Punjab-Haryana High Court
Veena Rani vs Suraj Bansal on 8 April, 2025
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2025:PHHC:048821
RSA No.5027 of 2017 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 5th of April, 2025
Pronounced on 8th of April, 2025
RSA No.5027 of 2017 (O&M)
Veena Rani ....Appellant
Versus
Suraj Bansal ....Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Sanjiv Gupta, Advocate
for the appellant.
Mr. Aakash Singla, Advocate
for the respondent.
PANKAJ JAIN, J. (ORAL)
Defendent-Vendor is in appeal.
2. For convenience, the parties hereinafter are referred to by their
original position before the Court of the First instance i.e. appellant as
defendant and respondent as plaintiff.
3. Plaintiff filed suit seeking decree of possession by way of
specific performance of agreement to sell dated 03.02.2006 qua residential
house constructed on 215 Square Yards as described in the plaint.
4. Plaintiff claimed that defendant agreed to sell the suit property
in his favour for a valuable consideration of Rs.30,51,000/- on 03.02.2006
and received earnest money of Rs.7,50,000/-. Parties agreed to get the sale
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deed executed on the payment of balance sale consideration of
Rs.23,01,000/- on or before 03.05.2006. Plaintiff claimed to have remained
present in the office of Sub Registrar, Sirsa on the target date i.e., 03.05.2006
with the balance sale consideration. Defendant failed to come present.
Thereafter, he made repeated requests to the defendant to execute the sale
deed and finally served legal notice on her through his counsel on
12.08.2008 calling upon her to fix any date within 15 days from the receipt
of the notice and execute the sale deed in his favour. Defendant having
failed to respond to the same, plaintiff is entitled for decree of possession by
way of specific performance.
5. Suit was contested by the defendant. On facts, defendant
admitted execution of agreement to sell in favour of the plaintiff qua the suit
property for total sale consideration of Rs.30,51,000/-. Receipt of
Rs.7,50,000/- as earnest money was also admitted. Defendant however
claimed that she remained present along with her husband on the agreed date
in the office of Sub Registrar, Sirsa, upto 5:00 PM. She got her presence
marked by swearing an affidavit. It was duly executed/attested by Executive
Magistrate, Sirsa. It was further pleaded by the defendant that after she
entered into agreement to sell in favour of the plaintiff, her husband Mohari
Ram entered into an agreement to purchase a residential house for a
consideration of Rs.19,65,000/-. Her husband paid Rs.4,00,000/- to the
vendor. Sale deed was to be executed on or before 15.05.2006 on payment
of balance consideration. It was to be paid out of the sale consideration
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received from the plaintiff on 03.05.2006. Thus time was the essence of the
agreement to sell. Plaintiff having failed to perform his part on 03.05.2006,
defendant and her husband could not purchase the other property. Defendant
further claimed that several requests were made to the plaintiff to get the sale
deed executed and registered. However, he refused to perform his part as
there was dip in the rates of the property. Defendant thus pleaded that it is
the plaintiff who was neither ready nor willing to perform his part and is
thus not entitled for relief of specific performance.
6. Court of the First Instance put suit to trial, framing following
issues:
“1. Whether the plaintiff is entitled to get the possession of the
suit land by way of specific performance of sale agreement
dated 03.02.2006?
2. Whether the suit is not maintainable? OPD
3. Whether the plaintiff has got no cause of action and locus-
standi to file the present suit? OPD
4. Whether the plaintiff is estopped by his own act and
conduct to file the present suit? OPD
5. Relief.”
7. While deciding issue No.1, Trial Court came to the conclusion
that both the parties proved their presence. Their respective affidavits
attested by the Sub Registrar were proved as Exhibit P-2 and Exhibit D-1.
Plaintiff was required to prove his readiness and willingness. It was held
that there being two probable views, the plaintiff is entitled only for alternate
relief i.e. for decree of recovery of earnest money along with interest @ 6%
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per annum from the date of its payment till the date of actual realization and
not for the main relief of specific performance.
