Karnataka High Court
Prabhakarlal Kalwar S/O Mohanlal … vs Gajanan S/O Jaikishan Joshi on 4 February, 2026
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 04TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.100234 OF 2017 (SP)
BETWEEN:
PRABHAKARLAL KALWAR
S/O. MOHANLAL KALWAR,
SINCE DECEASED BY LRS,
SMT. DYHNASHWARI DEVI
W/O. PRABHAKARLAL KALWAR,
SINCE DECEASED BY LRS,
SHRI SACHIN S/O. PRABHAKARLAL KALWAR,
AGE: 52 YEARS, OCC: BUSINESS,
R/O. H.NO.1679/A, KIRLOSAKR ROAD, BELAGAVI.
...APPELLANT
(BY SRI G.B.SHASTRY, ADVOCATE FOR SRI CHETAN MUNNOLI
AND SRI RAGHUVEER SATTIGERI & SRI SURBHI KULKARNI,
Digitally signed by
ADVOCATES)
MALLIKARJUN
RUDRAYYA
KALMATH
Location: High AND:
Court of
Karnataka,
Dharwad Bench
SHRI GAJANAN S/O. JAIKISHAN JOSHI,
SINCE DECEASED BY HIS LRS,
SMT. SHARADA W/O. GAJANAN JOSHI,
SINCE DECEASED BY HER LRS,
1. SHRI KAMALKISHOR S/O. GAJANAN JOSHI,
AGE: MAJOR, OCC: BUSINESS,
R/O. VITHALDEV GALLI, SHAHAPUR,
BELAGAVI-590001.
SHRI LAXMINARAYAN S/O. GAJANAN JOSHI,
-2-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
SINCE DECEASED BY HIS LR'S
2. SMT. MAYA W/O LAXMINARAYAN JOSHI,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. VITHALDEV GALLI, SHAHAPUR,
BELAGAVI-590001.
3. MASTER AMUL S/O. LAXMINARAYAN JOSHI,
AGE: 20 YEARS, OCC: STUDENT,
R/O. VITHALDEV GALLI, SHAHAPUR,
BELAGAVI-590001.
4. MISS. ANUJA D/O. LAXMINARAYAN JOSHI,
AGE: 19 YEARS, OCC: STUDENT,
R/O. VITHALDEV GALLI, SHAHAPUR,
BELAGAVI-590001.
5. MISS. RAJASHREE D/O. GAJANAN JOSHI,
AGE: 34 YEARS, OCC: STUDENT,
R/O. VITHALDEV GALLI, SHAHAPUR,
BELAGAVI-590001.
6. SHRI VISHNU @ GOPAL GAJANAN JOSHI,
AGE: 33 YEARS, OCC: BUSINESS,
R/O. VITHALDEV GALLI, SHAHAPUR,
BELAGAVI-590001.
7. SHRI RAGHUVEER
S/O. PRABHAKARLAL KALWAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. KIRLOSKAR ROAD, BELAGAVI-590001.
8. SHRI SANJAY S/O. PRABHAKARLAL KALWAR,
AGE: 62 YEARS, OCC: BUSINESS,
R/O. H.NO.1679/A, KIRLOSKAR ROAD,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI SHRIPAD JOSHI, ADVOCATE FOR
SRI RAVIRAJ C. PATIL ADVOCATE FOR R1 TO R6;
SRI DEEPAK S. KULKARNI, ADVOCATE FOR R7;
NOTICE TO R8 SERVED.)
-3-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 18.11.2016
PASSED IN R.A.NO.592/2009 ON THE FILE OF THE
I ADDITIONAL DISTRICT JUDGE, AT BELAGAVI, CONFIRMING
THE JUDGMENT AND DECREE OF THE TRIAL COURT DATED
01.04.2002 IN O.S.NO.351/1989 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE (JR. DN.), BELAGAVI, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
The regular second appeal is filed by the defendant No.1
calling in question the judgment and decree dated 18.11.2026
passed in RA No.592/2009, on the file of I Additional District
Judge, Belagavi1, which confirmed the judgment and decree
dated 01.04.2002 passed in O.S.No.351/1989 on the file of Civil
Judge (Jr.Dn) and JMFC, Belagavi2, thereby, granting decree for
specific performance in favour of plaintiffs directing the
defendants to execute the registered sale deed in favour of
plaintiffs.
2. The only modification of the First Appellate Court is
that directing the plaintiffs to pay additional sum of
1
Hereinafter referred to as ” first appellate Court”
2
Hereinafter referred to as “trial Court”
-4-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
Rs.4,00,000/- + Rs.15,000/- to defendants within two months
from the date of decree and defendants shall execute the
registered sale deed in favour of the plaintiffs.
3. Against concurrent findings of fact issuing direction to
defendants to execute registered sale deed in favour of the
plaintiffs, the defendants have preferred the instant regular
second appeal.
4. For the purpose of convenience and easy reference,
ranking of the parties is referred to as per their status before the
trial Court.
5. It is the case of the plaintiffs, as pleaded in the
plaint, that the defendants are the owners of the suit schedule
property and that the plaintiff/Gajanan was a tenant in respect of
the said property. Defendant No.1 namely, Prabhakarlal was
working in a cement factory at Shahabad in Kalaburagi District.
Thereafter, he inducted the plaintiff/Gajanan as a tenant. It was
the intention of the defendants to settle in Shahabad town and
therefore, he offered the suit schedule property for sale and
executed an agreement of sale dated 16.07.1976 for a total sale
-5-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
consideration of Rs.20,000/-. On the said date, an advance
amount of Rs.5,000/- was paid by the plaintiff to the defendant.
6. One of the conditions of the agreement was that the
defendants shall execute a registered sale deed within two
months from the date of obtaining permission to sell the land
from the Deputy Commissioner, Belagavi, under the Urban Land
(Ceiling and Regulation) Act, 1976. The defendant obtained the
order of permission to sell the land on 31.03.1981. Thereafter,
the defendant on one pretext or the other avoided execution of
the sale deed. Consequently, on 22.06.1981 a legal notice was
issued by the plaintiff to the defendant and thereafter the suit
was filed on 22.07.1981. Hence, it is contended that the suit has
been filed within the period of limitation. Accordingly, the suit is
filed for specific performance.
7. The defendants appeared through their Advocate and
filed their written statement denying the execution of the
agreement of sale as well as the receipt of advance amount of
Rs.5,000/-. It is further contended that the suit schedule
property is joint family property and that the defendant is not
the exclusive owner of the said property. It is also pleaded that
-6-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
legal action was taken by the defendants to evict the plaintiffs
from the premises, as the plaintiff/Gajanan was a tenant. The
defendants further submit that the suit is barred by limitation
and plead that time was the essence of the contract, which the
plaintiff failed to adhere to the time stipulation. Therefore, on
these grounds and averments made in the written statement, the
defendants pray for dismissal of the suit.
8. Both the Trial Court and the First Appellate Court have
concurrently held that the plaintiff has proved execution of
agreement of sale – Ex.P.1 by defendant and also the defendant
received advance consideration amount of Rs.5,000/-, therefore,
decreed the suit. Both the Trial Court and the First Appellate
Court on the fact that since agreement of sale is proved and
plaintiff is in continuous possession, held that the plaintiff is ever
ready and willing to perform his part of contract, therefore,
opined that all the legal requirements are proved for grant of a
decree for specific performance and accordingly granted.
9. The First Appellate Court concurred with the Trial Court
that the plaintiff is entitled for the relief of decree for specific
performance, but has directed the plaintiff to pay additional sum
-7-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
of Rs.4,00,000/- to defendant over and above Rs.15,000/-.
Therefore, directed the defendant to receive an amount of
Rs.4,00,000/- + Rs.15,000/- and directed the defendant to
execute the registered sale deed.
10. Being aggrieved by decreeing the suit in full in favour
of plaintiff, the defendant owner has preferred the instant
Regular Second Appeal by raising various grounds and raising
substantial questions of law.
11. Upon considering the appeal, the following
substantial questions of law would arise for consideration in this
appeal.
i) Whether, under the facts and circumstances
involved in the case, both the Trial Court and
the First Appellate Court are justified in
granting decree of specific performance in
favour of plaintiff without considering the
parameters enumerated in Section 20 of the
Specific Relief Act like arbitrariness, hardship
and unfair advantage over the defendant by
the plaintiff?
ii) Whether, under the facts and circumstances
involved in the case, time is essence of
contract in the present case and the plaintiff is
-8-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017HC-KAR
adhered to the time stipulated in the contract
for exercising his right of seeking relief of
specific performance?
12. Learned counsel for appellant/defendant submitted
that grant of decree for specific performance by both the Trial
Court and the First Appellate Court is completely arbitrary and
causing hardship to the defendant and also creating unfair
advantage over the defendant by the plaintiff. He argued that
the agreement of sale is dated 16.07.1976 and total sale
consideration is Rs.20,000/- and in case of plaintiff that he has
paid Rs.5,000/- to the defendant, therefore the Trial Court
delivering the judgment after 20 years directing the defendant to
execute the registered sale deed for the meagre amount of
Rs.20,000/- is nothing but arbitrary.
13. Further submitted that though the First Appellate
Court has directed the plaintiff to pay additional sum of
Rs.4,00,000/- that also would not solace the defendant.
Therefore submitted, the grant of decree for specific performance
is causing hardship to the defendant rather than the plaintiff and
is also creating an unfair advantage over the defendant by the
plaintiff. Thus, submitted that both the Trial Court and the First
-9-
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
Appellate Court have not appreciated correctly the mandate of
law that the Court shall have to exercise the discretion
judiciously. Therefore, submitted that the plaintiff on the basis of
decree of specific performance is getting unfair enrichment at the
cost of defendant owner. Therefore, submitted that both the Trial
Court and the First Appellate Court have not exercised the
discretionary power judiciously and correctly.
14. Further submitted that, as against the sale, time is
the essence of contract and according to terms of contract,
performance ought to have been performed within two months
and necessity of obtaining permission to sell the property, by the
competent authority, lies on the defendant and the defendant
has obtained permission from the ULC authorities on 31.03.1981.
The plaintiff was well represented by advocate before ULC
authorities and the plaintiff came to know regarding grant of
permission to sell the property on 31.03.1981 itself and as per
stipulation in the agreement that within one month from grant of
permission, the plaintiff ought to have taken recourse requesting
the defendant to execute such sale deed, but not done so.
