SRI T M BASAVARAJ vs SRI L VINODH
- Court
- Karnataka High Court
- 1 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
R
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
DATED THIS THE 2 DAY OF APRIL, 2026
PRESENT
THE HON'BLE MR. JUSTICE D K SINGH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
REGULAR FIRST APPEAL NO. 2168 OF 2018 (SP)
BETWEEN:
1.
SRI. T.M. BASAVARAJ,
S/O MANJAPPA,
SINCE DEAD BY HIS LRS
SMT. PARAMA,
W/O LATE MANJAPPA,
AGED ABOUT 94 YEARS,
R/AT. TAYAR STREET,
BEHIND GANAPATHI PANDAL,
TARIKERE, CHIKKAMAGALURU.
1(a)
…APPELLANT
Digitally
signed by
REKHA R
Location:
High Court
of Karnataka
(BY SRI. PRAKASH T HEBBAR., ADVOCATE)
AND:
1. SRI. L. VINODH,
S/O SRI. P. LOKESH,
AGRICULTURIST,
R/AT KOTE,
AJJAMPURA TOWN,
TARIKERE TOWN,
CHIKKAMAGALURU DISTRICT
2. SMT. SHARADA,
D/O. LATE M.S.S. MANJAPPA,
AGED ABOUT 48 YEARS,
- 2 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
R/AT. YAUAR STREET,
TARIKERE TOWN & TALUK,
NOW RESIDING AT:
LOKASUNDARI RAMAN,
RD
K.S.C.L.W. NO.135, 3 CROSS,
WORKING WOMEN HOSTEL,
JAI MAHAL EXTENSION,
BENGALURU - 560 046.
3. SMT. M. MAHALAXMI,
D/O. M.S. MANJAPPA,
AGED ABOUT 60 YEARSM
ST ND
R/AT. 1 CROSS, 2 MAIN,
IEW COLONY,
NANDINI LAYOUT POST,
SHANKARANAGAR,
MAHALAXMI EXTENSION,
BENGALURU - 560 096.
4. SMT. M. KAMALA,
AGED ABOUT 58 YEARS,
D/O. M.S. MANJAPPA,
W/O. SRI. B.S. KRISHANMURTHY,
R/AT. SIDDARUDHA NAGARA,
NEAR VISHWESHWARAIAH CONVENT,
BHADRAVATHI TOWN,
SHIVAMOGGA DISTRICT.
5. SMT. M. KAVITHA,
D/O M.S. MANJAPPA,
AGED ABOUT 55 YEARS,
W/O SRI. B. NAGARAJU,
TH
R/AT. NO. 62, 16 CROSS,
VAIYALIKAVAL, BENGALURU - 560 003.
6. SMT. M. SUSHILA (LAXMI),
D/O. M.S. MANJAPPA,
W/O K.C. MOHAN,
ST
R/AT. NO.114, 1 MAIN ROAD,
- 3 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
RD
BANASHANKARI 3 STAGE,
BENGALURU.
7. SMT. M. CHANDRAKALA,
AGED ABOUT 46 YEARS,
D/O. M.S. MANJAPPA,
W/O. SRI. A. RAMESH,
R/AT. NO.711, MARUTHI NILAYA,
TH ND
68 CROSS, 2 STAGE,
KUMARASWAMY LAYOUT,
BENGALURU - 560 078.
8.
SMT. DHANALAKSHMI,
D/O LATE SRINIVAS,
W/O. LATE T.M. BASAVARAJ,
R/AT. KARLAMMA TEMPLE STREET,
M.G. ROAD,
CHIKKAMAGALURU TOWN - 577 101.
…RESPONDENTS
(BY SRI. BALAGANGADHAR G S., ADVOCATE FOR R1,
SRI. H.R. RAGHAV, ADVOCATE FOR R2 TO R7,
SRI. K.S. GANESHA & S.Y. SUMA DIXIT,
ADVOCATES FOR R8)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED:11.09.2018 PASSED IN OS.NO.53/2015 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND PRL.JMFC., TARIKERE,
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF
CONTRACT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE D K SINGH
and
HON'BLE MR. JUSTICE T.M.NADAF
- 4 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE T.M. NADAF)
The defendant is in appeal under Section 96 read
with Order 41 Rule 1 of Code of Civil Procedure, calling in
question the Judgment and Decree dated 11.09.2018 in
OS.No.53/2015 passed by the Senior Civil Judge and
1
Principal J.M.F.C, Tarikere.
2. Under the impugned Judgment and Decree, the
suit filed by the plaintiff for the relief of specific
performance has been decreed directing the defendant to
execute the registered sale deed in favour of plaintiff in
respect of suit schedule property by receiving balance
consideration amount of Rs.87,00,000/- from the plaintiff
within three months from the date of the Judgment.
3. The parties are referred to as per their rankings
before the trial Court.
1
'Trial Court' for short
- 5 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
4. Brief facts leading to filing of this appeal are as
under:
The plaintiff claims that the defendant is the owner
and in possession of property bearing Sy.No.165 to the
extent of 5 acres 12 guntas situated at Haliyuru Village,
2
Kasaba Hobli, Tarikere Taluk (suit schedule property).
It is the further case that the defendant represented
the plaintiff that he is the absolute owner of the property
as he has purchased it from the previous owner and the
SSP stands in his name. Since both plaintiff and defendant
are well known to each other, the defendant offered to sell
the SSP for his domestic expenses. Upon deliberations, on
06.09.2012, the sale consideration was fixed at
Rs.92,00,000/-. Accordingly, a registered sale agreement
was executed under which, a sum of Rs.5,00,000/- has
been paid towards advance sale consideration.
2
'SSP' for short.
- 6 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
It is his further case that as per the terms of the
contract, plaintiff has agreed to pay balance consideration
at the time of registration of regular sale deed, whenever
the defendant was called to do so, within three months
from the date of agreement.
He further claims that he has requested the
defendant several times to execute the sale deed by
receiving balance sale consideration amount. However, the
defendant on one or the other pretext, stating that, there
are certain hurdles in the execution of the registration of
sale deed, one among them is not in possession of the SSP
as per the sale deed and sought time for the correction of
the same and undertook to execute the registered sale
deed after the issue is cleared. On 22.06.2013, the
defendant has executed another unregistered agreement
of sale in continuation of the earlier agreement stating
that suit filed by the defendant in OS.No.139/2012 is
pending before the Civil Judge's Court at Tarikere, and
execute sale deed thereafter.
- 7 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
It is the further case of the plaintiff that he was and
he is ever ready and willing to perform his part of the
contract, by paying balance sale consideration of
Rs.87,00,000/- but it is the defendant who is postponing
the same. However, the defendant is not coming forward
to execute the sale deed. The plaintiff left with no other
alternatives, filed a suit in OS.No.53/2015 seeking specific
performance of contract dated 06.09.2012, with
alternative prayer for refund of Rs.5,00,000/- with 24%
interest per annum.
