RSA 209/2017 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI RSA No. 209/2017 On the death of late Pankaj Kumar Das, his legal heirs- 1.1 Smt. Putul Das (wife). 1.2 Shri Bijoy Das (son). 1.3 Smt. Mistu Das D/o Late Pankaj Kumar Das, W/o Shri Bikash Das, Resident of near Promudini Guest House, C/o Gobinda Paul, Lower Jail Road, Shillong, Meghalaya, Pin-793001. 1.4 Shri Binoy Das (son). 1.5 Shri Debasish Das (son). Sl. Nos.1.1, 1.2, 1.4 & 1.5 are resident of Lanka College Road, Ward No.6, Lanka Town, PO & PS-Lanka, Dist.-Hojai, Assam, Pin-782446. ……Appellants. -Versus- Smt. Madhabi Mazumder, W/o Shri Hari Mazumder, Resident of Lanka Town, Ward No.6, PO-Lanka, PS-Lanka, Dist.-Hojai, Assam, Pin-782446. ……Respondent. For the Appellants : Mr. B.K. Bhagawati. ……Advocate. GAHC010263682017 2026:GAU-AS:9624 RSA 209/2017 For the Respondent : Mr. P.C. Dey. ……Advocates. BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN Date(s) of Hearing :- 10.03.2026 & 02.04.2026 Date on which judgment is reserved :- 02.04.2026 Date of pronouncement of judgment :- 15.07.2026 Whether the pronouncement is of the operative part of the judgment? :- N/A Whether the full judgment has been pronounced? :- Yes JUDGMENT AND ORDER Heard Mr. B.K. Bhagawati, learned counsel for the appellants and also heard Mr. P.C. Dey, learned counsel for the respondent. 2. This appeal, under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree, dated 23.12.2015, passed by the learned Additional District Judge No.3, Nagaon, in RSA 209/2017 Title Appeal No.6/2015. It is to be noted here that vide impugned judgment and decree, dated 23.12.2015, the learned Additional District Judge No.3, Nagaon (First Appellate Court, hereinafter), has affirmed the judgment and decree dated 23.02.2015, passed by the learned Civil Judge, Nagaon, in Title Suit No.57/2010. 3. It is also to be noted here that for the sake of convenience and to avoid confusion, the parties in this appeal will be referred to by their original status in the Title Suit No.57/2010. 4. The background facts leading to filing of the present appeal are briefly stated as under:- “The respondent herein, as plaintiff, had instituted a title suit, being Title Suit No.57/2010 for specific performance of contract. The case of the plaintiff was that a plot of land, measuring 1 katha 8 lechas, covered by Dag No.1540, periodic patta No.724 of Lanka Town Kissam, Mouza-Lanka, in the district of Nagaon, belongs to the defendant, namely, Pankaj Chandra Das. On being need of money, the defendant contacted the plaintiff to sell the suit land, fixing the consideration at Rs.2,24,000/- (Rupee two lakh twenty four thousand) and out of the said amount, the plaintiff paid a sum of Rs.95,000/- (Rupees ninety five thousand) to the defendant as advance on 26.04.2007. On the same date, the defendant also executed a registered deed of agreement, vide RSA 209/2017 No.2095/2007, in favour of the plaintiff, wherein it was agreed between the parties that if the defendant repays the advance amount within 30 days of the month of Ashin in Assamese calendar, then the plaintiff shall accept the amount and the agreement shall come to an end. But, if the defendant fails to repay the amount within that period, in that event, the defendant on receipt of the balance amount of Rs.1,29,000/- (Rupees one lakh twenty nine thousand) shall execute the necessary sale deed in favour of the plaintiff, in respect of the suit land, and shall handover possession of the land, to the plaintiff within 30 days of the Assamese Poush month. However, as per the terms of the contract, the defendant had failed to repay the advance amount of Rs.95,000/- (Rupees ninety five thousand) to the plaintiff and therefore, the plaintiff approached the defendant and tendered him the balance consideration of Rs.1,29,000/- (Rupees one lakh twenty nine thousand) and requested him to receive the amount and to execute the sale deed and to deliver possession of the suit land to the plaintiff. Then on 16.05.2008, the plaintiff tendered him the balance amount and requested him to accept the amount and to come to the Sub- Registrar Office, Hojai, where the plaintiff has already arranged for preparation of the sale deed and to execute and register the same. But, the plaintiff did not come showing his ill health. Finally, the plaintiff send demand notice to the defendant on 26.11.2009 stating about the aforesaid RSA 209/2017 registered agreement of sale, but the defendant made a reply by making a false statement that the defendant has been suffering from complicated diseases for last 12 years and he cannot recollect from his memory about execution of the registered agreement dated 26.04.2007, and asked the plaintiff to send a copy of the agreement, in spite of the copy of the agreement already sent to him, along with the pleader‟s notice. Then the plaintiff instituted the suit for a decree of specific performance of contract directing the defendant to accept the balance consideration amount of Rs.1,29,000/- (Rupees one lakh twenty nine thousand) and to execute the necessary sale deed in favour of the plaintiff with respect to the suit land and to deliver possession. The defendant had contested the suit by filing written statement. His stand is that there is no cause of action; the suit is not maintainable; the suit is barred by law of limitation; the so-called deed of agreement of sale is manufactured one; there is no material of part performance in the suit; the suit is bad for waiver, estoppel and acquiescence; bad for non- joinder of necessary parties, the suit is not properly valued and stamped and it is also stated that the plaintiff and the defendant are neighbours and that the plaintiff is a school teacher, rich and influential person and the defendant for his ailment took a sum of Rs.90,000/- (Rupees ninety thousand) as loan from the plaintiff with interest @ 5% and paid a sum of Rs.64,000/- (Rupees sixty four thousand) as interest. At the RSA 209/2017 time of taking the loan, the plaintiff took signature of the defendant on some unwritten papers and she made the so- called deed of agreement for sell, on those papers. The defendant never desired to sell the land to the plaintiff. The suit land is the only residential property of the defendant, wherein he lived with his ailing daughter and other family members and he also claimed that the deed of agreement is not agreement to sell the land rather it is a bond with surety to make the loan amount to repay and it is time barred. The defendant within one month of receipt of the money on loan, tendered the plaintiff the loan amount, but she on different pretext refused to accept the money and ultimately came up with the present