Gujarat High Court
Mavjibhai Kalyanjibhai Patel vs Navinchandra Muljibhai Shah on 10 June, 2025
NEUTRAL CITATION
C/SA/425/2024 ORDER DATED: 10/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 425 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In
R/SECOND APPEAL NO. 425 of 2024
================================================================
MAVJIBHAI KALYANJIBHAI PATEL
Versus
NAVINCHANDRA MULJIBHAI SHAH
================================================================
Appearance:
MR NITIN M AMIN(126) for the Appellant(s) No. 1
MR SANJAY M AMIN(130) for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 10/06/2025
ORAL ORDER
1. The present Second Appeal has been filed challenging the
judgment and decree passed by Principal District Judge,
Jamanagar in Regular Civil Appeal No.69 of 2008, dated
29.08.2024, whereby the first appellate Court has allowed the
said appeal and set aside the judgment and decree, dated
29.02.2008, passed in Special Civil Suit No.26 of 1999, by 4 th
Additional Senior Civil Judge, Jamnagar.
2. The parties are referred to as their original status in the suit
i.e. the present appellant is original defendant and respondent
herein is the original plaintiff.
3. The brief facts arising in the present Second Appeal are
that the plaintiff filed suit for specific performance. It is the case
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of the plaintiff before the trial Court that the defendant has
executed a registered agreement to sale bearing registration
No.3112 dated 02.04.1996. At the time of execution of agreement
to sale, the plaintiff had paid an amount of Rs.45,000/-, and
thereafter, had paid an amount of Rs.1,55,000/-. Thus, in all, the
plaintiff had paid an amount of Rs.2,00,000/- to the defendant. It
is the case of the plaintiff that the total sale consideration that
was paid to the defendant was an amount of Rs.5,00,000/- and
out of the said amount, Rs.2,00,000/- has already been paid by
the plaintiff to the defendant and as the defendant did not
execute the sale deed, plaintiff filed suit for specific performance.
The defendant appeared in the said suit and the defendant had
taken defence that the agreement to sale was a unilateral
agreement and that the defendant is not bound by the said
agreement. The trial Court had framed following issue vide
Exhibit-104, which are as under:-
(i) Whether the plaintiff proves agreement of sale dated 02.04.96?
(ii) Whether the plaintiff proves that he has paid Rs.45000/- and
Rs.1,55,000/- to the defendant as alleged?
(iii) Whether the plaintiff is ready and willing to perform his part
of contract?
(iv) Whether the defendant proves the facts alleged in part-5 of
written statement Ex.42?
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(v) Whether the defendant proves that so called contract is of
“Loan” contract and not of sale-agreement?
(vi) Whether the defendant proves that plaintiff’s suit is barred
by the principles of delay and latches?
(vii) Whether the plaintiff is entitled to get the relief’s as prayed
for?
(viii) What order and decree?
4. After taking into consideration the oral evidence and the
documentary evidence and given findings on all the issues, the
trial Court dismissed the suit. Being aggrieved by the said order,
plaintiff filed Regular Civil Appeal No.69 of 2008 and after
reappreciating the evidence, the first appellate Court allowed the
said appeal and set aside the judgment passed by the trial court
in Regular Civil Suit No.26 of 1999. Being aggrieved by the side
judgment passed by the first appellate court, the defendant has
filed the Second Appeal.
5. Learned advocate for the defendant has mainly argued that
the appellate Court has not taken into consideration the fact that
the suit that has been filed by the plaintiff was not within a
reasonable time. It has also been argued that the Court has not
taken into consideration that the suit was not filed immediately
after the breach/refusal and that though the suit is filed within
three years, the Court had discretion to reject the specific
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performance of the contract on the ground that the plaintiff has
not filed the suit immediately after the breach.
6. Learned advocate for the defendant has also argued that
the agreement to sale produced vide Exhibit-122 is dated
02.04.1996 and in the said agreement to sale, the time limit was
given upto 02.04.1997 and the notice that was issued by the
plaintiff is dated 24.02.1997 and the suit was filed on 01.03.1999,
and therefore, also the first appellate Court was not justified in
granting the specific performance of the contract. It has also
been argued that the first appellate Court could not have passed
a judgment and decree granting the specific performance of the
contract after there was a change in the nature of premises, as an
additional floor was constructed by defendant within the
knowledge of the plaintiff, and therefore, also the first appellate
Court could not have granted decree of specific performance. It
has also been argued that the first appellate Court has not taken
into consideration that the plaintiff is a finance broker and that
as the defendant wanted to put up new construction as he
wanted to create rental income and the defendant has only
obtained money from the plaintiff for interest and the amount of
Rs.45,000/- was taken only as the loan and the entire transaction
between plaintiff and defendant is not with respect to an
agreement to sale in favour of the original plaintiff with respect
to suit property, but the entire transaction was a loan that
defendant had taken from the plaintiff.
