1 Neutral Citation No. ( 2026:HHC:25159 ) B IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 901 of 2012 Reserved on: 30.05.2026 Date of decision: 29.06.2026 Date of uploading on website: 29.06.2026 ________________________________________________ Gurdial Singh (deceased) through LRs …..Appellants. Versus Amit Sahni & others ……Respondents. ________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? Yes. For the appellants: Mr. Y.P. Sood, Advocate. For the respondents: Mr. Bhupinder Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate. Sushil Kukreja, Judge. The instant appeal has been preferred by the appellant-Gurdial Singh (since deceased, through his legal representatives), who was plaintiff before the learned Court below (hereinafter referred to as “the plaintiff”) under Section 96 of the Code of Civil Procedure (for short “CPC”) against judgment and decree, dated 30.06.2012, passed by learned Additional District Judge, Solan, District Solan, H.P. (hereinafter referred to as “the learned Trial Court”), in Civil 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Neutral Citation No. ( 2026:HHC:25159 ) Suit No. 4-S/1 of 2009/04, whereby the suit filed by the plaintiff was partly decreed for recovery of Rs.3,30,000/- alongwith interest @ 9% per annum from 17.04.2004, till the recovery of the said amount. 2. The brief facts of the case, emerging from the record, are that the plaintiff had filed a suit against the defendants for permanent prohibitory injunction and specific performance of the agreement to sell dated 25.03.1999. As per the plaintiff, the defendants (respondents herein) were builders and owners of Amit Apartments, Solan, comprising khasra No. 145, 2367/144, 2366/143, situated at Mauza Thoda-Solan, Tehsil & District Solan, H.P. and vide agreement, dated 25.03.1999, the defendants constructed and agreed to sell to the plaintiff Flat No. 3, on third floor in Modern Delux Building with electric lift. The aforesaid flat was in Amit Apartments, consisting two bed rooms, one drawing room-cum-dining room, two toilets, kitchen, lobby, balcony and one store with covered area of 287-14 square feet, situated at Mauza Thoda, Solan, Tehsil & District Solan, H.P., full details whereof were mentioned in agreement, dated 25.03.1999 (hereinafter referred to as “the flat in question”) and the total sale consideration was 3 Neutral Citation No. ( 2026:HHC:25159 ) Rs.13,00,000/-, out of which the plaintiff had already paid to the defendants a sum of Rs.3,30,000/-, including earnest money etc. and balance of Rs.9,70,000/- had to be paid on or before 30.06.1999, on execution and registration of the sale deed before Sub-Registrar and by handing over the possession of the aforesaid flat with complete construction and all amenities. 2(a). The plaintiff further averred in his plaint that he was always ready and willing to perform his part of the contract, but the defendants did not perform their part of the contract, as the construction of the flat in question was not complete. The plaintiff requested the defendants time and again to complete the construction of the flat and specify the date of completion of the construction so as to execute the sale deed and hand over the vacant possession of the flat in question to him, on payment of balance payment of sale consideration, but the defendants did not pay any heed to the requests of the plaintiff. 2(b). As per the plaintiff, the defendants were guilty of gross and unreasonable delay in performing their part of the contract and the plaintiff made oral as well as written request to the defendants for completion of the construction of the 4 Neutral Citation No. ( 2026:HHC:25159 ) flat in question in all respects and hand over its possession to him and also to execute the sale deed. The plaintiff had sent notice to the defendants on 19.06.1999, which was replied by the defendants, vide reply dated 29.06.1999, wherein, as per the plaintiff, the defendants, in order to get the balance amount of sale consideration, stated that the flat was ready, whereas the same was not ready. The defendants also sent registered letter, dated 08.08.1999 to the plaintiff, in response to the plaintiff’s letter dated 01.08.1999, whereby they threatened the plaintiff to sell the flat in dispute to some other person and forfeit the amount of Rs.3,30,000/-, in case the plaintiff failed to pay the balance amount of Rs.9,70,000/-, without completing the flat with all amenities. 