Jharkhand High Court
Suresh Thakur (Died And Substituted ... vs Ira Mitra W/O Late Prafulla Chandra ... on 18 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
( 2025:JHHC:29073 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 178 of 2003
1. Suresh Thakur (died and substituted vide order dated
17/07/2025)
1(i) Sunita Devi, widow of late Suresh Thakur
1 (ii) Rakhi Kumari
1(iii) Gudiya Kumari
Both daughters of Suresh Thakur, All are resident of Mohalla-
Ramnagar, P.O. Boddam Bazar, P.S. Sadar, Dist. Hazaribag
2. Naresh Thakur alias Naresh Kumar
3. Sunil Kumar Thakur
4. Anil Kumar Thakur, 2,3,4 sons of late Goberdhan Thakur
5. Pushpa Devi alias Pushpa Kumari
6. Pratima Devi alias Pratima Kumari, 5,6 daughters of late
Goberdhan thakur
7. Anima Devi alias Anima Kumari (substituted v.o.d. 15/02/2022)
7(i) Atul Kumar S/o Sheo Sharan Thakur, R/o Mohalla Kani
Bazar, P.O. Boddam Bazar, P.S. Sadar Town, Dist. Hazaribag
8. Sunita Kumari
All resident of village Kadma, P.O. Boddom Bazar, P.S.
Katkamsandi, Dist. Hazaribag
... Plaintiffs/Respondents/Appellants
Versus
Ira Mitra W/o Late Prafulla Chandra Mitra, resident of Imlikothi,
Hazaribag, P.O., P.S. and Dist. Hazaribag (expunged vide order
dated 30.11.2007)
1: Chandra Basu
1(A) Ratna Bhadra
2.Kusumlata Devi W/o Sri Bijay Kumar Agarwal
3. Uma Devi W/o Sri Shanti Kumar Agarwal, No. 2 and 3 resident
of Bara bazar, P.O. P.S. and Dist. Hazaribag
4.Smt. Chandra Basu D/o Late Prafulla Chandra Mitra and W/o
Late D. Basu, resident of 19, Bipinpal Road, P.O. Central Calcutta
5. Smt. Ratna Bhandra, D/o Late Prafulla Chandra Mitra of 80-1-
A, Bonded Road, P.O. Hazra, Calcutta-19
... ...Defendants/Appellants/Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. B.V. Kumar, Advocate
For the Respondents : Mr. Ayush Aditya, Advocate
---
17/18.09.2025 This appeal has been filed against the judgment dated
04.03.2003 (decree signed on 24.03.2003) passed by learned 6th
District Additional and Sessions Judge, Hazaribag in Title Appeal No.
( 2025:JHHC:29073 )
08 of 1992/18 of 2001 whereby the judgment passed by the learned
Trial Cout has been set aside.
2. The Trial Court's judgment was passed on 29.02.1992 (decree
signed on 10.03.1992) passed by the learned Sub Judge-I, Hazaribag
in Title Suit No. 56 of 1984. The appeal was allowed and
consequently the plaintiffs are the appellant before this court. The case
arises out of prayer for specific performance of contract of agreement
of sale dated 06.10.1983 entered into between the original owner of
the suit property who was a tenant in a portion of the suit premises.
3. The suit was filed seeking a decree that the sale deed executed
by the defendant nos. 1 and 2 in favour of defendant nos. 3 and 4 vide
Sale deed No. 5514 dated 06.04.1984 be declared null and void,
illegal, invalid and not binding upon the plaintiffs. A further relief was
sought that the defendant nos. 1 and 2 be directed and ordered
specifically to perform the agreement and all the acts necessary in law
and a prayer was made for a decree of specific performance of
contract and the defendant nos. 1 and 2 be ordered to execute the sale
deed in favour of the plaintiffs.
4. This appeal was admitted for final hearing vide order dated
18.07.2006 on the following substantial questions of law: -
(1) Whether the lower appellate court has erred in holding
that the time was essence of the contract, ignoring the
clause which clearly provided that if the first party refuses
to execute sale-deed within the time fixed then in that case
the second party can move the court for appropriate relief
and get the sale-deed executed? and
(2) whether learned lower appellate court erred in
reversing the judgment and decree of the trial court in
wrong perspective."
5. The specific case of the plaintiffs was that the plaintiffs were in
occupation of the property in the ground floor as monthly tenant since
1953 and the defendant nos. 1 and 2 being the owners of the property
approached the plaintiffs on 06.10.1983 and entered into an agreement
of sale with respect to the suit property for a consideration of Rs.
