Tushar Agrawal vs Ganesh Prasad

A.F.R.
Judgment reserved on. 22.04.2026
Judgment delivered on. 06.07.2026
Neutral Citation No. - 2026:AHC:133431
Court No. - 73
Case :- FIRST APPEAL No. – 388 of 2025
Appellant :- Tushar Agrawal
Respondent :- Ganesh Prasad
Counsel for Appellant :- Shakti Shanker Tiwari, Subhash Chandra Tiwari, Umesh
Chandra Verma
Counsel for Respondent :- Ravish Chandra Srivastava
Hon'ble Sandeep Jain, J.
1. The instant appeal has been preferred by the defendant under
Section 96 CPC against the impugned judgment and decree dated
11.3.2025 passed by the Court of Civil Judge(Senior Division)
Bhadhoi, Gyanpur in O.S. no. 9 of 2022 Ganesh Prasad vs. Tushar
Agrawal, whereby the plaintiffs suit for the specific relief of
registered agreement to sell dated 30.12.2019 has been decreed.
Plaint case
2. The plaintiff/respondent Ganesh Prasad filed O.S. no. 9 of 2022
against the defendant/appellant with the averments that the defendant
is the owner in possession of 2 storeyed building bearing house no.1,
facing Gyanpur Road, area 2184 ft² or 202.973 m² constructed on
Arazi no.1, situate in village Poore Gulab(out of town), Pargana
Bhadohi, Tehsil Gyanpur, District Sant Ravidas Nagar, the full details
of which were described at the foot of the plaint, which is hereinafter
referred to as the 'house'. It is the case of the plaintiff that the
defendant was in need of money for increasing his business and for
personal needs, hence he decided to sell the above house with land
and constructions to the plaintiff. The defendant approached the
plaintiff and requested him to purchase the said house which was
agreed to be sold by the defendant for a consideration of 30 lakhs
₹
only, out of which a sum of 20 lakhs was to be paid as earnest
₹
1

money, so as to enable the defendant to meet his immediate financial
requirements and it was agreed that the sale deed shall be executed by
the defendant after receiving the balance consideration of 10 lakhs.
₹
3. It was further averred by the plaintiff that in pursuance of the
above agreement, a registered agreement to sell was executed by the
defendant in favour of the plaintiff on 30.12.2019 which was also
registered in the office of sub-registrar, Gyanpur, Bhadohi in Bahi
no.1,Zild no. 3053, at pages 103 – 124, at serial no. 4288 on
30.12.2019. It was further averred that the consideration of 20 lakhs
₹
was paid through cheque no. 223569 dated 30.12.2019 drawn on
Indian Bank, Branch Lahurabir, Varanasi at the time of execution of
the agreement to sell by the plaintiff to the defendant. It was further
averred that thereafter, the plaintiff personally met the defendant as
per his assurance and requested him to execute and register the sale
deed, but no heed was paid by the defendant.
4. It was further averred that when inspite of the lapse of considerable
period, the defendant did not express his readiness for execution and
registration of sale deed , then after waiving previous notices dated
4.5.2021 and 23.8.2021, the plaintiff sent his last registered notice on
11.9.2021 to the defendant on his residential address as well as his
business address by registered post requesting him to execute and
register the sale deed, which was personally served upon the
defendant on 14.9.2021, but the defendant failed to fulfil the terms of
the agreement.
5. It was further averred that when the plaintiff came to know that the
defendant was negotiating for sale of the house with others, then the
plaintiff was compelled to file the suit for specific performance of the
registered agreement to sell. It was further averred that the plaintiff
was and is still ready and willing to purchase the disputed premises as
agreed upon in accordance with the terms and conditions of the
2

registered agreement to sell and to pay the balance amount of 10
₹
lakhs to the defendant at the time of execution and registration of the
sale deed.
6. In view of the above backdrop, the plaintiff claimed the following
reliefs against the defendant:-
(A)That by means of a decree of specific performance of contract of
sale the defendant be directed to execute and register the sale deed in
respect of the 2 storeyed building bearing house no.1, facing Gyanpur
Road, area 2184 ft² or 202.973 m² constructed on Arazi no.1, situate
in village Poore Gulab(out of town), Pargana Bhadohi, Tehsil
Gyanpur, District Sant Ravidas Nagar, the full details of which were
described at the foot of the plaint, as per the terms and conditions of
registered agreement of sale deed dated 30.12.2019 on receiving of
the balance amount of 10 lakhs in favour of the plaintiff within the
₹
time to be fixed by the court and the plaintiff be put in the actual
physical possession thereof failing which, the court may be pleased to
execute and register the sale deed on behalf of the defendant in favour
of the plaintiff and the plaintiff be put in actual possession over the
property detailed and described below.
(B)That the cost of the suit be decreed in favour of the plaintiff as
against the defendant.
(C)That any other relief to which the plaintiff is found entitled in the
opinion of the court the same also be passed in favour of the plaintiff
as against the defendant.
Written statement of the defendant
7. The defendant Tushar Agrawal in his written statement denied the
plaint averments. It was averred that the plaintiff is in the business of
silver and the defendant obtains his silver from the plaintiff, and
3

thereafter, sells it, in this way, since the year 2016, business was
going on between them. It was further averred that the relationship of
plaintiff and defendant started in the year 2013, when the defendants
father Narendra Kumar was alive, there was a mutual trust between
the plaintiff and defendant due to which the defendant, trusted the
plaintiff.
8. It was further averred that the defendant is having just one
residential house, in which his shop is also situated, besides this
house, the defendant has no other house to reside. It was specifically
averred that neither any conversation ever took place between him
and the plaintiff for selling his house nor he executed any agreement
to sell on 30.12.2019 in favour of the plaintiff regarding his house. It
was further specifically averred that neither the plaintiff gave him
consideration of 20 lakhs through cheque no. 223569 dated
₹
30.12.2019 drawn on Indian Bank, branch Lahurabir nor the above
cheque was encashed in plaintiffs bank account. It was further
averred that the defendant was not having any financial necessity so
as to sell his house.
9. It was further averred that the disputed house was valued not less
than 2 crores, and in order to usurp his house, the plaintiff has
₹
managed to get fraudulently executed from him, in collusion with the
scribe and witnesses, the alleged agreement to sell dated 30.12.2019,
by showing the disputed house to be valued at only 30 lakhs,
₹
whereas at that time, it was valued not less than 2 crores. It was
₹
specifically averred that the defendant never executed the alleged
agreement to sell dated 30.12.2019. It was also specifically averred
that he never received any legal notice dated 11.9.2021, allegedly sent
by the plaintiff. It was also averred that the defendant was not
negotiating to sell his sole house to anyone. The plaintiff was not
having any cause of action to file the instant suit.
4

10. It was further averred by the defendant that he used to purchase,
after making payment to the plaintiff, raw silver from the plaintiff,
and after refining it, used to sell the refined silver to the plaintiff, after
receiving its payment from the plaintiff. It was further averred that
taking advantage of the above business relations, the plaintiff has
fabricated a forged and fraudulent agreement to sell dated
30.12.2019, in collusion with the scribe, witnesses and sub-registrar,
which was not binding upon the defendant, which is a void document.
11. It was further averred that the plaintiff 's suit was premature, was
also barred by Section 16 and 20 of the Specific Relief Act. It was
also averred that the defendant neither negotiated nor had any
conversation with Maneesh Kumar Jaiswal for selling his house nor
received 10 lakhs for selling it or has executed any agreement to
₹
sell. The plaintiff was never having the financial capacity to purchase
the disputed house. The plaintiff was nor is, ready and willing to
fulfil the terms of the agreement to sell. The suit has been improperly
valued and insufficient court fees has been paid by the plaintiff. The
plaintiff 's suit was not legally maintainable and was liable to be
dismissed with special costs under Section 35-A CPC.
Issues framed by the trial court
12. The following issues were framed by the trial court (English
translation):-
(i)Whether the plaintiff is entitled to specifically enforce the
agreement to sell dated 30.12.2019 ? OPP
(ii)Whether the plaintiff negotiated to purchase the disputed house for
a consideration of 30 lakhs, out of which 20 lakhs was paid as
₹ ₹
earnest money to the defendant ? OPP
(iii)Whether the suit is under valued? OPD
(iv)Whether the court fees paid by the plaintiff is insufficient ? OPD
5

(v)Whether the plaintiff 's suit is barred by Section 16 and 20 of the
Specific Relief Act ? OPD
(vi)Whether the defendant is entitled to special costs under Section 35
CPC from the plaintiff ? OPD
(vii)Whether the suit is bad for non-joinder of necessary party ? OPD
(viii)Whether the plaintiff is entitled to any relief ?
Documentary evidence of plaintiff
13. The plaintiff has filed the original agreement to sell dated
30.12.2019, the copy of legal notice dated 11.9.2021, original postal
receipts, the certified copy of his bank account statement in Indian
Bank, certified copy of the sale deeds dated 8.1.2016, 20.3.2017,
27.11.2018, 29.4.2019, the certified copy of the agreement to sell
executed by the defendant in favour of Maneesh Kumar Jaiswal, the
bank account statement of M/s Ganesh Jewellers, the report of the
handwriting expert, etc.
Documentary evidence of defendant
14. Certified copy of sale deeds, certified copy of khatauni, etc.
Oral evidence of the parties
15. The plaintiff Ganesh Prasad has examined himself as PW-1,
Shyamchandra as PW-2 and handwriting expert Mohd. Shahrukh as
PW-3, whereas, the defendant Tushar Agrawal has examined himself
as DW-1.
Reasoning of the trial court
Issue no. 1 and 2
16. The trial court concluded that the defendant executed an
agreement to sell dated 30.12.2019 in favour of plaintiff for a
6

consideration of 30 lakhs out of which 20 lakhs was paid by the
₹ ₹
plaintiff to the defendant as earnest money. The trial court also
concluded that no fraud was committed by the plaintiff upon the
defendant, taking advantage of business relations between them. The
trial court also concluded that the plaintiff always remained ready and
willing to get the sale deed executed in his favour. Both the issues
were decided in favour of the plaintiff.
Issue no.3 and 4
17. The trial court concluded that the suit has been properly valued by
the plaintiff at 30 lakhs and sufficient court fees of 2,25,410/- was
₹ ₹
paid by the plaintiff. Both the issues were decided in favour of the
plaintiff vide order dated 7.7.2022.
Issue no. 5
18. The trial court concluded that the plaintiff's suit was not barred by
Section 16 and 20 of the Specific Relief Act.
Issue no. 6 and 7
19. The trial court concluded that the defendant was not entitled to
special costs from the plaintiff under Section 35 CPC. It also
concluded that the suit was not bad for non-joinder of necessary
parties since the plaintiff has impleaded the necessary party in the
suit.
Issue no. 8
20. The trial court concluded that as per the agreement to sell dated
30.12.2019 the sale deed was to be executed within 3 years in favour
of the plaintiff after paying the balance sale consideration of 10
₹
lakhs but when the defendant, after receiving the legal notice from the
plaintiff, failed to execute the sale deed in favour of the plaintiff, then
7

