High Court · 2025

Heard learned counsel for the appellant. The instant second appeal has been preferred under Section 100 C.P.C. assailing the judgment and decree passed by the First Appellate Court in Civil Appeal No. 87 of 2009 whereby the First Appellate Court while entertaining the appeal at the behest of the private respondents allowed the same, as a consequence, a decree of specific performance of contract in favour of the plaintiffs which was granted by the Trial Court vide its judgment dated 05.05.2009 has been reversed, as a consequence, the suit which was decreed by the Trial Court, it has been reversed and the decree has been modified to the effect that the earnest money paid by the appellant be returned along with 18% interest within a period of one month from the date of the judgment passed by the First Appellate Court. The learned counsel for the appellant has submitted that the predecessor-in-interest of the petitioner and the predecessor-in- interest of the respondent had entered in an agreement dated 09.07.1992 for selling the property for a total sale consideration of Rs. 24,450/-, a sum of Rs. 10,000/- was advanced and the remaining sum of Rs. 14,450/- was to be paid at the time of execution of the sale deed for which a time of 6 months was agreed between the parties. It is urged that the defendants remained negligent in performing their part of the contract whereas the plaintiff (the appellants herein) were always ready and willing to perform their part of contract. The Trial Court had noticed the aforesaid aspect of the matter and decreed the suit vide judgment and decree dated 05.05.2009. In the aforesaid backdrop, the respondents being aggrieved had preferred a Regular Civil Appeal before the First Appellate Court registered as Civil Appeal No. 87 of 2009. It is submitted that the First Appellate Court has reversed the decree without considering the fact that the finding on the readiness and willingness was never raised. It was also not considered that once the plaintiff-appellant have complied with this part and his readiness and willingness was proved then there was no occasion for the First Appellate Court to have reversed the decree. It is further submitted that even though during the pendency of the proceedings, it was alleged by the defendants that they have sold the property in question to a third party but the fact remains that the details of the same were never placed before the court of first instance and in such circumstances without having the benefit of the subsequent purchaser, the court has merely reversed the decree which is not in sound exercise of jurisdiction of the First Appellate Court and in such circumstances, the judgment and decree of the First Appellate Court dated 25.03.2025 suffers from a glaring error. The Court has heard the learned counsel for the appellant and finds that the agreement to sell dated 09.07.1972 was entered between the original plaintiff Badri Prasad and Sri Kedar Nath. The said agreement was in respect of plot of land bearing No. 260 wherein Kedar Nath had half share of 0.914 hectares. It is not disputed that in pursuance of the said agreement, a sum of Rs. 10,000/- was advanced by the appellants in favour of the respondents and the remaining Rs. 14,450/- was to be paid at the time of the execution of the sale deed. The respondents contested the suit by filing their written statement and denied the true character of the said agreement. A plea was taken that the said agreement was nothing but only an acknowledgement of the amount which has been received and since the plaintiff and the defendant were known to each other, consequently, in order to formalize the said transactions at the behest of the plaintiff, the defendant had executed the agreement. He further stated that the plaintiff was never ready and willing to perform his part of the contract. In light of the pleadings, the Trial Court had framed four issues. The parties led evidence and the Trial Court considering the averments made by the plaintiffs as well as the defendants noticed that the plaintiff had initially served a notice on 05.01.1993 for seeking the performance of the part of the contract of the respondents in executing the sale deed which was not complied with. Later, the plaintiff sent another notice through counsel dated 05.06.1995 wherein 15 days time was granted to the respondents to take the money and execute the sale deed, however, the same also did not evoke any response as such the suit came to be filed on 07.07.1995. The Trial Court while considering the material on record as well as the evidence led by the parties noticed that the plaintiff had explained his readiness and willingness and since there was practically no denial of the agreement except for its character, of the document, plaintiff was entitled to a decree of specific performance and decreed the suit by means of judgment and decree dated 05.05.2009. The First Appellate Court while considering the issue afresh found that since the property had been sold by the original vendor namely Kedar Nath and there was no clear assertion regarding readiness and willingness, consequently, it reversed the decree and directed the respondents herein to pay the outstanding sum of Rs. 10,000/- along with 18% interest in favour of the appellants herein. With the aforesaid modification, the appeal was allowed and judgment of the trial court was reversed and this judgment of reversal is under challenge before this Court. Having taken note of the aforesaid submissions as well as the material on record, it is now trite law to state that readiness and willingness is a sine qua non for the Court to grant a decree of specific performance. It could not be disputed that the property has already been sold, however, there is no material on record to indicate that when the said property was sold, who became its owner and whether the subsequent purchaser has been impleaded as a party or not. In absence thereof, the material before the Court indicates that the court of first instance has taken note of the fact that against a total consideration of Rs. 24,450/-, a sum of Rs.10,000/- has been advanced. The suit came to be filed only in the month of July, 1995 whereas the judgment dated 09.07.1972 provided for 6 months time to pay the consideration and getting the sale deed executed while the suit was filed about three years from the date of the agreement which did not reflect well in readiness and willingness of the plaintiffs, consequently, the earnest money has been returned along with interest. This Court had the occasion to consider this issue of readiness and willingness in several cases by taking aid of the decisions of the Apex Court. In Bimla Devi and Others v. Mangla Devi and Others; MANU/UP/2895/2023 this Court in paragraph 41 noticing the decisions of the Apex Court has considered the full ethos of the concept of readiness and willingness as under:- "41. This Court considered the issue of readiness and willingness in Ramzan Ali and another v. Altafur Rahman, 2023: AHC-LKO-30146 and held as under:- "27. In the Corpus Juris Secundum, vol. 81 pp.950-951, the readiness and willingness has been interpreted to mean, a general principle of law that a person seeking specific performance must show that he has performed or offered to perform or is ready, able and willing to perform, all the essential acts required by the contract and he must not remain quiet or hold himself aloof so as to enforce or abandon the contract as events may prove advantageous. The plaintiff is entitled to specific performance where he alleges and proves that he has complied substantially with the conditions of the contract or is able, ready and willing to perform the contract. (See also Satya Jain v Anis Ahmed Rushdie AIR 2013 SC 434).