Therefore, the suit is barred by limitation. But this aspect is not
– 10 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
considered by both the Trial Court and the First Appellate Court.
Hence, both the Trial Court and the First Appellate Court have
not exercised the discretion correctly and judiciously. Therefore,
prays to make interference with the order passed by both the
Trial Court and the First Appellate Court.
15. Further submitted that, the defendant has faced
much hardship at the hands of plaintiff. Since the defendant
underwent legal proceedings up to the Hon’ble Supreme Court,
for taking back his property and the suit schedule property is the
only source of income for the family of defendant, therefore, if
the plaintiff gets a decree of specific performance, that causes
unjust enrichment to the plaintiff whereas the defendant will be
put into greater hardship, but these factors are not considered
by both the Trial Court and the First Appellate Court. Therefore,
submitted that both the Trial Court and the First Appellate Court
have not exercised the power correctly. Hence, prays to interfere
with the judgment and decree of both the Trial Court and the
First Appellate Court by allowing this appeal.
16. On the other hand, learned counsel for the
respondents/plaintiffs submitted that from the evidence adduced
– 11 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
by DW.1 it is admitted and proved that the defendants executed
the agreement of sale (Ex.P1). It was further contended that the
suit is filed well within the period of limitation. Placing reliance
on the admission made by DW.1 during cross-examination, the
learned counsel submitted that once the execution of agreement
of sale is proved the plaintiff is entitled to the relief of specific
performance, which has been rightly granted by both the Trial
Court and the First Appellate Court. Therefore, prays to dismiss
the appeal, as it does not involve any substantial question of law.
17. It is further submitted that though there has been
escalation in the price of the property, the First Appellate Court
in exercise of its discretion has directed the plaintiffs to pay an
additional sum of Rs.4,00,000/- to the defendants. Thus, any
hardship that might have been caused to the defendants stands
mitigated by the said direction. It was contended that there
would be no hardship to the defendants, if the suit schedule
property is sold to the plaintiffs. Therefore, when the agreement
of sale is proved and the defendants have received an advance
amount of Rs.5,000/-, there remains no ground to deny the
decree. Accordingly, it was submitted that both the Trial Court
– 12 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
and the First Appellate Court have rightly granted the decree of
specific performance, which needs no interference. Therefore,
prays to dismiss the appeal.
18. Upon consideration of the pleadings and the rival
contentions placed by the learned counsel for both parties, it is
proved that the defendants are the owners of the suit schedule
property and that the plaintiffs are the tenants under the
defendants. From the cross-examination of DW.1 it is evident
that he has admitted the execution of the agreement of sale
dated 16.07.1976 and also received an advance amount of
Rs.5,000/-.
19. It is pertinent to note that the suit property is
situated on Kirloskar Road, Belagavi. As submitted by both
learned counsel the property is located in a prime area of the
Belagavi city.
20. The Trial Court after a trial of 20 years, has decreed
the suit in favour of the plaintiffs directing the defendants to
receive Rs.15,000/- and execute the registered sale deed.
However, the Trial Court failed to consider the escalation in the
market value of the property during this long period. Granting a
– 13 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
decree for specific performance at the original consideration fixed
20 years earlier, is arbitrary and causes serious hardship to the
defendants resulting in an unfair advantage to the plaintiffs.
21. The First Appellate Court concurred with the findings
of the Trial Court and upheld the decree for specific performance
with a modification directing the plaintiffs to pay an additional
sum of Rs.4,00,000/- over and above Rs.15,000/-. However,
both the Trial Court and the First Appellate Court failed to
properly exercise their discretionary power in deciding whether
the decree for specific performance could have been granted
considering the factual background of the case.
22. The agreement of sale is dated 16.07.1976 stipulated
a total sale consideration of Rs.20,000/, out of which Rs.5,000/-
was paid as advance. As per the terms of the agreement the
plaintiffs were required to perform their part of contract within
two months. It was also stipulated that the defendants were
required to obtain necessary permission from the competent
Urban Land Authorities and upon obtaining such permission, the
plaintiffs were required to exercise their rights of specific
performance within one month.
– 14 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
23. Based on the evidence it is proved that on
31.03.1981, the defendants obtained permission from the
Competent Authorities to sell the land. Proceedings before the
Competent Authorities show that both the defendants and
plaintiffs were represented by their respective Advocates.
Therefore, the plaintiffs were fully aware of the grant of
permission on 31.03.1981. As per the conditions stipulated in
Ex.P1 – agreement of sale, the plaintiffs were required to
perform their part of contract within one month from the date of
permission by establishing their readiness and willingness to get
the sale deed executed.
24. However, the plaintiffs issued a legal notice at Ex.P7
on 22.06.1981 and thereafter filed the suit on 22.07.1981. Thus,
the suit filed by the plaintiffs is barred by limitation. When the
agreement specifically stipulates the time within which the sale
deed is to be executed, time becomes the essence of the
contract and both parties are bound to such stipulation. The
plaintiffs failed to adhere to the agreed time frame and is not
supposed to act at his own convenience to seek execution of
registered sale deed.
– 15 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
25. The Hon’ble Supreme Court in DESH RAJ AND
OTHERS vs. ROHTASH SINGH3, has laid down the principles
relating to whether time is the essence of the contract in
paragraph Nos.21, 22, 23 and 24, which reads as under:
“21. Before venturing into the aforementioned issue,
we must highlight that throughout the entire dispute, the
appellants have taken a consistent stand of time-bound
performance being an essence of the contract. They have
maintained that sale deed was needed to be executed
necessarily on the date of execution as agreed between
the parties. It is unfortunate that all the courts below
have failed to render a finding on this aspect despite the
fact that this was one of the key defences taken by the
appellants in respect of the prayer seeking specific
performance.
22. In this respect, we must now take note of
Section 55 of the Contract Act which stipulates the
aftermath in case of failure to perform contractual
obligations at fixed time. The provision states –
55. Effect of failure to perform at fixed time, in
contract in which time is essential.– When a party to
a contract promises to do a certain thing at or before a
specified time, or certain things at or before specified
times, and fails to do any such thing at or before the
specified time, the contract, or so much of it as has not
been performed, becomes voidable at the option of the
promisee, if the intention of the parties was that time
should be of the essence of the contract.
Effect of such failure when time is not
essential.-If it was not the intention of the parties that
time should be of the essence of the contract, the contract
does not become voidable by the failure to do such thing
at or before the specified time; but the promisee is3
(2023) 3 Supreme Court Cases 714
– 16 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
entitled to compensation from the promisor for any loss
occasioned to him by such failure.
Effect of acceptance of performance at time
other than that agreed upon.-If, in case of a contract
voidable on account of the promisor’s failure to perform
his promise at the time agreed, the promisee accepts
performance of such promise at any time other than that
agreed, the promisee cannot claim compensation for any
loss occasioned by the non-performance of the promise at
the time agreed, unless, at the time of such acceptance,
he gives notice to the promisor of his intention to do so.
23. The sale agreements in the present case
clearly indicate the intention of the parties to treat time-
bound performance as an essential condition. They
stipulate that in case the sale deed was not executed on
the date of execution, the sale agreements were liable to
be treated as cancelled, and the earnest money was to be
forfeited. Even in the legal notices dated 18.08.2004,
through which last opportunity was extended to
respondent to execute the sale deed, the factum of time
being an essential condition for performance was
reiterated. On the other hand, no evidence or
communication has been brought on record by the
respondent to contradict the defence of time-bound
performance taken by the appellants.
24. At this juncture, we must note the decision of
this Court in Citadel Fine Pharmaceuticals v. Ramaniyam
Real Estates Private Ltd4. and Saradamani
5
Kandappan v. S. Rajalakshmi wherein it was held that
defence under Section 55 of the Contract Act is valid
against anyone who is seeking the relief of specific
performance. The facts of the instant case make the
observations in Saradamani Kandappan5.”
26. Therefore, when the contract contains a clear time
stipulation the plaintiffs are required to strictly adhere to it. In
4
(2011) 9 SCC 147, para 53 : (2011) 4 SCC (Civ) 526
5
(2011) 12 SCC 18 : (2012) 2 SCC (Civ) 104
– 17 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
the present case, the time stipulated was two months for
execution of the sale deed and in the event of obtaining
necessary permission, one month from the date of such
permission. As discussed above, the plaintiff was aware that
permission to sell the land was granted on 31.03.1981 by the
concerned Authorities and this fact was well within the
knowledge of the plaintiffs and his Advocate. The plaintiffs are
also represented by an Advocate as could be seen from the
orders in Ex.P9 and Ex.D6. Despite this, the plaintiffs failed to
exercise their rights within the stipulated period, as they issued
notice only on 22.06.1981 and filed the suit on 22.07.1981.
27. Thus, the plaintiffs failed to honour the time
stipulation contained in the agreement, which disentitles them
from seeking a decree for specific performance. In this regard,
both the Trial Court and the First Appellate Court have
committed an error in decreeing the suit in favour of the
plaintiffs.
28. Further, while considering the question of hardship
likely to be caused to both the plaintiffs and the defendants, it is
necessary to undertake a comparative analysis of hardship as
– 18 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
required in the present case. The plaintiffs are merely tenants of
the suit property, whereas the defendants are the owners
thereof. At the relevant point of time, the original defendant was
working in cement factory at Shahabad in Kalaburagi District and
therefore, could not properly anticipate the termination of his
service. Consequently, he executed an agreement of sale dated
16.07.1976. Unfortunately, thereafter, the original defendant
was terminated from service and was constrained to return to
Belagavi. The suit property is the only property belonging to the
defendants and their joint family.
29. Under these circumstances, the defendants initiated
eviction proceedings in HRC No.234/1981 against the plaintiffs
under Section 21(1)(f) of the Karnataka Rent Control Act, 1999.
The defendants were compelled to undergo prolonged legal
proceedings, during which the plaintiffs ultimately lost and
directions were issued to vacate and handover possession of the
suit property to the defendants. However, the plaintiffs failed to
comply with the said directions. This resulted in plaintiffs filing
an affidavit of undertaking in CRP No.4324/1992, which was also
not honoured. Consequently, filed an Execution Petition
– 19 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
No.236/1992 and also filed Contempt Petition before this Court
in CCC No.725/1992, only then the plaintiff evicted the suit
property. Therefore, just for receiving Rs.5,000/- as advance
from the plaintiff, the defendant has undergone all these legal
proceedings, which is nothing but causing hardship to the
defendant. When upon making compared analysis of hardship, at
the most, the defendant not only suffered hardship of their
money, but they were compelled to face continuous legal
proceedings for decade together. Therefore, this crucial aspect
of comparative hardship has been completely lost sight of by
both the Trial Court and the First Appellate Court while exercising
discretion in granting a decree for specific performance.