2(c). The plaintiff averred in his suit that the threat and demand of the defendants was mischievous, illegal, null and void. As per the plaintiff, he had served the defendants with legal notice, through Shri S.P. Thukral, Advocate, but despite that they did not complete the construction of the flat and following were some of the incomplete works in the flat in question: 1. Wood work; 5 Neutral Citation No. ( 2026:HHC:25159 ) 2. plastering and polishing work; 3. dividing wall of lobby was not constructed; 4. steel grills were not provided; 5. white washing/paint/bath tubs/water and electricity was required to be provided; 6. sewerage system was incomplete/car parking was not ready/electric lift was not installed/front wall/internal walls were still incomplete due to plaster/paint and white washing etc.; 7. parapet and steel railings on the lobby/sit out area, stair wall, cutouts and electric lift passage and bridge were to be constructed and provided; & 8. floor of the approach road and area around the building still to be laid, constructed and metalled accordingly. 2(d). As per the plaintiff, in addition to the above works, some more things were required to be completed, as there was no electricity connections, water connections, electric lift and car parking etc., therefore, the flat in question was not complete and it lacked essential facilities. The plaintiff also averred that he had already paid Rs.3,30,000/- to the defendants and according to Clause 7 of the agreement to sell, the defendants were required to complete the construction of the flat in every respect and to execute the sale deed by 30.06.1999 and in the event of default the defendants had agreed to pay interest @ 15% per annum on the advance payment. Therefore, a sum of Rs.1,36,125/- 6 Neutral Citation No. ( 2026:HHC:25159 ) became due to him (plaintiff) from the defendants on account of interest upto 31.03.2002, which he was entitled to recover from the defendants. 2(e). The plaintiff averred that defendant No. 5, being GPA (General Power of Attorney) of defendants No. 1 to 4, on 12.11.2011, in the Court, expressed willingness for execution and registration of the sale deed of the flat in question, with undertaking that the shortcomings, shortfall in the construction work of the flat, the electric lift and other items etc. would be made good after registration of the sale deed and plaintiff was asked to purchase requisite stamp papers. On 12.12.2001 the requisite stamp papers were handed over to the Shri Sudhir Gupta, Advocate, counsel for the defendants in the Court by Shri B.S. Dogra, Advocate and a draft of propose sale deed was also supplied to the counsel of the defendants. The plaintiff further averred that a photocopy of agreement to sell dated 25.03.1999 was also sent to the counsel for the defendants, through post, but despite that the defendants did not execute and register the sale deed qua the flat in question in favour of the plaintiff. Ultimately, on 13.03.2002, a mischievous, malicious, motivated and wrongly typed document, as sale deed, was 7 Neutral Citation No. ( 2026:HHC:25159 ) provided by the defendants, through their counsel to the plaintiff. After going through the said document, the defendants and their counsel were requested to delete the extraneous and illegal matter introduced in the said document, which were not in accordance with the sale agreement, but the defendants refused to delete the same and also flatly refused to sell the flat in question to the plaintiff. 2(f). The plaintiff averred that during the pendency of the suit, the defendants, with malafide intention, intentionally removed the name plate of the plaintiff, which was permanently fixed at the entrance gate/door of the flat and the defendants were threatening to sell the flat in question to some other person and to forfeit the earnest money. As per the plaintiff, cause of action first arose on the date of execution of the agreement of sale and thereafter on 08.08.1999 when the defendants threatened to sell the flat to some other person. 2(g). On the basis of the above enumerated averments, the plaintiff prayed for a decree as under: “1. Permanent prohibitory injunction restraining the defendants from transferring/alienating the disputed flat 8 Neutral Citation No. ( 2026:HHC:25159 ) No. 3 situated on the 3rd floor in Modern Delux Building known as Amit Apartments in Mauza Thoda, Solan, Tehsil & District Solan, in favour of anybody other than the plaintiff and from forfeiting the amount of Rs.3,30,000/- already paid by the plaintiff to them; 2. specific performance of the agreement to sell dated 25.03.1999 directing the defendants to complete the flat No. 3 situated in the 3rd floor in Modern Delux Building known as Amit Apartments, situated at Mauza Thoda, Solan Tehsil & District Solan, H.P. in all respects according to the sale agreement and to execute a sale deed in respect thereof and get the same registered in favour of the plaintiff in accordance with the said agreement; 3. recovery of Rs.1,36,125/- as interest @ 15% per annum on the amount of Rs.3,30,000/- already paid to the defendants with effect from 1.7.1999 up to 31st March, 2002 and further interest at the same rate on Rs.3,30,000/- w.e.f. 01 April, 2002 till the sale deed is executed, registered and possession of the