the plaintiff was compelled to file a suit for specific performance of
the registered agreement to sell dated 30.12.2019, which was
perfectly legal. The trial court also concluded that the suit of the
plaintiff was not premature, which was filed within the three-year
duration fixed by the parties for specific performance of the
agreement to sell. This issue was decided in favour of the plaintiff.
21. Accordingly, the plaintiffs suit for the specific performance of the
registered agreement to sell dated 30.12.2019 was decreed and the
plaintiff was ordered to pay the remaining consideration of 10 lakhs
₹
to the defendant, and the defendant was directed to execute and
register the sale deed within 2 months in favour of the plaintiff and
also to hand over the possession of the disputed property to the
plaintiff. Aggrieved against which, the defendant has filed the instant
appeal under Section 96 CPC.
Submissions of learned counsel of the defendant appellant
22. Sri Pramod Jain learned Senior Counsel for the appellant
submitted that there was business relationship between the plaintiff
and the defendant since the year 2013. The defendant used to
purchase raw silver from the plaintiff and after refining it, used to sell
the refined silver to the plaintiff and taking advantage of this business
relationship, the plaintiff fraudulently got executed the disputed
agreement to sell from the defendant. He further submitted that the
defendant was only having one house in which he was residing with
his family and in which his shop/firm was also situated, hence the
defendant could not have sold this immovable property to the
plaintiff. He further submitted that the defendant was not having any
financial necessity/stringency to sell his property to the plaintiff.
23. Learned counsel further submitted that the defendant never went
to the sub-registrar office on 30.12.2019 to get the agreement to sell
8

executed and registered in favour of the plaintiff. He further
submitted that the alleged agreement mentions that cheque no.
223569 for 20 lakhs was given by the plaintiff to the defendant
₹
towards earnest money but the cheque was never encashed by the
defendant in his bank account, which implies that the consideration of
the alleged agreement was never paid by the plaintiff to the
defendant. He further submitted that the amount of 20 lakhs related
₹
to the business transactions which took place between the firms of the
plaintiff and the defendant, for sale – purchase of silver, which was
not the consideration of the disputed immovable property.
24. Learned counsel further submitted that from the recitals of the
legal notice given by the plaintiff to the defendant, it is apparent that
the plaintiff never remained ready and willing to perform the terms of
the alleged agreement. He submitted that it is mandatory to aver and
prove that the plaintiff always remained ready and willing, is ready
and willing and in future also, the plaintiff has to prove his
continuous readiness and willingness till decree is passed in his
favour. He submitted that the plaintiff has failed to comply with the
requirements of Section 16 of the Specific Relief Act.
25. Learned counsel further submitted that the suit was filed by the
plaintiff without proper court fees, which was subsequently made
good, which suo-motu proves that the plaintiff was lacking the
financial capacity to pay 10 lakhs to the defendant and was not
₹
ready and willing to fulfil the terms of the agreement.
26. Learned counsel further submitted that the market value of the
disputed property was more than 2 crores hence there was no
₹
occasion for the defendant to sell it for a paltry consideration of only
30 lakhs. He submitted that in these circumstances the benefit of
₹
Section 20 of the Specific Relief Act should be given to the defendant
and the plaintiff may not be granted the primary relief of specific
9

performance of the agreement to sell and he be returned earnest
money with interest. With these submissions, it is prayed that the
appeal be allowed.
27. In support of his contentions, learned counsel has relied upon the
following case law-
(i)Ram Singh vs.Sughar Singh 2010 (83)ALR 547(All)
(ii)Smt.Veena Agarwal @Veena Garg vs.M/s Unjha Ayurvedic Pharmacy
& ors.2019 (1) ARC 221
(iii)Prem Kumar and others vs. Gurudev Singh and others Neutral
Citation No.2024:AHC: 193613
(iv)Sitaram and others vs. Radheshyam (2007)14 SCC 415
(v)Azhar Sultana vs. B.Rajamani and others (2009)17 SCC 27
(vi)C.S. Venkatesh vs.A.S.C.Murthy(Dead) through Lrs and others
(2020)3 SCC 280
(vii)R.Kandasamy(Dead) and ors. vs.T.R.K.Sarawathy and anr.(2025) 3
SCC 513
(viii)Shamsher Singh and others vs. Rajinder Kumar and others (2015)5
SCC 531
(ix)K.Nanjappa(Dead) by Lrs vs.R.A.Hameed Alias Ameersab (Dead) by
LRs and another (2016) 1 SCC 762
(x)Tulsi and others vs. Chandrika Prasad and others (2006) 8 SCC 322
(xi)Maharaj Singh and others vs. Karan Singh(Dead) by LRs and others
(2024) 8 SCC 83
(xii)K.Bhaskaran Nair vs. Habeeb Mohd.and others 2002 SCC OnLine
Ker 17
(xiii)Kunwar Surendra Bahadur Singh and others vs. Thakur Behari
Singh and others 1939 AIR(PC)117
28. Per contra, Sri Vijay Kumar Ojha learned counsel for the plaintiff
respondent submitted that the defendant was in necessity of money
for his personal requirements and for enhancing his business, hence
he willingly without any coercion, agreed to sell his house for a
consideration of 30 lakhs to the plaintiff, out of which, earnest
₹
10

money of 20 lakhs was paid by cheque no. 223569 by the plaintiff
₹
to the defendant, which was encashed by the defendant in his savings
account, which was proved by the documentary evidence submitted
by the plaintiff before the trial court.
29. Learned counsel further submitted that the agreement to sell
specifically mentions that the earnest money of 20 lakhs was given
₹
by the plaintiff to the defendant through cheque no. 223569 dated
30.12.2019 drawn on Indian Bank, Lahurabir branch, Varanasi and as
per the bank statement paper no. 31-C, the above amount was debited
on 3.1.2020 from the savings bank account of the plaintiff and
credited to the bank account of the defendant, which falsifies the
assertion of the defendant that he has not received the consideration
of the alleged agreement.
30. He further submitted that from the oral evidence of the defendant
it is proved that he went to the sub-registrar office willingly on
30.12.2019, and executed and got registered the disputed agreement
to sell in favour of the plaintiff, which was also proved from the oral
evidence of the plaintiff Ganesh Prasad PW-1,attesting witness
Shyamchandra PW-2 and handwriting expert PW-3. He further
submitted that the assertion of the defendant that the plaintiff got
fraudulently executed from him the agreement to sell, is false,
because neither any complaint in this regard was made to the police
or any administrative official nor any criminal complaint was filed in
the court. He further submitted that the defendant till date has not
taken any steps for getting the disputed agreement to sell cancelled.
He further submitted that prior to the disputed agreement to sell, the
defendant had got executed sale deed of his house in his favour from
his 2 brothers and had also facilitated execution of 3 sale deeds in
favour of his wife, hence it is improbable that he was not aware of the
procedures applicable and the formalities which are required to be
11

complied at the time of registration of the sale deed in the sub-
registrar office. Learned counsel further submitted that the assertion
of the defendant that he signed on the blank papers or his signature
was fraudulently obtained on the agreement to sell by the plaintiff, is
totally unbelievable and false, which has been rightly rejected by the
trial court.
31. Learned counsel further submitted that the plaintiff always
remained ready and willing to fulfil the terms of the agreement to sell
by paying the balance sale consideration of 10 lakhs to the
₹
defendant, and a legal notice dated 11.09.2021 in this regard was also
sent by the plaintiff to the defendant, which was duly received by the
defendant on 14.09.2021, and when the defendant failed to execute
the sale deed in favour of the plaintiff, then the plaintiff was
compelled to file the suit for specific performance of the agreement to
sell, which has been rightly decreed by the trial court in favour of the
plaintiff.
32. Learned counsel further submitted that the disputed agreement to
sell is a registered document, which has been proved in accordance
with law by the plaintiff, and there is a presumption also regarding its
due execution and registration, which has not been rebutted by the
defendant. The defendant could have examined another attesting
witness of the sale deed Arun Kumar Jaiswal in support of his
contentions, but this witness was not examined by the defendant.
33. Learned counsel further submitted that the disputed property was
never valued at 2 crores. The defendant has not filed any
₹
documentary evidence to prove that the disputed house was valued at
2 crores at the time of execution of agreement to sell.
₹
34. It was further submitted that the part consideration of the
agreement amounting to 20 lakhs was paid by the plaintiff through
₹
12

cheque to the defendant, which was deposited by the defendant in his
savings bank account, the receipt of which was also admitted by the
defendant DW-1 in his oral evidence. Learned counsel submitted that
the assertion of the defendant that the above consideration was
towards the business transactions between the plaintiff and the
defendant, is false. Learned counsel submitted that between
November 2019 and March 2020 only 4 business transactions took
place between plaintiff and the defendant, which was proved from the
bank account statement of the plaintiff's firm paper no.65-C. Besides
the above 4 transactions, no other business transaction ever took place
between the plaintiff and the defendant. The defendant could have
filed contra documentary evidence, but no such evidence was filed by
the defendant. Learned counsel submitted that if the consideration of
20 lakhs paid by the plaintiff to the defendant was towards business
₹
transactions that took place between the plaintiff and the defendant,
then the burden of proving this fact was upon the defendant, but no
evidence was led by the defendant to prove this fact.
35. It was further submitted that the business transactions between the
plaintiff and the defendant were recorded in the bank account
statement existing in the name of the firm of the plaintiff and
defendant, not in their personal savings account, which was also
loaded on the GST portal, which could have been proved by the
defendant by leading documentary evidence, but no such evidence
was led by the defendant before the trial court. Learned counsel
submitted that in view of the above, it cannot be presumed that the
consideration of 20 lakhs paid by the plaintiff to the defendant was
₹
towards the business transaction.
36. It was further submitted that the defendant was not willing to
execute the sale deed of the disputed house in favour of the plaintiff
because he had agreed to sell the disputed house for a consideration
13

of 50 lakhs to Manish Kumar Jaiswal, and an unregistered
₹
agreement to sell was also executed by defendant in favour of
Manish Kumar Jaiswal, a certified copy of which was also filed by
the plaintiff before the trial court, hence, the plaintiff was compelled
to give legal notice dated 11.9.2021 to the defendant and after the
defendant failed to execute the sale deed in favour of the plaintiff, the
plaintiff had no other option but to file the suit for the relief of
specific performance of the agreement against the defendant.
37. Learned counsel further submitted that as per the amended
provisions effective from 01.10.2018, the word ''aver'' has been
deleted from Section 16(c) of the Specific Relief Act, 1963. He
further submitted that now the grant of specific relief by the Court is
not discretionary, but mandatory. With these submissions, it was
prayed that the appeal is meritless and be dismissed.
38. In support of his contention, learned counsel has relied upon the
following case law:-
(i)B.Santoshamma and another vs. D.Sarala and another (2020)19 SCC
80
(ii)Prem Singh vs. Birbal (2006) 5 SCC 353
(iii)Sughar Singh vs. Hari Singh(Dead) through LRs and others (2021)
17 SCC 705
(iv)Parswanath Saha vs. Bandhana Modak(Das) and another 2024 INSC
1022
(v)Manjunath Anandappa Urf Shivappa Hanasi vs. Tammanasa & ors.
(2003) 10 SCC 390
(vi)P.Daivasigamani vs. S.Sambandan (2022)14 SCC 793
(vii)Syed Dastagir vs.T.R.Gopalakrishna Setty (1999) 6 SCC 337 (by 3
Judges)
(viii)M/s J.P. Builders and another vs. A.Ramadas Rao & anr.(2011) 1
SCC 429
(ix)Man Kaur (Dead) by Lrs vs.Hartar Singh Sangha (2010) 10 SCC 512
14