30. Thus, both the Trial Court and the First Appellate
Court have not exercised discretion correctly and properly and
both the Courts are found to be unjustified in passing decrees in
favour of the plaintiffs and also grant of decrees for specific
performance by both the Courts is nothing but arbitrary for the
reasons stated above.
31. The Trial Court decreed the suit by directing the
defendants to receive a sum of Rs.15,000/- and to execute the
– 20 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
sale deed after a prolonged litigation of nearly 20 years.
Consequently, the defendants were constrained to execute the
sale deed for a meagre consideration of Rs.15,000/-, which has
resulted in an unfair advantage over the defendants by the
plaintiffs. Though the First Appellate Court has directed the
plaintiffs to pay an additional sum of Rs.4,00,000/-, the same
does not sufficiently mitigate or redress the hardship suffered by
the defendants, having regard to the prolonged litigation and the
attendant circumstances faced by them.
32. It is further submitted that the suit property is
required for the sons of deceased defendant for employment and
livelihood. If the suit property is sold to the plaintiffs pursuant to
a decree for specific performance, it would result in grave
hardship and inequity to the defendants by the plaintiffs. These
factors are also not considered by both the Trial Court and the
First Appellate Court. Therefore, the discretion exercised by both
the Trial Court and the First Appellate Court are not sound and
reasonable guided by the judicial principles.
– 21 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
33. It is submitted that the discretion exercised by the
Court under Section 20 of the Specific Relief Act, 19636, must be
sound, reasonable and guided by settled judicial principles,
taking into account both legal and equitable considerations.
Section 20 of the S.R. Act is enunciated on the bedrock of equity
and it is a well settled principle that law and equity both play
crucial role in giving justice. A decree for specific performance is
not to be granted as a matter of course, but must rest on
equitable considerations, as expressly provided under Section 20
of the S.R. Act.
34. In the present case, both the Courts have failed to
properly appreciate the scope and meaning of judicial discretion
while exercising their powers under Section 20 of the S.R. Act.
Without exercising such discretion judiciously and in accordance
with law, both the Courts have erroneously granted a decree for
specific performance. Merely because the execution of
agreement of sale is proved and grant of decree is lawful to do
so, the Court is not bound to grant specific performance. The
discretion to grant or refuse such relief must be exercised on a
6
Hereinafter referred to as the ‘S.R. Act’
– 22 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
consideration of the principles stipulated in section 20 of S. R.
Act.
35. In this regard, this Court places reliance on the
judgments of the Hon’ble Supreme Court as follows. The Hon’ble
Supreme Court in the case of JAYAKANTHAM AND OTHERS v.
ABAYKUMAR7 at paragraph Nos.7, 8 and 9 has held as follows:
“7. While evaluating whether specific performance ought
to have been decreed in the present case, it would be
necessary to bear in mind the fundamental principles of law.
The court is not bound to grant the relief of specific
performance merely because it is lawful to do so. Section
20(1) of the Specific Relief Act, 1963 indicates that the
jurisdiction to decree specific performance is discretionary.
Yet, the discretion of the court is not arbitrary but is “sound
and reasonable”, to be “guided by judicial principles”. The
exercise of discretion is capable of being corrected by a court
of appeal in the hierarchy of appellate courts. Sub section
(2) of Section 20 contains a stipulation of those cases where
the court may exercise its discretion not to grant specific
performance. Sub Section (2) of Section 20 is in the
following terms:
“20. (2) The following are cases in which the court may
properly exercise discretion not to decree specific
performance-
(a) where the terms of the contract or the
conduct of the parties at the time of entering into
the contract or the other circumstances under
which the contract was entered into are such that
the contract, though not voidable, gives the
plaintiff an unfair advantage over the defendant;
or
7
(2017) 5 SCC 178
– 23 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
(b) where the performance of the contract
would involve some hardship on the defendant
which he did not foresee, whereas its non
performance would involve no such hardship on
the plaintiff;
(c) where the defendant entered into the
contract under circumstances which though not
rendering the contract voidable, makes it
inequitable to enforce specific performance.”
8. However, Explanation 1 stipulates that the mere
inadequacy of consideration, or the mere fact that the
contract is onerous to the defendant or improvident in its
nature, will not constitute an unfair advantage within the
meaning of clause (a) or hardship within the meaning of
clause (b). Moreover, Explanation 2 requires that the
issue as to whether the performance of a contract
involves hardship on the defendant has to be determined
with reference to the circumstances existing at the time of
the contract, except where the hardship has been caused
from an act of the plaintiff subsequent to the contract.
9. The precedent on the subject is elucidated below:
9.1. In Parakunnan Veetill Joseph’s Son Mathew v.
Nedumbara Kuruvila’s Son8, this Court held that: (scc p.
345, para 14)
“…14. Section 20 of the Specific Relief Act,
1963 preserves judicial discretion of Courts as to
decreeing specific performance. The Court should
meticulously consider all facts and circumstances
of the case. The Court is not bound to grant
specific performance merely because it is lawful
to do so. The motive behind the litigation should
also enter into the judicial verdict. The Court
should take care to see that it is not used as an
instrument of oppression to have an unfair
advantage to the plaintiff…”
9.2 A similar view was adopted by this Court in Sardar
Singh v. Krishna Devi4: (SCC p.26, para 14)
8
1987 Supp SCC 340 : AIR 1987 SC 2328
– 24 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
“14……. Section 20(1) of the Specific Relief Act,
1963 provides that the jurisdiction to decree specific
performance is discretionary, and the court is not
bound to grant such relief, merely because it is
lawful to do so; but the discretion of the court is not
arbitrary but sound and reasonable, guided by
judicial principles and capable of correction by a
court of appeal. The grant of relief of specific
performance is discretionary. The circumstances
specified in Section 20 are only illustrative and not
exhaustive. The court would take into consideration
the circumstances in each case, the conduct of the
parties and the respective interest under the
contract.”
9.3. Reiterating the position in K. Narendra v. Riviera
Apartments (P) Ltd9, this Court held thus: (SCC p.91, para
29)
“29…… Performance of the contract involving
some hardship on the defendant which he did not
foresee while non-performance involving no such
hardship on the plaintiff, is one of the
circumstances in which the court may properly
exercise discretion not to decree specific
performance. The doctrine of comparative
hardship has been thus statutorily recognized in
India. However, mere inadequacy of consideration
or the mere fact that the contract is onerous to
the defendant or improvident in its nature, shall
not constitute an unfair advantage to the plaintiff
over the defendant or unforeseeable hardship on
the defendant. The principle underlying Section 20
has been summed up by this Court in Lourdu Mari
David v. Louis Chinnaya Arogiaswamy10 by stating
that the decree for specific performance is in the
discretion of the Court but the discretion should
not be used arbitrarily; the discretion should be
exercised on sound principles of law capable of
correction by an appellate court.”
9
(1999) 5 SCC 77
10
(1996) 5 SCC 589
– 25 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
9.4. These principles were followed by this Court
in A.C. Arulappan v. Ahalya Naik11, with the following
observations: (SCC pp.604 & 606, paras 7 & 15)
“7…… The jurisdiction to decree specific
relief is discretionary and the court can consider
various circumstances to decide whether such
relief is to be granted. Merely because it is lawful
to grant specific relief, the court need not grant
the order for specific relief; but this discretion
shall not be exercised in an arbitrary or
unreasonable manner. Certain circumstances have
been mentioned in Section 20(2) of the Specific
Relief Act, 1963 as to under what circumstances
the court shall exercise such discretion. If under
the terms of the contract the plaintiff gets an
unfair advantage over the defendant, the court
may not exercise its discretion in favour of the
plaintiff. So also, specific relief may not be granted
if the defendant would be put to undue hardship
which he did not foresee at the time of agreement.
If it is inequitable to grant specific relief, then also
the court would desist from granting a decree to
the plaintiff.” ……..
“15…… Granting of specific performance is
an equitable relief, though the same is now
governed by the statutory provisions of the
Specific Relief Act, 1963. These equitable
principles are nicely incorporated in Section 20 of
the Act. While granting a decree for specific
performance, these salutary guidelines shall be in
the forefront of the mind of the court…..”
9.5. A Bench of three Judges of this Court
considered the position in Nirmala Anand Vs. Advent
Corporation (P) Ltd12., and held thus : (SCC p.150, para
6)
“6…… It is true that grant of decree of
specific performance lies in the discretion of the
court and it is also well settled that it is not always
11
(2001) 6 SCC 600
12
8 (2002) 8 SCC 146
– 26 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
necessary to grant specific performance simply for
the reason that it is legal to do so. It is further
well settled that the court in its discretion can
impose any reasonable condition including
payment of an additional amount by one party to
the other while granting or refusing decree of
specific performance. Whether the purchaser shall
be directed to pay an additional amount to the
seller or converse would depend upon the facts
and circumstances of a case. Ordinarily, the
plaintiff is not to be denied the relief of specific
performance only on account of the phenomenal
increase of price during the pendency of litigation.
That may be, in a given case, one of the
considerations besides many others to be taken
into consideration for refusing the decree of
specific performance. As a general rule, it cannot
be held that ordinarily the plaintiff cannot be
allowed to have, for her alone, the entire benefit
of phenomenal increase of the value of the
property during the pendency of the litigation.
While balancing the equities, one of the
considerations to be kept in view is as to who is
the defaulting party. It is also to be borne in mind
whether a party is trying to take undue advantage
over the other as also the hardship that may be
caused to the defendant by directing specific
performance. There may be other circumstances
on which parties may not have any control. The
totality of the circumstances is required to be
seen.”
36. The Hon’ble Supreme Court in the case of
PARAKUNNAN VEETILL JOSEPH’S SON MATHEW vs.
