1 Judgment reserved on : 13.02.2025 Judgment delivered on : 02.09.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 120 of 2022 1 - Kailash Malghani S/o Bedaram Malghani Aged About 49 Years R/o Khaparganj (Masanganj), Bilaspur, Tehsil Bilaspur,, District : Bilaspur, Chhattisgarh ... Appellant (s) versus 1 - R. C. Lalwani S/o Pratap Rai Aged About 65 Years R/o H. No. B- 20, Century Colony Deendayal Upadhyay Nagar, Raipur Tehsil And District Raipur, Chhattisgarh 2 - Smt. Manju Lalwani W/o R.C. Lalwani Aged About 61 Years R/o H. No. B-20, Century Colony Deendayal Upadhyay Nagar, Raipur Tehsil And District Raipur, Chhattisgarh ... Respondent(s) For Appellant (s) : Shri Sunil Otwani with Shri Shobhit Koshta, Advocates For Respondent (s) : Dr. N.K.Shukla, Senior Advocate with Ms.Priya Mishra, Shri Nitikesh Gupta and Shri Dinesh Bole, Advocates DB : Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Sachin Singh Rajput, J. 1. The appellant / plaintiff has filed this appeal under Section 96 of the Civil Procedure Code, 1908 (for short ‘CPC’) challenging judgment dated 18/05/2018 2 passed by the District Judge, Bilaspur (CG) (for short ‘trial Court’) in CS(A)/163/2015 whereby the learned Court below allowed the application of the defendants under Section 28 of the Specific Relief Act, 1963 (for short ‘Act of 1963’) and rescinded to agreement to sale dated 29/10/2012. 2. The parties are hereinafter referred to as their status before the learned trial Court. 3. Brief facts of the case are that by an agreement for sale dated 29.10.2012 entered into between the plaintiff as purchaser and defendant no.1 & 2 as vender, the defendants agreed to sell the suit property comprising of diverted land bearing khasra no.766/7, Area 2610 sq.ft. owned by defendant no.1 and Khasra no.775/1, Area 1121 sq.ft. and Khasra no.766, Area 420 sq.ft. owned defendant no.2, situated at Vinoba Nagar, Bilaspur @ Rs.2500/- per sq.ft (for short suit property). At the time of agreement the plaintiff paid Rs.10 lacs as earnest money of the said agreement. The sale deed was to be executed within four months of the agreement but it was the responsibility of the defendant no.1 to get the land demarcated before registration of sale deed and full amount of consideration was to be paid according to land available on the spot at the time of demarcation. When land was not demarcated as per terms of the agreement, the plaintiff served a notice to defendant no.1 on 21.07.2014 for demarcation of land but the defendant no.1 replied that the land is already demarcated and contract between the parties is terminated. It is clear from the reply of the defendant no.1 that he is not willing to perform the contract and may sell the property to some other person. The plaintiff sought relief for specific performance of contract and always shown his readiness and willingness to perform the same. On the above broad pleadings the plaintiff filed a suit for specific performance of contract which was register as CS No. 163- 3 A/2015. The suit was resisted by the defendants. The learned trial Court vide its judgment dated 09.05.2016 allowed the suit and granted the decree of specific performance of contract which reads as under:- i. The defendants will give notice to plaintiff upto 30th June 2016 after collecting records of rights and records required for registration and No Dues Certificate regarding the suit property for execution of sale deed. After receiving notice of the plaintiff will fix a date for execution of sale deed and will inform the defendants before 20th July, 2016 thereafter sale-deed will be executed before 31st July 2016 after payment of the rest of the consideration. ii. If defendants will not execute registered sale-deed then the sale-deed will be executed by this court in favour of the plaintiff. iii. Parties will bear their own cost of the suit. 3. When the sale-deed in compliance of the decree passed by the learned trial Court could not be executed, the defendants filed an application under section 28 of the Act of 1963 read with section 151 of CPC. Inter alia pleading that in compliance of the decree passed by the learned trial Court they have sent a notice on 24.06.2016 with necessary documents (records of rights) requesting the plaintiff to arrange the balance amount and fix a date for registration of sale deed and intimate them. In response to that plaintiff sent a letter dated 18.07.2016 asking them to remain present in office of Sub Registrar, Bilaspur on 30.07.2016 with necessary documents and balance amount would be paid there. It is further pleaded that on the date fixed, the defendants were present in the office of Sub Registrar at 10:45 AM and waited for the plaintiff. They inform the plaintiff at 11:45 AM and requested to reach there however, no satisfactory answer was given. When trill 4:30 PM, the plaintiff did not come, they inform the same to the Sub Registrar and