5. Upon notice, the defendant entered appearance
engaging his counsel and filed a written statement denying
the plaint averments, taking a specific contention that the
defendant is suffering from haemophilia and he is unable
to walk. The plaintiff taking advantage of the innocence of
defendant, misused him and being in a financially
dominant position over the poor persons like the
defendant, plaintiff used to get signature over stamp
papers as and when required stating that the signatures
- 8 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
are necessary for his financial business to maintain the
accounts and to submit the financial returns to the
Government. Though, the defendant at no point of time
has agreed to sell the SSP and he was not having any such
intention to alienate, the plaintiff has taken the defendant
to the Sub-Registrar Office, Tarikere, stating that his
signature is necessary as a witness for several
transactions and got created concocted and fabricated
documents, the same are void and using these documents,
he has filed the present suit.
6. It is his further contention in paragraph No.15
of the written statement on the registered agreement
dated 06.09.2012 stating that as per the contents of the
sale agreement, the sale deed must be executed within
three months. As such, time is the essence of the contract.
The suit filed in 2015 is belated as such, barred by law of
limitation. With this he sought to dismiss the suit.
- 9 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
7. The Trial Court upon completion of pleadings
framed in all eight issues which reads as under:
i) "Whether the plaintiff proves that the defendant had
executed agreement of sale in his favour to sell the
suit property on 06.06.2012 by receiving advance
amount of Rs.5,00,000/-?
ii) Whether the plaintiff proves that the defendant
executed another registered agreement of sale on
22.06.2013 in continuation of the agreement of sale
dated 06.09.2012 agreeing to sell the suit schedule
property?
iii) Whether the plaintiff proves that he was and is ready
and willing to perform his part of the contract?
iv) Whether the defendant proves that time is essence of
contract?
v) Whether the defendant proves that this suit is barred
by law of limitation?
vi) Whether the defendant proves that the plaintiff has
created, concocted and fabricated the agreement of
sale?
vii) Whether the plaintiff is entitled for the relief of
specific performance of contract as prayed for?
viii) What order or decree?"
8. The Plaintiff in order to prove his case,
examined himself as PW.1 and examined 4 witnesses as
PW.2 to PW.5 and has produced all 12 documents, which
- 10 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
were marked as Ex.P1 to Ex.P12. On the other hand, the
defendant examined himself as DW.1. However, no
documents were produced on behalf of the defendant.
9. The Trial Court, after hearing the parties and
appreciation of pleadings as well as evidence, both oral
and documentary, decreed the suit as stated supra
answering all the issues in favour of the plaintiff and
against the defendant. The witnesses who have been
examined on behalf of plaintiff are the witnesses to the
agreement of sale dated 06.09.2012 - Ex.P1,. The
witnesses have stated that the defendant has agreed to
sell the property for Rs.92,00,000/- and paid a sum of
Rs.5,00,000/- under the registered agreement and agreed
to execute the sale deed within three months from the
date of agreement. The said PW.2 did not subject himself
for cross-examination accordingly an application came to
be filed by plaintiff and his evidence was discarded. PW.3
has deposed that the defendant has agreed to sell the SSP
for Rs.92,00,000/- and received a sum of Rs.5,00,000/- as
- 11 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
advance under the registered sale agreement and agreed
to execute the sale deed by receiving Rs.87,00,000/-. The
other witnesses deposed in line with the witness PW.3.
10. On the other hand, the defendant has been
examined as DW.1 who has filed his affidavit in lieu of his
examination-in-chief stating the averments taken in the
written statement and specifically now in the evidence he
has stated that the plaintiff has taken a signature on blank
papers at the instance of T.R.Nagaraj, in order to cheat
him. He has submitted that he has taken sum of
Rs.5,00,000/- as loan from plaintiff on interest and he has
paid the interest on the said loan amount and he has
denied that he has executed any agreement, much less
the agreement contented by the plaintiff. He has stated
that the plaintiff in order to prove his case has cross-
examined DW.1 at length. In the cross-examination DW.1
has stated that his father had seven children and his
father had 05 acres 05 guntas of land, one house and one
- 12 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
site. His father died in the year 1990 and thereafter, he is
looking after his family.
11. The Trial Court has further observed that the
defendant admitted that he has studied upto PUC in
English medium. He further admitted that he has filed a
suit against TMC, Kadur in OS.No.139/2012 in respect of
the SSP for exchange of the properties. He admitted that
the matter was compromised in Government level. He has
further admitted that Ex.P1 and Ex.P2 are in Kannada
language and he knows the contents of Ex.P1 and Ex.P2.
He has admitted that he has received a sum of
Rs.5,00,000/- from plaintiff for his family necessities and
to perform the marriage of his sisters. He has further
admitted that the market value of the property as on 2012
was 90 to 95 lakhs. He further admitted that he has not
issued any notice to the plaintiff asking him to receive
Rs.5,00,000/- with interest. The trial Court has stated that
the defendant in order to disprove the case of the plaintiff
has not examined any independent witness. Wherein the
- 13 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
plaintiff has denied that under the agreement in respect of
SSP, a sum of Rs.5,00,000/- was given as loan on
interest. He further denied that the agreement is a created
one and further denied that the defendant never intended
to sell the suit schedule property.
12. The Trial Court further stated that the witnesses
have been examined with respect to agreement of sale as
well as sale consideration. Further held that the witnesses
denied the suggestion that the transaction took place was
a loan transaction and the suit property as on the date of
agreement was in the possession of Kadur Municipality. So
far as PW4, the trial Court has stated that the said witness
in the cross-examination has stated that the transaction
took place on 06.09.2012 for Rs.92,00,000/- but denied
that he along with plaintiff and T.R.Nagaraj have created
the false agreement. So far as PW5 is concerned, the Trial
Court has stated that the said witness in his cross-
examination has denied that the plaintiff had given the
amount to the defendant on interest. On this, the trial
- 14 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
Court has reasoned that nothing worthwhile has been
elicitated in the cross examination of PW.1, PW.3 to PW.5
with respect to the creation of agreement of sale and the
transaction between plaintiff and defendant is a loan
transaction.
13. The Trial Court further observed that the
defendant has admitted the receipt of Rs.5,00,000/- from
the plaintiff. He has also admitted his signature on Ex.P1
and Ex.P2 and considering his admission which we have
already stated above, concluded that the contention of the
defendant is unbelievable and unacceptable. Further, the
Trial Court observed that the defendant though has stated
that he has taken Rs.5,00,000/- for his family necessity
i.e., for performance of marriage of his sisters, but in the
cross-examination has stated that he had performed the
marriage of his last sister about 15 to 16 years ago. In
these circumstances, the contention that the defendant
has taken a sum of Rs.5,00,000/- as loan for his family
necessity for performing marriage of his sister is
- 15 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
unbelievable and untrustworthy. With this the Trial Court
has concluded that the defendant has not issued any
notice to the plaintiff asking him to receive a sum of
Rs.5,00,000/- with interest and on the basis of such
reasons has held that the plaintiff has proved his case of
sale agreement with respect to the SSP for a sale
consideration of Rs.92,00,000/- and has paid a sum of
Rs.5,00,000/-, under the said agreement and defendant
has failed to prove that the plaintiff has created, concocted
and fabricated the agreement of sale, as such answered
Issue Nos.1, 2 and 6 in favour of the plaintiff.