suit and that the agreement of sale is not enforceable in law being not in accordance with law, and therefore, it is contended to dismiss the suit. In the column of the actual state of affair, the defendant stated as under:- “The plaintiff and he are neighbors. The plaintiff is a School Teacher, rich & influential person. For his ailment, he took Rs.90,000/- as a loan from the plaintiff with interest at the rate of 5.00 and paid Rs.64,000.00 as interest. At the time of taking loan, the plaintiff took his signatures on some un-written papers and she made the 'So- called' deed of agreement of sale on those papers. He never desired to sale his land to the plaintiff. The suit land is his only RSA 209/2017 residential property where he lives with his ailing daughter & other members of the family. The so-called deed of agreement is not agreement to sale the land. It is a bond with surety to make the loan amount re- pay. It is time barred.” Upon the aforementioned pleadings of the parties, the learned Trial Court had framed following issues:- 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the plaintiff is always ready and willing to perform his part of contract? 4. Whether the plaintiff is entitled to get the decree of specific performance of contract on the basis of agreement with the defendant? 5. Whether the plaintiff is entitled to the decree as prayed for? 6. To what other relief/reliefs the plaintiff is entitled to? Thereafter, the learned Trial Court has examined the plaintiff as PW-1, who had exhibited 4 nos. of documents and also examined 4 witnesses of the defendant, who had exhibited one certified copy of Jamabandi, as Exhibit-Ka, and thereafter, hearing arguments of both the parties, decreed the suit directing the defendant to accept the balance consideration of Rs.1,29,000/- (Rupees one lakh twenty nine thousand) and to execute the sale deed in favour of the RSA 209/2017 plaintiff with respect to the suit land mentioned in Schedule-„A‟ of the plaint, within 4 months from the said date, and to deliver possession and in the event of failure of the defendant to execute and register the sale deed, the plaintiff is directed to deposit the balance consideration in the Court and the sale deed will be executed and registered by the Court and possession will be delivered to the plaintiff by evicting the defendant therefrom. Being aggrieved by the said judgment and decree, the defendant had preferred the Title Appeal No.6/2015 before the Court of learned Additional District Judge No.3, Nagaon. Thereafter, the learned First Appellate Court, after hearing learned counsel for both the parties, vide impugned judgment and decree, dated 23.12.2015, has dismissed the appeal and affirmed the judgment and decree passed by the learned Trial Court.” 5. Being aggrieved, the defendant preferred the present appeal under Section 100 of the CPC, which was admitted by this Court for hearing on the following substantial question of law:- (i) Whether the Court below was correct in applying the discretion for decreeing the suit for specific performance of contract on the face of stipulations made in Exhibit-1, the alleged agreement for sale? RSA 209/2017 5.1. Subsequently, during the course of hearing following two additional substantial questions of laws also formulated, marking the same as additional substantial question of law, No.(i) and (ii), after notifying both the parties:- (i) Whether the impugned judgments and decrees passed by the learned courts below, suffers from perversity for non consideration of the point of limitation, while deciding the Title Suit No.57/2010 and Title Appeal No. 06/2015, while such a plea was taken by the appellant in the written statement. (ii) Whether the finding recorded by the learned first appellate Court in respect of Issue No. 3, which relates to readiness and willingness on the part of the plaintiff to perform her part of the contract, suffers from perversity for failing to take note of the evidence of P.W.1 (plaintiff) that after 16.05.2008, she approached defendant only on 24.04.2009, after elapse of one year. 6. Mr. Bhagawati, learned counsel for the appellants, submits that in spite of the plea taken by the defendant that the suit is barred by the law of limitation, none of the Courts below had framed any issue, or point for determination on the point of limitation. Mr. Bhagawati has pointed out that the agreement was entered into by the parties on 26.04.2007, and as per the said agreement, the amount was supposed to be returned on RSA 209/2017 15.10.2007, and from the pleader‟s notice, dated 26.11.2009(Exhibit-2) issued by the plaintiff it is apparent that from the 1st day of Kartik, 1414 of Bengali Era, which, as per Gregorian Calendar, was 19.10.2007, the cause of action arose on 20.10.2007. And as such the suit ought to have been filed within 21.10.2010. But, but the suit was filed on 08.11.2010. And in the meantime, the period of limitation is over by 18 days in view of Article 54 of the Limitation Act. 6.1. Mr. Bhagawati also submits that as per stipulation in the agreement for sale, it is stated that in the event of failing to pay the amount on 14.10.2007, the defendant has to accept the remaining sale consideration and to execute the sale deed. And in fact it was not an agreement for sale of land, but it was a bond executed to re- pay the loan and such it was a surety, but this aspect was not at all considered by both the Courts below. In support of the said submission Mr. Bhagawati has referred to a decision of Hon‟ble Supreme Court in Muddam Raju Yadav vs. B. Raja Shanker (D) Through Lrs. & ors. Civil Appeal No. 3255 of 2026 (arising out of S.L.P. (Civil) No. 6453 of 2024). 6.2. Further submission of Mr. Bhagawati is that, from the conduct of the plaintiff, the readiness and willingness could not have been found by the learned Courts below in her favour. He also pointed it out that there is no mention about the source of income, the capacity to pay in her plaint and also in her evidence, which are RSA 209/2017 essential conditions for granting specific performance. In support of his submission, Mr. Bhagawati has referred to a decision of Hon‟ble Supreme Court in the case of Hemanta Mondal and others v. Ganesh Chandra Naskar, reported in (2016) 1 SCC 567. 6.3. Lastly, Mr. Bhagawati submits that the suit land is the only plot of land of the defendant and if specific performance is granted in respect of the alleged agreement concerning the suit land, then the defendant and his family would suffer serious hardship, as he has no land to live-in, and on equitable consideration and in view of the Specific Relief (Amendment) Act, 2018, the defendant/appellants herein, may be allowed to avail the alternative remedy. 