Afr High Court · 2025
Case Details
1 2025:CGHC:45772 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved on 30-6-2025 Delivered on 09-09-2025 SA No. 173 of 2017 1 - Gendram S/o Jhuru Sahu, Aged About 65 Years R/o Village Rajkudi, Occupation Agriculturist, Tehsil And District Bemetara, Chhattisgarh. 2 - (Died), Santosh, Through Legal Heirs As Per Honble Court Order Dated 03-10-2024. 2.1 - (A) Savitri Bai W/o Late Santosh Sahu Aged About 35 Years R/o Village Rajkudi, Tahsil And District Bemetara (C.G.). 2.2 - (B) Durgesh Sahu S/o Late Santosh Sahu Aged About 20 Years R/o Village Rajkudi, Tahsil And District Bemetara (C.G.) 2.3 - (C) Ku. Rani Sahu D/o Late Santosh Sahu Aged About 16 Years Minor, Through Her Mother Savitri Bai (2a) R/o Village Rajkudi, Tahsil And District (C.G.) Bemetara 3 - Manharan S/o Gendram Sahu, Aged About 39 Years R/o Village Rajkudi, Occupation Agriculturist, Tehsil And District Bemetara, Chhattisgarh ... Appellants/Defendants versus 1 - (Died), Krishna Verma, Through Legal Heirs As Per Honble Court Order Dated 03-10-2024. 1.1 - (A) Chandrika Verma W/o Late Krishna Verma Aged About 57 Years R/o House No. 73, Ward No. 04, Kabir Chowk, Near Kabir Temple, Village Rajkudi, District Bemetara (C.G.) 1.2 - (B) Hanumant Verma S/o Late Krishna Verma Aged About 36 Years R/o House No. 73, Ward No. 04, Kabir Chowk, Near Kabir Temple, Village Rajkudi, District Bemetara (C.G.). 2 1.3 - (C) Dageshwari Verma W/o Jahar Singh Verma Aged About 38 Years R/o Village Amora, Post Bijabhat, District Bemetara (C.G.). 1.4 - (D) Indu Verma W/o Mukesh Verma, D/o Late Krishna Verma Aged About 34 Years R/o Ward No. 09, Village Kobiya, District Bemetara (C.G.). 2 - The State Of Chhattisgarh, Through Collector Bemetara, District Bemetara, Chhattisgarh . Respondents/plaintiffs For Appellant. For Respondent No.1. For respondent/State. : : : Mr. Raj Kumar Pali, , Advocate. Dr. Jitendra Kishor Mehta, Advocate. Mr. Tarkeshwar Nande, Panel Lawyer (Hon’ble Mr. Justice Narendra Kumar Vyas) C A V Judgment 1.
Legal Reasoning
This is defendants’ Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 4-2- 2017 passed by the District Judge, Bemetara, District Bemetara, CG in Civil Appeal No. 08-A/2015 by which the appeal filed against the judgment and decree dated 30-9-2015 passed by Civil Judge, Class-1, Bemetara, District Bemetara in Civil Suit No.05-A/2013 (Annexure A/2) has been dismissed. 2. This appeal has been admitted by this Court on 21-10-2024 on the following substantial question of law:- “Whether the plaintiff succeeded to prove willingness to perform his part and the Court below justified in holding that the plaintiff was ready to perform his part whereas no notice, was issued to the defendants?. 3 3. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the Civil Suit No. 5-A/2013. 4. Brief Facts reflected from the plaint averments are that; A. The plaintiff filed a suit before learned Civil Judge Class-1, Bemetara on 17-6-2013 for specific performance of contract mainly contending that the agreement dated 24.04.2007 was executed between the plaintiff and the defendant in presence of two witnesses for sale of the land bearing Khasra No. 248/5 measuring 0.130 hectare of agricultural land situated at village Rajkudi, Patwari Halka No. 13, Tehsil and District Bemetara which is owned by the defendants for total sale consideration of Rs.35,340/- out of which Rs.30,000/- was paid to the defendants as advance and remaining amount of Rs.5,340/- was payable at the time of execution of the sale deed. It is also case of the plaintiff that there is inter se dispute between the defendants and their family members, therefore, revenue records have not been corrected, as such, it was agreed between the parties that as soon as the revenue records are separated, the sale deed will be executed and if seller is unable to execute the sale deed the purchaser will execute the sale deed through the Court proceedings. B. It is also the case of the plaintiff that in view of the order passed by the Tahsildar, partition has already been taken place on 8-9-2010 between the family members of defendants, as such, agreement has to be executed as soon as revenue records are separated but even after lapse of two years, they have not executed the sale deed 4 which has necessitated the plaintiff to file a suit for specific performance of contract. 5. The defendants have filed their written statement denying the
Legal Reasoning