30,000/-. The agreement was executed by both the parties on
( 2025:JHHC:29073 )
06.10.1983. The plaintiffs paid an amount of Rs. 5,000/-as a part of
the consideration as advance and the plaintiffs were in possession. It
was asserted that pursuant to the agreement of sale on 06.10.1983 the
plaintiffs were no longer tenant of defendant no. 1 and 2 and became
the owner of the property by virtue of the agreement dated
06.10.1983. As per the agreement itself, the defendant no. 1 and 2
agreed to execute the sale deed of the suit property in favour of
plaintiffs within six months from the date of the agreement i.e.
06.10.1983. It was the case of the plaintiffs that after the agreement,
the plaintiff approached the defendant no. 1 and 2 many times to
execute and register the sale deed, but the defendants on various
pretext did not execute the sale deed and assured the plaintiffs that
they will do the needful. The plaintiff waited as the defendants had
given the assurance. However, on 11.04.1984 the plaintiffs sent a
registered notice to the defendant nos. 1 and 2 to execute the sale deed
within a month, otherwise they will approach the court seeking
specific performance of contract, but in spite of notice, the sale deed
was not executed. It was further case of the plaintiffs that on
25.04.1984 the defendant nos. 1 and 2 sent a registered notice to the
plaintiffs informing them that they have already sold the suit property
to the defendant nos. 3 and 4 on 06.04.1984 and on the same day,
plaintiffs also received the notice from the defendant nos. 3 and 4
informing him that they have purchased the suit property and hence
they are entitled to receive the rent.
6. It was further case of the plaintiffs that on receiving the two
notices, the plaintiffs informed the defendant nos. 3 and 4 that
defendant nos. 1 and 2 had no right to sell the property in view of the
agreement of sale entered between the plaintiffs and the defendant
nos. 1 and 2 on 06.10.1983. The plaintiffs asserted that the deed
executed on 06.04.1984 by the defendant nos. 1 and 2 in favour of
defendant nos. 3 and 4 was illegal, void, invalid and not binding upon
the plaintiffs and also asserted that from the date of the agreement i.e.
06.10.1983, the plaintiffs perfected right, title, interest and possession
over the suit property. It was asserted in paragraph 12 to 15 that the
( 2025:JHHC:29073 )
plaintiffs had applied to the defendants to perform the agreement on
his part but the defendant no. 1 and 2 had not done so and they have
refused to do so and that the plaintiffs were still ready to purchase the
suit property and are ready to pay the balance consideration money of
Rs. 25,000/- and were still ready and willing to specifically perform
the agreement on their part. It was also asserted that the act of the
defendant nos. 1 and 2 was wrong and that the defendant nos. 3 and 4
also do not have the right to purchase the property as they had full
information that the defendant nos. 1 and 2 vide agreement dated
06.10.1983 have already contracted for sale to the plaintiffs.
7. A written statement was filed on behalf of defendant nos. 1
and 2 denying the agreement of sale. It was alleged that the agreement
of sale was forged and fabricated.
8. In paragraph no. 17 of the written statement, it was asserted that
the plaintiffs never applied to these defendants to specifically perform
the alleged agreement nor there was any refusal as alleged, nor there
was any occasion for the same. The statement with regard to readiness
and willingness of the plaintiffs was also denied in paragraph 18 of the
written statement. It was asserted that defendant nos. 3 and 4 are
bonafide purchaser of the suit property. The statements made in
paragraph 12 to 16 were denied.
9. A written statement was also filed by the defendant nos. 5 and
6 who adopted the written statement filed by the defendant nos. 1 and
2 and also asserted that even if court comes to a finding that there was
an agreement of sale between the plaintiffs and defendant nos. 1 and 2
though not admitted, the defendant nos. 5 and 6 were not bound by the
alleged agreement since the same has not been executed by defendants
on behalf of the defendant no. 5 and 6 as a power of attorney holder
on their behalf. Therefore, it was asserted that the agreement of sale
cannot be enforced.
10. So far as defendant nos. 3 and 4 are concerned, they also filed
a separate written statement and asserted that the alleged agreement
dated 06.10.1983 was forged and fabricated. It was wholly incorrect to
say that the plaintiffs were put in possession pursuant to the agreement
( 2025:JHHC:29073 )
of sale, rather the plaintiffs were already a tenant over the suit
property and that the plaintiffs never became the owner of the suit
property by virtue of the alleged agreement. The defendant nos. 3 and
4 have stated that they had no knowledge. These defendants also
asserted that the agreement itself was forged and fabricated therefore
the question of full information to these defendants of the alleged
agreement did not arise at all.
11. The learned Trial Court framed the following issues for
consideration in paragraph no. 5 which are as under: -
(i) Whether the present suit as framed is
maintainable?
