SQN LDR.GURDIAL SINGH vs AMIT SAHNI
- Court
- High Court of Himachal Pradesh
1 Neutral Citation No. ( 2026:HHC:25159 )
B IN THE HIGH COURT OF HIMACHAL PRADESH AT
High Court of H.P.
SHIMLA
RFA No. 901 of 2012
Reserved on: 30.05.2026
Date of decision: 29.06.2026
Date of uploading on website:
29.06.2026
________________________________________________
Gurdial Singh (deceased) through LRs
…..Appellants.
Versus
Amit Sahni & others
……Respondents.
________________________________________________
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting? Yes.
For the appellants: Mr. Y.P. Sood, Advocate.
For the respondents: Mr. Bhupinder Gupta, Senior
Advocate, with Mr. Janesh
Gupta, Advocate.
Sushil Kukreja, Judge.
The instant appeal has been preferred by the
appellant-Gurdial Singh (since deceased, through his legal
representatives), who was plaintiff before the learned Court
below (hereinafter referred to as “the plaintiff”) under Section
96 of the Code of Civil Procedure (for short “CPC”) against
judgment and decree, dated 30.06.2012, passed by learned
Additional District Judge, Solan, District Solan, H.P.
(hereinafter referred to as “the learned Trial Court”), in Civil
1
Whether reporters of Local Papers may be allowed to see the judgment?
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2 Neutral Citation No. ( 2026:HHC:25159 )
Suit No. 4-S/1 of 2009/04, whereby the suit filed by the
High Court of H.P.
plaintiff was partly decreed for recovery of Rs.3,30,000/-
alongwith interest @ 9% per annum from 17.04.2004, till the
recovery of the said amount.
2. The brief facts of the case, emerging from the
record, are that the plaintiff had filed a suit against the
defendants for permanent prohibitory injunction and specific
performance of the agreement to sell dated 25.03.1999. As
per the plaintiff, the defendants (respondents herein) were
builders and owners of Amit Apartments, Solan, comprising
khasra No. 145, 2367/144, 2366/143, situated at Mauza
Thoda-Solan, Tehsil & District Solan, H.P. and vide
agreement, dated 25.03.1999, the defendants constructed
and agreed to sell to the plaintiff Flat No. 3, on third floor in
Modern Delux Building with electric lift. The aforesaid flat
was in Amit Apartments, consisting two bed rooms, one
drawing room-cum-dining room, two toilets, kitchen, lobby,
balcony and one store with covered area of 287-14 square
feet, situated at Mauza Thoda, Solan, Tehsil & District Solan,
H.P., full details whereof were mentioned in agreement,
dated 25.03.1999 (hereinafter referred to as “the flat in
question”) and the total sale consideration was
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Rs.13,00,000/-, out of which the plaintiff had already paid to
High Court of H.P.
the defendants a sum of Rs.3,30,000/-, including earnest
money etc. and balance of Rs.9,70,000/- had to be paid on
or before 30.06.1999, on execution and registration of the
sale deed before Sub-Registrar and by handing over the
possession of the aforesaid flat with complete construction
and all amenities.
2(a). The plaintiff further averred in his plaint that he
was always ready and willing to perform his part of the
contract, but the defendants did not perform their part of the
contract, as the construction of the flat in question was not
complete. The plaintiff requested the defendants time and
again to complete the construction of the flat and specify the
date of completion of the construction so as to execute the
sale deed and hand over the vacant possession of the flat in
question to him, on payment of balance payment of sale
consideration, but the defendants did not pay any heed to
the requests of the plaintiff.
2(b). As per the plaintiff, the defendants were guilty of
gross and unreasonable delay in performing their part of the
contract and the plaintiff made oral as well as written request
to the defendants for completion of the construction of the
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4 Neutral Citation No. ( 2026:HHC:25159 )
flat in question in all respects and hand over its possession
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to him and also to execute the sale deed. The plaintiff had
sent notice to the defendants on 19.06.1999, which was
replied by the defendants, vide reply dated 29.06.1999,
wherein, as per the plaintiff, the defendants, in order to get
the balance amount of sale consideration, stated that the flat
was ready, whereas the same was not ready. The
defendants also sent registered letter, dated 08.08.1999 to
the plaintiff, in response to the plaintiff’s letter dated
01.08.1999, whereby they threatened the plaintiff to sell the
flat in dispute to some other person and forfeit the amount of
Rs.3,30,000/-, in case the plaintiff failed to pay the balance
amount of Rs.9,70,000/-, without completing the flat with all
amenities.