allegations made in the plaint and it was contended that the property was recorded in the name of Gendram, therefore, defendants No. 1 to 3 have not executed any agreement nor any possession has been given. It is also the case of the defendant that there was no necessity of money, as such no agreement was executed by them. It has also been denied that Rs.30,000/- was paid in cash to them and alleged transaction of Rs. 5,450/- is not related to sell of the suit property. It is denied that who has returned the receipt is not known to the defendant and no money has been given to either defendant No. 1 or other defendants. It has also been contended that the actual value of suit property is Rs. 1,50,000/- per acre at the time of execution of the agreement. As such, on the sale consideration shown by the plaintiff, it is not feasible to execute the sale deed. It has also been contended that the plaintiffs have assaulted the family members of the defendant when they have gone to their house for returning the money then the plaintiffs have abused and threatened the family members of the defendant. It has also been contended that the agreement is barred by limitation and it is empathetically denied that the plaintiff has not made any attempt to execute the sale deed immediately after correction in the revenue records, as no oral or written notice was given to them. 5 6. On the pleadings of the parties, learned trial Court has framed as many as seven issues and issue Nos. 1, 2, 4 and 6 are relevant which are extracted below: 1- D;k izfroknhx.k us fnukad 24-04-2007 dks xzke jpdqMh rglhy csesrjk fLFkr d`f"k Hkwfe [kljk uacj 248 dks VqdM+k 0-31 ,dM+ Hkwfe ds fodz; djus dk djkj oknh ls fd;k\ 2- D;k izfroknhx.k us mDr fnukad dks gq, lkSns ds ,ot esa 30]000 :i;s oknh ls izkIr fd;k\ 3-+ D;k oknh lafonk ds vius i{k ds ikyu ds fy, rRij o rS;kj jgk\ 4- D;k okn le;kof/k esa gS\ 7. The plaintiffs to substantiate their case have exhibited document Ex/ P1 Ikrarnama, Ex/2 receipt of Ikrarnama, Ex.P/3, order of Tahsildar, Bemetara, District Durg, Ex.P/4 Pratilip Avedan, ExP/5 Kistbandi Katauni form B-1, Ex.P/6 Khasra Form P-II and Ex.P/7 Bhuiyan Karyakram and have examined Krishna Verma PW/1 and Komal Prasad Chandrakar PW/2 Damman Singh PW/3. The defendants to substantiate have examined witnesses namely Gendram ((DW/1) and Smt. Sumitra Bai (DW/2) but have not exhibited any document. 8. Learned trial Court on the basis of evidence and material on record has decreed the suit vide judgment and decree dated 30-9-2015 by recording its finding that the agreement was executed between the plaintiff and the defendant for sale of suit property and Rs.35,340/- was given to defendant for sale consideration. Learned trial Court has also recorded its finding that as per the agreement the defendant should have informed the plaintiff about the partition taken place between the family members of the defendant which they have failed to inform and 6 by oral evidence plaintiff is able to prove that he is ready and willingness to perform his part of contract and the suit is filed within limitation. Accordingly, learned trial Court has passed the judgment and decree in favour of the plaintiff. Being aggrieved by the judgment and decree, the defendants have preferred first appeal before the learned First Appellate Court and the learned First Appellate Court has dismissed the appeal by recording its finding that no specific defence has been taken to disbelieve the execution of the agreement and as per evidence (PW/1) Krishna Verma, defendant has already given possession of the suit property at the time of execution of the agreement. Learned First Appellate Court has also recorded its finding with regard to limitation as the agreement was executed on 24-4-2007 and as per the Limitation Act, 3 years limitation is prescribed, as such the suit should have been filed upto 24-4-2010, but the suit was filed on 17-6-2013 which is within limitation in view of Article 54 of the Limitation Act which provides 3 years time period for filing of suit and limitation of 3 years will start when the date is fixed for performance of contract and if no such date is fixed, when the plaintiff has noticed that performance is refused. In the present case the partition of the revenue records has been taken place on 08.09.2010 and the suit has been filed on 17.06.2013, as such, suit is within limitation. Thus the learned First Appellate Court has dismissed the appeal. Being aggrieved by the judgment and decree, the defendants have filed this second appeal before this Court. 