(ii) Whether the plaintiffs have valid cause of action
for filing the present suit?
(iii) Whether the present suit is barred by the
provisions of the Limitation Act?
(iv) Whether the present suit is barred by the
provisions of the Specific Relief Act?
(v) Whether the present suit is barred by the
principles of waiver, acquiescence and estoppel?
(vi) Whether the present suit is bad for mis joinder
and non-joinder of parties?
(vii) Whether the plaintiffs are entitled to get decree
on the basis of the alleged contract dated
06.10.1983?
(viii) Whether the plaintiffs are entitled for any other
reliefs?
12. The learned Trial Court after considering the materials on
record was of the view that the agreement dated 06.10.1983 was duly
executed and was a valid document and decreed the suit. On the point
of readiness and willingness, the learned Trial Court recorded that the
plaintiffs had given legal notice and the plaintiffs had deposited the
balance consideration amount before the court pursuant to the order of
the court and was of the view that these aspects are strong in favour of
the plaintiffs. The learned court was of the view that the plaintiffs
were ready and willing to perform their part of the contract and
ultimately decreed the suit.
13. So far as the learned 1st Appellate Court is concerned, the
learned court observed that the point for consideration before the court
( 2025:JHHC:29073 )
was as to whether the impugned judgment passed by the learned
Trial Court was fit to be confirmed or was liable to be set aside on
the grounds taken on behalf of the appellants.
14. The learned 1st Appellate Court scrutinized the materials on
record and confirmed the finding of the learned Trial Court that the
agreement dated 06.10.1983 was a valid document. Thereafter the
learned court went on to examine the other ingredients which are
required to be satisfied for seeking a specific performance of contract
and allowed the appeal.
15. On the point of readiness and willingness, the learned 1st
Appellate Court referred to the recital of the agreement dated
06.10.1983 and observed that it was crystal clear that the plaintiffs had
to deposit Rs. 25,000/- within six months from the date of alleged
agreement of sale and examined the readiness and willingness of the
plaintiffs to perform their part of the agreement in terms of the
agreement itself.
16. The appellant before the learned 1st appellate court urged that
the period of six months in exhibit-4 (agreement dated 06.10.1983)
expired on 05.04.1984 and there was absolutely no evidence to prove
that the plaintiffs were ready and willing to get the sale deed executed
within the period of six months; even the notice was given by the
plaintiffs after expiry of six months i.e. on 11.04.1984. The capacity
of the plaintiffs to pay was also considered while observing that at the
time of making payment of Rs. 5000/- on the date of agreement, the
plaintiffs had taken loan of Rs. 1,000/- and the remaining
consideration amount was Rs. 25,000/-. The learned court also
considered the oral evidence and ultimately came to a finding that
after expiry of six months from 06.10.1983, defendant nos. 1 and 2
were not liable to execute any such agreement of sale in favour of the
plaintiffs and that the plaintiffs had failed to prove their readiness and
willingness to pay the amount within a period of six months. It was
recorded that title of defendant nos. 1 and 2 was clearly admitted and
undisputed and the title passed on defendant nos. 3 and 4 on
06.04.1984 when the sale deed was executed by defendant nos. 1 and
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2 in favour of defendant nos. 3 and 4 and till then no steps were taken
by the plaintiffs to perform their part of the contract and as such the
defendant nos. 1 and 2 had every right to transfer their suit property in
favour of defendant nos. 3 and 4. The learned Court ultimately held
that the plaintiffs were not able to prove the other ingredients for grant
of specific performance of contract and therefore allowed the appeal.
Arguments of the appellants.
17. The learned counsel for the appellants (plaintiffs) while
assailing the impugned judgment has submitted that no issue was
framed with regard to readiness and willingness on the part of the
plaintiffs to perform their part of the contract. He has further
submitted that the period of six months from 06.10.1983 would have
expired on 06.04.1984 and 06.04.1984 would be counted as a last date
and therefore the sale deed executed on 06.04.1984 cannot be said to
be beyond the period of six months. He has also submitted that the suit
was filed on 21.05.1984 and on 01.06.1984, a direction was issued by
the court to deposit the balance consideration amount which the
plaintiffs duly deposited on 10.07.1984. The learned counsel has
submitted that when the defendants were challenging the very validity
of agreement dated 06.10.1983, by stating the same to be a forged and
fabricated document, the parties did not join issues with respect to the
readiness and willingness to perform the agreement and therefore the
learned 1st Appellate court has gone beyond the frame of the suit to
come to any finding to this effect.
