# Arjun Prasad & Ors v. Ganesh Prasad & Ors

- **Citation:** (2023) 7 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-05
- **Case number:** Second Appeal No. 131 of 1993
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arjun-prasad-ors-v-ganesh-prasad-ors-50661
- **Pages:** 50

## Headnote

Civil Law-The Code of Civil Procedure,
1908-Section 100 - The Specific Relief Act,
1963-Sections 16 & 20 ---Trial court refused
the decree of specific performance and the
lower Appellate Court set aside the decree of
trial Court and has decreed the suit for specific
performance--- The agreement was executed by
Sarju Prasad which has been concurrently held
by the two Courts, the defendants had raised a
plea which was not bonafide and the defendants
tried to cast a doubt over the entire transaction
by resorting to different pleas including giving
incorrect date of death of Sarju Prasad to
shroud the execution of the agreement itself,
with suspicion which could not be substantiated-
--The payment of sale consideration, the
issuance of notice prior to institution of the suit
seeking
specific
performance
has
been
sufficiently proved by the plaintiffs--- Readiness
and willingness has been specifically pleaded by
the plaintiffs and there is no denial by the
defendants--- No plea raised by the plaintiffs
which is found to be false or not in good faith---
Ingredients for grant of specific performance
was proved by the plaintiffs

Mere rise in the value of the property is not
enough to refuse the grant of a decree of
specific
performance,
without
any
other
accentuating circumstances--- While exercising
the discretion in terms of Section 20 of the S.R
Act the conduct of the parties have to be seen
and the conduct of the defendants was not such
so as to tilt the discretion in favour of the
defendants--- Discretion which was exercised by
the trial Court was not appropriate and the
judgment and decree passed by the lower
Appellate Court is justified---- Court modifies the
7 All. Arjun Prasad & Ors. Vs. Ganesh Prasad & Ors.
977
judgment and decree passed by the lower
Appellate Court to the extent that the plaintiffsrespondents shall be entitled to a decree of
specific performance in pursuance of the
agreement to sell dated 10.08.1983 provided
that now the respondents-plaintiffs shall pay a
total sum of Rs.8,00,000/- to the defendantsappellants within a period of 90 days or in the
alternate deposit the same before the Executing
Court after adjusting any amount already paid
or deposited. (Para 66,69,70 & 74)

Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,984 of 166,571. This is a partial read: ask again with offset=39984 for what follows._

976 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Public Prosecutor and when the
same was challenged before the learned
Sessions Judge, Kanpur Nagar by way of
Criminal Revision No.390 of 2022, the
same was rejected confirming the orders of
learned A.C.M.M-III, Kanpur Nagar. Both
these orders are safely be termed as dehors
of the aforesaid judgment of Hon'ble the
Apex Court and the anti thesis of
compromise. At the cost of repetition, the
Court has no hesitation to observe that the
opposite party no.2 have got some ulterior
plans to extract more money from the
applicants by way of interest and that is
why, he has used the Public Prosecutor for
this purpose and succeeded to an extent but
fact remains that since, he has already
entered into compromise and with the
specific understanding that after taking the
amount, he will not go to prosecute the
applicants in the aforesaid offence, still, he
has managed to obtain the favourable
orders which in my opinion is liable to be
set-aside.

[47] Accordingly, both the orders of
learned A.C.M.M-III, Kanpur Nagar dated
22.11.2022 and order of confirmation
passed by learned Revisional Court dated
16.12.2022 are hereby quashed.

[48] The present application filed
under section 482 Cr.P.C. hereby stands
ALLOWED.
----------
(2023) 7 ILRA 976
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 131 of 1993

Arjun Prasad & Ors. ...Appellants
Versus
Ganesh Prasad & Ors. ...Respondents

Counsel for the Appellants:
Sri S.N. Saxena, Sri Adnan Ahmad, Sri
Arvind Kr. Sinha, Sri K.P. Singh

Counsel for the Respondents:
Sri G.S. Nigam, Sri Arvind Kumar Jauhari,
Sri D.P. Gupta, Sri Madan Gopal Misra, Sri
O.P. Tiwari, Sri P.L. Mishra, Sri Shafat Ullah
Khan, Sri T.C. Gupta