9. Learned counsel for the appellants/defendants would submit that both 7 the courts below have not considered the actual facts and circumstances of the case and wrongly decided the issue against the defendants. He would further submit that in para 22 of the evidence, the plaintiff has admitted that the suit property is ancestral property and the defendants have two daughters, but they have not been made party to the case and have also not taken their signature in the agreement, as such the suit should have been dismissed as not maintainable. In view of the amended Section 6 of the Hindu Succession Act, daughters being co-parceners should have been arrayed as party to the case. It is also contended that both the courts below wrongly considered the provisions of Section 16(c) of the Specific Relief Act by recording a finding that the plaintiff is ready and willingness to perform his part of contract, though he admitted in the evidence in para 20 that before filing of the suit, no notice was sent to the defendant and do not have enough income to buy another land. As such, findings recorded by both the Courts below that the plaintiff is ready and willing to his part of performance are perverse and would pray for allowing the appeal. 10. He would further submit that the agreement arrived at between the parties is contingent contract as prescribed under Section 31 of the Indian Contract Act which provides that contingent contract" is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. Section 32 of the Contract Act provides that enforcement of the contracts contingent on an event happening or not happening cannot be enforced by law unless and until 8 the event has happened. This Section further provides that if the event becomes impossible such contracts become void. The Clause 2 of the terms of the agreement is contingent condition and provides that unless and until the accounts are separated between the family members of defendants the sale deed cannot be executed, therefore, it is a contingent contract and for that no decree for specific performance of contract can be granted to the plaintiff as it is a void contract. Thus, he would submit that the findings are perverse and would pray for setting aside the impugned judgment and decree passed by the courts below. To substantiate his submissions, he has referred to the judgment of this Court in FA No. 29 of 2014 (Kundanlal Patel vs. Subrat Bi and others decided on 10-10-2022, FA No. 215 of 1992 (Rejendra Kumar Jha vs. Manohar lal Soni decided on 22-1-2018 and Majhnoor Fatimaimran and others vs/ M/s. Visweswara Infrastructure Prvt Ltd and others decided on 7-5-2025 reported in 2025 SCC Online. 11. Per contra, learned counsel for the respondent/plaintiff would submit that the plaintiff by recording cogent evidence has proved that the plaintiff is ready and willingness to perform his part of contract. Both the courts below considering the conduct and intention of the plaintiff have recorded finding of fact that the plaintiff was ready and willingness to perform his part of contract and suit is filed within limitation as the plaintiff after knowing the order passed by the Revenue Court regarding partition, has collected the documents and thereafter filed the suit, as such the suit is within the limitation. To substantiate his submissions, he has referred to the judgments of Hon’ble Supreme Court in the case of 9 N.P. Thirugnanam vs. Dr. Jagan Miohan Rao, reported in (1995) 5 SCC 115, and J.P. Builders vs. A. Ramadas Rao, reported in (2011) 1 SCC 429 and would pray for dismissal of the appeal. 12. I have heard learned counsel for the parties and perused the records of both the courts below with utmost satisfaction. 13. To appreciate the substantial question of law, it is expedient for this Court to go through the relevant Clause of the agreement (Ex.P/1) which reads as under. " मन के हम लोग 1:- गेन्द राम वल्द मनुरु साहू उ् 55 साल, वो 2:- सन्तोष उ् 29 साल वल्द गेन्दराम साहू, वो 3:- मनहरण उ् 32 साल वल्द गेन्द् राम साहू जातित तेली, साकिकन रजकु डी पो. थाना तह. बेमेतरा, जिजला दुग" का रहने वाले है जो किक इस इकरारनामा ्ቛारा यह इकरार करते है किक मौजा रजकु डी ब्लाक तह. बेमेतरा किन.म. बेमेतरा, जिजला दुग" प.ह.नं.- 28 में किदनांक खसरा नं. - 248 कातु., रकबा 0-31 तिडसकिमल बघीया डोली को कृ ष्णा वमा" आत्मज हरमन िሺसह वमा" उ् 42 साल जातित कु म2 साकिकन रजकु डी पो. थाना तह. बेमेतरा जिजला दुग" वाले के पास बेचने को प्ሪी बातचीत कर हर हमेशा किक लिलए बेचकर 1,14,000/- रुपया अ्ቌरीय एक लाख चौदह हजार एकड के भाव से कु ल 35,340/- रुपया अ्ቌरीय पैंतीस हजार तीन सौ चालीस रुपया में सौदा कर अ्ቇीम धन ब्याना 30,000/- रुपया अ्ቌरीय तीस हजार आपस में भर पाये तथा बचत कीमत 5,340/- रुपया अ्ቌरीय पांच हजार तीन सौ चालीस रुपया पंजीयन के सम्ቌ ्ቦीमान सब-रजिजस्ट्र ार महोदय के सम्ቌ पायेंगे । उ्ሹ भूकिम की बयनामा उ्ሹ ्ቅे ता के प्ቌ में खाता अलग होने पर तुरन्त कर किदया जावेगा । अगर उ्ሹ भूकिम की बयनामा उ्ሹ ्ቅे ता के प्ቌ खाता अलग होने पर तुरन्त नहीं करेंगे तो उ्ሹ ्ቅे ता करा पाने बयनामा की काय"वाही कर उ्ሹ भूकिम को ्ቚा् कर लेगा उस हालत में हम तथा हमारे वारसान उ्ሹ ्ቅे ता को हर ्ቚकार के खचा" तथा तर्ሪी वो नुकसानी के देनदार रहेंगे । इसलिलये यह इकरार नामा लिलखा किदया किक ्ቚमाण रहे समय पर काम आवे फ. ता. - 24-04-2007 । इकरार नामा लिलखाकर, पढाकर, सुनकर, पढाकर, मन्जूर कर दो गवाहों के सम्ቌ ब्याना की रकम 30,000/- रुपये अ्ቌरीय तीस हजार रुपये भर पाकर हस्ता्ቌर किकये ।" 