2(c). The plaintiff averred in his suit that the threat and
demand of the defendants was mischievous, illegal, null and
void. As per the plaintiff, he had served the defendants with
legal notice, through Shri S.P. Thukral, Advocate, but despite
that they did not complete the construction of the flat and
following were some of the incomplete works in the flat in
question:
1. Wood work;
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5 Neutral Citation No. ( 2026:HHC:25159 )
2. plastering and polishing work;
3. dividing wall of lobby was not constructed;
4. steel grills were not provided;
5. white washing/paint/bath tubs/water and
electricity was required to be provided;
6. sewerage system was incomplete/car parking
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was not ready/electric lift was not installed/front
wall/internal walls were still incomplete due to
plaster/paint and white washing etc.;
7. parapet and steel railings on the lobby/sit out
area, stair wall, cutouts and electric lift passage
and bridge were to be constructed and
provided; &
8. floor of the approach road and area around the
building still to be laid, constructed and
metalled accordingly.
2(d). As per the plaintiff, in addition to the above
works, some more things were required to be completed, as
there was no electricity connections, water connections,
electric lift and car parking etc., therefore, the flat in question
was not complete and it lacked essential facilities. The
plaintiff also averred that he had already paid Rs.3,30,000/-
to the defendants and according to Clause 7 of the
agreement to sell, the defendants were required to complete
the construction of the flat in every respect and to execute
the sale deed by 30.06.1999 and in the event of default the
defendants had agreed to pay interest @ 15% per annum on
the advance payment. Therefore, a sum of Rs.1,36,125/-
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became due to him (plaintiff) from the defendants on account
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of interest upto 31.03.2002, which he was entitled to recover
from the defendants.
2(e). The plaintiff averred that defendant No. 5, being
GPA (General Power of Attorney) of defendants No. 1 to 4,
on 12.11.2011, in the Court, expressed willingness for
execution and registration of the sale deed of the flat in
question, with undertaking that the shortcomings, shortfall in
the construction work of the flat, the electric lift and other
items etc. would be made good after registration of the sale
deed and plaintiff was asked to purchase requisite stamp
papers. On 12.12.2001 the requisite stamp papers were
handed over to the Shri Sudhir Gupta, Advocate, counsel for
the defendants in the Court by Shri B.S. Dogra, Advocate
and a draft of propose sale deed was also supplied to the
counsel of the defendants. The plaintiff further averred that a
photocopy of agreement to sell dated 25.03.1999 was also
sent to the counsel for the defendants, through post, but
despite that the defendants did not execute and register the
sale deed qua the flat in question in favour of the plaintiff.
Ultimately, on 13.03.2002, a mischievous, malicious,
motivated and wrongly typed document, as sale deed, was
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provided by the defendants, through their counsel to the
High Court of H.P.
plaintiff. After going through the said document, the
defendants and their counsel were requested to delete the
extraneous and illegal matter introduced in the said
document, which were not in accordance with the sale
agreement, but the defendants refused to delete the same
and also flatly refused to sell the flat in question to the
plaintiff.
2(f). The plaintiff averred that during the pendency of
the suit, the defendants, with malafide intention, intentionally
removed the name plate of the plaintiff, which was
permanently fixed at the entrance gate/door of the flat and
the defendants were threatening to sell the flat in question to
some other person and to forfeit the earnest money. As per
the plaintiff, cause of action first arose on the date of
execution of the agreement of sale and thereafter on
08.08.1999 when the defendants threatened to sell the flat to
some other person.
2(g). On the basis of the above enumerated
averments, the plaintiff prayed for a decree as under:
“1. Permanent prohibitory injunction
restraining the defendants from
transferring/alienating the disputed flat
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8 Neutral Citation No. ( 2026:HHC:25159 )
rd
No. 3 situated on the 3 floor in Modern
Delux Building known as Amit
Apartments in Mauza Thoda, Solan,
Tehsil & District Solan, in favour of
anybody other than the plaintiff and from
forfeiting the amount of Rs.3,30,000/-
already paid by the plaintiff to them;
2. specific performance of the agreement
to sell dated 25.03.1999 directing the
defendants to complete the flat No. 3
rd
situated in the 3 floor in Modern Delux
Building known as Amit Apartments,
situated at Mauza Thoda, Solan Tehsil &
District Solan, H.P. in all respects
according to the sale agreement and to
execute a sale deed in respect thereof
and get the same registered in favour of
the plaintiff in accordance with the said
agreement;
3. recovery of Rs.1,36,125/- as interest @
15% per annum on the amount of
Rs.3,30,000/- already paid to the
defendants with effect from 1.7.1999 up
st
to 31 March, 2002 and further interest
at the same rate on Rs.3,30,000/- w.e.f.