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7. It is also argued by learned advocate for the defendant
that, there is no documentary evidence to support the case of the
plaintiff that the plaintiff was ready and willing to abide by the
terms of the contract and had sufficient amount of Rs.3,00,000/-
to be paid in terms of the agreement to sale, dated 02.04.1996. It
has been argued that is the notice that has been issued by the
plaintiff dated 24.02.1997 produced vide Exhibit-141, the
plaintiff has stated about acceptance of the agreement to sale
and acceptance of the remaining amount of consideration and
after issuance of notice dated 24.02.1997, the suit was not filed
till the year 1999, the same clearly shows the transaction between
the plaintiff and defendant was only for the loan which was
taken by the defendant for construction, and therefore, the
appellate Court could not have granted decree of specific
performance of the agreement dated 02.04.1996. Learned
advocate for the appellant has relied on the following judgment:-
(i) Rajesh Kumar v. Anand Kumar and Others reported in 2024
LiveLaw (SC) 407,
(ii) Shenbagam & Others v. K.K. Rathinavel reported in 2022
LawSuit (SC) 62,
(iii) Atma Ram v. Charanjit Singh reported in 2020 LawSuit
(SC) 139
(iv) Mehboob-UR-Rehman (Dead) Through Lrs. v. Ahsanul
Ghani reported in 2019 LawSuit (SC) 212Page 5 of 32
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(v) Tejram v. Patirambhau reported in 1997 LawSuit (SC) 594
(vi) Parakunnan Veetil Josephs Son Mathew v. Nadumbara
Kuruvilas Son reported in 1987 LawSuit (SC) 691.
8. Therefore, it has been argued that there are substantial
quesions of law are involved in the present Second Appeal.
Therefore, the present Second Appeal be admitted on the
substantial questions of law which have been suggested in the
memorandum of appeal.
9. Per contra, learned advocate for the respondent has mainly
argued that the plaintiff and the defendant had executed a
registered agreement to sale which was produced at Exhibit-122
and the trial Court while deciding the said suit has held that the
plaintiff has proved that he has paid an amount of Rs.45,000/-
and Rs.1,55,000/- to the defendant and issues to that effect were
framed by the trial Court, vide Exhibit-104 and findings have
been given with respect to the said issues in the affirmative.
Moreover, as the agreement to sale is a registered document, a
presumption is raised under Section 114(e) of the Evidence Act.
The defendant has not denied the signature on the agreement to
sale produced vide Exhibit-122. The said agreement to sale
Exhibit-122 as stated by the defendant to be a loan agreement
but there are no documentary evidence to support the said fact.
Moreover, as the terms of the contract are in the form of a
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document and the said document has been proved by oral
evidence to have been executed, no evidence of any oral
agreement or statement between the parties contradictory,
warring or substantiating the said written agreement can be
taken into consideration, without any substantial evidence
proving the same. Only defence that the defendant has taken
with respect to the agreement to sale produced at Exhibit-122 is
that it a loan agreement and not an agreement to sale. The entire
burden to prove the said fact was on the defendant as the
defendant has stated that the said document produced vide
Exhibit-122 was a loan agreement and no cognate evidence has
been produced by the defendant to prove the said fact that it was
not an agreement to sale but a loan agreement. The fact remains
that the said document which has been produced vide Exhibit-
122 is a registered document, execution of the said document is
not denied by the defendant, therefore, the question of
examining the witness to the said agreement produced vide
Exhibit-122 does not arise with respect to the readiness and
willingness of performing his part of payment of remaining
amount of Rs.3,00,000/-. It has been stated that the said amount
was to be paid on or before 02.04.1997 but it has been argued
that in the legal notice dated 24.02.1997 produced vide Exhibit-
141 it has been clearly stated that the plaintiff had gone to meet
the defendant in the month of February-1997 with an amount of
Rs.3,00,000/- and requested the defendant to execute the sale
deed and the defendant had refused to execute the sale deed, and
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therefore, as on 24.02.1997 the plaintiff had an amount of
Rs.3,00,000/- and was ready and willing to pay the remaining
amount and get registered sale deed executed. Therefore, it is the
case of the plaintiff that the plaintiff has personally met with the
defendant in the month of February-1997 and was ready and
willing to perform his part of the agreement to sale produced
vide Exhibit-122 but the defendant refused to the same.