14. From perusal of the agreement, it is quite vivid that the agreement is a contingent agreement and sale deed can be executed only when the revenue 10 records are separated. The Section 32 of the Contract Act provides that enforcement of the contingent contracts as defined in the Section 31 of the Contract Act is a contract which can be enforced on an happening of an event and this Section further provides that contingent contracts to do or not do anything if uncertain future events happens cannot be enforced by law unless and until the event has happened. This Section further provides that if the event becomes impossible such contracts become void. Sections 31 and 32 of the Contract Act do not prohibit for execution of contracts if any contingent event is taken place. In the present case the contingent condition is that the revenue records should be separated then only sale deed can be executed. In the present case the revenue records were separated on 09.07.2010 before filing of the suit, therefore, judgment cited by the learned counsel for the appellants in case of Rajendra Kumar Jha (Supra) is not applicable to the present facts of the case. As such, the submission made by the learned counsel for the appellant that it is a contingent contract and no decree of specific performance of contract can be granted is misconceived and liable to be rejected. 15. The submission of the learned counsel for the appellant that the plaintiff is unable to prove that the plaintiff was ready and willing to perform his part of contract is being considered by the Court. To appreciate this point, it is expedient for this Court to extract Section 16 of the Specific Performance Act, 1963 as stood prior to amendment. 11 “16. Personal bars to relief.— (a) 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 willfully 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. 16. From perusal of Section 16 of the Act for decree of specific performance of a contract it is expedient for the plaintiff to plead and prove the readiness and willingness by adducing evidence to this effect. The readiness and willingness to perform contract is subject of interpretation by the Hon’ble Supreme Court in various judgments which are as under :- (A). Hon’ble the Supreme Court in case of C.S. Venkatesh Vs. A.S.C. Murthy [(2020) 3 SCC 280], on consideration of various decisions culled out what is implied by the words “ready and willing” which reads as under:- “16. The words ‘ready and willing’ imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. 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 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 which he has to pay the 12 defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.” (B) U.N. Krishnamurthy Vs. A. M. Krishnamurthy [(2023) 11 SCC 775] wherein it has been held that requisite pleadings and proof are required for the plaintiff to succeed in a suit for specific performance. The Hon’ble Supreme Court has held as under:- “24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of 25 adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.” For tracing an answer, one would necessarily have to bear in mind Sections 10, 16 and (unamended) Section 20 of the Act. Scanning of the evidence on records unmistakably points to the conclusion that the buyer was not ready and willing to have the terms agreed by and between the parties to be performed. (C). Again the Hon’ble the Supreme Court in case of R. Shama Naik Vs. G. Srinivasiah, SLP (Civil) 13933 of 2021 dated 28.11.2021 Neutral Citation 2024 INSC 927 wherein it has been held in paragraph 8 to 13 as under:- “8. Section 16(c) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 01.10.2018) bars the relief of the specific performance of a contract in favour of a person who fails to aver readiness and willingness to perform his part of the contract. 9. There is a legion of precedents on the subject of readiness and willingness. 10. The law is well settled. The plaintiff is obliged not only 13 to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time. 11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance. 12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff. 13. The High Court in first appeal upon appreciation of the evidence on record both oral and documentary has arrived at the conclusion that the plaintiff has failed to establish that he was always ready and willing to perform his part of the contract.” 