High Court · 2025

to the plaintiff/ respondent?"

4. In order to appreciate the controversy involved in the instant appeal, certain brief facts relevant to the controversy are being noticed hereinafter.

5. One Shri Durbil was the recorded owner of the disputed property in question. He is said to have executed an agreement to sell in respect of his property bearing plots no.775 M, 774M and 776 M situated in Gram Firozpur Makhduni, Pargana and Tehsil Rudauli, District Barabanki. As per the terms of the agreement to sell, the aforesaid referred property was agreed to be sold for a total consideration of Rs.40,000/- out of which a sum of Rs.16,5000/- was paid as earnest money and it was agreed that the remaining amount would be paid and the sale deed would get executed within a period of one year from the date of the agreement.

6. The record indicates that the said agreement was impounded for deficiency of stamp duty and registration fee. In the meantime, on 30.4.1992, Durbil executed a sale deed in respect of the said property in favour of Siya Ram and Sukhdev who are the appellant nos.2 and 3 before this Court.

7. Another fact to be noticed is that on the date of the institution of the suit, the complete court fee was not paid. Accordingly, the suit came to be registered as a Misc. Case and the court fee was made good on 17.2.1994 whereafter the suit was registered as Regular Suit No.57 of 1994. While the suit was pending as Misc. Case for want of payment of complete court fee, the original defendant namely Durbil expired and then his legal heirs namely Satyanam was impleaded as a defendant alongwith the subsequent purchasers i.e. the appellant nos.2 and 3.

8. The suit came to be contested by the defendants and inter alia pleaded that on the date of institution of the suit, the appellants did not have any binding agreement to sell as the same had been impounded. It was also stated that for the very same reason, the appellant nos.2 and 3 ( defendants no.2 and 3 in the trial court) could not notice of the earlier agreement to sell and they bona fide purchaser for valuable consideration without notice of the earlier agreement as such they were duly protected. It was also urged that the plaintiff was not ready and willing to perform part of his contract and in such circumstances, the suit of the plaintiff cannot be decreed and at best, the amount paid as earnest money may be refunded.

9. Upon the exchange of pleadings, the trial court framed five issues, however for the purpose of the instant appeal, the relevant issues were as follows :- (i). Whether the plaintiff was entitled to get a decree of specific performance in her favour on the basis of the agreement to sell dated

28.2.1992. (ii). Whether the defendants had agreed to sell his three plots bearing no.775M, 774M and 776M against which he had received Rs.16,500/- as earnest money or whether the said agreement was a Sham document? (iii). Whether the plaintiff was ready and willing to pay the remaining sum of Rs.23,500/- and willing to get the sale deed executed?

10. The parties lead evidence and the trial court decided the issues nos.1,2 and 3 in favour of the plaintiff and the decreed the suit by means of the judgement and decree dated 18.3.2016. This judgement and decree dated 18.3.2016 was assailed in first appeal bearing no.11/2016 which came to be dismissed by means of the judgement and decree dated 30.5.2017. The defendants being aggrieved have now come up before this Court in second appeal assailing the two judgements and decree of affirmance arising from the suit for specific performance.

11. Shri Rajeiu Kumar Tripathi learned counsel for the appellants has submitted that the two courts have erred in dismissing the suit as the issue of readiness and willingness has not been appropriately decided by the two courts which has resulted in sheer miscarriage of justice. It is also submitted that the plaint as drafted by the plaintiff and submitted before the court was not in consonance with Form No.47-48 as provided under Appendix-A of the C.P.C. and since the agreement to sell was not subsisting on the date of institution of the suit, hence, the suit could not have been decreed.

12. Learned counsel for the appellants has further urged that the time granted for executing the sale deed was 12 months and within the aforesaid 12 months, there as no material on record which could establish the fact that the plaintiff had approached the defendants to take the money and execute the sale deed. The facts that the deficiency in payment of stamp duty was made good as on 15.11.1993 and prior thereto, the plaintiff had already filed the suit on 27.7.1993 with deficiency in court fee, which was made good only on 17.2.1994 and by then, the original defendant namely Durbil had already sold the property to the appellant nos.2 and 3. Along with the facts that in paragraph 3 of the plaint, it was clearly indicated by the plaintiff that she was aware in February, 1993 regarding the sale deed executed by Durbil in favour of appellant nos.2 and 3 and even by then i.e. since February, 1993 onwards, the plaintiff did not make good the deficiency in stamp duty and registration charges to get her agreement to sell released from the authorities which has been impounded and that the suit came to be filed on 27.7.1993 i.e. after one year and a half of the date of the alleged agreement to sell but that too was defective as it did not bear the requisite court fee and in such circumstances, there could be no finding in favour of the plaintiff regarding readiness and willingness which was per se bad and against the records.