NEDUMBARA KURUVILA’S SON13, at paragraph No.14, has
held as follows:
13
(1987) Supp SCC 340
– 27 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
“14. Section 20 of the Specific Relief Act, 1963
preserves judicial discretion of courts as to decreeing
specific performance. The court should meticulously
consider all facts and circumstances of the case. The court
is not bound to grant specific performance merely because
it is lawful to do so. The motive behind the litigation
should also enter into the judicial verdict. The court
should take care to see that it is not used as an
instrument of oppression to have an unfair advantage to
the plaintiff. The High Court has failed to consider the
motive with which Varghese instituted the suit. It was
instituted because Kuruvila could not get the estate and
Mathew was not prepared to part with it. The sheet
anchor of the suit by Varghese is the agreement for sale
Exhibit A-1. Since Chettiar had waived his rights
thereunder, Varghese as an assignee could not get a
better right to enforce that agreement. He is, therefore,
not entitled to a decree for specific performance.”
37. The Hon’ble Supreme Court in the case of SARDAR
SINGH vs. KRISHNA DEVI14, at paragraph No.14, has held as
follows:
“14. The next question is whether the courts below
were justified in decreeing the suit for specific
performance. Section 20(1) of the Specific Relief Act,
1963 provides that the jurisdiction to decree specific
performance is discretionary, and the court is not bound
to grant such relief, merely because it is lawful to do so;
but the discretion of the court is not arbitrary but sound
and reasonable, guided by judicial principles and capable
of correction by a court of appeal. The grant of relief of
specific performance is discretionary. The circumstances
specified in Section 20 are only illustrative and not
exhaustive. The court would take into consideration the
circumstances in each case, the conduct of the parties
and the respective interest under the contract.”
14
(1994) 4 SCC 18
– 28 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
38. The Hon’ble Supreme Court in the case of K.
NARENDRA vs. RIVIERA APARTMENTS (P) LTD.15, at
paragraph Nos.29, 30, 31, 32, 33 and 34, has held as follows:
“29. Section 20 of the Specific Relief Act, 1963
provides that the jurisdiction to decree specific
performance is discretionary and the court is not bound to
grant such relief merely because it is lawful to do so; the
discretion of the court is not arbitrary but sound and
reasonable, guided by judicial principles and capable of
correction by a court of appeal. Performance of the
contract involving some hardship on the defendant which
he did not foresee while non-performance involving no
such hardship on the plaintiff, is one of the circumstances
in which the court may properly exercise discretion not to
decree specific performance. The doctrine of comparative
hardship has been thus statutorily recognized in India.
However, mere inadequacy of consideration or the mere
fact that the contract is onerous to the defendant or
improvident in its nature, shall not constitute an unfair
advantage to the plaintiff over the defendant or
unforeseeable hardship on the defendant. The principle
underlying Section 20 has been summed up by this Court
in Lourdu Mari David v. Louis Chinnaya
Arogiaswamy [(1996) 5 SCC 589 : AIR 1996 SC 2814] by
stating that the decree for specific performance is in the
discretion of the Court but the discretion should not be
used arbitrarily; the discretion should be exercised on
sound principles of law capable of correction by an
appellate court.
30. Chitty on Contracts (27th Edn., 1994, Vol. 1., at p.
1296) states:
“Severe hardship may be a ground for
refusing specific performance even though it
results from circumstances which arise after the
conclusion of the contract, which affect the person
of the defendant rather than the subject-matter of
the contract, and for which the plaintiff is in no
way responsible.”
15
(1999) 5 SCC 77
– 29 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
31. Very recently in K.S.
Vidyanadam v. Vairavan [(1997) 3 SCC 1] this Court has
held: (SCC p. 7, para 10)
“10. It has been consistently held by the courts
in India, following certain early English decisions,
that in the case of agreement of sale relating to
immovable property, time is not of the essence of
the contract unless specifically provided to that
effect. The period of limitation prescribed by the
Limitation Act for filing a suit is three years. From
these two circumstances, it does not follow that any
and every suit for specific performance of the
agreement (which does not provide specifically that
time is of the essence of the contract) should be
decreed provided it is filed within the period of
limitation notwithstanding the time-limits stipulated
in the agreement for doing one or the other thing by
one or the other party. That would amount to saying
that the time-limits prescribed by the parties in the
agreement have no significance or value and that
they mean nothing. Would it be reasonable to say
that because time is not made the essence of the
contract, the time-limit(s) specified in the
agreement have no relevance and can be ignored
with impunity? It would also mean denying the
discretion vested in the court by both Sections 10
and 20. As held by a Constitution Bench of this
Court in Chand Rani v. Kamal Rani [(1993) 1 SCC
519 : AIR 1993 SC 1742] : (SCC p. 528, para 25)
‘… it is clear that in the case of sale of
immovable property there is no presumption as
to time being the essence of the contract. Even
if it is not of the essence of the contract, the
court may infer that it is to be performed in a
reasonable time if the conditions are
(evident?): (1) from the express terms of the
contract; (2) from the nature of the property;
and (3) from the surrounding circumstances,
for example, the object of making the
contract.’
In other words, the court should look at all the
relevant circumstances including the time-limit(s)
specified in the agreement and determine whether
– 30 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
its discretion to grant specific performance should be
exercised. Now in the case of urban properties in
India, it is well-known that their prices have been
going up sharply over the last few decades —
particularly after 1973.”
32. Referring to the principle that mere rise in prices
is no ground for denying the specific performance the
Court has emphasized the need for being alive to the
realities of life and inflationary tendencies judicially
noticeable and observed: (SCC p. 9, para 11)
“Indeed, we are inclined to think that the
rigor of the rule evolved by courts that time is not
of the essence of the contract in the case of
immovable properties — evolved in times when
prices and values were stable and inflation was
unknown — requires to be relaxed, if not modified,
particularly in the case of urban immovable
properties. It is high time, we do so.”
33. The Court has further proceeded to hold: (SCC pp.
9-10, para 11)
“All this only means that while exercising its
discretion, the court should also bear in mind that
when the parties prescribe certain time-limit(s) for
taking steps by one or the other party, it must
have some significance and that the said time-
limit(s) cannot be ignored altogether on the
ground that time has not been made the essence
of the contract (relating to immovable
properties).”
34. Having noticed the Constitution Bench decision
in Chand Rani [(1993) 1 SCC 519 : AIR 1993 SC 1742] the
Court has further held: (SCC p. 11, para 14)
“Even where time is not of the essence of
the contract, the plaintiff must perform his part of
the contract within a reasonable time and
reasonable time should be determined by looking
at all the surrounding circumstances including the
express terms of the contract and the nature of
the property.”
– 31 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
39. The Hon’ble Supreme Court in the case of A.C.
ARULAPPAN vs. AHALYA NAIK16, at paragraph No.7, 8, 9, 10
and 15, has held as follows:
“7. The jurisdiction to decree specific relief is
discretionary and the court can consider various
circumstances to decide whether such relief is to be granted.
Merely because it is lawful to grant specific relief, the court
need not grant the order for specific relief; but this
discretion shall not be exercised in an arbitrary or
unreasonable manner. Certain circumstances have been
mentioned in Section 20(2) of the Specific Relief Act, 1963
as to under what circumstances the court shall exercise such
discretion. If under the terms of the contract the plaintiff
gets an unfair advantage over the defendant, the court may
not exercise its discretion in favour of the plaintiff. So also,
specific relief may not be granted if the defendant would be
put to undue hardship which he did not foresee at the time
of agreement. If it is inequitable to grant specific relief, then
also the court would desist from granting a decree to the
plaintiff.
8. In Damacherla Anjaneyulu v. Damcherla Venkata
Seshaiah [1987 Supp SCC 75 : AIR 1987 SC 1641] the High
Court declined to grant a decree for specific performance in
favour of the plaintiff, even though the defendant was guilty
of breach of agreement. That was a case where the
defendant had constructed costly structures and if a decree
for specific performance was granted, the defendant would
have been put to special hardship. This Court directed the
defendant to pay compensation to the plaintiff.
9. In Parakunnan Veetill Joseph’s Son
Mathew v. Nedumbara Kuruvila‘s Son [1987 Supp SCC 340:
AIR 1987 SC 2328] this Court cautioned and observed as
under: (SCC p. 345, para 14)“14. Section 20 of the Specific Relief Act, 1963
preserves judicial discretion to courts as to
decreeing specific performance. The court should
meticulously consider all facts and circumstances of
16
(2001) 6 SCC 600
– 32 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
the case. The court is not bound to grant specific
performance merely because it is lawful to do so.
The motive behind the litigation should also enter
into the judicial verdict. The court should take care
to see that it is not used as an instrument of
oppression to have an unfair advantage to the
plaintiff.”
10. In Lourdu Mari David v. Louis Chinnaya
Arogiaswamy [(1996) 5 SCC 589 : AIR 1996 SC 2814] the
plaintiff, who sought for specific performance of an
agreement to purchase immoveable property, filed a suit
with incorrect and false facts. In the plaint, it was alleged
that the plaintiff was already given possession of Door
No.2/53 as a lessee and he was given possession of Door
No.1/53 on the date of the agreement itself. But he did not
give any evidence that he had got possession of Door
No.1/53 on the date of the agreement. It was found that his
case as regards Door No.1/53 was false. He also alleged that
he had paid Rs.400 in addition to the sum of Rs.4000 paid as
advance, but this was proved to be an incorrect statement.
He alleged that the third defendant had inspected the house
during the course of negotiations, but this also was found to
be false. This Court held that it is settled law that the party
who seeks to avail of the jurisdiction of a court and specific
performance being equitable relief, must come to the court
with clean hands. In other words, the party who makes false
allegations does not come with clean hands and is not
entitled to the equitable relief.
15. Granting of specific performance is an equitable
relief, though the same is now governed by the statutory
provisions of the Specific Relief Act, 1963. These equitable
principles are nicely incorporated in Section 20 of the Act.
While granting a decree for specific performance, these
salutary guidelines shall be in the forefront of the mind of
the court. The trial court, which had the added advantage of
recording the evidence and seeing the demeanour of the
witnesses, considered the relevant facts and reached a
conclusion. The appellate court should not have reversed
that decision disregarding these facts and, in our view, the
appellate court seriously flawed in its decision. Therefore, we
hold that the respondent is not entitled to a decree of
specific performance of the contract.”
– 33 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
40. The Hon’ble Supreme Court in the case of
U.N.KRISHNAMURTHY (SINCE DECEASED) AND OTHERS
LRS. vs. A.M.KRISHNAMRTHY, reported in (2023) 11 SCC
175, at paragraph Nos.32, 33 and 34, has held as under:
“32. In a suit for specific performance of a contract,
the Court is required to pose unto itself the following
questions, namely:
32.1. Whether there is a valid agreement of sale
binding on both the vendor and the vendee.
