada Khan. He further stated
that the claims of the Defendant Nos.1 and 2 that Shahjada Khan has
not executed any agreement and there is no such land in the name of
22
( 2026:JHHC:22923 )
Shahjada Khan and Shahjada Khan has not taken any money from
him is false. He also stated that he is ready to pay the rest
consideration amount mentioned in the agreement and to purchase the
land, but as the defendants have refused, he has filed the suit in court.
He also stated that his claim is true.
34. The plaintiff exhibited the following documents in support of
his case:
Exhibit-1 Certified copy of Agreement between Shahjada
Khan and Gulam Hussain dated 08.01.2015
Exhibit-2 Sale Deed No.11200 dated 29.10.2009
Exhibit-3 Sale Deed No.12255 dated 23.11.2009
Mark-X Legal Notice dated 30.05.2018
Mark-X1 Reply to Legal Notice dated 25.06.2018
Mark-X2 Legal Notice dated 30.04.2019
Mark-X3 Reply to Legal Notice dated 11.06.2019
35. The material dates are as under:
1. 29.10.2009, The Scheduled property purchased by
23.11.2009, Shahzada Khan through various Registered sale
07.02.2008 deeds duly registered on 29.10.2009,
23.11.2009, 07.02.2008, as mentioned in
Schedule A to the Plaint
2. 08.01.2015 The respondent/Plaintiff entered into an
agreement to sell with Shahjada Khan with
respect to the property mentioned at Schedule
B to the Plaint. The agreement was valid till
08.01.2016.
3. 08.01.2015, Total consideration was Rs. 38,50,000/- out of
25.01.2025, which the petitioner paid the amount to the
17.12.2015 tune of Rs. 12,00,000/- through cheque as
mentioned in the agreement.
4. 30.06.2016 The agreement was valid initially till
07.01.2016, which was extended mutually till
30.06.2016 vide endorsement dated 17.12.2015
and on that date Rs. 3 lakhs were paid.
23
( 2026:JHHC:22923 )
Total consideration amount paid was Rs. 15
lakhs till 17.12.2015 when the validity of the
agreement was extended till 30.06.2016.
5. 30.05.2018 As per the plaintiff, the Plaintiff repeatedly
requested for execution of sale deed and for
acceptance of the balance consideration but
Shahjada Khan avoided the acceptance of the
consideration of amount and execution of the
sale deed and left with no option the plaintiff
send the legal notice dated 30.05.2018.
6. 25.06.2018 Reply given to the notice dated 30.05.2018
accepted the contract and the amount of
payment but denied the other statements made
in the legal notice and stated that the agreement
had expired and could not be enforced under
law.
7. 09.07.2018 Shahjada Khan was shot dead by unidentified
persons.
8. 30.04.2019 Notice dated 30.04.2019 was issued by the
Plaintiff to the legal heirs of Shahjada Khan,
the defendants, asking for execution of sale
deed.
9 11.06.2019 Defendants denied all the statements made in
the legal notice and refused to execute the sale
deed.
9. 26.09.2019 The plaintiff filed the suit for specific
performance of contract to accept the balance
consideration and for execution of the sale deed
and made an alternative prayer to refund the
consideration amount of Rs. 15 lakhs.
Total amount paid was Rs.15,00,000- (Rupees Fifteen Lacs) only
on different dates and time detailed and described in Schedule-C
of the plaint which is quoted as under:
24
( 2026:JHHC:22923 )
Sl. Dated Cheque/ Bank Amount
Cash
1. 08.01.2015 019516 State Bank of India, Rs. 4,00,000/-
Hazaribag
2. 25.01.2015 241289 Bank of India, Rs. 5,00,000/-
Hazaribag
3. 08.01.2015 190373 State Bank of India, Rs. 3,00,000/-
Hazaribag
4. 17.12.2015 Cash — Rs. 3,00,000/-
Total Rs. 15,00,000/-
Point of determination no. (ii)
Whether the plaintiff has sufficiently proved his readiness and
willingness to perform his part of contract in terms of Section 16 of
the Specific Relief Act?
36. The Hon’ble Supreme Court in the judgement reported in
(1995) 5 SCC 115 [N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr)]
has held at paragraph 5 as under:
“5. It is settled law that remedy for specific performance is
an equitable remedy and is in the discretion of the court,
which discretion requires to be exercised according to
settled principles of law and not arbitrarily as adumbrated
under Section 20 of the Specific Relief Act, 1963 (for short
“the Act”). Under Section 20, the court is not bound to
grant the relief just because there was a valid agreement
of sale. Section 16(c) of the Act envisages that plaintiff
must plead and prove that he had performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than those terms the performance of which has
been prevented or waived by the defendant. The
continuous readiness and willingness on the part of the
plaintiff is a condition precedent to grant the relief of
specific performance. This circumstance is material and
relevant and is required to be considered by the court
while granting or refusing to grant the relief. If the
plaintiff fails to either aver or prove the same, he must
fail. To adjudge whether the plaintiff is ready and willing
to perform his part of the contract, the court must take
into consideration the conduct of the plaintiff prior and
subsequent to the filing of the suit along with other
attending circumstances. The amount of consideration25
( 2026:JHHC:22923 )which he has to pay to the defendant must of necessity be
proved to be available. Right from the date of the
execution till date of the decree he must prove that he is
ready and has always been willing to perform his part of
the contract. As stated, the factum of his readiness and
willingness to perform his part of the contract is to be
adjudged with reference to the conduct of the party and
the attending circumstances. The court may infer from
the facts and circumstances whether the plaintiff was
ready and was always ready and willing to perform his
part of the contract.” (emphasis supplied)
37. In Sukhbir Singh v. Brij Pal Singh, (1997) 2 SCC 200 the
Hon’ble Supreme Court has held as under while considering the
conduct of the parties dealing with readiness and willingness to
perform the part of the contract by the petitioners before the Hon’ble
Supreme Court: –
“5. Law is not in doubt and it is not a condition that the
respondents should have ready cash with them. The fact that
they attended the Sub-Registrar’s office to have the sale deed
executed and waited for the petitioners to attend the office of the
Sub-Registrar is a positive fact to prove that they had necessary
funds to pass on consideration and had with them the needed
money with them for payment at the time of registration. It is
sufficient for the respondents to establish that they had the
capacity to pay the sale consideration. It is not necessary that
they should always carry the money with them from the date of
the suit till the date of the decree. It would, therefore, be clear
that the courts below have appropriately exercised their
discretion for granting the relief of specific performance to the
respondents on sound principles of law.”