01 April, 2002 till the sale deed is
executed, registered and possession of
the said flat is handed over to the
plaintiff, as per the clause 7 of the sale
agreement till the date of decree at the
same rate on the said amount, from the
date of the decree till the realization of
the complete amount;
4. recovery of Rs.1,20,000/- of the cost of
non-judicial stamp papers purchased by
the plaintiff on 12.11.2001 for the
execution and registration of the sale
deed and interest @ 15% per annum
from 12.11.2001 to 31.3.2002 amounting
to Rs.7500/- and further at the same
High Court of H.P.
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rate till the date of decree and future
interest at the same rate on the said
amount from the date of decree till the
realization of the complete amount; &
5. Mandatory injunction directing the
defendants to restore the big marble
name plate of the plaintiff fixed at the
entrance gate/door of the said flat which
was illegally and mischievously removed
by the defendants, with costs of the suit
in favour of the plaintiff and against the
defendants.”
3. The defendants contested the suit by filing written
High Court of H.P.
statement, wherein they took preliminary objections, i.e.,
valuation, suit was time barred, estoppel, the plaintiff had no
cause of action and the plaint lacked full and material
particulars. On merits, the execution of agreement to sell,
dated 25.03.1999 was admitted. However, as per the
defendants, according to the agreement to sell the balance
amount had to be paid by the plaintiff to them on or before
30.06.1999, but no amount was paid to them by the plaintiff.
The defendants averred that the plaintiff wanted various
changes in the original layout and they (defendants) asked
him (plaintiff) to submit such changes, but he did not submit
such changes in writing. As per the defendants, such
changes, as desired by the plaintiff, were required to be
made in the flat in question to sell the same well in time. The
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plaintiff communicated the defendants the description of
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additions and alterations, which had to be carried out in the
flat, which was agreed to be sold by the end of April, 1999.
The defendants further averred that the plaintiff even
thereafter desired some more changes to be carried out in
the flat, i.e., providing bigger cupboard in living room and
additional cupboard with dressing table in the bed room. As
per the defendants, the flat in question was complete in all
respects on 31.07.1999. On 01.08.1999 the plaintiff, through
defendant No. 5, sent a communication to the defendants,
response whereof was given through registered AD on
07.08.1999, wherein all the details, as to what had transpired
for the additions and alterations desired by the plaintiff in the
flat in question were given. However, the plaintiff did not
come forward to complete the transaction and on 12.08.1999
he (plaintiff), in presence of Shri Dogra, agreed to pay
amount for extra items, which were asked by him, but he did
not make any payment.
3(a). As per the defendants, the flat in question was
complete n 31.07.1999, but the plaintiff asked for more
changes in the said flat, thus, on the request of the plaintiff
the execution of the sale deed was deferred. The plaintiff did
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not make the balance amount of the sale consideration, i.e.,
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Rs.9,70,000/- and he also did not pay amount of extra items
provided in the flat at his request. In fact, the plaintiff was
unwilling to pay the entire sale consideration to the
defendants, but he was insisting for the delivery of
possession of the flat on payment of Rs.4,70,000/- only. The
defendants also averred that the plaintiff himself backed out
from the agreement and he was trying to circumvent the
contents of the agreement.
3(b). The defendants contended that it appeared that
the plaintiff had not enough money to pay to the defendants
and take possession of the flat. As per the defendants, all
the amenities, as promised by them, were provided in the flat
in question on 31.07.1999, except providing a lift, which was
to cater to the needs of four blocks. The site whereon lift had
to be completed was not vacant and it was in possession of
the tenants, against whom eviction proceedings had
commenced. The defendants had apprised the plaintiff,
through communication dated 28.08.1999 about the above
fact and he (plaintiff) was permitted to deduct Rs.10,000/- as
proportionate cost of the lift, which was basically to serve 60
flats. Later on, on 06.02.2002 the lift became operational
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and the plaintiff was requested to make payment of
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Rs.25,000/- for the extra items provided in the flat, but he
was unwilling to take possession of the flat by making
payment of balance amount.
3(c). The defendants pleaded that the attitude of the
plaintiff was malafide, adamant and he insisted for delivery of
possession by making only part payment of the sale
consideration. Thus, the plaintiff himself was guilty of non-
performance of the conditions of the agreement. As per the
defendants, they did not cause any delay in performance of
their part of the contract, but the plaintiff failed to perform his
part of the contract within the stipulated time, therefore, he
was not entitled for the decree of specific performance of
agreement to sell. The flat in question was complete in all
respects on 31.07.1999 and the delay in completion of the
same was only on account of changes desired by the
plaintiff. The plaintiff, even after completion of the flat on
31.07.1999 insisted for more changes, but he did not make
payment of the balance sale consideration. The plaintiff
himself tried to postpone the performance of the agreement
by taking shelter to accuse the defendants for not fulfilling
their part of the contract. The plaintiff, instead of performing
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13 Neutral Citation No. ( 2026:HHC:25159 )
his part of the contract, served them with a legal notice dated
High Court of H.P.