said flat is handed over to the plaintiff, as per the clause 7 of the sale agreement till the date of decree at the same rate on the said amount, from the date of the decree till the realization of the complete amount; 4. recovery of Rs.1,20,000/- of the cost of non-judicial stamp papers purchased by the plaintiff on 12.11.2001 for the execution and registration of the sale deed and interest @ 15% per annum from 12.11.2001 to 31.3.2002 amounting to Rs.7500/- and further at the same 9 Neutral Citation No. ( 2026:HHC:25159 ) rate till the date of decree and future interest at the same rate on the said amount from the date of decree till the realization of the complete amount; & 5. Mandatory injunction directing the defendants to restore the big marble name plate of the plaintiff fixed at the entrance gate/door of the said flat which was illegally and mischievously removed by the defendants, with costs of the suit in favour of the plaintiff and against the defendants.” 3. The defendants contested the suit by filing written statement, wherein they took preliminary objections, i.e., valuation, suit was time barred, estoppel, the plaintiff had no cause of action and the plaint lacked full and material particulars. On merits, the execution of agreement to sell, dated 25.03.1999 was admitted. However, as per the defendants, according to the agreement to sell the balance amount had to be paid by the plaintiff to them on or before 30.06.1999, but no amount was paid to them by the plaintiff. The defendants averred that the plaintiff wanted various changes in the original layout and they (defendants) asked him (plaintiff) to submit such changes, but he did not submit such changes in writing. As per the defendants, such changes, as desired by the plaintiff, were required to be made in the flat in question to sell the same well in time. The 10 Neutral Citation No. ( 2026:HHC:25159 ) plaintiff communicated the defendants the description of additions and alterations, which had to be carried out in the flat, which was agreed to be sold by the end of April, 1999. The defendants further averred that the plaintiff even thereafter desired some more changes to be carried out in the flat, i.e., providing bigger cupboard in living room and additional cupboard with dressing table in the bed room. As per the defendants, the flat in question was complete in all respects on 31.07.1999. On 01.08.1999 the plaintiff, through defendant No. 5, sent a communication to the defendants, response whereof was given through registered AD on 07.08.1999, wherein all the details, as to what had transpired for the additions and alterations desired by the plaintiff in the flat in question were given. However, the plaintiff did not come forward to complete the transaction and on 12.08.1999 he (plaintiff), in presence of Shri Dogra, agreed to pay amount for extra items, which were asked by him, but he did not make any payment. 3(a). As per the defendants, the flat in question was complete n 31.07.1999, but the plaintiff asked for more changes in the said flat, thus, on the request of the plaintiff the execution of the sale deed was deferred. The plaintiff did 11 Neutral Citation No. ( 2026:HHC:25159 ) not make the balance amount of the sale consideration, i.e., Rs.9,70,000/- and he also did not pay amount of extra items provided in the flat at his request. In fact, the plaintiff was unwilling to pay the entire sale consideration to the defendants, but he was insisting for the delivery of possession of the flat on payment of Rs.4,70,000/- only. The defendants also averred that the plaintiff himself backed out from the agreement and he was trying to circumvent the contents of the agreement. 3(b). The defendants contended that it appeared that the plaintiff had not enough money to pay to the defendants and take possession of the flat. As per the defendants, all the amenities, as promised by them, were provided in the flat in question on 31.07.1999, except providing a lift, which was to cater to the needs of four blocks. The site whereon lift had to be completed was not vacant and it was in possession of the tenants, against whom eviction proceedings had commenced. The defendants had apprised the plaintiff, through communication dated 28.08.1999 about the above fact and he (plaintiff) was permitted to deduct Rs.10,000/- as proportionate cost of the lift, which was basically to serve 60 flats. Later on, on 06.02.2002 the lift became operational 12 Neutral Citation No. ( 2026:HHC:25159 ) and the plaintiff was requested to make payment of Rs.25,000/- for the extra items provided in the flat, but he was unwilling to take possession of the flat by making payment of balance amount. 