18. The learned counsel has submitted that there was no pleading
that the time was the essence of the contract and there was a clear
stipulation in the agreement that if the sale deed is not executed within
six months, it will be opened to the plaintiffs to seek specific
performance of contract. The learned counsel submits that the suit was
immediately filed after expiry of six months on 21.05.1984 although
the period of limitation for filling the suit would have been three years
from the date of cause of action. However, the immediate step on
behalf of the plaintiffs to file the suit and also deposit of balance
consideration amount of Rs. 25,000/- upon the direction issued by the
( 2025:JHHC:29073 )
court indicates that the plaintiffs were throughout ready and willing to
perform their part of the contract. The learned counsel has referred to
the judgement passed by the Hon'ble Supreme Court reported in
(1977) 2 SCC 539 (Govind Prasad Chaturvedi versus Hari Dutt
Shastri and Another) Paragraph 5 and 6 and has referred to
paragraph 5 thereof to submit that the fixation of period within which
the contract has to be performed does not make the stipulation as to
time is the essence of the contract. When the contract relates to sale of
immovable property, it would normally be presumed that the time is
not the essence of the contract. The learned counsel submits that the
aforesaid judgment fully applies to the facts of the present case and
the time cannot be said to be the essence of the contract and therefore
the substantial question of law is fit to be answered in favour of the
appellants.
19. The learned counsel has submitted that the learned 1 st Appellate
court has reversed the judgment and decree of the learned Trial Court
in wrong perspective considering the point in connection with which
no issue was framed by the learned Trial Court. The learned counsel
has also relied upon the judgment passed by the Hon'ble Orissa High
Court reported in AIR 1952 Orissa 279 paragraph nos. 7 to 10 in order
to substantiate his argument that the six months from the date of
agreement i.e. 06.10.1983 would have expired not on 05.04.1984 but
on 06.04.1984 and 06.04.1984 being the last date of six months, the
sale deed could not have been executed on that day. The learned
counsel submits that even till 12 O' clock midnight of 06.04.1984, the
agreement of sale dated 06.10.1983 could have been acted upon but
the defendants did not wait and ultimately the sale deed was executed
by defendant nos. 1 and 2 in favour of defendant nos. 3 and 4 on
06.04.1984.
Submission on behalf of the respondents
20. The learned counsel appearing on behalf of the respondents has
submitted that although no specific issue was framed in connection
with readiness and willingness to perform the part of the contract, but
there was specific pleading on the part of the plaintiffs in paragraph
( 2025:JHHC:29073 )
12,13 and 14 regarding his readiness and willingness to perform his
part of the contract and there was a denial by defendant nos. 1 and 2.
The learned counsel has submitted that even the parties joined issues
on this point at the time of evidence before the court and the learned
Trial Court specifically recorded that there was readiness and
willingness on the part of the plaintiffs to perform his part of the
contract and this finding was based on two aspects one was that legal
notice was given on 11.04.1984 and that the plaintiffs had deposited
balance consideration amount before the court on 10.07.1984. He
submits that both these incidents are admittedly after the expiry of the
period of the agreement which expired on 05.04.1984 from
06.10.1983. The learned counsel submits that any conduct after the
agreement is of no consequence.
21. On the point of readiness and willingness, the learned counsel
has relied upon the judgment passed by the Hon'ble Supreme Court
reported in (2023) 11 SCC 775 (U.N. Krishnamurthy versus A.M.
Krishnamurthy) and has referred to paragraph 46 and 47 of the said
judgment to submits that merely deposit of balance consideration
amount later on and also deposit of the amount in the court are not
proof of readiness and willingness, rather the plaintiffs have to prove
his readiness and willingness to perform their part of the contract on
the date of execution of the agreement till the date of decree which is a
condition precedent for grant of relief of specific performance of
agreement .
22. The learned counsel has referred to the evidence of P.W. 2 as
well as P.W. 5(plaintiff) to submit that it is an admitted fact that out of
Rs. 5,000/- which was the initial deposit, Rs. 1,000/- was taken as
loan. He has referred to the evidence of P.W. 2 at paragraph 11 who
stated that the plaintiffs had sold their property to deposit the balance
consideration amount before the court pursuant to the order of the
court. The learned counsel submits that this itself goes to show that the
plaintiffs were not ready and willing to perform their part of the
contract during the subsistence of the contract. The learned counsel
has also submitted that although there is averment of readiness and
( 2025:JHHC:29073 )
willingness, but there is no averment of readiness and willingness on
the part of the plaintiffs to perform their part of the contract within the
period of six months of the contract.
23. The learned counsel has again relied upon the aforesaid
judgement passed in the case of U.N. Krishnamurthy (supra)
paragraph 36 to submit that the readiness and willingness is to be
proved right from the date of the contract. In the present case, there is
neither any pleading nor any proof with regard to the readiness and
willingness to perform his part of the contract during the period of the
six months which was stipulated period of the contract.