8. Dissatisfied, plaintiff approached Lower Appellate Court.
9. Lower Appellate Court after analysing the evidence came to the
conclusion that in the absence of there being any register called from the
office of Sub Registrar, no inference can be drawn on the basis of the
respective affidavits by the appellant and the defendant. The readiness and
willingness of the appellant needs to be considered keeping in view the other
evidence adduced by the parties. Lower Appellate Court held that the
plaintiff proved service of notice, dated 12.08.2008, Exhibit PW4/A. The
present suit was filed on 25.04.2009. 25% of the total sale consideration
was paid by the plaintiff. There is no evidence on behalf of defendant that
she was ready and willing to perform her part of the contract. Her conduct is
not appreciable. Time is not the essence of the contract as defendant failed
to prove that agreement (Exhibit D-2) was in the knowledge and notice of
the appellant. Lower Appellate Court held that it is proved on file that the
appellant is and was ready to perform his part of the contract as he had
already paid 25% of the total sale consideration and had served legal notice
prior to the filing of the suit and held plaintiff entitled for decree of specific
performance.
10. Ld. Counsel for the appellant while assailing the impugned
judgment and decree passed by the Lower Appellate Court submits that the
Lower Appellate Court erred in reversing the burden w.r.t. readiness and
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willingness upon the defendant whereas law contemplates that it is the
plaintiff, who is required to prove readiness and willingness. He submits
that agreement to sell propounded by the plaintiff, is dated 03.02.2006.
Agreed date for sale deed was 03.05.2006. Legal notice was issued on
12.08.2008. Civil Suit was filed on 24.04.2009 just few days prior to expiry
of the limitation period. The conduct of the plaintiff itself shows that he was
neither ready nor willing to get the sale deed executed. Thus, Lower
Appellate Court erred in reversing findings recorded by the Trial Court and
in granting main relief to the plaintiff. He submits that it was proved on
record by the defendant that her husband further entered into an agreement
to purchase the property and thus time was the essence of the contract.
Plaintiff having failed to perform his part on the agreed date, defendant
suffered loss. Trial Court thus rightly exercised discretion to deny plaintiff
the main relief. The same has been reversed by the Lower Appellate Court
without there being any reason. He relies upon law laid down in the case of
M/s Delhi Bhiwani Transport Company Pvt. Ltd. Delhi vs. Ram Niwas
Surekha and others, 1980 PLR 249, Sher Singh vs. Gurdial Singh,
1993(3) R.R.R. 258, K.S. Vidyanadam vs. Vairavan (1997) 3 SCC 1,
Bismillah Begum (Dead) by LRs vs. Rahmatullah Khan (Dead) by LRs,
(1998) 2 SCC 226, A.C. Arulappan vs. Smt. Ahalya Naik, (2001) 6 SCC
600, V. Muthusami (dead) by LRs vs. Angammal (2002) 3 SCC 316,
Subedar (Minor) vs. Usman and others, 2005 (3) R.C.R. (Civil) 120,
Saradamani Kandappan vs. S. Rajalakshmi and others (2011) 12 SCC
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18, Jeet Singh vs. Gursewak Singh and others, 2015(3) R.C.R.(Civil) 82,
Alagammal and others vs. Ganesan and another, (2024) 3 SCC 232, P.
Ravindranath and another vs. Sasikala and others, 2024(3) R.C.R.
(Civil) 542 and Tara Chand (Deceased) through LRs. vs. Krishan Gopal
and others – RSA No.919 of 2023 decided on 08.01.2025
11. Per contra, counsel for the respondent/plaintiff has supported
the findings recorded by the Lower Appellate Court, contending that mere
delay alone in filing the suit for specific performance, cannot be a ground for
refusing the main relief when the civil suit has been filed within the statutory
period of limitation. He further relies upon ratio of law laid down by the
Supreme Court in the case of ‘Narinderjit Singh vs. North State Estate
Promoters Limited‘, (2012) 5 SCC 712 to submit that escalation, if any, in
the price of land could not be a ground for denying the relief of specific
performance. It has been submitted that after grant of decree by the
Appellate Court, the plaintiff has already deposited the entire money with
the Executing Court thus denial of specific performance at this stage will not
be equitable. It has been further contended by Mr. Aakash Singla, Advocate
that letter sent to the very address of the vendor, on which the vendor
received legal notice, shows that the notice was served upon the vendor. He
further submits that the plaintiff having proved affidavit qua his presence
before the Sub Registrar, the same shall suffice to prove his readiness and
willingness to perform his part. The affidavit should be taken as explicit
proof of the fact that the plaintiff/vendee was ready and willing to perform
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his part and had necessary funds. He is not required to wave off cash to
demonstrate his readiness. He relies upon law laid down in the case of
Mademsetty Satyanarayana vs. G. Yelloji Rao and others, 1965 AIR
(Supreme Court) 1405, Sukhbir Singh and others vs. Brij Pal Singh and
others – Spl. Leave Petition (C) No.11140 of 1996 decided on 10.05.1996,
Narinderjit Singh vs. North Star Estate Promoters Limited, (2012) 5
SCC 712, R. Lakshamikantham vs. Devaraji, (2019) 8 SCC 62,
P. Daivasigamani vs. S. Sambandan, 2022 AIR Supreme Court 5009 and
Pushap Lata vs. Varun Singla, 2025 AIR Punjab and Haryana 17.
