04 October 2019
Supreme Court


Case number: C.A. No.-002837-002837 / 2011
Diary number: 13945 / 2009




CIVIL APPEAL NO(s). 2837 OF 2011






The plaintiff  assails  correctness  of the  order  allowing the

second appeal of  the defendants.   By the impugned order, the

High Court set aside the concurrent orders of the courts below

decreeing the plaintiff’s suit for specific performance.   

2. The plaintiff filed a suit for specific performance of

agreement for sale dated 10.11.1989 with regard to 2/3rd of the

lands owned by defendants 1 and 2 as Defendant No. 3 declined

to sign the agreement. Rs. 50,000/­ was paid as earnest money



and the balance consideration of Rs.3,10,490/­ was to be paid at

the time of execution. The agreement provided for execution of

the sale deed on or before 30.04.1990.   The Trial Court decreed

the suit holding that the plaintiff had remained present in the

office of the Sub­Registrar for registration of the sale documents

on 30.04.1990, but defendant nos. 1 and 2 did not appear for

execution.   During the pendency of the proceedings, defendant

nos. 1 and 2 sold the lands to defendant nos. 4 to 7 by three

separate sale deeds dated 16.01.1991.   The first appeal by the

defendants  was  dismissed  holding that  defendant  nos.  4 to  7

were not bonafide purchasers.  Thus, the present appeal.

3. Shri Amit Anand Tiwari, learned counsel for the appellant­

plaintiff, submitted that the High Court in a second appeal ought

not to have interfered with a concurrent finding of fact that the

plaintiff was ready and willing to perform his part of the

obligations under the agreement.   Defendant nos. 1 and 2 had

failed to appear before the Sub­Registrar for execution on

30.04.1990.   The plaintiff  never received the purported notices

from defendant nos.1 and 2 dated 28.05.1990 and 12.06.1990



requiring the plaintiff to execute the sale deed on 25.06.1990.

The subsequent sale to defendants 4 to 7 has been held to be not

bonafide, but a sham transaction.  The plaintiff had been granted

extension of time for deposit of the balance consideration by the

Trial Court till the disposal of the first appeal. The balance

consideration was deposited after decision in the First Appeal.  In

the alternative, a submission was made that if the appeal is not

to be allowed, defendants 1 and 2 may be directed to pay the sum

of Rs.1,00,000/­ to the plaintiff  comprising the earnest money

plus damages as claimed in the suit.

4. Shri  Ranjit  Thomas,  learned senior counsel  appearing  for

the defendants­respondents, submitted that the plaintiff had

failed to prove readiness and willingness to perform its

obligations under the agreement. The defendants were not put on

notice  for  appearance before the Sub­Registrar on 30.04.1990.

The notices dated 28.05.1990 and 12.06.1990 were sent by

defendants 1 and 2 through registered post at the correct

residential address of the plaintiff.  The plaintiff did not respond

to the same because he did not have the capacity to perform his



obligations under the agreement and failed to deposit the balance

consideration within the two months’ time granted by the Trial

Court on 01.06.1994.  The application for extension of time made

after expiry of the time prescribed is sufficient evidence for the

incapacity of the plaintiff to perform his obligations

demonstrating readiness  and  willingness.   The  High  Court in

second appeal was empowered to set aside concurrent findings of

facts if they were perverse.


5. We have considered the submissions on behalf of the parties

and have also been taken through the orders under appeal.

Defendants nos. 1 to 3 owned 61 karnals 17 marlas of lands in

Village Gumjal, Tehsil Abohar, District Ferozpur.  Defendant no.3

having refused to sign the agreement for sale dated 10.11.1989,

the plaintiff instituted a suit  for enforcement of the agreement

with regard to the 2/3rd  share of defendants 1 and 2.   The sale

deed  was to  be  executed  on  or  before  30.04.1990.  The  Trial

Court and the  First  Appellate  Court arrived  at the finding of

readiness and willingness on part of the plaintiff solely on basis

of a certificate produced by them from the Sub­Registrar



confirming their presence before him on 30.04.1990 for

execution. Apart from the same, no further evidence was led by

the plaintiff to demonstrate readiness and willingness including

the continuous capacity for discharge of the balance

consideration. The plaintiff in its application before the Sub­

Registrar stated that he had required defendants 1 and 2 to be

present for registration on 25.06.1990.   No evidence whatsoever

has been led by the plaintiff in support of the same.   We are of

the considered opinion that in the circumstances the certificate

from the office of the Sub­Registrar cannot be construed as

conclusive evidence to non­suit defendants 1 and 2.  The findings

to that effect are therefore held to be unsustainable.