13. It was lastly urged that the issue of readiness and willingness even if not pleaded by the plaintiff in strict terms nor a defence taken by the defendants yet it is incumbent upon the court to ascertain this aspect and once the court is satisfied that there has been proper compliance of Section 16(c) of Specific Reliefs Act, 1963 (hereinafter referred to as "Act of 1963") relating to readiness and willingness and thereafter taking into consideration the other facts, can a suit for specific performance be decreed provided the court finds it appropriate to exercise its discretion in favour of the plaintiff as contemplated in terms of Section 20 of the Act of 1963. Thus, the submission is that the issue of readiness and willing was not considered rather the findings are perverse, hence for the aforesaid reasons, the judgement and decree passed by the two courts cannot be sustained and they are liable to be set aside.

14. In support of his arguments, learned counsel for the appellants has relied upon the judgement of the Hon'ble Supreme Court in the case of Pydiramana Alias Ramulu Vs. Davarasety Manmadha Rao : (2024) 7 SCC 515.

15. Shri Jai Prakash Yadav and Shri Jitendra Bahadur Singh, learned counsel for the respondents primarily urged that this Court in exercise of powers under Section 100 C.P.C. would be very slow in reversing the findings of fact. Moreover, in the instant case, both the courts after considering the evidence of the parties, have recorded finding of fact that the plaintiff was always ready and willing to perform her part of the contract. The mere fact that the agreement to sell dated 28.2.1992 even though was impounded, but upon the payment of deficiency of stamp duty and registration charges, the document was released and once it was released, it would relate back to the date of its presentation, hence it cannot be said that there was any defect in the agreement.

16. Learned counsel for the respondents have further urged that once the plaintiff became aware that the original defendant Durbil had executed a sale deed in respect of the property in question, hence she filed the suit but again the deficiency in court fee cannot be a ground to deny the relief to the plaintiff as the deficiency in the court fee was made good which too would relate back to the date of institution of the suit on 27.7.1993.

17. In the aforesaid circumstances, mere deficiency in the payment of court fee or deficiency in the payment of stamp duty is not going to impact the rights of the plaintiff and this aspect has been considered and dealt with by the two courts and the finding are based on proper appreciation of evidence, hence they are not liable to be disturbed coupled with the fact that the defendants were aware of the agreement between the plaintiff and the original defendant Durbil and despite notice, they purchased the property, hence they are legally bound to join in executing the sale deed in favour of the plaintiffs in terms of the decree passed in favour of plaintiff/respondents and the second appeal deserves to be dismissed.

18. In support of his arguments, learned counsel for the respondent have relied upon the judgements of the Hon'ble Supreme Court in the case of 2022 (40) LCD 82 : Sughar Singh Vs. Hari Singh and 1999 (6) SCC 337 : Syed Dastagir Vs. T.R. Gopalkrishna Setty as well as the decision of this Court in the case of Surya Kunwari Vs. Nanhu and others : 2019 (37) LCD 2346.

19. The court has heard the learned counsel for the parties and has also perused the material on record.

20. As far the three substantial questions of law which have been framed and are to be answered by this Court would reveal that all three of them are interconnected and has the bearing on the basic proposition regarding the readiness and willingness of the plaintiff.

21. At the outset, it may be noted that it is trite law that the issue of readiness and willingness is a condition precedent before decreeing a suit for specific performance of contract. Whether it is appropriately pleaded or not is a secondary issue and whether it is taken as a defence by the defendant or not, is also different but the fact remains that it is the duty of the court to ascertain whether the plaintiff to a suit for specific performance of contract has been ready and willing to perform his part of contract or not.

22. The question arises as to what would be the true concept of the phrase "readiness and willingness" that used in Section 16( c) of the Act of 1963.