6.4. Mr. Bhagawati has also referred the following decisions in support of his submission:- (i) Usha Devi & Ors. vs. Ram Kumar Singh & Ors., reported in 2024 0 Supreme(SC) 657; (ii) Nikhila Divyang Mehta & Anr. vs. Hitesh P. Sanghvi & Ors., reported in 2025 4 Supreme 313; (iii) Madhukar Nivrutti Jagtap & Ors. vs. Smt. Pramilabai Chandulal Parandekar (Dead) Through Legal Representatives & Ors., reported in (2020) 15 SCC 731; and (iv) M/s Siddamsetty Infra Projects Pvt. Ltd. vs. Katta Sujatha Reddy & Ors., reported in (2024) 20 SCC 140. RSA 209/2017 7. Per contra, Mr. Dey, learned counsel for the plaintiff/respondent vehemently submits that there is no merit in this appeal and the learned Courts below have rightly applied their discretion while granting specific performance. Mr. Dey further submits that there is concurrent finding of fact by both the learned Courts below and that the dates given by the appellant are incorrect and 30th Poush, as per Bangla Calendar, is 15th of January, 2008. 7.1. His further submission is that the suit was filed within the period of limitation of three years, from the date fixed for execution of sale deed. In support of his submission he has referred following decisions:- (i) Madina Begum and another vs. Shiv Murti Prasad Pandey and others, reported in (2016) 15 SCC 322, Para 15, 17, 19 & 20: " (ii) Rathnavathi & Another v. Kavita Ganashamdas, reported in (2015) 5 SCC 223, Paras - 41, 42 and 43. (iii) Usha Devi & Ors. Vs. Ram Kr. Singh and others, reported in 2024 0 Supreme (SC) 657 - Paras 8, 9. 7.2. It is also the submission of Mr. Dey that in respect of continuous readiness and willingness on the part of the plaintiff, she was always ready and willing to perform her part of the contract and this is a finding of fact and after considering the evidence on RSA 209/2017 record both the learned Court below had arrived at a concurrent finding of fact and sitting in second appeal this Court cannot re- appreciate the same and arrive at a different finding. In support of his submission Mr. Dey has referred following decisions:- (i) Thiagarajan & Ors. vs. Sri Venugopalaswamy B. Koil & Ors. reported in (2004) 5 SCC 762; (ii) Harjeet Singh and Another – vs. Amrik Singh and another – reported in (2005) 12 SCC 270. (iii) A. Shahul Hameed vs. N. Malligarjuna and Ors. reported in 2026 INSC 573 7.3. Mr. Dey further submits that the substantial questions of law, as framed in this appeal are not involved and that impugned judgment and decree suffers from no infirmity or illegality requiring any interference of this Court. He also submits that no alternative plea was made in the plaint and as such the relief as sought for cannot be granted. And therefore he has contended to dismiss the appeal. 7.4. In support of his submission, Mr. Dey has referred the following decisions:- (i) Abdul Ghani Memorial Trust vs. Bihar State Sunni Wakf Board and another, reported in 1987 Supp (1) SCC 577; RSA 209/2017 (ii) Bijay Kumar Banerjee vs. Smt. Malati Banerjee, reported in AIR 2007 Ori 155; (iii) Shanti Devi (Smt.) (since dead) represented by LRs and others vs. Ram Narain (since dead) represented by LRs and others, reported in AIR 2004 Raj 232; (iv) Hemanta Mondal (supra); and (v) Kamal Kumar v. Premlata Joshi and others, reported in (2019) 3 SCC 704; 8. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the memo of appeal and the grounds mentioned therein and also perused the impugned judgment and decree passed by the learned Courts below and also gone through the decisions referred by learned counsel for both the parties. 9. In order to address this substantial question of law with greater precision, this Court deems it necessary to extract the copy of the Deed No.2095/2007 (Exhibit-1):- “First Party- Smti. Madhabi Mazumdar, W/O Sri Hari Mazumdar, Religion-Hindu, Occupation- House wife, R/O Village-Lanka Town, Ward No-6 Mouza and P.S- Lanka under Hojai Sub Registrar, District- Nagaon, Assam. Second Party- Sri Pankaj Chandra Das, S/O Late Bhabaranjan Das, Religion-Hindu, Occupation Household, R/O Village-Lanka, Ward No-6, Mouza and RSA 209/2017 P.S- Lanka, under Hojai Sub Registrar, District- Nagaon, Assam. Whereas I am the owner and possessor of the Schedule below land measuring 1 Katha 8 Lechas and whereas I am in need of money and I expressed my desire to execute a conditional sale to the first party and the first party agreed to the proposal of the second party, fixing the value of the land at Rs.2,24,000 (Two Lakhs Twenty Four Thousands only) and by this agreement the second party received an advance amount of Rs.95,000/-(Rupees Ninety Five Thousand only) and in the event the second party return the advance amount within 30th day of Ashin the first party shall be bound to accept the advance money without any objection and in the event of failure of the second party to return back the advance money within the above 30th day of Ashin the second party will have to execute the sale deed in favour of the first party on payment of the balanced amount of Rs.1,29,000/- by the First party without any objection within 30th day of Posh of the current Bangla era and the Second Party will execute the Sale Deed in the Office of the Sub Registrar Hojai and he would be bound by that. If the Second party refuses to take money on this or that plea or and if the First party refuses to take the advance amount offered within time on this or that plea then the First party or second party would be free from the liability of the other party by depositing the money in the Court. If second party makes hurdle by not accepting the balance money after the expiry of time then the second party would be liable to pay the entire compensation to the First party in the event of taking recourse of law for RSA 209/2017 getting the land. It is agreed that both parties will have no objection and none of our heirs would raise any objection, and in the event of any objection and demand raised by heirs that would be invalid and would be rejected. It is therefore on receipt of the advance money from First party by the Second party, this Sale Agreement is executed by putting signature today on 26/04/2007 voluntarily with my knowledge and sound mind. SCHEDULE Land measuring 1 Katha 8 Lessa under Dag No-1540 of Periodic Patta No-724 situated within Lanka Town under Sub Registerar Office of Hojai under P.S and Mouza Lanka District Nagaon (Assam). Bounded By- North- Sri Saheb and Saurav Majumder South-Govt. Road East-Smati Madhabi Mazumder West-Sri Hari Mazumder It is mentioned here that if the measurement of the schedule land under possession is less or more the amount of consideration will be adjusted. Sd./- Madhabi Mazumder Sd./- Pankaj Chandra Das Read over to both the parties Sd/-Md. Samsur Rahman Village-Lanka ward Witnesses 1. Sd/- Smti Putul Das Vill-Lanka Town 2. Sd/- Anil Ch. Ghosh Vill-Lanka Town, Ward No-1 RSA 209/2017 3. Sd/- Sri Fudiram Talukdar Vill-Lanka Town 4. Sd/- Sri Tikendra Saha Vill-Lanka Town” 10. Thus, a careful perusal of the aforesaid deed, it appears that following dates are essential:- 1. Date of agreement : 26.04.2007 2. Date of return of the amount : 30th day of Ashin. 