10. Learned advocate for the plaintiff has also argued that the
entire case of the defendant is based on the fact that the
agreement to sale produced vide Exhibit-122 was actually the
loan agreement but there is no documentary proof to support the
said fact and the defendant has not issued any notice or filed any
suit for cancellation of agreement to sale produced vide Exhibit-
122 nor there is any documentary evidence to support the alleged
defence of the defendant that he was always ready and willing to
repay the amount, and therefore, it can be clearly established
that it was the defendant who was not ready and willing to abide
by the agreement to sale produced vide Exhibit-122.
11. Learned advocate for the plaintiff has also argued that the
suit does not suffer on the ground of delay and latches. The fact
remains that the cause of action to file the suit arise when the
legal notice was issued on 24.02.1997 and the suit is filed on
03.03.1999 the cause of action to file the suit if considered from
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the date of execution of the agreement to sale produced vide
Exhibit-122 i.e. 02.04.1997 then also the suit could be filed on or
before 01.04.2000, but the fact remains that the suit has been
filed on03.03.1999 and the delay in filing the suit could not be
fatal and the Court could not reject the suit merely on the
ground of said delay and latches. Learned advocate for the
plaintiff has relied on the judgment in the case of P.
Daivasigamani v. S. Sambandan reported in (2022) 14 SCC 793
and in view of the said fact it has been argued that there are no
substantial questions are involve in the present Second Appeal
and the Second Appeal is require to be dismissed at admission
state.
12. Having heard learned advocate for the parties and having
considered the judgment passed by the trial Court and the first
appellate Court. The trial Court has mainly dismissed the suit on
the ground of delay and latches and holding that the suit
transaction was a loan transaction. The trial Court had also
dismissed the suit on the ground that the plaintiff was not able to
prove that he was ready and willing to perform his part of
contract and that the transaction between the plaintiff and the
defendant is a loan transaction. The first appellate Court while
appreciating the evidence has taken into consideration the fact
that the agreement to sale is a registered document and the
execution of the said agreement to sale is not denied by the
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defendant. Moreover, the first appellate Court come to the
conclusion that there are no documentary evidence to support
the defendant that agreement executed between the parties is
actually a loan agreement. The admitted positions are as under:-
(a) The plaintiff and defendant entered into a registered
document registered before the Sub Registrar Office, registration
No.3112 dated 02.04.1996 produced vide Exhibit-122.
(b) The said document produced at Exhibit-122 categorically
states that an amount of Rs.45,000/- is paid towards the
purchase of the suit property and receipt of an amount of
Rs.1,55,000/- is also on record to show that in furtherance of the
agreement produced vide Exhibit-122 a further payment is made
and receipt is issued by the defendant which is produced vide
Exhibit-140.
(c) The total sale consideration for the suit property was an
amount of Rs.5,00,000/-.
(d) The plaintiff issued a legal notice showing his readiness and
willingness to perform his part of contract. The said notice is
produced vide Exhibit-144.
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(e) Civil Suit has been filed on 03.03.1999.
(f) The defendant in his written statement has taken a
contention that a loan of an amount of Rs.1,25,000/- was taken
from the plaintiff by installments but no documentary evidence
to substantiate the said fact has been produced by the defendant.
13. The fact remains that from the documentary evidence it
can be clearly established that while issuing a notice dated
24.02.1997 the plaintiff had categorically stated that an amount
of Rs.3,00,000/- i.e. remaining sale consideration were ready and
the plaintiff was ready and willing to pay the said amount of
Rs.3,00,000/- in February-1997 and the defendant refused to
accept the same. Moreover, fixed deposit receipt and bank
details were produced vide Exhibit-144 to 152, before the trial
Court to show that the plaintiff had arranged the money, and
therefore, it can be established that the plaintiff was capable to
pay the amount of Rs.3,00,000/-, but the defendant had not
agreed to accept the same. The fact remains that there was no
question that the plaintiff had to prove that the defendant had
the cash amount and/or sufficient funds/means to pay balance
consideration,, the fact remains that the plaintiff has already
produced fixed deposit receipt and the bank details vide Exhibit-
144 to 152 which clearly shows that the plaintiff has sufficient
amount to pay the sale consideration, and therefore, it cannot be
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stated that the plaintiff failed to prove the readiness and
willingness and that there was no evidence to show that the
plaintiff was ready and willing to perform the terms of contract
by paying the remaining amount of Rs.3,00,000/-.