Civil Law-The Code of Civil Procedure,
1908-Section 100 - The Specific Relief Act,
1963-Sections 16 & 20 ---Trial court refused
the decree of specific performance and the
lower Appellate Court set aside the decree of
trial Court and has decreed the suit for specific
performance--- The agreement was executed by
Sarju Prasad which has been concurrently held
by the two Courts, the defendants had raised a
plea which was not bonafide and the defendants
tried to cast a doubt over the entire transaction
by resorting to different pleas including giving
incorrect date of death of Sarju Prasad to
shroud the execution of the agreement itself,
with suspicion which could not be substantiated-
--The payment of sale consideration, the
issuance of notice prior to institution of the suit
seeking
specific
performance
has
been
sufficiently proved by the plaintiffs--- Readiness
and willingness has been specifically pleaded by
the plaintiffs and there is no denial by the
defendants--- No plea raised by the plaintiffs
which is found to be false or not in good faith---
Ingredients for grant of specific performance
was proved by the plaintiffs

Mere rise in the value of the property is not
enough to refuse the grant of a decree of
specific
performance,
without
any
other
accentuating circumstances--- While exercising
the discretion in terms of Section 20 of the S.R
Act the conduct of the parties have to be seen
and the conduct of the defendants was not such
so as to tilt the discretion in favour of the
defendants--- Discretion which was exercised by
the trial Court was not appropriate and the
judgment and decree passed by the lower
Appellate Court is justified---- Court modifies the
7 All. Arjun Prasad & Ors. Vs. Ganesh Prasad & Ors.
977
judgment and decree passed by the lower
Appellate Court to the extent that the plaintiffsrespondents shall be entitled to a decree of
specific performance in pursuance of the
agreement to sell dated 10.08.1983 provided
that now the respondents-plaintiffs shall pay a
total sum of Rs.8,00,000/- to the defendantsappellants within a period of 90 days or in the
alternate deposit the same before the Executing
Court after adjusting any amount already paid
or deposited. (Para 66,69,70 & 74)

Appeal dismissed. (E-15)

List of Cases cited:

1. Chand Rani Vs Kamla Rani, (1993) 1 SCC 519

2. R.C. Chandiok Vs Chuni Lal Sabharwal (1970)
3 SCC 140

3. Narinderjit Singh Vs North Star ESt.
Promoters Ltd., (2012) 5 SCC 712

4. Ramzan Ali & anr.Vs Altafur Rahman,
2023:AHC-LKO30146

5. Jugraj Singh & anr.Vs Labh Singh & ors.
(1995) 2 SCC 31.

6. Ram Awadh & ors. Vs Achhairbar Dubey &
anr., (2000) 2 SCC 428

7. Kadupugotla Varalakshmi Vs Vudagiri Venkata
Rao & ors. 2021 SCC OnLine SC 365

8. Durga Prasad Vs Deep Chand, AIR 1954 SC 75

9. Kafiladdin Vs Samiraddin, [AIR 1931 Cal 67]

10. Thomson Press (India) Ltd. Vs Nanak
Builders and Investors Private Limited & ors.,
(2013) 5 SCC 397

11. Rathnavathi Vs Kavita Ganashamdas, (2015)
5 SCC 223

12.
Smt.
Rajeshwari
&
ors.
Vs
Smt.
Meharunnishan & ors. in Second Appeal No.375
of 2001, decided on 24.02.2021

13. P. Ramasubbamma Vs V. Vijayalakshmi &
ors., (2022) 7 SCC 384
14. Katta Sujatha Reddy & anr.Vs Siddamsetty
Infra Projects Private Limited & ors., (2023) 1
SCC 355

15. K. Narendra Vs Riviera Apartments (P) Ltd.,
(1999) 5 SCC 77,

16. G. Jayashree & ors. Vs Bhagwandas S. Patel
& ors. (2009) 3 SCC 141

17. Ramesh Chandra Vs Asruddin, (2016) 1 SCC
653

18. K. Nanjappa Vs R.A. Hameed, (2016) 1 SCC
762

19. Jayakantham & ors. Vs Abaykumar, (2017) 5
SCC 178

20. Ferrodous ESt. (P) Ltd. Vs. P. Gopirathnam
(Dead) & ors., 2020 SCC OnLine SC 825

21. Shenbagam & ors. Vs K.K. Rathinavel, 2022
SCC OnLine SC 71

22. Nirmala Anand Vs Advent Corporation (P)
Ltd. & ors., 2002

23. K. Prakash Vs B.R. Sampath Kumar, (2015)
1 SCC 597

24. Zarina Siddiqui Vs A. Ramalingam (2015) 1
SCC 705

25. U.N. Krishnamurthy Vs A.M. Krishnamurthy;
2022 SCC Online SC 840

(Delivered by Hon'ble Jaspeet Singh, J.)

