Mr. Aviral Tiwari, Senior Advocate with Mr. Raman Kapur and Mr. Divyansh Singh, Advocates v. ANAND PRAKASH BANSAL

Judgment

1. The present regular first appeal under Section 96 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] and Section 10 of the Delhi High Court Rules, 1966, has been filed against the judgment dated 22.04.2025 passed by learned Single Judge in CS(OS) 659 of 2011 titled Anand Prakash Bansal v. Naresh Batra whereby the suit of specific performance filed by the Respondent has been decreed in his favour and the Appellant is directed to execute the Sale Deed in favour of the Respondent with respect to the freehold property admeasuring 91.81 square metres, bearing No. 169, Pocket- RFA(OS) 34/2025 Page 1 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15 H-19, Sector 7, Rohini, Delhi [hereinafter referred to as “subject property”]. BRIEF FACTUAL MATRIX

2. Mr. Anand Prakash Bansal/Respondent herein instituted a suit for specific performance for two Agreements to Sell in respect of a subject property. The parties first entered into an Agreement to Sell on

17.09.2010 [hereinafter referred to as “first ATS”] for a agreed total sale consideration of Rs. 2,69,00,000/-.

A perusal of the first ATS indicates that the Appellant received Rs. 30,00,000/- as earnest money from the Respondent, which was duly acknowledged through a separate signed receipt. The agreement stipulated that the transaction was set to be completed by or on

14.12.2010, and the balance amount would be paid at the time of final execution and registration of the Sale Deed. The Appellant has not disputed the execution of the first ATS and the receipt of Rs. 30,00,000/- as earnest money.

4. The Respondent has claimed that subsequently, a revised understanding was reached between the parties regarding the timeline and structure of the transaction, pursuant to which another Agreement to Sell was executed on 13.12.2010 [hereinafter referred to as “second ATS”] for the same amount of total sale consideration. The agreement stipulates that the Appellant received an amount of Rs. 81,00,000/- as part-payment up to that date, and the transaction will conclude by or on 31.01.2011. The Respondent states that, on the same date,

13.12.2010, he handed over a cheque for Rs. 25,00,000/-, drawn on RFA(OS) 34/2025 Page 2 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15 Axis Bank, in favour of the Appellant, which was subsequently encashed.

5. The Appellant had received a total amount of Rs. 1,06,00,000/- by 13.12.2010, which was substantiated by the Respondent by placing on record the receipts and relevant documents evidencing the payment made. Under the terms of the second ATS, the balance sale consideration was to be paid by the Respondent on or before

31.01.2011 at the time of execution and registration of the Sale Deed before the office of the Sub-Registrar, except Rs. 40,00,000/-, which was to be paid after seven days of execution, at the time of handing over the possession.

6. Clauses 2 and 10 of the second ATS contain certain handwritten insertions. The Respondent asserts that these handwritten clauses were inserted by the Appellant in his own handwriting, along with his signature near the insertions, thereby indicating his agreement to the modified terms, in the presence of the Respondent and a common witness, PW-2.

7. It is the case of the Appellant that he had mortgaged the suit property with a bank against a loan taken for factory premises. Before the registration of the sale deed, the Appellant had to obtain the documents from the bank to hand over the original documents to the Respondent. He asserts that the Respondent agreed to pay the balance sale consideration by November 2010, for the Appellant to clear the loan and also pay for an alternate residence. However, the Appellant claims that the Respondent committed a breach of the agreement dated RFA(OS) 34/2025 Page 3 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15

17.09.2010 by not making the required payments within the agreed period in accordance with the terms of the first ATS.

8. The Appellant denies the validity and enforceability of the second ATS and claims that the second ATS was not voluntarily entered into and was executed under duress, undue pressure and coercion, and without allowing him to read the contents of the agreement. He denies having written or consented to the insertions added in Clauses 2 and 10 of the agreement.

9. The Respondent has claimed that, in compliance with the terms of the two ATS, the Respondent arranged for the balance payment, obtained the requisite stamp duty papers, prepared the draft sale deed, and presented himself on 31.01.2011 at the office of the Sub-Registrar for execution and registration of the sale deed. However, it is alleged that the Appellant failed to appear on the appointed date, despite repeated assurances, thereby preventing the completion of the transaction.