3(c). The defendants pleaded that the attitude of the plaintiff was malafide, adamant and he insisted for delivery of possession by making only part payment of the sale consideration. Thus, the plaintiff himself was guilty of non- performance of the conditions of the agreement. As per the defendants, they did not cause any delay in performance of their part of the contract, but the plaintiff failed to perform his part of the contract within the stipulated time, therefore, he was not entitled for the decree of specific performance of agreement to sell. The flat in question was complete in all respects on 31.07.1999 and the delay in completion of the same was only on account of changes desired by the plaintiff. The plaintiff, even after completion of the flat on 31.07.1999 insisted for more changes, but he did not make payment of the balance sale consideration. The plaintiff himself tried to postpone the performance of the agreement by taking shelter to accuse the defendants for not fulfilling their part of the contract. The plaintiff, instead of performing 13 Neutral Citation No. ( 2026:HHC:25159 ) his part of the contract, served them with a legal notice dated 16.08.1999, through his counsel. The defendants, though not duty bound to reply the above legal notice, but to keep harmonious relations, sent their reply through Shri S.P. Thukral, Advocate, whereby they offered to get the sale deed registered on or before 07.09.1999. The plaintiff, instead of accepting the offer of the defendants, chose to sent a rejoinder to reply dated 01.09.1999 and again insisted for delivery of possession by making part payment towards the sale consideration. 3(d). As per the defendants, they were put to great financial loss by the acts of the plaintiff in withholding the balance amount of sale consideration without their being any legal justification. The defendants further contended that the water and electricity connections were only provided when no objection certificates were obtained by the plaintiff from Municipal Council, Solan and said certificates were only to be obtained after the execution and registration of the sale deed and making payment of sanitation taxes to the Municipal Council. The defendants also contended that the plaintiff himself was avoiding the performance of the contract and backing out from agreement, dated 25.03.1999, and 14 Neutral Citation No. ( 2026:HHC:25159 ) they (defendants) were always ready and willing to perform their part of the contract. They addressed many communications to the plaintiff, but the plaintiff did not come forward for execution and registration of the sale deed by making balance payment of the sale consideration. 3(e). The defendants averred that the plaintiff was not entitled to any interest on amount of Rs.3,30,000/-, as the said amount, due to the negligent act of omission and commission of the plaintiff, stood forfeited. The purchase of the stamp papers by the plaintiff did not show his intention of purchasing the flat in question, as he never offered balance sale consideration to the defendants. As per the defendants, the non-execution and registration of the sale deed was solely due to the fault of the plaintiff. 4. The plaintiff filed replication to the written statement filed by the defendants, wherein he reiterated his stand and refuted the averments made in the written statement. 5. On 27.02.2007, on the basis of the pleadings of the parties, the learned Trial Court framed the following issues for determination and adjudication: “1. Whether the plaintiff failed to pay the 15 Neutral Citation No. ( 2026:HHC:25159 ) balance sale consideration i.e. Rs.9,70,000/- within the stipulated period and thereby caused breach of the agreement, if so, its effect? OPD 2. Whether the plaintiff is and had always been ready and willing to perform his part of contract, as per stipulations in the agreement and is therefore entitled to a decree for specific performance of the agreement, as claimed? OPP 3. In case issue No. 2 is found against the plaintiff, is he entitled to recover the part of the sale consideration already paid together with interest and other amounts of money in terms of Clause-7 of the agreement to sell? OPP 4. Whether the plaintiff is entitled to any of the other reliefs specifically claimed by him, if so, which ones? OPP 5. Whether the plaint is not in accordance with the amended provisions of the Code of Civil Procedure as alleged in preliminary objection No. 1, if so, its effect? OPD 6. Whether the suit is barred by limitation, if so, its effect? OPD 7. Whether the plaintiff is stopped from filing the suit on account of his own acts, deeds, conduct and acquiescence, as alleged? OPD 8. Whether the plaintiff has no legal and enforceable cause of action, as alleged, if so its effect? OPD 9. Whether the plaint lacks full and material particulars, if so, its effect? OPD 16 Neutral Citation No. ( 2026:HHC:25159 ) 10. Relief.” 