38. In A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654, the
Hon’ble Supreme Court held as under:-
“24. The expression “readiness and willingness” has been the
subject-matter of interpretation in many cases even prior to its
insertion in Section 16(c) of the Specific Relief Act, 1963.
While examining the question as to how and in what manner,
the plaintiff is required to prove his financial readiness so as to
enable him to claim specific performance of the
contract/agreement, the Privy Council in a leading case which
arose from the Indian courts (Bombay) in Bank of India
Ltd. v. Jamsetji A.H. Chinoy 1949 SCC OnLine PC 81,
approved the view taken by Chagla A.C.J., and held inter alia
that26
( 2026:JHHC:22923 )“it is not necessary for the plaintiff to produce the money or
vouch a concluded scheme for financing the transaction to prove
his readiness and willingness.”
25. The following observations of the Privy Council are
apposite: (Jamsetji case [Bank of India Ltd. v. Jamsetji A.H.
Chinoy 1949 SCC OnLine PC 81
“… Their Lordships agree with this conclusion and the grounds
on which it was based. It is true that Plaintiff 1 stated that he
was buying for himself, that he had not sufficient ready money
to meet the price and that no definite arrangements had been
made for finding it at the time of repudiation. But in order to
prove himself ready and willing a purchaser has not necessarily
to produce the money or to vouch a concluded scheme for
financing the transaction. The question is one of fact, and in the
present case the appellate court had ample material on which to
found the view it reached. Their Lordships would only add in
this connection that they fully concur with Chagla A.C.J. when
he says:
‘In my opinion, on the evidence already on record it was
sufficient for the court to come to the conclusion that Plaintiff 1
was ready and willing to perform his part of the contract. It was
not necessary for him to work out actual figures and satisfy the
court what specific amount a bank would have advanced on the
mortgage of his property and the pledge of these shares. I do not
think that any jury–if the matter was left to the jury in
England–would have come to the conclusion that a man, in the
position in which the plaintiff was, was not ready and willing to
pay the purchase price of the shares which he had bought from
Defendants 1 and 2.’
For the foregoing reasons, their Lordships answer Question (4)
in the affirmative.” (emphasis supplied)
26. This Court in Sukhbir Singh v. Brij Pal Singh (1997) 2 SCC
200 : AIR 1996 SC 2510 followed the aforesaid principle with
these words:
“5. Law is not in doubt and it is not a condition that the
respondents should have ready cash with them. The fact that
they attended the Sub-Registrar’s office to have the sale deed
executed and waited for the petitioners to attend the office of the
Sub-Registrar is a positive fact to prove that they had necessary
funds to pass on consideration and had with them the needed
money with them for payment at the time of registration. It is
sufficient for the respondents to establish that they had the
capacity to pay the sale consideration. It is not necessary that
they should always carry the money with them from the date of
the suit till the date of the decree. It would, therefore, be clear
that the courts below have appropriately exercised their
discretion for granting the relief of specific performance to the
respondents on sound principles of law.”
27
( 2026:JHHC:22923 )
39. In P. Daivasigamani v. S. Sambandan, (2022) 14 SCC 793 it
has been held that Readiness and willingness are not one, but two
separate elements. Readiness means the capacity of the plaintiff to
perform the contract, which would include the financial position to
pay the purchase price. Willingness refers to the intention of the
plaintiff as a purchaser to perform his part of the contract. Willingness
is inferred by scrutinising the conduct of the plaintiff purchaser,
including attending circumstances [ See para 2 in Ganesh
Dassji v. Sita Ram Thapar, (1996) 4 SCC 526. Continuous readiness
and willingness on the part of the plaintiff purchaser from the date the
balance sale consideration was payable in terms of the agreement to
sell, till the decision of the suit, is a condition precedent for grant of
relief of specific performance.
“21. Readiness and willingness are not one, but two separate
elements. Readiness means the capacity of the plaintiff to
perform the contract, which would include the financial position
to pay the purchase price. Willingness refers to the intention of
the plaintiff as a purchaser to perform his part of the contract.
Willingness is inferred by scrutinising the conduct of the
plaintiff purchaser, including attending circumstances [ See para
2 in Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526.
Continuous readiness and willingness on the part of the plaintiff
purchaser from the date the balance sale consideration was
payable in terms of the agreement to sell, till the decision of the
suit, is a condition precedent for grant of relief of specific
performance [See para 5 in N.P. Thirugnanam v. R. Jagan
Mohan Rao, (1995) 5 SCC 115. Also see Ardeshir
Mama v. Flora Sassoon, 1928 SCC OnLine PC 43.
22. The expression “readiness and willingness” used in Section
16(c) of the said Act, has been interpreted in a catena of
decisions by this Court, in the light of facts and circumstances of
the cases under consideration for the purpose of granting or
refusing to grant the relief of specific performance of a contract.