12. I have heard counsel for the parties and have gone through
records of the case.
13. Before adverting to the merits of the case, it needs to be noticed
that the regular second appeal before this Court is to be treated as an appeal
under Section 41 of the Punjab Courts Act, 1918 and not under Section 100
of the Code of Civil Procedure, 1908, as held by Five Judges Bench of
Supreme Court in the case of ‘Pankajakshi vs. Chandrika‘ (2016) 6 SCC
157.
14. Thus, the Court is required to examine ‘whether question of law
arises in the appeal or not?’
15. In the present case, the primary issue that falls for consideration
before this Court is:
“a) Whether Lower Appellate Court erred in reversing
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burden to prove readiness and willingness upon the defendant?
b) Whether the Appellate Court rightly exercised the
discretion in reversing the findings recorded by the Trial Court
and was right in granting main relief of specific performance to
the plaintiff?”
16. The execution of the agreement to sell is not in dispute. There
is no dispute w.r.t. consideration or regarding agreed date or that of the
amount of earnest money paid by the plaintiff. The issue relates to readiness
and willingness of the plaintiff.
17. Section 16 of the Specific Relief Act, 1963 reads as under:
16. Personal bars to relief.–Specific performance of a
contract cannot be enforced in favour of a person–
2[(a) who has obtained substituted performance of contract
under section 20; 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) 3[who fails to prove] that he has performed or has
always been ready and willing to perform the essential terms of the
contract which are to be performed by him, other than terms the
performance of which has been prevented or waived by the
defendant.
Explanation.–For the purposes of clause (c),–
(i) where a contract involves the payment of money, it is not
essential for the plaintiff to actually tender to the defendant or to
deposit in court any money except when so directed by the court;
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(ii) the plaintiff 4[must prove] performance of, or readiness
and willingness to perform, the contract according to its true
construction.
The same was considered by the Supreme Court in the case of
‘J.P. Builders vs. A. Ramadas Rao‘ (2011) 1 SCC 429, observed as under:
“xxxxx xxxxx xxxxx
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.
22. The words “ready” and “willing” imply that the person was
prepared to carry out the terms of the contract. The distinction
between “readiness” and “willingness” is that the former refers to
financial capacity and the latter to the conduct of the plaintiff
wanting performance.
Generally, readiness is backed by willingness.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995)
5 SCC 115) 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
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considered by the court while granting or refusing to grant
the relief. If the plaintiff fails to either aver or prove the
same, he must fail. To adjudge whether the plaintiff is ready
and willing to perform his part of the contract, the court
must take into consideration the conduct of the plaintiff
prior and subsequent to the filing of the suit along with
other attending circumstances. The amount of consideration
which he has to pay to the defendant must of necessity be
proved to be available. Right from the date of the execution
till date of the decree he must prove that he is ready and has
always been willing to perform his part of the contract. As
stated, the factum of his readiness and willingness to
perform 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 v. Shondrilo Naidu [(2004) 6 SCC 649] 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
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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 [(1970) 3 SCC 140) 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 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.
xxxxx xxxxx xxxxx"
(emphasis supplied)
18. Applying the aforesaid parameters to the present case, the
Lower Appellate Court held that the affidavits propounded by both the
parties do not exhibit their willingness, yet decreed the suit filed by the
plaintiff. If affidavit propounded by the plaintiff is ignored, his presence on
the appointed date before the Sub Registrar, is not proved. The only
evidence which is left, is in form of a legal notice sent after two years of the
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appointed date. The civil suit was filed almost a year thereafter. Thus,
willingness of the plaintiff is also under cloud. Mr. Singla is right in
contending that the plaintiff was not required to flash cash to prove his
readiness, but once defendant asserted that the plaintiff was neither ready
nor willing to perform his part, the plaintiff was atleast required to prove on
record that he had capacity to pay the balance sale consideration of more
than Twenty Three Lacs of rupees on 03.05.2006. Plaintiff failed to bring on
record any cogent evidence. This Court finds that the Lower Appellate
Court erred in law in holding that the plaintiff remained ready and willing to
perform his part by observing that defendant failed to prove her readiness
and willingness. Onus was on the plaintiff.
