ASHOK KUMAR SHRIVASTAVA vs BHAIYALAL JAISWAL

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CGHC010365172024
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on 15.07.2026
Judgment pronounced on 28.10.2026
Judgment uploaded on 28.10.2026
FA No. 202 of 2024
Ashok Kumar Shrivastava S/o Late Shri Ayodhya Prasad, aged about 68
years R/o Village Pali, P.S. Pali, Dist - Korba Chhattisgarh

…Appellant/defendant
versus
Bhaiyalal Jaiswal S/o Late Shri Mannulal Jaiswal, aged about 66 years R/o
Village Pali, P.S. And Tah. Pali, Dist - Korba Chhattisgarh
... Respondent/plaintiff
For appellant : Shri Ravindra Sharma and Shri Sahil Sahu
Advocates
For Respondent : Shri Viprasen Agrawal, Advocate
DB:Hon. Shri Justice Parth Prateem Sahu and
Hon. Shri Justice Sachin Singh Rajput,
C A V Order
This appeal has been filed by the appellant/defendant against the
judgment and decree dated 30.08.2024 passed by learned First District
Judge Katghora, District Korba (CG) (hereinafter referred to as “Trial Court”)

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in Civil Suit No. 02-A/2024 decreeing the suit instituted by the
respondent/plaintiff for specific performance of contract.
Facts in short: The respondent/plaintiff had filed a suit for specific
performance of contract dated 24.11.2011 stating that the appellant/defendant
was the owner of the suit land bearing Khasra No. 16/5 area 0.25 acre
situated at village Pali, P.S. and Tahsil Pali, District Korba (CG). On
24.11.2011 the appellant/defendant entered into an agreement to sale in
presence of the witnesses with respect to the above suit land for total sale
consideration of Rs.12,50,000/-. Out of that, an amount of Rs. 6,00,000/- was
paid by respondent/plaintiff in advance and the appellant/defendant delivered
the possession thereof to him. Document to this effect was notarized on
same day at Katghora. As per the condition of the agreement the sale deed
was to be executed by 31 March. In the agreement it was also mentioned that
as the suit property was situated in the scheduled area, permission would be
obtained from the District Collector Korba by the defendant to sell the same,
and that after receiving the remaining sale consideration the
appellant/defendant would execute the sale deed in favour of the
respondent/plaintiff. The plea of the respondent/plaintiff has been that the
appellant/defendant had received an amount of 2,60,000/- till 01.03.2014 in
addition to what was received on the date of agreement.
2. According to the respondent/plaintiff, he was in contact with the
appellant/defendant regularly, and whenever inquired about the permission
for sale of the suit property he kept assuring that sale deed would be
executed in his favour once the permission for the same was granted by the
Collector. It was the case of the respondent/plaintiff that though the requisite
permission was granted by Collector, Korba on 23.05.2014 in revenue case

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No. 78/A-21/2011-12, it was not disclosed to him by the appellant/defendant,
and that it is in the year 2016 he came to know about the same. Thereafter,
he sent a legal notice on 10.06.2016 through his counsel and also got the
public notice published in daily newspaper "Navbharat". Plaintiff took a plea
that in between 2011 and 2016 the value of the property went up and it is for
that the appellant/defendant was evading execution of sale deed although he
had already received an amount of Rs. 9,50,000/-. Respondent/plaintiff took a
plea that he was always ready and willing to perform his part of contract,
and for that he had published a public notice in daily news paper on
01.06.2016. This however has been denied by the appellant/defendant by
publishing the counter notice on 07.06.2016.
4. The appellant/defendant filed his written statement and refuted the
claim of the respondent/plaintiff stating that he did not execute the agreement
to sale dated 24.11.2011 in favour of the respondent/plaintiff, nor he signed
the same. He pleaded that the respondent/plaintiff had forged his signature
and therefore the agreement dated 24.11.2011 was not binding upon him. He
has also denied the receiving of any amount from the respondent/plaintiff,
delivering possession of the suit land to him or making an application before
the Collector seeking permission to sell the that land. The
appellant/defendant also stated that as the suit was not instituted within
limitation, it ought to have been dismissed on that count alone and there was
no question of readiness and willingness to be established by the
respondent/plaintiff. The appellant/defendant has also pleaded that the
respondent/plaintiff did not properly value the suit as prescribed under the
law, therefore, it was sought to be dismissed.

