1 2025:CGHC:56671 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 92 of 2016 1 - Vinod Agrawal S/o Radheshyam Agrawal, Aged About 41 Years R/o Danteshwari Ward, Ward No. 14, Dongargarh, District- Rajnandgaon Chhattisgarh Plaintiff, Chhattisgarh ... appellant (s) versus 1 - Smt. Madhulata Shrivastava W/o Manoj Shrivastava, Aged About 42 Years R/o Danteshwari Ward, Ward No. 14, Dongargarh, District- Rajnandgaon Chhattisgarh.... Defendant, Chhattisgarh ... Respondent(s) (cause title taken from CIS) For appellant (s) : Mr. Praveen K. Tulsyan, Advocate along with Mr. Aishwarya Pandey, Advocate For Respondent(s) : Mr. Arvind Prasad, Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 20.11.2025 1. The present first appeal has been filed under Section 96 of Code of Civil Procedure, 1908 by the plaintiff against the impugned judgment and decree dated 22.01.2016 passed by learned 1st Additional District Judge, Rajnandgaon, in Civil Suit No. 50 A of 2014, whereby the Civil Suit filed by the plaintiff for specific performance of the contract dated 19.09.2011 has been dismissed. SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.01.03 15:23:50 +0530 2 2. The plaintiff has filed a civil suit against the defendant for specific performance of the contract dated 19.09.2011. The civil suit was filed on 04.07.2013 with the pleading that the defendant is the owner and possession holder of the suit house, situated over the land Khasra No. 490/6, area- 02 dismil (872 Sq. Fit), situated at Danteshwari Ward, Ward No. 14, Dongargarh, Dist- Rajnandgaon. The defendant had agreed to sale the said house for total consideration of Rs. 9,25,000/- on 19.09.2011 and out of total sale consideration, Rs. 4,25,000/- was paid as an advance amount and the agreement was executed between them. The remaining amount of sale consideration was to be paid at the time of registration of the sale deed and the time of one year was fixed for registration of the sale deed. When the defendant could not executed the sale deed in favour of the plaintiff, despite his repeated request, he served a legal notice on 06.08.2012 but the same was refused to accept and thereafter, he personally contacted the defendant, and then she assured him that up to 17.09.2012, she would get the sale deed registered in favour of the plaintiff. On 17.09.2012, 18.09.2012 and 19.09.2012, he appeared at registration office but the defendant had not come there to register the sale deed. The plaintiff was ready and willing to perform his part of contract but the defendant has failed to perform the contract and ultimately civil suit has been filed. 3. The defendant contested the claim of the plaintiff and filed her written statement, denied the plaint averment and pleaded that the defendant himself was negligent in execution of sale deed. In between 19.09.2011 to 19.09.2012, she requested the plaintiff many times for registration of the sale deed but the plaintiff evaded every time for the reason that he 3 could not manage the remaining sale consideration. The notice sent by the plaintiff is also a part of his collusion with the postal agency and get it back by an endorsement of refused. She would also submit that the averment of the plaintiff that he was appeared at registration office on 17.09.2012, 18.09.2012 and 19.09.2012 is only to collect the evidence against the defendant, however, there is no such intimation that he had gone there for registration of the sale deed or ask the defendant to get the sale deed registered on that day. The sale deed could not be registered for want of remaining sale consideration and it is the plaintiff who failed to perform his part of the contract and since, the time fixed for registration of the sale deed is lapsed, the plaintiff can not expected that the defendant will register the sale deed in his favour and for non- performance of the contract on the part of plaintiff, the contract itself is revoked. The defendant was ready and willing to perform her part of the contract but it is the plaintiff who failed to perform his part of the contract. No cause of action arose in favour of the plaintiff and the suit is liable to be dismissed. 4. Based on the pleading of the parties, the learned trial Court has framed issued and proceeded for trial. During the trial, the plaintiff examined himself as PW/1. Raja Shiv Kumar Sharma (PW/2), Dinesh Agrawal (PW/3) and relied upon the documents (Ex-P/1), agreement dated 19.09.2011, (Ex-P/2 and P/3) which are the revenue document of Kishtbandi Khatauni and Khasra Panchshala and (Ex-P/4) is the legal notice dated 04.08.2012, (Ex-P/5) is the envelope which was returned back to the plaintiff, (Ex-P/6, P/7 and P/8) are the intimation to the sub- registrar of his presence before the registrar office, (Ex-P/12) is the public notice published in daily news paper, (Ex-P/13) is the Kishan 4 Kitab. 5. The defendant Smt Madhu Lata Shrivastava has examined herself as (DW/1). 6. After appreciation of the evidence led by the parties, the learned trial Court has dismissed the suit of the plaintiff holding that the plaintiff has failed to prove his case that he was ready and willing to perform his part of the contract and therefore, he is not entitled for decree of specific performance of the contract which is under challenge in the present first appeal. 7. Learned counsel appearing for the appellant would submit that the execution of agreement is not denied by the defendant. She was also ready and willing to perform her part of the contract and the plaintiff is also ready and willing to perform his part of the contract, however, there is counter allegation that the opposite party were not interested in execution of sale deed. The plaintiff has paid almost half of the sale consideration to the defendant and within time, he repeatedly requested the defendant to get the sale deed register but she evaded. He served legal notice which she refused and after intimating the defendant, he appeared before the registry office on 17/09/2012, 18/09/2012 and 19/09/2012 along with the remaining sale consideration and the registration charges, but the defendant was not appeared there. He would further submit that the learned trial Court has also erroneously found that the agreement was executed between the parties, but the plaintiff could not produce the evidence of availability of the remaining sale consideration by producing any bank account or other source to say that he was having sufficient amount of 5 remaining sale consideration for registration of the sale deed. Further the learned trial Court has also erroneously considered that before his appearance at registration office on 17, 18 and 19 September, 2012, he has not intimated the defendant about the same and thus, it cannot be said that the plaintiff was ready and willing to perform his part of the contract. He would also submit that the defendant was also the resident of the same vicinity and the plaintiff orally informed that on 17/09/2012, he would appear before the registration office for registration of the sale deed. The judgment of the learned trial Court is based on mis-appreciation of the evidence and an erroneous judgment has been passed which is liable to be set aside and the decree of the specific performance of the contract may be granted in favour of the plaintiff. 8. Learned counsel appearing for the respondent would supported the impugned judgment and decree passed by learned trial Court and submitted that since the plaintiff himself was not ready and willing to perform his part of the contract, no decree could be passed in his favour and the learned trial Court has rightly dismissed his suit which is not required for any interference. 9. I have heard learned counsel for the parties and perused the record of the trial Court. 10. In the present case, the points for consideration would be whether the plaintiff was ready and willing to perform his part of contract and whether he is entitled for the decree of specific performance or not. 11. The execution of agreement is not in dispute in the case. As per the terms of agreement (Ex-P/1), the defendant had agreed to sale the suit 6 house in favour of the plaintiff for the total consideration of Rs. 9,25,000/- and the deed of agreement was executed on 19.09.2011. The defendant has also not disputed that at the time of execution of agreement, an amount of Rs. 4,25,000/- was paid to her as an advance amount, out of total sale consideration and the remaining amount was to be paid at the time of registration of sale deed. The time of one year was fixed for registration of the sale deed. It is also the condition that the sale deed would be registered in the name of person suggested by the plaintiff. The dispute between the parties is only that both the parties were levelled counter allegation that the opposite party was not ready and willing to perform their part of contract. 12. The plaintiff (PW/1) Vinod Agrawal has stated in his evidence that, although, there was a time limit of one year fixed in the agreement, but he orally informed the defendant that within 5-6 months after arranging the remaining sale consideration, he would get the sale deed registered. He further stated that after 5-6 months, he orally informed the defendant that he arranged the remaining amount of sale consideration, but the defendant has evaded for registration of the sale deed. When the plaintiff himself has stated that at the time of execution of the agreement, for want of entire sale consideration, the sale deed could not be registered and he informed the defendant that within 5-6 months he would arrange the necessary sale consideration and then he would get the sale deed registered, which itself shows that at the time of execution of agreement, he was not having the sufficient sale consideration as fixed by the agreement. When he subsequently arranged the necessary fund of remaining sale consideration, he was required to prove the same by filing the relevant documents like bank 7 account or any other source of collecting the funds. Even he could not inform the defendant in writing that he has arranged the remaining sale consideration and let us go for registration of sale deed. Although, the plaintiff had served a legal notice on 04.08.2012, however, the defendant has denied that it was refused by the defendant and the plaintiff had collided with the postal employees and get the said envelope returned to its centre by the endorsement of refuse. The plaintiff may have examine the postal employee who had gone to serve the said envelope to the defendant to prove that the defendant has refused to accept the said notice. Although, Section 27 of General Clauses Act provided that a notice sent by registered post to person concerned at proper address is deemed to be served upon him/ her in due course unless contrary is proved and the endorsement “refused” is deemed to be served to such person, but merely sending a notice or refuse to accept, is not sufficient to decide the readiness and willingness to perform their respective part of contract. 13. One another evidence led by the plaintiff that on 17.09.2012, 18.09.2012 and 19.09.2012, he was appeared before the registration office along with the remaining sale consideration and obtained an acknowledgment of his appearance there, however, there is no evidence that before 17.09.2012 the plaintiff had informed the defendant to remain present on for registration of the sale deed on 17.09.2012. 14. In para 18, the plaintiff has stated in his evidence that he is an income tax payee. When the plaintiff was an income tax payee, he should file his income tax return to show that the amount of payment of sale 8 consideration of Rs. 4,25,000/- as an advance and having capacity to pay the remaining sale consideration and his income tax return shows that such amount paid to the defendant is a part of his income tax return, however, no any income tax return or any other documents of the plaintiff has been filed in the case to substantiate his claim. 15. With respect to prove of sufficient amount of remaining sale consideration and capacity to pay the sale consideration to the defendant, the Hon’ble Supreme Court in the matter of Ritu Saxena Vs. J. S. Grover & Another reported in 2019 (9) SCC 132, held that the non-establishment of financial capacity of purchaser would goes against him that he was not ready and wiling to perform his part of contract. The Hon’ble Supreme Court in the matter of Ritu Saxena (Supra) in Para-15 has held that :- “15. Coming to the facts of the present case, the sole document relied upon by the appellant to prove her readiness and willingness is the approval of loan on 30-7-2004 by ICICI. Such approval was subject to two conditions viz. furnishing of income tax documents of the appellant and the property documents. M/s ICICI has sent an email on 12-5-2005 to the husband of the appellant requiring an agreement to sell on a stamp paper of Rs 50 to be executed between the parties, as per the legal opinion sought from the empanelled lawyer, without which ICICI will not be able to disburse the loan. Admittedly, no agreement was executed on stamp paper, therefore, the appellant could not avail loan of Rs 50 lakhs from ICICI. Independent of such loan, there is mere statement that the appellant and her husband have income of Rs 80 lakhs per annum unsupported by any documentary evidence. Such statement will be in the nature of ipse dixit of the appellant and/or her husband and is without any corroborating evidence. Such self-serving statements without any proof of 9 financial resources cannot be relied upon to return a finding that the appellant was ready and willing to perform her part of the contract. The appellant has not produced any income tax record or the bank statement in support of her plea of financial capacity so as to be ready and willing to perform the contract. Therefore, mere fact that the bank has assessed the financial capacity of the appellant while granting loan earlier in respect of another property is not sufficient to discharge of proof of financial capacity in the facts of the present case to hold that the appellant was ready and willing to perform her part of the contract. Such is the finding recorded by both the courts below as well.” 16. The relief of specific performance of the contract is a discretionary relief which should be decided on the basis of facts and evidence available on record. From the evidence available on record, the learned trial court has considered that the plaintiff could not prove that he was having sufficient amount of remaining sale consideration by producing any document that is bank account statement or any other source of the amount and the evidence produced by him is not sufficient to hold that he was ready and willing to perform his part of the contract and to exercise the discretion in his favour to grant the discretionary relief. 17. The evidence of PW/2 Raja Shiv Kumar Sharma is also important to be discussed here. He had gone to the house of the defendant in the month of April, 2012 and just a week before the fixed date of registration of the sale deed. The defendant was stuck in saying that the plaintiff should arrange the remaining sale consideration. In para 4 and 6 he stated about the stand of the defendant that she was ready for registration of sale deed, however, she asked for arrangement of 10 the remaining sale consideration by the plaintiff. He himself did not know as to whether in the month of April, 2012, the plaintiff was having 5,25,000/- rupees towards remaining sale consideration or not. The plaintiff has not informed him about going to the registrar office. Three days prior to the last date of registration of the sale deed fixed in the agreement, the defendant had not appeared before the registrar office. He also did not know about the fixed date for registration of the sale deed. He is not a witness to the agreement executed between the parties. 18. The decree of specific performance of the contract is a discretionary relief based on rational and acceptable principles. In the matter of “Major Gen. Darshan Singh and Anr. Vs. Brij Bhushan Chaudhary” 2024 (3) SCC 489, the Hon’ble Supreme Court has observed in para 12 that:- “12. Under Section 20 of the 1963 Act, the grant of a decree for specific performance is always discretionary. The exercise of discretion depends on several factors. One of the factors is the conduct of the plaintiff. The reason is that relief of a decree of specific performance is an equitable relief. A person who seeks equity must do equity.” 19. The discretion to direct specific performance of an agreement has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963, cannot be entrapped within any precise expression of language, and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness, as may be directed by the peculiar facts of any given case. In the matter of “G. 11 Jayashree and Others v. Bhagwandas S. Patel and Others”, 2009 (3) SCC 141, the Hon’ble Supreme Court has held that :- 32. The civil courts, in the matter of enforcement of an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law. In Mohammadia Cooperative Building Society Limited v. Lakshmi Srinivasa Cooperative Building Society Limited & ors. [(2008) 7 SCC 310], this Court held:- "71. Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands." 33. In Sanjana M. Wig (Ms.) v. Hindustan Petroleum Corpn. Ltd. [2005) 8 SCC 242] in regard to exercise of the discretionary jurisdiction, this Court held that the same depends upon the facts and circumstances of each case wherefor no hard and fast rule can be laid down. 34. We may notice that B.P. Jeevan Reddy, J. in K.S. Vidyanadam & ors. v. Vairavan [(1997) 3 SCC 1] held that a new look is required to be given and the rigour of the rule is required to be relaxed by courts as regards the principle that time is not of the essence of the contract in case of immovable properties as when the said principle was evolved the prices and values were stable and inflation was unknown, stating: "11……….The learned Counsel for the plaintiff says that when the parties entered into the contract, they knew that prices are rising; hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as nonexistent? All this only means that while exercising its 12 discretion, the court should also bear in mind that when the parties prescribes certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract [relating to immovable properties]." This court therein noticed the decision rendered in Mademsetty Satyanarayana v. G. Yellogi Rao [(1965) 2 SCR 221] where Subba Rao, J. (As His Lordship then was) made a distinction between Indian law and the English law on the subject to hold that some delay may not be a bar in granting a relief of specific performance as the limitation for filing such suit is prescribed under the Limitation Act, 1963, stating: "13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices-according to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff." 20. Coming to the facts of the present case, it transpires that the agreement was executed on 19.09.2011, the time of registration was fixed as within one year, at the time of agreement, the advance amount of Rs. 4,25,000/- was paid to the vendor, the sale deed was to be registered in the name of person suggested by the plaintiff/ purchaser, there is counter allegation against each other about readiness and willingness to perform their respective part of contract, the plaintiff could not show any document with respect to availability of entire sale consideration with him, when the plaintiff and defendant are said to have been resident of same vicinity and service of legal notice is questioned that it has been returned with the endorsement of “refused”. When the said notice was refused, he must have talked to the defendant. As per the evidence of the PW-2 Raja Shiv Kumar Sharma, the defendant was also ready and willing to execute the sale deed, but 13 she asked to get the remaining sale consideration arranged. All these evidences and circumstances shows that the plaintiff did not have remaining sale consideration with him and he was not ready and willing to perform his part of the contract, therefore, the equity would not be considered in his favour. 21. Since, the plaintiff has not claimed the refund of the advance amount paid to defendant and no prayer has been made in relief clause in his plaint, in view of the judgment passed by Hon’ble Supreme Court in the matter of K.R. Suresh Vs. R. Purnima, 2025 live law SC 522, no order for refund of advance amount can be passed in favour of the plaintiff. 22. After considering the entire evidence and the pleadings of the parties, the learned trial Court comes into conclusion that it is the plaintiff who was not ready and wiling to perform his part of the contract and declined to grant decree for specific performance, in which this Court does not find any perversity or illegality to interfere with the impugned judgment and decree passed by learned trial Court. 23. Accordingly, the first appeal filed by the plaintiff is liable to be and hereby dismissed. 24. The parties shall bear their own cost. 25. The appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge sagrika