1. The instant second appeal has been
preferred by the defendants-appellants
emanating
from
a
suit
for
specific
performance of contract filed by the
plaintiffs-respondents, wherein the trial
Court by means of the judgment and decree
dated 07.04.1992 refused the decree of
specific performance which was assailed
before the lower Appellate Court and the
lower Appellate Court by means of its
judgment and decree dated 02.12.1992 has
978 INDIAN LAW REPORTS ALLAHABAD SERIES
set aside the decree of trial Court and has
decreed the suit for specific performance,
prompting the defendants-appellants to
knock the doors of this Court under Section
100 CPC.

2. The instant second appeal was
admitted by the Court on 24.03.1993 on the
substantial question of law as formulated in
the memo of appeal, Clause A, which reads
as under:-

A. Whether the learned court
below have misread and misinterpreted
documents on record which renders their
findings, perverse, incorrect, illegal?

3. In order to appreciate the
controversy involved in the second appeal,
certain relevant facts relating to the suit are
being noticed hereinafter.

4. Ganesh Prasad and Satish Kumar,
both minors sons of Kanhaiya Lal, through
their father and natural guardian, had
instituted a suit for specific performance of
contract dated 12.08.1983 in terms whereof
the original vendor, namely, Sarju Prasad
had agreed to sell the property in dispute
bearing No.367 (New No.346), situate in
Jawahar Nagar, District Unnao. In terms of
the said agreement executed by Sarju
Prasad, it was agreed that for a total sale
consideration of Rs.12,500/-, Sarju Prasad
would sell the property in dispute to the
minor sons of Kanhaiya Lal for which a
sum of Rs.500/- was paid by the plaintiffs
to Sarju Prasad as earnest money and the
remaining consideration was to be paid at
the time of execution of the sale-deed. The
agreement also contemplated that the saledeed would be executed within a period of
one month and the possession will be
transferred to the plaintiffs at the time of
execution of the sale-deed.

5. It was also pleaded that before the
sale-deed could be executed, Sarju Prasad
expired and he was survived by his wife
and three children, who were impleaded as
the defendants. It was aslo recorded in the
plaint that the plaintiffs were ready and
willing to perform their part of contract and
they had requisite means of paying the
remaining consideration. However, the
defendants were evading to perform their
obligation, as a result, the plaintiffs had
sent a notice dated 12.08.1983 and despite
the same, the defendants did not comply
with their obligations which led the
plaintiffs to institute the suit for specific
performance before the Court of Civil
Judge, Unnao which was registered as
Regular Suit No.52/1986.

6. The said suit was contested by the
defendants, who were the legal heirs of the
original executant of the agreement Sarju
Prasad and while denying the execution of
the agreement, it was specifically stated
that Sarju Prasad prior to his death was
suffering from a respiratory disease due to
which he had become very weak and was
also not mentally alert. It was further
pleaded that neither Sarju Prasad executed
the agreement nor he had the authority to
do so. Sarju Prasad did not even have the
need to sell the property and as such it
appears that the plaintiffs in order to usurp
the property got the agreement executed
through impersonation as Sarju Prasad had
died on 23.09.1982 and as such the
agreement which is dated 10.08.1983 could
not have been executed by him. For the
aforesaid reasons, it was pleaded that the
suit for specific performance could not be
decreed and was liable to be dismissed.

7. Upon exchange of the pleadings,
the trial Court framed five issues. However,
the important issues upon which the suit
7 All. Arjun Prasad & Ors. Vs. Ganesh Prasad & Ors.
979
was contested were (i) Whether the
plaintiffs are entitled to seek specific
performance of the agreement dated
10.08.1983? (ii) Whether late Sarju Prasad
had any right to execute the said agreement
to sell and if, yes, its effect? (iii) Whether
the defendants were in possession of the
disputed property prior to the agreement
and if so, its effect? (iv) Whether Sarju
Prasad expired on 23.09.1982 as stated by
the defendants?