19. The other issue raised is time being essence of the agreement to
sell and delay in filing suit.
20. Supreme Court in the case of ‘Mademsetty Satyanarayana v.
G. Yelloji Rao’, 1964 SCC OnLine SC 33 observed as under:
“7. The following are cases in which the court may properly
exercise a discretion not to decree specific performance:
I. Where the circumstances under which the contract is
made are such as to give the plaintiff an unfair advantage
over the defendant, though there may be no fraud or
misrepresentation on the plaintiff’s part.
Illustrations
***
II. Where the performance of the contract would involve
some hardship on the defendant which he did not foresee,12 of 27
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whereas its non-performance would involve no such
hardship on the plaintiff.
Illustrations
***
The following is a case in which the court may properly
exercise a discretion to decree specific performance:
III. Where the plaintiff has done substantial acts or suffered
losses in consequence of a contract capable of specific
performance.
***
The First Schedule to the Limitation Act
Description of suit Period of Limitation Time from which period begins to
run
Article 113. For specific Three years The date fixed for the
performance of a contract performance, or, if no such date is
fixed, when the plaintiff has notice
that performance is refused.
Under Section 22 of the Specific Relief Act, relief of specific
performance is discretionary but not arbitrary : discretion must be
exercised in accordance with sound and reasonable judicial
principles. The cases providing for a guide to courts to exercise
discretion one way or other are only illustrative; they are not
intended to be exhaustive. As Article 113 of the Limitation Act
prescribes a period of 3 years from the date fixed thereunder for
specific performance of a contract, it follows that mere delay
without more extending up to the said period cannot possibly be a
reason for a court to exercise its discretion against giving a relief of
specific performance. Nor can the scope of the discretion, after
excluding the cases mentioned in Section 22 of the Specific Relief
Act, be confined to waiver, abandonment or estoppel. If one of
these three circumstances is established, no question of discretion
arises, for either there will be no subsisting right or there will be a
bar against its assertion. So, there must be some discretionary field
unoccupied by the three cases, otherwise the substantive section
becomes otiose. It is really difficult to define that field. Diverse
situations may arise which may induce a court not to exercise the13 of 27
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discretion in favour of the plaintiff. It may better be left undefined
except to state what the section says, namely, discretion of the
court is not arbitrary, but sound and reasonable guided by judicial
principles and capable of correction by a court of appeal.
8. Mr Lakshmaiah cited a long catena of English decisions to
define the scope of a court’s discretion. Before referring to them, it
is necessary to know the fundamental difference between the two
systems — English and Indian — qua the relief of specific
performance. In England the relief of specific performance pertains
to the domain of equity; in India, to that of statutory law. In
England there is no period of limitation for instituting a suit for the
said relief and, therefore, mere delay — the time lag depending
upon circumstances — may itself be sufficient to refuse the relief;
but, in India mere delay cannot be a ground for refusing the said
relief, for the statute prescribes the period of limitation. If the suit
is in time, delay is sanctioned by law; if it is beyond time, the suit
will be dismissed as barred by time; in either case, no question of
equity arises.
9. With this background let us look at the English text-books and
decisions relied upon by the learned counsel for the appellant. In
Halsbury’s Laws of England, Vol. 36, at p. 324, it is stated:
“Where time is not originally of the essence of the contract,
and has not been made so by due notice, delay by a party in
performing his part of the contract, or in commencing or
prosecuting the enforcement of his rights, may constitute
such laches or acquiescence as will debar him from
obtaining specific performance. The extent of delay which
has this effect varies with circumstances, but as a rule must
be capable of being construed as amounting to an
abandonment of the contract. A much shorter period of
delay, however, suffices if it is delay in declaring an option
or exercising any other unilateral right; and if the other
party has already given notice that he does not intend to
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proceedings promptly if he desires to obtain specific
performance.”
In Fry on Specific Performance, 6th Edn., at p. 517, it is said:
“Where one party to the contract has given notice to the
other that he will not perform it, acquiescence in this by the
other party, by a comparatively brief delay in enforcing his
right, will be a bar : so that in one case two years’ delay in
filing a bill after such notice, in another case one year’s
delay, and in a third (where the contract was for a lease of
collieries) five months’ delay was held to exclude the
intervention of the Court.”