28. In the case of Bijai Bahadur v. Shri Shiv Kumar AIR 1985 All 223, this Court held that so far as the question of readiness and willingness is concerned while 'willingness' is merely a mental process, 'readiness' is something to do with translating that will into action and is preceded by a necessary preparation for being in a position to be ready. As to the averments about this continuous readiness and willingness the law never insists on any particular form and the necessary averment may be made in any language the plaintiff may choose to employ. The language is not important. The crucial thing is that the totality of the averments made in the plaint must indicate the readiness and willingness of the plaintiff, even though by necessary inference.

29. This Court also notices the decision of the Apex Court in His Holiness Acharya Swami Ganesh Dassji Vs. Sitaram Thapar; 1996 (4) SCC 526 wherein the concept of readiness and willingness has been noticed and has been held as under:- "2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract."

30. Similarly, In J.P. Builders and Another Vs. A. Ramadas Rao and Another; 2011 (1) SCC 429 wherein the Apex Court in paragraph nos. 22 to 27 has observed as under:- "22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.

23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] at SCC para 5, this Court held: (SCC pp. 117-18) "5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."

24. In P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649] this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. ***

21. ... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."

25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.

26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140] that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.

27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." In this view of the matter where the plaintiff was bound to establish his willingness and readiness to perform his part of the contract, which for the reasons aforesaid did not find favour with the First Appellate Court and so the First Appellate Court has exercised its jurisdiction in returning the earnest money along with the interest at the rate of 18% interest, coupled with the fact that till date the subsequent purchaser were never made a party to the instant proceedings despite being the same being in the knowledge of the appellant, this Court does not find that there is any substantial question of law involved or an error which may have been committed by the First Appellate Court in order to entertain the second appeal. This Court is of the view that no substantial question of law arises in the instant second appeal, accordingly, it is dismissed. Costs are made easy. Order Date :- 2.7.2025 Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Heard learned counsel for the appellant. The instant second appeal has been preferred under Section 100 C.P.C. assailing the judgment and decree passed by the First Appellate Court in Civil Appeal No. 87 of 2009 whereby the First Appellate Court while entertaining the appeal at the behest of the private respondents allowed the same, as a consequence, a decree of specific performance of contract in favour of the plaintiffs which was granted by the Trial Court vide its judgment dated 05.05.2009 has been reversed, as a consequence, the suit which was decreed by the Trial Court, it has been reversed and the decree has been modified to the effect that the earnest money paid by the appellant be returned along with 18% interest within a period of one month from the date of the judgment passed by the First Appellate Court. The learned counsel for the appellant has submitted that the predecessor-in-interest of the petitioner and the predecessor-in- interest of the respondent had entered in an agreement dated 09.07.1992 for selling the property for a total sale consideration of Rs. 24,450/-, a sum of Rs. 10,000/- was advanced and the remaining sum of Rs. 14,450/- was to be paid at the time of execution of the sale deed for which a time of 6 months was agreed between the parties. It is urged that the defendants remained negligent in performing their part of the contract whereas the plaintiff (the appellants herein) were always ready and willing to perform their part of contract. The Trial Court had noticed the aforesaid aspect of the matter and decreed the suit vide judgment and decree dated 05.05.2009. In the aforesaid backdrop, the respondents being aggrieved had preferred a Regular Civil Appeal before the First Appellate Court registered as Civil Appeal No. 87 of 2009. It is submitted that the First Appellate Court has reversed the decree without considering the fact that the finding on the readiness and willingness was never raised. It was also not considered that once the plaintiff-appellant have complied with this part and his readiness and willingness was proved then there was no occasion for the First Appellate Court to have reversed the decree. It is further submitted that even though during the pendency of the proceedings, it was alleged by the defendants that they have sold the property in question to a third party but the fact remains that the details of the same were never placed before the court of first instance and in such circumstances