32.2. Whether the plaintiff has all along been and
still is ready and willing to perform his part of the contract
as envisaged under Section 16(c) of the Specific Relief
Act, 1963.
33. There is a distinction between readiness and
willingness to perform the contract and both ingredients
are necessary for the relief of specific performance.
In Acharya Swami Ganesh Dassji v. Sita Ram
Thapar [Acharya Swami Ganesh Dassji v. Sita Ram
Thapar, (1996) 4 SCC 526] cited by Mr Venugopal, this
Court said that there was a difference between readiness
and willingness to perform a contract. While readiness
means the capacity of the plaintiff to perform the contract
which would include his financial position, willingness
relates to the conduct of the plaintiff. The same view was
taken by this Court in Kalawati v. Rakesh
Kumar [Kalawati v.Rakesh Kumar, (2018) 3 SCC 658 :
(2018) 2 SCC (Civ) 609] .
34. Even in a first appeal, the first appellate court is
duty-bound to examine whether there was continuous
readiness and willingness on the part of the plaintiff to
perform the contract. This proposition finds support
from Balraj Taneja v. Sunil Madan [Balraj Taneja v. Sunil
Madan,(1999) 8 SCC 396] and H.P.Pyarejan v. Dasappa
[H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496] where
this Court approved the views taken by the Privy Council
in Ardeshir Mama v. Flora Sassoon [Ardeshir
– 34 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-
28) 55 IA 360 at p. 372 : AIR 1928 PC 208] .”
41. In the case of P.DAIVASIGAMANI vs.
S.SAMBANDAN17, at paragraph Nos.21, 22, 23, 24 and 25, has
held as under;
“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 reported in See para 2
in Ganesh Dassji V. Sita Ram Thapar, (1996) 4 SCC
52618. 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 reported in See
para 5 in N.P.Thirugnanam V. R. Jagan Mohan Rao,
(1995) 5 SCC 115. Also see Anleshir Manu V. flora
Sassoon, 1928 SCC Online PC 43: (1927-28) 55 IA 360:
Air 1928 PC 208.
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 vs. 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:
(SCC p. 341, para 9)
17
(2022) 14 SC 793
– 35 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
“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
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. 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
– 36 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
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: (Syed
Dastagir case19,
“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 Singh20 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 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 Ahmed21, in case of C.S. Venkatesh v. A.S.C.
Murthy22.
25. Section 20 of the Specific Relief Act (Pre-
amendment), which confers discretion on the court to
exercise jurisdiction to decree of specific performance, states
that this exercise should not be arbitrary, but guided by
19
Syed Dastagir V. T. R. Gopalkrishna setty, (1999) 6 SCC 337
20
(1997) 2 SCC 200
21
(2017) 4 SCC 654 : (2017) 2 SCC (Civ) 596
22
(2020) 3 SCC 280 : (2020) 2 SCC (Civ) 90
– 37 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
sound and reasonable judicial principles. Interpreting and
elucidating on Section 20 of the Specific Relief Act (pre-
amendment) and factors to be considered, this Court
in Kamal Kumar v. Premlata Joshi23 has also referred
to Sections 16(c), 22, 23 and 24 of the Specific Relief Act
and Forms 47/48 of Appendix A to C of the Code of Civil
Procedure, 1908, to summarise: (SCC pp.705-706, paras 7-
8)
“7. It is a settled principle of law that the grant of
relief of specific performance is a discretionary and
equitable relief. The material questions, which are
required to be gone into for grant of the relief of
specific performance are:
7.1 First, whether there exists a valid and
concluded contract between the parties for
sale/purchase of the suit property;
7.2 Second, whether the plaintiff has been ready
and willing to perform his part of contract and
whether he is still ready and willing to perform his
part as mentioned in the contract.
7.3 Third, whether the plaintiff has, in fact,
performed his part of the contract and, if so, how
and to what extent and in what manner he has
performed and whether such performance was in
conformity with the terms of the contract.
7.4 Fourth, whether it will be equitable to grant
the relief of specific performance to the plaintiff
against the defendant in relation to suit property or
it will cause any kind of hardship to the defendant
and, if so, how and in what manner and the extent if
such relief is eventually granted to the plaintiff.
7.5 Lastly, whether the plaintiff is entitled for
grant of any other alternative relief, namely, refund
of earnest money etc. and, if so, on what grounds.
8. In our opinion, the aforementioned questions are part
of the statutory requirements [See Sections 16
(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms
47/48 of Appendix A to C of the Code of Civil Procedure].
23
(2019) 3 SCC 704 : (2019) 2 SCC (Civ) 405
– 38 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
These requirements have to be properly pleaded by the
parties in their respective pleadings and proved with the aid
of evidence in accordance with law. It is only then the Court
is entitled to exercise its discretion and accordingly grant or
refuse the relief of specific performance depending upon the
case made out by the parties on facts.”
42. The Hon’ble Supreme Court in the case of
J.P.BUILDERS AND ANOTHER vs. A.RAMDAS RAO AND
ANOTHER24, at paragraph Nos.20, 21, 23, 24, 25, 26 and 27, it
is held as under:
Readiness and willingness
“20. Section 16(c) of the Specific Relief Act, 1963
provides for personal bars to relief. This provision states
that:
“16.Personal bars to relief:— Specific
performance of a contract cannot be enforced in
favour of a person —
a) who would not be entitled to recover
compensation for its breach; or
b) who has become incapable of performing,
or violates any essential term of, the contract that
on his part remains to be performed, or acts in
fraud of the contract, or wilfully acts at variance
with, or in subversion of, the relation intended to
be established by the contract; or
c) who fails to aver and prove that he has
performed or has always been ready and willing
to perform the essential terms of the contract
which are to be performed by him, other than
terms the performance of which has been
prevented or waived by the defendant.
Explanation.- For the purposes of clause
(c),-
24
(2011) 1 SCC 429
– 39 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
(i) where a contract involves the payment of
money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in
court any money except when so directed by the
court;
(ii) the plaintiff must aver performance of, or
readiness and willingness to perform, the
contract according to its true construction.”
21. Among the three clauses, we are more concerned
about clause (c). “Readiness and willingness” is enshrined
in clause (c) which was not present in the old Act of 1877.
However, it was later inserted with the recommendations
of the 9th Law Commission’s report. This clause provides
that the person seeking specific performance must prove
that he has performed or has been ready and willing to
perform the essential terms of the contract which are to
be performed by him.
23. In N.P. Thirugnanam vs. Dr. R. Jagan Mohan
25
Rao ., at SCC para 5, this Court held: (SCC pp. 117-18)
“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
25
(1995) 5 SCC 115
– 40 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
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.”
24. In P.D’Souza vs. Shondrilo Naidu26, this Court
observed: (SCC p. 654, paras 19 and 21)
“19. It is indisputable that in a suit for
specific performance of contract the plaintiff must
establish his readiness and willingness to perform
his part of contract. The question as to whether
the onus was discharged by the plaintiff or not
will depend upon the facts and circumstances of
each case. No straitjacket formula can be laid
down in this behalf….
21……The readiness and willingness on the part of
the plaintiff to perform his part of contract would also
depend upon the question as to whether the defendant
did everything which was required of him to be done in
terms of the agreement for sale.”
25. Section 16(c) of the Specific Relief Act, 1963
mandates “readiness and willingness” on the part of the
plaintiff and it is a condition precedent for obtaining relief
of grant of specific performance. It is also clear that in a
suit for specific performance, the plaintiff must allege and
prove a continuous “readiness and willingness” to perform
the contract on his part from the date of the contract. The
onus is on the plaintiff.
26. It has been rightly considered by this Court
in R.C. Chandiok. vs. Chuni Lal Sabharwal27., that
“readiness and willingness” cannot be treated as a
26
(2004) 6 SCC 649
27
(1970) 3 SCC 140
– 41 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
straightjacket formula. This has to be determined from
the entirety of the facts and circumstances relevant to the
intention and conduct of the party concerned.
27. It is settled law that even in the absence of
specific plea by the opposite party, it is the mandate of
the statute that plaintiff has to comply with Section
16(c) of the Specific Relief Act and when there is non-
compliance with this statutory mandate, the Court is not
bound to grant specific performance and is left with no
other alternative but to dismiss the suit. It is also clear
that readiness to perform must be established throughout
the relevant points of time. “Readiness and willingness” to
perform the part of the contract has to be
determined/ascertained from the conduct of the parties.”
43. The Hon’ble Supreme Court in the case of ZARINA
SIDDIQUI vs. A. RAMALINGAM ALIAS R.AMARNATHAN28 at
paragraph Nos.30, 33, has held as under:
“30. In a recent judgment dated 22.9.2014 in Civil
Appeal No.9047 of 2014 entitled K. Prakash vs. B.R.
Sampath Kumar29, this Court observed that: (SCC
p.605 and paras 16 & 18-19)“16. The principles which can be
enunciated are that where the plaintiff brings a
suit for specific performance of contract for
sale, the law insists a condition precedent to
the grant of decree for specific performance:
that the plaintiff must show his continued
readiness and willingness to perform his part of
the contract in accordance with its terms from
the date of contract to the date of hearing.
Normally, when the trial court exercises its
discretion in one way or other after appreciation
of entire evidence and materials on record, the
appellate court should not interfere unless it is
established that the discretion has been28
(2015) 1 SCC 705
29
(2015) 1 SCC 597
– 42 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
exercised perversely, arbitrarily or against
judicial principles. The appellate court should
also not exercise its discretion against the grant
of specific performance on extraneous
considerations or sympathetic considerations. It
is true, as contemplated under Section 20 of
the Specific Relief Act, that a party is not
entitled to get a decree for specific performance
merely because it is lawful to do so.
Nevertheless once an agreement to sell is legal
and validly proved and further requirements for
getting such a decree are established then the
Court has to exercise its discretion in favour of
granting relief for specific performance.
18. Subsequent rise in price will not be
treated as a hardship entailing refusal of the
decree for specific performance. Rise in price is
a normal change of circumstances and,
therefore, on that ground a decree for specific
performance cannot be reversed.