3. Date of execution of Sale deed: 30th day of Poush of the current Bangla era. 11. Further, it appears from the record that when the defendant had failed to execute the sale deed by accepting the balance sale consideration the plaintiff had issued one legal notice to the defendant on 26.11.2009. It also appears that the learned Trial Court had held that in his cross-examination, the defendant had admitted that he took money from the plaintiff and he admitted his signature over the Exhibit-1, the deed of agreement and though he had taken a plea that he had returned a sum of Rs.64,000/- (Rupees sixty four thousand), yet, no document was produced and thereafter, the learned Trial Court had held that the defendant had failed to accept the balance sale consideration and to execute the sale deed. 12. And while discussing Section 16(c) of the Specific Relief Act, the learned Trial Court has held that the Section requires that RSA 209/2017 specific performance of a contract cannot be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. 12.1. The learned Trial Court had also held that from the evidence of the plaintiff it is well established that she is ready and willing to perform her part of contract and thereafter, it had held that the plaintiff is entitled to get a decree for specific performance of contract. Then the learned Trial Court has decided the Issue Nos.3 and 4 in favour of the plaintiff. 13. Further, from the learned First Appellate Court had held that - Section 16(c) of the Specific Relief Act requires that specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the performance of which has been prevented or waived by the defendant. 13.1. Thereafter, it has held that the legal notice, Ext. 2, issued by the plaintiff to the defendant through her Advocate establish that the plaintiff was ready and willing to perform her part to pay the RSA 209/2017 balance amount as per agreement of the contract. It had also been held that the evidence shows that she is ready to perform her part of the contract, rather the defendant/appellant is not willing or by this, or that pretext tried to escape to perform his part of the contract. As such considering the above discussions it appears that the plaintiff/respondent is entitled to get the decree of Specific performance of contract as per agreement with the defendant/plaintiff. Then it had held that the learned Trial Court had committed no error in deciding the said two issues in favour of the plaintiff/respondent and thereafter, it had decided both the issues in favour of the plaintiff. 14. But, what eschewed consideration of both the learned courts below is that in the written statement, the defendant had taken a categorical plea that for his ailment, he took Rs.90,000/- as a loan from the plaintiff with interest at the rate of 5.00 and paid Rs.64,000.00 as interest. At the time of taking loan, the plaintiff took his signatures on some un-written papers and she made the 'So-called' deed of agreement of sale on those papers. He never desired to sale his land to the plaintiff. The suit land is his only residential property where he lives with her ailing daughter & other member of the family. The so-called deed of agreement is not agreement to sale the land. It is a bond with surety to make the loan amount re-pay. RSA 209/2017 14.1. Such a contention was also made in the alleged Agreement for Sale, dated 26.04.2007 as under:- “…….. by this agreement the second party received an advance amount of Rs.95,000/- (Rupees Ninety Five Thousand only) and in the event the second party return the advance amount within 30th day of Ashin the first party shall be bound to accept the advance money without any objection and in the event of failure of the second party to return back the advance money within the above 30th day of Ashin the second party will have to execute the sale deed in favour of the first party on payment of the balanced amount of Rs.1,29,000/- by the First party without any objection within 30th day of Posh of the current Bangla era and the Second Party will execute the Sale Deed in the Office of the Sub Registrar Hojai and he would be bound by that…….” 14.2. In his evidence also the defendant had testified the same and the witnesses examined by him also corroborated his version to some extent. Mr. Bhagawati, the learned counsel for the defendant also rightly pointed this out at the time of hearing and the decision referred by him in Muddam Raju Yadav(supra) also strengthened his submission. 14.3. Notably, in the case of Muddam Raju Yadav(supra) Hon‟ble Supreme Court had held as under:- RSA 209/2017 “10. It is the case of the defendant(s) from the very beginning that the sale agreement was executed by way of security for a loan of Rs.6,00,000/- (Rupees Six Lakh) advanced by the plaintiff to the defendant(s) and the same was clearly reflected as recited in the MoU (Exhibit B-2). It is to be seen that said MoU was on a non-judicial stamp paper bearing document no.47663 and the no objection letter (Exhibit A-2) executed by the sons of the defendant was on Rs.100/- non-judicial stamp paper bearing document no.47662. Both the documents were dated 4.6.2002 and purchased from the same stamp vendor. The witnesses to both the documents were also one and the same. All these would probablise the defence of the defendant(s) that the agreement of sale was not a genuine transaction but was executed as a security for a loan transaction.” 14.4. In the case in hand also from the stipulation in the alleged Agreement for Sale to the effect that in the event the second party returns the advance amount within the 30th day of Ashin, the first party shall be bound to accept the advance money without any objection, goes to show that the same was executed as a security for a loan transaction. Had the amount taken by the defendant been paid, the matter would have ended then and there on the 30th day of Ashin. 