24. The learned counsel has again relied upon the aforesaid
judgement passed in the case of U.N. Krishnamurthy (supra)
paragraph 30 to submit that mere filling of suit within a short period
after expiry of six months will not be a reason to come to a conclusion
that the plaintiffs were ready and willing to perform their part of the
contract. He submits that the same could merely be a desire to get
specific performance of contract.
25. The learned counsel for the respondents has referred to the
judgment passed by the learned 1st Appellate Court and has submitted
that the learned 1st Appellate Court considered the evidence of D.W. 4
and his cross examination at length at internal page 18 of the judgment
wherein D.W. 4 had stated that he met with the plaintiffs and he
disclosed to him that he was likely to purchase the suit property but
the plaintiffs did not whisper anything about the alleged agreement.
The learned counsel submits that on the basis of this, the learned 1 st
appellate court has come to a finding that defendant nos. 3 and 4 were
bonafide purchasers of the suit property. The learned counsel has also
submitted that no substantial question of law has been framed so far as
point of readiness and willingness of the plaintiffs is concerned. The
question of law essentially relates to the fact that as to whether the
time was the essence of the contract. He has submitted that for that
purpose, the contract can be looked into and on the face of the
contract, it appears that the time was the essence of contract.
( 2025:JHHC:29073 )
26. The learned counsel has placed the exhibit-4 i.e. agreement of
sale and has submitted that in order to come to a conclusion as to
whether the time was the essence of the contract, three paragraphs of
the agreement would be relevant.
(i) That the first party now agree and bind himself that
within six months from this date will execute the
sale deed in respect of Schedule-A property in
favour of second party and the same be presented
for registration and he would receive the rest of Rs.
25,000/- the consideration money from the second
party.
(ii) That, if the second party does not get the sale deed
executed by the first party in fixed time, then
advance money of Rs. 5,000/- paid to the first party
will be forfeited. From this date, the first party is not
entitled to get rent from the second party.
(iii) That if the first party refuses to execute sale deed in
respect of schedule-A property to the second party
within time fixed, then in that case, the second party
is free to move the court and get the sale deed
executed.
27. The learned counsel submits that all the steps were required to
be taken within a period of six months. The learned counsel has also
submitted that extract of the agreement has been recorded by the first
appellate court also.
Rejoinder of the appellants.
28. In response, the learned counsel for the appellants has referred
to the evidence of P.W. 5 and has submitted that the plaintiffs have
specifically stated in paragraph 6 of their evidence that the defendant
nos. 3 and 4 had due knowledge about the agreement of sale entered
into between the plaintiffs and the defendant nos. 1 and 2. The learned
counsel has also submitted that the plea of bonafide purchaser is not
the subject matter of consideration in the present case considering the
scope of the substantial question of law.
29. The records of the case reveal that undisputed facts which is
born out of record of the case is as under: -
(a) Schedule-A of the plaint belonged to defendant no. 1 and 2.
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(b) The defendant nos. 1 and 2 entered into an agreement of sale
of the suit property vide agreement dated 06.10.1983 for a
total consideration of Rs. 30,000/- and they received Rs.
5,000/- as part payment by way of advance.
(c) The terms and conditions of the agreement dated 06.10.1983
which are relevant for the purposes of the present case are as
under: -
(i) That the first party now agree and bind
himself that within six months from this date
will execute the sale deed in respect of
Schedule-A property in favour of second party
and the same be presented for registration and
he would receive the rest of Rs. 25,000/- the
consideration money from the second party.
(ii) That, if the second party does not get the sale
deed executed by the first party in fixed time,
then advance money of Rs. 5,000/- paid to the
first party will be forfeited. From this date, the
first party is not entitled to get rent from the
second party.
(iii) That if the first party refuses to execute sale
deed in respect of schedule-A property to the
second party within time fixed, then in that
case, the second party is free to move the
court and get the sale deed executed.
30. The terms and conditions of the agreement reveal that the sale
deed was to be executed within six months and was also to be
presented for registration within the same time and the registration
would be done upon receipt of balance consideration amount of Rs.