17. Hon’ble Supreme Court in the case of Pydi Ramana @ Ramulu vs. Davarasetty Manmadha Rao (Civil Appeal No. 434 of 2013 decided on 10-7-2024 has held as under. “14. There is a distinction between the terms ‘readiness’ and ‘willingness’.3 ‘Readiness’ is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. ‘Willingness’ is the conduct of the party. In the instant case, even according to the concurrent findings recorded by the courts below, it would emerge that the plaintiff had been able to successfully prove the sale agreement dated 07.06.1993 Ex.A1 on which date Rs.2,005/- was paid by the plaintiff to the defendant. The evidence on record tendered by plaintiff came to be accepted by all the courts and judgments of courts below would also indicate that further amount towards sales consideration in a sum of Rs.17,000/- was paid by plaintiff to defendant on 23.06.1993 and same was endorsed by him. As per the recital in the agreements, the defendant was required to get the suit land surveyed and as such the total consideration was agreed to be settled after such survey. On the one hand, the plaintiff contends that defendant never got surveyed the suit land. On the other hand pleadings and evidence of plaintiff is silent on steps taken by the plaintiff as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any demand made by him for the land being surveyed by defendant. No witnesses have been examined on behalf of the plaintiff to establish that at any point of time there has been demand made by the plaintiff with the defendant by calling upon him to get the 14 suit land surveyed as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 3 years from the date of agreement Ex.A.1 namely on 30.05.1996 legal notice (Ex.A3) was got issued or in other words plaintiff was silent for a period of 3 years in enforcing of the agreement of sale. It is for this specific reason the trial court while rejecting the prayer for decree of specific performance has recorded a categorical finding to the following effect: 21. The terms of the agreement xxx the period of one year. The plaintiff got issued a legal notice on 30.05.1996 Ex.A.3 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for two years after the expiry of one year period. The plaintiff vendee did nothing to act in furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested in finalizing the deal and showing his readiness and willingness to perform the essential terms of the agreement. Though the suit was filed within the period of limitation, it is not sufficient. In assessing the question of readiness and willingness of the party to perform his part of the contract. It is highly essential to take into account the long unexplained silence and inaction on the part of the plaintiff. 22. Plaintiff must perform his part of the contract within reasonable time. There was total inaction on the part of the plaintiff for 2 ½ years which was not consistent with the terms of agreement. From 6.6.94 to 30.5.96 i.e., for a period of 23 months, plaintiff sat quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of one year, within which he was expected to urge the defendant- vendor to get measurements of land and fix the sale price and to tender the balance amount and call upon the defendants to execute sale deed and deliver possession of the property. As rightly pointed out by the trial court, the respondent- plaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards ‘willingness’ of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration: a. Plaintiff got issued legal notice nearly after two years after the expiry of one year period as prescribed in the agreement. 15 b. Plaintiff has not brought anything on record to prove that he contacted the Defendant after the expiry of one year period and was interested in finalising the deed. c. There was total inaction of the Plaintiff from 06/06/1994 (expiry of one year period) to 30/05/1996 (Date of issuance of legal notice) d. Suit was filed on 09/06/1997 i.e. after a period of more than one year from the date of issuing of legal notice. Said delay has not been sufficiently explained by the Plaintiff. The continuous readiness and willingness is a condition precedent to grant the relief of specific performance.4 The trial Court has rightly held that plaintiff has not sufficiently explained and proved that he was always ready and willing to perform his part of the contract. As such the High Court and the First Appellate Court had erred in holding that plaintiff had proved his readiness and willingness. 