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5. On the aforesaid pleadings, the following issues were framed by the
trial Court:-
क्रमांक वादप्रश्न निष्कर्ष
1 क्या प्रतिवादी अशोक कुमार श्रीवास्तव ने ग्राम पाली ,
हाँ
पह० नं० 09/23 रा०नि०म० पाली तहसील पाली
जिला कोरबा में स्थि त भूमि ख०नं० 16/5 रकबा 0.25
एकड़ भूमि को वादी भैय्यालाल जायसवाल को
12,50,000/- रु० में विक्रय करने का सविदा किया गया
था ?
2 क्या प्रतिवादी अशोक कुमार श्रीवास्तव ने उक्त वादभूमि
कुल 8,60,000/- रु०
को वादी भैय्यालाल जायसवाल के पक्ष में विक्रय करने
प्रतिवादी , वादी से प्राप्त किया
हेतु अग्रिम राशि क्रमशः 6,00,000 + 2,60,000 +
था।
50,000 + 40,000 कुल 9,50,000/- रु० प्राप्त किया
है ?
3 क्या वादी भैय्यालाल जायसवाल उक्त वादभूमि का
हाँ
संविदा पालन कराने का अधिकारी है ?
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क्या वाद का मूल्यांकन उचित रूप से किया गया है ? हाँ
5 क्या वाद समयावधि में है ? हाँ
6 सहायता एवं वाद व्यय ? अंतिम कंडिका 44 के अनुसार
।
अतिरिक्त वाद प्रश्न
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क्या वाद प्रस्तुती दिनाँक 19.01.2017 को यह वाद इस
हाँ
न्यायालय की सुनवाई क्षेत्राधिकार में थी ?
6. Learned trial Court has decided all the issues in favour of the
respondent/plaintiff and held that he is entitled to get the decree of specific
performance of contract and to get the sale deed executed after payment of
remaining amount (in addition Rs. 8,60,000/-) within a period of two months.
Learned trial Court also held the defendant liable to bear the cost of
registration of sale deed. Hence this appeal.

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7. Learned counsel for the appellant/defendant submits that the judgment
and decree dated 30.08.2024 passed by learned trial court is bad on facts
and law. He submits that learned trial Court has failed to properly appreciate
the oral and documentary evidence available on the record. He further
submits that learned trial Court failed to consider that the appellant/defendant
has specifically denied the execution of agreement dated 24.11.2011 stating
that it was forged and fabricated and he never signed the same. According to
the counsel for the appellant/defendant, learned trial Court erred in ignoring
the fact that the agreement was executed on 24.11.2011 and the suit
instituted on 19.01.2017 and therefore it was barred by limitation. Learned
counsel submits that trial Court erred in ignoring the fact that the agreement
to sale between the parties was contingent upon condition that the sale would
be subject to the permission from the Collector and therefore such agreement
is not enforceable and the appellant/plaintiff is not entitled to get the decree of
specific performance of contract on the basis of such agreement. According
to him, learned trial Court erred in ignoring that the time is essence of
contract and the present suit has been filed much after expiry of period
mentioned in the agreement to sale therefore the respondent/plaintiff is not
entitled to get the decree of specific performance of contract. He submits that
respondent/plaintiff is a practicing lawyer and was aware about the legal
complexities and therefore he has prepared the document as per his
convenience. Learned trial Court is argued to have failed to appreciate the
fact that the respondent/plaintiff has neither averred in the plaint nor produced
any material regarding the availability of fund, and thus he has not proved his
readiness and willingness to perform his part of the contract, and for that also
he is not entitled to get the decree of specific performance of contract.