25,000/-. There is also a default clause in the agreement that if the
second party i.e. a prospective purchaser does not get the sale deed
executed by the first party in a fixed time, then the advance amount of
Rs. 5,000/- would be forfeited. The agreement also provided that from
the date of the agreement, the owner of the property was not entitled
to get rent from the prospective purchaser. The agreement also
provided that if the owner of the property refuses to execute sale deed
within the time fixed, i.e. six months then the prospective purchaser is
free to move the court to get the sale deed executed. The aforesaid
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terms and conditions of agreement clearly reveal that all the steps right
till the execution of the sale deed was to be undertaken within a period
of six months and in case steps are not taken by the prospective
purchaser, the advance amount will stand forfeited and in case the
owner refuses to execute the sale deed, the prospective purchaser is
free to move the court to get the sale deed executed.
31. This court finds that the defendants completely denied the
execution of the agreement of sale dated 06.10.1983 but there are
concurrent findings of both the courts in favour of the plaintiffs that
the agreement was valid. This court also findings that there were no
foundational pleadings that the time was the essence of the agreement
dated 06.10.1983 and accordingly there was no occasion for the
learned court to frame any issue to this effect. There is no finding of
the learned trial court that time was the essence of contract. However,
the learned 1st appellate court after considering the nature of the
agreement held that time was the essence of the agreement dated
06.10.1983. In view of the judgement relied upon by the learned
counsel for the appellants reported in (1977) 2 SCC 539 (supra) this
court is of the considered view that there learned 1st appellate could
not have recorded a finding that time was the essence of the agreement
without there being any foundational pleadings and issue framed as it
is well settled by the said judgement that when a contract relates to
sale of immoveable property it will be normally presumed that time is
not the essence of the contract even when there is fixed period within
which the contract is to be performed. The paragraph 6 of the
aforesaid Judgement is quoted as under: -
" 6. Apart from the normal presumption that in the case of an
agreement of sale of immovable property time is not the essence of
the contract and the fact that the terms of the agreement do not
unmistakably state that the time was understood to be the essence
of the contract neither in the pleadings nor during the trial the
respondents contended that time was of the essence of the contract.
In the plaint the allegation was that the appellant has always been
ready and willing to perform his part of the contract and he did all
that he was bound to do under the agreement while the respondents
committed breach of the contract. The respondents did not set up
the plea that the time was of the essence of the contract. In para 32
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of the written statement all that was stated was that the appellant
did not perform his part of the contract within the stipulated time
and that the contract thereafter did not subsist and the suit is
consequently misconceived. The parties did not go to trial on the
basis that time was of the essence of the contract for no issue was
framed regarding time being the essence of the contract. Neither is
there any discussion in the judgment of the trial court regarding this
point. The trial court after considering the evidence came to the
conclusion that appellant was always ready and willing to perform
his part of the contract while the respondents were not. In the
circumstances therefore the High Court was in error in setting as
one of the points for determination whether time was of the essence
of the contract. The High Court after referring to the agreement was
of the view that the agreement was entered into between the parties
during the course of a litigation between the appellant and the
respondents and in pursuance of the agreement the parties were
directed to withdraw their cases and were directed further not to
take fresh legal steps during the period of two months within which
the sale deed was to be executed. On taking into account the
circumstances of the case and the conduct of the parties of serving
on each other notices, counter notices and telegrams the High Court
inferred an intention on the part of the parties to treat the time as of
essence of the contract. We will refer to the terms of the contract
and the correspondence between the parties in due course but at
this stage it is sufficient to state that neither the terms of the
agreement nor the correspondence would indicate that the parties
treated time as of essence of the contract. In fact, according to the
agreement the sale deed ought to have been executed by May 24,
but it is the admitted case that both the parties consented to have
the document registered on May 25. On the question whether the
time is of the essence of the contract or not we are satisfied that the
High Court was in error in allowing the respondents to raise this
question in the absence of specific pleadings or issues raised before
the trial court and when the case of time being the essence of the
contract was not put forward by the respondents in the trial court.
Apart from the absence of pleadings we do not find any basis for
the plea of the respondents that the time was of the essence of the
contract."
32. Learned counsel for the appellants has laid emphasis on the
point that the period of limitation to file was suit was three years for
the date of cause of action. This court is of the considered view that
merely because there is a stipulation that in the agreement that the
plaintiffs could file a suit seeking enforcement of the agreement, in
case the defendants refused to perform their part of the agreement will
certainly not extend the period of the agreement beyond 6 months and
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will not extend the period till the period of limitation to file the suit
expired.
33. In view of the aforesaid discussions this court is of the
considered view that the lower appellate court has erred in holding
that the time was essence of the contract. The 1st substantial
question of law is accordingly answered. However, this court is also
of the considered view that merely because there is a stipulation
that in the agreement that the plaintiffs could file a suit seeking
enforcement of the agreement, in case the defendants refused to
perform his part of the agreement, the same will certainly not extend
the period of the agreement beyond 6 months.