23. 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:- "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 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."

24. Once the law has been clarified as noticed above, now it will be appropriate as to examine whether the plaintiff (respondent herein) was ready and willing to perform her part of the contract. In this regard, if the plaint in suit is seen, it would indicate that in paras 3 and 4, the plaintiff had pleaded that she was ready and willing to perform her part of the contract but what is relevant to notice that apart from this pleadings, whether there was any actual manifestation of this readiness and willingness, it is in this context, if the undisputed facts are seen, it would indicate that the alleged agreement to sell dated

28.2.1992 was not registered in the sense that it has been impounded for want of registration charges and the stamp duty and the said agreement was not even in the hands of the plaintiff.

25. However, even if the deficiency in registration charges and stamp duty is ignored, yet the fact remains that the plaintiff was required to comply with her part of the contract within a period of one year. As per her own case, she had to pay a sum of Rs.23,500/- to the original owner Durbil, within one year and get the sale deed executed. In this context, if the averments made in plaint is seen, there is no specific averment as to the fact when the plaintiff made any attempt to pay the outstanding sum to the original defendant.

26. As per paragraph 3 of the plaint, it is the case of the plaintiff that she offered the balance sale consideration to Durbil in December, 1993, but however, he kept delaying the matter and only in the February, 1993, he had refused to execute the sale deed in favour of the plaintiff. What is relevant to notice is the fact that neither in December, 1992 nor in February, 1993, the plaintiff was able to get her agreement to sell released from the authorities by paying the deficiency in the registration charges and stamp duty.

27. Any prudent person if desirous of seeking a specific enforcement of an agreement to sell, would first have to ensure that the said agreement was as per law which could be placed before a court of law for its enforcement. Apparently, the said agreement to sell was impounded for want of registration charges and stamp duty. Thus, on both occasions, as pleaded in the plaint i.e. December, 1992 and February, 1993, there was no enforceable agreement in between the parties. If on the date of institution of the suit, the agreement to sell which is sought to be enforced, is not placed on record, which is the basis of suit, naturally it cannot proceed. Accordingly, when the suit came to filed on 27.7.1993, even on that date, the plaintiff did not have the agreement to sell based upon which she could have sought the indulgence of the court.

28. Another fact that is clearly borne out from the record is that on the date of institution of the suit i.e. 27.7.1993, the plaintiff was required to deposit a court fee of Rs.3407.50. However, the plaintiff had only paid court fee of Rs.7.50 and was required to deposit the remaining Rs.3,400/-. Since

27.7.1993 till 17.2.1994, the matter remained inert before the trial court for want of court fee and only in February, 1994, the court fee was paid and the suit came to be registered as R.S.No.57 of

1994. The plaintiff who since 28.2.1992 i.e. the date of execution of the agreement to sell till

15.11.1993, apparently did not have funds to get the documents released and also did not have the requisite fund to pay for the court fee since

17.7.1993 till 17.2.1994.

29. Once the aforesaid facts, which could not disputed, are taken note of, how could any finding regarding readiness and willingness be recorded in favour of plaintiff. Apparently, this Court finds that both the trial court and the first appellate court have gravely erred in misconstruing the proposition regarding readiness and willingness and the findings are perverse against the material on record.

30. Sometimes facts speak for themselves and the dates which have been noted by this Court in the preceding paragraphs, is a clear indicator that the plaintiff was never in a position to pay the balance sale consideration within the time agreed to get the agreement strictly enforced.

31. The trial court and the first appellate court have proceeded on a different premise that since the agreement to sell was proved to have been executed and a statement was made by the plaintiff that she was ready and willing to perform her part of the contract, this in itself was held to be sufficient to hold in favour of the plaintiff.

32. This Court finds that this is not the correct understanding of the preposition of law. In light of the decisions which have been cited in the preceding paragraphs, it has been noticed that it is not necessary to show that the plaintiff had actual amount available but at the same time, sometimes the facts are so glaring that they could not have been ignored by the trial court as well as the first appellate court that the said agreement to sell having been impounded was released only on

15.11.1993. The time period as agreed in the agreement to sell was for one year which came to an end in February, 1993 and admittedly by then, neither the document had been released from the authorities after making good the deficiency coupled with the fact that had the plaintiff had the necessary funds, she ought to have first got the document released and even if at all her statement is taken to be correct, then in paragraphs 3 and 4 of the plaint, it could have indicated when and where the money was offered but there was no date mentioned on which date, she had offered the money to Durbil.