14. With respect to the fact that the said transaction was a loan
transaction, the defendant has miserably failed to produce any
evidence to prove the said fact. Moreover, the defendant has not
issued any legal notice to the plaintiff to show his willingness to
return the alleged loan amount and cancel the agreement to sale,
therefore, the said fact that the entire transaction was a loan
transaction has rightly been overturned by the first appellate
Court.
15. With respect to the fact that there is a delay in filing the
suit for specific performance. The fact remains that in this
background the conduct of the plaintiff will be of some
significance. In the present case, the plaintiff and the defendant
entered into an agreement to sale with respect to the suit
property on 02.04.1996 the plaintiff agreed to perform his part of
contract to purchase the suit property of an amount of
Rs.5,00,000/- on the date of execution of the agreement. The
plaintiff paid the amount of Rs.45,000/- by way of earnest money
as part of sale consideration and further amount of Rs.1,55,000/-
was paid by the plaintiff of 31.10.1996. It was the case of plaintiff
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that though he requested the defendant to execute the sale deed
and plaintiff showed his willingness to perform the contract, the
defendant failed to perform his part of contract. The plaintiff,
therefore, issued notice dated 02.04.1997 for the same. The
defendant has only taken a contention that the plaintiff was not
ready and willing to perform his part of contract and that the
alleged transaction is not a transaction to agreement to sale for
the suit property but is a loan transaction. The trial Court has
taken into consideration that as the suit was filed with delay, the
plaintiff was not entitled for specific performance, as the relief
was specific performance was a discretionary relief and also on
the issue of delay the suit of specific performance of the plaintiff
was denied by the trial Court and the appellate Court had
granted the same and had not taken into consideration that mere
delay, will not dis-entitle the plaintiff to relief of specific
performance.
16. In the present case, the plaintiff has shown that he is ready
and willingness to perform his essential terms of contract to call
upon the defendant to execute the agreement to sale transaction
by issuing notice on 02.04.1997, within the stipulated period of
limitation. However, the defendant failed to execute the sale deed
in favour of the plaintiff. In the instant case, the execution of the
agreement is of 02.04.1996, it has been produced by the plaintiff
by leading evidence that the plaintiff has send a notice dated
02.04.1997 and called upon the defendant and since the sale
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transaction could not be completed the plaintiff had filed the suit
on 03.03.1999, the period of limitation has started from the date
of plaintiff’s notice that is the first cause for specific performance
was refused by the defendant and the cause of refusal of specific
performance not from the date of agreement to sale. The present
suit has been filed by the plaintiff within the prescribed period of
limitation, under Article 54 of the Limitation Act. Moreover,
while considering the fact of the present case wherein an
agreement to sale has been executed on 02.04.1996, the further
payment has been made and the fact that legal notice was issued
on 02.04.1997, mere delay in filing the suit within the prescribed
period of limitation cannot be a ground for refusing the said
relief, and that if the suit is filed in time the suit will not be
dismissed as barred by law, and therefore, mere delay alone in
filing the suit for specific performance without reference to the
conduct of the plaintiff in instituting the suit could not be a
ground for requesting the relief. The said relief when the suit was
filed within the statutory time limitation by the plaintiff.
17. In the present case, the plaintiff has also been able to prove
that he was ready and willing the perform his part of the
contract. The plaintiff has already paid the amount of
Rs.2,00,000/- for the sale consideration and has shown his
readiness and willingness, in the month of February-1997 to pay
the amount of Rs.3,00,000/- and has also issued a notice on
02.04.1997 to call upon the defendant, to execute the sale deed in
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favour of the plaintiff. The appellate Court has taken into
consideration the fact that it will be equitable to grant relief for
specific performance to the plaintiff, against the defendant, in
relation to the suit property and it will not cause any hardship to
the defendant and in the facts of the present case, the plaintiff
was all through, out ready to abide by the agreement to sale and
has proved the fact of payment of Rs.2,00,000/- and has shown
his ready and willingness to pay the remaining amount of
Rs.3,00,000/-, the appellate Court has rightly decided the said
appeal by granting specific performance of the contract and not
granting the alternative relief namely refund the earnest money.