6. After hearing the learned Counsel for the parties and considering the available material on record, the learned Trial Court partly decreed the suit of the plaintiff for recovery of Rs.3,30,000/- with interest @ 9% from 17.04.2004 till the recovery of the amount in favour of the plaintiff and against the defendants. 7. Learned counsel for the appellants contended that the learned Trial Court has erroneously arrived at the conclusion that the plaintiff was not ready and willing to perform his part of the agreement and thus not entitled to specific performance of the agreement. He further contended that the plaintiff was always ready and willing to perform his part of the agreement and had been repeatedly requesting the defendants to complete the flat in all respects, including providing of electricity and water connection. He also submitted that the learned Court below has wrongly ignored the report of the Local Commissioner, Ex. PW-3/A, and has come to the conclusion that major construction of the flat in question, except the lift, has been complete. He also contended that the learned Trial Court has wrongly 17 Neutral Citation No. ( 2026:HHC:25159 ) arrived at the conclusion that the plaintiff was not having the balance amount of the sale consideration with him. 8. Conversely, the learned Senior Counsel for the respondents supported the judgment passed by the learned Trial Court. He contended that the impugned judgment is result of proper appreciation of both law and facts, thus the same does not need any interference of this Court. 9. I have heard the learned counsel for the appellants, learned Senior Counsel for the respondents and carefully examined the entire records. 10. It is not in dispute that the agreement to sell was executed between the plaintiff and the defendants on 25.03.1999 for a sum of Rs.13,00,000/-. The payment of earnest money in the sum of Rs.3,30,000/- by the plaintiff to the defendants is also not disputed. It is also an admitted fact that the balance sale consideration of Rs.9,70,000/- was to be paid by the plaintiff to the defendants at the time of the execution and registration of the sale deeds. 11. Now the question, which arises for consideration before this Court, is as to whether the plaintiff has always been ready and willing to perform his part of the agreement or not. In a suit for specific performance, the plaintiff has to 18 Neutral Citation No. ( 2026:HHC:25159 ) prove a valid sale agreement; the breach of the contract by the defendants; and readiness and willingness of the plaintiff to perform his part of the contract. Section 16(c) of the Specific Relief Act mandates "readiness" and "willingness" on the part of the plaintiff as a condition precedent to seek specific performance. At this stage, it would be apposite to examine Section 16 (c) of the Specific Relief Act, 1963, which reads as under: "16. Personal bars to relief. Specific performance of a contract cannot be enforced in favour of a person--(a) and (b).......... (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.-- For the purposes of Clause (c). (i) where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true construction." 12. A bare reading of the section shows that a decree for specific performance cannot be granted to anyone who fails to aver and prove that either he had performed or had always been ready and willing to perform the essential terms of the contract. As if that was not sufficient, Explanation (ii) has been added to lay an additional emphasis on these requirements and it provides that 19 Neutral Citation No. ( 2026:HHC:25159 ) averment about performance of or readiness and willingness to perform the contract is sine qua non in a pleading for specific performance. The compliance of the requirements of Section 16(c) of the Specific Relief Act is, therefore, mandatory in nature. The "readiness" and "willingness" are two separate issues. The former depends on the availability of requisite funds whereas the latter depends on the intention of the purchaser. The "readiness" has to be proved by the purchaser by leading evidence relating to the availability of the funds whereas the intention has to be inferred from his conduct and circumstances. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115, the Hon’ble Supreme Court held that the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the "readiness" and "willingness" of the plaintiff. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbling in real estate business without means to purchase the suit property and the very contract was speculative in nature. The relevant portion of the aforesaid judgment reads as under: 20 Neutral Citation No. ( 2026:HHC:25159 ) “5. … … …“The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” 13. In J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429, the Hon’ble Supreme Court explained the distinction between "readiness" and "willingness". The former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. For the sake of ready reference relevant para of the aforesaid judgment is extracted hereunder: “22. The words “ready” and “willing” imply that the person was prepared to carry out the terms of the contract. The distinction between “readiness” and “willingness” is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.” 