33. An agreement to sell, post the U.P. Amendment in the year 1997 incorporated in the Transfer of Property Act, made it compulsory for an agreement to sell to be registered and in absence of any registration as it is, the agreement could not be enforced coupled with the fact that the agreement to sell does not create any right or charge in the property as shall be evident from the definition of the word "Sale" as noticed in Section 54 of the Transfer of Property Act.

34. Thus, the concept of readiness and willingness is not only to be established during the period the agreement to sell remained in force, rather its readiness and willingness is to be expressed right from the date of entering into the agreement and throughout i.e. even on the date of institution of the suit and its pendency. If this aspect is seen, again it would be found that on the date of institution of the suit in absence of the court fee, the suit could not be registered and the court fee was made good after about seven months of its institution which also reflects the financial seriousness and capacity of the plaintiff.

35. Once seen from this perspective where the plaintiff was required to offer the balance sale consideration of Rs.23,500/- but she was not having requisite funds of even Rs.3,400/- to pay the court fee or the deficiency towards payment of stamp duty and registration charges and without there being any clear evidence in this regard and the financial capacity of the appellant being in doubt especially when the plaintiff was not having the requisite funds to pay the deficiency in stamp duty and requisite charges and also for the Court fee, hence it clearly casts a doubt over the readiness and willingness of the plaintiff to perform her part of the contract.

36. In light of the above, this Court is of the firm opinion that the findings recorded by the trial court as well as the first appellate court on the issue of readiness and willingness is perverse and for the said reason, the suit of the plaintiff for decree of specific performance could not be decreed.

37. Even otherwise in terms of Section 20 of the Act of 1963, it is not always necessary for the court to decree a suit for specific performance as the conduct of the parties have also to be seen and in this case, it would be clear that since

28.2.1992 till 17.2.1994 when the court fee was not paid in the suit, there has been nothing to indicate that the plaintiff was serious of getting her rights enforced vis-a-vis the property subject matter of the suit specially knowing this fact that Durbil had already executed the sale deed in favour of the appellant nos.2 and 3 as this fact has been stated by the plaintiff in her plaint paragraph

38. In the aforesaid facts and circumstances, this court is of the clear view that the findings on the aforesaid issues, had not been appropriately considered and suffer from the vice of being arbitrary and perverse and liable to be set aside.

39. Lastly, noticing the fact that the agreement to sell was of the year 1992 and it is a fact which could not be disproved that the plaintiff had paid a sum of Rs.16,500/- as earnest money. So even if the aforesaid amount remained with the original vendor namely Durbil and he sold the property to the appellant nos.2 and 3 in April, 1992 but the same has been with the appellants. Since the findings are being reversed, this Court finds that considering the lapse of time which has been consumed in this litigation of about 33 years, considering the dictum of the Hon'ble Apex Court in case in U. N. Krishnamurthy Vs. A. M. Krishnamurthy; 2022 SCC OnLine SC 840. This has also been followed by this Court in Arjun Prasad and others Vs. Ganesh Prasad and others, 2023 SCC OnLine All 364 where it has been held that while doing complete justice, if the amount is being refunded, then it should be seen that there has been an escalation in the costs as well as the prices of the property, hence taking this aspect of the matter, this court directs the appellant to pay a consolidated sum, of Rs.1,00,000/- to the respondents, within a period of sixty days from today, failing which the plaintiff/respondents would be entitled to recover the aforesaid sum through executing court for which no further notice would be required to be given to the appellants.

40. Subject the above modification, the present second appeal is allowed. The judgement and decree passed by the trial court dated 18.3.2016 in Regular Suit No.57 of 1994 which has been affirmed in Regular Civil Appeal No.11/2016 decided on 30.5.2017 are hereby set aside and the suit bearing no. 57 of 1994 shall stand dismissed with the modification that the appellant shall pay sum of Rs.1,00,000/- as provided here-in-above, to the respondents (plaintiff) within the time as mentioned above.

41. The record of the trial court be returned, forthwith. Order Date :- 7.7.2025 Shukla

to the plaintiff/ respondent?"