The hardship of the defendant has also been taken into
consideration by the first appellate Court. The fact that from the
conduct of the plaintiff, it can be clearly established that the
plaintiff had in compliance of the agreement to sale dated
02.04.1997, has in fact performed his part of the contract by
paying the amount of Rs.45,000/- at the time of agreement to
sale, and thereafter making further payment of Rs.1,55,000/-,
and therefore, showed his readiness and willingness to pay the
remaining amount of Rs.3,00,000/- in the month of February-
1997 and issuing a notice dated 24.02.1997 to call upon the
defendant to execute the sale deed and the act of the plaintiff was
in affirmative, in terms of contract and the act of the plaintiff is
an attempt to act in furtherance of the agreement to sale as the
plaintiff was always ready and willing to pay the remaining sale
consideration in the month of February-1997. The delay in
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payment of full consideration will not come into an advantage of
the defendant. In the facts of the present case, after entering into
the registered agreement to sale, the defendant has taken a
defence that it was not agreement to sale the property but it was
a loan agreement, the said defence is only a hishonest approach
of the defendant after executing the registered agreement to sale
produced vide Exhibit-122 and the same is without any proof. In
the present case important factor is that the plaintiff offered in
writing to perform his part to pay the balance consideration, the
fact remains that the plaintiff was always ready and willing to
pay remaining balance amount to the seller.
18. In the present case, an amount of Rs.2,00,000/- is already
paid by the plaintiff to the defendant. In the present case there
was a due compliance of section 16(c) of Specific Relief Act on
the part of the plaintiff and that it was the defendant who failed
to perform his part as per the terms of the contract though called
upon by the plaintiff by a notice dated 02.04.1997, thereafter is a
specific pleading with regard to the readiness and willingness of
the plaintiff and the same was also proved by oral and
documentary evidence, and in view of the sale the appellate
Court has rightly granted specific performance of the contract.
19. The judgment relied by the learned advocate for the
defendant, more particularly in the case of Rajesh Kumar v.
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Anand Kumar & Ors, [2024 LiveLaw (SC) 407], paragraph No.16
to 18 which reads as under:-
“16. In Saradamani Kandappan vs.S. Rajalakshmi &
Ors., this Court held that every suit for specific
performance need not be decreed merely because it is
filed within the period of limitation by ignoring time
limits stipulated in the agreement. The courts will
also frown upon suits which are not filed immediately
after the breach/refusal. The fact that limitation is
three years does not mean that a purchaser can wait
for one or two years to file a suit and obtain specific
performance.
17. In Atma Ram vs. Charanjit Singh, this Court has
observed in para 9 thus:-
“9. ……. No explanation was forthcoming from the
petitioner for the long delay of three years, in filing
the suit (on 13-10-1999) after issuing a legal notice on
12-11-1996. The conduct of a plaintiff is very crucial
in a suit for specific performance. A person who
issues a legal notice on 12-11-1996 claiming readiness
and willingness, but who institutes a suit only on 13-
10-1999 and that too only with a prayer for a
mandatory injunction carrying a fixed court fee
relatable only to the said relief, will not be entitled to
the discretionary relief of specific performance.”
18. In the case in hand, the plaintiff entered into an
agreement with only one of the co-owners and
thereafter sought extensions for execution of the sale
deed but did not prefer any suit though he was aware
of the sale deed dated 14.-05-1997 executed in favour
of defendant nos.12 to 14 and sent a legal notice on
30-05-1997 and even objected to the subsequent
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purchasers’ application for mutation of their names
in the revenue records on 20.08.1997 and refers to a
meeting of the Gram Panchayat dated 06-12-1997,
yet the suit was preferred, on 09-05-2000 on the last
date of limitation. Thus, on the strength of
observations made by this Court in K.S.
Vidyanandam (supra), Azhar Sultana (supra),
Saradamani Kandappan (supra) & Atma Ram (supra),
the suit having been preferred after a long delay, the
plaintiff is not entitled for specific performance on
this ground also.”
20. In view of the fact of the said case the same will not be
applicable to the present case, as in the said proceedings, the
original plaintiff had not entered the witness box and in the said
case, the suit property were already sold on 14.05.1997 and in the
said case a notice was issued on 30.05.1997 and objections to the
mutation entry were also filed in the year 1997 and the suit was
preferred on 09.05.2000 i.e. on the last date of limitation, and
therefore, the Court held that the plaintiff was not entitled for
specific performance, therefore, the said judgment will be of no
assistance to the defendant.
21. In the present case the suit that has been filed is within the
period of limitation. The notice calling upon the defendant to
execute the sale deed was issued on 24.02.1997 and the suit
having been filed on 03.03.1999 is much prior to the period of
limitation, and therefore, the said judgment will not be
applicable to the facts of the present case.
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22. The judgment relied on 2022 LawSuit(SC) 62 in the case of
Shenbagam & Others v. K.K. Rathinavel will not be applicable to
the facts of the present case.