Learned counsel cited many English decisions in support of his
argument that there shall be promptitude and diligence in enforcing
a claim for specific performance after a repudiation of the contract
by the other party and that mere continual claim without any active
steps will not keep alive the right which would otherwise be
defeated by laches : see Clegg v. Edmondson [(1857) 114 RR
336] , Eads v. Williams [(1854) 43 ER Chan 671] , Lehmann v.
McArthur [(1968) LR 3 Ch AC 496] , Watsoh v. Reid [(1830) 39
ER Chan 91] , and Emile Erlanger v. New Sombrero Phosphate
Company [(1878) LR 3 AC 1218] . But as stated earlier, the
English principles based upon mere delay can have no application
in India where the statute prescribes the tune for enforcing the
claim for specific performance. But another class of cases which
dealt with the doctrine of laches have some bearing in the Indian
context. In Lindsay Petroleum Company v. Prosper Armstrong
Hurd, Abram Farewell, and John Kemp[(1874) LR 5 PCA 221,
239-240] Sir Barnes Peacock defined the doctrine thus:
“Where it would be practically unjust to give a remedy,
either because the party has, by his conduct, done that
which might fairly be regarded as equivalent to a waiver of
it, or where by his conduct and neglect he has, though
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a situation in which it would not be reasonable to place him
if the remedy were afterwards to be asserted, in either of
these cases, lapse of time and delay are most material.”
This passage indicates that either waiver or conduct equivalent to
waiver along with delay may be a ground for refusing to give a
decree for specific performance. In Caesar Lamare v. Thomas
Dixon [(1873) 6 HLC 414, 423] Lord Chelmsford said:
“The conduct of the party applying for relief is always an
important element for consideration.”
The House of Lords in Emile Erlanger v. New Sombrero
Phosphate Company [(1878) LR 3 AC 1218] approved the passage
in Lindsay Petroleum Company v. Prosper Armstrong Hurd,
Abram Farewell, and John Kemp [(1874) LR 5 PCA 221, 239-240]
which we have extracted earlier.
10. It is clear from these decisions that the conduct of a party
which puts the other party in a disadvantageous position, though it
does not amount to waiver, may in certain circumstances preclude
him from obtaining a decree for specific performance.
11. Now we shall consider some of the Indian decisions cited at
the Bar. A Division Bench of the Allahabad High Court held in
Nawab Begum v. A.H. Creet [(1905) ILR 27 All 678] that great
delay on the part of the plaintiff in applying to the court for
specific performance of a contract of which he claimed the benefit
was of itself a sufficient reason for the Court in the exercise of its
discretion to refuse relief. But it will be seen from the facts of that
case that apart from the delay the conduct of the plaintiff was such
that it induced the other party to change his position to his
detriment. A Division Bench of the Patna High Court in
Rameshwar Prasad Sahi v. Mt. Anandi Devi [(1960) ILR 39 Pat
79] held on the facts of that case that the delay in bringing the suit
for specific performance was always fatal to a suit, and that it
amounted to an abandonment of the contract and waiver of his
rights to sue for specific performance. If the learned Judges meant
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to lay down that mere delay would amount to abandonment of a
right, we find it difficult to agree with them. The decision of the
Calcutta High Court in Gosthe Behari v. Omiyo Prosad [AIR 1960
Cal 361] recognized that mere delay was not sufficient to deny the
relief of specific performance, but pointed out that though it was
not necessary to establish that the plaintiff had abandoned his right,
the Court may, in view of the conduct of the plaintiff coupled with
his delay that had prejudiced the defendant, refuse to give the
equitable relief. In Chamarti Suryaprakasarayudu v. Arardhi
Lakshminarasimha [(1914) 26 MLJ 518, 521, 523] , a Division
Bench of the Madras High Court rightly pointed out that delay by
itself was not a ground for refusing to give a decree in a suit for
specific performance. Sadasiva Aiyar, J., observed:
“I think that it is an error of law to hold that mere delay
amounts to a waiver or abandonment apart from other facts
or circumstances or conduct of the plaintiff indicating that
the delay was due to a waiver or abandonment of the
contract on the plaintiffs part.”
Seshagiri Aiyar, J., said much to the same effect, thus:
“There is nothing in the Specific Relief Act which says that
laches in bringing a suit will by itself be a ground for
refusing specific performance…. Having regard to the fact
that a special period of limitation has been fixed for
bringing a suit for specific performance, I think the
legislature has not intended that mere laches should be one
of the grounds for refusing specific performance.”