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8. On the other hand, counsel for the respondent/plaintiff supports the
impugned judgment and decree to be fully justified and submits that learned
trial Court has appreciated the evidence on record in its proper perspective,
and therefore, the same is not required to be interfered with in this appeal.
9. Heard counsel for the parties and perused the material available on
record.
10. The controversy needs to be examined in the light of competing claims
of the parties, the evidence adduced and the applicable legal principles.
11. As regards the legality and validity of the agreement to sale dated
24.11.2011, the plaintiff who examined himself as PW-1 has stated that it
bears signature of the appellant/defendant, that of himself and the witnesses
namely Kaushal (PW-2), Bandhan Das (PW-3) and Nandu (PW-4). He has
further stated that in addition to Rs. 06,00,000/- he paid Rs. 03,50,000/- in
installments, and as the defendant had not issued any receipt for that, an
endorsement to this effect is there on the back side of the agreement itself.
These witnesses (PW-2 to PW-4) have also admitted their signature on the
agreement to sale as also on its back side. They have also stated that
appellant/defendant also put his signature in their presence. Since no
personal vengeance on the part of these witnesses towards him has been
pleaded, their testimony has has been rightly acted upon by the trial Court.
The appellant/defendant is also stated to have received an amount of Rs.
08,60,000/- in advance from the respondent/plaintiff which is reflected in the
order passed by the Collector Korba dated 23.05.2014 passed in permission
proceedings in respect of sale of the suit land. Likewise, the Notary namely
Satya Narayan Kashyap (DW-2) has stated that the sale agreement was
authenticated by him in presence of the aforesaid three witnesses though he

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could not produce the Notary Register and Receipt being smitten by termite.
From the evidence of this witness, it is also evident that apart from the
witnesses, both the parties had also signed the sale agreement and that after
accepting an amount of Rs. 06,00,000/- in advance from the
respondent/plaintiff, the appellant/defendant had told to execute the sale
st
deed by 31 of March.
12. Though the handwriting expert Dr. Sunanda Dhenge (DW-3) examined
by the appellant/defendant has stated that the signature present on the sale
agreement was not of the person whose sample was given to her to be
matched, another expert examined by the respondent/plaintiff namely Imran
Khan (PW-5) has stated that the signatures of the sale agreement and that on
the samples were of the same person. Since two different opinions have been
given by the handwriting experts, the three witnesses referred to above
become material who have categorically stated that the plaintiff and
defendant put their signature on the sale agreement before the Notary (DW-
2). Notary has also stated that both the parties put their signature on the sale
agreement in presence of three witnesses. This has been confirmed by Imran
Khan (PW- 5) inThe opinion given is from Ex.P. 15. Due to which it is proved
that the agreement Ex.P. 01 bears the signature of the defendant Ashok
Kumar Srivastava and this agreement has been executed by him. Thus there
remains no dispute that the appellant/defendant had executed the sale
agreement dated 24.11.2011 in respect of the suit land.
13. Respondent/Plaintiff has further stated in his affidavit that the
appellant/defendant did not execute the sale deed for a period of two years
from the date of agreement even after obtaining permission of the Collector,
and continued to beguile him saying that he had not received the said