14.5. Further, the clause in the alleged agreement for sale, worded as “the defendant shall execute sale deed on default after accepting RSA 209/2017 the balance amount”, has to be treated as a conditional security or forfeiture type mechanism, not as a full -fledged agreement for sale by itself. Therefore, a mere bond with such a clause, cannot ordinarily be read as an enforceable agreement for sale entitling the plaintiff to specific performance of the sale. If the overall document is a loan bond and the clause only says that the defendant “shall execute sale deed on default” after receiving the balance, it has to be seen as a mode of realizing security, like a mortgage-cum-sale by default, rather than a free, independent sale contract. 14.6. For specific performance, there should have been a separate, independent agreement to sell or a clear sale framework with mutual intention to transfer ownership, not just a one sided default triggered sale, as because it lacks the features of a normal sale agreement such as clarity of terms, mutual commercial intent, and opportunity for the defendant to negotiate. It is however a fact that alongside the bond, when there is a registered agreement to sell, deposit of substantial consideration, and conduct showing the parties such as handing over of possession, and part payment shown as sale price, etc., the court may interfere to protect the plaintiff‟s equitable interest, though still often by refusing strict specific performance of the default sale clause and instead decreeing money or other relief. RSA 209/2017 14.7. Thus, for being an enforceable agreement to sell, it is generally expected that there should be clear intention to sell the property, identifiable price treated as sale consideration, and usually a separate or registered sale framework or, at least, conduct clearly showing a sale intention, not just recovery by transfer. 14.8. In the instant case, there is no clear intention of the defendant to sell and the same is apparent from the written statement and also from the evidence adduced by him and also from the submission of his learned counsel. Besides, the possession of the land is also not handed over to the plaintiff. Further, it appears from the submission of the learned counsel for the defendant that the said plot of land is the only plot of land of the petitioner and in the event of granting specific performance it would cause much hard ship to the defendant as he has no place to live in. Additional Substantial question of law No.(i) 15. It is the contention of Mr. Bhagawati, learned counsel for the appellant that the suit was barred by the law of limitation, as it was filed beyond the period of limitation of 18 days, and that this aspect was overlooked by both the learned Courts below. 15.1. The counter submission of Mr. Dey, learned counsel for the respondent is that the suit was filed within the period of limitation of three years, from the date fixed for execution of sale deed. RSA 209/2017 15.2. It appears that the agreement for sale indicates that the sale deed was supposed to be executed by the defendant on accepting the balance amount of sale consideration, i.e. 1,29,000 (Rupees one lac twenty nine thousand) on 30th Posh of 1414 Bengali era. And as per the learned counsel for the plaintiff 30th Poush is 15th January 2008. The suit was filed on 18.11.2010. 15.3. It is to be noted here that Article 54 of the Limitation Act has two parts. The first part deals with situations where the contract fixes a date for performance. The period of limitation of three years runs from the date fixed for completion of performance. The second part deals with situations where the contract does not fix a date for the performance of the contract. In such situations, the period of limitation runs from the date, when the plaintiff has notice that the defendant has refused performance. 15.4. In the case of Madina Begum(supra) Hon‟ble Supreme Court has held as under:- “Mere reading of Article 54 of limitation Act, would show that if the date is fixed for the performance of an agreement, then non- compliance with the agreement on the date would give a cause of action to file a suit for specific performance within 3 years from the date so fixed. But, when no such date is fixed, the limitation of 3 years would begin when the RSA 209/2017 plaintiff has notice that the defendant has refused the performance of the agreement". 15.5. In the case of Usha Devi & Ors. (supra), so referred in this case, Hon‟ble Supreme Court has held that once there is specific date fixed for performance of contract, the limitation period would be three years from the said date. 15.6. Again in the case of Rathnavathi vs. Kavita Ganashamdas, reported in (2015) 5 SCC 223, Hon‟ble Supreme Court has held as under:- “42. A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non-compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement.” 15.7. In the instant case, date of execution of sale deed is mentioned in the agreement itself. And as such the period has to be counted from that date mentioned in the agreement as 30th Posh of 1414 Bengali era. And as per the learned counsel for the plaintiff 30th Poush is 15th January 2008. Further it appears that the suit was filed on 18.11.2010. And while the period is counted from 15th RSA 209/2017 January, 2008, till filing of the suit on 18.11.2010, the suit appears to be filed within the period of limitation. 15.8. In that view of the matter the Additional Substantial Question of Law No.(ii) is found to be not flows out of the impugned judgment and decree. And accordingly, the same stands answered in negative. Additional Substantial Question of Law No.(ii) 16. This question relates to readiness and wiliness on the parties to perform their part of contract. In this regard relevant provision is Section 16(c) of the Specific Relief Act. The provision read as under:- Section 16(c):- who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.- For the purposes of clause (c), (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the RSA 209/2017 contract according to its true construction. 16.1. In the case of R. Kandasamy (since dead) and others v. T.R.K. Sarawathy and another, reported in (2025) 3 SCC 513, while dealing with the consideration in grant or refusal of specific performance Hon‟ble Supreme Court has held as under:- “15. A three-Judge Bench of this Court in Prakash Chandra v. Angadlal (1979) 4 SCC 393] held, the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 16. This Court in N.P. Thirugnanam v. R. Jagan Mohan Rao (1995) 5 SCC 115] while reiterating that the remedy of specific performance is equitable in nature and that granting or refusing specific performance is within the discretion of the court, had the occasion to observe : (SCC pp. 117-18, para 5) “5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short “the Act”). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. RSA 209/2017 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 RSA 209/2017 always ready and willing to perform his part of the contract.” (emphasis supplied) 17. In Nirmala Anand v. Advent Corpn. (P) Ltd. [Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146] , a Bench of three Judges of this Court discussed what are the considerations that need to be kept in view while considering grant or refusal of a decree of specific performance in the following words : (SCC p. 150, para 6) “6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations RSA 209/2017 besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” 18. In Kamal Kumar v. Premlata Joshi [Kamal Kumar v. Premlata Joshi, (2019) 3 SCC 704, one finds the following instructive passage: (SCC pp. 705-706, paras 7-8). “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:- RSA 209/2017 7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property. 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds. 8. In our opinion, the aforementioned questions are part of the statutory RSA 209/2017 requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.” 19. Quite recently, Kamal Kumar [Kamal Kumar v. Premlata Joshi, (2019) 3 SCC 704, has been followed in P. Daivasigamani v. S. Sambandan, (2022) 14 SCC 793]. 16.2. Again, while dealing with as to who can be said to be “ready and willing” Hon‟ble Supreme Court in the said case held as under:- 20. In C.S. Venkatesh v. A.S.C. Murthy (2020) 3 SCC 280, this Court on consideration of various decisions culled out what is implied by the words “ready and willing”. It was held: (SCC p. 286, para 16) “16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and RSA 209/2017 willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.” 21. Requisite pleadings and proof that are required of a plaintiff to succeed in a suit for specific performance are succinctly captured in this Court's decision of recent origin in U. N. Krishnamurthy vs. A.M. Krishnamurthy, (2023) 11 SCC 775. The relevant passage reads : (SCC p. 783, para 24) “24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific RSA 209/2017 statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.” 16.3. Again in the case of Muddam Raju Yadav(supra) in para No.12 of the said decision Hon‟ble Supreme Court has also held as under:- “12. In a suit for specific performance, the conduct of the parties is significant as it assists the Court in evaluating the evidence to find out the bona fides of the parties at the time of execution of the agreement. Even a slight doubt in the mind of the Court that the plaintiff was not acting bona-fidely and that the material facts, having bearing on the agreement, have been withheld in the agreement RSA 209/2017 itself and from the Court also, the equitable and discretionary relief has to be denied.” 16.4. Again in the case of Madhukar Nivrutti Jagtap (supra) Hon‟ble Supreme Court held as under:- “13.2. The question as to whether the plaintiff seeking specific performance has been ready and willing to perform his part of the contract is required to be examined with reference to all the facts and the surrounding factors of the given case. The requirement is not that the plaintiff should continuously approach the defendant with payment or make incessant requests for performance. For the relief of specific performance, which is essentially a species of equity but has got statutory recognition in terms of the Specific Relief Act, 1963 [ Its forerunner being the Specific Relief Act, 1877.], the plaintiff must be found standing with the contract and the plaintiff's conduct should not be carrying any such blameworthiness so as to be considered inequitable. The requirement of readiness and willingness of the plaintiff is not theoretical in nature but is essentially a question of fact, which needs to be determined with reference to the pleadings and evidence of parties as also to all the material circumstances having bearing on the conduct of parties, the plaintiff in particular. In view of the contentions urged, we have scanned through the record to examine if the finding of the High Court in this regard calls for any interference.” RSA 209/2017 16.5. It is to be noted here that in the case of Kamal Kumar(supra), so referred by Mr. Dey, learned counsel for the plaintiff, Hon‟ble Supreme Court has held that the issue of readiness and willingness, in its view, is the most important issue for considering the grant of specific performance of the contract and the same being held by the two courts below up on the appreciation of evidence, against the plaintiff, it is binding upon this Court. It being essentially a question of fact, this Court is not inclined to again appreciate the entire evidence, when the appellant has failed to point out any material perversity or/and illegality in the finding so as to call for interference. 16.6. What can be crystallized from the aforesaid discussion is that the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. 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. When the plaintiff fails to either aver or prove the same, his case must fail. Further, to adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration RSA 209/2017 the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. 17. In the instant case, from the pleadings and also from the evidence adduced by the plaintiff, it appears that when the defendant failed to repay the amount on 30th day of Posh of 1414 Bengali Era, the plaintiff first tendered the balance amount to the defendant on 30.12.2007, with a request to execute the sale deed. Then on the request of the defendant, she awaited for six months. Thereafter, she had approached the defendant on 16.05.2008, but this time the defendant stated that he was suffering from an ailment and he would go outside for treatment and on returning home he would execute the sale deed. 17.1. Then after one year, on 24.04.2009, she again approached the defendant. But, this time also, the defendant delayed the matter on this or that pretext. She then sent a pleader‟s Notice to the defendant along with copy of agreement. The defendant had also sent the reply. But the same failed to bear any fruit. And that she has always and still been ready to perform her part of contract. 17.2. Thus, it becomes apparent that having approached the defendant on 16.05.2008, on which the defendant stated that he was suffering from ailment and he would go outside for treatment and on returning home he would execute the sale deed, then after one year, on 24.04.2009, she again approached the defendant. RSA 209/2017 Thus, it becomes clear that from 16.05.2008 till 24.04.2009, the plaintiff remained silent. 