34. This is due to the reason that the plaintiffs have to show their
readiness and willingness to perform their part of the agreement
during the period of 6 months as stipulated in the agreement itself and
also till the filing of the suit and then throughout the proceedings as
per the requirement of section 16 (c ) of the Specific Relief Act, 1963
which is a pre-condition to get a decree of specific performance of the
agreement.
35. This court finds that the learned 1st appellate court has recorded
a clear finding that there is no averment in the plaint that the plaintiffs
were ready and willing to perform their part of the agreement within
the period of 6 months as prescribed in the agreement. The learned 1st
appellate court has also recorded a finding that even while making
payment of Rs.5000/- as initial payment the plaintiffs had taken loan
of Rs.1000/- which was a reflection of the financial capacity of the
plaintiffs to pay. Admittedly, there has been no payment thereafter.
The balance amount was paid in the court when the plaintiffs were
directed to deposit and it has come in the evidence that the balance
amount was deposited after the plaintiffs sold their property. This
court finds that there is no averment in the plaint with regards to
availability of money with the plaintiffs to perform their part of the
agreement to demonstrate their readiness during the subsistence of the
agreement and even till filing of the suit. This court also finds that the
suit property was sold on the next day upon expiry of the 6 months
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from the date of agreement and the first notice asking the defendants
to execute the sale deed was also issued after the property was already
sold. There is no iota of evidence on record to show readiness on the
part of the plaintiffs to perform their part of the agreement prior to
filing of the suit, much less during the stipulated period of 6 months as
prescribed in the agreement. This court finds that there is no cogent
material to prove the willingness on the part of the plaintiffs at least
till issuance of the legal notice which was issued after expiry of the
period of 6 months and after the suit property was already sold.
36. This court also finds that the learned 1st appellate court has also
recorded a finding based on materials on record that the defendant no.
3 and 4 were bonafide purchasers for value and in good faith. The
argument of the appellants that the sale deed was executed within the
period of 6 months and on the last date is not acceptable as a clear
finding has been recorded, and rightly so, that 6 months expired on
05.04.1984 and the sale deed was executed on 06.04.1984. The
finding does not suffer from any perversity. The materials on record
particularly the oral evidence were considered to come a finding that
the defendant no. 3 and 4 were bonafide purchasers for value and in
good faith and the necessary enquiries were also made prior to
purchase.
37. The plaintiffs claimed that by virtue of an agreement, he had
become the owner of the suit premises and asserted that he approached
the defendant no. 2 many times to execute the registered sale deed, but
the defendants on various pretext took time several times and assured
that the they would transfer the property very soon and the plaintiffs
acted on such assurance. These were completely denied by the
defendant no. 1 and 2. However, no specific date was given by the
plaintiffs as when the plaintiffs approached the defendant nos. 1 and 2
for execution and registration of the sale deed; no specific date was
given as to when the defendant no. 1 and 2 assured the plaintiffs that
the property will be transferred in favour of the plaintiffs very soon.
The only evidence with respect to plaintiffs approaching the defendant
nos. 1 and 2 is the registered notice dated 11.04.1984 issued to
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defendant nos. 1 and 2 asking them to execute the sale deed within a
period of one month failing which they would go to the court and by
this time the property was already sold to the defendant nos. 3 and 4
on 06.04.1984.
38. The learned Trial Court recorded that the plaintiffs had given
legal notice and the plaintiffs had deposited the balance consideration
amount before the court pursuant to the order of the court which were
in favour of the plaintiffs and held that the plaintiffs were ready and
willing to perform their part of the contract and decreed the suit. The
learned trial court has not considered the readiness and willingness on
the part of the plaintiffs during the period of the agreement, much less,
right from the date of the agreement.
39. In the judgement passed by the Hon'ble Supreme Court
reported in (2023) 11 SCC 778 (supra) it has been held as under: -
30. In Umabai v. Nilkanth Dhondiba Chavan, this Court held
that a finding as to whether the plaintiffs were all along and still
ready and willing to perform their part of the contract, was a
mandatory requirement under Section 16(c) of the Specific
Relief Act. The Court would necessarily have to arrive at the
finding that the plaintiff all along were, and still are ready and
also willing to perform their part of the contract, taking into
account the entirety of the pleadings as also the evidence
brought on record. To quote this Court:
"38. ... '5. ... So far these being a plea that they
were ready and willing to perform their part of the
contract is there in the pleading, we have no
hesitation to conclude, that this by itself is not
sufficient to hold that the appellants were ready
and willing in terms of Section 16(c) of the Specific
Relief Act. This requires not only such plea but
also proof of the same. Now examining the first of
the two circumstances, how could mere filing of
this suit, after exemption was granted be a
circumstance about willingness or readiness of the
plaintiff. This at the most could be the desire of the
plaintiff to have this property. It may be for such a
desire this suit was filed raising such a plea. But
Section 16(c) of the said Act makes it clear that
mere plea is not sufficient, it has to be proved.'"