19. However, the court may take notice of
the fact that there has been an increase in the
price of the property and considering the other
facts and circumstances of the case, this Court
while granting decree for specific performance
can impose such condition which may to some
extent compensate the defendant owner of the
property. This aspect of the matter is
considered by a three-Judge Bench of this Court
in Nirmala Anand vs. Advent Corporation (P)
Ltd…30
33. The equitable discretion to grant or not to
grant a relief for specific performance also depends
upon the conduct of the parties. The necessary
ingredient has to be proved and established by the
plaintiff so that discretion would be exercised
judiciously in favour of the plaintiff. At the same time,
if the defendant does not come with clean hands and
suppresses material facts and evidence and misled the
30
(2002) 8 SCC 146
– 43 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
Court then such discretion should not be exercised by
refusing to grant specific performance.”
44. The Hon’ble Supreme Court in the case of R.SHAMA
NAIK vs. G.SRINIVASAIAH31 at paragraph Nos.8, 9, 10 and
11, has held as under:
“8. Section 16(C) of the Specific Relief Act, 1963
(prior to amendment w.e.f. 1.10.2018) bars the relief
of the specific performance of a contract in favour of a
person who fails to aver readiness and willingness to
perform his part of the contract.
9. There is a legion of precedents on the subject
of readiness and willingness.
10. The law is well settled. The plaintiff is obliged
not only to make specific statement and averments in
the plaint but is also obliged to adduce necessary oral
and documentary evidence to show the availability of
funds to make payment in terms of the contract in
time.
11. There is a fine distinction between readiness
and willingness to perform the contract. Both the
ingredients are necessary for the relief of specific
performance.”
45. Therefore, both the Courts below have held contrary
to the principles enunciated under Section 20 of the S.R. Act and
have erroneously granted decree for specific performance.
Therefore, they are liable to be set aside.
31
2024 SCC ONLINE 3586
– 44 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
46. Furthermore, the plaintiffs in the plaint have not
averred that they were ever ready and willing to perform his part
of contract, but later on, upon the defect shown by the
defendants the plaintiffs got amended the plaint by pleading on
the aspect of readiness and willingness. Upon considering the
evidence on record, the plaintiffs have not adduced any evidence
to prove their readiness and willingness for specific performance
of contract. Mere issuance of legal notice is not sufficient to
prove that the plaintiffs were ever ready and willing to perform
their part of contract.
47. In this regard, I place reliance on the judgment of
the Division Bench judgment of this Court in SRI. T.N. ARUN
KUMAR AND OTHERS vs. SRI. SHIVANNA, S/O. LATE
BASAPPA AND ANOTHER32, which reads as follows:
“16. Therefore, we are of the view that the
findings of the Trial Court is incorrect with regard to the
readiness and willingness of the plaintiffs.
17. Be that as it may, Even if we accept the
contention of the plaintiffs that they were ready and
willing to take the sale deed by paying the balance sale
consideration, atleast it was for the plaintiffs to deposit
the amount of Rs. 15,50,000/- immediately after the
decree, since the Trial Court has directed the plaintiffs
to pay the balance sale consideration and obtain the
sale deed by paying the defendants within three
32
(2012) 3 KCCR 1757 (DB)
– 45 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
months to receive the balance sale consideration and to
get the sale deed at their cost and even otherwise
atleast the plaintiffs were required to deposit Rs.
15,50,000/- before the Court below immediately after
completion of three months from the date of decree.
But such an attempt has not been made by the
plaintiffs to deposit the money. Only reason assigned
by Mr. Rama Mohan. learned counsel for the respondent
is that since the matter was pending before this Court,
they did not deposit the amount. But the said
submission cannot be accepted by this Court because
the matter was listed before this Court on 01.06.2010
and on which date notice was ordered in regard to
consider the application of the appellants for grant of
stay. The Court notice issued by this Court in this
appeal has been received by the respondents on
22.06.2010 Therefore, the respondents-plaintiffs cannot
contend that they did not deposit the money on account
of the pendency of this appeal because they filed the
appeal only on 13.05.2010 which date was the last day
for the respondents – plaintiffs to pay the amount in
terms of the decree. Even thereafter it was open for the
plaintiffs-decree holder to deposit the amount into the
Court by filing an execution. Till today no such
execution petition is filed, no amount is deposited by
the plaintiffs. In addition to that the appeal was
dismissed for default on 26.11.2010 Nine months
thereafter on 05.10.2011 the appeal has been restored
by this Court on an application filed by the plaintiffs.
Atleast on dismissal of this appeal the respondents
could have deposited the amount, with the permission
of the Court, but such an attempt has not been made.”
48. Further, I place reliance on the judgment of the
Division Bench judgment of this Court in SRI. PUNNY AKAT
PHILIP RAJU, SINCE DEAD BY HIS LRS. vs. SRI. DINESH
– 46 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
REDDY33, wherein at paragraphs No.31, 32, 33, 34, 35 and 36,
it is held as under:
“31. It is in this background of the statutory
provisions, we have to find out, when the plaintiff avers in
the plaint that he has performed or is always being ready
and willing to perform the essential terms of the contract,
which deals with payment of money, what is the proof
that is required to prove the said averments. The
explanation to Section 16 clarifies that when a contract
involves payment of money, it is not essential for the
plaintiff to actually tender to the defendant or to deposit
in Court any money except when so directed by the Court.
But none the less, if the plaintiff wants to prove that he is
possessed with the requisite funds to perform his part of
the contract i.e., payment of balance sale consideration,
he should produce such evidence to substantiate his case.
What he has to place before the Court is his financial
ability either to raise the requisite funds or the possession
of the requisite funds in proof of his readiness and
willingness to perform the stipulations regarding the
payment of balance sale consideration. The rule that in
each case best evidence of which the case in its nature is
susceptible should always be given naturally leads to the
division of evidence into primary and secondary. Primary
evidence is the best or highest evidence, or, in other
words, it is that kind of proof which, in the eye of the law,
affords the greatest certainty of the fact in 29 question.
Until it is shown that the production of this evidence is out
of the party’s power, no other proof of the fact is in
general admitted. It is based on the principle that ‘best
evidence’ in the possession or power of the party must be
produced. What the best evidence is, it depends upon the
facts and circumstances of each case.
PROOF OF READINESS
32. The proof of readiness necessarily means
demonstration of financial ability or capacity to pay the
balance sale consideration and take the sale deed. When a
person on oath states in the witness box that he is ready
with the requisite funds, he must produce some evidence to33
ILR 2016 KAR 2252
– 47 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017HC-KAR
prove his possession of the required funds. The explanation
makes it clear that the proof of requisite funds does not
mean he should produce the currency before the Court or
he should deposit the money in Court. But at the same
time, mere statement on oath in the witness box that he is
possessed of the requisite funds would also do not prove
possession of funds. The said proof has to be necessarily by
way of documentary evidence. The reason being, if, the
payment is to be made in cash i.e., by handing over
currency, currency is a documentary evidence. The
explanation makes it clear that to prove readiness, the
plaintiff need not produce the currency before the Court. If
the balance consideration is to be deposited in the Court
such a deposit is also evidenced by documentary evidence,
which is also not necessary by virtue of the explanation.
33. Money does not exist in vacuum. Money has to be
necessarily in the form of physical object. It is in the nature
of document. Money is deposited in banks. Money is in the
nature of securities. Money is capable of being raised from
borrowing. Money could be raised by sale of properties
movable or immovable. When a person claims that he is
possessed of sufficient funds, he has to produce some
documentary evidence, which proves his capacity to raise
the funds or he possess the funds. What are the documents
which, the plaintiff can produce to prove his capacity? It
may be a passbook issued by a Bank where he has kept the
balance sale consideration ready for payment. If he has
invested his money by way of securities, he has to produce
those securities before Court to show that any time he can
encash the same and pay the balance consideration.
Similarly, if he has kept the money in Fixed Deposit, in a
Bank, that deposit receipt is the proof of his ability to raise
the balance sale consideration. If he intends to borrow
money from a Nationalized Bank or from his employer or
from any other financial institution, it has to be
demonstrated by producing a request for such financial
assistance in writing, sanctioning of the said loan which has
to be necessarily in writing. These instances are only
illustrative. There may be several other modes by which
the requisite funds are raised. But all of these instances are
evidenced by documentary evidence.
34. Therefore, mere stepping into the witness box and
saying on oath that he is ready with the balance sale
– 48 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017HC-KAR
consideration or that he is going to borrow money from any
financial institution or that he has got sufficient funds in his
Bank accounts or that he has kept money in Fixed Deposit,
without that oral evidence being supported by documentary
evidence will not prove the plaintiff’s readiness to pay the
balance sale consideration. It is immaterial whether such
oral evidence is challenged in cross-examination or not.
The plaintiff has to prove to the satisfaction of the Court
that he possessed the requisite funds. He has to produce
such documentary evidence, which would enable the Court
to come to the conclusion that plaintiff is ready with the
requisite balance sale consideration to complete the sale
transaction. If no evidence is adduced in this regard by way
of documentary evidence, no prudent man would come to
the conclusion that the person has proved the possession
of funds. In the absence of any such documentary evidence
being produced, it is a case of plaintiff’s case being not
proved. Plaintiff cannot expect the Court to pass a decree
for specific performance of a contract of sale when the
plaintiff has not proved his readiness to perform his part of
the contract.
35. Therefore, in a case arising under Section 16(c) of
the Specific Relief Act, the obligation is cast on the plaintiff
to prove that he was ready with the balance sale
consideration. When the statute requires the plaintiff must
plead and prove his readiness and willingness to perform
his part of the contract and that readiness refers to the
possession of the requisite funds, there is an obligation cast
on that person, who has to prove the possession of funds
to produce documents to show possession of funds by him.
Though he is not expected to tender or deposit the cash
before the Court, he has to produce such evidence to prove
his financial capability. Only on production of such
documentary evidence, on verification and appreciation of
those documents, Court could come to the conclusion that
the plea of readiness is proved. Mere assertion on oath that
he is ready with the balance sale consideration, even if it is
not challenged in the cross-examination; is not the proof of
the plaintiff’s readiness with the balance sale consideration.
He should produce such evidence to show either he possess
the requisite funds or he is capable of raising such funds
within the time stipulated. If such evidence is not
forthcoming it is a case of, the plaintiff’s case being not
proved.