The said expression cannot be interpreted in a straitjacket
formula. In a very apt decision of this Court in Syed
Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337, a
three-Judge Bench of this Court, construing a plea of “readiness
and willingness to perform” in view of the requirement of
Section 16(c) and its Explanation, observed as under:
“9. So the whole gamut of the issue raised is, how to construe a
plea specially with reference to Section 16(c) and what are the
obligations which the plaintiff has to comply with in reference28
( 2026:JHHC:22923 )to his plea and whether the plea of the plaintiff could not be
construed to conform to the requirement of the aforesaid section,
or does this section require specific words to be pleaded that he
has performed or has always been ready and is willing to
perform his part of the contract. In construing a plea in any
pleading, courts must keep in mind that a plea is not an
expression of art and science but an expression through words to
place fact and law of one’s case for a relief. Such an expression
may be pointed, precise, sometimes vague but still it could be
gathered what he wants to convey through only by reading the
whole pleading, depending on the person drafting a plea. In
India most of the pleas are drafted by counsel hence the
aforesaid difference of pleas which inevitably differ from one to
the other. Thus, to gather true spirit behind a plea it should be
read as a whole. This does not distract one from performing his
obligations as required under a statute. But to test whether he
has performed his obligations, one has to see the pith and
substance of a plea. Where a statute requires any fact to be
pleaded then that has to be pleaded may be in any form. The
same plea may be stated by different persons through different
words; then how could it be constricted to be only in any
particular nomenclature or word. Unless a statute specifically
requires a plea to be in any particular form, it can be in any
form. No specific phraseology or language is required to take
such a plea. The language in Section 16(c) does not require any
specific phraseology but only that the plaintiff must aver that he
has performed or has always been and is willing to perform his
part of the contract. So the compliance of “readiness and
willingness” has to be in spirit and substance and not in letter
and form. So to insist for a mechanical production of the exact
words of a statute is to insist for the form rather than the
essence. So the absence of form cannot dissolve an essence if
already pleaded.”
23. It was further observed therein that
“11. … It is significant that this Explanation carves out a
contract which involves payment of money as a separate class
from Section 16(c). Explanation (i) uses the words “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”. (emphasis supplied) This speaks in a negative term what
is not essential for the plaintiff to do. This is more in support of
the plaintiff that he need not tender to the defendant or deposit
in court any money but the plaintiff must [as per Explanation
(ii)] at least aver his performance or readiness and willingness to
perform his part of the contract.”
(emphasis in original)
24. In Sukhbir Singh v. Brij Pal Singh (1997) 2 SCC 200, this
Court had laid down that law is not in doubt and it is not a
condition that the respondents (plaintiffs) should have ready
cash with them. It is sufficient for the respondents to establish
29
( 2026:JHHC:22923 )
that they had the capacity to pay the sale consideration. It is not
necessary that they should always carry the money with them
from the date of the suit till the date of the decree. The said
principle was followed in A. Kanthamani v. Nasreen Ahmed
(2017) 4 SCC 654, in C.S. Venkatesh v. A.S.C. Murthy (2020) 3
SCC 280, etc.
27. The court should examine whether the plaintiff purchaser
had, in fact, performed his part of the contract, and if so, how
and to what extent, and in what manner he has performed, and
whether such performance was in conformity with the terms of
the contract. The status of the parties, and whether the plaintiff
purchaser is a speculator in the property, who buys and sells
properties, and whether his conduct reflects an attempt to gain
on account of the rise in the price of the property, hoping that
the delay in payment of full consideration would go to his
advantage, will be a relevant consideration [See K.S.
Vidyanadam v. Vairavan, (1997) 3 SCC 1]. Incapacity of the
defendant seller and whether the plaintiff purchaser is operating
in property trade, or as a financer or middleman and the
defendant seller is a typical property owner, may also affect the
exercise of discretion.
34. Having regard to the facts and circumstances of the case and
to the conduct of the parties, we have no hesitation in holding
that there was due compliance of Section 16(c) read with its
Explanation on the part of the respondent and that it was the
appellant who had failed to perform as per the terms of the
agreement, though called upon by the respondent to perform.
The High Court also had rightly held that the plaintiff had
complied with the requirements of Section 16(c) of the said Act
by making a specific pleading with regard to his readiness and
willingness and also proving the same by reliable evidence. This
Court does not find any illegality or infirmity in the impugned
judgment [S. Sambandam v. P. Daivasigamani, 2010 SCC
OnLine Mad 3459] passed by the High Court. We, therefore
confirm the same, so far as granting of decree for specific
performance of the agreement in question is concerned.”
40. In 2025 SCC OnLine SC 2378 (K.S. Manjunath and Others -vs-
Moorasavirappa alias Muttanna Chennappa Batil, Since Deceased by His
Lrs and Others) it has been again held that Section 16(c) of the Act of
1963 requires that a plaintiff must both plead and prove that he has
either performed, or has always been ready and willing to perform, the
essential terms of the contract incumbent upon him. It is now a settled
law that a party seeking enforcement of a contract must establish that
all conditions precedent have been satisfied, and that he has either
discharged or stood prepared and willing to discharge his obligations
30
( 2026:JHHC:22923 )
under the contract. The expressions “ready” and “willing” under
Section 16(c) carry distinct connotations. It has been held as under: –
(III). Readiness and willingness of the Original Vendees to
perform the ATS
“82. Section 16(c) of the Act of 1963 requires that a plaintiff
must both plead and prove that he has either performed, or has
always been ready and willing to perform, the essential terms of
the contract incumbent upon him. It is now a settled law that a
party seeking enforcement of a contract must establish that all
conditions precedent have been satisfied, and that he has either
discharged or stood prepared and willing to discharge his
obligations under the contract. The expressions “ready” and
“willing” under Section 16(c) carry distinct connotations. In JP
Builders v. A. Ramadas Rao, (2011) 1 SCC 429, this Court
clarified this distinction, holding that “readiness” relates to the
plaintiff’s capacity to perform the contract, including his
financial ability to pay the consideration, whereas “willingness”
is demonstrated through the plaintiff’s conduct, evidencing his
genuine intent to perform the contract. The relevant observation
is as under:
“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.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Roo at SCC
para 5, this Court held:
5…. Section 16(c) of the Act envisages that the plaintiff must
plead and prove that he had performed or has always been
ready and willing to perform the essential terms of the contract
which are to be performed by him, other than those terms the
performance of which has been prevented or waived by the
defendant. The continuous readiness and willingness on the part
of the plaintiff is a condition precedent to grant the relief of
specific performance. This circumstance is material and
relevant and is required to be considered by the court while
granting or refusing to grant the relief. If the plaintiff fails to
either aver or prove the same, he must fail. To adjudge whether
the plaintiff is ready and willing to perform his part of the
contract, the court must take into consideration the conduct of
the plaintiff prior and subsequent to the filing of the suit along
with other attending circumstances. The amount of
consideration which he has to pay to the defendant must of
necessity be proved to be available. Right from the date of the
execution till date of the decree he must prove that he is ready
and has always been willing to perform his part of the contract.