39. I have heard the learned counsel of both the sides, perused the
record of the trial court and the case law submitted by them.
Issues for determination before this Court
40. The following issues arise for determination before this Court :-
(A)Whether the defendant executed a registered agreement to sell dated
30.12.2019 in favour of the plaintiff ?
(B)Whether any consideration was paid by the plaintiff to the defendant
towards the execution of the agreement to sell in his favour?
(C)Whether the consideration paid by the plaintiff to the defendant was
related to the business transactions that took place between them?
(D)Whether the alleged agreement to sell was got fraudulently executed
by the plaintiff from the defendant taking advantage of the business
relationship between them ?
(E)Whether the plaintiff continuously remained ready and willing to
perform his part of the agreement to sell ?
(F) Whether the relief of specific performance of contract is still
discretionary, after the amendment in Specific Relief Act w.e.f
01.10.2018?
Analysis of case law submitted by the parties
By appellant:-
41. A Single Judge Bench of this Court in the case of Ram Singh
(supra) held that the use of the word ready alone may not be sufficient
compliance of the mandatory requirement of Section 16(c) of the
Specific Relief Act which postulates specific averment both with
regard to readiness and willingness. It was further held that the
essentials of pleadings are provided in Order 6 of CPC. Rule 3 of the
said Order stipulates that forms as prescribed shall be used for all
pleadings. It was further held that format of plaints for suits for
specific performance of an agreement are provided in Forms 47 and
48 of Appendix A to the CPC. The aforesaid forms clearly provide for
15

making an averment that the plaintiff has been ''and still is ready and
willing specifically to perform the agreement on his part '' or that '' the
plaintiff is still ready and willing to pay the purchase money of the
said property to the defendant ''. It was further held that the aforesaid
forms of the suit for specific performance as provided in Appendix A
to the CPC clearly demonstrate that the averment must be to the
effect that the plaintiff is always and is still '' ready and willing '' to
perform his part of the agreement, which is also a mandatory
requirement of Section 16(c) of the Act failing which no contract of
specific performance is enforceable. The aforesaid judgment has
subsequently been set aside by the Apex Court in the case of Sughar
Singh vs. Hari Singh(Dead) through LRs and others (2021) 17 SCC
705, hence, it no longer constitutes good law and cannot be regarded
as a binding precedent.
42. A Division Bench of this Court in the case of Smt.Veena Agarwal
@Veena Garg (supra),on facts, held that plaintiffs were throughout
not ready and willing to perform the essential terms of contract in
terms of Section 16(c) of the Specific Relief Act, because the dues of
the bank were cleared belatedly by them.
43. A Single Judge Bench of this Court in the case of Prem Kumar
(supra), where specific performance of an unregistered agreement to
sell dated 31.5.1977 was claimed by the plaintiff, held that since the
agreement to sell was mandatorily required to be registered in the
State of Uttar Pradesh w.e.f. 1.1.1977 hence, the relief of specific
performance cannot be granted of the above unregistered agreement
to sell. It was further held that the plaintiff failed to plead and prove
that he was continuously ready and willing to perform the terms of
the agreement.
44. The Apex Court in the case of Sitaram (supra) has held that the
basic principle behind Section 16(c) read with Explanation (ii) is that
16

any person seeking benefit of the specific performance of contract
must manifest that his conduct has been blemishless throughout
entitling him to the specific relief. The provision imposes a personal
bar. The Court is to grant relief on the basis of the conduct of the
person seeking relief. If the pleadings manifest that the conduct of the
plaintiff entitles him to get the relief on perusal of the plaint he should
not be denied the relief.
45. The Apex Court in the case of Azhar Sultana (supra) has held that
Section 16(c) of the Specific Relief Act postulates continuous
readiness and willingness on the part of the plaintiff and it is
condition precedent for obtaining a decree of specific performance of
a contract.
46. The Apex Court in the case of C.S. Venkatesh (supra) has held
that mere plea that plaintiff was ready to pay consideration, without
any material to substantiate this plea, cannot be accepted. It was
further held that it is not necessary for plaintiff to produce ready
money to establish its readiness and willingness to pay the
consideration, but it is mandatory on his part to prove that he had the
means to generate consideration amount within the time-frame
contemplated in the contract. On facts, it was held that the plaintiff
could neither establish his ability to pay the consideration amount nor
could prove his readiness and willingness to perform his part of the
contract, hence the rejection of suit for specific performance by the
trial court was upheld by the Apex Court.
47. The Apex Court in the case of R.Kandasamy(Dead) (supra), on
facts, held that there was no readiness and willingness on the buyers
part to pay the balance sale consideration and get the sale deed
executed and the buyer despite multiple reminders, did not come
forward for execution of the sale deed. It was also held that the buyer
was not having enough funds in her bank accounts to pay the
17

balance sale price and thus was not having the financial capacity to
perform her part of the contract. On above facts, the discretionary
relief of specific performance was not granted to the buyer.
48. The Apex Court in the case of Shamsher Singh (supra) on facts,
declined to grant decree of specific performance having regard to the
inequitable terms of agreement of sale which gave unfair advantage
to plaintiff over defendant.
49. The Apex Court in the case of K.Nanjappa(Dead) (supra) on facts,
declined to grant decree of specific performance in favour of the
plaintiff, because the disputed contract was written on a quarter sheet
of paper, and not on a proper stamp paper and was also written in
small letters.
50. The Apex Court in the case of Tulsi (supra) has held that Section
91 of the Evidence Act mainly forbids proving of the contents of a
writing otherwise than by writing itself and merely lays down the ''
best evidence rule''. It, however does not prohibit the parties to
adduce evidence in a case the deed is capable of being construed
differently to show how they understood the same. In this case it was
held that the transaction between the parties was a mortgage, not sale.
51. The Apex Court in the case of Maharaj Singh (supra) has held that
Section 91 and 92 of the Evidence Act do not prevent parties from
adducing evidence on the issue of whether the parties to the
documents had agreed to contract on the terms set forth in the
document. In this case, the original vendor had subsequently sold the
property to 3rd parties. In these facts, it was held that the subsequent
purchasers, who were not bona fide purchasers, can be directed to
execute the sale deed along with the original vendor and there was no
necessity to pray for the cancellation of the subsequent sale deeds. It
was further held that since the 2nd plaintiff was not interested in
18

getting the specific performance, the decree ought to have been
restricted to the undivided one-half share in the suit property in
favour of only the 1st plaintiff.
52. The Kerala High Court in the case of K.Bhaskaran Nair (supra)
has held that no oral evidence can be given to vary the terms of the
contract. But, the intention of the parties can be proved by oral
evidence and oral evidence can be given to show that the contract was
not intended to be acted upon.
53. The Privy Council in the case of Kunwar Surendra Bahadur Singh
(supra) has held that where one attesting witness was called to prove
execution of the mortgage deed and his evidence was rejected as
unreliable, then, further evidence of due execution and attestation is
necessary. It was further held that signatures of sub- registrar and
identifying witnesses affixed to registration endorsement admitting
execution of mortgage deed do not suffice as attestation unless made
in the presence of the executant. It was further held that endorsements
made at the time of registration are relevant only to the matter of
registration and do not prove due attestation under the Transfer of
Property Act.
By respondent:-
54. The Apex Court in the case of B.Santoshamma (supra) while
considering the provisions of the Specific Relief Act 1963, held as
under:-
67. The relief of specific performance of an agreement, was at all material
times, equitable, discretionary relief, governed by the provisions of the
Specific Relief Act, 1963, hereinafter referred to as the SRA. Even
though the power of the court to direct specific performance of an
agreement may have been discretionary, such power could not be
arbitrary. The discretion had necessarily to be exercised in accordance
with sound and reasonable judicial principles.
19

68. Section 10 of the SRA as it stood prior to its amendment with effect
from 1-10-2018 provided:
“10. Cases in which specific performance of contract enforceable.—
Except as otherwise provided in this Chapter, the specific
performance of any contract may, in the discretion of the court, be
enforced—
(a) when there exists no standard for ascertaining actual damage
caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in
money for its non-performance would not afford adequate relief.
Explanation.—Unless and until the contrary is proved, the court shall
presume—
(i) that the breach of a contract to transfer immovable property cannot
be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be
so relieved except in the following cases—
(a) where the property is not an ordinary article of commerce, or is of
special value or interest to the plaintiff, or consists of goods which are
not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee
of the plaintiff.”
69. After amendment with effect from 1-10-2018, Section 10 of the SRA
provides:
“10. Specific performance in respect of contracts.—The specific
performance of a contract shall be enforced by the court subject to
the provisions contained in sub-section (2) of Section 11, Section 14
and Section 16.”
70. After the amendment of Section 10 of the SRA, the words “specific
performance of any contract may, in the discretion of the court, be
enforced” have been substituted with the words “specific performance
of a contract shall be enforced subject to …”. The court is, now obliged
to enforce the specific performance of a contract, subject to the
provisions of sub-section (2) of Section 11, Section 14 and Section 16
of the SRA. Relief of specific performance of a contract is no longer
discretionary, after the amendment.”
55. The Apex Court in the case of Prem Singh (supra) has held that
20

there is a presumption that a registered document is validly executed.
A registered document, therefore, prima-facie would be valid in law.
The onus of proof, thus, would be on a person who leads evidence to
rebut the presumption.
56. The Apex Court in the case of Sughar Singh (supra) has relied on
the law laid down by the Apex Court in the case of Syed Dastagir
(supra) (by 3 Judges) and has held as under :-
“24. Even otherwise it is required to be noted that as such there were
concurrent findings of fact recorded by the learned trial court as well as
the learned first appellate court on readiness and willingness on the part of
the plaintiff, which were on appreciation of evidence on record. Therefore,
in exercise of powers under Section 100CPC the High Court ought not to
have interfered with such findings of fact unless such findings are found to
be perverse. Having gone through the findings recorded by the learned
trial court as well as the learned first appellate court on readiness and
willingness on the part of the plaintiff, we are of the opinion that findings
recorded cannot be said to be perverse and/or contrary to the evidence on
record. On the contrary, the High Court has ignored the necessary aspects
on readiness and willingness which are stated hereinabove including the
conduct on the part of the parties.
25. Even the observations made by the High Court that Forms 47 and 48
of the Appendix A to the Code of Civil Procedure provide for making an
averment that the plaintiff has been “and still is ready and willing
specifically to perform the agreement on his part” or that “the plaintiff is
still ready and willing to pay the purchase money of the said property to
the defendant” and that “there is non-compliance of Section 16(c) of the
Specific Relief Act and the plaint does not even contain any averment that
the plaintiff ever required Defendant 1 to attend the office of the Sub-
Registrar to execute the sale deed within time agreed are too technical in
the facts and circumstances of the case. The overall circumstances and the
conduct on the part of the parties are relevant consideration for the
purpose of deciding the aforesaid issues and the prayer of the plaintiff in
whose favour the execution of the agreement to sell has been held to be
proved. The High Court has given unnecessary stress on the word “still”.
26. Even while proving the readiness and willingness the plaintiff is not
required to make any averment that the plaintiff required executant of the
agreement to sell to attend the office of the Sub-Registrar to execute the
sale deed within the time agreed. Even as held by this Court in C.S.
Venkatesh v. A.S.C. Murthy [(2020) 3 SCC 280 : (2020) 2 SCC (Civ) 90]
to adjudge whether the plaintiff is ready and willing to perform his part of
21