14. So far as readiness and willingness is
concerned, the trial Court while answering Issue No.3 has
stated that the plaintiff has pleaded and adduced evidence
to show that he was ever ready and willing to perform his
part of the contract. But it was the defendant who, on one
or the other reason was taking time, pleading his inability,
stating that there are certain hurdles to execute the
registered sale deed on the premise that he is not in
- 16 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
possession of the SSP and after correction of the same, he
would execute the sale deed. Further observed that there
is one more agreement of sale executed on 22.06.2013 in
continuation of the earlier agreement stating regarding the
pendency of the suit in OS.No.139/2012 before the Civil
Court, Tarikere, against the Municipality. The Trial Court
further observed that the plaintiff has produced Ex.P12 -
SBI Bank passbook showing a sum of Rs.90,10,279/- as
on 24.03.2016 and since nothing worthwhile has been
elicitated in cross-examination of PW1 with respect to his
readiness and willingness to perform his part of the
contract and in view of the admission regarding
Rs.5,00,000/- though it is stated to be a loan under a
created document, the Trial Court has held that the
plaintiff has proved the issue regarding his readiness and
willingness to perform his part of the contract.
15. So far as the limitation is concerned, the Trial
Court has answered the same against the defendant
holding that the defendant has failed to prove the said
- 17 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
issue with cogent evidence, so also regarding the
contention of time as the essence of the contract.
16. The Trial Court while answering Issue No.7, i.e.,
on the specific performance of contract has come to a
conclusion that the contention of the defendant that the
suit schedule property is the only source of income of the
defendant is highly unbelievable and as it has already
answered the said issue in favour of the plaintiff stating
that the plaintiff is entitled for the relief of specific
performance of contract, answered the issue in favour of
plaintiff. With this the Trial Court concluded that the
plaintiff has proved his case for the relief sought and
decreed the suit granting the relief which we have already
stated supra. It is this judgment and decree passed by the
trial Court is heard in question in this appeal.
17. Heard Sri.Prakash T.Hebbar, learned counsel
appearing for the appellant and Sri.Balagangadhar G.S,
learned counsel for respondent No.1, Sri.H.R.Raghu,
- 18 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
learned counsel for respondent Nos.2 to 7 and Sri.Ganesha
and Ms.Suma Dixit, learned counsel for respondent No.8.
18. Sri. Prakash T.Hebbar, argued on several points
that the trial Court has failed to consider the case of the
defendant, as well as the fact that the plaintiff has failed
to prove his case with respect to readiness and
willingness, and also the issue on limitation.
19. Firstly, he submits that the trial Court has failed
to consider the cross-examination of the plaintiff wherein
he has given categorical admissions, which goes against
the case put forth by the plaintiff. Though, the plaintiff has
stated in terms of the plaint averments in his examination-
in-chief, however, he has categorically admitted that he
has not issued any notice prior to the institution of the suit
against the defendant. The plaintiff, in order to prove his
case, examined four witnesses, of whom PW2 has been
examined as a witness to the agreement. Since he failed
to subject him to cross-examination, his evidence has
- 19 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
been taken as discarded. So far as the evidence of other
witnesses are concerned, i.e., PW3 to PW5 are shaky and
the trial Court has failed to consider this aspect of the
matter.
20. Secondly, he submits that at Ex.P12 the bank
passbook produced by the plaintiff before the Court to
contend that he was having sufficient amount in the
account for the purpose of performance of the contract. A
perusal of the passbook clearly depicts that as on the date
of filing of the suit, i.e., on 05.09.2015, there is no
amount forthcoming/standing in the account. Till
17.03.2016, the amount standing in the account as
depicted in the passbook is only Rs,10,279/-. On
23.03.2016, a sum of Rs.78,00,000/- has been deposited,
and on 24.03.2016 another sum of Rs.12,00,000/- has
been deposited. The balance amount in the account of the
bank on 24.03.2016 was Rs.90,10,279/-. However, no
further extract of account has been produced to show that
subsequent to the evidence, the same amount is
- 20 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
maintained to honour his part of performance. In these
circumstances, the element of readiness and willingness
has not been satisfactorily proved before the trial Court.
He further submits that though a subsequent agreement
has been stated in the plaint, in the prayer column the
relief sought is with respect to the specific performance of
agreement dated 06.09.2012.
21. Thirdly, Sri.Hebbar, submits that the plaintiff
has produced Ex.P2, the further agreement, which is
unregistered, dated 22.06.2013, said to have been
executed by Sri.T.M.Basavaraju, though it is said to be the
agreement of sale, however, only the alleged signature of
the defendant was found on the document and there was
no signature of the plaintiff in order to say that there is an
agreement between two parties. None of the witnesses to
the said agreement have been examined to substantiate
the same. The trial Court has failed to consider this aspect
of the matter.
- 21 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
22. Fourthly, he submits that the defence of the
defendant is that, the transaction between the parties to
the suit is loan transaction, the plaintiff is a money lender
doing business in finance, and as a collateral security, the
agreement has been executed and not with an intention to
sell the property. He has further submitted that the
defendant is ready to pay back the amount with
reasonable interest that he has received under the
agreement. He further submits that nearly half of the
property, to an extent of 2 acres 28 guntas, has been
acquired for the formation of the road by the authorities.
This fact is not denied by the plaintiff.
23. He further submits but without admitting that
the transaction even if any is frustrated. The trial Court
has failed to consider these aspects of the matter. The
time fixed under the registered agreement even according
to the plaintiff is 3 months, however, the plaintiff filed suit
on 05.09.2015 i.e., at the fag end of the limitation fixed
under Section 57 of the Limitation Act, 1963. In these
- 22 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
circumstances, the trial Court has failed to consider the
main ingredient of Section 16(c) to seek for specific
performance of contract, with this he sought to allow the
appeal and set aside the decree.
24. In contrast, Sri.Balagangadhar, with all
vehemence submits that the trial Court having found that
the defendant has not denied the agreement and even the
receipt of amount under the agreement and considering
the other documents especially the bank passbook
wherein, as on the date of recording of the evidence, the
plaintiff had a sum of Rs.90,10,279/- in his account,
decreed the suit.
25. He further submits that the witnesses who have
been examined to substantiate the claim of the plaintiff
have clearly stated regarding the agreement as well as the
passing of advance amount. The defendant has failed to
elucidate anything worthwhile in the evidence of these
witnesses. In these circumstances, the trial Court having
- 23 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
considered the fact that the defendant owns other lands
besides the land covered under the suit and after going
through the fact that the plaintiff has proved his part of
performance, so also the main aspect of the matter, i.e.,
readiness and willingness granted relief for specific
performance.
26. He further submits that once the plaintiff has
proved his readiness and willingness before the Trial
Court, nothing remained before the appellate Court to
consider on the said aspect. In these circumstances,
Sri.Balagangadhar submits that the appeal filed is only to
delay the further proceedings of the decree and sought to
dismiss the appeal with costs.
27. Having considered the rival submissions, the
points that would arise for consideration are as follows:
(i) Whether the trial Court is right in
answering issue Nos.1, 2, 3 and 7 in
'affirmative'?