16.08.1999, through his counsel. The defendants, though
not duty bound to reply the above legal notice, but to keep
harmonious relations, sent their reply through Shri S.P.
Thukral, Advocate, whereby they offered to get the sale deed
registered on or before 07.09.1999. The plaintiff, instead of
accepting the offer of the defendants, chose to sent a
rejoinder to reply dated 01.09.1999 and again insisted for
delivery of possession by making part payment towards the
sale consideration.
3(d). As per the defendants, they were put to great
financial loss by the acts of the plaintiff in withholding the
balance amount of sale consideration without their being any
legal justification. The defendants further contended that the
water and electricity connections were only provided when
no objection certificates were obtained by the plaintiff from
Municipal Council, Solan and said certificates were only to
be obtained after the execution and registration of the sale
deed and making payment of sanitation taxes to the
Municipal Council. The defendants also contended that the
plaintiff himself was avoiding the performance of the contract
and backing out from agreement, dated 25.03.1999, and
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14 Neutral Citation No. ( 2026:HHC:25159 )
they (defendants) were always ready and willing to perform
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their part of the contract. They addressed many
communications to the plaintiff, but the plaintiff did not come
forward for execution and registration of the sale deed by
making balance payment of the sale consideration.
3(e). The defendants averred that the plaintiff was not
entitled to any interest on amount of Rs.3,30,000/-, as the
said amount, due to the negligent act of omission and
commission of the plaintiff, stood forfeited. The purchase of
the stamp papers by the plaintiff did not show his intention of
purchasing the flat in question, as he never offered balance
sale consideration to the defendants. As per the defendants,
the non-execution and registration of the sale deed was
solely due to the fault of the plaintiff.
4. The plaintiff filed replication to the written
statement filed by the defendants, wherein he reiterated his
stand and refuted the averments made in the written
statement.
5. On 27.02.2007, on the basis of the pleadings of
the parties, the learned Trial Court framed the following
issues for determination and adjudication:
“1. Whether the plaintiff failed to pay the
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balance sale consideration i.e.
Rs.9,70,000/- within the stipulated
period and thereby caused breach of the
agreement, if so, its effect? OPD
2. Whether the plaintiff is and had always
been ready and willing to perform his
part of contract, as per stipulations in the
agreement and is therefore entitled to a
decree for specific performance of the
agreement, as claimed? OPP
3. In case issue No. 2 is found against the
plaintiff, is he entitled to recover the part
of the sale consideration already paid
together with interest and other amounts
of money in terms of Clause-7 of the
agreement to sell? OPP
4. Whether the plaintiff is entitled to any of
the other reliefs specifically claimed by
him, if so, which ones? OPP
5. Whether the plaint is not in accordance
with the amended provisions of the
Code of Civil Procedure as alleged in
preliminary objection No. 1, if so, its
effect? OPD
6. Whether the suit is barred by limitation,
if so, its effect? OPD
7. Whether the plaintiff is stopped from
filing the suit on account of his own acts,
deeds, conduct and acquiescence, as
alleged? OPD
8. Whether the plaintiff has no legal and
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enforceable cause of action, as alleged,
if so its effect? OPD
9. Whether the plaint lacks full and material
particulars, if so, its effect? OPD
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10. Relief.”
6. After hearing the learned Counsel for the parties
High Court of H.P.
and considering the available material on record, the learned
Trial Court partly decreed the suit of the plaintiff for recovery
of Rs.3,30,000/- with interest @ 9% from 17.04.2004 till the
recovery of the amount in favour of the plaintiff and against
the defendants.
7. Learned counsel for the appellants contended
that the learned Trial Court has erroneously arrived at the
conclusion that the plaintiff was not ready and willing to
perform his part of the agreement and thus not entitled to
specific performance of the agreement. He further
contended that the plaintiff was always ready and willing to
perform his part of the agreement and had been repeatedly
requesting the defendants to complete the flat in all respects,
including providing of electricity and water connection. He
also submitted that the learned Court below has wrongly
ignored the report of the Local Commissioner, Ex. PW-3/A,
and has come to the conclusion that major construction of
the flat in question, except the lift, has been complete. He
also contended that the learned Trial Court has wrongly
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arrived at the conclusion that the plaintiff was not having the
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balance amount of the sale consideration with him.
8. Conversely, the learned Senior Counsel for the
respondents supported the judgment passed by the learned
Trial Court. He contended that the impugned judgment is
result of proper appreciation of both law and facts, thus the
same does not need any interference of this Court.
9. I have heard the learned counsel for the
appellants, learned Senior Counsel for the respondents and
carefully examined the entire records.