contract, the Court must take into consideration the conduct of the plaintiff
prior and subsequent to filing of the suit along with other attending
circumstances in a particular case. It is also further observed that whether
the plaintiff was ready and was always ready to perform his part of
contract may be inferred from the facts and circumstances of a particular
case. It is further observed that it is not necessary for the plaintiff to
produce ready money but it is mandatory on his part to prove that he has
means to generate consideration amount.
27. In the present case, even it was not the case on behalf of the defendants
and even there is no finding by the High Court that the plaintiff was not
having any means to generate consideration amount. It is required to be
noted that as per the last extension and the document executed the balance
amount of sale consideration i.e. Rs 16,000 was to be paid at the time of
execution of the sale deed and earlier out of Rs 56,000 of total sale
consideration, Rs 40,000 was already paid and there were two extensions
at the instance of the original Defendant 1 who was his father-in-law.
28. Now, so far as the finding recorded by the High Court and the
observations made by the High Court on Section 20 of the Act and the
observation that even if the agreement is found to be duly executed and the
plaintiff is found to be ready and willing to perform his part of the
agreement, grant of decree of specific performance is not automatic and it
is a discretionary relief is concerned, the same cannot be accepted and/or
approved. In such a case, many a times it would be giving a premium to
the dishonest conduct on the part of the defendant executant of the
agreement to sell. Even the discretion under Section 20 of the Act is
required to be exercised judiciously, soundly and reasonably. The plaintiff
cannot be punished by refusing the relief of specific performance despite
the fact that the execution of the agreement to sell in his favour has been
established and proved and that he is found to be always ready and willing
to perform his part of the contract. Not to grant the decree of specific
performance despite the execution of the agreement to sell is proved; part
sale consideration is proved and the plaintiff is always ready and willing to
perform his part of the contract would encourage the dishonesty. In such a
situation, the balance should tilt in favour of the plaintiff rather than in
favour of the defendant executant of the agreement to sell, while
exercising the discretion judiciously.
29. For the aforesaid, even amendment to the Specific Relief Act, 1963 by
which Section 10(a) has been inserted, though may not be applicable
retrospectively but can be a guide on the discretionary relief. Now the
legislature has also thought it to insert Section 10(a) and now the specific
performance is no longer a discretionary relief. As such the question
whether the said provision would be applicable retrospectively or not
and/or should be made applicable to all pending proceedings including
appeals is kept open. However, at the same time, as observed hereinabove,
the same can be a guide.
22

30. Even otherwise it is required to be noted that as such on applicability
of Section 20 of the Act, no issue was framed either by the learned trial
court or by the learned first appellate court or even by the High Court. The
same has been dealt with by the High Court for the first time in a second
appeal under Section 100CPC. Even otherwise no cogent reasons have
been given as to why the decree of specific performance shall not be
passed in favour of the plaintiff.”
57. The Apex Court in the case of Parswanath Saha (supra) has held
that the question of hardship as mentioned in Section 20 of the
Specific Relief Act 1963 is to be adjudged in the facts and
circumstances of each case. It was further held that mere rise in price
subsequent to the date of the contract or inadequacy of price is not to
be treated as a hardship entertaining refusal of specific performance
of the contract. Further, the hardship involved should be one not
foreseen by the party and should be collateral to the contract. In sum,
it is not just one factor or two, that is relevant for consideration. But it
is the sum total on various factors which is required to enter into the
judicial verdict. It was further held that hardship has to be determined
with reference to the circumstances existing at the time of the
contract, except where the hardship has been caused from an act of
the plaintiff subsequent to the contract.
58. The Apex Court in the case of Manjunath Anandappa Urf
Shivappa Hanasi (supra) has reiterated that a plaintiff in a suit for
specific performance of contract not only must raise a plea that he
had all along been and even on the date of filing of suit was ready and
willing to perform his part of contract, but also prove the same. Only
in certain exceptional situation where although in letter and spirit, the
exact words had not been used but readiness and willingness can be
culled out from reading all the averments made in the plaint as a
whole coupled with the materials brought on record at the trial of the
suit, to the said effect, the statutory requirement of Section 16(c) of
the Specific Relief Act may be held to have been complied with.
23

59. The Apex Court in the case of P.Daivasigamani (supra) has held
that readiness and willingness are not one, but two separate elements.
Readiness means the capacity of the plaintiff to perform the contract,
which would include the financial position to pay the purchase price.
Willingness refers to the intention of the plaintiff as a purchaser to
perform his part of the contract. Willingness is inferred by
scrutinising the conduct of the plaintiff/purchaser, including attending
circumstances. Continuous readiness and willingness on the part of
the plaintiff/purchaser from the date the balance sale consideration
was payable in terms of the agreement to sell, till the decision of the
suit, is a condition precedent for grant of relief of specific
performance. It has also relied on the interpretation made by the Apex
Court previously in Syed Dastagir's case whereby the plea of ''
readiness and willingness to perform '' was interpreted. It is also held
that the amending act No. 18 of 2018 whereby the provisions of the
Specific Relief Act were amended with effect from 1.10.2018 are
prospective in nature which cannot apply to those transactions that
took place prior to its coming into force.
60. The Apex Court in the case of Syed Dastagir (supra) has
construed the plea of '' readiness and willingness to perform '' in
Section 16(c) of the Specific Relief Act.
61. The Apex Court in the case of M/s J.P. Builders (supra) has held
as under:-
“22. The words “ready” and “willing” imply that the person was prepared
to carry out the terms of the contract. The distinction between “readiness”
and “willingness” is that the former refers to financial capacity and the
latter to the conduct of the plaintiff wanting performance. Generally,
readiness is backed by willingness.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] at
SCC para 5, this Court held: (SCC pp. 117-18)
“5. … Section 16(c) of the Act envisages that the plaintiff must plead
24

and prove that he had performed or has always been ready and willing
to perform the essential terms of the contract which are to be performed
by him, other than those terms the performance of which has been
prevented or waived by the defendant. The continuous readiness and
willingness on the part of the plaintiff is a condition precedent to grant
the relief of specific performance. This circumstance is material and
relevant and is required to be considered by the court while granting or
refusing to grant the relief. If the plaintiff fails to either aver or prove
the same, he must fail. To adjudge whether the plaintiff is ready and
willing to perform his part of the contract, the court must take into
consideration the conduct of the plaintiff prior and subsequent to the
filing of the suit along with other attending circumstances. The amount
of consideration which he has to pay to the defendant must of necessity
be proved to be available. Right from the date of the execution till date
of the decree he must prove that he is ready and has always been
willing to perform his part of the contract. As stated, the factum of his
readiness and willingness to perform his part of the contract is to be
adjudged with reference to the conduct of the party and the attending
circumstances. The court may infer from the facts and circumstances
whether the plaintiff was ready and was always ready and willing to
perform his part of the contract.”
24. In P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649] this Court
observed: (SCC p. 654, paras 19 and 21)
“19. It is indisputable that in a suit for specific performance of contract
the plaintiff must establish his readiness and willingness to perform his
part of contract. The question as to whether the onus was discharged
by the plaintiff or not will depend upon the facts and circumstances of
each case. No straitjacket formula can be laid down in this behalf. …
*
21. … The readiness and willingness on the part of the plaintiff to
perform his part of contract would also depend upon the question as to
whether the defendant did everything which was required of him to be
done in terms of the agreement for sale.”
25. Section 16(c) of the Specific Relief Act, 1963 mandates “readiness and
willingness” on the part of the plaintiff and it is a condition precedent for
obtaining relief of grant of specific performance. It is also clear that in a
suit for specific performance, the plaintiff must allege and prove a
continuous “readiness and willingness” to perform the contract on his part
from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni
Lal Sabharwal [(1970) 3 SCC 140] that “readiness and willingness”
cannot be treated as a straitjacket formula. This has to be determined from
25

the entirety of the facts and circumstances relevant to the intention and
conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the
opposite party, it is the mandate of the statute that the plaintiff has to
comply with Section 16(c) of the Specific Relief Act and when there is
non-compliance with this statutory mandate, the court is not bound to
grant specific performance and is left with no other alternative but to
dismiss the suit. It is also clear that readiness to perform must be
established throughout the relevant points of time. “Readiness and
willingness” to perform the part of the contract has to be
determined/ascertained from the conduct of the parties.”
62. The Apex Court in the case of Man Kaur (Dead) (supra) on facts,
has declined to grant the relief of specific performance of the
agreement to the plaintiff.
Conclusion of this Court
(A) Whether the defendant executed a registered agreement to sell
dated 30.12.2019 in favour of the plaintiff ?
(B)Whether any consideration was paid by the plaintiff to the
defendant towards the execution of the agreement to sell in his
favour?
(D) Whether the alleged agreement to sell was got fraudulently
executed by the plaintiff from the defendant taking advantage of the
business relationship between them ?
63. It is the case of the plaintiff Ganesh Prasad PW-1 that the
defendant Tushar Agrawal DW-1 was in need of money for enhancing
his business and also for his personal needs hence the defendant
decided to sell his residential house and approached the plaintiff and
requested him to purchase the disputed house, which ultimately the
plaintiff agreed for a consideration of 30 lakhs, out of which an
₹
earnest money of 20 lakhs was paid by the plaintiff to the defendant
₹
through cheque no. 223569 dated 30.12.2019 which was drawn on
26

Indian Bank, Branch Lahurabir,Varanasi. It was agreed between the
parties that the remaining amount of 10 lakhs will be paid by the
₹
plaintiff to the defendant at the time of execution of the sale deed. It
is the case of the plaintiff that the defendant willingly executed an
agreement to sell in the presence of witnesses Shyamchandra PW-2
and Arun Kumar Jaiswal in favour of the plaintiff on receiving the
part consideration of 20 lakhs on 30.12.2019, which was on the
₹
same day, subsequently registered in the office of sub-registrar
Gyanpur,Bhadohi.
64. The perusal of the plaint shows that the plaintiff has pleaded that
he personally met the defendant and requested him to execute and
register the sale deed but the defendant failed to do so hence, the
plaintiff gave two registered notices dated 4.5.2021 and 23.8.2021 to
the defendant for executing the sale deed in his favour and after
waiving these 2 notices, finally a registered legal notice was given
dated 11.9.2021 to the defendant to execute the sale deed but when it
was not complied by the defendant, the plaintiff was compelled to file
the instant suit in the competent court for the specific performance of
the registered agreement to sell dated 30.12.2019. It was also pleaded
that the intention of the defendant has turned dishonest and malafide,
who was negotiating with other persons for selling the disputed
property.
65. The perusal of the plaint shows that the plaintiff has specifically
pleaded that he was always ready and willing and is still ready and
willing to purchase the disputed property in accordance with the
terms of the registered agreement after paying the balance
consideration of 10 lakhs to the defendant. From the perusal of the
₹
legal notice dated 11.9.2021 it is apparent that it mentions that the
plaintiff has arranged the remaining consideration of 10 lakhs and
₹
was ready and willing and the plaintiff has assured that, he will also
27