As stated, the factum of his readiness and willingness to perform
31
( 2026:JHHC:22923 )
his part of the contract is to be adjudged with reference to the
conduct of the party and the attending circumstances. The court
may infer from the facts and circumstances whether the plaintiff
was ready and was always ready and willing to perform his part
of the contract.”
(Emphasis Supplied)
83. Further, in the case of Satya Jain v. Anis Ahmed
Rushdie, (2013) 8 SCC 131, this Court had further observed that
the test of readiness and willingness would depend on the
overall conduct of the plaintiff both prior to and subsequent to
the filing of the suit for specific performance and such conduct
of the plaintiff has to be viewed in light of the conduct of the
defendant. The relevant observation is as under:
“36. The principles of law on the basis of which the readiness
and willingness of the plaintiff in a suit for specific performance
is to be judged finds an elaborate enumeration in a recent
decision of this Court in J.P. Builders v. A. Ramadas
Rao [(2011) 1 SCC 429. In the said decision several earlier
cases i.e. R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC
140], N.P. Thirugnanam v. R. Jagan Mohan Rao [(1995) 5 SCC
115] and P. D’Souza v. Shondrilo Naidu [(2004) 6 SCC 649]
have been noticed. To sum up, no straitjacket formula can be
laid down and the test of readiness and willingness of the
plaintiff would depend on his overall conduct i.e. prior and
subsequent to the filing of the suit which has also to be viewed
in the light of the conduct of the defendant. Having considered
the matter in the above perspective we are left with no doubt
whatsoever that in the present case Plaintiff 1 was, at all times,
ready and willing to perform his part of the contract. On the
contrary it is the defendant who had defaulted in the execution
of the sale document. The insistence of the defendant on further
payments by the plaintiff directly to him and not to the Income
Tax Authorities as agreed upon was not at all justified and no
blame can be attributed to the plaintiff for not complying with
the said demand(s) of the defendant.”
(Emphasis Supplied)
41. Upon perusal of the aforesaid judgements, this court is of the
considered view that the findings on the point of readiness and
willingness to perform the part of the contract of sale is essentially a
mixed question of fact and law and has to be decided on the basis of
the terms and conditions of agreement, conduct of the parties right
from the date of agreement of sale and the attending circumstances.
There is no doubt that it is not a condition that the plaintiff should
have ready cash with them. It is sufficient for them to establish that
32
( 2026:JHHC:22923 )
they had the capacity to pay the sale consideration and were ready to
pay the same . It is not necessary that they should always carry the
money with them from the date of the suit till the date of the decree.
Thus, the financial capacity and readiness to pay right from the date of
the agreement and in terms of the agreement and thereafter has to be
pleaded and proved by the plaintiff seeking specific performance of
contract of sale. The court has to examine whether the plaintiff
purchaser had, in fact, performed his part of the contract, and if so,
how and to what extent, and in what manner he has performed, and
whether such performance was in conformity with the terms of the
contract.
42. This court is of the considered view that this would be the
position even when the proceedings are ex-parte. The law is well
settled that the plaintiff has to stand on his own legs and he has to
pleade and prove his own case.
43. The facts and materials of this case have to be examined in
the light of the aforesaid settled law.
44. On the point of readiness and willingness on the part of the
plaintiff to perform his part of the contract, it is apparent that as per
the agreement itself, the payment of balance consideration amount and
the execution of the registered sale deed was to be done within the
validity period of the agreement which was initially valid from
08.01.2015 to 07.01.2016 and subsequently extended on 17.12.2015
till 30.06.2016 upon payment of Rs. 3 lakhs. Thus, out of total
consideration of Rs. 38.50 lakhs only 15 lakhs were paid and 23.50
lakhs remained unpaid which was to be paid by the plaintiff during the
validity of the agreement and upon payment in terms of the
agreement, Shahjada Khan was to immediately execute the sale deed
in favour of the plaintiff. The agreement also revealed that Shahjada
Khan was in dire need of money as he had to clear certain dues on
account of which he was entering into the agreement of sale.
45. Prior to the filing of the suit, the plaintiff had served legal
notice dated 30.05.2018 upon Shahzada Khan which has been marked
as Exhibit-X wherein it was specifically stated that on 17.12.2015
33
( 2026:JHHC:22923 )
while extending the period of agreement till 30.06.2016, an amount of
Rs. 3 lacs were paid and on the same day, the plaintiff was told by
Shahzada Khan that Shahzada Khan would ask for the balance
consideration amount of Rs. 23.50 lacs as and when it was required by
Shahzada Khan. It has been further stated in the said legal notice that
the plaintiff repeatedly contacted Shahzada Khan for payment of
balance consideration amount, but without any reason, Shahzada
Khan avoided to receive the balance consideration amount which
created a doubt on the intent of Shahzada Khan. In this notice dated
30.05.2018, it has been further mentioned that the plaintiff was ready
to pay the balance consideration amount but Shahzada Khan was
avoiding and therefore the plaintiff was unable to get the property
transferred in his name by execution of sale deed and through this
notice, Shahzada Khan was given 15 days’ time to accept the balance
consideration amount and execute the sale deed failing which
appropriate steps will be taken to take recourse to law.