8. After the parties led their evidence,
the trial Court recorded a finding that Sarju
Prasad did not die on 23.09.1982 as the
defendants failed to prove the aforesaid fact
and it further found that Sarju Prasad had
executed the agreement to sell dated
10.08.1983. It also returned a finding that
the property belonged to Sarju Prasad and
prior to his death, there was no occasion for
grant of any rights to his wife and children
as alleged and thus it cannot be said that
Sarju Prasad did not have rights to execute
the agreement to sell. Lastly, the trial Court
noticed that apparently the value of the
house, the subject matter of the agreement,
was around Rs.60,000/- and the agreement
indicated the sale consideration to be
Rs.12,500/- against which only Rs.500/-
had
been
paid
as
earnest
money.
Consequently, the trial Court did not find it
appropriate to grant a decree of specific
performance, however, by means of its
judgment and decree dated 17.04.1992, it
refused the decree of specific performance
but directed the defendants to refund the
sum of Rs.500/- along with interest @ 12%
per annum from the date of the agreement
till the date of its payment.

9. The defendants being aggrieved
against the judgment and decree passed by
the trial Court filed a regular civil appeal
bearing No.37/1992 under Section 96 CPC.
The plaintiffs had also filed their crossobjection
as
the
decree
of
specific
performance had been refused by the trial
Court and, therefore, after hearing the
parties, the lower Appellate Court granted a
decree
of
specific
performance
after
allowing the appeal by means of the
judgment and decree dated 02.12.1992. It is
this judgment and decree of reversal which
is under challenge before this Court in the
instant second appeal.

10. Shri Adnan Ahmad, learned
counsel for the appellants has advanced the
following submissions:-

(i) It is submitted that in a suit for
specific performance of contract, it was
necessary for the plaintiffs not only to have
stated in the plaint that they were ready and
willing to perform their part of the contract,
but this readiness and willingness is to be
established by evidence to be present
throughout the suit uptill the passing of the
decree. It is submitted that the trial Court
did not give any finding regarding the
readiness and willingness and even the
lower Appellate Court did not dwell into
this aspect of the matter appropriately
while decreeing the suit.

11. It is submitted that as per the
alleged agreement, the sale-deed was to be
executed within a period of one month. The
agreement is dated 10.08.1983 and the time
as prescribed in the agreement was uptill
September, 1983. The notice given by the
plaintiffs for seeking specific performance
is dated 04.08.1984 and the suit came to be
filed on 21.01.1986. In context of the
timelines, it would be seen that the plaintiff
had got the notice issued much after the
prescribed time for execution of the saledeed had expired and even thereafter, the
suit came to be filed almost year and a half
980 INDIAN LAW REPORTS ALLAHABAD SERIES
which indicates and points to the fact that
the plaintiffs were not serious regarding
their continuous readiness and willingness
to perform their part of the contract.

(ii) It is further urged that in the
given facts of the case where admittedly the
prices of the property had escalated since
the execution of the agreement and it was
brought on record during trial that the value
of the house was about Rs.60,000/- and the
sale consideration as indicated in the
agreement was only Rs.12,500/-, this fact
reflected
that
the
agreement
was
inequitable
and
there
was
a
clear
inadequacy of the consideration. Thus, it
would be seen that against the alleged
agreed amount of Rs.12,500/- a paltry sum
of Rs.500/- had been paid as earnest
money. Hence, requiring the appellants to
execute the sale-deed for a meager sum of
Rs.12,000/- was unconscionable rather in
the circumstances, the trial Court had
properly exercised its jurisdiction by
directing the return of Rs.500/- along with
interest @ 12% per annum which did
complete justice between the parties
whereas the lower Appellate Court did not
appropriately consider the findings nor
gave cogent reasons as to why the
discretion which was exercised by the trial
Court had been reversed by the lower
Appellate Court which has resulted in sheer
miscarriage of justice. Moreover, the
appellants would be deprived of a roof
from over their heads and that too at a most
inequitable price and especially with
passage of time, as the prices of the
immovable
properties
have
hugely
escalated, it would result in an unfair
advantage to the plaintiffs-respondents. In
these circumstances, it is submitted that the
decree passed by the trial Court deserved to
be affirmed and the instant second appeal
be allowed.