in the future remain ready and willing to get the sale deed of the
disputed house executed and registered in his favour after paying the
balance consideration to the defendant.
66. It is apparent that the defendant in his written statement altogether
denied the execution of the alleged agreement to sell dated
30.12.2019 in favour of the plaintiff. The defendant has categorically
averred that he has not received the alleged earnest money of 20
₹
lakhs from the plaintiff. The defendant has averred that there was
business relationship between him and the plaintiff since the year
2016 in which he purchased raw silver from the plaintiff and after
refining it, sold the refined silver back to the plaintiff and taking
advantage of this business relationship, the plaintiff has fraudulently
managed to get the alleged agreement to sell executed from him. The
defendant has further taken a plea that he has only one house, in
which he is residing with his family ,in which his firm is also
situated, hence he cannot sell this house to the plaintiff. The
defendant also pleaded that he was never in necessity of money and
as such, there was no occasion for him to sell his house to the
plaintiff. The defendant has further pleaded that the disputed house
was valued at more than 2 crores hence there was no justification
₹
for him to sell it only for a paltry consideration of 30 lakhs.
₹
Although the plaintiff has alleged that he gave legal notice to the
defendant before filing of the suit, which was also received by the
defendant, but in the written statement, the defendant has denied this.
The defendant has also averred that he was not intending to sell the
disputed property to Manish Kumar Jaiswal, and no agreement to sell
has been executed in his favour. It was also averred that the plaintiff
never remained ready and willing to fulfil the terms of the agreement
hence the suit filed by him was not legally maintainable.
67. From the perusal of the registered agreement to sell it is evident
28

that it was contemplated that the plaintiff after arranging the balance
sale consideration of 10 lakhs, in every circumstance will get the
₹
sale deed executed from the defendant within a period of 3 years from
30.12.2019, and if the defendant fails to do so, then the plaintiff was
given the right to get the sale deed executed from the Court after
depositing the balance consideration with it.
68. PW-1 Ganesh Prasad in his examination-in-chief has reiterated
the plaint averments. He deposed that he always remained ready and
willing to get the sale deed executed by paying the balance sale
consideration of 10 lakhs to the defendant, as per the terms of the
₹
agreement to sell, and also requested the defendant personally, but
when the defendant procrastinated, then he gave legal notice to the
defendant on 4.5.2021, 23.8.2021, and after waiving these notices, a
final notice dated 11.9.2021 was given by his counsel Shri Dinesh
Kumar Advocate , to the defendant to execute the sale deed in his
favour, which was also received by the defendant on 14.9.2021 but
still, the sale deed was not executed in his favour. He further deposed
that the intention of the defendant had turned malafide. He further
deposed that he maintained a balance of 10 lakhs in his savings
₹
bank account to pay the defendant towards remaining consideration
of the sale deed but the defendant was busy negotiating with other
persons, to sell the disputed house, hence he filed the suit. He further
deposed that the agreement was executed by the defendant in the
presence of the witnesses.
69. PW-1 further deposed in cross-examination that the disputed
agreement of sale was got typed by Tushar Agrawal in Varanasi and
was presented to the sub-registrar by the defendant. He gave account
payee cheque no. 223569 to the defendant on 30.12.2019 in the sub-
registrar office, before the sub-registrar, in the presence of witnesses.
The cheque was issued in the name of Tushar Agrawal. Besides this
29

cheque, neither any other cheque was given nor any cash payment
was made, to the defendant. He admitted that he was not present at
the time when the document was being prepared by Tushar Agrawal.
An e-stamp of 60,000/- was purchased from Central Bank of India,
₹
Gyanpur, for the agreement, the amount was paid by him. The
agreement to sell was signed by him and the defendant after reading
it, thereafter, it was signed by the witnesses. The agreement to sell
was of land and house, pertaining to an area of 2184 ft². The
agreement was got typed by Tushar Agrawal.He gave notice to the
defendant through his advocate Dinesh Kumar. The notice given to
the defendant on 11.9.2021 was received by him on 14.9.2021. The
notices were sent to the defendant on his individual address as well
as the address of his firm, both were received by Tushar Agrawal.The
cheque No. 223569 of 20 lakhs was issued from his saving account,
₹
which was given to the defendant on 30.12.2019 in the presence of
witnesses, in the office of sub-registrar.
70. Shyamchandra PW-2, the attesting witness of the agreement,
deposed in examination-in-chief that the defendant willingly due to
financial necessity and for enhancement of his business, agreed to sell
the disputed house for a consideration of 30 lakhs in favour of the
₹
plaintiff, out of which 20 lakhs was paid by the plaintiff as earnest
₹
money to the defendant and a registered agreement to sell was
executed on 30.12.2019 by the defendant in favour of the plaintiff,
which was subsequently registered in the office of sub-registrar
Gyanpur at Bhadohi in book no.1, zild no. 3053, at pages 103 – 124
at serial no. 4288 on 30.12.2019. He further deposed that the earnest
money of 20 lakhs was paid by the plaintiff to the defendant
₹
through cheque before the sub-registrar Gyanpur at Bhadohi and as
per the conditions of the agreement to sell, an amount of 10 lakhs
₹
was to be paid by the plaintiff to the defendant at the time of
execution of sale deed.
30

71. He further deposed that the contents of the agreement to sell was
read by Advocate Anoop Kumar Srivastava to the defendant Tushar
Agrawal , Ganesh Prasad and the 2 witnesses. Besides this, Tushar
Agrawal after reading and understanding the agreement to sell, had
signed it and also affixed his thumb impression on every page. The
agreement was also signed by the buyer plaintiff, witnesses and
Advocate Anoop Kumar Srivastava. He further deposed that
thereafter, he, plaintiff, defendant, the other witness and Anoop
Kumar Srivastava went to the sub-registrar office where the sub-
registrar asked Tushar Agrawal whether he had agreed to execute the
agreement to sell for a consideration of 30 lakhs of his house and
₹
whether he had received 20 lakhs through cheque as earnest money
₹
and after getting its confirmation from Tushar Agrawal, the
agreement to sell was registered.
72. PW-2 in cross-examination deposed that he met Tushar Agrawal
for the 1st time in the sub-registrar office at Gyanpur at about 12 – 1
p.m. He was accompanied by Ganesh Prasad. The agreement was got
typed by Tushar Agrawal and the consideration of the stamp was also
paid by Tushar Agrawal. The agreement was not typed in his
presence. The document was produced by Tushar Agrawal before the
sub-registrar. Arun Kumar Jaiswal had also signed the agreement as a
witness. He further deposed that he was a witness of the plaintiff.
73. Handwriting expert Mohd.Shahrukh PW-3 in his examination-in-
chief deposed that the agreement to sell dated 30.12.2019 bears the
signature and fingerprint of defendant Tushar Agrawal.
74. Tushar Agrawal DW-1 in his examination-in-chief denied
execution of the disputed agreement to sell dated 30.12.2019 in
favour of the plaintiff, denied receiving any consideration for the
alleged agreement, denied that he was in need of money for his
personal requirement and business. He alleged that the plaintiff
31

fraudulently taking advantage of his business relations with him, had
got executed a forged agreement to sell dated 30.12.2019 for
inadequate consideration of 30 lakhs, whereas the disputed house
₹
was valued not less than 2 crores. He also denied receiving any
₹
legal notice from the plaintiff. He reiterated that he was having only
one house in which he was residing with his wife and children, which
was never agreed to be sold to the plaintiff or any other person.
75. He further deposed that he used to purchase raw silver from the
plaintiff, which was sold to the plaintiff after refining it and taking
advantage of the above business relations, the plaintiff had managed
to get fraudulently prepared the alleged agreement to sell dated
30.12.2019 in connivance with the scribe, witnesses and sub-registrar,
which was not binding on him. He will also file a suit for the
cancellation of the alleged agreement to sell.
76. He further deposed that he never had any talks with Manish
Kumar Jaiswal for selling the disputed house to him and the plaintiff
has filed fraudulent documents regarding such transaction, which is
not binding on him. He specifically denied receiving earnest money
of 10 lakhs for executing an agreement to sell in favour of Manish
₹
Kumar Jaiswal. He further deposed that the plaintiff is neither ready
and willing nor he has remained so.
77. DW-1 Tushar Agrawal in his cross-examination deposed that he is
a businessman. The name of his firm is Ganpati Abhushan Mandir.
He deals in sale – purchase of silver. He also files the income tax
return. His wife's name is Shweta Agrawal. He had purchased land in
village Thanipur, Goppur and Chakparauna in his wife's name. He
started business in the year 2013 from his firm Ganpati Abhushan.
From this firm, he does business of purchase – sale of raw and refined
silver. He is having a current account of his firm Ganpati Abhushan
Mandir in Union Bank of India, Gopiganj. After perusing paper No.
32

31-C, he acknowledged that on 3.1.2020 an amount of 20 lakhs has
₹
been credited to his account. He feigned ignorance that his photo is
affixed on agreement to sell paper no. 43-A. His 2nd firm is named
Vinayak Abhushan Mandir.
78. After perusing paper No. 31-C he disclosed that the amount of
₹
20 lakhs pertains to business transaction hence he deposited it in his
firm's current account. He clarified that he utilised this amount in his
business. After perusing paper No. 31-C/1 he could not tell, whether
cheque No. 223569 was written in it or not. He further deposed that
the plaintiff fraudulently taking undue advantage of the business
relations with him, obtained his signatures on the blank papers on the
pretext of doing business and also obtained 4 cheques of 25 – 25
₹
lakhs, who obtained his signature on some papers on the pretext of
preparing an agreement.
79. He further deposed that the plaintiff obtained his signature on
about 15 – 20 blank pages, one of which was a stamp paper of
₹
100/-. He further deposed that the plaintiff gave him 20 lakhs
₹
towards labour charges, which was a yearly settlement. He could not
tell whether the above amount of 20 lakhs towards labour charges
₹
was shown by his chartered accountant in his annual income tax
return or not ?
80. The defendant DW-1 was shown paper No. 34-C, a certified copy
of the unregistered agreement to sell of the disputed property
allegedly executed by the defendant in favour of Manish Kumar
Jaiswal for a consideration of 50 lakhs, to which the witness
₹
feigned ignorance and could not tell whether it was signed by him or
not. He disclosed that he filed a case against Manish Kumar Jaiswal,
but stated that no compromise was reached with him. He deposed that
he can examine Arun Kumar Jaiswal, who is included in the list of
witnesses, who is a businessman doing business in gold– silver.
33

81. He feigned ignorance that on 30.12.2019 Arun Kumar Jaiswal
accompanied him to the sub-registrar office, who was witness of the
agreement to sell, on his behalf. He accepted that till date, he has not
filed any suit for cancellation of the agreement to sell against the
plaintiff. The plaintiff committed fraud on him by taking 4 cheques of
25 – 25 lakhs, obtained his signature on blank paper and
₹
fraudulently got executed the agreement to sell from him. He
admitted that he has not lodged a complaint with the police or
administrative officials or a case in the court, regarding the above
fraudulent acts allegedly committed by the plaintiff. He was under
pressure, because he was doing business with the plaintiff. The
disputed house is valued at about 2 crores, because the adjoining
₹
houses have been sold for that amount but he cannot file the certified
copy of those transactions.
82. He admitted that he read the alleged agreement to sell after 2 – 3
days in which the cheque number was written but he clarified that no
such cheque was ever received by him. Since he was under pressure,
no written complaint was made to the plaintiff. He also made no
complaint to the police regarding non-receipt of 20 lakhs . He
₹
denied having executed an unregistered agreement to sell of his
house in the year 2020 for 50 lakhs in favour of Manish Jaiswal.
₹
83. He disclosed that after the plaintiff committed fraud upon him,
after a period of 6 months – 1 year, he stopped doing business with
him. He was having business with Ganesh Prasad since the year 2013.
He admitted that paper No. 43-A/10 bears the photo of his witness
Arun Kumar Jaiswal. He admitted that he was having no enmity and
acquaintance with sub-registrar Sherdendu Mishr.
84. He admitted that he went to the sub-registrar office, where the
sub-registrar and other persons were present, where on some papers
his signature was fraudulently obtained. His witness, Arun Kumar
34