submitted the necessary documents. Later on they informed about the same to the trial Court and on his advice visited the legal aid office and 4 registered their problem. It is further pleaded that in respect to the decree of the learned trial Court, the defendants again vide letter dated 31.08.2016 they requested the plaintiff to get the date fix for registration of sale-deed. This was replied by email that the balance amount is ready and get the sale deed registered after delivery of possession. Later on vide letter dated 06.09.2016 the plaintiff stated that he was present for whole day in the registry office and after the office time was over it was informed by the defendants that in respect of suit property one Ashok Chaturvedi has filed a revision before Additional Collector, Bilaspur and if sale deed is registered in favour of plaintiff, there may be court proceeding hence he did not come to get the sale deed registered. It is further stated in the letter that dispute regarding the suit property is pending before the Additional Collector, Bilaspur and after the dispute is resolved and possession of the suit property is delivered, plaintiff is ready to get the sale deed registered. It was further pleaded that the plaintiff is giving lame excuses for not registering the sale deed. In fact the plaintiff on 30.07.2016 was not ready or willing to execute the sale deed, neither he had the availability of funds therefore by giving false excuse plaintiff has avoided the registration of sale deed. In such broad pleadings, the defendants claimed that as the plaintiff failed to register the sale deed in compliance of decree passed by the learned trial Court, the same may be annulled. Alternative it was claimed in case the trial Court decides that the defendants are required to register the sale deed, instead of agreed consideration, the plaintiff would pay the consideration at the present rate. Interest @20% was also claimed for rescission of agreement to sale dated 29.10.2012 (though wrongly mentioned as 13.10.2012 in the application). 4. Reply to this application was filed by the plaintiff. Denying the averments made 5 therein it was pleaded by the plaintiff that decree of specific performance is passed by the learned trial Court. Dispute with regard to possession of the suit property is pending before revenue Court. The defendants wish to register the sale deed by handing over the dispute of possession to the plaintiff. The plaintiff wishes to receive the possession at the time of registration of sale deed. It was specifically pleaded that documents relating to pending case before Additional Collector has been handed over to the plaintiff by defendants. It was assured by the defendants that after the dispute related to possession of suit property registration would be done. The plaintiff is still ready and willing to get the registration of sale deed, if defendants delivers documents with regard to ending of dispute and delivers the possession of suit property. Plaintiff prayed for dismissal of the application. 5. The learned trial Court vide its judgment/order dated 18.05.2018 allowed the application of the of the defendants and rescinded the agreement to sale dated 29.10.2012 and also directed the defendants to refund the earnest money of Rs.10 lacs within 2 months. This is under challenge before this Court in this appeal. 6. Shri Sunil Otwani, learned counsel for the appellant/plaintiff submitted that learned trial Court failed to appreciate that there was no evidence in form of oral and documentary evidence establishing that the plaintiff had tried to avoid the execution of sale deed. Further submission is that for execution of sale deed delivery of possession is one of the essential. In the case in hand a dispute with regard to possession of the suit property is going on between the defendants and one Ashok Kumar Chaturvedi due to which the plaintiff despite readiness and willingness could not execute the sale deed. Learned trail Court failed to see that the defendants had assured the plaintiff that after the dispute with Ashok Kumar Chaturvedi is over, he will execute the sale deed but he took a complete 6 somersault by filing the application under section 28 of the Act of 1963 which disentitle him to grant such relief. The learned trial Court ought to have given one opportunity to the plaintiff to pay the entire sale consideration for execution and registration of sale deed. The plaintiff is still ready and willing to pay the entire sale consideration for performance of decree passed by the learned trail Court within 15 days. Therefore, he prayed that the impugned judgment may be set aside. To buttress his submissions, he placed reliance on the judgment of the Hon’ble Supreme Court in the case of Kishor Ghanshyamsa Paralikar (dead) v. Balaji Mandir Sansthan Mangrul (Nath) and anr. reported in 2022 SCC OnLine SC 1863, Polymat India (P) Ltd. And anr. v. National Insurance Co. Ltd. And ors. and other connected matter reported in (2005) 9 SCC 262 and Ishwar (Since Deceased) thr. LRs and Others v. Bhim Singh and Another reported in 2024 SCC OnLine SC 2338. 