We do not think, though the observations of Sadasiva Aiyar, J., are
rather wide, that the learned Judges intended to lay down that
unless there is a waiver or abandonment by the plaintiff of his
rights to sue for specific performance, he should be non-suited, for
if that was the law, as we have pointed out earlier, the substantive
part of Section 22 of the Specific Relief Act would become
nugatory. A Division Bench of the Calcutta High Court in Jadu
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Nath Gupta v. Chandra Bhusan [AIR 1932 Cal 493] again
emphasized the fact that the English doctrine of delay and laches
showing negligence in seeking relief in a court of equity cannot be
imported into the Indian law in view of Article 113 of the
Limitation Act. But it pointed out that where the conduct of the
plaintiff was such that it did not amount to abandonment but
showed waiver or acquiescence especially when inaction on his
part induced the defendant to change his position, the plaintiff
ought not to be allowed any relief. This case brings out not only
the distinction between English and Indian law but also that waiver
or abandonment of a right is not a pre-condition for refusing relief
of specific performance.
12. The result of the aforesaid discussion of the case law may
be briefly stated thus : While in England mere delay or laches may
be a ground for refusing to give a relief of specific performance, in
India mere delay without such conduct on the part of the plaintiff
as would cause prejudice to the defendant does not empower a
court to refuse such a relief. But as in England so in India, proof of
abandonment or waiver of a right is not a pre-condition necessary
to disentitle the plaintiff to the said relief, for if abandonment or
waiver is established, no question of discretion on the part of the
Court would arise. We have used the expression “waiver” in its
legally accepted sense, namely, “waiver is contractual, and may
constitute a cause of action : it is an agreement to release or not to
assert a right”; see Dawson’s Bank Ltd. v. Nippon Menkwa
Kabushiki Kaisha [(1935) LR 62 IA 100, 108] . It is not possible or
desirable to lay down the circumstances under which a court can
exercise its discretion against the plaintiff. But they must be such
that the representation by or the conduct or neglect of the plaintiff
is directly responsible in inducing the defendant to change his
position to his prejudice or such as to bring about a situation when
it would be inequitable to give him such a relief.”
(emphasis supplied)
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21. Apex Court in the case of ‘Saradamani Kandappan v. S.
Rajalakshmi‘, (2011) 12 SCC 18 observed as under:
“40. The principle underlying the said decisions with reference
to statutes, would on the same logic, apply to decisions of courts
also.
41. A correct perspective relating to the question whether time
is not of the essence of the contract in contracts relating to
immovable property, is given by this Court in K.S. Vidyanadam v.
Vairavan [(1997) 3 SCC 1] (by Jeevan Reddy, J. who incidentally
was a member of the Constitution Bench in Chand Rani [(1993) 1
SCC 519] ). This Court observed: (SCC pp. 7 & 9, paras 10-11)“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. … 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.
…
11. … We cannot be oblivious to the reality–and the reality
is constant and continuous rise in the values of urban
properties–fuelled by large-scale migration of people from
rural areas to urban centres and by inflation. … 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.”
(emphasis supplied)
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42. Therefore there is an urgent need to revisit the principle that
time is not of the essence in contracts relating to immovable
properties and also explain the current position of law with regard
to contracts relating to immovable property made after 1975, in
view of the changed circumstances arising from inflation and steep
increase in prices. We do not propose to undertake that exercise in
this case, nor referring the matter to a larger Bench as we have held
on facts in this case that time is the essence of the contract, even
with reference to the principles in Chand Rani [(1993) 1 SCC 519]
and other cases. Be that as it may.
43. Till the issue is considered in an appropriate case, we can
only reiterate what has been suggested in K.S. Vidyanadam [(1997)
3 SCC 1] :
(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 that 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 the 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.” ”
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22. In the case of ‘Motilal Jain v. Ramdasi Devi‘, (2021) 6 SCC
420, Supreme Court held as under:
“6. The first ground which the High Court took note of is the delay
in filing the suit. It may be apt to bear in mind the following
aspects of delay which are relevant in a case of specific
performance of contract for sale of immovable property:
(i) delay running beyond the period prescribed under the
Limitation Act;
(ii) delay in cases where though the suit is within the period
of limitation, yet:
(a) due to delay the third parties have acquired
rights in the subject-matter of the suit;
(b) in the facts and circumstances of the case, delay
may give rise to plea of waiver or otherwise it will
be inequitable to grant a discretionary relief.