– 49 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017HC-KAR
36. The Apex Court had an occasion to consider the
contention that when there is no denial of readiness and
willingness by the defendant either in the written statement
or in the evidence, there is no obligation on the part of the
plaintiff to produce any documentary evidence to prove his
readiness. The Supreme Court in the case of J.P. Builders &
another -vs- A. Ramadas Rao reported in (2011)1 SCC 429
after referring to Section 16 of the Specific Relief Act has
held at para-21 as under:
“21. Among the three clauses, we are more
concerned about clause (c). ‘Readiness and
Willingness’ is enshrined in clause (c) which was
not present in the old Act of 1877. However, it
was later inserted with the recommendations of
the 9th Law Commission’s Report. This clause
provides that the person seeking specific
performance must prove that he has performed or
has been ready and willing to perform the
essential terms of the contract which are to be
performed by him.”
At para 22 it is held as under:
“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. readiness is backed
by willingness.”
At paras-25, 26 and 27 it is held as under:
“Generally, 25. Section 16(c) of the Specific
Relief Act, 1963 mandates “readiness and
willingness” on the part of the plaintiff and it is a
condition precedent for obtaining relief of grant of
specific performance. It is also clear that in a suit
for specific performance, the plaintiff must allege
and prove a continuous “readiness and
willingness” to perform the contract on his part
from the date of the contract. The onus is on the
plaintiff.”
– 50 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
26. It has been rightly considered by this Court
in R.C. Chandiok V. Chuni Lal Sabharwal that
“readiness and willingness” cannot be treated as a
straitjacket formula. This has to be determined
from the entirety of the facts and circumstances
relevant to the intention and conduct of the party
concerned.
27. It is settled law that even in the absence of
specific plea by the opposite party, it is the 36
mandate of the statute that the plaintiff has to
comply with Section 16(c) of the Specific Relief Act
and when there is non-compliance with this statutory
mandate, the Court is not bound to grant specific
performance and is left with no other alternative but
to dismiss the suit. It is also clear that readiness to
perform must be established throughout the relevant
points of time. “Readiness and Willingness” to
perform the part of the contract has to be
determined/ascertained from the conduct of the
parties.”
49. Considering the chronology of events in the case
from the date of execution of agreement of sale, the market
value of the property has substantially escalated. If considerable
time is consumed during the legal battle and the market value of
the property escalates, granting a decree for specific
performance at the earlier agreed lower price would certainly
cause hardship for the defendants by the plaintiffs, as the owner
of the property was not be directed to sell away the land for
earlier meagre price. Therefore, escalation in market value is
also a relevant factor to be taken into consideration by the Court
– 51 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
while exercising its discretionary relief of specific performance,
as stipulated by the Hon’ble Supreme Court in SARADAMAI
KANDAPPAN vs. S. RAJALAKSHMI34, wherein at paragraph
Nos.36 and 43, it has been held as follows:
“36. The principle that time is not of the essence of
contracts relating to immovable properties took shape in
an era when market value of immovable properties were
stable and did not undergo any marked change even over
a few years (followed mechanically, even when value
ceased to be stable). As a consequence, time for
performance, stipulated in the agreement was assumed to
be not material, or at all events considered as merely
indicating the reasonable period within which contract
should be performed. The assumption was that grant of
specific performance would not prejudice the vendor-
defendant financially as there would not be much
difference in the market value of the property even if the
contract was performed after a few months. This principle
made sense during the first half of the twentieth century,
when there was comparatively very little inflation, in
India. The third quarter of the twentieth century saw a
very slow but steady increase in prices. But a drastic
change occurred from the beginning of the last quarter of
the twentieth century. There has been a galloping inflation
and prices of immovable properties have increased
steeply, by leaps and bounds. Market values of properties
are no longer stable or steady. We can take judicial
notice of the comparative purchase power of a rupee in
the year 1975 and now, as also the steep increase in the
value of the immovable properties between then and now.
It is no exaggeration to say that properties in cities, worth
a lakh or so in or about 1975 to 1980, may cost a crore or
more now.
43. Till the issue is considered in an appropriate case,
we can only reiterate what has been suggested in K.S.
Vidyanadam v. Vairavan35 :
34
(2011) 12 SCC 18
35
(1997) 3 SCC 1
– 52 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
(i) The courts, while exercising discretion in suits for
specific performance, should bear in mind that when the
parties prescribe a time/period, for taking certain steps or
for completion of the transaction, that must have some
significance and therefore time/period prescribed cannot
be ignored.
(ii) The courts will apply greater scrutiny and
strictness when considering whether the purchaser was
`ready and willing’ to perform his part of the contract.
(iii) Every suit for specific performance need not be
decreed merely because it is filed within the period of
limitation by ignoring the time-limits stipulated in the
agreement. The courts will also `frown’ upon suits which
are not filed immediately after the breach/refusal. The
fact that limitation is three years does not mean a
purchaser can wait for 1 or 2 years to file a suit and
obtain specific performance. The three year period is
intended to assist purchasers in special cases, as for
example, where the major part of the consideration has
been paid to the vendor and possession has been
delivered in part performance, where equity shifts in
favour of the purchaser.”
50. Further, this Court in SHRI. JAY R. SAWANT vs.
SMT. BEENA W/O. RAJA SABNIS36, in paragraph Nos.18, 19,
20, 21, 22 and 23, has held has follows:
“18. Therefore, it is necessary and essential
on the part of the plaintiff to plead his readiness
and willingness and accordingly has to lead
evidence in proving his readiness and willingness,
but that is not the case. Therefore, in this regard,
the plaintiff’s suit cannot be entertained for the
grant of a decree of specific performance of
contract.
19. My above view are fortified by the
Hon’ble Supreme Court in the case of36
In RSA No.100214/2016 C/w RSA Crob No.100003/2018 decided on 12.08.2024
– 53 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017HC-KAR
U.N.Krishnamurthy Vs. A.M.Krishnamurthy37, at
para 46 is reproduced as fallows:
“46. It is settled law that for relief of specific
performance, the Plaintiff has to prove that all
along and till the final decision of the suit, he was
ready and willing to perform his part of the
contract. It is the bounden duty of the Plaintiff to
prove his readiness and willingness by adducing
evidence. This crucial facet has to be determined
by considering all circumstances including
availability of funds and mere statement or
averment in plaint of readiness and willingness,
would not suffice.”
20. The Division Bench of this Court in case of
Punnya Akat Philip Raju and others Vs. Dinesh
Reddy38 at para No.32 to 38 are held as follows:
“32. The proof of readiness necessarily means
demonstration of financial ability or capacity to pay
the balance sale consideration and take the sale
deed. When a person on oath states in the witness
box that he is ready with the requisite funds, he
must produce some evidence to prove his
possession of the required funds. The explanation
makes it clear that the proof of requisite funds does
not mean he should produce the currency before
the Court or he should deposit the money in Court.
But at the same time, mere statement on oath in
the witness box that he is possessed of the e
requisite funds would also do not prove possession
of funds. The said proof has to be necessarily by
way of documentary evidence. The reason being, if,
the payment is to be made sin cash i.e., by handing
over currency, currency is a documentary evidence.
The explanation makes it clear that to prove
readiness, the plaintiff need not produce the
currency before the Court. If the balance
consideration is to be deposited in the Court such a
deposit is also evidenced by documentary evidence,
– which is also not necessary by virtue of the
explanation.
37
(2022) SCC 3361
38
2016 (3) AKR 836
– 54 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
33. Money does not exist in vacuum. Money
has to be necessarily in the form of physical object.
It is in the nature of document. Money is deposited
in banks. Money is in the nature of securities.
Money is capable of being raised from borrowing.
Money could be raised by sale of properties
movable or immovable. When a person claims that
he is possessed sufficient funds, he has to produce
some documentary evidence, which proves his
capacity to raise the funds or he possess the funds.
What are the documents which, the plaintiff can
produce to prove his capacity? It may be a
passbook issued by a Bank where he has kept the
balance sale consideration ready for payment. If he
has invested his money by way of securities, he has
to produce those securities before Court to show
that any time he can encash the same and pay the
balance consideration. Similarly, if he has kept the
money in Fixed Deposit, in a Bank, that deposit
receipt is the proof of his ability to raise the balance
sale consideration. If he intends to borrow money
from a Nationalized Bank or from his employer or
from any other financial institution, it has to be
demonstrated by producing a request for such
financial assistance in writing, sanctioning of the
said loan which has to be necessarily in writing.
These instances are only illustrative. There may be
several other modes by which the requisite funds
are raised. But all of these instances are evidenced
by documentary evidence.
34. Therefore, mere stepping into the witness
box and saying on oath that he is ready with the
balance sale consideration or that he is going to
borrow money from any financial institution or that
he has got sufficient funds in his Bank accounts or
that he has kept money in Fixed Deposit, without
that oral evidence being supported by documentary
evidence will not prove the plaintiff’s readiness to
pay the balance sale consideration.. It is immaterial
whether such oral evidence is challenged in cross-
examination or not. The plaintiff has to prove to the
satisfaction of the Court that he possessed the
requisite funds. He has to produce such
– 55 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
documentary evidence, which would enable the
Court to come to the conclusion that plaintiff is
ready with the requisite balance sale consideration
to complete the sale transaction. If no evidence is
adduced in this regard by way of documentary
evidence, no prudent man would come to the
conclusion that the person has proved the
possession of funds. In the absence of any such
documentary evidence being produced, it is a case
of plaintiff’s case being not proved. Plaintiff can- not
expect the Court to pass a decree for specific
performance of a contract of sale when the plaintiff
has not proved his readiness to perform his part of
the contract.
35. Therefore, in a case arising under Section
16(c) of the Specific Relief Act, the obligation is cast
on the plaintiff to prove that he was ready with the
balance sale consideration. When the statute
requires the plaintiff must plead and prove his
readiness and willingness to perform his part of the
contract and that readiness refers to the possession
of the requisite funds, there is an obligation cast on
that person, who has to prove the possession of
funds to produce documents to show possession of
funds by him. Though he is not expected to tender
or deposit the cash before the Court, he has to
produce such evidence to prove his financial
capability. Only on production of such documentary
evidence, on verification and appreciation of those
documents, Court could come to the conclusion that
the plea of readiness is proved. Mere assertion, on
other oath that he is ready with the balance sale
consideration, even if it is not challenged in the
cross-examination; is not the proof of the plaintiff’s
readiness with the balance sale consideration. He
should produce such evidence to show either he
possess the requisite funds or he is capable of
raising such funds within the time stipulated. If
such evidence is not forthcoming it is a case of, the
plaintiff’s case being not proved.