10. It is not in dispute that the agreement to sell was
executed between the plaintiff and the defendants on
25.03.1999 for a sum of Rs.13,00,000/-. The payment of
earnest money in the sum of Rs.3,30,000/- by the plaintiff to
the defendants is also not disputed. It is also an admitted
fact that the balance sale consideration of Rs.9,70,000/- was
to be paid by the plaintiff to the defendants at the time of the
execution and registration of the sale deeds.
11. Now the question, which arises for consideration
before this Court, is as to whether the plaintiff has always
been ready and willing to perform his part of the agreement
or not. In a suit for specific performance, the plaintiff has to
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prove a valid sale agreement; the breach of the contract by
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the defendants; and readiness and willingness of the plaintiff
to perform his part of the contract. Section 16(c) of the
Specific Relief Act mandates "readiness" and "willingness"
on the part of the plaintiff as a condition precedent to seek
specific performance. At this stage, it would be apposite to
examine Section 16 (c) of the Specific Relief Act, 1963,
which reads as under:
"16. Personal bars to relief. Specific performance of a
contract cannot be enforced in favour of a person--(a)
and (b)..........
(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 involved the payment of money, it is
not essential for the plaintiff to actually tender to the
defendant or to deposit in Court any money except
when so directed by the Court;
(ii) the plaintiff must aver performance of, or readiness
and willingness to perform the contract according to
its true construction."
12. A bare reading of the section shows that a
decree for specific performance cannot be granted to anyone
who fails to aver and prove that either he had performed or
had always been ready and willing to perform the essential
terms of the contract. As if that was not sufficient,
Explanation (ii) has been added to lay an additional
emphasis on these requirements and it provides that
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averment about performance of or readiness and willingness
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to perform the contract is sine qua non in a pleading for
specific performance. The compliance of the requirements of
Section 16(c) of the Specific Relief Act is, therefore,
mandatory in nature. The "readiness" and "willingness" are
two separate issues. The former depends on the availability
of requisite funds whereas the latter depends on the intention
of the purchaser. The "readiness" has to be proved by the
purchaser by leading evidence relating to the availability of
the funds whereas the intention has to be inferred from his
conduct and circumstances. In N.P. Thirugnanam v. Dr. R.
Jagan Mohan Rao, (1995) 5 SCC 115, the Hon’ble Supreme
Court held that 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 to adjudge
the "readiness" and "willingness" of the plaintiff. The Court
upheld the dismissal of the suit for specific performance on
various grounds inter alia that the plaintiff was dabbling in
real estate business without means to purchase the suit
property and the very contract was speculative in nature.
The relevant portion of the aforesaid judgment reads as
under:
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“5. … … …“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 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.”
13. In J .P. Builders v. A. Ramadas Rao, (2011) 1
High Court of H.P.
SCC 429, the Hon’ble Supreme Court explained the
distinction between "readiness" and "willingness". The former
refers to financial capacity and the latter to the conduct of the
plaintiff wanting performance. For the sake of ready
reference relevant para of the aforesaid judgment is
extracted hereunder:
“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.”
14. In the case of Janardan Das & ors. vs. Durga
Prasad Agarwalla & ors . reported in 2024 SCC OnLine SC
2937 the Hon'ble Apex Court has held as under:
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“16. Section 16(c) of the Specific Relief Act, 1963,
mandates that a plaintiff seeking specific performance
of a contract must aver and prove that they have
performed or have always been ready and willing to
perform the essential terms of the contract which are to
be performed by them. This requirement is a condition
precedent and must be established by the plaintiff
throughout the proceedings. The readiness and
willingness of the plaintiff are to be determined from
their conduct prior to and subsequent to the filing of
the suit, as well as from the terms of the agreement and
surrounding circumstances. The rationale behind this
provision is to ensure that a party seeking equitable
relief has acted equitably themselves. Specific
performance is a discretionary relief, and the plaintiff
must come to the court with clean hands,
demonstrating sincerity and earnestness in fulfilling
their contractual obligations. Any laxity, indifference, or
failure to perform their part of the contract can be a
ground to deny such relief.
17. The importance of readiness and willingness for
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enforcement of specific performance has been
summarized by this Court in U.N. Krishnamurthy v. A.M.
Krishnamurthy1, as follows:
"23. Section 16 (c) of the Specific Relief Act, 1963 bars
the relief of specific performance of a contract in
favour of a person, who fails to aver and prove
his readiness and willingness to perform his part
of contract. In view of Explanation (i) to clause (c)
of Section 16, it may not be essential for the
plaintiff to actually tender money to the defendant
or to deposit money in court, except when so
directed by the Court, to prove readiness and
willingness to perform the essential terms of a
contract, which involves payment of
money.However, Explanation (ii) says the plaintiff
must aver performance or readiness and
willingness to perform the contract according to
its true construction.