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permission. According to him, in November 2013 he came to know that the
appellant/defendant was trying to sell the suit land to someone else and on
being asked, he told him that the permission case was sent to the Tehsildar
Pali for inquiry where he (plaintiff) was required to go for giving statement. He
then went to the Court of Tehsildar and got his statement recorded. Since he
did not receive any information about the permission from the
appellant/defendant, he personally went to the District Magistrate's office
Korba on 31.05.2016 to inquire and came to know that the sale permission
had already been granted on 23.05.2014, on the same day he obtained a
certified copy thereof, published an advertisement in a daily newspaper, and
on 10.06.2016 sent a registered notice to the appellant/defendant asking him
to execute the sale deed after obtaining the remaining balance of Rs
03,00,000/- in his favor by 17.06. 2016 but he did not show any interest. The
respondent/plaintiff is stated to have been always ready and willing to abide
by the terms of the sale agreement. The appellant/defendant is stated to have
been avoiding the execution of the sale deed on account hike of the value of
the suit land. Public notice was also published in the daily newspaper
Navbharat on 01.06 2016. Counter notice was also published by the
appellant/defendant on 07.06.2016 in Navbharat daily newspaper. In that
counter notice the appellant/defendant has mentioned that he executed the
sale greement with the respondent/plaintiff on 24.11.2011 and an advance of
Rs. 08,60,000/- was also received by him. By mentioning sequence of events
already referred to above, he ultimately has stated that it is
respondent/plaintiff who was reluctant in executing the sale deed though
requested by him many a time. Though from the judgment under challenge
the appellant/defendant is reflected to have issued a notice to the
respondent/plaintiff on 17.07.2024 through his advocate asking him if he did

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not take any interest in execution of the sale deed, he (defendant) would be
free to sell the suit land to some other party by cancelling the agreement
dated 24.11.2011 yet there is no pleading on record to this effect. According
to the appellant/defendant, since the respondent/plaintiff did not take any
interest, the sale agreement automatically stood cancelled. Be that as it may,
even from the counter notice it is apparent that sale agreement dated
24.11.2011 was duly executed by the defendant, that he received an amount
of Rs. 08,60,000/- from the respondent/plaintiff in advance as is clear from his
cross examination itself. Though the appellant/claimant claims to have
informed the respondent/plaintiff about the permission of sale having been
granted by the Collector, Korba, there is nothing in evidence on record to
show that the appellant/defendant ever gave in writing to the
respondent/plaintiff the copy of the permission granted by the Collector,
Korba regarding sale of the suit property. On the contrary, it is the
respondent/plaintiff who after obtaining copy of the permission from the office
of Collector, Korba insisted upon the appellant/defendant by issuing notice
through advocate and getting the public notice published in newspaper to
execute the sale deed after accepting the remaining consideration of Rs.
03,00,000/-. Readiness and willingness on the part of the respondent/plaintiff
to execute the sale deed thus gets established and therefore the finding to
this effect recorded by learned trial Court appears to be based on correct
appreciation of the evidence of the witnesses.
14. As regards the issue of deficit court fee, since the appellant/defendant
has not been able to prove as to on what basis he asserts this claim, and
further looking to the fact that the sale consideration agreed upon was Rs.
12,50,000/-, the respondent/plaintiff affixed the court fee of Rs. 97,300/-

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appears to be correct and in conformity with the provisions of Court Fee Act,
1870. This finding also appears to be fully justified. Likewise, the finding
recorded by the trial Court on the issue of jurisdiction also appears to be
correct. As regards the issue of limitation, the appellant/defendant has
pleaded that the suit instituted on 19.01.2017 was barred by limitation
because the agreement was executed on 24.11.2011 and stipulated
execution of the sale deed by 31 March. This Court does not find any merit in
this limb of the argument because Article 54 of the Limitation Act, 1963,
prescribes a period of three years, which in this case commenced from the
date when the respondent/plaintiff came to know about the order of the
Collector i.e. on 31.05.2016. The finding of the trial Court on this issue also
appears to be fully justified.
15. Thus what comes out in short is that though the appellant/defendant
has denied execution of the agreement dated 24.11.2011 and alleged that the
document is forged and fabricated yet the respondent/plaintiff who is
examined as PW-1 has specifically deposed regarding execution of the
agreement and the signatures of the parties. His testimony is duly
corroborated by the evidence of Kaushal (PW-2), Bandhan Das (PW-3) and
Nandu (PW-4) who have identified their signatures on the agreement and
stated that the appellant/defendant signed the document in their presence.
The evidence of the Notary (DW-2) also supports the respondent's case who
has stated that the agreement was authenticated by him and that the parties
signed it in the presence of the witnesses. Although the handwriting experts
examined by the respective parties have expressed conflicting opinions, their
say cannot be seen in isolation, and if seen in the light of testimony of the
witnesses including that of the Notary, it provides sufficient support to the