Here none of the above-mentioned aspects applies. That apart
factually also, the High Court proceeded on an incorrect
assumption with regard to cause of action. Ext. 2 was executed on
20-2-1977 and under it the sale deed was to be executed on or
before 19-7-1977. The last notice was issued on 26-11-1978 and
from that date the suit was filed only after nine months and not
after more than a year as noted by the High Court. Therefore on the
facts of this case the ground of delay cannot be invoked to deny
relief to the plaintiff.
9. That decision was relied upon by a three-Judge Bench of this
Court in Syed Dastagir case [(1999) 6 SCC 337] wherein it was
held that 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. It is pointed out that in India most of the pleas are drafted by
counsel and hence they inevitably differ from one to the other;
thus, to gather the true spirit behind a plea it should be read as a
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whole and to test whether the plaintiff has performed his
obligations, one has to see the pith and substance of the plea. It
was observed: (SCC Headnote)
“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) of the Specific Relief Act, 1963
does not require any specific phraseology but only that the
plaintiff must aver that he has performed or has always
been and is willing to perform his part of the contract. So
the compliance of ‘readiness and willingness’ has to be in
spirit and substance and not in letter and form.”
It is thus clear that an averment of readiness and willingness in the
plaint is not a mathematical formula which should only be in
specific words. If the averments in the plaint as a whole do clearly
indicate the readiness and willingness of the plaintiff to fulfil his
part of the obligations under the contract which is the subject-
matter of the suit, the fact that they are differently worded will not
militate against the readiness and willingness of the plaintiff in a
suit for specific performance of contract for sale.”
23. Further, in the case of ‘P. Daivasigamani v. S. Sambandan‘,
(2022) 14 SCC 793, Supreme Court held as under:
“15. It cannot be gainsaid that even though time is not
considered as the essence of the contract in case of immovable
property and that the suit could be filed within three years as
provided in Article 54 of the Limitation Act, the respondent-
plaintiff had to perform his part of the contract within the
reasonable time having regard to the term of the agreement
prescribing the time-limit. The time-limit prescribed in the
agreement cannot be ignored on the ground that time was not
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filed within three years from the date fixed for performance or
from the date when the performance is refused by the vendor.
Nonetheless, as discussed above, the suit having been filed by
the respondent well within the prescribed time-limit under
Article 54 of the Limitation Act, the respondent could not have
been non-suited on the ground of the suit being barred by
limitation as sought to be submitted by the learned counsel for
the appellant.
16. As regards the delay in filing the suit, it is very pertinent to
note that the rule of equity that exists in England, does not apply in
India, and so long as a suit for specific performance is filed within
the period of limitation, delay cannot be a ground to refuse the
relief of specific performance to the plaintiff. In Mademsetty
Satyanarayana v. G. Yelloji Rao [Mademsetty Satyanarayana v. G.
Yelloji Rao, 1964 SCC OnLine SC 33 : AIR 1965 SC 1405] it has
been observed as under : (AIR p. 1409, para 7)
“7. Mr Lakshmaiah cited a long catena of English decisions
to define the scope of a court’s discretion. Before referring
to them, it is necessary to know the fundamental difference
between the two systems–English and Indian–qua the
relief of specific performance. In England the relief of
specific performance pertains to the domain of equity; in
India, to that of statutory law. In England there is no period
of limitation for instituting a suit for the said relief and,
therefore, mere delay — the time lag depending upon
circumstances — may itself be sufficient to refuse the
relief; but, in India mere delay cannot be a ground for
refusing the said relief, for the statute prescribes the period
of limitation. If the suit is in time, delay is sanctioned by
law; if it is beyond time, the suit will be dismissed as barred
by time; in either case, no question of equity arises.”
17. The aforesaid ratio has also been followed recently by this
Court in R. Lakshmikantham v. Devaraji [R. Lakshmikantham v.
Devaraji, (2019) 8 SCC 62] . We, therefore, have no hesitation
in holding that mere delay alone in filing the suit for specific
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performance, without reference to the conduct of the plaintiff,
could not be a ground for refusing the said relief, when the suit
was filed within the statutory time-limit by the respondent-
plaintiff.
31. There is a distinction between limitation and delay and
laches. Limitation is a ground for dismissing a suit even if the
plaintiff is otherwise entitled to specific performance, while delay
operates to determine the discretion and exercise under Section 20
of the Specific Relief Act, even if the suit is not dismissed on
account of limitation. However, not one but several aspects have to
be considered when the court, in terms of Section 20 of the
Specific Relief Act, exercises discretion, guided by judicial
principles, sound and reasonable.