6. Defendant nos. 1 and 2 by registered notices dated

28.05.1990 and 12.06.1990 required the plaintiff to get the sale

deed executed by 25.06.1990.  The plaintiff does not dispute that

the communication  was  properly addressed  and sent through

registered acknowledgement due. If it was returned back with the

endorsement that the  plaintiff  was  not  available  at  his  home,

defendants 1 and 2 were not required to do anything further.  If



the plaintiff was of the opinion that the endorsement was wrong,

it was for him to have contended so and led necessary evidence

in this regard.   The Trial Court rightly did not disbelieve

defendants 1 and 2, but without returning any finding in that

regard preferred to rely on the unsubstantiated claim of the

plaintiff of having been present before the Sub­Registrar on

30.04.1990.  The said finding is also held to be unsustainable.

7.  Under Section 16 of the Specific Relief Act, 1963 (for short

“the Act”), there are certain grounds which bar the relief of

specific  performance of  the contract.  This section, insofar  it is

relevant, is as under:

“16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person—

(a)­(b) * * * (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.”

8.  The Trial Court decreed the suit on 01.06.1994 and granted

time to the plaintiff for deposit of the balance consideration



within  two months  from 01.06.1994, i.e.  by 31.07.1994.  The

plaintiff offered no explanation whatsoever for the failure to

comply the direction. After expiry of the time granted for deposit,

on 02.08.1994 the plaintiff  filed an application before the Trial

Court that in view of the pendency of the First Appeal preferred

by defendants, the time for deposit may be extended as otherwise

the amount would lie in the bank without interest. On

02.08.1994 itself, the time for deposit was extended till disposal

of the  First  Appeal.  The  defendants’ challenge to the  ex­parte

order was unsuccessful on technical grounds.   

9. There can be no straight jacket formula with regard to

readiness  and willingness. It  will  have to  be  construed  in  the

facts and circumstances of each case in the light of all attending

facts and circumstances.  We are of the considered opinion, that

in the facts and circumstances of the present case, the failure of

the plaintiff to offer any explanation why the balance

consideration  was  not deposited  within the time granted, the

filing of the application for extension of time after expiry of the

prescribed period coupled with the frivolousness of the grounds



taken in the application for extension that the money would lie in

the bank without earning interest, are all but evidence of

incapacity on part of the plaintiff to perform his obligations under

the agreement and reflective of lack of readiness and willingness.

He preferred to wait  and abide by  the  gamble of  a favourable

decision in the first appeal.  

10. The grant of relief for specific performance under Section 16

(1)(c)  of the Act  is a discretionary and equitable relief.  Under

Section 16 (1)(c), the plaintiff has to demonstrate readiness and

willingness throughout to perform his obligations under the

contract.  The plea that the amount would lie in the bank without

interest is unfounded and contrary to normal banking practice.

To our mind, this is sufficient evidence of the incapacity or lack

of readiness and willingness on part of the plaintiff to perform his

obligations. Undoubtedly, the time for deposit could be extended

under Section 28 of the Act. But the mere extension of time for

deposit does not absolve the plaintiff of his obligation to

demonstrate readiness and willingness coupled with special

circumstances beyond his control to seek such extension.  The



plaintiff  did not aver in the application that he was ready and

willing to perform his obligations and was prevented from any

special circumstances from doing so. The pendency of an appeal

by the defendant did not preclude the plaintiff  from depositing

the amount in proof of his readiness and willingness. Readiness

has been interpreted as capacity for discharge of obligations with

regard to  payment.  The  High  Court  has rightly observed that

there was no stay by the Appellate  Court of the decree under

appeal to justify non­deposit during the pendency of the appeal.