- 24 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
(ii) Whether the trial Court is right in
granting relief of specific performance?
(iii) Whether the appellate Court can go
into the question and examine, whether there
was/is continuous readiness and willingness on
the part of the plaintiff to perform the contract?
(iv) Whether any interference is warranted
in the judgment and decree passed by the trial
Court?
28. Our answer to the above point for consideration
are as follows:
Point No.1: in the Negative
Point No.2: in the Negative
Point No.3: in the Affirmative
Point No.4: in the Affirmative.
29. For the sake of convenience we have taken
point No.3, to answer first on the power of the Appellate
Court in examining the continuous readiness and
- 25 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
willingness. The specific performance of contract is a
discretional relief. It is settled position of law that the
plaintiff has to plead and prove the readiness and
willingness to seek for specific performance. Readiness
and willingness are the key ingredients under Section
16(c), to seek for specific performance of contract against
the defendant. The word readiness is the source including
the financial capacity of the person with which he can
perform his part of the contract whereas the willingness is
the mental conduct, to get the sale deed executed by
performing acts prescribed under the contract. As such,
these two ingredients should go hand in hand and must be
proved that the plaintiff was and is ever ready and willing
to perform his obligations from the date of agreement till
execution of the sale deed i.e., it is satisfied.
30. The ingredients of readiness and willingness will
not come to a halt the moment the suit is decreed. These
are more demanding after the decree till the same is
executed and ending with the execution of the sale deed.
- 26 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
The amount involved in the present case on hand is
Rs.92,00,000/- according to the plaintiff, he has paid
Rs.5,00,000/- in 2015 and Rs.87,00,000/- is required to
be paid, which is still remaining with the plaintiff. The
point on readiness and willingness to be considered by the
first appellate Court i.e., the examination of continuous
readiness and willingness on the part of the plaintiff to
perform the contract by the appellate Court is no more res
integra .
31. The Hon'ble Apex Court in the legion of cases
has held that the first appellate Court is duty-bound to
examine whether there was continuous readiness and
willingness on the part of the plaintiff to perform the
contract, as the appeal is the continuation of the original
proceedings. In appellate jurisdiction, the appellate Court
rehears on fact as well as law involved in the lis invoked
by the aggrieved party. The first appeal is a valuable right
provided under the statute to the aggrieved party. As all
the questions, either on fact or law, decided by the trial
- 27 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
Court are again open for reconsideration. Therefore, the
Appellate Court is required to address on all the issues and
decide the case by giving reasons. Order XLI Rule 31 and
33 of CPC, enjoins appellate power in the appellate
jurisdiction.
32. Though the learned counsel for plaintiff has
submitted that the trial Court has already decided the
issue of readiness and willingness in issue No.3, answering
the same in the affirmative, that the plaintiff has proved
his readiness and willingness by examining himself as PW1
and other witnesses who are the signatories to the
agreement as well as passing of consideration and his
financial condition to perform his part of the contract, by
placing reliance on Ex.P12, the Bank passbook produced
before the Court, there is nothing more survives to
reconsider on the said fact. We refrain to accede to the
argument advanced by Sri. Balagangadhar. Though the
trial Court has stated that the plaintiff has proved
readiness and willingness, but the appellate Court in its
- 28 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
appellate jurisdiction is duty-bound to reconsider the said
fact as it has to reconsider the entire facts as well as law
with the help of the materials placed on record.
33. Our view as an appellate Court to reconsider
and examine the continuous readiness and willingness on
the part of the plaintiff to perform his part of the contract,
gains support with the judgment of the Hon'ble Apex
Court, in the case of U. N. KRISHNAMURTHY (since
deceased ) Through Legal Representatives Vs. A. M.
3
KRISHNAMURTHY . In paragraph Nos.34 and 35 the
Apex Court has held as under:
" 34. Even in a first appeal, the first appellate court is
duty-bound to examine whether there was continuous
readiness and willingness on the part of the plaintiff to
perform the contract. This proposition finds support
from Balraj Taneja v. Sunil Madan [Balraj
Taneja v. Sunil Madan, (1999) 8 SCC 396] and H.P.
Pyarejan v. Dasappa [H.P. Pyarejan v. Dasappa, (2006)
2 SCC 496] where this Court approved the views taken
by the Privy Council in Ardeshir Mama v. Flora
Sassoon [Ardeshir Mama v. Flora Sassoon, 1928 SCC
OnLine PC 43 : (1927-28) 55 IA 360 at p. 372 : AIR
1928 PC 208] .
3
( 2023) 11 SCC 775
- 29 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
35. In Malluru Mallappa v. Kuruvathappa [Malluru
Mallappa v. Kuruvathappa, (2020) 4 SCC 313 : (2020) 2
SCC (Civ) 686] , this Court observed and held : (SCC
pp. 317-19, paras 13-14 & 18)
“13. It is a settled position of law that an appeal is a
continuation of the proceedings of the original court.
Ordinarily, the appellate jurisdiction involves a rehearing
on law as well as on fact and is invoked by an aggrieved
person. The first appeal is a valuable right of the
appellant and therein all questions of fact and law
decided by the trial court are open for reconsideration.
Therefore, the first appellate court is required to address
itself to all the issues and decide the case by giving
reasons. The court of first appeal must record its
findings only after dealing with all issues of law as well
as fact and with the evidence, oral as well as
documentary, led by the parties. The judgment of the
first appellate court must display conscious application
of mind and record findings supported by reasons on all
issues and contentions (see : Santosh
Hazari v. Purushottam Tiwari [Santosh
Hazari v. Purushottam Tiwari, (2001) 3 SCC 179]
, Madhukar v. Sangram [Madhukar v. Sangram, (2001)
4 SCC 756], B.M. Narayana
Gowda v. Shanthamma [B.M. Narayana
Gowda v. Shanthamma, (2011) 15 SCC 476 : (2014) 2
SCC (Civ) 619] , H.K.N. Swami v. Irshad Basith [H.K.N.
Swami v. Irshad Basith, (2005) 10 SCC 243] and Sri
Raja Lakshmi Dyeing Works v. Rangaswamy
Chettiar [Sri Raja Lakshmi Dyeing
Works v. Rangaswamy Chettiar, (1980) 4 SCC 259] ).
14. A first appeal under Section 96CPC is entirely
different from a second appeal under Section 100.
Section 100 expressly bars second appeal unless a
question of law is involved in a case and the question of
law so involved is substantial in nature.
*
- 30 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
18. It is clear from the above provisions and the
decisions of this Court that the judgment of the first
appellate court has to set out points for determination,
record the decision thereon and give its own reasons.
Even when the first appellate court affirms the judgment
of the trial court, it is required to comply with the
requirement of Order 41 Rule 31 and non-observance of
this requirement leads to infirmity in the judgment of
the first appellate court. No doubt, when the appellate
court agrees with the views of the trial court on
evidence, it need not restate effect of evidence or
reiterate reasons given by the trial court. Expression of
a general agreement with the reasons given by the trial
court would ordinarily suffice.”