7. Per contra, Dr. N.K. Shukla supported the impugned judgment/order. He submitted that the learned trial Court has meticulously examined the material on record and gave a meritorious finding and allowed the application of the defendants which does not require any interference by this Court. He submitted that after passing the decree of specific performance, the trial Court does not become functus officio and the decree of specific performance is preliminary in nature. From the inception till execution and registration of the sale deed, the plaintiff is required to prove that he was ready and willing to perform his part of contract throughout. Though the decree was passed in his favour but he was not ready and willing to execute and register the sale deed. The plaintiff has not been able to established that he had sufficient funds for execution and registration of the sale deed. A false excuse of dispute of possession was put forth by the plaintiff to 7 avoid the execution and registration of sale deed. There is no dispute with regard to title of the suit property and the demarcation of the suit property has already been done in the year 2013 and the suit property is covered with boundary wall. As per terms of agreement to sale money will be paid as per actual availability of land. The defendants have fulfilled the provisions contained in section 55 of the Transfer of Property Act, 1882. All the necessary documents have already given to the plaintiff. The defendants in compliance of decree issued timely notice and even appeared before the Sub Registrar office on the date fixed by the plaintiff where her failed to appear. Later on also one opportunity was given to the plaintiff for execution and registration of sale deed but he avoided the same with a false pretext of dispute of possession in respect of suit property. The plaintiff has not established that after the decree was passed he still had sufficient means/funds for performance of the decree. Therefore, it is evident that the plaintiff was not ready and willing to execute and register the sale deed. Apart from this it is submitted that the earnest money of Rs.10 lacs has been given by the defendants to the plaintiff through a cheque which has been encashed by him. Therefore plaintiff cannot demand of execution and registration of sale deed in light of doctrine of estoppel and waiver. He further submitted that under Section 22 of the Act of 1963 the learned trial Court is competent to deliver possession of the suit property. He further submitted that an application under order 41 rule 27 of CPC has been filed for taking additional evidence. Documents related to civil suit between defendants and Ashok Kumar Chaturvedi being filed with the application which may be taken as an additional evidence in this appeal. To bolster his submission reliance has been placed on a judgment of Hon’ble Supreme Court in case of Bhupinder Kumar Vs. Angrej Singh reported in (2009) 8 SCC 766, P. Shyamla Vs. Gundlur Masthan reported in 2023 SCC OnLine SC 184, Vijay Kumar and 8 others Vs. Om Prakash reported in AIR 2018 SC 5098, Babu Lal Vs. M/s Hazari Lal Kishori Lal and others reported in (1982) 1 SCC 525 and a judgment of Hon’ble Madras High Court in case of H.G. Krishna Reddy and Co. Vs. M.M. Thimmaiah and Anr. reported in AIR 1983 Mad 169. He prayed that appeal has no merit and is liable to be dismissed. 8. We have given a patient hearing to learned counsel for the parties and examined the records with utmost circumspection. 9. The issue before this Court as to whether in the given facts circumstances of the case, the learned trial Court was justified in granting application of the defendants under section 28 of the Act of 1963. 10. For ready reference section 28 of the Act of 1963 is required to be noticed as under:- 28. Rescission in certain circumstances of contracts for the sale or lease of immovable property,the specific performance of which has been decreed.—(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the court— (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or the 9 lessee as earnest money or deposit in connection with the contract. (3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:— (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the court. 11. Perusal of the provision clearly spells out that where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. The relief to rescind the contract is a discretionary relief based on equity and will depend upon the facts circumstances and conduct of the parties. 12. Now this Court on the facts circumstances and conduct of the parties will determine whether defendants were entitled to relief under section 28 of the Act of 1963 as granted by the learned trial Court. 