The grant of extension of time cannot ipso facto be construed as

otherwise demonstrating readiness and willingness on part of the

plaintiff.   The plaintiff was required to plead sufficient,

substantial and  cogent grounds to seek  extension  of time for

deposit because otherwise it becomes a question of his conduct

along with all other attendant surrounding circumstances in the

facts of the case.   We therefore find no infirmity in the order of

the  High  Court concluding that the  plaintiff in the facts and

circumstances was not ready and willing to perform his




11. In  V.S.  Palanichamy Chettiar  Firm vs.  C.  Alagappan,

(1999) 4 SCC 702, it was observed as follows :

“17. The agreement of sale was entered into as  far  back on 16­2­1980,  about 19 years ago. No explanation is forthcoming as to why the balance amount of  consideration could not be deposited within the time granted by the Court……Merely because a suit  is  filed within the prescribed period of limitation does not absolve the vendee­plaintiff from showing as to  whether  he  was ready  and willing to perform his part of the agreement and if there was non­performance, was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play. The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale….. It is not the case of the respondent decree­holders that on account of any fault on the part of the vendor judgment­debtor, the  amount could  not  be deposited as per the decree……That apart, no explanation whatsoever is coming  from  the respondent decree­holders as  to why they did not  pay the balance amount of consideration….. Equity demands that discretion be not exercised in favour of the respondent decree­ holders and no extension of time be granted to them to comply with the decree.”

12.  In our opinion, had the plaintiff deposited the amount after

expiry of the time but during the pendency of the appeal, as held



in  Ramankutty Guptan vs. Avara,  (1994) 2 SCC 642, entirely

different considerations may have arisen. The judgement in any

event is based on its own peculiar facts and circumstances.   

13. In   Umabai and Another vs. Nilkanth Dhondiba Chavan

(Dead)  by Lrs.  and Another,  (2005)  6  SCC 243, it  has  been

observed as follows :

“30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff­defendants were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances.   A bare averment in the plaint or a statement made in the examination­in­chief would not suffice. The  conduct  of the  plaintiff­defendants  must be judged having regard to the entirety of the pleadings as also the evidence brought on records.”

14. According to normal human prudence, land price escalates

over time.  Unless  it  be a  situation of  a  distress sale,  no  land

owner will sell his land for a lesser price than what may have

been recorded in an agreement for sale.   The fact that the

defendants nos.1 and 2 subsequently sold the land on

16.01.1991 to defendants nos.4  to  7 at  a  lesser  price,  due to



personal necessity, also mitigates against the plea of the plaintiff

that he was ready and willing to perform his part of the

obligations under the contract.

15. There can be no quarrel with the well settled proposition of

law that in a second appeal, the High Court ought not to enter

into reappreciation of evidence to arrive at new findings, except

on pure questions of law. But if the findings are perverse, based

on complete misappreciation or erroneous consideration of

evidence, and the failure to consider relevant evidence, it

becomes a question of  law.  In  Dilbagrai Punjabi vs. Sharad

Chandra, 1988 Supp SCC 710, it was observed as follows:

“5…..The High Court was right in pointing out that the  courts  below had seriously  erred in not considering the entire evidence on the record including the aforesaid documents. It is true that the High Court while hearing the appeal under Section 100 of the Code of Civil Procedure has no jurisdiction to reappraise the evidence  and reverse the conclusion reached by the  first  appellate  court,  but at the same time its power to interfere with the finding cannot be denied if  when the lower appellate court decides an issue of fact a substantial question of law arises.  The court is  under  a duty to examine the entire relevant evidence on record and if  it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a



magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding….”

16. In view of the discussion, we arrive at the conclusion that

the plaintiff failed to prove readiness and willingness to perform

its obligations under the agreement for sale.   We are of the

considered opinion that there is no merit in the present appeal.

However, in the peculiar facts and circumstances of the case, we

are of the considered opinion that the respondent is not entitled

to retain the earnest money and it shall be refunded to the

appellant without interest within a period of one month failing

which it shall carry interest at the rate of 7 per cent.

17. The appeal is dismissed. There shall be no order as to costs.

…………...................J. [NAVIN SINHA]

…………...................J. [INDIRA BANERJEE]

NEW DELHI OCTOBER 04, 2019