Jaiswal and the plaintiff Ganesh Prasad was also present. He denied
that the sub-registrar asked him anything regarding the disputed
agreement to sell as well as its consideration and receipt of earnest
money through cheque. He feigned ignorance whether his, Ganesh
Prasad and witness Shyamchandra and Arun Kumar Jaiswal's
photograph and thumb impression were taken in the sub-registrar
office. He admitted that on the day when the agreement to sell was
allegedly executed, he went to the sub-registrar office on the asking
of the plaintiff Ganesh Prasad for signing some documents, but he is
not aware of the nature of the document. He disclosed that his
signature and thumb impression was previously obtained on a blank
paper, hence what was his necessity of going to the sub-registrar
office, only Ganesh Prasad knew. Ganesh Prasad told him that he has
to sign some documents in sub-registrar office and campus, these
were the same documents on which he had earlier signed and affixed
his thumb impression.
85. He further deposed that he had applied for the certified copy of
the agreement to sell, thereafter, he read it. When he received the
notice, then he read it. Notice was also received on the mobile. Since
money was required for initiating litigation, which he did not have,
hence he did nothing after receiving the notice. He didn't accompany
Arun Kumar Jaiswal to the sub-registrar office. He went to the sub-
registrar office on 30.12.2019 for signing documents relating to
business. The documents were taken by Ganesh Prasad. What was
enquired from him by the sub-registrar, he did not remember because
he was suffering from cold. The document on which he signed, he
didn't enquire about it, because he trusted him. He neither received
any cheque for the agreement to sell nor received any payment of
cheque through RTGS. He returned from the sub-registrar office in
the evening. He admitted that the document on which he signed, was
also signed by Arun Kumar Jaiswal as a witness. He also admitted
35

that his photograph, signature and thumb impression were taken in
the sub-registrar office, but on which document it was obtained, he
did not knew because he was indisposed. He admitted that the sub-
registrar enquired from him but he could not remember it . He
disclosed that prior to 30.12.2019 also, he went to the sub - registrar
office for getting the sale deed executed from his brothers. He also
went to the sub-registrar office for purchasing property in the name of
his wife. He got executed 3 sale deeds in favour of his wife.
86. He further deposed that he has sold his car. He has replied to the
notice received on his mobile and also filed it in this case. Arun
Kumar Jaiswal is not his witness, but he is the witness of Ganesh
Prasad. He was having no necessity of money so as to execute the
agreement to sell in favour of the plaintiff.
87. From the above oral evidence of PW-1 Ganesh Prasad and PW-2
Shyamchandra and documentary evidence on record, it is evident that
the defendant executed an agreement to sell in favour of the plaintiff
on 30.12.2019 in presence of the witnesses Shyamchandra PW-2 and
Arun Kumar Jaiswal. The defendant DW-1 in his oral evidence has
admitted that he went to the office of the sub-registrar on 30.12.2019
where taking advantage of the business relations between him and the
plaintiff, the plaintiff got fraudulently executed the disputed
agreement from him by obtaining signatures on some blank papers
with the connivance of attesting witnesses, scribe and concerned sub-
registrar. The defendant has also admitted that prior to the disputed
agreement, he has got executed a sale deed of the disputed house in
his favour from his brothers and has also facilitated the execution of 3
sale deeds in his wife's favour, as such, it cannot be said that the
defendant was not at all conversant with the procedure and practices
prevalent in the concerned sub-registrar office, which were followed
at the time of execution and registration of the sale deed.
36

88. It is also pertinent to mention here that the defendant has failed to
mention the manner in which fraud was practised upon him in the
office of the sub-registrar by the plaintiff. The defendant has only
levelled a general allegation that the plaintiff obtained his signature
on some blank papers.
89. It is also evident that the plaintiff has examined himself as PW-1
and attesting witness Shyamchandra as PW-2 to prove the execution
of the agreement to sell. The defendant admitted that Arun Kumar
Jaiswal was another attesting witness of the agreement to sell, but
inspite of mentioning his name in the list of witnesses paper number
107-C, this witness was not examined by the defendant to discredit
the evidence of the plaintiff insofar as the execution of the agreement
to sell was concerned. The defendant could very well have examined
Arun Kumar Jaiswal to create doubt about the veracity of the alleged
agreement to sell, but no such effort was made by the defendant.
90. It is also evident that the defendant DW-1 has admitted that he
was having no enmity with the concerned sub-registrar Sherdendu
Mishr. The defendant has also admitted that neither any complaint
regarding the alleged fraudulent act of the plaintiff has been made to
the police, administrative official or the Court nor any cancellation of
the alleged agreement to sell was sought by filing suit. The defendant
has also admitted that even after the alleged execution of the
agreement to sell, he continued having business with the plaintiff for
6 months – 1 year. It is also evident that the alleged agreement to sell
contains the digital photograph of the defendant, plaintiff and the 2
witnesses and their thumb impression. The agreement also contains
the endorsement of the concerned sub-registrar that the parties to the
agreement have accepted its execution and the consideration
mentioned in it, which has not been rebutted by the defendant by
leading any cogent evidence.
37

91. The Apex Court in the case of Prem Singh (supra) has held that
there is a presumption that a registered document is validly executed.
A registered document, therefore, prima-facie would be valid in law.
The onus of proof, thus, would be on a person who leads evidence to
rebut the presumption.
92. Similarly, the Apex Court in the case of Rattan Singh and others
vs. Nirmal Gill and others (2021) 15 SCC 300 held as under:-
“33. To appreciate the findings arrived at by the courts below, we must first
see on whom the onus of proof lies. The record reveals that the disputed
documents are registered. We are, therefore, guided by the settled legal
principle that a document is presumed to be genuine if the same is
registered, as held by this Court in Prem Singh v. Birbal [Prem Singh v.
Birbal, (2006) 5 SCC 353] . The relevant portion of the said decision reads
as below : (SCC pp. 360-61, para 27)
“27. There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would be
valid in law. The onus of proof, thus, would be on a person who
leads evidence to rebut the presumption. In the instant case,
Respondent 1 has not been able to rebut the said presumption.”
In view thereof, in the present cases, the initial onus was on the plaintiff,
who had challenged the stated registered document.”
93. The Apex Court again in the case of Sarafat Ali(Deceased)
Through Lrs. And Others vs. Deputy Director of Consolidation
Haridwar and Others 2026 SCC OnLine SC 1190, held as under:-
“51....It is trite law that a registered document carries a presumption of
valid execution and genuineness unless rebutted by cogent evidence. In
this regard, it would be apposite to refer to the recent decision of this
Court in Hemalatha (D) by Legal Representatives v. Tukaram (D) by Legal
Representatives16, wherein the relevant observation read thus:
“31. It is a settled position of law that a registered Sale Deed carries
with it a formidable presumption of validity and genuineness.
Registration is not a mere procedural formality but a solemn act that
imparts high degree of sanctity to the document. Consequently, a
Court must not lightly or casually declare a registered instrument as a
“sham”. Adopting the principles enunciated in Prem Singh v. Birbal,
(2006) 5 SCC 3531, Jamila Begum (Dead) Through Lrs. v. Shami
38

Mohd. (Dead) Through Lrs., (2019) 2 SCC 727 : (2019) 2 SCC (Civ)
632, and Rattan Singh v. Nirmal Gill, (2021) 15 SCC 3003, this Court
reiterates that the burden of proof to displace this presumption rests
heavily upon the challenger. Such a challenge can only be sustained if
the party provides material particulars and cogent evidence to
demonstrate that the Deed was never intended to operate as a bona
fide transfer of title.
32. The grounds typically accepted to challenge a registered Deed at
the instance of the vendee/executant are fraud or want of capacity in
any party or mistake of fact or fundamental illegality like where the
Deed was executed under deceit or sold by a fraudster who did not
own the land or where the Deed was executed without consideration,
namely, if no money or value was actually exchanged despite recitals
in the Deeds or where there was coercion or intimidation like where
the seller was forced to sign without free consent.
33. While the aforementioned grounds are illustrative and not
exhaustive, this Court must caution against the growing tendency to
challenge registered instruments ‘at the drop of a hat’. If the sanctity
of registered documents is diluted, it would erode public confidence
in property transactions and jeopardize the security of titles. In a
society governed by the Rule of Law, registered documents must
inspire certainty; they cannot be rendered precarious by frivolous
litigation.”
52. The aforesaid observations leave little room for doubt that a registered
conveyance cannot be lightly brushed aside on conjectures or insignificant
discrepancies. The burden to dislodge the presumption attaching to such an
instrument lies heavily upon the party assailing it, and such burden can be
discharged only through clear, cogent and convincing evidence establishing
fraud, fabrication, want of execution or any other circumstance striking at
the root of the transaction itself.”
94. It is evident that in this case the burden was upon the defendant to
rebut the above evidence of due execution and registration of the
disputed agreement to sell. In the absence of any contra evidence, the
defendant has failed to prove that the disputed agreement to sell was
fraudulently got executed from him by the plaintiff. The plaintiff has
duly proved that the disputed agreement to sell was willingly
executed on 30.12.2019 by the defendant.
95. The defendant has also alleged that the disputed house was at the
relevant time valued at about 2 crores hence there was no occasion
₹
39

for him to execute the alleged agreement in favour of the plaintiff for
a paltry consideration of 30 lakhs. The defendant could have filed
₹
the sale deeds of the comparable immovable property to prove the
above fact but no such evidence has been filed by the defendant.
96. It is further pertinent to mention that the defendant entered into an
unregistered agreement to sell of the disputed house for a
consideration of 50 lakhs with Manish Kumar Jaiswal in the year
₹
2021, a certified copy of which was filed by the plaintiff before the
trial court as paper no. 34-C. The defendant alleged that the above
agreement was forcibly got executed from him by Manish Kumar
Jaiswal and hence moved an application under Section 156 (3) CrPC
before the Court of Chief Judicial Magistrate, Bhadohi for getting a
FIR registered against Manish Kumar Jaiswal in which subsequently
compromise was reached between the parties on 29.6.2021. The
plaintiff has also filed the certified copy of the compromise reached
between the parties in which the defendant has agreed to return the
consideration of 50 lakhs to Manish Kumar Jaiswal. Although, the
₹
defendant has denied the above transaction of his house with Manish
Kumar Jaiswal, but the denial of the defendant is unbelievable. It is
evident that even the defendant has not sold his property to Manish
Kumar Jaiswal for 2 crores in the year 2021, hence, by no stretch of
₹
imagination it can be presumed that at the relevant time on
30.12.2019, the disputed house was valued at about 2 crores.
₹
97. It is also evident that the defendant DW-1 although in his written
statement denied the receipt of legal notice from the plaintiff but in
the oral evidence, he has accepted that he received the legal notice
from the plaintiff. The defendant has also stated that he received the
notice on his mobile also to which he had replied.
98. It is also evident that the earnest money of 20 lakhs was paid by
₹
the plaintiff to the defendant through cheque no. 223569 dated
40