34. In these circumstances, we answer point No.3
in affirmative, holding that the appellate Court is duty-
bound and possessing power to examine as to whether
there was continuous readiness and willingness on the part
of the plaintiff to perform the contract.
35. Point Nos.1, 2 and 4: The trial Court has held
that the plaintiff has proved the agreement as well as
passing of the consideration and the part performance on
the part of the plaintiff i.e., readiness and willingness, has
been proved. The trial Court framed its reasons mainly on
agreement Ex.P1 and the further agreement i.e., Ex.P2
- 31 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
and Ex.P12 as well as the evidence of the witnesses. The
trial Court more swayed on the cross-examination of the
defendant, wherein he had stated that he has studied up
to PUC in English medium and he has been managing the
family affairs since 1990. He has agreed to sell the
property for Rs.92,00,000/- and has received
Rs.5,00,000/- for his family necessities.
36. The trial Court has stated that the defendant, in
his evidence, has admitted that the marriage of his last
sister was performed somewhere 15 to 20 years prior to
the agreement, in these circumstances the trial Court has
observed that the defendant has failed to prove that he
has obtained a loan of Rs.5,00,000/- for the marriage of
his sister. It further observed that the defendant has
further admitted that there is a dispute between the
defendant and the TMC Kadur in the Civil Court, and he
has not issued any notice to the plaintiff, calling upon him
to receive the amount of Rs.5,00,000/-. Further, the trial
Court was of the opinion that nothing worthwhile has been
- 32 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
elicited in the evidence of the witnesses to disprove the
case of the plaintiff. The trial Court considering the
amount found in the passbook as of 24.03.2016, has held
that the plaintiff has proved the ingredient of readiness
and willingness, which has been corroborated by the
evidence of the others, and answered issue Nos.1 and 3 in
favour of the plaintiff. So far as the issue No.2 is
concerned, the trial Court though, has answered the issue
in the affirmative, however has stated nothing while
answering the said issue. The plaintiff has examined none
of the witnesses to the said document to prove the same.
Even, the trial Court has not deliberated much on the said
aspect, except stating a few lines as per the contention of
the plaintiff, but, not deliberated anything on the said
agreement. Even the plaintiff has not examined any of the
witnesses to the said document to substantiate that the
agreement executed in 2013. In these circumstances,
issue No.2 is required to be answered against the plaintiff.
Accordingly, it is answered.
- 33 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
37. Though, the plaintiff to some extent established
execution of the document and the defendant was not in a
position to substantiate his claim that it was a loan
transaction and not that of a sale agreement with intention
to sell the property. However, the fact remains that
whether the plaintiff is entitled for the specific
performance. The plaintiff to seek the specific performance
must satisfy Section 16 of the Specific Relief Act, 1963,
which reads as under:
" 16. Personal bars to relief .—Specific
performance of a contract cannot be enforced in favour
of a person—
(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) 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."
- 34 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
38. It is trite that the plaintiff, to prove the
essentials of Section 16(c) of the Specific Relief Act, must
not actually tender money to the defendant or to deposit
the money in Court, except when he was so directed. To
prove readiness and willingness to perform the essential
terms of the contract, among which the payment of money
is also involved. However, the explanation 2 provided to
Section 16(c) Specific Relief Act, which provides that the
plaintiff must not only aver and plead the essential
ingredients of readiness and willingness, but also to prove
the same to its true construction.
39. The plaintiff is required to make a specific
statement in the plaint and adduce evidence to show the
availability of funds to make payments in terms of the
conditions of the contract in time. In another way, the
plaintiff would have to plead that the plaintiff had sufficient
funds or was in a position to raise funds in time to
discharge his obligation under the contract, if the plaintiff
had no sufficient funds with him to discharge his obligation
- 35 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
in terms of the contract. In these circumstances, the
plaintiff would have to specifically plead how the funds
would be available to him. In the case on hand, the
amount involved under the contract is Rs.92,00,000/- out
of which, Rs.5,00,000/- said to be paid on the date of
agreement of sale, as on 06.09.2012 and agreed to pay
the balance within 3 months.
40. The plaintiff, except the payment of
Rs.5,00,000/- has not parted with any further sum, which
is Rs.87,00,000/- as on 2015, agreed to be paid within 3
months. The amount paid is very negligible. In these
circumstances, the Court, while exercising the discretion in
a suit for specific performance, should bear in mind that
when the party prescribes a certain time limit for their
performance, that must have a significance, as such, the
time prescribed cannot be easily ignored. In these
circumstances, the Court is duty-bound to apply greater
scrutiny and strictness while considering whether the
- 36 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
purchaser was ever ready and willing to perform his part
of the contract.
41. It is trite that, the Courts are under obligation
to find the element of readiness and willingness by the
evidence adduced by the parties. It is settled portion of
law that every suit filed for specific performance need not
be decreed on mere asking on the contention that the
same is filed within the period of limitation, by ignoring
the time limits prescribed under the agreement. The
limitation prescribed for filing suit seeking for specific
performance is 3 years does not mean that the plaintiff
can wait till the fag end and thereafter, jolted awake and
file the suit to bring the same within the limitation and
seek for performance. This is where the Courts are
required to apply much scrutiny, while deciding the factor
of readiness and willingness. There are so many
circumstances which warrant filing of the suit within the
time limit prescribed, the intention of the legislature, in
prescribing period of 3 years, is with an owe object to
- 37 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
assist the purchaser in specific cases with special
circumstances, for example wherein the major portion of
the amount of sale consideration has been paid to the
vendor and possession has been delivered in part
performance and the circumstances beyond control of
plaintiff to seek for specific performance immediately with
time prescribed under the control or other wise
immediately within 3 years prescribed under land without
waiting for long duration. In these circumstances, the
equity and discretion favours the plaintiff.
42. In the case on hand, the agreement was
entered on 06.09.2012 fixing sale consideration of
Rs.92,00,000/-. A sum of Rs.5,00,000/- has been paid as
advance amount on the date of agreement and
Rs.87,00,000/- was agreed to be paid within 3 months.
There is nothing forthcoming in the entire plaint to suggest
that the plaintiff has taken any initiation within the 3
months calling upon the defendant to perform his part of
- 38 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
the contract by accepting Rs.87,00,000/- balance, under
the sale agreement.
43. The contention of the learned counsel for the
plaintiff that there is one more agreement entered in 2013
extending the period cannot be countenanced for the
reason that the said agreement has not been proved in
accordance with law, as none of the witnesses are
examined to substantiate the existence of the said
agreement, which we have already answered above.
44. Another aspect is, the suit is decreed on
11.09.2018. Though appeal was filed immediately
thereafter, the interim order has been granted by this
1
Court on 23.01.2019 i.e., 4 / 2 months thereafter. The trial
Court directed for execution of sale deed by the defendant,
in favour of the plaintiff by receiving balance consideration
of Rs.87,00,000/- within 3 months from the date of the
order. Nothing has been placed by the plaintiff, to show
that he has tendered the amount within the period of 3
- 39 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
months and called upon the defendant to execute the sale
deed, even if the defendant fails to comply with the
directions of the trial Court. The Ex.P12 which is produced
clearly indicates that till 17.03.2016 the balance amount
available was just Rs.10,279/-. On 23.03.2016 and
24.03.2016 a sum of Rs.78,00,000/- and Rs.12,00,000/-
have been deposited i.e., at the time of evidence.