17.3. But, it is no body‟s case that the defendant had returned home from treatment at outside only after one year. Why she had to wait for one year, is not at all averred in the plaint and also deposed in her evidence. This is a material fact, which goes a long way to demonstrate that the plaintiff was not ever ready and willing to perform her part of contract, which is the condition precedent for grant of specific performance of contract, as held by Hon‟ble Supreme Court in the case of N.P. Thirugnanam(supra), Kamal Kumar(supra), C.S. Venkatesh (supra) and in U. N. Krishnamurthy (supra). 17.4. It is, however, well settled in the case of Madhukar Nivrutti Jagtap (supra) that the requirement is not that the plaintiff should continuously approach the defendant with payment or make incessant requests for performance. But, herein this case gap period is of one year, which is not a short period so as to readily ignore the same. 17.5. This unexplained period also caste a doubt in the mind of this court about the plaintiff acting bona-fides, in performing her part of the contract, as held by Hon‟ble Supreme Court in the case of Muddam Raju Yadav(supra) that even a slight doubt in the RSA 209/2017 mind of the Court that the plaintiff was not acting bona fidely, the equitable and discretionary relief has to be denied. 17.6. Thus, conduct of the plaintiff, in respect of continuous readiness and willingness does not inspire confidence. This is a condition precedent to grant the relief of specific performance and this is a material and relevant fact and if the plaintiff fails to either aver or prove the same, he must fail. This is one aspect of the matter. 17.7. The other aspect is that - the record reveals that the plaintiff, nowhere in the plaint had mentioned and also lead no evidence to demonstrate the source of her income, the capacity to pay, which are essential conditions for granting specific performance, as held by Hon‟ble Supreme Court in the case of N.P. Thirugnanam (supra), wherein Hon‟ble Supreme Court held that the amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Same proposition is echoed in the case of C.S. Venkatesh (supra) and U.N.Krishnamurthy (supra). In the later case, it has been also been held that - in other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. Thus, the factum of absence of pleading and proof regarding availability of sufficient funds further raise doubt in the mind of the RSA 209/2017 Court that the plaintiff was not acting bona fidely. And on this count also the equitable and discretionary relief has to be denied. 17.8. Thus, applying the proposition of law, as discussed herein above, to the given facts and circumstances of the case in hand, this Court is unable to derive satisfaction that the plaintiff was always ready and willing to perform her part of contract with the fund available with her to perform her part of contract. And as held by Hon‟ble Supreme Court in the case of N.P. Thirugnanam (supra) C.S. Venkatesh (supra) and U.N.Krishnamurthy (supra). Muddam Raju Yadav(supra) the case of the plaintiff must fail due to absence of continuous readiness and willingness on her part of contract with requisite fund. 17.9. Mr. Bhagawati, learned counsel for the defendant has rightly pointed this out during arguments and this Court finds substance in the same and accordingly record concurrence to his submission. 17.10. As submitted by Mr. Dey, learned counsel for the respondent, it is true that there is a concurrent finding of fact in respect of readiness and willingness on the part of the plaintiff. This Court is not oblivious to the fact that in an appeal under Section 100 CPC, this Court is not entitled to re-appreciate the evidence when concurrent finding of fact by both the learned Courts below. The decisions referred by him also strengthened his submission. RSA 209/2017 17.11. But, it is well settled that concurrent findings are not sacrosanct if they suffer from such defects. Reference in this context can be made to a decision of Hon‟ble Supreme Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, reported in (1999) 3 SCC 722, wherein dealing with the scope of second appeals, Hon‟ble Supreme Court held that the High Court can interfere under Section 100 CPC if the findings of fact are perverse or recorded without evidence or by ignoring material evidence. 17.12. In the case of KN Nagarajappa & Ors Versus H. Narsimha Reddy.Civil Appeal No.(s). 5033-5034 of 2009 Hon‟ble Supreme Court has held that –“undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the First Appellate Court are final. However, the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC.", the Court held.” RSA 209/2017 17.13. In the said case i.e. KN Nagarajappa(supra) it has also been held that- “these important aspects appeared to have been not appreciated – and their import was overlooked. As a consequence, the first appellate court fell into error in overlooking important evidence and appreciating the record in its true perspective and reversed the decree of the trial court. Moreover, the High Court, in second appeal proceeded to examine the documents in light of the evidence led and corrected the findings as it were under Section 103. If the appellants' arguments were to prevail, the findings of fact based upon an entirely erroneous appreciation of facts and by overlooking material evidence would necessarily have to remain and bind the parties, thereby causing injustice." 17.14. In the case of Kulwant Kaur and others v. Gurdial Singh Mann (Dead) by LRs and others, reported in (2001) 4 SCC 262, Hon‟ble Supreme Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) RSA 209/2017 Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication-- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: '103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-- (a) which has not been determined by the lower r appellate court or by both the court of first instance and the lower appellate court, or RSA 209/2017 (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100." The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with." 17.15. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at RSA 209/2017 on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.” 17.16. In the instant case, it appears from the judgment of both the courts below that both Courts below had failed to consider the material part of evidence of the plaintiff in respect of approaching the defendants by the plaintiff, especially for more than a year i.e. from 16.05.2008 till 24.04.2009, while deciding the issue of continuous readiness and willingness on the part of the plaintiff. 