14. In the case of Janardan Das & ors. vs. Durga Prasad Agarwalla & ors. reported in 2024 SCC OnLine SC 2937 the Hon'ble Apex Court has held as under: 21 Neutral Citation No. ( 2026:HHC:25159 ) “16. Section 16(c) of the Specific Relief Act, 1963, mandates that a plaintiff seeking specific performance of a contract must aver and prove that they have performed or have always been ready and willing to perform the essential terms of the contract which are to be performed by them. This requirement is a condition precedent and must be established by the plaintiff throughout the proceedings. The readiness and willingness of the plaintiff are to be determined from their conduct prior to and subsequent to the filing of the suit, as well as from the terms of the agreement and surrounding circumstances. The rationale behind this provision is to ensure that a party seeking equitable relief has acted equitably themselves. Specific performance is a discretionary relief, and the plaintiff must come to the court with clean hands, demonstrating sincerity and earnestness in fulfilling their contractual obligations. Any laxity, indifference, or failure to perform their part of the contract can be a ground to deny such relief. 17. The importance of readiness and willingness for enforcement of specific performance has been summarized by this Court in U.N. Krishnamurthy v. A.M. Krishnamurthy1, as follows: "23. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not 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 a contract, which involves payment of money.However, Explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction. 24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a (2023) 1 SCC 775 contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving 22 Neutral Citation No. ( 2026:HHC:25159 ) payment of money. xxx xxx xxx 45. It is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice." 15. In Saradamani Kandappan vs S. Rajalakshmi & Ors., 2011 (12) SCC 18, the Apex Court while examining the doctrine that time is generally not the essence in contracts relating to immovable property, clarified that such a principle cannot be applied mechanically in modern commercial realities. The Court observed that although earlier precedents treated time stipulations in property contracts as merely indicative, the significant escalation in property values and changing economic circumstances require courts to give due significance to the time stipulations agreed between the parties. Where the contract clearly prescribes specific dates for payment of consideration and provides consequences for default, such stipulations may demonstrate the intention of the parties to treat time as the essence of the contract. In such circumstances, failure to adhere to the agreed schedule of payment may justify termination of the agreement and disentitle the purchaser 23 Neutral Citation No. ( 2026:HHC:25159 ) from seeking the equitable relief of specific performance. The relevant portion of the aforesaid judgments is extracted hereunder: “37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and “non-readiness”. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist.”… … 16. In Padmakumari & others v. Dasayyan & others, (2015) 8 SCC 695, the Apex Court, emphasized that where the agreement of sale stipulates a specific period for payment of the balance consideration, failure on the part of the purchaser to comply with such stipulation assumes significant legal importance in determining entitlement to specific performance. The Court held that when the purchaser does not pay the balance consideration within the agreed period and no acceptable explanation is offered for such default, the conduct of the purchaser clearly indicates lack of readiness and willingness to perform the essential terms of the contract. The Court further observed that courts 24 Neutral Citation No. ( 2026:HHC:25159 ) must carefully examine the contractual terms and surrounding circumstances and cannot ignore such material aspects while granting the equitable relief of specific performance. Accordingly, non-compliance with the stipulated time for payment of consideration may disentitle the purchaser from obtaining the relief sought. The relevant para of the aforesaid judgment is as under: “20. The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff performed his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendants 1 to 11 which is a very important legal aspect which was required to be considered by the courts below at the time of determining the rights of the parties and passing the impugned judgment. The courts below have ignored this important aspect of the matter while answering the contentious issues (i) and (ii) in favour of the plaintiff and granted decree of specific performance in respect of the suit scheduled property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendants 12 to 15 after setting aside the concurrent findings of fact recorded by the High Court.” 