However, nothing is forthcoming or placed on record as to
whether the same amount is still available with the bank
to perform the performance on the part of the plaintiff.
The trial Court has failed to consider this aspect of the
matter. A perusal of Ex.P12 clearly shows that the plaintiff
has not maintained sufficient balance as on the date of the
filing of this suit, except at the time of filing of his affidavit
while examination-in-chief and at the time of marking of
the said document. However, nothing is furnished
thereafter, to show the very same amount is maintained,
which clearly shows that he did not have sufficient funds
to discharge his part of the contract.
- 40 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
45. It is trite law that the plaintiff to seek for
specific performance has to prove all along until the final
decision in the suit is made, that he was ready and willing
to perform his part of the contract and the plaintiff is duty-
bound to prove his readiness and willingness by adducing
cogent evidence to that effect even after the decree till it
is satisfied in execution ending with registration of sale
deed by paying balance sale consideration. The bank
passbook shows that though the agreement entered in
2012, the amount of Rs.90,00,000/- has been deposited in
2016 i.e., even after lapse of 3 months from September
1
2012, was nearly 3 / 2 years. This clearly shows that the
plaintiff was not having sufficient funds with him to
establish the ingredients of readiness and willingness. The
trial Court has failed to consider this important aspect of
the matter.
46. Our view on this aspect regarding proof of
readiness and willingness has again gained support from
the judgment of the Hon'ble Apex Court in the case of
- 41 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
U.N.Krishnamurthy stated supra, wherein the Hon'ble
Apex Court in paragraph Nos.22 to 34 and 40 to 50, has
held as under:
" 22. Section 16 of the Specific Relief Act, 1963, as it
stood at the material time (prior to amendment with
effect from 1-10-2018), inter alia, provides:
“ 16. Personal bars to relief .—Specific performance
of a contract cannot be enforced in favour of a person—
(a) who would not be entitled to recover
compensation for its breach; or
(b) who has become incapable of performing, or
violates any essential term of, the contract that on his
part remains to be performed, or acts in fraud of the
contract, or wilfully acts at variance with, or in
subversion of, the relation intended to be established by
the contract; or
(c) who fails to aver and prove that he has
performed or has always been ready and willing to
perform the essential terms of the contract which are to
be performed by him, other than terms the performance
of which has been prevented or waived by the
defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money,
it is not essential for the plaintiff to actually tender to
the defendant or to deposit in court any money except
when so directed by the court;
(ii) the plaintiff must aver performance of, or
readiness and willingness to perform, the contract
according to its true construction.”
23. Section 16 (c) of the Specific Relief Act, 1963
bars the relief of specific performance of a contract in
favour of a person, who fails to aver and prove his
readiness and willingness to perform his part of
- 42 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
contract. In view of Explanation (i) to clause (c) of
Section 16, it may not be essential for the plaintiff to
actually tender money to the defendant or to deposit
money in court, except when so directed by the Court,
to prove readiness and willingness to perform the
essential terms of a contract, which involves payment of
money. However, Explanation (ii) says the plaintiff must
aver performance or readiness and willingness to
perform the contract according to its true construction.
24. To aver and prove readiness and willingness to
perform an obligation to pay money, in terms of a
contract, the plaintiff would have to make specific
statements in the plaint and adduce evidence to show
availability of funds to make payment in terms of the
contract in time. In other words, the plaintiff would have
to plead that the plaintiff had sufficient funds or was in a
position to raise funds in time to discharge his obligation
under the contract. If the plaintiff does not have
sufficient funds with him to discharge his obligations in
terms of a contract, which requires payment of money,
the plaintiff would have to specifically plead how the
funds would be available to him. To cite an example, the
plaintiff may aver and prove, by adducing evidence, an
arrangement with a financier for disbursement of
adequate funds for timely compliance with the terms
and conditions of a contract involving payment of
money.
25. In Man Kaur v. Hartar Singh Sangha [Man
Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512 :
(2010) 4 SCC (Civ) 239] , this Court held that : (SCC p.
531, para 40)
“40. … A person who fails to aver and prove that he
has performed or has always been ready and willing to
perform the essential terms of the contract which are to
be performed by him (other than the terms the
performance of which has been prevented or waived by
the defendant) is barred from claiming specific
performance. Therefore, even assuming that the
defendant had committed breach, if the plaintiff fails to
- 43 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
aver in the plaint or prove that he was always ready and
willing to perform the essential terms of contract which
are required to be performed by him (other than the
terms the performance of which has been prevented or
waived by the plaintiff), there is a bar to specific
performance in his favour. Therefore, the assumption of
the respondent that readiness and willingness on the
part of the plaintiff is something which need not be
proved, if the plaintiff is able to establish that the
defendant refused to execute the sale deed and thereby
committed breach, is not correct. Let us give an
example. Take a case where there is a contract for sale
for a consideration of Rs 10 lakhs and earnest money of
Rs 1 lakh was paid and the vendor wrongly refuses to
execute the sale deed unless the purchaser is ready to
pay Rs 15 lakhs. In such a case there is a clear breach
by the defendant. But in that case, if the plaintiff did not
have the balance Rs 9 lakhs (and the money required
for stamp duty and registration) or the capacity to
arrange and pay such money, when the contract had to
be performed, the plaintiff will not be entitled to specific
performance, even if he proves breach by the
defendant, as he was not “ready and willing” to perform
his obligations.”
26. In Prem Raj v. DLF Housing Co. Construction (P)
Ltd. [Prem Raj v. DLF Housing Co. Construction (P) Ltd.,
1968 SCC OnLine SC 151 : AIR 1968 SC 1355] cited by
Mr Venugopal, this Court speaking through Ramaswamy,
J. held that : (AIR p. 1357, para 5)
“5. … It is well settled that in a suit for specific
performance the plaintiff should allege that he is ready
and willing to perform his part of the contract.…”
and if the fact is traversed, he is required to prove a
continuous readiness and willingness from the date of
the contract to the time of the hearing, to perform the
contract on his part. For such conclusion the learned
Judge relied upon the opinion of Lord Blanesburgh,
in Ardeshir Mama v. Flora Sassoon [Ardeshir
- 44 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 :
(1927-28) 55 IA 360 at p. 372 : AIR 1928 PC 208] .
27. In DLF Housing Co. Construction (P) Ltd. [Prem
Raj v. DLF Housing Co. Construction (P) Ltd., 1968 SCC
OnLine SC 151 : AIR 1968 SC 1355] , in the absence of
an averment on the part of the plaintiff in the plaint,
that he was ready and willing to perform his part of the
contract, it was held that the plaintiff had no cause of
action so far as the relief for specific performance was
concerned. In this case, of course, there is an averment
in the plaint that the respondent-plaintiff was all along
ready and willing to perform his obligations under the
contract. The question is whether the respondent-
plaintiff had proved his readiness and willingness to
perform his obligations under the contract.