24. To aver and prove readiness and willingness to
perform an obligation to pay money, in terms of a
(2023) 1 SCC 775 contract, the plaintiff would
have to make specific statements in the plaint and
adduce evidence to show availability of funds to
make payment in terms of the contract in time. In
other words, the plaintiff would have to plead that
the plaintiff had sufficient funds or was in a
position to raise funds in time to discharge his
obligation under the contract. If the plaintiff does
not have sufficient funds with him to discharge
his obligations in terms of a contract, which
requires payment of money, the plaintiff would
have to specifically plead how the funds would be
available to him. To cite an example, the plaintiff
may aver and prove, by adducing evidence, an
arrangement with a financier for disbursement of
adequate funds for timely compliance with the
terms and conditions of a contract involving
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22 Neutral Citation No. ( 2026:HHC:25159 )
payment of money.
xxx xxx xxx
45. It is settled law that for relief of specific performance, the
High Court of H.P.
plaintiff has to prove that all along and till the final
decision of the suit, he was ready and willing to perform
his part of the contract. It is the bounden duty of the
plaintiff to prove his readiness and willingness by
adducing evidence. This crucial facet has to be
determined by considering all circumstances including
availability of funds and mere statement or averment in
plaint of readiness and willingness, would not suffice."
15. In Saradamani Kandappan vs S. Rajalakshmi
& Ors., 2011 (12) SCC 18, the Apex Court while examining
the doctrine that time is generally not the essence in
contracts relating to immovable property, clarified that such a
principle cannot be applied mechanically in modern
commercial realities. The Court observed that although
earlier precedents treated time stipulations in property
contracts as merely indicative, the significant escalation in
property values and changing economic circumstances
require courts to give due significance to the time stipulations
agreed between the parties. Where the contract clearly
prescribes specific dates for payment of consideration and
provides consequences for default, such stipulations may
demonstrate the intention of the parties to treat time as the
essence of the contract. In such circumstances, failure to
adhere to the agreed schedule of payment may justify
termination of the agreement and disentitle the purchaser
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23 Neutral Citation No. ( 2026:HHC:25159 )
from seeking the equitable relief of specific performance.
High Court of H.P.
The relevant portion of the aforesaid judgments is extracted
hereunder:
“37. The reality arising from this economic change cannot
continue to be ignored in deciding cases relating to
specific performance. The steep increase in prices is a
circumstance which makes it inequitable to grant the
relief of specific performance where the purchaser does
not take steps to complete the sale within the agreed
period, and the vendor has not been responsible for
any delay or non-performance. A purchaser can no
longer take shelter under the principle that time is not
of essence in performance of contracts relating to
immovable property, to cover his delays, laches,
breaches and “non-readiness”. The precedents from
an era, when high inflation was unknown, holding that
time is not of the essence of the contract in regard to
immovable properties, may no longer apply, not
because the principle laid down therein is unsound or
erroneous, but the circumstances that existed when the
said principle was evolved, no longer exist.”… …
16. In Padmakumari & others v. Dasayyan &
others, (2015) 8 SCC 695, the Apex Court, emphasized that
where the agreement of sale stipulates a specific period for
payment of the balance consideration, failure on the part of
the purchaser to comply with such stipulation assumes
significant legal importance in determining entitlement to
specific performance. The Court held that when the
purchaser does not pay the balance consideration within the
agreed period and no acceptable explanation is offered for
such default, the conduct of the purchaser clearly indicates
lack of readiness and willingness to perform the essential
terms of the contract. The Court further observed that courts
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24 Neutral Citation No. ( 2026:HHC:25159 )
must carefully examine the contractual terms and
High Court of H.P.
surrounding circumstances and cannot ignore such material
aspects while granting the equitable relief of specific
performance. Accordingly, non-compliance with the
stipulated time for payment of consideration may disentitle
the purchaser from obtaining the relief sought. The relevant
para of the aforesaid judgment is as under:
“20. The said contention urged on behalf of the plaintiff is
unacceptable to us that the question of taking
measurement would not arise before the plaintiff
performed his part of the contract regarding the
balance consideration within the period stipulated in
the agreement. Undisputedly, that had not been done
by the plaintiff in the instant case within the stipulated
time and the notice was issued by the plaintiff only after
one year, therefore, the plaintiff has not adhered to the
time which is stipulated to pay the balance
consideration amount to defendants 1 to 11 which is a
very important legal aspect which was required to be
considered by the courts below at the time of
determining the rights of the parties and passing the
impugned judgment. The courts below have ignored
this important aspect of the matter while answering the
contentious issues (i) and (ii) in favour of the plaintiff
and granted decree of specific performance in respect
of the suit scheduled property. The said finding of fact
is contrary to the terms and conditions of the
agreement, pleadings and the evidence on record.
Accordingly, we answer the said issues in favour of
defendants 12 to 15 after setting aside the concurrent
findings of fact recorded by the High Court.”