23. Generally speaking, time is not of the essence in an
agreement for the sale of immovable property. In deciding
whether to grant the remedy of specif performance, specifically
in suits relating to sale of immovable property, the courts must
be cognizant of the conduct of the parties, the escalation of the
price of the suit property, and whether one party will unfairly
benefit from the decree. The remedy provided must not case
injustice to a party, specifically when they are not at fault. The
plaintiff had always be ready and willing to perform his party of
contract and was also ready and willing to pay the remaining
amount of sale consideration and execute the sale deed, but it is
the defendant who did not comply or act in furtherance of an
agreement to sale dated 24.02.1997, and therefore, the Appellate
Court has rightly passed an order for specific performance.
24. The judgment relied on 2020 LawSuit(SC) 139 in the case
of Atma Ram v. Charanjit Singh will also of no assistance to the
defendant.
25. In the present case, injustice will be caused if the suit for
specific performance is not allowed, in view of the fact that the
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plaintiff was ready and willing to perform his part of the contract
by issuing notice on 24.02.1997 and was also ready and willing to
pay balance amount of sale consideration to the tune of
Rs.3,00,000/- in the month of February-1997 before the issuance
of notice, and therefore, the conduct of the parties also is in
favour of the plaintiff. The escalation of the price of the suit
property cannot be considered in the fact of the present case as
the plaintiff was always ready and willing to pay the said amount
for sale consideration in the year 1997, and therefore, the said
judgment will no assistance to the defendant.
26. The judgment relied on 2019 LawSuit(SC) 212 in the case
of Mehbood-UR-Rehman (Dead) Through Lrs. v. Ahsanul Ghani
will also be not much assistance to the defendant.
27. In the said case, the suit was filed after more then three
years and the date fixed in the agreement to sale and in the
present case the suit has been filed within three years covering
the date of agreement to sale and also the refusal of specific
performance of the said agreement to sale dated 24.02.1997 i.e.
the date when the plaintiff called upon the defendant to execute
the sale deed.
28. The said judgment will not applicable to the facts of the
present case as the plaintiff always shown ready and willingness
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to perform his part of contract by paying the remaining sale
consideration and has also produced vide Exhibit-144 to 152 to
show that he has sufficient means/fund to pay the sale
consideration.
29. The judgment relied on 1997 LawSuit(SC) 594 in the case
of Tejram v. Patirambhau will also of no assistance to the
defendant.
30. It was found by the Courts below that as a matter of fact, it
was not agreement of sale but a money transaction. Moreover, it
was unlikely that the respondent would have waited for 3 years
and than filed a suit last day of limitation. In the present case
there are no document to support the case that it was a money
transaction and not a sale consideration.
31. The judgment relied on 1987 LawSuit(SC) 691 in the case
of Parakunnan Veetil Josephs Son Mathew v. Nedumbara
Kuruvilas Son, will also of no assistance to the defendant.
32. The said judgment will not applicable to the present case as
in the present case, it is the plaintiff who had come forward that
the agreement to sale has been executed and before filing of the
suit plaintiff was ready and willing to pay the remaining amount
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of sale consideration, and therefore, it cannot be said that the
agreement to sale dated 02.04.1997 will be in favour of the
plaintiff.
33. With respect to the judgment relied on by the learned
advocate for the plaintiff in the case of P. Daivasigamani v. S.
Sambandan reported in (2022) 14 SCC 793, more particularly
paragraph Nos.3 to 6, 9 to 14, 16, 17, 18, 25, 29 to 33, which
reads as under:-
“3. The short facts given rise to the present
appeal are that the appellant Mr. P. Daivasigamani
was the owner of the suit land i.e., the land to an
extent of 1 acre out of 1.80 acre of wetland comprised
in survey nos. 287 and 288, situated in No. 85
Ayanambakkam, District Ambattur. He had entered
into an agreement to sell the suit land with the
respondent Shri S. Sambandan on 05.10.1989. The
appellant had agreed to sell the said land for a sum of
Rs. 6,50,000/-. On the date of execution of the
agreement, the respondent had paid a sum of Rs.
50,000/- by way of earnest money as part of sale
consideration. The time for completion of sale
transaction was stipulated to be 6 months in the said
agreement.
4. As per the case of the respondent, though he had
periodically contacted the appellant requesting him to
execute the sale deed, and had shown his readiness
and willingness to perform his part of the contract,
the appellant failed to respond or to perform his part
of the contract. The respondent thereafter vide the
letter dated 17.03.1990 sent by registered post, called
upon the appellant to execute a deed of power ofPage 22 of 32
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attorney and to conclude the said transaction,
however there was no response from the appellant to
the said letter. The respondent thereafter again sent a
notice through his lawyer on 26.03.1990, to the
appellant which was returned with an endorsement
“refused”.