4. In order to appreciate the controversy involved in the instant appeal, certain brief facts relevant to the controversy are being noticed hereinafter.

5. One Shri Durbil was the recorded owner of the disputed property in question. He is said to have executed an agreement to sell in respect of his property bearing plots no.775 M, 774M and 776 M situated in Gram Firozpur Makhduni, Pargana and Tehsil Rudauli, District Barabanki. As per the terms of the agreement to sell, the aforesaid referred property was agreed to be sold for a total consideration of Rs.40,000/- out of which a sum of Rs.16,5000/- was paid as earnest money and it was agreed that the remaining amount would be paid and the sale deed would get executed within a period of one year from the date of the agreement.

6. The record indicates that the said agreement was impounded for deficiency of stamp duty and registration fee. In the meantime, on 30.4.1992, Durbil executed a sale deed in respect of the said property in favour of Siya Ram and Sukhdev who are the appellant nos.2 and 3 before this Court.

7. Another fact to be noticed is that on the date of the institution of the suit, the complete court fee was not paid. Accordingly, the suit came to be registered as a Misc. Case and the court fee was made good on 17.2.1994 whereafter the suit was registered as Regular Suit No.57 of 1994. While the suit was pending as Misc. Case for want of payment of complete court fee, the original defendant namely Durbil expired and then his legal heirs namely Satyanam was impleaded as a defendant alongwith the subsequent purchasers i.e. the appellant nos.2 and 3.

8. The suit came to be contested by the defendants and inter alia pleaded that on the date of institution of the suit, the appellants did not have any binding agreement to sell as the same had been impounded. It was also stated that for the very same reason, the appellant nos.2 and 3 ( defendants no.2 and 3 in the trial court) could not notice of the earlier agreement to sell and they bona fide purchaser for valuable consideration without notice of the earlier agreement as such they were duly protected. It was also urged that the plaintiff was not ready and willing to perform part of his contract and in such circumstances, the suit of the plaintiff cannot be decreed and at best, the amount paid as earnest money may be refunded.

9. Upon the exchange of pleadings, the trial court framed five issues, however for the purpose of the instant appeal, the relevant issues were as follows :- (i). Whether the plaintiff was entitled to get a decree of specific performance in her favour on the basis of the agreement to sell dated

28.2.1992. (ii). Whether the defendants had agreed to sell his three plots bearing no.775M, 774M and 776M against which he had received Rs.16,500/- as earnest money or whether the said agreement was a Sham document? (iii). Whether the plaintiff was ready and willing to pay the remaining sum of Rs.23,500/- and willing to get the sale deed executed?

10. The parties lead evidence and the trial court decided the issues nos.1,2 and 3 in favour of the plaintiff and the decreed the suit by means of the judgement and decree dated 18.3.2016. This judgement and decree dated 18.3.2016 was assailed in first appeal bearing no.11/2016 which came to be dismissed by means of the judgement and decree dated 30.5.2017. The defendants being aggrieved have now come up before this Court in second appeal assailing the two judgements and decree of affirmance arising from the suit for specific performance.

11. Shri Rajeiu Kumar Tripathi learned counsel for the appellants has submitted that the two courts have erred in dismissing the suit as the issue of readiness and willingness has not been appropriately decided by the two courts which has resulted in sheer miscarriage of justice. It is also submitted that the plaint as drafted by the plaintiff and submitted before the court was not in consonance with Form No.47-48 as provided under Appendix-A of the C.P.C. and since the agreement to sell was not subsisting on the date of institution of the suit, hence, the suit could not have been decreed.

12. Learned counsel for the appellants has further urged that the time granted for executing the sale deed was 12 months and within the aforesaid 12 months, there as no material on record which could establish the fact that the plaintiff had approached the defendants to take the money and execute the sale deed. The facts that the deficiency in payment of stamp duty was made good as on 15.11.1993 and prior thereto, the plaintiff had already filed the suit on 27.7.1993 with deficiency in court fee, which was made good only on 17.2.1994 and by then, the original defendant namely Durbil had already sold the property to the appellant nos.2 and 3. Along with the facts that in paragraph 3 of the plaint, it was clearly indicated by the plaintiff that she was aware in February, 1993 regarding the sale deed executed by Durbil in favour of appellant nos.2 and 3 and even by then i.e. since February, 1993 onwards, the plaintiff did not make good the deficiency in stamp duty and registration charges to get her agreement to sell released from the authorities which has been impounded and that the suit came to be filed on 27.7.1993 i.e. after one year and a half of the date of the alleged agreement to sell but that too was defective as it did not bear the requisite court fee and in such circumstances, there could be no finding in favour of the plaintiff regarding readiness and willingness which was per se bad and against the records.