17. It is apt to note that in Mankour (dead) by L.Rs.
vs. Hartar Singh Sangha (2010) 10 SCC 512, the Apex
Court clarified that breach of contract by the defendant and
ready and willingness of the plaintiff are two distinct issues in
a suit for specific performance. Even if, a defendant is
proved to have committed breach, the plaintiff cannot obtain
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25 Neutral Citation No. ( 2026:HHC:25159 )
a decree unless he pleads and proves that he was always
High Court of H.P.
ready and willing to perform the essential terms of the
contract as required under Section 16 (c) of the Act, 1963.
Even if, the vendor wrongfully refuses to execute the sale
deed, if the purchaser did not possess the financial capacity
to pay the balance sale consideration at the time of the
performance, he is not entitled to the specific performance.
For the sake of ready reference the relevant para of the
aforesaid judgment is extracted hereunder:
40. … … “Therefore, even assuming that the defendant
had committed breach, if the plaintiff fails to aver in the
paint or prove that he was always ready and willing to
perform the essential terms of contract which are
required to be performed by him (other than the terms
the performance of which has been prevented or
waived by the plaintiff), there is a bar to specific
performance in his favour. Therefore, the assumption
of the respondent that readiness and willingness on the
part of the plaintiff is something which need not be
proved, if the plaintiff is able to establish that the
defendant refused to execute the sale deed and thereby
committed breach, is not correct.”………
18. The specific performance is an equitable relief
and the Court is not bound to grant specific relief merely
because it is lawful to do so. The relief of specific
performance sought is not automatic as the Court is required
to see the totality of the circumstances which are to be
assessed by the Court in the light of facts and circumstances
of each case. The specific performance is usually granted
where substantial sale consideration has been paid. It is well
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26 Neutral Citation No. ( 2026:HHC:25159 )
settled that the conduct of the parties, with a view to arrive at
High Court of H.P.
a finding as to whether the plaintiff was all along throughout
the agreement period, ready and willing to perform the
contract as is mandatorily required under Section 16 (c) of
the Specific Relief Act, must be determined having regard to
the entire attending circumstances. A bare averment in the
plaint or the statement made in the examination-in-chief
would not suffice. The conduct of the plaintiff must be judged
having regard to the entirety of the pleadings as also by the
evidence brought on record. Therefore, a requirement of
necessary averment in the plaint that has already performed
or has always been ready and willing to perform the essential
terms of the contract which are to be performed by the
plaintiff, essentially needs to be proved independently by
leading cogent and satisfactory evidence.
19. In the light of the aforesaid principles, coming to
the facts of the present case. The perusal of the agreement
to sell, Ex. PW-4/B, shows that the plaintiff had paid a sum of
Rs.30,000/- for purchase of the flat as earnest money to the
defendants at the time of its execution on 16.02.1999,
through a bearer cheque No. RGA 437864, dated
16.02.1999, in favour of Shri Om Prakash Sahni, drawn on
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27 Neutral Citation No. ( 2026:HHC:25159 )
Panjab National Bank, SCO 1118-1119, Sector 22-B,
High Court of H.P.
Chandigarh. The balance amount of Rs.3,00,000/- was to be
paid in the following manner:
“1. Rs.1,00,000/- (one lac only) on or before
28.02.1999;
2. Rs.2,00,000/- (two lacs only) in the month
of May, 1999;”
20. The perusal of agreement to sell, Ex.PW-4/B,
further shows that the remaining sale consideration of
Rs.9,70,000/- was to be paid by the plaintiff to the
defendants on or before 30.06.1999 before the Sub Registrar
at the time of registration and execution of the sale deed
before the Registering Authority and handing over the
possession of the flat in question. The record nowhere
demonstrates that on or before 30.06.1999 the plaintiff had
ever appeared before the Sub Registrar with balance sale
consideration for the execution and registration of the sale
deed and, in fact, it was during the pendency of the suit
before the learned Trial Court, with the intervention of the
Trial Court, the parties had agreed to get the sale deed
executed and registered. The sale consideration was settled
between the parties at Rs.13,00,000/-, but the plaintiff had
purchased stamp papers of Rs.1,20,000, Ex.P1 to Ex. P5,
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28 Neutral Citation No. ( 2026:HHC:25159 )
i.e., for sale consideration of Rs.10,00,000/- only. The
High Court of H.P.
plaintiff offered no explanation as to why he had purchased
stamp papers of less value. The perusal of the record also
shows that sale deed was executed on stamp papers, i.e.,
Ex. P1 to Ex. P5, but the plaintiff did not agree for its
registration on the grounds that some illegal and extraneous
matters were introduced in the sale deed. However, the
plaintiff did not explain as to what illegal and extraneous
matters were introduced in the sale deed. Even if there were
some illegal and extraneous matters introduced in the sale
deed, as alleged by the plaintiff, though not proved, the
plaintiff was required to deposit the balance sale
consideration of Rs.9,70,000/- before the learned Trial Court,
but the fact remains that the plaintiff neither appeared before
the Sub Registrar with balance sale consideration nor he
agreed for the registration of the sale deed, despite its
execution on stamp papers, Ex. P1 to Ex.P5. He also did not
deposit the balance sale consideration in the Court.