15. The ratio of the above judgment in all force would be applicable to the facts on hand in the instant case. The agreement of sale (Ex.A1) was executed on 07.06.1993 and the date fixed for execution of the sale deed was one year from the date of measurement of the suit schedule property. Undisputedly no such measurement was carried out and plaintiff has not raised his little finger in this regard from the date of execution of agreement till he got issued legal notice dated 30.05.1996 that is almost for a period of 3 years and suit came to be filed only on 09.06.1997 at the fag end of the expiration of the limitation. The long unexplained delay in not taking any reasonable steps as is expected from a reasonable person is itself sufficient to disentitle the plaintiff to an equitable relief.5 It is no doubt true that suit for specific performance can be filed even on the last date of the limitation as prescribed under Article 54 of the Limitation Act. However, the steps taken by the plaintiff during this period namely from the date of agreement till date of filing of suit will have to be explained in the plaint and proved in the evidence which is lacking in the instant case. The long unexplained delay and silence on the part of the plaintiff in this regard while in the witness box would not entitle the plaintiff to a decree of specific performance and it is for this precise reason, the trial court as noticed supra has refused to grant the equitable relief which has been reversed by the appellate court without assigning proper and cogent reason and the one assigned are at tangent or in other words contrary to the facts. The resultant effect of filing the suit for specific performance on the verge of limitation coming to an end came to be examined by this Court in the matter of Rajesh Kumar Vs. Anand Kumar and Ors6 and held that plaintiff would not be entitled to the equitable relief (vide paragraph Nos.14, 15, 16 16, 17 and 18). Hence, the appellant would succeed in this appeal. Point No.1 is answered in favoured of appellant- defendant” 18. Again the Hon’ble Supreme Court in the case of Rajesh Kumar vs. Anand Kumar and others, decided on 17-10-2024, reported in 2024 INSC 444 has considered the effect of filing a suit for specific performance after long delay, may be at the fag end of period of limitation. The Hon’ble Supreme Court while relying upon the judgment in case of K.S. Vidyanadam vs. Vairavan reported in 1997 (3) SCC 1 has held as under: “10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be (1997) 3 SCC 1 decreed provided it is filed within the period of limitation notwithstanding the time- limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time- limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519]: (SCC p. 528, para 25)………………” 15. In Azhar Sultana vs. B. Rajamani & Ors.6, this Court held thus in para 28: “28. ……….The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard-and-fast law can be laid down 17 therefor. The conduct of the parties in this behalf would also assume significance.” 16. In Saradamani Kandappan vs. S. Rajalakshmi & Ors.7, this Court held that every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring time limits stipulated in the agreement. (2009) 17 SCC 27 (2011) 12 SCC 18 The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance. 17. In Atma Ram vs. Charanjit Singh8, this Court has observed in para 9 thus: “9. ……..No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13-10- 1999) after issuing a legal notice on 12-11-1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12-11- 1996 claiming readiness and willingness, but who institutes a suit only on 13-10-1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance.” 19. Considering the above stated legal position and considering the fact that decree for specific performance of contract is a discretionary relief which can be considered considering the conduct of the plaintiff before filing of the suit or during the pendency of the suit. As per the pleadings made by the plaintiff in the plaint itself it is quite vivid that plaintiff has mentioned in paragraph 6 of the plaint that separation of revenue record has already been taken on 08.09.2010 and the suit was filed on 13.06.2013 just before expiration of limitation of three years which can be one of the grounds for denial of specific performance of contract. It is also well settled position of law that there is no rider to file the suit before the last date of limitation, but filing of the suit just before expiry of period of limitation can be considered as a ground to decline plaintiff