46. The legal notice dated 30.05.2018 was responded by Shahzada
Khan vide response dated 25.06.2018 which has also been filed by the
plaintiff and in the said reply it was clearly stated that deadline for
getting the sale deed executed was till 30.06.2016 and there was no
further extension of time limit for execution of sale deed; it was
wrongly mentioned in the legal notice dated 30.05.2018 that
Shahzada Khan had told the plaintiff that he will demand the rest of
the amount as and when Shahjada Khan would require the money ; It
was also stated in the reply that the plaintiff never contacted Shahzada
Khan with the remaining consideration amount and asked for
execution of the sale deed; it was wrong to say that the plaintiff had
contacted Shahzada Khan for execution of sale deed and Shahzada
Khan avoided to do it and no date on which plaintiff contacted
Shahzada Khan was mentioned in the legal notice dated 30.05.2018.
Shahzada Khan also mentioned in his reply that with the expiry of
deadline for execution of sale deed, the right under the agreement had
extinguished and now the plaintiff could not get the agreement
enforced through the court of law.
34
( 2026:JHHC:22923 )
47. Thus, the reply dated 25.06.2018 given by Shahjada Khan to
the plaintiff to the legal notice dated 30.05.2018 clearly reveals that
Shahzada Khan clearly denied that he told the plaintiff that the
balance consideration was to be paid as and when Shahjada Khan
would demand and also denied that the plaintiff ever approached
Shahzada Khan for payment of balance consideration amount and for
execution of sale deed and it was also denied that inspite of requests
Shahzada Khan avoided to execute the sale deed. Shahjada Khan
mentioned that upon expiry of deadline for execution of sale deed, the
right under the agreement had extinguished and the plaintiff could not
get the same enforced through the court of law.
48. Upon death of Shahzada Khan, the plaintiff issued another legal
notice to the legal heirs who were the defendants in the suit making
similar statements as made in the legal notice dated 30.05.2018 and
also requested the legal heirs to execute the sale deed upon acceptance
of balance consideration amount. In response, the defendants
completely denied the request of the plaintiff vide reply dated
11.06.2019. Thereafter the suit was filed.
49. In the suit, the plaintiff took the stand in paragraph 6 as follows:
–
“That the Plaintiff repeatedly requested Shahzada Khan to
accept the balance consideration amount and to execute the Sale
Deed in favour of Plaintiff for the aforesaid lands but Shahzada
Khan avoided the same on one pretext or the other and evaded
the acceptance of money and execution of Sale Deed. Plaintiff
also personally went to him and asked for the same. Shahzada
Khan also told Plaintiff that whenever there will be need for
money he will ask Plaintiff and plaintiff has to pay.”
(emphasis supplied)
50. Paragraph 6 of the plaint does not refer to any particular date on
which the plaintiff approached Shahzada Khan to accept the balance
consideration amount and to execute the sale deed and no specific
date has been mentioned as to when the plaintiff approached Shahzada
Khan personally for the same. Further it has not been mentioned as to
when Shahzada Khan told the plaintiff that whenever Shahjada Khan
35
( 2026:JHHC:22923 )
would need the money, Shahjada Khan would ask the plaintiff for
money and then the plaintiff has to pay.
51. Although in the legal notice dated 30.05.2018 the plaintiff has
stated that Shahzada Khan had told the plaintiff on the date of
extension of time, that is on 17.12.2015, that Shahjada Khan would
ask the plaintiff to pay the balance consideration amount as and when
required, but such pleading is completely absent in the plaint.
52. This court further finds that in the evidence; the plaintiff has
been examined as P.W. 4 and in paragraph 8 of his evidence he has
stated that the plaintiff had taken Rs. 23.50 lacs to the house of
Shahzada Khan and requested Shahzada Khan to execute the sale deed
but Shahzada Khan tried to avoid and, in such circumstances, a notice
dated 30.05.2018 was sent to Shahzada Khan through his Advocate.
53. This court finds that aforesaid evidence of the plaintiff at
paragraph 8 that he went to Shahzada Khan with cash of Rs. 23.50
lacs requesting him for getting the sale deed executed is contrary to
the case of the plaintiff in as much as the plaintiff has never made
such a statement in his plaint. Rather in the plaint, the plaintiff has
stated that the plaintiff was repeatedly requesting Shahzada Khan to
accept the balance consideration amount and execute the sale deed
and Shahzada Khan told the plaintiff that whenever there will be need
for money, he will ask the plaintiff and then the plaintiff has to pay.
54. This is over and above the fact that neither in the legal notice
dated 30.05.2018 nor in the plaint, nor in the evidence, the plaintiff
has pleaded, much less proved, as to when the plaintiff requested
Shahzada Khan to accept the balance consideration amount which
ultimately led to issuance of legal notice dated 30.05.2018. Further,
there is neither any pleading nor any evidence on record showing
readiness and willingness of the plaintiff to pay the balance
consideration amount during the validity of the agreement period,
although as per the agreement, the balance consideration amount was
to be paid and the sale deed was to be executed prior to 30.06.2016.
55. In absence of any specific date as to when and how the plaintiff
approached Shahzada Khan to pay the balance consideration amount
36
( 2026:JHHC:22923 )
it cannot be said that the plaintiff was ready and willing to perform his
part of contract during the validity period of the agreement and that
the plaintiff ever offered 23.50 lacs to Shahzada Khan. Except in the
evidence in paragraph 8, that too without any specific or even
tentative date, nowhere, right from the legal notice dated 30.05.2018
till the filing of the plaint, the plaintiff has stated that the plaintiff
approached Shahzada Khan with cash of Rs. 23.50 lacs and he
requested Shahzada Khan to execute the sale deed but Shahjada Khan
refused which led to issuance of the legal notice dated 30.05.2018.
56. The law is well settled that readiness and willingness to
perform the part of the contract in a case of specific performance of
contract has to be pleaded and proved right from beginning and also
as per the obligations under the agreement.