17. It is apt to note that in Mankour (dead) by L.Rs. vs. Hartar Singh Sangha (2010) 10 SCC 512, the Apex Court clarified that breach of contract by the defendant and ready and willingness of the plaintiff are two distinct issues in a suit for specific performance. Even if, a defendant is proved to have committed breach, the plaintiff cannot obtain 25 Neutral Citation No. ( 2026:HHC:25159 ) a decree unless he pleads and proves that he was always ready and willing to perform the essential terms of the contract as required under Section 16 (c) of the Act, 1963. Even if, the vendor wrongfully refuses to execute the sale deed, if the purchaser did not possess the financial capacity to pay the balance sale consideration at the time of the performance, he is not entitled to the specific performance. For the sake of ready reference the relevant para of the aforesaid judgment is extracted hereunder: 40. … … “Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the paint 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 the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct.”……… 18. The specific performance is an equitable relief and the Court is not bound to grant specific relief merely because it is lawful to do so. The relief of specific performance sought is not automatic as the Court is required to see the totality of the circumstances which are to be assessed by the Court in the light of facts and circumstances of each case. The specific performance is usually granted where substantial sale consideration has been paid. It is well 26 Neutral Citation No. ( 2026:HHC:25159 ) settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff was all along throughout the agreement period, ready and willing to perform the contract as is mandatorily required under Section 16 (c) of the Specific Relief Act, must be determined having regard to the entire attending circumstances. A bare averment in the plaint or the statement made in the examination-in-chief would not suffice. The conduct of the plaintiff must be judged having regard to the entirety of the pleadings as also by the evidence brought on record. Therefore, a requirement of necessary averment in the plaint that has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by the plaintiff, essentially needs to be proved independently by leading cogent and satisfactory evidence. 19. In the light of the aforesaid principles, coming to the facts of the present case. The perusal of the agreement to sell, Ex. PW-4/B, shows that the plaintiff had paid a sum of Rs.30,000/- for purchase of the flat as earnest money to the defendants at the time of its execution on 16.02.1999, through a bearer cheque No. RGA 437864, dated 16.02.1999, in favour of Shri Om Prakash Sahni, drawn on 27 Neutral Citation No. ( 2026:HHC:25159 ) Panjab National Bank, SCO 1118-1119, Sector 22-B, Chandigarh. The balance amount of Rs.3,00,000/- was to be paid in the following manner: “1. Rs.1,00,000/- (one lac only) on or before 28.02.1999; 2. Rs.2,00,000/- (two lacs only) in the month of May, 1999;” 20. The perusal of agreement to sell, Ex.PW-4/B, further shows that the remaining sale consideration of Rs.9,70,000/- was to be paid by the plaintiff to the defendants on or before 30.06.1999 before the Sub Registrar at the time of registration and execution of the sale deed before the Registering Authority and handing over the possession of the flat in question. The record nowhere demonstrates that on or before 30.06.1999 the plaintiff had ever appeared before the Sub Registrar with balance sale consideration for the execution and registration of the sale deed and, in fact, it was during the pendency of the suit before the learned Trial Court, with the intervention of the Trial Court, the parties had agreed to get the sale deed executed and registered. The sale consideration was settled between the parties at Rs.13,00,000/-, but the plaintiff had purchased stamp papers of Rs.1,20,000, Ex.P1 to Ex. P5, 28 Neutral Citation No. ( 2026:HHC:25159 ) i.e., for sale consideration of Rs.10,00,000/- only. The plaintiff offered no explanation as to why he had purchased stamp papers of less value. The perusal of the record also shows that sale deed was executed on stamp papers, i.e., Ex. P1 to Ex. P5, but the plaintiff did not agree for its registration on the grounds that some illegal and extraneous matters were introduced in the sale deed. However, the plaintiff did not explain as to what illegal and extraneous matters were introduced in the sale deed. Even if there were some illegal and extraneous matters introduced in the sale deed, as alleged by the plaintiff, though not proved, the plaintiff was required to deposit the balance sale consideration of Rs.9,70,000/- before the learned Trial Court, but the fact remains that the plaintiff neither appeared before the Sub Registrar with balance sale consideration nor he agreed for the registration of the sale deed, despite its execution on stamp papers, Ex. P1 to Ex.P5. He also did not deposit the balance sale consideration in the Court. 