13. It was lastly urged that the issue of readiness and willingness even if not pleaded by the plaintiff in strict terms nor a defence taken by the defendants yet it is incumbent upon the court to ascertain this aspect and once the court is satisfied that there has been proper compliance of Section 16(c) of Specific Reliefs Act, 1963 (hereinafter referred to as "Act of 1963") relating to readiness and willingness and thereafter taking into consideration the other facts, can a suit for specific performance be decreed provided the court finds it appropriate to exercise its discretion in favour of the plaintiff as contemplated in terms of Section 20 of the Act of 1963. Thus, the submission is that the issue of readiness and willing was not considered rather the findings are perverse, hence for the aforesaid reasons, the judgement and decree passed by the two courts cannot be sustained and they are liable to be set aside.

14. In support of his arguments, learned counsel for the appellants has relied upon the judgement of the Hon'ble Supreme Court in the case of Pydiramana Alias Ramulu Vs. Davarasety Manmadha Rao : (2024) 7 SCC 515.

15. Shri Jai Prakash Yadav and Shri Jitendra Bahadur Singh, learned counsel for the respondents primarily urged that this Court in exercise of powers under Section 100 C.P.C. would be very slow in reversing the findings of fact. Moreover, in the instant case, both the courts after considering the evidence of the parties, have recorded finding of fact that the plaintiff was always ready and willing to perform her part of the contract. The mere fact that the agreement to sell dated 28.2.1992 even though was impounded, but upon the payment of deficiency of stamp duty and registration charges, the document was released and once it was released, it would relate back to the date of its presentation, hence it cannot be said that there was any defect in the agreement.

16. Learned counsel for the respondents have further urged that once the plaintiff became aware that the original defendant Durbil had executed a sale deed in respect of the property in question, hence she filed the suit but again the deficiency in court fee cannot be a ground to deny the relief to the plaintiff as the deficiency in the court fee was made good which too would relate back to the date of institution of the suit on 27.7.1993.

17. In the aforesaid circumstances, mere deficiency in the payment of court fee or deficiency in the payment of stamp duty is not going to impact the rights of the plaintiff and this aspect has been considered and dealt with by the two courts and the finding are based on proper appreciation of evidence, hence they are not liable to be disturbed coupled with the fact that the defendants were aware of the agreement between the plaintiff and the original defendant Durbil and despite notice, they purchased the property, hence they are legally bound to join in executing the sale deed in favour of the plaintiffs in terms of the decree passed in favour of plaintiff/respondents and the second appeal deserves to be dismissed.

18. In support of his arguments, learned counsel for the respondent have relied upon the judgements of the Hon'ble Supreme Court in the case of 2022 (40) LCD 82 : Sughar Singh Vs. Hari Singh and 1999 (6) SCC 337 : Syed Dastagir Vs. T.R. Gopalkrishna Setty as well as the decision of this Court in the case of Surya Kunwari Vs. Nanhu and others : 2019 (37) LCD 2346.

19. The court has heard the learned counsel for the parties and has also perused the material on record.

20. As far the three substantial questions of law which have been framed and are to be answered by this Court would reveal that all three of them are interconnected and has the bearing on the basic proposition regarding the readiness and willingness of the plaintiff.

21. At the outset, it may be noted that it is trite law that the issue of readiness and willingness is a condition precedent before decreeing a suit for specific performance of contract. Whether it is appropriately pleaded or not is a secondary issue and whether it is taken as a defence by the defendant or not, is also different but the fact remains that it is the duty of the court to ascertain whether the plaintiff to a suit for specific performance of contract has been ready and willing to perform his part of contract or not.

22. The question arises as to what would be the true concept of the phrase "readiness and willingness" that used in Section 16( c) of the Act of 1963.