30.12.2019 drawn on Indian Bank, branch Lahurabir, Varanasi, which
was also proved by the plaintiff by filing the account statement of his
bank before the trial court, which was paper no. 31-C. The above
bank statement proves that on 3.1.2020 through cheque No. 223569
amount of 20 lakhs has been paid to Tushar Agrawal. It is also
₹
evident that the above bank account of the plaintiff is the savings
bank account.
99. The defendant DW-1 in his cross-examination after perusing the
above bank statement paper no. 31-C has accepted that he has
received an amount of 20 lakhs from the plaintiff. The defendant
₹
has neither filed any statement of his bank account nor given any
legal notice to the plaintiff to prove that he has not received the above
payment from the plaintiff. Hence, in view of the above oral and
documentary evidence on record, it is proved that the earnest money
of 20 lakhs was paid by the plaintiff to the defendant for executing
₹
the disputed agreement to sell in his favour on 30.12.2019 through
cheque no.223569 which was encashed by the defendant on 3.1.2020.
100. Accordingly, issues A, B and D are decided in favour of the
plaintiff.
(C) Whether the consideration paid by the plaintiff to the defendant
was related to the business transactions that took place between
them?
101. It is the contention of the defendant that since the year 2013 he
was having business relationship with the plaintiff. He used to
purchase raw silver from the plaintiff and after refining it, used to sell
refined silver back to the plaintiff and the alleged consideration of
₹
20 lakhs paid by the plaintiff was towards the business transactions
that took place between him and the plaintiff. It has been specifically
pleaded by the defendant that the above amount was not paid by the
41

plaintiff as earnest money of the alleged agreement to sell executed
by him in favour of the plaintiff. The above fact was denied by the
plaintiff by stating that only 4 business transactions took place
between him and the defendant during the period November 2019 –
March 2020. The plaintiff also filed the bank statement of his firm
paper no. 65-C2 to prove the above business transactions.
102. On the contrary, the defendant has not filed any documentary
evidence to prove that the above consideration of 20 lakhs was paid
₹
by the plaintiff towards the business transactions that took place
between him and the plaintiff.
103. PW-1 Ganesh Prasad in his examination-in-chief reiterated the
plaint averments. PW-1 in cross-examination deposed that he does
business of silver ornaments in the name and style of M/S Ganesh
Jewellers, which is a registered firm, and his shop is situated in
Varanasi. He is in this business since the year 2014 – 15. He admitted
that the defendant Tushar Agrawal was purchasing silver ornaments
from him since November 2019, which was sold by issuing receipt to
the defendant. His firm had no dealing with Narendra Agrawal. He
admitted that there were 4 transactions of silver between him and the
defendant, during the period November 2019 – March 2020. Tushar
Agrawal is the proprietor of M/s Ganapathi Abhushan Mandir, with
which he had transactions.
104. He further deposed that Tushar Agrawal used to purchase silver
and ornaments from him, bill of which was issued to him, which was
being paid by him, before purchase. Tushar Agrawal never purchased
raw silver from him, only silver ornaments were purchased from him,
regarding which bill was issued to him. The defendant paid through
his(plaintiff) bank account in the name of Ganesh Jewellers. The bills
were generated through GST portal. The bill of silver ornaments was
signed both by him and Tushar Agrawal.
42

105. He further deposed that paper no. 65-C2 pertains to account No.
02251131002137 in which transaction dated 30.12.2019 was not
conducted. The above account contains transactions made on GST
portal. The transactions made with Tushar Agrawal on the GST
portal, contain bill number also. Paper no. 65-C2 records 4
transactions between him and the defendant, from November 2019 –
March 2020. There are 4 transactions with Ganpati Abhushan Mandir
which are – bill No. 34 dated 29.11.2019, invoice No. 38 dated
18.12.2019, invoice No. 43 dated 27.02.2020 and invoice No. 50
dated 6.3.2020. Besides the above transactions, no other transaction
took place.
106. Tushar Agrawal DW-1 in his examination in chief reiterated the
averments made in his written statement. He further deposed that he
used to purchase raw silver from the plaintiff, which was sold to the
plaintiff after refining it .
107. DW-1 Tushar Agrawal in his cross examination deposed that he
is a businessman. The name of his firm is Ganpati Abhushan Mandir.
He deals in sale – purchase of silver. He also files the income tax
return. He started business in the year 2013 from his firm Ganpati
Abhushan. From this firm, he does business of purchase – sale of raw
and refined silver. At present he is not doing the business of refining
raw silver. He is having a current account of his firm Ganpati
Abhushan Mandir in Union Bank of India, Gopiganj. His 2nd firm is
named Vinayak Abhushan Mandir.
108. After perusing paper No. 31-C he disclosed that the amount of
₹
20 lakhs pertains to business transaction hence he deposited it in his
firm's current account. He clarified that he utilised this amount in his
business.
109. He further deposed that he used to have business with Ganesh
43

Prasad, and due to this, the plaintiff gave him 20 lakhs, he used to
₹
supply silver to the plaintiff after refining it. He cannot give any
evidence regarding the supply of silver to the plaintiff. He was shown
paper No. 65-C the bank statement, according to which 4 business
transactions took place between him and the plaintiff on 29.11.2019,
18.2.2020, 26.2.2020 and finally on 3.3.2020 and asked whether any
other transaction took place between them? The witness replied that
he has got no knowledge about paper No. 65-C.
110. He further deposed that the plaintiff gave him 20 lakhs
₹
towards labour charges, which was a yearly settlement. He could not
tell whether the above amount of 20 lakhs towards labour charges
₹
was shown by his chartered accountant in his annual income tax
return or not? He was having business with Ganesh Prasad since the
year 2013. He denied the suggestion that he never supplied silver
ingots and refined silver to the plaintiff. He accepted that he did
labour work with the plaintiff.
111. From the oral and documentary evidence on record it is evident
that the plaintiff was having firm in the name and style of M/S
Ganesh Jewellers whereas, the defendant is having firm in the name
and style of M/S Ganpati Abhushan Mandir and M/S Vinayak
Abhushan Mandir. The plaintiff has specifically asserted that only 4
business transactions took place between him and the defendant
between November 2019 – March 2020, and in order to prove the
above transactions, the plaintiff also filed the copy of statement of
current bank account no. 02251131002137 of his firm M/S Ganesh
Jewellers before the trial court as paper no. 65-C, from the perusal of
which it is evident that on 29.11.2019, 18.2.2020, 26.2.2020 and
3.3.2020 transactions of 14 lakhs, 5 lakhs, 7.47 lakhs and 2 lakhs
₹
took place with M/S Ganpati Abhushan Mandir, which is the firm of
the defendant. The plaintiff has received the above amount in his
44

firm's current account from the defendant's firm.
112. The plaintiff has also filed the statement of invoices generated
on the GST portal between his firm M/S Ganesh Jewellers and
defendant's firm M/S Shree Ganpati Abhushan Mandir, which
disclose that the following transactions took place between the above
firms – invoice No. 43 dated 27.2.2020 for 10 lakhs, invoice No.
₹
50 dated 6.3.2020 for 4.47 lakhs, invoice No. 34 dated 29.11.2019
₹
for 4 lakhs and invoice No. 38 dated 18.12.2019 for 10 lakhs.
₹ ₹
113. It is evident that none of the above transactions mentioned in the
bank statement as well as the transactions generated on the GST
portal is of 20 lakhs, which was the earnest money paid by the
₹
plaintiff to the defendant towards execution of registered agreement
to sell dated 30.12.2019 by the defendant in his favour. It is apparent
that the burden is upon the defendant to prove that the above amount
of 20 lakhs was towards the business transactions that took place
₹
between him and the plaintiff, but that burden has not at all been
discharged by the defendant. The defendant could have filed the GST
bills, invoices, GST return and his firms income tax return to prove
that the above amount of 20 lakhs was paid to him by the plaintiff
₹
towards business transactions but the defendant has not led any
evidence to contradict the above evidence led by the plaintiff. It is
further pertinent to mention here that the consideration of 20 lakhs
₹
was paid by the plaintiff from his individual savings bank account,
not from his firms bank account, hence it cannot be presumed that the
above amount was paid by the plaintiff towards business transactions
with the defendant.
114. In view of the above evidence on record, the defendant has failed
to prove that the consideration of 20 lakhs was paid to him by the
₹
plaintiff towards the business transactions that took place between
him and the plaintiff. On the contrary, the plaintiff has successfully
45

proved that the above consideration, was the earnest money paid by
him to the defendant for the execution of the registered agreement to
sell dated 30.12.2019 in his favour. Accordingly, issue C is decided in
favour of the plaintiff against the defendant.
(E)Whether the plaintiff continuously remained ready and willing to
perform his part of the agreement to sell ?
115. It has been vehemently contended by the learned Senior Counsel
for the appellant that the plaintiff never remained ready and willing
to perform his part of the agreement because the plaintiff never
mentioned in his legal notice that he was ready and willing and was
still ready and willing to perform his part of the agreement. Learned
counsel by relying upon the Single Judge Bench precedent of this
Court in the case of Ram Singh (supra) vehemently contended that
the plaintiff has to strictly aver and prove that he was always ready
and willing and was still ready and willing to perform his part of the
agreement and such assertion should be in the form 47 and 48
prescribed in Appendix 'A' of the CPC, but in this case, the plaintiff
has not submitted his pleading in the above format which is also a
mandatory requirement of Section 16(c) of the Specific Relief Act
failing which no contract of specific performance is enforceable. The
learned Senior counsel failed to disclose to this Court that the above
precedent was challenged by filing appeal before the Apex Court and
in appeal it has not been affirmed and subsequently set aside by the
Apex Court, which is reported as Sughar Singh vs. Hari Singh(Dead)
through LRs and others (2021) 17 SCC 705 hence it cannot be
considered as good law and binding precedent. In view of the above
facts, the contention of the learned Senior counsel cannot be
accepted, and is liable to be rejected.
116. The plea '' ready and willing to perform his part under the
contract '' with reference to Section 16(c) of the Specific Relief Act,
46