33. Though much reliance was placed by the learned counsel
for the appellant on the decisions of this Court in Ritu Saxena v.
J.S. Grover [Ritu Saxena v. J.S. Grover, (2019) 9 SCC 132 : (2019)
4 SCC (Civ) 302], in Abdullakoya Haji v. Rubis Tharayil
[Abdullakoya Haji v. Rubis Tharayil, (2019) 17 SCC 216 : (2020)
3 SCC (Civ) 399], and other cases, to submit that the respondent
had failed to establish his financial capacity to pay the balance
amount of consideration at the relevant time and had also failed to
deposit the said amount in the court at the time of filing of the suit,
he was not entitled to the discretionary relief of specific
performance as granted by the Court, we do not find any substance
in any of the said submissions. As per the ratio of judgment laid
down by the three-Judge Bench in Syed Dastagir [Syed Dastagir v.
T.R. Gopalakrishna Setty, (1999) 6 SCC 337] , the compliance of
“readiness and willingness” has to be in spirit and substance and
not in letter and form, while making averments in the plaint. As per
Explanation (i) to Section 16(c), he need not tender to the
defendant or deposit the amount in the court, but he must aver
performance of, or readiness and willingness to perform the
contract according to its true construction.
34. Having regard to the facts and circumstances of the case
and to the conduct of the parties, we have no hesitation in holding
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that there was due compliance of Section 16(c) read with its
Explanation on the part of the respondent and that it was the
appellant who had failed to perform as per the terms of the
agreement, though called upon by the respondent to perform. The
High Court also had rightly held that the plaintiff had complied
with the requirements of Section 16(c) of the said Act by making a
specific pleading with regard to his readiness and willingness and
also proving the same by reliable evidence. This Court does not
find any illegality or infirmity in the impugned judgment [S.
Sambandam v. P. Daivasigamani, 2010 SCC OnLine Mad 3459]
passed by the High Court. We, therefore confirm the same, so far
as granting of decree for specific performance of the agreement in
question is concerned.”
24. Thus, the plaintiff though need not wait for last day of
prescribed limitation to file suit, but delay in filing suit alone is not enough
to non-suit the plaintiff provided he exhibits continuous readiness and
willingness and has parted with major part of consideration.
25. In view of above proposition of law, this Court finds that post
agreed date i.e. 03.05.2006, there is no evidence adduced by the plaintiff to
prove his willingness till legal notice dated 12.08.2008. The contents of the
legal notice also exhibit that plaintiff was in no hurry to get the agreement
performed. Reference can be made to the relevant extract of the legal notice
which reads as under:
“xxx xxx xxx”
Therefore, I on behalf of my client, through this legal notice
inform and approach you to get the sale deed executed and
registered in favour of my aforesaid client after receiving the sale
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price/balance amount from my client as per the terms and
conditions of the said agreement and after receiving this notice you
may fix any date within 15 days and intimation of the same be
given to me or to my client in writing at least 15 days prior to the
date so fixed for registration of the sale deed, otherwise failing
which my client shall be constrained to launch legal proceedings
against you in the court of law for specific performance of the
contract of sale and if such a situation arises you will be held liable
and responsible for all the expenses and consequences of such
litigation.
xxx xxx xxx”
26. The present suit was thereafter instituted on 24.04.2009 i.e.
eight months after service of legal notice.
27. In view of law laid down by Supreme Court in the case of ‘K.S.
Vidyanadam vs. Vairavan‘, (1997) 3 SCC 1, in such circumstances, the
Court is required to test the claim of the plaintiff on the touchstone of the
fact ‘whether major amount stands paid or not?’
28. In the present case, only 25% of the total sale consideration was
paid as earnest money on the date of agreement to sell which cannot be held
to be major part of the consideration. Admittedly, possession was never
delivered to the plaintiff in part performance. In view thereof, this Court
finds that the Lower Appellate Court erred in granting discretionary relief to
the plaintiff decreeing his suit for possession by way of specific
performance. Hence, the judgment and decree passed by the Lower
Appellate Court cannot be sustained. The same is thus hereby set aside.
29. Judgment and decree passed by the Trial Court is restored.
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30. Appeal stands allowed in aforesaid terms.
31. Pending application(s), if any, shall also stand disposed off.
April 08, 2025 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes
Whether reportable : Yes
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