12. Learned counsel for the appellants
in support of his submissions has relied
upon the decisions of the Apex Court in
K.S.
Vidyanadam
and
others
v.
Vairavan
(1997)
3
SCC
1;
C.S.
Venkatesh v. A.S.C. Murthy and others,
(2020) 3 SCC 280 and Shenbagam and
others v. K.K. Rathinavel, 2022 SCC
OnLine SC 71.

13. Shri Arvind Kumar Jauhari,
learned counsel for the respondents while
refuting the aforesaid submissions has
submitted that the defendants themselves
were responsible for the debacle by raising
a false defence before the trial Court. Sarju
Prasad had executed the agreement to sell
dated 10.08.1983, however, falsely the
defendants raised a defence that Sarju
Prasad expired on 23.09.1982. It was also
falsely averred that Sarju Prasad was
physically and mentally weak and did not
know the factum regarding execution of the
agreement to sale. It is further urged that
the plaintiffs had agreed to purchase the
property for a sum of Rs.12,500/- and a
sum of Rs.500/- was also paid as earnest
money. The agreement to sell is a
registered document which carries a
presumption of its execution. It is only on
account of death of Sarju Prasad that the
sale-deed could not be executed within the
time. The plaintiffs were always ready and
willing to perform their part of contract and
even called upon the defendants, who were
the legal heirs of Sarju Prasad, to execute
the sale-deed but they kept delaying the
manner and thereafter the plaintiffs had to
give a notice on 04.08.1984 which was not
complied with by the defendants which led
the plaintiffs to institute the suit for specific
performance of contract.

14. It is further urged that the trial
Court
recorded
a
finding
that
the
7 All. Arjun Prasad & Ors. Vs. Ganesh Prasad & Ors.
981
defendants were unable to prove that Sarju
Prasad had died prior to execution of the
agreement to sell. It also returned a finding
that the agreement to sell in question was
executed
by
Sarju
Prasad
and
this
necessarily expressed the falsity of the
defence. It is also submitted that the trial
Court ought not to have refused the relief
of specific performance since, the plaintiffs
were always ready and willing to perform
their part of contract which was specifically
pleaded in the plaint and not specifically
denied by the defendants. Moreover, there
was no material brought on record to prove
that the plaintiffs did not have the financial
capacity to pay the consideration and
purchase the property in dispute. The entire
evidence which was led by the defendants
was only to buttress their false defense that
Sarju Prasad did not have right to execute
the agreement and once all these findings
were returned in favour of the plaintiffs,
there was no justiciable reason for the trial
Court to have refused the decree of specific
performance. It is in the aforesaid backdrop
that the lower Appellate Court considered
the material as well as evidence in its
correct
perspective
and
reversed
the
findings of the trial Court while granting a
decree of specific performance in favour of
the plaintiffs-respondents.

15. It is also urged that the rise in
prices of the property is a natural
phenomenon and in any case there was no
material on record to indicate that the
amount of Rs.60,000/- which was referred
to by the trial Court had any basis. Merely
by
extracting
the
figure
from
the
deposition, in isolation, may not be the
correct manner of reading the evidence and
it is for the aforesaid reason that the trial
Court erred in considering the value of the
property being Rs.60,000/- against which it
was sought to be sold for a sum of
Rs.12,500/- as per the agreement. It is thus
urged that it is a case where the trial Court
has misread the evidence and the same has
been corrected by the lower Appellate
Court, who has recorded clear findings and
as such the judgment and decree passed by
the lower Appellate Court does not suffer
from any palpable error which may
persuade this Court to interfere with the
findings of fact in exercise of powers under
Section 100 CPC, consequently, the appeal
deserves to be dismissed.

16.

Learned
counsel
for
the
respondents in support of his submissions
has relied upon the decisions of the Apex
Court in Nirmala Anand v. Advent
Corporation (P) Ltd. and others, 2002
(5) SCC; P. D'souza v. Shondrilo Naidu,
(2004) 6 SCC 649; K. Prakash v. B.R.
Sampath Kumar, (2015) 1 SCC 597.

17. This Court has given its anxious
consideration to the submissions of the
learned counsel for the respective parties
and also perused the material on record
keeping in mind the substantial question of
law involved.