21. The perusal of the record further demonstrates that during the pendency of the suit before the learned Trial Court, the spot was got inspected from Local Commissioner and two experts, i.e., Shri S.D. Singh, B.E. B.Com, ME PE 29 Neutral Citation No. ( 2026:HHC:25159 ) (USA) MIE(I), AIIA-MCA and Shri G.C. Gupta inspected the spot. Shri S.D. Singh was examined by the plaintiff as PW-3 and he proved his report, Ex. PW-3/A, and photographs Ex. PW-3/A-1 to Ex. PW-3/A-24. On the other hand, the defendants examined Shri G.C. Gupta, as DW-2, who proved his report, Ex. DW-2/A. 22. The meticulous examination of the reports Ex. PW-3/A and Ex. DW-2/A demonstrates that the defendants had completed major part of the construction of the flat in question, except the lift, but in report, Ex. PW-3/A, the plaintiff had pointed out some items, which were allegedly found by him to be incomplete at the time of inspection of the flat in question. The items pointed out by the plaintiff were minor and their completion did not require huge expenditure. Thus, it cannot be said that the defendants, who had completed the major part of the construction of the flat, had not performed their part of the contract. Admittedly, the defendants had not fitted bath tubs, but by this mere fact, it cannot be said that the defendants had not performed their part of the contract, especially when they had completed major part of the contract. Report, Ex. DW-2/A shows that the flat was complete, except the lift. Moreover, the plaintiff 30 Neutral Citation No. ( 2026:HHC:25159 ) had not filed any objection against report, Ex. DW-2/A. Thus, merely on the basis of report, Ex. DW-2/A, it cannot be said that the defendants have not performed their part of the contract. 23. It is trite law that the plaintiff seeking specific performance of the agreement has to prove all along until the final decision in the suit is made, that he was ready and willing to perform his part of the contract and the plaintiff is duty- bound to prove his readiness and willingness by adducing cogent evidence to that effect. In the case on hand, the agreement to sell (Ex.PW-4/B) clearly stipulates that the plaintiff had to pay the balance sale consideration to the defendants before Sub Registrar at the time of the execution and registration of the sale deed on or before 30.09.1999, but the plaintiff neither served notice upon the defendants for execution and registration of the sale deed nor he ever appeared before the Sub Registrar alongwith balance sale consideration. Therefore, it is safe to hold that the plaintiff himself was reluctant to pay the balance sale consideration to the plaintiff. 24. Certificates, Ex. PW-7/A and Ex. PW-7/B, were brought on record by the plaintiff, which show that he had 31 Neutral Citation No. ( 2026:HHC:25159 ) applied for loan during the year 2001, which was sanctioned on 14.10.2002, but he did not avail such loan. The plaintiff was required to pay the balance sale consideration on or before 30.06.1999, on completion of the flat, but record nowhere reflects that the plaintiff had applied for loan or obtained any loan on or before 30.06.1999. Thus, it can be inferred that the plaintiff had no intention to pay the balance sale consideration to the defendants within the time prescribed in the agreement to sell, Ex. PW-4/B. Therefore, after going through the material on record, it cannot be said that the plaintiff was ready and willing to perform his part of the contract. Hence, in view of the entire evidence on record, it can safely be held that the plaintiff never intended to pay the balance amount of the sale consideration to the defendants within the stipulated period as such the plaintiff cannot be said to have performed his part of the agreement/contract. 25. In view of my aforesaid discussion and the principle laid down by the Apex Court, this Court is of the considered view that the plaintiff had failed to prove his readiness and willingness to pay the balance sale consideration as agreed in agreement to sell, Ex.PW-4/B. 32 Neutral Citation No. ( 2026:HHC:25159 ) Hence, no interference in the impugned judgement and decree passed by the learned Additional District Judge, Solan, District Solan, H.P. is required. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall stand(s) disposed of. ( Sushil Kukreja ) Judge 29th June, 2026 (virender)