5. The respondent thereafter caused a public notice
published in the Tamil daily “Dhina Thanthi” on
02.05.1990 and in English daily “Indian Express” on
06.05.1990, informing the public at large not to enter
into any sale transaction with the appellant in respect
of the suit property. Despite the said efforts having
been made by the respondent, the appellant failed to
fulfill his obligation under the agreement. The
respondent-plaintiff thereafter filed the suit seeking
specific performance of the said agreement.
6. The suit was contested by the appellant-defendant
by filing the written statement. The appellant while
admitting the execution of the agreement in question
had denied the receipt of Rs. 50,000/- as contended by
the respondent. The appellant also denied the
readiness and willingness on the part of the
respondent to perform his part of the contract. The
appellant also denied to have received the letter dated
17.03.1990 sent by the respondent by registered post
and also the notice dated 26.03.1990 sent by the
respondent through his lawyer.
9. While raising multiple contentions, the learned
counsel appearing for the appellant submitted that the
suit having been filed by the respondent – plaintiff
after three years of the execution of the agreement, it
was barred by the Law of Limitation. Even otherwise,
the time being the essence of the contract, and the
respondent having failed to perform the essential
terms of the contract within the time limit stipulated
in the agreement, the High Court had committed a
gross error in granting the discretionary relief of the
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specific performance in favour of the respondent.
According to him, there was no explanation given by
the respondent for the delay occurred in filing the suit.
10. The learned counsel for the appellant further
submitted that as per the legal position settled by this
Court, the respondent was not only required to aver
in the pleading but was also required to prove by
cogent evidence like producing statement of his bank
account or other document that he was financially
capable of making payment of the balance amount of
sale consideration, which the respondent-plaintiff had
failed to prove. The respondent had also failed to
deposit the remaining amount of sale consideration in
the court at the time of filing the suit.
11. Per contra, the learned counsel appearing for
the respondent submitted that time is never
considered to be an essence of the contract in case of
immoveable property, and even otherwise the
respondent had shown his readiness and willingness to
perform the essential terms, namely calling upon the
appellant to execute a power of attorney and complete
the sale transaction, by issuing three notices one after
the other, within the stipulated time limit, however,
the appellant had failed to respond the said notices
and had also failed to execute the sale deed in favour
of the respondent. According to him, there was no
requirement of law to deposit the balance of the
amount of sale consideration, at the time of filing of
the suit, as sought to be submitted by the learned
counsel for the appellant.
12. Now, adverting to the first contention raised
by the learned counsel for the appellant that the
respondent – plaintiff having filed the suit for specific
performance of the agreement after the expiry of three
years of the agreement, it may be noted that as per
Article 54 of the Limitation Act, 1963, the suit for the
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specific performance of contract could be filed within
three years from the date fixed for the performance,
or when no such date has been fixed, from the date
when the plaintiff has noticed that performance is
refused.
13. In the instant case, the execution of the
agreement on 05.10.1989 has not been disputed. It
was also proved by the respondent by leading the
evidence that the respondent had sent a notice dated
17.03.1990 by registered post and called upon the
appellant to execute the power of attorney and to
conclude the sale transaction in view of Clause 10 of
the agreement. However, there was no response from
the appellant to the said letter. The respondent
thereafter had again sent a notice through his lawyer
on 26.03.1990, which had come back with the
endorsement “refused”. Thereafter, again the
respondent caused a public notice published in the
Tamil daily “Dhina Thanthti” on 02.05.1990 and in
the English daily “Indian Express” on 06.05.1990.
14. The appellant having not responded to any of
the said notices, the suit was filed on 26.03.1993. Since
the sale had to be completed within a period of six
months from the date of the execution of the
agreement dated 05.10.1989, the respondent had
called upon the appellant to perform his part of the
contract by issuing the notices within six months of
the said agreement. However, the appellant having
failed to respond to any of the said notices, it was
deemed that the appellant had refused to perform his
part of contract. The period of limitation had started
running from the date the respondent noticed that the
performance was refused by the appellant and not
from the date of the execution of agreement in
question.
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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 vs. G. Yelloji Rao
AIR 1965 SC 1405 it has been observed as under:
“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; 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 (2019) 8 SCC 62. We, therefore, have no
hesitation in holding that mere delay alone in filing
the suit for specific 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.