57. In view of the aforesaid facts and circumstances, this court is of
the considered view that the plaintiff has failed to plead much less
prove, readiness and willingness to perform his part of the contract
right from the period during which the plaintiff was under an
obligation to pay the balance consideration amount during the validity
of agreement till 30.06.2016 and get the sale deed registered. The only
date with respect to readiness and willingness to pay the balance
consideration amount is through legal notice dated 30.05.2018 which
was declined by Shahjada Khan by a written reply denying that the
plaintiff ever approached Shahjada Khan to pay the balance
consideration amount and also denied that Shahjada Khan ever told
the plaintiff that the balance consideration amount was to be paid as
and when such demand is made by Shahjada Khan and Shahjada
Khan also stated that the agreement period was over and the
agreement cannot be enforced through law.
58. The plea that Shahjada Khan had told the plaintiff that the
balance consideration was to be paid as and when he needed the
amount as pleaded in paragraph 6 of the plaint is not supported by the
evidence of the plaintiff and is contrary to the evidence of the plaintiff
in as much as, no such statement has been made that Shahzada Khan
took upon himself that he would ask the plaintiff to pay the balance
37
( 2026:JHHC:22923 )
consideration amount and then only the plaintiff had to pay. Rather,
the plaintiff has deposed in evidence, without any foundational
pleadings, that the plaintiff had approached Shahjada Khan with cash
of Rs. 23.50 lakhs which Shahjada Khan refused to accept and refused
to execute the sale deed. This statement is not only contrary to the
pleadings of the plaintiff but is also without any date or even tentative
date. Further the plaintiff has not pleaded about the availability of
fund of Rs. 23.50 lacs in his plaint which constitutes 61.04% of the
total consideration amount. Mere statement that the plaintiff was
ready and willing to perform his part of the contract , much less any
statement that the plaintiff was ready and willing to perform his part
of the agreement right from the date of the agreement or during the
period of validity of the agreement is not sufficient to hold that the
plaintiff has pleaded/proved his readiness and willingness to perform
his part of the agreement as per requirement of law under section 16
(c) of the specific relief Act . The plaintiff has pleaded, but not
proved, that Shahzada Khan told Plaintiff that whenever there will be
need for money, he will ask Plaintiff and plaintiff has to pay. Rather,
the evidence is contrary /beyond the pleadings as discussed above.
59. This court also finds that neither the financial capacity of the
plaintiff nor the availability of fund right from beginning from the
date of entering into agreement has been pleaded much less proved by
the plaintiff as per the requirement of law.
60. This court finds that the learned trial court has simply recorded
that the Plaintiff repeatedly requested Shahjada khan to accept the
balance consideration amount and to execute the Sale Deed in favour
of Plaintiff for the aforesaid lands but Shahjada Khan avoided the
same on one pretext or the other and evaded the acceptance of money
and execution of Sale Deed and thereafter on 09.07.2018 when
Shahjada Khan was murdered. The trial court also took note of the
settled law for Transfer of property Act 1882 and relief of specific
performance, on death of vendor, legal heirs executed the contract and
received balance consideration, the Plaintiff has to prove that all along
and till the final decision of the suit, it is the bounden duty of the
38
( 2026:JHHC:22923 )
Plaintiff to prove his readiness and willingness by adducing evidence.
In this suit, the plaintiff proved in his favour that he was always ready
and willing to perform his part of the contract.
61. This court finds that the learned court while coming to the
aforesaid finding that the plaintiff was throughout ready and willing to
perform his part of the contract has completely failed to consider the
terms and conditions of the agreement of sale and also the aforesaid
aspects of the pleadings and evidences placed on record by the
plaintiff which are not only vague but also conflicting which shows
that the readiness and willingness to perform his part of the contract
by the plaintiff has not been proved as per law much less readiness
and willing to perform right from the date of the agreement and during
the validity of the agreement and as per the agreement the balance
consideration was to be paid and the sale deed was to be executed
during the period up to 30.06.2016 and the money was required by
Shahjada Khan to clear his debts. The legal notice issued by the
plaintiff and the response of Shahjada Khan, who died immediately
after responding to the legal notice have also not been considered by
the learned trial court.
62. Although no point was framed on readiness and willingness on
the part of the plaintiff to perform his part of the contract but the
learned court simply recorded that the plaintiff had repeatedly
requested Shahzada Khan to accept the balance consideration amount
and to execute the sale deed in favour of the plaintiff but Shahzada
Khan avoided the same on the one pretext or the other and evaded the
acceptance of money and execution of sale deed. The learned court
has not taken note of the fact that there was no foundational pleading
in the plaint with regard to availability of the balance consideration
amount with the plaintiff nor there is any averment in the plaint with
respect to any kind of request made to Shahzada Khan during the
validity period of the agreement of sale.
63. Considering the pleadings and the materials placed on record on
the side the plaintiff this court is of the view that there is no
foundational pleading with respect to readiness and willingness on the
39
( 2026:JHHC:22923 )
part of the plaintiff to perform his part of the contract. The law is well
settled that the plaintiff has to demonstrate his readiness and
willingness to perform his part of the contract right from the date of
the agreement and till the passing of the decree by the concerned
court. But the basic ingredients to come to a conclusion that the
plaintiff was ready and willing to perform his part of the contract are
missing in the pleadings of the plaintiff and also in the evidence led
by the plaintiff in the circumstances where the proceeding was ex-
parte. The suit was instituted on 26.09.2019 and the validity of the
agreement for sale was till 30.06.2016.
64. In view of the aforesaid the findings of the learned trial court
that the plaintiff was throughout ready and willing to perform his part
of the contract, cannot be sustained in law and such finding is set-
aside.
The point of determination no. (ii) is accordingly decided against the
plaintiff (respondent) and in favour of the defendants (appellants-
legal heirs of Shahjada Khan).
Point of determination no. (i)
65. In the judgment passed by the Hon’ble Supreme Court reported
in 1997 (2) SCC 611 (T.L. Muddukrishana and Anr vs. Smt. Lalitha
Ramchandra Rao) the plaint was sought to be amended seeking
specific performance of contract through amendment and the point
involved as to whether the relief through amendment seeking specific
performance of contract was barred by limitation in light of Article 54
and Section 3 of the Limitation Act, 1963. The Hon’ble Supreme
Court held that where date is fixed in the contract for its performance,
time begins to run from the date and for that purpose whether or not
time was the essence of contract would be of no relevance.