21. The perusal of the record further demonstrates
that during the pendency of the suit before the learned Trial
Court, the spot was got inspected from Local Commissioner
and two experts, i.e., Shri S.D. Singh, B.E. B.Com, ME PE
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29 Neutral Citation No. ( 2026:HHC:25159 )
(USA) MIE(I), AIIA-MCA and Shri G.C. Gupta inspected the
High Court of H.P.
spot. Shri S.D. Singh was examined by the plaintiff as PW-3
and he proved his report, Ex. PW-3/A, and photographs Ex.
PW-3/A-1 to Ex. PW-3/A-24. On the other hand, the
defendants examined Shri G.C. Gupta, as DW-2, who proved
his report, Ex. DW-2/A.
22. The meticulous examination of the reports Ex.
PW-3/A and Ex. DW-2/A demonstrates that the defendants
had completed major part of the construction of the flat in
question, except the lift, but in report, Ex. PW-3/A, the
plaintiff had pointed out some items, which were allegedly
found by him to be incomplete at the time of inspection of the
flat in question. The items pointed out by the plaintiff were
minor and their completion did not require huge expenditure.
Thus, it cannot be said that the defendants, who had
completed the major part of the construction of the flat, had
not performed their part of the contract. Admittedly, the
defendants had not fitted bath tubs, but by this mere fact, it
cannot be said that the defendants had not performed their
part of the contract, especially when they had completed
major part of the contract. Report, Ex. DW-2/A shows that
the flat was complete, except the lift. Moreover, the plaintiff
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30 Neutral Citation No. ( 2026:HHC:25159 )
had not filed any objection against report, Ex. DW-2/A. Thus,
High Court of H.P.
merely on the basis of report, Ex. DW-2/A, it cannot be said
that the defendants have not performed their part of the
contract.
23. It is trite law that the plaintiff seeking specific
performance of the agreement has to prove all along until the
final decision in the suit is made, that he was ready and
willing to perform his part of the contract and the plaintiff is
duty- bound to prove his readiness and willingness by
adducing cogent evidence to that effect. In the case on hand,
the agreement to sell (Ex.PW-4/B) clearly stipulates that the
plaintiff had to pay the balance sale consideration to the
defendants before Sub Registrar at the time of the execution
and registration of the sale deed on or before 30.09.1999,
but the plaintiff neither served notice upon the defendants for
execution and registration of the sale deed nor he ever
appeared before the Sub Registrar alongwith balance sale
consideration. Therefore, it is safe to hold that the plaintiff
himself was reluctant to pay the balance sale consideration
to the plaintiff.
24. Certificates, Ex. PW-7/A and Ex. PW-7/B, were
brought on record by the plaintiff, which show that he had
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31 Neutral Citation No. ( 2026:HHC:25159 )
applied for loan during the year 2001, which was sanctioned
High Court of H.P.
on 14.10.2002, but he did not avail such loan. The plaintiff
was required to pay the balance sale consideration on or
before 30.06.1999, on completion of the flat, but record
nowhere reflects that the plaintiff had applied for loan or
obtained any loan on or before 30.06.1999. Thus, it can be
inferred that the plaintiff had no intention to pay the balance
sale consideration to the defendants within the time
prescribed in the agreement to sell, Ex. PW-4/B. Therefore,
after going through the material on record, it cannot be said
that the plaintiff was ready and willing to perform his part of
the contract. Hence, in view of the entire evidence on record,
it can safely be held that the plaintiff never intended to pay
the balance amount of the sale consideration to the
defendants within the stipulated period as such the plaintiff
cannot be said to have performed his part of the
agreement/contract.
25. In view of my aforesaid discussion and the
principle laid down by the Apex Court, this Court is of the
considered view that the plaintiff had failed to prove his
readiness and willingness to pay the balance sale
consideration as agreed in agreement to sell, Ex.PW-4/B.
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32 Neutral Citation No. ( 2026:HHC:25159 )
Hence, no interference in the impugned judgement and
High Court of H.P.
decree passed by the learned Additional District Judge,
Solan, District Solan, H.P. is required. The appeal, which
sans merits, deserves dismissal and is accordingly
dismissed.
Pending application(s), if any, shall stand(s)
disposed of.
( Sushil Kukreja )
Judge
th
29 June, 2026
(virender)
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