23. 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:- "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 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."

24. Once the law has been clarified as noticed above, now it will be appropriate as to examine whether the plaintiff (respondent herein) was ready and willing to perform her part of the contract. In this regard, if the plaint in suit is seen, it would indicate that in paras 3 and 4, the plaintiff had pleaded that she was ready and willing to perform her part of the contract but what is relevant to notice that apart from this pleadings, whether there was any actual manifestation of this readiness and willingness, it is in this context, if the undisputed facts are seen, it would indicate that the alleged agreement to sell dated

28.2.1992 was not registered in the sense that it has been impounded for want of registration charges and the stamp duty and the said agreement was not even in the hands of the plaintiff.

25. However, even if the deficiency in registration charges and stamp duty is ignored, yet the fact remains that the plaintiff was required to comply with her part of the contract within a period of one year. As per her own case, she had to pay a sum of Rs.23,500/- to the original owner Durbil, within one year and get the sale deed executed. In this context, if the averments made in plaint is seen, there is no specific averment as to the fact when the plaintiff made any attempt to pay the outstanding sum to the original defendant.

26. As per paragraph 3 of the plaint, it is the case of the plaintiff that she offered the balance sale consideration to Durbil in December, 1993, but however, he kept delaying the matter and only in the February, 1993, he had refused to execute the sale deed in favour of the plaintiff. What is relevant to notice is the fact that neither in December, 1992 nor in February, 1993, the plaintiff was able to get her agreement to sell released from the authorities by paying the deficiency in the registration charges and stamp duty.

27. Any prudent person if desirous of seeking a specific enforcement of an agreement to sell, would first have to ensure that the said agreement was as per law which could be placed before a court of law for its enforcement. Apparently, the said agreement to sell was impounded for want of registration charges and stamp duty. Thus, on both occasions, as pleaded in the plaint i.e. December, 1992 and February, 1993, there was no enforceable agreement in between the parties. If on the date of institution of the suit, the agreement to sell which is sought to be enforced, is not placed on record, which is the basis of suit, naturally it cannot proceed. Accordingly, when the suit came to filed on 27.7.1993, even on that date, the plaintiff did not have the agreement to sell based upon which she could have sought the indulgence of the court.

28. Another fact that is clearly borne out from the record is that on the date of institution of the suit i.e. 27.7.1993, the plaintiff was required to deposit a court fee of Rs.3407.50. However, the plaintiff had only paid court fee of Rs.7.50 and was required to deposit the remaining Rs.3,400/-. Since

27.7.1993 till 17.2.1994, the matter remained inert before the trial court for want of court fee and only in February, 1994, the court fee was paid and the suit came to be registered as R.S.No.57 of

1994. The plaintiff who since 28.2.1992 i.e. the date of execution of the agreement to sell till

15.11.1993, apparently did not have funds to get the documents released and also did not have the requisite fund to pay for the court fee since

17.7.1993 till 17.2.1994.

29. Once the aforesaid facts, which could not disputed, are taken note of, how could any finding regarding readiness and willingness be recorded in favour of plaintiff. Apparently, this Court finds that both the trial court and the first appellate court have gravely erred in misconstruing the proposition regarding readiness and willingness and the findings are perverse against the material on record.

30. Sometimes facts speak for themselves and the dates which have been noted by this Court in the preceding paragraphs, is a clear indicator that the plaintiff was never in a position to pay the balance sale consideration within the time agreed to get the agreement strictly enforced.

31. The trial court and the first appellate court have proceeded on a different premise that since the agreement to sell was proved to have been executed and a statement was made by the plaintiff that she was ready and willing to perform her part of the contract, this in itself was held to be sufficient to hold in favour of the plaintiff.

32. This Court finds that this is not the correct understanding of the preposition of law. In light of the decisions which have been cited in the preceding paragraphs, it has been noticed that it is not necessary to show that the plaintiff had actual amount available but at the same time, sometimes the facts are so glaring that they could not have been ignored by the trial court as well as the first appellate court that the said agreement to sell having been impounded was released only on

15.11.1993. The time period as agreed in the agreement to sell was for one year which came to an end in February, 1993 and admittedly by then, neither the document had been released from the authorities after making good the deficiency coupled with the fact that had the plaintiff had the necessary funds, she ought to have first got the document released and even if at all her statement is taken to be correct, then in paragraphs 3 and 4 of the plaint, it could have indicated when and where the money was offered but there was no date mentioned on which date, she had offered the money to Durbil.