without having the benefit of the subsequent purchaser, the court has merely reversed the decree which is not in sound exercise of jurisdiction of the First Appellate Court and in such circumstances, the judgment and decree of the First Appellate Court dated 25.03.2025 suffers from a glaring error. The Court has heard the learned counsel for the appellant and finds that the agreement to sell dated 09.07.1972 was entered between the original plaintiff Badri Prasad and Sri Kedar Nath. The said agreement was in respect of plot of land bearing No. 260 wherein Kedar Nath had half share of 0.914 hectares. It is not disputed that in pursuance of the said agreement, a sum of Rs. 10,000/- was advanced by the appellants in favour of the respondents and the remaining Rs. 14,450/- was to be paid at the time of the execution of the sale deed. The respondents contested the suit by filing their written statement and denied the true character of the said agreement. A plea was taken that the said agreement was nothing but only an acknowledgement of the amount which has been received and since the plaintiff and the defendant were known to each other, consequently, in order to formalize the said transactions at the behest of the plaintiff, the defendant had executed the agreement. He further stated that the plaintiff was never ready and willing to perform his part of the contract. In light of the pleadings, the Trial Court had framed four issues. The parties led evidence and the Trial Court considering the averments made by the plaintiffs as well as the defendants noticed that the plaintiff had initially served a notice on 05.01.1993 for seeking the performance of the part of the contract of the respondents in executing the sale deed which was not complied with. Later, the plaintiff sent another notice through counsel dated 05.06.1995 wherein 15 days time was granted to the respondents to take the money and execute the sale deed, however, the same also did not evoke any response as such the suit came to be filed on 07.07.1995. The Trial Court while considering the material on record as well as the evidence led by the parties noticed that the plaintiff had explained his readiness and willingness and since there was practically no denial of the agreement except for its character, of the document, plaintiff was entitled to a decree of specific performance and decreed the suit by means of judgment and decree dated 05.05.2009. The First Appellate Court while considering the issue afresh found that since the property had been sold by the original vendor namely Kedar Nath and there was no clear assertion regarding readiness and willingness, consequently, it reversed the decree and directed the respondents herein to pay the outstanding sum of Rs. 10,000/- along with 18% interest in favour of the appellants herein. With the aforesaid modification, the appeal was allowed and judgment of the trial court was reversed and this judgment of reversal is under challenge before this Court. Having taken note of the aforesaid submissions as well as the material on record, it is now trite law to state that readiness and willingness is a sine qua non for the Court to grant a decree of specific performance. It could not be disputed that the property has already been sold, however, there is no material on record to indicate that when the said property was sold, who became its owner and whether the subsequent purchaser has been impleaded as a party or not. In absence thereof, the material before the Court indicates that the court of first instance has taken note of the fact that against a total consideration of Rs. 24,450/-, a sum of Rs.10,000/- has been advanced. The suit came to be filed only in the month of July, 1995 whereas the judgment dated 09.07.1972 provided for 6 months time to pay the consideration and getting the sale deed executed while the suit was filed about three years from the date of the agreement which did not reflect well in readiness and willingness of the plaintiffs, consequently, the earnest money has been returned along with interest. This Court had the occasion to consider this issue of readiness and willingness in several cases by taking aid of the decisions of the Apex Court. In Bimla Devi and Others v. Mangla Devi and Others; MANU/UP/2895/2023 this Court in paragraph 41 noticing the decisions of the Apex Court has considered the full ethos of the concept of readiness and willingness as under:- "41. This Court considered the issue of readiness and willingness in Ramzan Ali and another v. Altafur Rahman, 2023: AHC-LKO-30146 and held as under:- "27. In the Corpus Juris Secundum, vol. 81 pp.950-951, the readiness and willingness has been interpreted to mean, a general principle of law that a person seeking specific performance must show that he has performed or offered to perform or is ready, able and willing to perform, all the essential acts required by the contract and he must not remain quiet or hold himself aloof so as to enforce or abandon the contract as events may prove advantageous. The plaintiff is entitled to specific performance where he alleges and proves that he has complied substantially with the conditions of the contract or is able, ready and willing to perform the contract. (See also Satya Jain v Anis Ahmed Rushdie AIR 2013 SC 434).