13. There is no dispute that the learned trial Court granted a decree of specific performance in favour of the plaintiff in respect to the suit property. As stated 10 above, decree envisages a time frame by which the defendants have to give notice to plaintiffs after collecting the necessary documents and no dues certificate by 30th June 2016 and thereafter the plaintiff was required to provide a date for registration of sale deed before 20th July 2016 and the registration of sale deed to be performed before 31st July 2016. In the event defendants failed to execute and register the sale deed, the plaintiff could get the sale deed registered through Court. The letter/notice dated 24.06.2016 shows that the defendants have informed the plaintiff that they have all the necessary documents viz revenue papers, tax receipt of municipal corporation, tax receipt of diversion etc. The defendants requested the plaintiff to fix a date for registration of sale deed and to pay the balance amount and get the sale deed registered. In reply to this plaintiff vide its letter 18.07.2016 asked the defendants to remain present at Sub-Registrar office, Bilaspur on 30.07.2016. It appears that on that day defendants were present for registration of sale deed however according to them plaintiff did not come to execute and register the sale deed and no satisfactory answer was given on being contacted on mobile. Thereafter, defendants informed to the Sub Registrar about the same and also informed about their problem in the legal aid office. Documents to this effect is available on record. Contrary to this the plaintiff stated that he was present at the Sub Registrar Office and he was informed by defendants about the dispute with regard to possession over the suit property with one Ashok Kumar Chaturvedi and inability to execute the sale deed till dispute is resolved. A letter given to Sub Registrar by plaintiff is on record. On one hand defendants are portraying a case that despite of waiting for the whole day plaintiff did not come and on the other hand plaintiff is stating contrary. 14. Despite of the first instance of failing to execute the sale deed, another letter 11 dated 31.08.2016 was sent by the defendants to plaintiff stating that they are still ready to execute sale deed. They gave the plaintiff 7 days’ time between 31.08. 2016 to 08.09.2016 and also requested to send the copy of demand draft of balance amount by whatsapp or email. Thereafter, on receipt of it, the plaintiff took a stand that there is a dispute with regard to possession is pending before Additional Collector, Bilaspur and would be able to execute and register the sale deed at the end of dispute and delivery of possession. This defence was not taken by the plaintiff in reply to the notice/letter dated 24.06.2016 and only asked the defendants on 30.07.2016 for execution and registration of sale deed. 15. Shri Otwani made a submission that as the dispute with regard to possession of the suit property was pending hence possession the suit property could have not been delivered and plaintiff is still ready and willing to execute and register the sale deed. This submission cannot be accepted as it appears to be an afterthought. As in the initial reply no such defence was taken by the plaintiff. Presence of defendants on the date fixed for execution and registration of sale deed is established from the documents of Sub Registrar and legal aid. Apart from this decree does prescribes any such condition of delivery of possession before execution and registration of sale deed. 16. The next submission of Shri Otwani is with regard to readiness and willingness of the plaintiff to execute and registration of sale deed and registration of sale deed and within 15 days balance amount would be paid. Whereas the submission of Dr. Shukla is that plaintiff is not ready and willing to execute and register the sale deed as he is not shown any evidence that he has sufficient means to pay the balance consideration. Hon’ble Supreme Court in case of Bhupinder Kumar (Supra) held that contract between parties is not extinguished when Court 12 passes a decree of specific performance. Such a decree is preliminary in nature and suit is deemed to be pending even after the decree. It has been held in paragraph 21 and 22 as under:- “21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree. 22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes funtus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement / decree. In deciding an application under Section 28 (1) of the Act, the court has to see all the attending circumstances including the conduct of the parties.” 