equitable relief of specific performance of purchase of immovable 18 property. The plaintiff himself in the evidence before the trial Court has admitted that he has not given money to defendants No. 2 and 3 and also admitted that when the evidence was recorded on 23.12.2014 the value of the property is Rs. 12 Lacs per acre and at the time of execution of the agreement the value of the land is between Rs. 1,25,000-90,000/- per acre. He has also admitted that in Exhibit P/2 the date has also not been mentioned. The said witness also admitted that before filing of suit no notice was given to the defendant. It is well settled position of law that formal legal notice is generally not a mandatory requirement to file a suit for specific performance under the Specific Performance of Contract but it is essential to establish strong evidence regarding plaintiff's "readiness and willingness" to perform their part of the contract. Failure to provide a notice or significant delays in filing the suit after a breach can be viewed negatively by the court, and it might weaken the case for specific performance by suggesting a lack of continued readiness to fulfill the contract. A legal notice is important but not mandatory to demonstrate the readiness and willingness to fulfill their contractual obligations to establish a clear communication of the the plaintiff's intention to hold the other party to the contract and this formal step creates a better record for the court to consider the case in favour of the plaintiff. The legal notice is also necessary to counter arguments of delay or laches raised on behalf of the defendants. The issuance of legal notice is a prudent step to reinforce the plaintiff's position and provide concrete evidence of their commitment to the contract's terms. In the present case, the plaintiff has not issued any notice before filing of the suit which makes their 19 case weaker while considering discretionary relief of specific performance of contract in their favour by this Court. 20. The defendant No. 1 Gendram was examined before the trial Court wherein he has stated in examination-in-chief that no money was given either to him or to Santosh or Manharan. The said witness was cross- examined by the plaintiff wherein he has stated that he was working in the house of Krishna for last 25 years and he has not given the wages of last 25 years and also denied that they are having a tractor which has caused loan upon him and has denied that he has taken Rs. 33,000/- in cash. The other witness Sumitra Bai (DW-2) in her cross- examination has denied that they have taken loan from plaintiff. She has also stated that they have gone to return Rs. 1,70,000/- to the plaintiff and Damman Singh, but the plaintiff has not taken back the money and started assaulting. She has also stated that Rs. 35,000/- is the principle amount, whereas plaintiff has demanded Rs. 10-12 lacs from them and Santosh may have taken the loan from plaintiff. 21. From the evidence and material on record, it is quite vivid that the plaintiff despite having knowledge that separation of revenue records have already taken place on 09.07.2010 has filed the suit on 17.06.2013 just before completion of three years even without notice to the plaintiff and the evidence brought on record which clearly demonstrates the conduct of the plaintiff, deposition of defendant which they have denied about receiving the amount through their evidence. Damman Singh Verma who is witness of the agreement has also admitted that the value of the property is Rs. 12 lacs at the time of 20 recording of evidence and also stated that he has not inquired how much loan the defendant has taken for purchase of the tractor. Thus, plaintiff has not substantiated through any evidence that defendants have some loan on account of the purchase of land which has necessitated the defendant to sell the suit property to him. 22. Considering the entire evidence, material on law, I am of the view that the learned Courts below have erred in recording a finding that plaintiff was ready and willing to perform his part of contract, therefore, the judgment and decree passed by the learned trial Court and affirmed by the appellate Court deserves to be set aside and accordingly, it is set aside. The substantial question of law framed by this Court is answered against the plaintiff and in favour of the defendant. 23. Consequently, the second appeal is allowed. 24. A decree be drawn up accordingly. 25. The interim order passed by this Court on 28.08.2017 is vacated. RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.09.09 19:03:16 +0530 Raju Sd/- (Narendra Kumar Vyas) JUDGE