28. In the case of Bijai Bahadur v. Shri Shiv Kumar AIR 1985 All 223, this Court held that so far as the question of readiness and willingness is concerned while 'willingness' is merely a mental process, 'readiness' is something to do with translating that will into action and is preceded by a necessary preparation for being in a position to be ready. As to the averments about this continuous readiness and willingness the law never insists on any particular form and the necessary averment may be made in any language the plaintiff may choose to employ. The language is not important. The crucial thing is that the totality of the averments made in the plaint must indicate the readiness and willingness of the plaintiff, even though by necessary inference.

29. This Court also notices the decision of the Apex Court in His Holiness Acharya Swami Ganesh Dassji Vs. Sitaram Thapar; 1996 (4) SCC 526 wherein the concept of readiness and willingness has been noticed and has been held as under:- "2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract."

30. Similarly, In J.P. Builders and Another Vs. A. Ramadas Rao and Another; 2011 (1) SCC 429 wherein the Apex Court in paragraph nos. 22 to 27 has observed as under:- "22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.

23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] at SCC para 5, this Court held: (SCC pp. 117-18) "5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."

24. In P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649] this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. ***

21. ... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."

25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.

26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140] that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.

27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." In this view of the matter where the plaintiff was bound to establish his willingness and readiness to perform his part of the contract, which for the reasons aforesaid did not find favour with the First Appellate Court and so the First Appellate Court has exercised its jurisdiction in returning the earnest money along with the interest at the rate of 18% interest, coupled with the fact that till date the subsequent purchaser were never made a party to the instant proceedings despite being the same being in the knowledge of the appellant, this Court does not find that there is any substantial question of law involved or an error which may have been committed by the First Appellate Court in order to entertain the second appeal. This Court is of the view that no substantial question of law arises in the instant second appeal, accordingly, it is dismissed. Costs are made easy. Order Date :- 2.7.2025 Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench