2026:HHC:22384 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 302 of 2022 Reserved on: 27.05.2026 Date of decision: 15.06.2026. Tulsi Ram @ Tulsia ...Appellant. Versus Parveen Kumar ...Respondent. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Atul Jhingan, Advocate. For the respondent : Mr. Vivek Sharma, Advocate. Romesh Verma, Judge: The present appeal arises out of judgment and decree, as passed by the learned Additional District Judge-II, Solan, dated 27.12.2017, whereby the appeal filed by the appellant/defendant was dismissed and the judgment and decree, as passed by the learned Senior Civil Judge, Solan, District Solan, H.P. dated 19.07.2017, has been affirmed whereby, the suit, as filed by the plaintiff for specific performance of contract was decreed. 2. The facts which emerge in the case are that the plaintiff/respondent filed a suit for specific performance of the contract/agreement dated 15.01.2009 and for permanent 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- prohibitory injunction and in alternative for recovery of Rs. 3,40,000/- along with interest at the rate of 18% per annum w.e.f. 15.01.2009 till its realization. 3. It was averred by the plaintiff in the plaint that the defendant Tulsi Ram entered into an agreement dated 15.01.2009 with the plaintiff whereby he agreed to sell land, comprised in Khewat No.413 min/342, Khatauni No.636/603 Khasra No.813, measuring 1215 Sq. Meters, situated in mauja Saproon, HB No.653, Tehsil and District Solan, H.P. for a total sale consideration of Rs. 5,50,000/-. 4. The plaintiff paid a sum of 1,50,000/- as an earnest money to the defendant which is duly acknowledged by him. The sale deed was agreed to be executed on or before 15.7.2009. Further, it was averred in the plaint that on account of unavoidable circumstances the sale deed could not be executed and registered in favour of the plaintiff. Therefore, through an agreement dated 18.07.2009, time was extended for the execution of sale deed in favour of the plaintiff within two months from the date of the execution of said agreement. 5. Thereafter, again on account of certain unavoidable circumstances, sale deed could not be executed. Therefore, the parties mutually agreed to again extend the date of execution and registration of the sale deed. Ultimately, on 25.8.2010, the -3- defendant again entered into an agreement whereby, time was extended for the registration and execution of the sale deed for 15.10.2010. 6. In pursuance to the extension, the sale consideration amount was increased to the tune of 40,000/-. Therefore, the consideration amount was increased for a total sum of Rs. 5,90,000/- in presence of witness Subash Thakur. The defendant received an additional sum of Rs. 20,000/- as part payment towards the sale consideration and rest of the amount to the tune of 4,20,000/- was agreed by the plaintiff to be paid to the defendant at the time of registration of sale deed. 7. After the extension of the agreement, the sale consideration was increased to the tune of Rs. 40,000/- and it was specified that the sale deed shall be executed on or before 15.10.2010. 8. As per the case, as set up by the plaintiff, the defendant was duly intimated vide letter dated 17.9.2010 with a request to perform his part of the agreement. However, the defendant did not turn up, rather the plaintiff remained present on both the dates, as intimated to the defendant. 9. The intention of defendant from the very first day was fraudulent and he did not want to get the sale deed registered in favour of the plaintiff. In terms of the terms and -4- conditions of the agreement dated 15.01.2009 and subsequent agreements for extension dated 18.7.2009 and 25.8.2010, the plaintiff marked his presence on every date fixed for registration of sale deed before Sub Registrar, Solan, but it was with malafide intention of the defendant, never reached the office of Sub Registrar, Solan as agreed upon by the respective parties. The defendant further issued a notice dated 22.9.2009 to the plaintiff and required the plaintiff to get the sale deed registered within seven days. In pursuance to the said notice, the plaintiff agreed to get the sale deed registered and again requested the defendant to remain present before the office of Sub Registrar, Solan on 30.9.2009 but to the surprise of plaintiff, the defendant again failed to get the sale deed registered in his favour. 10. It is the case of the plaintiff that he has already paid Rs.1,70,000/- to the defendant and as such, the defendant is liable to execute sale deed in his favour qua the suit land. The defendant has miserably failed to perform his part of agreement despite making repeated requests and written intimations. The plaintiff has always been ready and willing to perform his part of his agreement and is still ready and willing to do so but the defendant has failed to perform his part of agreement. Therefore, a decree for specific performance of agreement dated -5- 15.01.2009 with decree for permanent prohibitory injunction and in alternative, seeking direction to pay a sum of Rs. 3,40,000/- along with interest at the rate of 18% per annum from the date of agreement till realization in favour of the plaintiff was sought by the plaintiff from the learned trial Court. 11. The suit was contested by the defendant by raising preliminary objections with respect to the maintainability, estoppel, enforceability and valuation etc. It was averred in the written statement that the defendant never gave consent for extension of the agreement as alleged in the plaint. The plaintiff was negligent in getting the sale deed registered and there is no lapse on the part of the defendant. There was delay and latches on the part of the plaintiff to perform his part of contract. It was admitted that defendant received an amount of 1,70,000/- from the plaintiff and on 15.10.2010, the defendant was present but the plaintiff failed to obtain the stamp duty for the execution of sale deed and moreover he was not having the sufficient balance sale consideration. Though, the defendant made a request to the plaintiff to execute the sale deed and pay the balance sale consideration amount, however, the plaintiff failed to do so. On the other hand, the plaintiff made a request to the defendant to pay the balance sale consideration in two installments which was not acceptable to him. It is the defence -6- of defendant that the sale deed could not be executed for want of funds on behalf the plaintiff. He was always ready and willing to perform his part of the contract but he was compelled to issue a legal notice to the plaintiff on account of his act, deed and conduct. The suit of the plaintiff is not maintainable, as the agreement stands cancelled due to the act and conduct of the plaintiff, as such he is not legally bound to perform his part of the contract. All the averments, as made in the plaint were refuted and denied. The defendant prayed for dismissal of the suit. 12. The plaintiff filed the replication to the written statement filed by the defendant and all the averments, as made in the plaint, were reiterated. 13. The learned trial Court on 16.12.2011, framed the issues in the following manner:- “1. Whether the defendant entered into a sale agreement with the plaintiff on 15.01.2009 to sell the suit land for a sale consideration of Rs. 5,50,000/-, as alleged ? ...OPP 2. Whether the defendant received a sum of 1,50,000/- as an earnest money and agree to execute the sale deed in favour of the plaintiff on or before 15.07.2009, as alleged? ..OPP 3. Whether the defendant has failed to execute the sale deed in favour of plaintiff in terms or agreement dated 15.01.2009, as alleged? ..OPP -7- 4. Whether the plaintiff has always been ready and willing to perform his part of agreement and he is still ready and willing to do so? ..OPP 5. Whether the plaintiff is entitled for the specific performance of agreement dated 15.01.2009 as alleged? ..OPP 6. Whether there was a delay and latches on the part of the plaintiff and he failed to perform his part of the contract as alleged ? ..OPD 7. Whether the suit is not maintainable in the present form? ..OPD 8. Whether the plaintiff is estopped to file present suit due to his own act, conduct and acquiescence? ..OPD 9 Whether the plaintiff has no locus standi to file the present suit ? ..OPD 10. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?..OPD 11. Relief.” 14. The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide judgment and decree dated 19.07.2017, decreed the suit filed by the plaintiff for specific performance of the contract. It was held that the plaintiff is entitled for decree of specific performance of the agreement to sell dated 15.01.2009 Ext. PW-3/B, by directing the defendant to execute the sale deed of the suit land in favour of the plaintiff after receiving the balance sale consideration i.e. Rs. 4,20,000/- from the plaintiff. -8- Further, the plaintiff was held entitled for the relief of permanent injunction and defendant was restrained through permanent injunction from alienating and creating any charge over the suit land. 15. Feeling dissatisfied, the defendant/appellant preferred an appeal before the Additional District Judge-II, Solan on 21.08.2017. The learned First Appellate Court vide its judgment and decree dated 27.12.2017 dismissed the appeal, as preferred by the defendant/appellant and confirmed/ affirmed the findings, as returned by the learned trial Court. 16. Still feeling dissatisfied, the defendant/appellant has filed the present Regular Second Appeal by invoking the provisions of Section 100 of the CPC. 17. It is contended by the learned counsel for the appellant that the judgment and decree, as passed by the learned Courts below, are erroneous and liable to be quashed and set side. He further submits that the plaintiff has failed to plead and prove its case. Therefore, the suit which has been decreed by the learned trial Court and those findings, which have been affirmed by the learned First Appellate Court requires interference by this Court and the suit deserves to be rejected. -9- 18. On the other hand, learned counsel for the respondent has defended the impugned judgments and decrees. He submits that there are concurrent findings of facts, as returned by the learned Courts below, therefore, this Court while exercising power under Section 100 of the CPC will not interfere in the well reasoned judgments and decrees, as passed by the learned Courts below. 19. I have heard the learned counsel for the parties at length and gone through the case file. 20. With the consent of the parties, the appeal is finally heard at the admission stage on the following question of law:- “Whether the learned Courts below have failed to appreciate the settled legal position that the plaintiff has been unable to discharge his onus and show his readiness and willingness to perform his part of the agreement and is therefore not entitled to a decree of specific performance, if so, its impact?” 21. The plaintiff/respondent approached the Court for seeking decree of specific performance of agreement dated 15.01.2009 and for permanent prohibitory injunction and in alternative for a recovery of Rs. 3,40,000/- along with interest at the rate of 18% w.e.f. 15.01.2009 till its realization. It is the case of the plaintiff that on 15.07.2009, defendant entered into an agreement to sell with respect to the suit land for a total sale -10- consideration of Rs. 5,50,000/-. Out of total sale consideration, a sum Rs. 1,50,000/-, as an earnest money, was paid to the defendant, which was duly acknowledged by the defendant and the sale deed was agreed to be executed on or before 15.07.2009. 22. The plaintiff has set up the case that on account of certain unavoidable circumstances, the sale deed could not be executed and the agreement was extended for execution of the sale deed for two months from the date of the execution of the agreement i.e. 18.07.2009. Again certain unseen circumstances prevented the parties to execute the sale deed, therefore again the agreement to sell was extended on 25.08.2010. As per extension, as agreed upon between the parties on 25.08.2010, it was agreed that the sale deed shall be executed on or before 15.10.2010 and amount of sale consideration was increased to the tune of Rs. 40,000/-. Therefore, the sale consideration amount increased to a total sum of Rs. 5,90,000/- in the presence of witness Sh. Subhash Thakur. In view of the extension, the defendant received a sum of Rs. 20,000/-, as part payment towards sale consideration and rest of the amount to the tune of Rs. 4,20,000/- was agreed by the plaintiff to be paid to the defendant at the time of registration of the sale deed. Though, the plaintiff had -11- intimated the defendant vide letter dated 17.09.2010, which was duly received by the defendant, whereby he was requested to remain present on 14.10.2010 for purchase of stamp papers and to complete all the codal formalities for the execution of the sale deed and also to remain present before the Sub Registrar, Solan on 15.10.2010. However, to the utter dismay of the plaintiff, the defendant did not turn up but the plaintiff remained present on both the dates, as intimated to the defendant. The intention of the defendant from the very beginning was fraudulent and defendant does not want to get the sale deed registered in his favour and he wanted to grab the hard earned money of the plaintiff. 23. On the other hand, it is the case of the defendant that he never gave mutual consent for extension of the agreement. It is the plaintiff, who was negligent in getting the sale deed registered on account of insufficiency of funds. Further, it is the case of the defendant that there was delay and laches on the part of the plaintiff and he failed to perform his part of the contract. Though, the payment of Rs. 1,70,000/- was admitted by the defendant, but it has been stated that on 15.10.2010, the defendant was present but the plaintiff has failed to get the stamp paper for execution of the sale deed. The plaintiff was not having the balance sale consideration. -12- Therefore, there is lapse on the part of the plaintiff and he is putting the entire blame on the defendant. Though, the plaintiff made a request to pay the entire sale consideration in two installments, which request was declined by the defendant. The sale deed could not be executed for want of insufficiency funds on the part of the plaintiff. 24. In order to substantiate its case, the plaintiff entered into the witness box as PW-3. The evidence by way of an affidavit Ext. PW-3/A has been placed on record. The averments, as made in the plaint have been reiterated in the said affidavit. In cross-examination, it is stated that he is working in Police Department and as of today, his monthly salary is Rs. 25,000/- per month. Therefore, for the first time in order to execute the sale deed, he went to Tehsil Office on 15.07.2009. Thereafter, he went to Tehsil Office in order to execute the sale deed on 30.09.2009. Thereafter, he went to Tehsil Office on 15.10.2010. He stated that he always took money alongwith him in order to perform his part of the agreement. He stated that he has disclosed this fact in the application, which he had filed before the Sub Registrar while recording his presence. Lastly, on 15.10.2010, in his application for presence, he had disclosed about the increase in the earnest money. He denied that he was not having money to -13- perform his part of the agreement. He denied that he did not purchase the stamp papers, as Tulsi Ram despite making various requests, failed to perform his part of the agreement. 25. PW-1 is the statement of Jagdish Chand, Registration Clerk, from the office of Tehsildar, Solan. In his testimony, he has deposed that he has brought the summoned record on 15.07.2009. The plaintiff had filed an application and the copy of application is Ext. PW-1/A. The appearance of the plaintiff is the copy Ext. PW-1/B. Thereafter, again the plaintiff filed an application for marking his presence and the application is Ext. PW-1/C. The plaintiff thereafter filed an application on 30.09.2009 in order to show his presence. The plaintiff also filed an application on 15.10.2010 in order to mark his presence and copy of the same is Ext. PW-1/D. 26. Hari Ram has entered into witness box as PW-2. He stated that in the year 2010, he was working in Police Post, Saproon as an I.O. He has brought the summoned record Ext. PW-2/A and the same is correct as per the original. He stated that he recorded the statement of complainant Tulsi Ram and while investigating the said complaint, he recorded the statement of Parveen Kumar, plaintiff. 27. PW-4 is the statement of Subhash Thakur, who has deposed that on 25.08.2010 he had gone to the Court Complex -14- in order to prepare certain documents. He knew plaintiff Parveen Kumar and on the said date, Tulsi Ram was negotiating with the plaintiff with respect to sale and purchase of the land and in this regard papers were executed Ext. PW- 3/D and on the same red encircled signatures were appended by him. In his presence, Parveen Kumar plaintiff gave Rs. 20,000/- to Tulsi Ram. Thereafter, Tulsi Ram has stated that he shall execute the sale deed in favour of Parveen Kumar, plaintiff. 28. PW-5 is the statement of Hari Ram in rebuttal and PW-6 is the statement of Khem Singh. 29. In order to rebut the evidence, as led by the plaintiff, the defendant filed his affidavit Ext. DW-1/A. In his statement he denied all the averments, as made in the plaint and sought dismissal of the suit. The defendant admitted the execution of the agreement dated 15.01.2009. He stated that the plaintiff showed his inability to execute the sale deed on account of insufficiency of funds. On account of the request of the plaintiff, the time was extended for execution of the sale deed. The defendant issued a legal notice on 22.09.2009 to the plaintiff whereby, the plaintiff was requested to execute the sale deed within a period of seven days, as per stipulation as made in the notice. The plaintiff could not pay the sale consideration and -15- he did not perform his part of the agreement. Therefore, on that basis the agreement to sell has come to an end. He has stated in his testimony that in the Tehsil Office one Raj Kumar, who had come to the Tehsil Office on account of his personal work, in his presence, the plaintiff had shown his inability to pay the balance sale consideration. In the cross-examination, defendant stated that it is correct that Ext. PW-3/B was entered between him and the plaintiff. He admitted that out of total sale consideration a sum of Rs. 1,50,000/- was paid vide Ext. PW-3/C. He stated that it is incorrect that he agreed to obtain NOCs with respect to passage of the suit land. He admitted his signatures on red encircle Ext. PW-3/B. He admitted his signatures on Ext P-6. He stated that it is correct that plaintiff used to come to Tehsil Office and used to mark his presence in the Tehsil. However, the said fact was not intimated to the defendant. 30. DW-2 is the statement of Bharat Sharma. He stated that an agreement to sell dated 25.08.2010 which was entered between the parties was scribed by him at the behest of plaintiff. As per same the date for the execution of the agreement was extended upto 15.10.2010. The averments on the said agreement were incorporated on the asking of the plaintiff. In the cross-examination, DW-2 admitted that he has -16- worked with Sh. B.S. Dogra, Advocate, who is the counsel for the present defendant. He admitted that in the writing written by him, it has not been incorporated that time is being extended on account of insufficiency of funds on behalf of the defendant. 31. DW-3 is the statement of Raj Kumar, who has stated in his testimony that on 15.10.2010 on account of personal work, he had gone to Tehsil Office. In the Tehsil Office, the plaintiff was having negotiations with the defendant. The plaintiff was saying that even today he has not brought the sale consideration for the execution of the sale deed. He stated that he is having deficient amount of Rs. 70,000/- to 75,000/-. The defendant was saying to the plaintiff that he has been deceived by the plaintiff. In the cross-examination, he has admitted that the counsel for the defendant has called him to depose in his favour. 32. The plaintiff has placed on record agreement to sell dated 15.01.2009 Ext. PW-3/B, which is duly signed by the plaintiff and the defendant. The receipt Ext. PW-3/C shows that the defendant received a sum of Rs. 1,50,000/- as earnest money on account of sale and purchase of the suit land. Thereafter, agreement to sell dated 18.07.2009 between the plaintiff and the defendant has been entered as Ext. PW-3/D. -17- On the backside of this document, there is recital in verncular, whereby it was agreed to extend the time upto 15.10.2010. As per terms and conditions of the agreement, it was stipulated that plaintiff on 14.10.2010 shall purchase the stamp papers and shall call the defendant in order to execute the sale deed. This agreement has been extended on various occasions and extended for the last time at the behest of the plaintiff. Plaintiff gave Rs. 20,000/- to the defendant and remaining 4,20,000/- was to be paid on 15.10.2020 at the time of registration of the sale deed. 33. The agreement to sell has been duly acknowledged and admitted by the defendant. The same has been duly signed by the respective parties and in the written statement as well as in the oral evidence, the defendant has admitted the execution of agreement to sell. The only defence, which has been taken by the defendant is that the extension of the said agreement was not with the consent of the defendant. The defendant had issued a legal notice to the plaintiff on 22.09.2009 Ext. PW- 3/E, whereby the defendant had called upon the plaintiff by extending time of seven days for the execution of the sale deed and in case the plaintiff failed to do so, in that event, he shall be at liberty to deal with the property in the manner he likes. -18- 34. In pursuance to the notice dated 22.09.2009, the plaintiff made available himself before the Sub Registrar Office for the execution of the sale deed. The record shows that in order to mark his attendance in the office of Sub Registrar, Solan, the plaintiff has placed on record an application Ext. PW-1/A dated 15.07.2009. The said application was filed by the plaintiff with a prayer that necessary presence may be marked in the interest of justice. The affidavit dated 15.07.2009 was placed on record as Ext. PW-1/B. Thereafter, the next application for marking his presence Ext. PW-1/C dated 15.09.2009 was filed. In the said application again request was made to Sub Registrar, Solan that since he is present throughout the day, therefore, his presence may be marked. Again on 15.10.2010 Ext. PW-1/D, the plaintiff filed application for marking his presence for the purpose of execution of the registered sale deed in his favour. The said applications in conjunction with the oral and documentary evidence placed on record clearly show that the plaintiff in pursuance to the agreement to sell as entered between the parties remain present before the Sub Registrar, Solan on three different dates i.e. 15.07.2009, 15.09.2009 and 15.10.2010. The agreement to sell has been admitted by both the parties. The plaintiff has been able to establish that a written contract -19- has been entered between the parties and earnest money to the tune of Rs. 1,50,000/- was paid to the defendant. The agreement to sell was extended on 15.07.2009. On 18.07.2009, the agreement was further extended for a period of two months. Thereafter, on 25.08.2010, the agreement was extended and it was agreed upon between the parties that the sale deed shall be executed on or before 15.10.2010. The record shows that the defendant and the plaintiff appended their signatures and the said extension was with the express consent of the parties. As far as the admission of earnest money is concerned, the defendant has admitted to have received the said amount and the same is clear from Ext. PW-3/C the receipt in which, the defendant had appended his signatures. 35. The plaintiff has been able to plead and prove that in pursuance to agreement he was ready and willing to perform his part of the agreement and after payment of earnest money, he made all the efforts to mark his presence before the Tehsil Office, however, the defendant failed to remain present before the Sub Registrar, Solan. The only defence which has been taken by the defendant is that the plaintiff was not having sufficient funds to execute the sale deed. The said stand of the defendant has not been corroborated either by oral or documentary evidence, placed on record. The defendant in his -20- deposition has admitted that it was not incorporated in the agreement dated 25.08.2010 that the time is being extended till 15.10.2010, as the plaintiff was not having sufficient funds. In none of the agreements, it has been written or incorporated that the duration of agreement to sell is being extended since the plaintiff is not having sufficient funds. The defendant could not place on record any material to show that the plaintiff was not having the remaining sale consideration for execution of the sale deed. It is an admitted fact inter-se the parties that the plaintiff is working in Police Department and in his testimony he has stated that his monthly salary is Rs. 25,000/- per month. In order to show his financial capability, the plaintiff has placed on record the bank statements and the income tax returns. The bank statements and income tax returns when read with the statement of the plaintiff show that the plaintiff is man of means and it cannot be said that he was unable to pay the remaining sale consideration to the defendant. 36. Apart from that, a copy of sale deed has been placed on record as Ext. PW-5/A in order to demonstrate that the plaintiff has purchased different piece of land for a total sale consideration of Rs. 10,00,000/-. Copy of the sale deed is Ext. PW-5/A is dated 25.05.2009. The said document also falsifies the claim as set up by the defendant that the plaintiff was not -21- having sufficient sale considerations in order to execute the sale deed. The defendant has failed to establish its case, as a result of which, the learned Courts below have concurrently passed the decree of specific performance of an agreement in favour of the plaintiff. 37. The specific relief being discretionary remedy, the material questions, which are looked into are (i) existence of valid contract, (ii) readiness and willingness of the plaintiff to perform his part of the contract, (iii) plaintiff performing his part of contract and its extent and manner, and whether such performance is in consonance with the terms of the contract and (iv) where it is equitable to grant relief of specific performance regarding suit property or it causes any hardship to the defendant and in case how in what manner such relief can be granted, (v) entitlement of plaintiff to any other alternative remedy such as refund of earnest money with interest. 38. The Hon’ble Apex Court in Kamal Kumar vs. Premlata Joshi & others (2019) 3 SCC 704 on the subject has held as follows:- “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, -22- 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; and 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 requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix 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. -23- 9. In the case at hand, we find that the two Courts below have gone into these questions in the light of pleadings and evidence and recorded a categorical finding against the plaintiff holding that the plaintiff was neither ready and nor willing to perform his part of the contract and, therefore, he was not entitled to claim the relief of specific performance of the contract against the defendants in relation to the suit land. It was also held that the plaintiff was not entitled to claim any relief of refund of earnest money because it was liable to be adjusted as agreed between them. 10. In other words, both the Courts below held that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The issue of readiness and willingness, in our view, is the most important issue for considering the grant of specific performance of the contract and the same having been held by the two Courts below on appreciation of evidence against the plaintiff, it is binding on this Court. It being essentially a question of fact, this Court is not inclined to again appreciate the entire evidence while hearing the appeal under Article 136 of the Constitution. It is more so when we find that the appellant was also not able to point out any material perversity or/and illegality in the finding so as to call for any interference therein by this Court.” 39. Section 16 of Specific Relief Act 1963 inter-alia provides as follows:- “16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person— 2 [(a) who has obtained substituted performance of contract under section 20; or] -24- (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) [who fails to 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) (ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction.” Section 16 (c) of the Specific Relief Act bars the relief of specific performance of contract in favour of a person who fails to aver and prove his readiness and willingness to perform his part of the contract. In view of explanation (i) to Clause (c) of Section 16, it cannot be essential for the plaintiff to actually tender money to the defendant or to deposit money in court, except when so directed by the Court to prove readiness and willingness to perform the essential terms of the contract, which involves payment of money. However, explanation (ii) -25- says that plaintiff must aver perform of readiness and willingness to perform the contract according to proved construction. 40. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of the contract, the plaintiff would have to make specific statement in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, in case the plaintiff does not have funds with him to discharge obligation in terms of contract, which requires payment of money, the plaintiff would have to specifically plead. 41. In Man Kaur (dead) by LRs. vs. Hartar Singh Sangha, (2010) 10 SCC 512, the Hon’ble Apex Court has held as under:- “40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant - vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. 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 terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff -26- fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by defendant. But in that case, if plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by defendant, as he was not `ready and willing' to perform his obligations.” It is well settled that in suit for specific performance, the plaintiff should allege that he is ready and willingness to perform his part of the contract and if the fact is perversed, it is required to prove a continuous, readiness and willingness from the date of contract to the time of the hearing, to perform the contract on his part. -27- 42 In N.P. Thirugnanam (dead) by LRs vs. Dr. R. Jagan Mohan Rao & others, (1995) 5 SCC 115, it has been held by the Apex Court that Section 16 (c) of the Specific Relief Act envisages that the plaintiff must plead and prove that he had performed and has always been ready and willing to perform the essential terms of the contract, which was to be performed by him other than those terms, the performance of which has been granted or weighed by the defendant. In order to determine whether the plaintiff was ready and willing to perform his part of the agreement, it is necessary for the Court to consider the conduct of the plaintiff prior and subsequent to filing the suit for specific performance. 43. In Umabai & another vs. Nilkanth Dhondiba Chavan (dead) by LRs & another, (2005) 6 SCC 243, the Apex Court has held that a finding as to whether the plaintiffs were all along and still ready and willing to perform their part of contract was mandatory requirement under Section 16 (c) of the Specific Relief Act. The Court would necessarily had arrived at the findings that the plaintiffs all along were and still ready and also willing and ready to perform their part of the contract. 44. The Hon’ble Supreme Court in Civil Appeal No. 4703 of 2022, titled as, U.N. Krishnamurthy (since -28- Deceased) through LRs vs. A.M. Krishanmurthy, decided on 12.07.2022, has reiterated the principle of law as under:- “27. In Pt. Prem Raj v. D.L.F. Housing and Construction (Private) Ltd. And Anr.2 cited by Mr. Venugopal, this Court speaking 1 (2010) 10 SCC 512 2 AIR 1968 SC 1355 through Ramaswamy J. held that “it is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract…..” and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon. 28. In D.L.F. Housing and Construction (Pvt.) Ltd. (supra), in the absence of an averment on the part of the Plaintiff in the plaint, that he was ready and willing to perform his part of the contract, it was held that the Plaintiff had no cause of action so far as the relief for Specific Performance was concerned. In this case, of course, there is an averment in the plaint that the Respondent Plaintiff was all along ready and willing to perform his obligations under the contract. The question is whether the Respondent Plaintiff had proved his readiness and willingness to perform his obligations under the contract. 29. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. 4, this Court reiterated that Section 16(c) of the Specific Relief Act, 1963 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 -29- the contract which were to be performed by him 3 55 IA 300, at pg. 372: AIR 1928 PC 208 4 (1995) 5 SCC 115 other than those terms, the performance of which has been prevented or waived by the Defendant. In N.P. Thirugnanam (supra) this Court said that the continuous readiness and willingness on the part of the Plaintiff was a condition precedent for grant of the relief of Specific Performance. 33. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:- (i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and (ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963. 34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar.” -30- 45. Taking into consideration the entire material, as placed on record, the plaintiff has been able to establish that an agreement was entered between the parties and in pursuance to that earnest money of Rs. 1,50,000/- was paid to the defendant and in order to perform his part of the contract, he went to the office of Sub Registrar and marked his presence which has been duly proved on record. In order to show his financial capacity, it has come on record that the plaintiff is working in a Police Department and his monthly salary is more than Rs. 25,000/-. The bank statements as well as the income tax returns have been placed on record which shows that the plaintiff is a man of mean and defendant has failed to prove its case that the plaintiff did not execute the sale deed on account of insufficiency of funds. Save and except the bald statement of defendant, no material has been placed on record to prove its case. The agreement to sell was entered on 15.01.2009 and the plaintiff is running from pillar to post in order to execute the sale deed for the last more than seventeen years. There are concurrent findings of facts as returned by the learned Courts below. Both the Courts after taking into consideration the entire material placed on record, the learned Courts below have rightly come to the conclusion that the plaintiff is entitled for decree for specific performance of the agreement. -31- 46. The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interference with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand. 47. The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The -32- conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. "19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory -33- reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 20. to 22 xx xx xx xx 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” -34- 48. The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here. 17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that -35- signature(s)/thumbmark(s) appearing on the document (Exb.A2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction. 18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfill his obligation and accept performance when the time for performance arrives.” 49. There are concurrent findings of fact, as returned by the learned Courts below, which does not call for any interference. There is no illegality or perversity in the same. In -36- the considered view of this Court, the Courts below have rightly appreciated the controversy in hand which does not call for any interference. 50. The substantial question of law is answered accordingly. 51. No other point urged by the respective counsel for the parties. 52. Consequently, there is no merit in the appeal and the same is ordered to be dismissed. Pending applications, if any, also stand disposed. Record be sent back forthwith. (Romesh Verma) Judge 15th June, 2026. (kck)