18. This takes us to the next question as to
whether the High Court was justified in granting
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the relief of specific performance in favour of the
respondent – plaintiff? Now, before answering the
said question, it may be noted that some of the
relevant provisions contained in the Specific Relief
Act, 1963 (hereinafter referred to as the “Said Act”)
have undergone a substantive change by way of
amendments made by the Act 18 of 2018, which
came into force with effect from 01.10.2018. As
per the recent decision of the three-judge bench of
this Court, in case of Smt. Katta Sujatha Reddy v.
Siddamsetty Infra Projects Ltd., Civil Appeal No.5822 of
2022 decided on 25th August, 2022, the said Act
18/2018 amending the Specific Relief Act is
prospective in nature and cannot apply to those
transactions that took place prior to its coming
into force. In the instant case, the subject
agreement having taken place prior to the said
Amendment, we will have to take into
consideration the legal position as it stood prior to
the 2018 amendment.
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 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 Joshi and Others 6 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:
“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
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(2020) 3 SCC 280 (2019) 3 SCC 704 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
the Forms 47/48 of Appendix A to C of the Code of
Civil Procedure]. 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.
29. Time, it is stated, is not the essence of the
contract in the case of immovable properties,
unless there are grounds to hold to the contrary.
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This doctrine is applied, without being unfair and
inequitable to the defendant/seller, as the court
should not ignore that a person sells the property
when he needs money, and, therefore, expects the
money in the stipulated or reasonable time, which
would meet the purpose of the sale. The purpose of
sale can vary from the need for liquid cash to be
invested to earn interest, medical, educational,
child’s marriage or purchasing another property.
To save capital gains, the seller has to purchase
another immovable property, unless the proceeds
are exempt.
30. There has been a steep rise in the prices of
land in the last quarter of the 20th Century in
India. With the rise in property value, the value of
money has fallen. At times, delay in payment
would defeat the defendant/seller’s purpose8.
Therefore, the offer of the plaintiff/purchaser in
writing and the time and occasion when the offer to
pay the balance amount to the defendant/seller is
an important factor which would matter when the
court examines the question of discretion, that is,
whether or not to grant a decree of specific
performance. While examining these aspects, the
quantum of money paid by the plaintiff/seller to
the defendant/purchaser may become a relevant
fact that merits due consideration.
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.
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32. Having said that, let us examine the facts of
this case. As discussed earlier, the respondent –
plaintiff had not only averred in the plaint about
his issuing notices within the period of six months
of the agreement in question, calling upon the
appellant – defendant to perform his part of
contract and conclude the sale transaction, also
showing his readiness and willingness to perform
his part of the contract, but the respondent had
also proved the same by stepping into the witness
box.
33. Though much reliance was placed by the
learned counsel for the appellant on the decisions
of this Court in case of Ritu Saxena vs. J.S. Grover &
Another (2019) 9 SCC 132, in case of Abdullakoya Haji
Vs. Rubis Tharayil (2019) 17 SCC 216, 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 case of Syed Dastagir (supra), 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
the 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. In view of the said, this will fairly be assistance of the
plaintiff as in the said case also if the suit is filed by the plaintiff
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well within the prescribed period of limitation, the same could
not be non suited on the ground that the suit being barred by
limitation. In view of the said fact the Appellate Court has
rightly held that there is exact and valid contract between the
parties with respect to the suit property and that the plaintiff has
been ready and willing to perform his party of contract all
throughout and that the plaintiff has in fact performed his part
of contract by showing his readiness and willingness and paying
the required amount of sale consideration and execute the sale
deed and the substantial amount is already paid, it will be
equitable to grant relief for specific performance of the contract
to the plaintiff and defendant will not suffer any kind of
hardship. Moreover, the judgment passed by the First Appellate
Court after reappreciating the entire evidence and there is no
need to interfere of the said order.
35. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the
Hon’ble Apex Court has observed as under:-
“28. It is thus clear that under Section 100 CPC, the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the final
Court of facts except in such cases where such findings
were erroneous being contrary to the mandatory
provisions of law, or its settled position on the basis of the
pronouncement made by the Apex Court or based upon
inadmissible evidence or without evidence.”
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36. Under the circumstances, this Second Appeal is devoid of
any substantial question of law. Both the learned Trial Court
and first appellate Court have rightly decided the issue between
the parties in the right perspective and as stated above no
substantial question of law arises in the present appeal. The
defendant has failed to prove his case before the first appellate
Court. This Court does not find any substance in the present
Second Appeal as the same is devoid of any merit both on facts
and law and the same is dismissed at admission stage.
37. In view of the order passed in the main matter, Civil
Application does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
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