33. An agreement to sell, post the U.P. Amendment in the year 1997 incorporated in the Transfer of Property Act, made it compulsory for an agreement to sell to be registered and in absence of any registration as it is, the agreement could not be enforced coupled with the fact that the agreement to sell does not create any right or charge in the property as shall be evident from the definition of the word "Sale" as noticed in Section 54 of the Transfer of Property Act.

34. Thus, the concept of readiness and willingness is not only to be established during the period the agreement to sell remained in force, rather its readiness and willingness is to be expressed right from the date of entering into the agreement and throughout i.e. even on the date of institution of the suit and its pendency. If this aspect is seen, again it would be found that on the date of institution of the suit in absence of the court fee, the suit could not be registered and the court fee was made good after about seven months of its institution which also reflects the financial seriousness and capacity of the plaintiff.

35. Once seen from this perspective where the plaintiff was required to offer the balance sale consideration of Rs.23,500/- but she was not having requisite funds of even Rs.3,400/- to pay the court fee or the deficiency towards payment of stamp duty and registration charges and without there being any clear evidence in this regard and the financial capacity of the appellant being in doubt especially when the plaintiff was not having the requisite funds to pay the deficiency in stamp duty and requisite charges and also for the Court fee, hence it clearly casts a doubt over the readiness and willingness of the plaintiff to perform her part of the contract.

36. In light of the above, this Court is of the firm opinion that the findings recorded by the trial court as well as the first appellate court on the issue of readiness and willingness is perverse and for the said reason, the suit of the plaintiff for decree of specific performance could not be decreed.

37. Even otherwise in terms of Section 20 of the Act of 1963, it is not always necessary for the court to decree a suit for specific performance as the conduct of the parties have also to be seen and in this case, it would be clear that since

28.2.1992 till 17.2.1994 when the court fee was not paid in the suit, there has been nothing to indicate that the plaintiff was serious of getting her rights enforced vis-a-vis the property subject matter of the suit specially knowing this fact that Durbil had already executed the sale deed in favour of the appellant nos.2 and 3 as this fact has been stated by the plaintiff in her plaint paragraph

38. In the aforesaid facts and circumstances, this court is of the clear view that the findings on the aforesaid issues, had not been appropriately considered and suffer from the vice of being arbitrary and perverse and liable to be set aside.

39. Lastly, noticing the fact that the agreement to sell was of the year 1992 and it is a fact which could not be disproved that the plaintiff had paid a sum of Rs.16,500/- as earnest money. So even if the aforesaid amount remained with the original vendor namely Durbil and he sold the property to the appellant nos.2 and 3 in April, 1992 but the same has been with the appellants. Since the findings are being reversed, this Court finds that considering the lapse of time which has been consumed in this litigation of about 33 years, considering the dictum of the Hon'ble Apex Court in case in U. N. Krishnamurthy Vs. A. M. Krishnamurthy; 2022 SCC OnLine SC 840. This has also been followed by this Court in Arjun Prasad and others Vs. Ganesh Prasad and others, 2023 SCC OnLine All 364 where it has been held that while doing complete justice, if the amount is being refunded, then it should be seen that there has been an escalation in the costs as well as the prices of the property, hence taking this aspect of the matter, this court directs the appellant to pay a consolidated sum, of Rs.1,00,000/- to the respondents, within a period of sixty days from today, failing which the plaintiff/respondents would be entitled to recover the aforesaid sum through executing court for which no further notice would be required to be given to the appellants.

40. Subject the above modification, the present second appeal is allowed. The judgement and decree passed by the trial court dated 18.3.2016 in Regular Suit No.57 of 1994 which has been affirmed in Regular Civil Appeal No.11/2016 decided on 30.5.2017 are hereby set aside and the suit bearing no. 57 of 1994 shall stand dismissed with the modification that the appellant shall pay sum of Rs.1,00,000/- as provided here-in-above, to the respondents (plaintiff) within the time as mentioned above.

41. The record of the trial court be returned, forthwith. Order Date :- 7.7.2025 Shukla