In the said case it was the admitted position that contract was to be
performed within 15 days after the injunction was vacated. The
Hon’ble Supreme Court held in paragraph 5 that Limitation under
Section 3 of the Limitation Act is one of the defenses available to the
defendant and has further held that Article 54 of the Schedule to the
Limitation Act postulates that for specific performance of contract the
40
( 2026:JHHC:22923 )
period of limitation is three years from the date fixed for the
performance or if no such date is fixed from the date, the plaintiff has
notice that performance is refused. It has also been held that under 1 st
part of Article 54 once the date for the performance of the contract has
been fixed by the parties, the limitation begins to run from that date
and specific performance of the contract could be have within three
years from that date unless the parties by an agreement extend the
fixed time and in this background it was held that the question
whether or not time is the essence of the contract is not of much
relevance once the case falls in the 1st part of Article 54 of the
Limitation Act, 1963.
In the facts of the said case, the question which fell for consideration
was whether the date was fixed for the performance of the agreement
and the Hon’ble Supreme Court answered the same in the affirmative.
The Hon’ble Supreme Court observed that it is true that a particular
date from the calendar was not mentioned in the document and the
date was originally not ascertainable, but as soon as the plaintiff
redeemed the mortgage, it became an ascertained date. The court
observed that if the plaintiff immediately after redemption had filed
the suit, it could not be thrown out on the ground that the plaintiff was
not entitled to specific performance asked for. The court observed that
the plaintiff would have been within her right to assert that the
plaintiff had performed her part of the contract and was entitled to
insist that her brother, the defendant, should complete his part. It was
held that the agreement was a typical illustration of a contingent
contract within the meaning of Section 31 of the Indian Contract Act
and became enforceable as soon as the event of redemption (by the
plaintiff herself) happened. The Hon’ble Supreme Court held that the
requirement of Article 54 of the Limitation Act is not that the actual
date should necessarily be ascertained upon the face of the deed, but
that the basis of the calculation which was to make it certain should be
found therein. The Hon’ble Supreme Court ultimately held that under
the agreement the date for the defendant to execute the sale deed was
fixed although not by mentioning a certain date but by reference to the
41
( 2026:JHHC:22923 )
happening of the certain event, namely, the redemption of the
mortgage and immediately after redemption of mortgage by the
plaintiff, the defendant became liable to execute the sale deed which
the plaintiff was entitled to enforce. The Hon’ble Supreme Court held
that the period of limitation started running on that date and the case
was covered by the 1st part of Article 54 and not by the 2nd part. In the
aforesaid background the Hon’ble Supreme Court ultimately held in
paragraph 7 of the judgment as under:-
” 7. Under these circumstances, it must be held that for the
purpose of limitation, what is material is that the limitation begins
to run from the date the parties have stipulated for performance of
the contract. The suit is required to be filed within three years from
the date fixed by the parties under the contract. Since the
application for amendment of the plaint came to be filed after the
expiry of three years, certainly it changed the cause of action as
required to be specified in the plaint. The suit for mandatory
injunction is filed and the specific performance was sought for by
way of an amendment. The cause of action is required to be stated
initially in the plaint but it was not pleaded. It was sought to be
amended, along with an application for specific performance
which, as stated earlier, was rejected. Under these circumstances,
even by the date of filing of the application, namely, 5-11-1992, the
suit was barred by limitation. The High Court, therefore, was right
in refusing to permit the amendment of the plaint.”
66. In a recent judgment passed by the Hon’ble Supreme Court
dated 05th August, 2024 passed in Civil Appeal No. 844 of 2024 the
Hon’ble Supreme Court in the facts of the said case considered the
point of limitation under Article 54 of the Limitation Act for
institution of the suit for specific performance of contract.
In the facts of the case, the Hon’ble Supreme Court found that the
agreement was dated 17.12.1989 and it was specifically mentioned
that the sale deed would be executed within one month from the date
of the agreement and the period of one month would expire on
16.01.1990.
42
( 2026:JHHC:22923 )
The Hon’ble Supreme Court was of the view that once there is a
specific date fixed for performance, the limitation period would be
three years from the said date and would expire on 16.01.1993. The
Hon’ble Supreme Court further observed that the agreement recorded
that the agreement would remain valid for a period of 5 years. But the
Hon’ble Supreme Court was of the view that the said clause was
totally irrelevant and the performance was to take place within one
month.
The Hon’ble Supreme Court also held that the validity of the
agreement is something different and does not change the date of
performance which was fixed as per the agreement. The suit for
specific performance was held to be barred by limitation.
However, the Hon’ble Supreme Court observed that there was no
relief to claim for refund of the amount already paid but in order to do
complete justice between the parties, the amount paid by the plaintiff
was directed to be returned to the plaintiff along with 12% interest.
67. This court has gone through the agreement dated 08.01.2015
which is subject matter of consideration in this case and finds that on
the face of the agreement it was valid for the period from 08.01.2015
to 07.01.2016 and the balance consideration money was to be paid by
the plaintiff during this period and upon payment, Sahazada Khan was
under an obligation to execute the sale deed within the period. The
agreement reveals that the total consideration amount was Rs.
38,50,000/- and down payment at the time of entering into agreement
which was already paid was Rs. 12,00,000/-. The aforesaid validity
period was extended till 30.06.2016 upon receipt of Rs. 3,00,000/- as
further consideration amount.
Clause-2 of the agreement reveals that the vendee was required to pay
the balance consideration amount within the validity of the period of
agreement and upon payment the vendor shall execute the registered
sale deed and in case he does not do so, it will be opened to the vendee
to get the sale deed executed through the process of law.
The agreement also reveals that the vendor was in dire need of money
and he had no option but to sell the property to clear certain debts.