1963 has been construed by a 3 Judge Bench of the Apex Court in the
case of Syed Dastagir (supra). It was held as under :-
''9. ......... In construing a plea in any pleading, Courts must keep in mind
that a plea is not an expression of art and science but an expression
through words to place fact and law of one's case for a relief. Such an
expression may be pointed, precise, sometimes vague but still would be
gathered what he wants to convey through only by reading the whole
pleading, depends on the person drafting a plea. In India most of the
pleas are drafted by counsels hence aforesaid difference of pleas which
inevitably differ from one to other. Thus, to gather true spirit behind a
plea it should be read as a whole. This does not distract one from
performing his obligations as required under a statute. But to test,
whether he has performed his obligations one has to see the pith and
substance of a plea. Where a statute requires any fact to be pleaded then
that has to be pleaded may be in any form. Same plea may be stated by
different persons through different words then how could it be
constricted to be only in any particular nomenclature or word. Unless
statute specifically require for a plea to be in any particular form, it can
be in any form. No specific phraseology or language is required to take
such a plea. The language in Section 16(c) does not require any specific
phraseology but only that the plaintiff must aver that he has performed
or has always been and is willing to perform his part of the contract. So
the compliance of '' Readiness and willingness '' has to be in spirit and
substance and not in letter and form. So to insist for mechanical
production of the exact words of an statute is to insist for the form
rather than essence. So absence of form cannot dissolve an essence if
already pleaded.''
117. From the above law laid down by the Apex Court in the case of
Syed Dastagir (supra) it is evident that no specific phraseology or
language is required to prove that the plaintiff always remained ready
and willing to perform his part of the contract and is still ready and
willing to do so. The above compliance of '' readiness and
willingness '' has to be in spirit and substance and not in letter and
form.
118. In the context of the above law, it is to be examined in the instant
case whether the plaintiff has complied with the requirement of
''readiness and willingness '' in spirit and substance?
119. From the perusal of the legal notice dated 11.9.2021 given by the
47

plaintiff to the defendant, plaint and the oral evidence of the plaintiff
PW-1 it is evident that the sale deed was to be executed within 3
years from the date of the registered agreement to sell dated
30.12.2019 and the plaintiff was supposed to pay the balance sale
consideration of 10 lakhs to the defendant at the time of execution
₹
of the sale deed in his favour. The plaintiff specifically mentions in
his above legal notice that he has arranged the remaining
consideration of 10 lakhs and he is ready and willing and will also
₹
remain ready and willing in future to get the sale deed executed and
registered in his favour by paying the above consideration to the
defendant. The plaintiff requested the defendant to intimate the date
and time when he proposed to execute the sale deed in favour of the
plaintiff but the defendant never communicated that date to the
plaintiff. The receipt of the above legal notice has been accepted by
the defendant DW-1 in his cross-examination.
120. The plaint also discloses that the plaintiff personally met the
defendant and requested him to execute and register the sale deed in
his favour but the defendant failed to do so. The plaint also discloses
that a legal notice was issued by the plaintiff dated 11.9.2021 to the
defendant which was received by the defendant, but still the
defendant failed to execute and register the sale deed in favour of the
plaintiff. The plaint also discloses that the defendant turned dishonest
which was apparent from his conduct and was also negotiating to sell
the disputed premises to others, which was proved by the evidence
submitted by the plaintiff during trial. The plaintiff produced the
certified copy of the unregistered agreement to sell executed by the
defendant in the year 2021 in favour of Manish Kumar Jaiswal,
whereby the defendant agreed to sell the disputed house for a
consideration of 50 lakhs to him. The plaint specifically mentions
₹
that the plaintiff was and is still ready and willing to purchase the
disputed premises as agreed upon and in accordance with the terms
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and conditions of the registered agreement to sell dated 30.12.2019
and was ready and willing to pay the balance consideration of 10
₹
lakhs to the defendant at the time of execution and registration of the
sale deed. The plaintiff in his oral evidence also reiterated that he
always remained ready and willing and was still ready and willing to
perform his terms of the agreement and get the sale deed executed in
his favour by paying the balance consideration of 10 lakhs to the
₹
defendant.
121. The Apex Court in the case of Syed Dastagir (supra) specifically
held as under:-
'' 11........ Explanation(i) uses the words '' it is not essential for the
plaintiff to actually tender to the defendant or to deposit in court any
money except when so directed by the court. This speaks in negative
term what is not essential for the plaintiff to do......... This does not mean
that unless the court directs the plaintiff cannot tender the amount to the
defendant or deposit in the Court. Plaintiff can always tender the
amount to the defendant or deposit it in court, towards performance of
his obligation under the contract. Such tender rather exhibits willingness
of the plaintiff to perform his part of the obligation. What is not essential
only means need not do but does not mean he cannot do so.......''
122. It is well settled that the word ''readiness'' refers to financial
capacity and the word ''willingness'' to the conduct of the plaintiff
wanting performance and generally, readiness is backed by
willingness. The continuous readiness and willingness on the part of
the plaintiff is a condition precedent to grant the relief of specific
performance.
123. The Apex Court in the case of Sughar Singh (supra) has held that
while proving the readiness and willingness the plaintiff is not
required to make any averment that the plaintiff required executant of
the agreement to sell to attend the office of the sub-registrar to
execute the sale deed within the time agreed. It was held that whether
the plaintiff is ready and willing to perform his part of contract, the
49

Court must take into consideration the conduct of the plaintiff prior
and subsequent to filing of the suit alongwith other attending
circumstances in a particular case. Whether the plaintiff was ready
and was always ready to perform his part of contract may be inferred
from the facts and circumstances of a particular case. It was further
held that it is not necessary for the plaintiff to produce ready money
but it is mandatory on his part to prove that he has means to generate
consideration amount.
124. In the instant case, the plaintiff was required to pay the balance
consideration of 10 lakhs to the defendant at the time of execution
₹
of the sale deed in his favour. The plaintiff has filed the statement of
his savings bank account no. 6089807462 with the Indian Bank,
Lahurabir branch, Varanasi from 1.1.2020 till 24.3.2022 which is
paper no. 31-C on record, which discloses that the plaintiff was
maintaining balance in excess of 10 lakhs after the execution of the
₹
agreement in his above bank account, which proves the financial
capacity of the plaintiff.
125. It was submitted by the learned Senior counsel for the appellant
that the suit for specific performance of the registered agreement to
sell was filed by the plaintiff before the trial court with the deficient
court fees, which was subsequently made good, and this fact itself
proves that the plaintiff was lacking the financial capacity to pay the
balance sale consideration of 10 lakhs to the defendant.
₹
126. It is apparent from the record of the trial court that the suit was
filed by the plaintiff with the deficient court fees on 14.12.2021 but
the deficiency of court fees was made good on 13.1.2022. The
plaintiff was always having a balance in excess of 10 lakhs in his
₹
savings bank account and was also in a position to arrange the funds,
since he was a jeweller, hence merely on the basis that the suit was
filed by the plaintiff with deficient court fees, it cannot be inferred
50

that the plaintiff was always lacking the financial capacity to pay the
defendant the balance sale consideration of 10 lakhs.
₹
127. In view of the above facts, it is apparent that the plaintiff was
always ready and willing and is still ready and willing to perform his
part of the contract. It is further apparent that to the contrary, the
defendant was not ready and willing to execute the sale deed in
favour of the plaintiff, hence the plaintiff was compelled to file the
suit for the relief of specific performance of the registered agreement
to sell dated 30.12.2019 against the defendant.
128. Accordingly, issue E is decided in favour of the plaintiff against
the defendant.
(F) Whether the relief of specific performance of contract is still
discretionary, after the amendment of Specific Relief Act w.e.f
01.10.2018?
129. The amended Section 10 of the Specific Relief Act 1963 w.e.f.
1.10.2018 reads as under:-
'' 10. Specific performance in respect of contracts – The specific
performance of a contract shall be enforced by the court subject to the
provisions contained in sub-section (2) of section 11, section 14 and
section 16.''
130. The Apex Court in the case of P.Daivasigamani (supra) has held
that the amending act No. 18 of 2018 whereby the provisions of the
Specific Relief Act were amended with effect from 1.10.2018 are
prospective in nature which cannot apply to those transactions that
took place prior to its coming into force.
131. In the instant case, the disputed registered agreement to sell has
been executed by the defendant in favour of the plaintiff on
30.12.2019, which is after the enforcement of the amended provisions
of the Specific Relief Act with effect from 1.10.2018, hence the
51

amended provisions of the Act are applicable in the facts and
circumstances of this case.
132. The Apex Court in the case of B.Santoshamma (supra) has also
held that after the amendment with effect from 1.10.2018, the relief
of specific performance of contract is no longer discretionary. The
Court is, now obliged to enforce the specific performance of a
contract, subject to the provisions of Section 11(2), 14 and 16 of the
Specific Relief Act.
133. In view of the above facts and the legal position prevailing now,
it is apparent that in this case, the Court is bound to specifically
enforce the registered agreement to sell dated 30.12.2019 subject to
the provisions of Section 11(2),14 and 16 of the Specific Relief Act.
134. Accordingly, issue F is decided.
Conclusion
135. In view of the above analysis, it is proved that a registered
agreement to sell dated 30.12.2019 of his residential house was
executed by the defendant in favour of the plaintiff, for a
consideration of 30 lakhs, out of which 20 lakhs was paid as
₹ ₹
earnest money by the plaintiff to the defendant. It is also proved that
the market value of the residential house was not 2 crores, as
₹
alleged by the defendant. It is also proved that the above registered
agreement was not got fraudulently executed by the plaintiff from the
defendant, taking advantage of the business relations between them.
136. The defendant has asserted that he was not having any financial
necessity to sell his house to the plaintiff but the plaintiff has filed
evidence on record to prove that the defendant's wife Shweta Agrawal
was the owner of 3 immovable properties, the certified copies of the
sale deeds dated 20.3.2017, 27.11.2018 and 29.4.2019 in favour of
52

the defendants wife have been filed by the plaintiff before the trial
court. To counter the above assertion, the defendant has disclosed that
his wife has sold the above 3 immovable properties before the filing
of the suit and has also filed the certified copies of 3 sale deeds
executed by his wife on 06.3.2021.Besides that, the defendant DW-1
has admitted in his cross-examination that he has sold his car. The
above fact also disclose that the defendant was in need of money,
otherwise there was no necessity to sell his car and for his wife, to
sell the above 3 immovable properties.
137. It is also evident that the plaintiff always remained ready and
willing to fulfil his terms of the agreement, who was having the
financial capacity to pay the balance consideration of 10 lakhs to
₹
the defendant.
138. The hardship pleaded by the defendant cannot be considered
because from the very inception the defendant was aware that the
disputed house was being used by him for residential purposes and
for business purposes, hence he should not have sold it but still, the
defendant entered into a registered agreement to sell it with the
plaintiff. The hardship, if any, is due to the own mis-deeds of the
defendant, for which the plaintiff cannot be faulted in any manner
whatsoever.
139. In view of the above facts, since the relief of specific
performance is no longer discretionary and even otherwise, there is
no fact or circumstance which disentitles the plaintiff from getting the
primary relief of specific performance, hence, the trial court has not
erred in decreeing the plaintiff's suit for the relief of specific
performance of the registered agreement to sell dated 30.12.2019.
There is no perversity in the judgment of the trial court warranting
interference by this Court in exercise of its appellate jurisdiction.
Accordingly, this appeal lacks merit, and is liable to be dismissed
53

with costs.
140. For the aforesaid reasons, the instant appeal is dismissed with
costs throughout. Consequently, the impugned judgment and decree
dated 11.3.2025 passed by the trial court in O.S. 9 of 2022 is
affirmed.
141. The defendant- appellant is directed to execute the sale deed of
the disputed house within a period of 2 months from today in favour
of the plaintiff-respondent after receiving the balance sale
consideration of 10 lakhs, failing which, the plaintiff is entitled to
₹
get the sale deed executed through Court, by depositing the balance
consideration in the Court, in accordance with law.
Order Date:- 06.07.2026
Jitendra/Himanshu/Mayank
(Sandeep Jain,J.)

54
Digitally signed by :-
HIMANSHU YADAV
High Court of Judicature at Allahabad