17. As held in Bhupinder Kumar (Supra) the suit between the plaintiff and defendants deemed to be pending in the instant case. Therefore, the plaintiff needs to prove the readiness and willingness throughout. Though plaintiff is making a claim that as on date also he is ready and willing to pay the balance amount but no such document is on record to demonstrate that he has sufficient means to pay the balance consideration. It is to be seen that in the second notice sent by the defendants, they requested the plaintiff to send copy of demand draft on whatsapp or email to show his bonafide that he has sufficient means to execute & register 13 the sale deed. But the plaintiff failed to do so rather gave an excuse that he is ready and willing to execute and register the sale deed after the dispute with regard to possession is ended. Even reply of the plaintiff to the application under Section 28 of the Act of 1963 does not reflect any details of his source of income by which he would be able to execute & register the sale deed on payment of balance consideration. 18. In case of His Holiness Acharya swami Swami Ganesh Dassji Vs. Sita Ram Thapa reported in (1996) 4 SCC 526 Hon’ble Supreme Court dealt with the meaning of readiness and willingness. It was observed that ‘readiness’ means the capacity of the plaintiff to perform the contract which includes the financial situation to pay the sale consideration. To ascertain the ‘willingness’, conduct of the plaintiff has to be properly scrutinised. In paragraph 2 the Hon’ble Supreme Court held as under:- “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 contract, the conduct has to be properly scrutinised. [….]. The factum of readiness and willingness to perform plaintiff's part 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 no ready no 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 bit for the time which disentitles him as time is the essence of the contract.” 19. As discussed above, relief of Section 28 of the Act of 1963 is discretionary in nature. Looking to the conduct of the plaintiff, this Court is not inclined to 14 exercise the discretion in favour of the plaintiff for the reason that his conduct does not show his readiness and willingness to get the sale deed executed and registered. The plaintiff himself could have filed an application under Section 28 of the Act of 1963 to extend the time to pay the balance amount particularly the decree of specific performance passed by learned trial Court envisages that the sale deed should be executed and registered by 31st July, 2016. Rather plaintiff took a lame excuse of dispute of possession in respect of suit property. The plaintiff did not file any execution nor in the application of the defendants made any prayer for extension of time to deposit the balance consideration. Even in the appellate stage before this Court, he failed to demonstrate by any acceptable documents to show his financial capacity for execution and registration of sale deed. The relief of Section 28 of the Act of 1963 is based on equity. In the instant case, it lies in favour of the defendants. The agreement to sale was executed in the year 2012. The lis is pending for 13 years and by this time, the value of the suit property must have increased many times. Apart from this, the defendants have returned the earnest money as directed by the learned trial Court which has not been disputed. In this context, it would be apt to quote para 41 of the judgment of the Hon’ble Supreme Court in the case of Shenbagam and Others Vs. KK Rathinavel reported in 2022 SCC Online SC 71- “41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immovable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault…..” 15 20. With due respect, the case law cited by the learned counsel for the plaintiff does not help him in the given facts and circumstances of the case. In case of Ishwar (supra) in the execution proceedings application under 28 of the Act was filed by decree holder and the Hon’ble Supreme Court held that the executing Court has jurisdiction to decide the same. The submission of Shri Otwani to grant one opportunity of 15 days to pay the balance consideration cannot be accepted in view of discussion made in earlier paragraph of the judgment. Granting such opportunity will cause unfairly benefit to the plaintiff and would cause injustice to defendants particularly when the earnest money has already been pocketed by the plaintiff. 21. As a fallout of the above discussion, we are of the considered view that learned trial Court has not committed any illegality or irregularity in granting application under Section 28 of the Act of 1963. We affirm the said findings. As we have affirmed the finding of the learned trial Court, we do not find it necessary to adjudicate on the application under Order 41 Rule 27 of CPC filed by the defendants. The application is disposed off. 22. Ex consequenti, the appeal fails and is dismissed. 23. Parties to bear their own cost. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput ) JUDGE JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.09.02 17:27:15 +0530