45. It is settled law that for relief of specific performance, the
plaintiff has to prove that all along and till the final decision of
( 2025:JHHC:29073 )
the suit, he was ready and willing to perform his part of the
contract. It is the bounden duty of the plaintiff to prove his
readiness and willingness by adducing evidence. This crucial
facet has to be determined by considering all circumstances
including availability of funds and mere statement or averment
in plaint of readiness and willingness, would not suffice.
46. In this case, the respondent-plaintiff has failed to discharge
his duty to prove his readiness as well as willingness to perform
his part of the contract, by adducing cogent evidence.
Acceptable evidence has not been placed on record to prove his
readiness and willingness. Further, it is clear from the
respondent-plaintiff's balance sheet that he did not have
sufficient funds to discharge his part of contract in March 2003.
Making subsequent deposit of balance consideration after lapse
of seven years would not establish the respondent-plaintiff's
readiness to discharge his part of contract. Reliance may be
placed on Umabai v. Nilkanth Dhondiba Chavan wherein this
Court speaking through S.B. Sinha, J. held that deposit of
amount in court is not enough to arrive at conclusion that
plaintiff was ready and willing to perform his part of contract.
Deposit in court would not establish plaintiff's readiness and
willingness within meaning of Section 16(c) of Specific Relief
Act. The relevant part of the judgment is reproduced below:
"45. ... Deposit of any amount in the court at the
appellate stage by the plaintiffs by itself would not
establish their readiness and willingness to perform their
part of the contract within the meaning of Section 16(c)
of the Specific Relief Act."
47. It is, therefore, patently clear that the respondent-plaintiff has
failed to prove his readiness to perform his part of contract from
the date of execution of the agreement till date of decree, which
is a condition precedent for grant of relief of specific
performance. This Court finds that the respondent-plaintiff was
not entitled to the relief of specific performance.
40. In the aforesaid judgement it has been held that the Court would
necessarily have to arrive at the finding that the plaintiffs all along
were, and still ready and also willing to perform their part of the
contract, taking into account the entirety of the pleadings as also the
evidence brought on record;
a plea that plaintiff is ready and willing to perform his part of the
contract is by itself is not sufficient to hold that the appellants were
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ready and willing in terms of Section 16(c) of the Specific Relief Act.
This requires not only such plea but also proof of the same;
It is settled law that for relief of specific performance, the plaintiff has
to prove that all along and till the final decision of the suit, he was
ready and willing to perform his part of the contract. It is the bounden
duty of the plaintiff to prove his readiness and willingness by
adducing evidence. This crucial facet has to be determined by
considering all circumstances including availability of funds and mere
statement or averment in plaint of readiness and willingness, would
not suffice;
deposit of amount in court is not enough to arrive at conclusion that
plaintiff was ready and willing to perform his part of contract. Deposit
in court would not establish plaintiff's readiness and willingness
within the meaning of Section 16(c) of Specific Relief Act.
41. In the said judgement the plaintiff failed to prove his readiness
to perform his part of contract from the date of execution of the
agreement till date of decree, which was held to be a condition
precedent for grant of relief of specific performance. Thus, the
requirement of readiness and willingness commences right from the
date of agreement.
42. This court finds that the learned 1st appellate court has passed a
well-reasoned judgement considering every aspect of the matter
holding that the plaintiffs failed appropriately to plead and prove his
readiness and willingness to perform his part of the agreement and that
the defendant no. 3 and 4 were bonafide purchasers of the suit
property for value and in good faith. The learned 1 st appellate court
has rightly allowed the appeal even if it has been held by this court
that the learned 1st appellate court could not have given a finding that
time was the essence of agreement in the parties did not join issue on
such point and there were no foundational pleadings to this effect. The
findings of the learned 1st appellate court is in consonance with the
law laid down by the Hon'ble Supreme Court reported in (2023) 11
SCC 778 (supra). The 2nd substantial question of law is answered by
holding that the learned 1st appellate court has rightly reversed the
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judgment and decree of the trial court and recorded a finding that the
plaintiffs were not able to prove the other ingredients for grant of
specific performance of contract.
43. This 2nd appeal is accordingly dismissed.
44. Pending I.A., if any, is dismissed as not pressed.
45. Let a copy of this order be communicated to the court
concerned through FAX.
(Anubha Rawat Choudhary, J.)
Dated: 18/09/2025
Binit