17.17. And failing to consider this material aspect, by both the courts below while deciding the crucial issue of "readiness and willingness" in a suit for specific performance to the considered opinion of this Court amount to perversity and as such the same qualifies as a substantial question of law under Section 100 CPC. And this allows this Court to interfere with the concurrent finding of fact on this point, under Section 100 CPC (and potentially under Section 103 CPC for re-appreciation in such cases). In arriving at such a finding this Court derived authority from a decision of Hon‟ble Supreme Court in the case of A. Shahul Hameed (supra) where it has been held as under:- RSA 209/2017 (i) Re-appreciation of evidence and interference with concurrent findings is impermissible under Section 100 unless the findings are perverse, based on no evidence, suffer from material illegality, misreading of evidence, or ignorance of relevant evidence. (ii) The High Court must demonstrate such defects; mere possibility of another view is insufficient. (iii) Readiness and willingness under Section 16(c) of the Specific Relief Act is assessed from the entirety of facts, conduct, and evidence. Non-consideration of material aspects can vitiate the decision. 17.18. Under the conspectus of factual and legal matrix, this Court is of the view that the Additional Substantial question of law No. (ii) is found to be flows out of the impugned judgment and decree and accordingly, the same stands answered in affirmative. Substantial question of law No.(i) 18. Mr. Bhagawati, learned counsel for the defendant/appellant submits that both the Courts below are not correct in applying discretion in decreeing the suit for specific performance of contract and as such the substantial question of law is involved here in and the same has to be answered accordingly. 18.1. This court has considered the submissions of Mr. Bhagawati in the light of the facts and circumstances of the record and also in RSA 209/2017 the light of the decisions referred by him. And this Court finds substance in his submissions and the decisions referred by him also fortified his submission. In the case of Hemanta Mandal (supra), the crux of the matter lay in whether the court should enforce the sale agreement or direct the refund of the earnest money paid by the plaintiff. The Hon‟ble Supreme Court has held that enforcing the specific performance of the sale contract was not the most equitable remedy. Evaluating the discretionary power granted to the court under Section 20 of the Act, it was emphasized that specific performance is a potent remedy, it is not absolute and must be exercised judiciously to uphold the ends of justice. It underscores the judiciary‟s role in ensuring that remedies are equitable and just preventing potential exploitation of contractual remedies that could lead to an unfair advantage or undue hardship. 18.2. This Court has also considered the submission of Mr. Dey, the learned counsel for the plaintiff and also gone through the decisions referred by him. In the case of Abdul Ghani Memorial Trust (supra) Hon‟ble Supreme Court has held that the High Court can receive additional evidence, in the form of a document and does not require any formal proof and proceed to determine the matter in accordance with law. And it is not open to the High Court to set aside the judgment of the lower appellate court and remit the matter back to the lower appellate court for writing a fresh judgment. Thus, this case proceeds on its own facts which are RSA 209/2017 clearly distinguishable for the case in hand and on such count the said decision would not advance his argument. 18.3. This Court has also gone through the other decisions referred by him. And this Court afraid the decisions so referred by him would not advance his argument. 18.4. Thus, from the discussion aforesaid, this Court finds that on the following counts the learned courts below are not correct in applying their discretion and in decreeing the suit of the plaintiff:- (i) The alleged agreement appears to be a security of the loan obtained by the defendant and as held by Hon‟ble Supreme Court in the case of Mudam Raju Yadav(supra) it probablises the stand of the defendant that the agreement of sale was not a genuine transaction but was executed as security for a loan transaction. But, this aspect eschewed consideration of both the learned courts below. (ii) The learned courts below failed to take note of the material piece of evidence of the plaintiff while deciding the issue of continuous willingness and readiness to perform her part of the contract under Section 16(C) of the Specific Relief Act. On such count the finding of both the courts below are perverse as held in the case of RSA 209/2017 S.R.Tiwari (supra), that the findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material. (iii) The learned courts below also failed to take note of the fact that the plaintiff, neither in her plaint nor in her evidence, pleaded and demonstrated that source of income, the capacity to pay, which are, in view of the decision of Hon‟ble Supreme Court in the case N.P. Thirugnanam (supra) and C.S. Venkatesh (supra) and U.N. Krishnamurthy (supra) must of necessity be proved to be available. (iv) The learned courts below also failed to take note of the fact that the grant of specific performance would cause serious hardship to the defendant as the suit land is the only piece of land where the defendants are presently residing. As held in the case of Hemanta Mandal (supra), specific performance is a potent remedy; it is not absolute and must be exercised judiciously to uphold the ends of justice. 18.5. Thus, substantial question of law No. (i) is found to be flows out of the impugned judgment and decree and the same has to be answered in negative and accordingly, the same stands answered. RSA 209/2017 19. In the result, this Court finds sufficient merit in this appeal and accordingly, the same stands allowed. The impugned judgment and decree, so passed by the learned First Appellate Court, stands set aside. Consequently, the suit of the plaintiff stands dismissed. However, drawing premises from the decisions of Hon‟ble Supreme Court in Hemanta Mandal (supra) and also of R. Kandasamy (supra), also in the given factual matrix this Court is inclined to hold that it will be equitable, just and proper to direct the appellants to pay back the amount of Rs 95,000/ (Rupees ninety five thousand) to the plaintiff, within a period of three months from today, with interest @ 9% per annum from 30th Ashin 1414 of Bengali era. Order accordingly. 20. The Registry shall send down the record of the learned Courts below with a copy of this judgment and order forthwith. The parties have to bear their own cost. Comparing Assistant Sd/- Robin Phukan JUDGE