43
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68. It was in aforesaid background the agreement of sale was
executed with a clear stipulation that if the vendee pays the balance
consideration amount during the subsistence of the agreement, the
vendor shall execute and register the sale deed in favour of the vendee
and in case he does not do so, it will be opened to the vendee to get
the deed executed through the process of law. It was also stipulated in
the agreement that the vendor shall properly keep the property and
will not deal with the property with anybody else during the period of
agreement.
69. Perusal of the agreement reveals that not only the entire balance
amount was to be paid but also the sale deed was to be executed
within the validity period of the agreement. It was completely at the
hand of the plaintiff with regard to payment of the consideration
amount as the defendant was under legal obligation to execute the sale
deed upon receipt of the balance consideration amount during the
period of validity of the agreement. The aforesaid reason for which
the agreement was executed itself reveals that the vendor was in dire
need of money and specific time for payment and execution of the
sale deed was prescribed in the agreement.
70. Accordingly, on the face of the agreement specific time period
till 30.06.2016 was given for payment of balance consideration
amount and accordingly, the time was fixed for payment of balance
consideration amount and execution of sale deed. Since specific time
line was fixed for performance in terms of the agreement, the suit
would be governed by 1st part of Article 54 of the Limitation Act,
1963 and the limitation for seeking specific performance of contract
would commence immediately after 30.06.2016.
71. However, the plaintiff pleaded in paragraph 6 of the plaint that
Sahazada Khan has asked the plaintiff to pay the balance
consideration amount as and when it was required by Sahazada Khan
but this fact was not whispered by the plaintiff in his evidence while
being examined as P.W-4. The aforesaid plea raised by the plaintiff in
paragraph 6 of the plaint if proved by evidence would have taken out
the plaintiff from applicability of the 1st part of Article 54 of the
44
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Limitation Act. However, in absence of any evidence to support the
aforesaid plea in paragraph 6 of the plaint, the parties were bound by
the written terms and conditions of the agreement of sale read with
endorsement extending the period of performance under the
agreement according to which time was fixed for performance latest
by 30.06.2016 and hence a specific time was fixed for performance
and accordingly, the suit would be guided by 1 st part of Article 54 of
the Limitation Act and the limitation would commence from
01.07.2016 and 3 years expired on 30.06.2019 and the suit was filed
much thereafter. Thus, the suit was barred by limitation. In the mean
time Sahazada Khan expired on 09.07.2018. However, once the
physical running of time started on 01.07.2016 the same would
continue to run irrespective of his death and even the legal heirs
(appellants) were required to sued for specific performance of contract
prior to 30.06.2019.
72. There is no doubt that ordinarily, in a case relating to specific
performance of contract with respect to immoveable property, time is
not to be taken as the essence of contract but this would also depend
upon the facts and circumstances of a case and the terms and
conditions of the agreement. Once it has been found as recorded
above that Sahazada Khan entered into agreement of sale as he was in
dire need of money to clear his certain debts as is apparent from the
agreement itself and when a specific time was also prescribed for
payment of balance consideration amount without any rider , there
can be no doubt that not only time was the essence of contract for sale
but the specific performance of suit was to be governed by 1 st part of
Article 54 of the Limitation Act, 1963 and the suit was barred by
limitation. The Hon’ble Supreme Court held as above that where date
is fixed in the contract for its performance, time begins to run from the
date and for that purpose whether or not time was the essence of
contract would be of no relevance.
73. The learned trial court has completely failed to consider the
terms and conditions of the agreement and failed to consider as to
whether the suit was barred by limitation in the light of the terms and
45
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conditions of the agreement and as to whether there was any attending
conduct of the parties, pleaded and proved , to come to a conclusion
that the period of limitation would be governed by the 2 nd part of
Article 54 of the Limitation Act and not by the 1st part.
74. Once the suit for specific performance of contract is held to be
barred by limitation, the alternate relief of refund of the consideration
amount of Rs. 15 lakhs, which was proved to have been paid, cannot
be granted as such relief of refund is also barred by limitation.
75. The fact remains that it was the plaintiff himself who failed to
abide by the terms of the agreement to sell regarding payment of
balance consideration amount by 30.06.2016. The cause of action to
seek specific performance of the agreement or to even seek refund of
the amount of Rs. 15.00 lakhs arose immediately after 30.06.2016 and
the suit with alternative remedy of seeking refund having been filed
beyond the period of 3 years was certainly barred by limitation.
Although the payment of Rs.15 lakhs has been duly proved but no
relief can be granted to the plaintiffs with respect to the alternative
relief of refund of the said amount as such relief is also barred by
limitation.
Accordingly, the point of determination no. (i) is also decided
against the plaintiff (respondent) and in favour of the defendants
(appellants -legal heirs of Shahjada Khan)
76. Summary: –
Point of determination Finding- The suit seeking specific
no.(i) – performance of contract is governed
Whether the suit filed by theby 1st part of Article 54 of the
plaintiff was barred by Limitation Act and the suit is barred
limitation? by limitation. The alternative relief of
refund of consideration amount of
Rs.15 lakhs our of 38.5 lakhs is also
barred by limitation.
Point of determination Finding – The plaintiff has failed to
no.(ii) – prove his readiness and willingness to
Whether the plaintiff has perform his part of the contract as
sufficiently proved his required by law.
readiness and willingness to
perform his part of contract46
( 2026:JHHC:22923 )in terms of Section 16 of the
Specific Relief Act?
77. In view of answer to both the points for determination in favour
of the appellants (defendants- legal heirs of Shahjada Khan), this
appeal is allowed and the impugned judgement and decree are set-
aside and the suit seeking specific performance of contract dated
08.01.2015 with the alternative relief of refund of the consideration
amount paid by the plaintiff is dismissed.
78. Pending interlocutory application, if any, is closed.
79. Let this judgement be communicated to the learned court
concerned through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Date of Order :-31.07.2026
Uploaded on 04.08.2026
Binit/AFR
47