28. In N.P. Thirugnanam v. R. Jagan Mohan
Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995)
5 SCC 115] , this Court reiterated that Section 16(c) of
the Specific Relief Act, 1963 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 were to be performed by
him other than those terms, the performance of which
has been prevented or waived by the defendant. In N.P.
Thirugnanam [N.P. Thirugnanam v. R. Jagan Mohan
Rao, (1995) 5 SCC 115] this Court said that the
continuous readiness and willingness on the part of the
plaintiff was a condition precedent for grant of the relief
of specific performance.
29. This Court, in effect, held that for determining
whether the plaintiff was ready and willing to perform
his part of the agreement it is necessary for the Court to
consider the conduct of the plaintiff prior and
subsequent to filing the suit for specific performance.
The relevant part of the judgment is extracted
hereinbelow : (N.P. Thirugnanam case [N.P.
Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC
115] , SCC pp. 117-18, para 5)
- 45 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
“5. … Section 16(c) of the Act envisages that plaintiff
must plead and prove that he had performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than those terms the performance of which has
been prevented or waived by the defendant. The
continuous readiness and willingness on the part of the
plaintiff is a condition precedent to grant the relief of
specific performance. This circumstance is material and
relevant and is required to be considered by the court
while granting or refusing to grant the relief.”
30. In Umabai v. Nilkanth Dhondiba Chavan
[Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC
243] , this Court held that a finding as to whether the
plaintiffs were all along and still ready and willing to
perform their part of the contract, was a mandatory
requirement under Section 16(c) of the Specific Relief
Act. The Court would necessarily have to arrive at the
finding that the plaintiff all along were, and still are
ready and also willing to perform their part of the
contract, taking into account the entirety of the
pleadings as also the evidence brought on record. To
quote this Court : (SCC p. 258, para 38)
“38. … ‘5. … So far these being a plea that they were
ready and willing to perform their part of the contract is
there in the pleading, we have no hesitation to conclude,
that this by itself is not sufficient to hold that the
appellants were ready and willing in terms of Section
16(c) of the Specific Relief Act. This requires not only
such plea but also proof of the same. Now examining
the first of the two circumstances, how could mere filing
of this suit, after exemption was granted be a
circumstance about willingness or readiness of the
plaintiff. This at the most could be the desire of the
plaintiff to have this property. It may be for such a
desire this suit was filed raising such a plea. But Section
16(c) of the said Act makes it clear that mere plea is not
sufficient, it has to be proved.’ [ Ed. : As observed
in Pushparani S. Sundaram v. Pauline Manomani James,
- 46 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
(2002) 9 SCC 582, p. 584, para 5.] ”
(emphasis supplied)
31. In K.S. Vidyanadam v. Vairavan [K.S.
Vidyanadam v. Vairavan, (1997) 3 SCC 1] , B.P. Jeevan
Reddy, J. said that grant of the relief of specific
performance is discretionary and the Court is not bound
to grant it. This Court further held that though time is
not of essence to a contract relating to transfer of
property, such contracts need to be completed within a
reasonable time period. Thus, the time element cannot
be completely ignored.
32. In a suit for specific performance of a contract,
the Court is required to pose unto itself the following
questions, namely:
32.1. Whether there is a valid agreement of sale
binding on both the vendor and the vendee.
32.2. Whether the plaintiff has all along been and
still is ready and willing to perform his part of the
contract as envisaged under Section 16(c) of the
Specific Relief Act, 1963.
33. There is a distinction between readiness and
willingness to perform the contract and both ingredients
are necessary for the relief of specific performance.
In Acharya Swami Ganesh Dassji v. Sita Ram
Thapar [Acharya Swami Ganesh Dassji v. Sita Ram
Thapar, (1996) 4 SCC 526] cited by Mr Venugopal, this
Court said that there was a difference between
readiness and willingness to perform a contract. While
readiness means the capacity of the plaintiff to perform
the contract which would include his financial position,
willingness relates to the conduct of the plaintiff. The
same view was taken by this Court
in Kalawati v. Rakesh Kumar [Kalawati v. Rakesh
Kumar, (2018) 3 SCC 658 : (2018) 2 SCC (Civ) 609] .
34. Even in a first appeal, the first appellate court is
duty-bound to examine whether there was continuous
readiness and willingness on the part of the plaintiff to
perform the contract. This proposition finds support
- 47 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
from Balraj Taneja v. Sunil Madan [Balraj
Taneja v. Sunil Madan, (1999) 8 SCC 396] and H.P.
Pyarejan v. Dasappa [H.P. Pyarejan v. Dasappa, (2006)
2 SCC 496] where this Court approved the views taken
by the Privy Council in Ardeshir Mama v. Flora
Sassoon [Ardeshir Mama v. Flora Sassoon, 1928 SCC
OnLine PC 43 : (1927-28) 55 IA 360 at p. 372 : AIR
1928 PC 208] ."
35.xxx
36.xxx
37.xxx
38.xxx
39.xxx
40. In K.S.Vidyanadam v. Vairavan [K.S.
Vidyanadam v. Vairavan, (1997) 3 SCC 1] this Court
held : (SCC p. 7, para 10)
“10. It has been consistently held by the courts in
India, following certain early English decisions, that in
the case of agreement of sale relating to immovable
property, time is not of the essence of the contract
unless specifically provided to that effect. The period of
limitation prescribed by the Limitation Act for filing a suit
is three years. From these two circumstances, it does
not follow that any and every suit for specific
performance of the agreement (which does not provide
specifically that time is of the essence of the contract)
should be decreed provided it is filed within the period of
limitation notwithstanding the time-limits stipulated in
the agreement for doing one or the other thing by one
or the other party. That would amount to saying that the
time-limits prescribed by the parties in the agreement
have no significance or value and that they mean
nothing. Would it be reasonable to say that because
time is not made the essence of the contract, the time-
limit(s) specified in the agreement have no relevance
and can be ignored with impunity? It would also mean
denying the discretion vested in the court by both
- 48 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
Sections 10 and 20. As held by a Constitution Bench of
this Court in Chand Rani v. Kamal Rani [Chand
Rani v. Kamal Rani, (1993) 1 SCC 519] : (SCC p. 528,
para 25)
‘25. … it is clear that in the case of sale of
immovable property there is no presumption as to time
being the essence of the contract. Even if it is not of the
essence of the contract the Court may infer that it is to
be performed in a reasonable time if the conditions are
(evident?):
(1) from the express terms of the contract;
(2) from the nature of the property; and
(3) from the surrounding circumstances, for
example : the object of making the contract.’
In other words, the court should look at all the
relevant circumstances including the time-limit(s)
specified in the agreement and determine whether its
discretion to grant specific performance should be
exercised.”
41. In Azhar Sultana v. B. Rajamani [Azhar
Sultana v. B. Rajamani, (2009) 17 SCC 27 : (2011) 1
SCC (Civ) 761] this Court held : (SCC pp. 35-36, paras
28 & 35)
“28. … The court, keeping in view the fact that it
exercises a discretionary jurisdiction, would be entitled
to take into consideration as to whether the suit had
been filed within a reasonable time. What would be a
reasonable time would, however, depend upon the facts
and circumstances of each case. No hard-and-fast law
can be laid down therefor. The conduct of the parties in
this behalf would also assume significance.