10. The Respondent thereafter issued a legal notice dated

01.02.2011, calling upon the Appellant to perform his part of the agreement and execute the sale deed, which was duly served on the Appellant on 04.02.2011. The Appellant asserts that he sent a reply to the said legal notice on 10.02.2011, denying all allegations and pointing out that the breach lay entirely on the Respondent.

11. In view of the Appellant‟s alleged default and continued failure to discharge his contractual obligations, the Respondent instituted the suit of specific performance before the learned Single Judge, praying RFA(OS) 34/2025 Page 4 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15 for a decree of specific performance of the agreement dated

13.12.2010, coupled with delivery of possession of the suit property, and further seeking a decree of permanent injunction restraining the Appellant from creating any third-party rights in respect of the subject property.

12. During the pendency of the suit, the Respondent, while complying with the interim directions in the Order dated 18.03.2011, deposited the balance sale consideration amount of Rs. 1,63,00,000/- with the Registry of this Court. Subsequently, the amount was released to the Respondent vide Order dated 03.11.2016, after the Respondent filed the requisite undertaking by way of an affidavit to re-deposit the same along with interest as and when directed by the learned Single Judge.

13. The learned Single Judge decreed the suit in favour of the Respondent and against the Appellant vide impugned judgment dated

22.04.2025. It was held that the agreement to sell dated 13.12.2010 [second ATS] is a valid and binding contract, and equities favour the Respondent, who has proved his readiness and willingness to perform his part of the agreement.

14. The Respondent was held entitled to possession of the suit property upon execution and registration of the Sale Deed. The learned Single Judge directed the Appellant to execute the Sale Deed in favour of the Respondent in respect of the suit property within a period of eight weeks from the date of the judgment, upon the RFA(OS) 34/2025 Page 5 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15 Respondent tendering the balance sale consideration of Rs. 1,63,00,000/- (Rupees One Crore Sixty-Three Lakhs only).

15. The Appellant is aggrieved by the above judgement and has filed the present appeal challenging the same. SUBMISSIONS ON BEHALF OF THE APPELLANT

16. Learned counsel for the Appellant has contended that the Respondent was not ready and willing to perform his part of the agreement. It is stated that the pay order was made by depositing Rs. 22 lakhs in cash and Rs. 45 lakhs through the overdraft facility of the Respondent‟s brother on the same date as the date fixed for execution, and therefore, the Respondent cannot be said to be in possession of the pay order on the morning of 31.01.2011. It is further stated that the pay order was immediately encashed on 01.02.2011. It was pointed out that the stamp paper for registration was printed at 2:07 p.m. on

31.01.2011 at Corporation Bank, Narela, which admittedly is about a distance of 45 minutes from the Sub-Registrar‟s office. It is further claimed that the draft Sale Deed was never prepared, as the same was neither intimated to the Appellant, as admitted by the Respondent in his cross-examination, nor produced before the learned Single Judge. Hence, the Respondent came unprepared to the Sub-Registrar‟s office, if at all, without carrying the requisite documents with him on the date fixed for execution of the sale deed, i.e., 31.01.2011. Further, it is contended that the statement of the Respondent that he made several calls to the Appellant on 31.01.2011 was also unsubstantiated. RFA(OS) 34/2025 Page 6 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15

17. Learned counsel for the Appellant states that an adverse inference ought to have been drawn against the Respondent as he did not produce the draft Sale Deed on record.

18. Learned counsel submits that DW-2 was not examined to prove the validity of the two ATS as they were not executed in his presence, but only to depose about the incident that happened on 01.02.2011. It is stated that the Appellant and DW-2, particularly in paragraph No. 31 of the Appellant‟s affidavit and paragraph No. 7-8 of the DW-2‟s affidavit, stated in their affidavits that on 01.02.2011, the Respondent, along with some property brokers, came to the suit property, threatened the Appellant and his family, and sought a refund of the amounts paid. It is also stated that no cross-examination was directed in reference to this.

19. Learned counsel submits the Appellant produced independent/official witnesses to substantiate the Appellant‟s presence at the Sub-Registrar‟s office on 31.01.2011. It is stated that the evidence included (a) official receipt No. 12260, proved by DW-4 from the Sub-Registrar‟s office, and (b) stamp paper No. 39AA 696388 purchased on the same day, corroborated by DW-5, the stamp vendor, with supporting entry register records.

20. Learned counsel for the Appellant submits that PW-2 was an interested party since he was a broker of the Respondent and was getting commission only from the Respondent, as mentioned in paragraph No. 7 of the replication on behalf of the Respondent. It is submitted that PW-2 attacked the wife of the Appellant on RFA(OS) 34/2025 Page 7 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15

01.02.2011, which fact went unrebutted by the Respondent during the cross-examination of Appellant and his witnesses.

21. Learned counsel for the Appellant contends that the Respondent has concealed material facts and played fraud with the Appellant and with the Court. He states that there was no intimation by the Respondent to the Appellant that he would appear before the office of Sub-Registrar on 31.01.2011 and that Appellant/Defendant should remain present there for the reason that he did not have the funds available with him on that date. The Respondent also failed to reveal that he had encashed the pay order initially in his pleadings and it was only revealed in the WS of the Appellant

22. The Appellant contends that he regained possession of the title deeds on 15.01.2011, as corroborated by his cross-examination on

08.09.2015. It is further contended that, nevertheless, the possession of title documents by the Appellant was not sine qua non for the execution of the Sale Deed in favour of the Respondent, as the agreements did not prescribe any specific timeline for handing over such documents. He contends that the obligation to first tender the balance sale consideration and thereafter, to seek execution of the Sale Deed lies squarely upon the Respondent, who failed to arrange the requisite funds. It is further stated that the Respondent was fully aware that the suit property stood mortgaged.

23. Lastly, while relying on the above submissions, learned counsel for the Appellant contends that specific performance is an equitable and discretionary remedy, and the Court must exercise such discretion RFA(OS) 34/2025 Page 8 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15 in accordance with sound and reasonable judicial principles. The Appellant has placed reliance on the judgments of the Hon‟ble Supreme Court in Saradamani Kandappan vs. S. Rajalakshmi & Ors. and Shenbagam & Ors. vs. K.K. Rathinavel. SUBMISSIONS ON BEHALF OF THE RESPONDENT

24. Learned counsel for the Respondent, while vehemently defending impugned Judgement, has submitted Respondent was ready and willing to complete the transaction, and even showed his bona fide by depositing the balance sale consideration in the registry of this Court. He contended that the Respondent presented himself with the non-judicial stamp papers of Rs. 13,45,000/-, a pay order and the draft sale deed.

25. He contends that the Appellant had suppressed a material fact that the property was mortgaged with CITI Bank and the original title documents of the said property were deposited with the said bank. It is submitted that the said fact was revealed for the first time in their written statement at paragraph No. 4(a). It is stated that the Appellant did not present any witness with regard to the loan availed by him and his wife, or the amount of the loan availed from Citibank against the said property. He submitted that even during the cross-examination, no question regarding his knowledge of mortgages was put to the Respondent.

26. While relying on the deposition advanced by the PW-2 that the handwritten additions in the second ATS were made voluntarily by the Appellant in his presence, learned counsel for the Respondent RFA(OS) 34/2025 Page 9 of 17 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:26.09.2025 15:33:15 contended that the second ATS was voluntarily executed by the Appellant.

27. Reliance has been placed on the judgment of Beemanemi Maha Lakshmi v. Gangumala Appa Rao1 and Basavaraj v. Padmavathi2 ANALYSIS

28. We have given our thoughtful consideration to the submissions made by the parties and, with the able assistance of the learned counsel representing the parties, have perused the paper book.

29. Section 16 of the Specific Relief Act, 1963 provides certain bars to the relief of specific performance. Section 16(c) provides that a person who fails to aver and prove that he has performed and 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 and waived by the Defendant. The Hon‟ble Supreme Court in the judgment of JP Builders v. A Ramadas Rao3 observed that Section 16(c) mandates „readiness and willingness‟ of the plaintiff and is a condition precedent to obtain the relief of specific performance. The relevant portion of the judgment is extracted hereinbelow: “21. Among the three clauses, we are more concerned about clause (c). “Readiness and willingness” is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's Report. This clause provides that the person seeking specific performance must prove that he has performed