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case of the respondent/plaintiff. As already referred to above, the counter-
notice dated 07.06.2016 also acknowledges the agreement and receipt of
advance consideration of Rs. 08,60,000/- In view of the cumulative effect of
the oral and documentary evidence, we find no sufficient ground to disbelieve
the witnesses or to hold that the agreement was forged.
16. The Supreme Court in the matter of J.P. Builders v. A. Ramadas Rao
reported in (2011) 1 SCC 429 reiterating its earlier decision in the matter of
N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao reported in (1995) 5 SCC
115 explained that readiness and willingness are distinct but related
requirements. Relevant portion reads thus:
20. Section 16 of the Specific Relief Act, 1963 provides for
personal bars to relief. This provision states that specific
performance of a contract cannot be enforced in favour of a
person-
a) who would not be entitled to recover compensation for its
breach; or
b) who has become incapable of performing, or violates any
essential term of, the contract that on his part remains to be
performed, or acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relation intended to be
established by the contract; or
c) who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential terms
of the contract which are to be performed by him, other than
terms the performance of which has been prevented or
waived by the defendant.
Explanation.- For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not
essential for the plaintiff to actually tender to the defendant or

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to deposit in court any money except when so directed by the
court;
(ii) the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true
construction."
21. Among the three sub-sections, we are more
concerned about sub-section(c). "Readiness and
willingness" is enshrined in clause (c) which was not
present in the old Act of 1877. However, it was later
inserted with the recommendations of the 9th Law
Commission's report. This clause provides that the person
seeking specific performance must prove that he has
performed or has been ready and willing to perform the
essential terms of the contract which are to be performed
by him.”
“22. The words "ready" and "willing" imply that the person
was prepared to carry out the terms of the contact. 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.”
17. Readiness principally concerns financial capacity whereas willingness
is assessed from the plaintiff's conduct and intention to perform the contract.
The readiness and willingness must be considered from the evidence as a
whole and not merely from the absence of a particular document
demonstrating the availability of funds. Upon consideration of the evidence
relied upon by the trial Court, we find no sufficient reason to interfere with its
conclusion that the respondent established his entitlement to specific
performance. So far as the case in hand is concerned, the
respondent/plaintiff, as is evident from the record, has always been ready and
willing to perform his part of the contract. It is he who after obtaining certified

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copy of the collector’s order two years after it having been passed, remained
persistent in persuading the appellant/defendant to execute the sale deed.
Not only this, major chunk of the sale consideration amounting to Rs.
08,60,000/- was already paid by the respondent/plaintiff and only Rs.
03,00,000/- remained which he always had with him.
18. In aforesaid view of the matter, this Court is of the considered opinion
that the findings recorded by learned trial Court on all the issues are based
on due apprecation of the evidence available on record. This Court does not
find any flaw much less the legal one worth interference in this appeal.
19. Appeal thus being without any substance is liable to be and is hereby
dismissed. The judgment and decree dated 30.08.2024 passed by the
learned trial Court decreeing the suit for specific performance of the
agreement to sale dated 24.11.2011 are hereby affirmed. No order as to
costs. Decree to be drawn accordingly.
Sd/- Sd/-
(Parth Prateem Sahu) (Sachin Singh Rajput)
Judge Judge
Jyotishi
Digitally
signed by
AVANISH
JYOTISHI
Date:
2026.10.28
17:50:53
+0530
AVANISH
JYOTISHI