*
35. We, therefore, are of the opinion that interest
of justice would be subserved if this Court refuses to
exercise its discretionary jurisdiction in terms of Section
20 of the Act, directing the defendant to pay a sum of Rs
60,000 to the plaintiff which sum would include the
amount of advance paid by her.”
- 49 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
42. In Saradamani Kandappan [Saradamani
Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18:
(2012) 2 SCC (Civ) 104] this Court reiterated that:
42.1. While exercising discretion in suits for
specific performance, the courts should bear in mind
that when the parties prescribed a time for taking
certain steps or for completion of the transaction, that
must have some significance and therefore time/period
prescribed cannot be ignored.
42.2. The courts will apply greater scrutiny and
strictness when considering whether purchaser was
ready and willing to perform his part of the contract.
42.3. 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. The three year period is
intended to assist the purchaser 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.
43. In Atma Ram v. Charanjit Singh [Atma
Ram v. Charanjit Singh, (2020) 3 SCC 311 : (2020) 2
SCC (Civ) 107] V. Ramasubramanian, J. speaking for
this Court made the following pertinent observation :
(SCC p. 316, para 9)
“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
- 50 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
said relief, will not be entitled to the discretionary relief
of specific performance.”
44. The respondent-plaintiff has relied upon the
notice dated 13-2-2003 and evidence of PW 2 and PW 3
to prove that he was always ready and willing to perform
his part of the contract. Even though it may be true that
the respondent-plaintiff had deposited the balance sale
consideration in court on 6-4-2010, it cannot be ignored
that such deposit was made by him seven years after
15-3-2003, being the date by which the sale had to be
concluded. No evidence has been adduced on behalf of
the respondent-plaintiff as to how the respondent-
plaintiff was in a position to pay or make arrangements
for payment of the balance sale consideration within
time. The courts below also erred in not adjudicating
upon this vital issue except to make a sweeping
observation that, given that the respondent-plaintiff was
a businessman he had sources to arrange the balance
funds. Careful study of balance sheet dated 31-3-2003
of the respondent-plaintiff would demonstrate that he
did not have sufficient funds to discharge his part of
contract.
45. It is settled law that for relief of specific
performance, the plaintiff has to prove that all along and
till the final decision of the suit, he was ready and willing
to perform his part of the contract. It is the bounden
duty of the plaintiff to prove his readiness and
willingness by adducing evidence. This crucial facet has
to be determined by considering all circumstances
including availability of funds and mere statement or
averment in plaint of readiness and willingness, would
not suffice.
46. In this case, the respondent-plaintiff has
failed to discharge his duty to prove his readiness as
well as willingness to perform his part of the contract, by
adducing cogent evidence. Acceptable evidence has not
been placed on record to prove his readiness and
willingness. Further, it is clear from the respondent-
plaintiff's balance sheet that he did not have sufficient
- 51 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
funds to discharge his part of contract in March 2003.
Making subsequent deposit of balance consideration
after lapse of seven years would not establish the
respondent-plaintiff's readiness to discharge his part of
contract. Reliance may be placed on Umabai v. Nilkanth
Dhondiba Chavan [Umabai v. Nilkanth Dhondiba
Chavan, (2005) 6 SCC 243] wherein this Court speaking
through S.B. Sinha, J. held that deposit of amount in
court is not enough to arrive at conclusion that plaintiff
was ready and willing to perform his part of contract.
Deposit in court would not establish plaintiff's readiness
and willingness within meaning of Section 16(c) of
Specific Relief Act. The relevant part of the judgment is
reproduced below : (SCC p. 260, para 45)
“45. … Deposit of any amount in the court at the
appellate stage by the plaintiffs by itself would not
establish their readiness and willingness to perform their
part of the contract within the meaning of Section 16(c)
of the Specific Relief Act.”
47. It is, therefore, patently clear that the
respondent-plaintiff has failed to prove his readiness to
perform his part of contract from the date of execution
of the agreement till date of decree, which is a condition
precedent for grant of relief of specific performance. This
Court finds that the respondent-plaintiff was not entitled
to the relief of specific performance.
48. The respondent-plaintiff may have been
willing to perform his part of contract. It however
appears that he was not ready with funds. He was
possibly trying to buy time to discharge his part of
contract.
49. In Bhavyanath v. K.V. Balan [Bhavyanath
v. K.V. Balan, (2020) 11 SCC 790] cited by Mr Raju to
contend that the respondent-plaintiff was entitled to
relief of specific performance and the courts had rightly
granted such relief, the plaintiff had filed the suit for
specific performance three days after the last day for
execution of the sale deed. In this case however, the
respondent-plaintiff waited for nearly 3 years and filed
- 52 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
the suit for specific performance just before expiry of the
limitation period. Furthermore, in Bhavyanath v. K.V.
Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC 790]
the plaintiff had adduced cogent evidence to prove his
readiness and willingness to discharge his part of the
contract and to prove that he had sufficient funds to
discharge his obligation. No such evidence has been
adduced by the respondent-plaintiff in this case either to
show his readiness or to prove that sufficient funds were
available with him to enable him to discharge his part of
contract. Therefore, Bhavyanath v. K.V. Balan
[Bhavyanath v. K.V. Balan, (2020) 11 SCC 790] is of no
assistance to the respondent-plaintiff.
50. In view of foregoing, this Court is of the
considered opinion that the respondent-plaintiff was not
entitled to the relief of specific performance. The trial
court and the High Court erred both in law and on facts
in granting such relief.
In these circumstances, we answer point Nos.1, 2
and 4 accordingly against the plaintiff and in favour of
defendant.
47. Now, the fact remains regarding the refund of
the amount. The defendant in this case has not denied the
fact of receipt of Rs.5,00,000/-. But his contention is that
it is a loan transaction, which we have declined to accept.
The defendant has taken the sum of Rs.5,00,000/- way
back in the year 2012. Now we are in 2026. He is also in
- 53 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
possession of the property all along. It is also forthcoming
from the record that in lieu of acquisition of his land,
another land of same extent has been allotted in his
favour. In these circumstances, he is bound to refund the
amount with a reasonable interest, which shall not be less
than 12% per annum. Accordingly, we proceed to pass the
following:
ORDER
i. The appeal is allowed-in-part .
ii. The judgment and decree dated 11.09.2018
passed by the Senior Civil Judge and Principal
JMFC, Tarikere, directing the defendant to
execute the registered sale deed within 3 months
from the date of judgment after receiving
balance sale consideration of Rs.87,00,000/-
from the plaintiff, is set-aside and modified to
that of refund of advance amount of
Rs.5,00,000/- along with 12% interest per
- 54 -
NC: 2026:KHC:18152-DB
RFA No. 2168 of 2018
HC-KAR
annum from the date of agreement dated
06.09.2012, till the same is deposited.
iii. Any failure would entail plaintiff to file execution
for realization of the amount ordered.
iv. No order as to cost.
Sd/-
(D K SINGH)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
PK
List No.: 1 Sl No.: 3
ct-vn.