36. The Apex Court had an occasion to will
consider the contention that when there is no denial
of readiness and willingness by the defendant either
in the written statement or in the evidence, there is
– 56 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
no obligation on the part of the plaintiff to produce
any documentary evidence to prove his readiness.
The Supreme Court in the case of J.P. Builders &
another v. h A. Ramadas Rao reported in (2011) 1
SCC 429: (AIR 2011 SC (Civ) 230) Paras 8, 9 & 12)
after referring to Section 16 of the Specific Relief
Act has held at para-21 as under:
“21. Among the three clauses, we are
more concerned about clause (c). ‘Readiness
and Willingness’ is enshrined in clause(c) which
was not present in the old Act of 1877.
However, it was later inserted with the
recommendations of the 9th Law Commission’s
Report. This clause provides that the person
seeking specific performance must prove that
he has performed or has been ready and
willing to perform the essential terns of the
contract which are to be performed by him.”
At para 22 it is held as under:
“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.”
At paras-25, 26 and 27 it is held as under:
“25. Section 16(c) of the Specific Relief Act,
1963 mandates “readiness and willingness” on the
part of the plaintiff and it is a condition precedent
for obtaining relief of grant of specific performance.
It is also clear that in a suit for specific
performance, the plaintiff must allege and prove a
continuous “readiness and willingness” to perform
the contract on his part from the date of the
contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court
in R.C.Chandiok v.Chuni Lal Sabharwal (AIR 1971
SC 1238) that “readiness and willingness” cannot
be treated as a straitjacket formula. This has to be
– 57 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017HC-KAR
determined from the entirety of the facts and
circumstance relevant to the intention and conduct
of the party concerned.
27. It is settled law that even in the absence of
specific plea by the opposite party, it is the
mandate of the statute that the plaintiff has to
comply with Section 16(c) of the Specific Relief Act
and when there is non-compliance with this
statutory mandate, the Court is not bound to grant
specific performance and is left with no other
alternative but to dismiss the suit. It is also clear
that readiness to perform the part of the contract
has to be determined. Ascertained from the conduct
of the parties.”
“37. Order XIV of the Code of Civil Procedure
deals with the settlement of issues and
determination of suit on issues of law or on issues
agreed upon. Order XIV Rule 1(3) states how the
settlement of issue is framed in a suit. It provides
each material proposition affirmed by one party and
denied by the other shall form the subject of a
distinct issue. Issues may be of fact or of law.
38. Section 16(c) of the Specific Relief Act is
an exception to this general rule. Unless a person
avers and proves that has performed or has always
being ready and willing to perform the essential
terms of the contract which are to be performed by
him, he is not entitled to enforce the specific
performance of the contract. In other words, before
a Court can grant a decree for specific performance,
this mandatory requirement of the status has to be
complied with by the plaintiff irrespective of the
defence taken by the defendant. Only if this
mandatory requirement is complied with, the Civil
Court gets jurisdiction to grant a decree for specific
performance. If this requirement is not met, the
Civil Court has no jurisdiction to grant a decree for
specific performance. Therefore, it is obligatory on
the part of the Court, that, in every suit for specific
performance to frame an issue regarding readiness
and willingness to perform the essential terms of
the contract by the plaintiff irrespective of the fact
– 58 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
whether the defendant has specifically denied the
allegations in the plaint regarding readiness and
willingness to perform or not. Therefore, what
follows is that a plaintiff, who comes to the Court
seeking a decree for specific performance must aver
and prove that he has performed or is always ready
and willing to perform the essential terms of the
contract which are to be performed by him.
Whether the defendant denied those allegations are
not in the written statement, the Court is under an
obligation to frame an issue regarding readiness
and willingness on the part of the plaintiff to
perform the terms of the contract. Once that issue
is framed, the burden of proving readiness and
willingness is on the plaintiff. It is not dependent
upon the admission of the defendant either in the
written statement or in the evidence. Unless the
plaintiff proves to the satisfaction of the Court that
he was ready and willing to perform his part of the
contract, the Court gets no jurisdiction to pass a
decree for specific performance. Therefore, the
argument of the learned Counsel for the plaintiff,
that, as there was no serious cross examination of
P.W.1 regarding readiness and willingness, the oral
evidence of P.W.1 that he was ready and willing to
perform his part of the contract was sufficient for
the trial Court to decree the suit for specific
performance is unfounded. The plaintiff has not
produced a scrap of paper to show how he propose
to raise the balance sale consideration of Rs.65
lakhs, where he has kept that money, is it in any
bank or has he formulated a scheme for raising the
funds and whether he actually possessed of the said
funds. In the absence of such material, which has
to be necessarily in the form of documentary
evidence, not place before the Court, the trial Court
committed a serious error in holding that the
plaintiff was ready and willing to perform his part of
the contract. There is absolutely no discussion in
the entire judgment on this aspect and the sais
finding is not supported or based on any legal
evidence on record. In that view of the matter, we
are of the view that the finding recorded by the trial
Court that the plaintiff was ready and willing to
– 59 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
perform his part of the contract is vitiated and is
hereby set aside.”
21. The above said view is also once again
fortified by the Division Bench of this Court in the
case of C.Vasudevamurthy Vs. S.S.Amarnath
and others39.
22. Further the Supreme court in the case of
Kamal Kumar Vs. Premlata Joshi40, at para 10 is
held as follows:
“10. It is a settled principle of law that the grant
of relief of specific relief. The material questions,
which are required to be gone into for grant of the
relief of specific performance, are First, whether
there exists a valid and concluded contract
between the parties for sale/purchase of the suit
property; Second, whether the plaintiff has been
ready and willing to perform his part of contract
and whether he is still ready and willing to perform
his part as mentioned in the contract; Third,
whether the plaintiff has, in fact, performed his
part of the contract and , if so, how and to what
extent and in what matter he has performed and
whether such performance was in conformity with
the terms of the contract; Fourth, whether it will
be equitable to grant the relief of specific
performance to the plaintiff against the defendant
in relation to suit property or it will cause any kind
of hardship to the defendant and, if so, how and in
what manner and the extend if such relief is
eventually granted to the plaintiff; and lastly,
whether the plaintiff is entitled for grant of any
other alternative relief, namely, refund of earnest
money etc. and, if so, on what grounds.”
23. Further in the case of Ramesh Chand (Dead)
through L.Rs Vs. Asruddin (Dead) through LR’s and
another41 at para 8 and 9 are held as follows:
39
2021 (6) KLJ 345 (DB)
40
2019 AIR SCC (Civil) 1103
41
AIR 2016 SC (Civil) 434
– 60 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017HC-KAR
“8. Section 20 of Specific Relief Act, 1963,
provides that the jurisdiction to decree specific
performance is discretionary, and the court is not
bound to grant such relief merely because it is
lawful to do so, However, the discretion of the
court is not arbitrary but sound and reasonable,
guided by judicial principles. Sub-section(2) of
Section 20 of the Act provides the three situations
in which the court may exercise discretion not to
decree specific performance. One of such situation
is contained in clause (a) of sun-section (2) of the
Section which provides that where the terms of
the contract or the conduct of the parties at the
time of entering into the contract of the other
circumstances under which the contract was
entered into or such that the contract though not
voidable, gives the plaintiff unfair advantage over
the defendant, the decree of specific performance
need not be passed. It is pertinent to mention
here that in the present case, though execution of
agreement dated 21.06.2004 between the parties
is proved, but it is no where pleased or proved by
the plaintiff that he got redeemed the mortgaged
land in favour of defendant No.2 in terms of the
agreement, nor is it specifically pleased that he
was ready and willing to get the property
redeemed from the mortgage.
9. In the above facts and circumstances of the
case and the judicial principle discussed above, we
are of the opinion that it is a fit case where
instead of granting decree of specific performance,
the plaintiff can be compensated by directing the
appellant to pay a reasonable and sufficient
amount to him. We are of the view that mere
refund of rupees four lacs with interest at the rate
of 8% per annum, as directed by the trial court,
would be highly insufficient. In out considered
opinion, it would be just and appropriate to direct
the appellants(Legal Representatives of original
defendant No.1, since died) to repay rupees four
lacs along with interest at the rate of 18% per
annum from 21.06.2004 till date within a period of
three months from today to the L.Rs. of
respondent No.1 (mentioned in I.A.No.______ of
– 61 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
2015 dated 07.09.2015). If they do so, the decree
of specific performance shall stand set aside. We
clarify that if the amount is not paid or deposited
before the trial court in favour of the L.Rs. of
respondent No.1 within a period of three months,
as directed above, the decree of specific
performance shall stand affirmed. We order
accordingly.”
51. Upon considering the evidence on record, there is no
proof that the plaintiffs are ever ready and willing to perform
their part of contract. Mere issuance of legal notice is not
sufficient to hold that the plaintiffs are ever ready and willing to
perform their part of contract. Therefore, in this regard, the
judgments and decrees passed by both the Trial Court and the
First Appellate Court are found to be perverse in nature.
52. Furthermore, as discussed above and in light of the
principles of law laid down by the Hon’ble Supreme Court, both
the Trial Court and the First Appellate Court have failed to
exercise their discretion judiciously while granting a decree for
specific performance. On the contrary, the decree granted in
favour of the plaintiffs is found to be arbitrary. Therefore, the
judgments and decrees passed by both the Trial Court and the
First Appellate Court are liable to be set aside. Further, in the
– 62 –
NC: 2026:KHC-D:1638
RSA No. 100234 of 2017
HC-KAR
absence of any prayer in the plaint seeking alternative relief of
refund of the earnest money, such relief cannot be granted.
53. Accordingly, the substantial questions of law framed
above are answered in the ‘negative’.
Hence, I proceed to pass the following:
ORDER
a) The appeal is allowed.
b) The judgment and decree dated 18.11.2016
passed in R.A.No.592/2009 on the file of I
Additional District Judge, Belagavi, and the
judgment and decree dated 01.04.2002 passed in
O.S.No.351/1989 on the file of Principal Civil
Judge JR.DN, Belagavi, are hereby set aside.
c) The suit of the plaintiffs is dismissed.
d) No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
ASN-para Nos.1 to 7.
MRK-para 8 to 15.
PMP-para 16 to end.
CT-CNB
List No.: 1 Sl No.: 3