18. This Court finds that the answer
lies in the issue, as to, whether the lower
appellate Court was justified in decreeing
the suit for specific performance of contract
or the trial Court was justified in invoking
its discretion in terms of Section 20 of the
Specific Relief Act, 1963 while refusing to
grant a decree of specific performance and
ordering the return of the earnest money
along with interest.

19. Before adverting to the aforesaid
aspect of the matter, it will be first
necessary to notice what are the essential
ingredients which enables a Court to grant
a decree of specific performance and what
982 INDIAN LAW REPORTS ALLAHABAD SERIES
may be the conditions when the Court may
exercise its discretion in terms of Section
20 of the Specific Relief Act, 1963 to
refuse a decree of specific performance of
contract.

20. This can be outlined by first
noticing the relevant provisions of the
Specific Relief Act, 1963 and then by
taking the aid of the decisions of the Apex
Court on the subject. Notably, Section 10
and 20 of the Specific Relief Act, 1963 was
amended in the year 2018 vide Amending
Act of 2018 which received the Presidential
assent on 01.08.2018 and came into effect
in the statute books from 01.10.2018.

21. Sections 10 and 20 of the Specific
Relief Act, 1963 shall be noticed, both, as it
stood prior to and after amendment in the
year 2018.

(i) Prior to Amendment of 2018,
Section 10 read as under:-

"10. Cases in which specific
performance of contract enforceable.-
Except as otherwise provided in this
Chapter, the specific performance of any
contract may, in the discretion of the court,
be enforced-

(a) when there exists no standard
for ascertaining actual damage caused by
the non-performance of the act agreed to
be done; or

(b) when the act agreed to be
done is such that compensation in money
for its non-performance would not afford
adequate relief. Explanation.-Unless and
until the contrary is proved, the court shall
presume-

(i) that the breach of a contract to
transfer immovable property cannot be
adequately relieved by compensation in
money; and

(ii) that the breach of a contract
to transfer movable property can be so
relieved except in the following cases:-

(a) where the property is not an
ordinary article of commerce, or is of
special value or interest to the plaintiff, or
consists of goods which are not easily
obtainable in the market;

(b) where the property is held by
the defendant as the agent or trustee of the
plaintiff.

(ii) Section 10 as amended by the
Specific Relief (Amendment) Act, 2018,
reads as under:-

"10. Specific performance in
respect
of
contracts.-The
specific
performance of a contract shall be
enforced by the court subject to the
provisions contained in sub-section (2)
of section 11, section 14 and section
16."

x x x---------------x x x --------------------- x x
x ----------------------x x x

22. Section 14 of the Specific Relief
Act relates to certain contracts which are
not specifically enforceable and reads as
under:-

Section
14
Contracts
not
specifically
enforceable.-(1)
The
following contracts cannot be specifically
enforced, namely:-
7 All. Arjun Prasad & Ors. Vs. Ganesh Prasad & Ors.
983

(a) a contract for the nonperformance of which compensation in
money is an adequate relief;

(b) a contract which runs into
such minute or numerous details or which
is
so
dependent
on
the
personal
qualifications or volition of the parties, or
otherwise from its nature is such, that the
court cannot enforce specific performance
of its material terms;

(c) a contract which is in its
nature determinable;

(d) a contract the performance of
which involves the performance of a
continuous duty which the court cannot
supervise.

(2) Save as provided by the
Arbitration Act, 1940 (10 of 1940), no
contract
to
refer
present
or
future
differences
to
arbitration
shall
be
specifically enforced; but if any person who
has made such a contract (other than an
arbitration
agreement
to
which
the
provisions of the said Act apply) and has
refused to perform it, sues in respect of any
subject which he has contracted to refer,
the existence of such contract shall bar the
suit.

(3)
Notwithstanding
anything
contained in clause (a) or clause (c) or
clause (d) of sub-section (1), the court may
enforce
specific
performance
in
the
following cases:-

(a) where the suit is for the
enforcement of a contract,-

(i) to execute a mortgage or furnish
any other security for securing the repayment
of any loan which the borrower is not willing
to repay at once: Provided that where only a
part of the loan has been advanced the lendor
is willing to advance the remaining part of
the loan in terms of the contract; or

(ii) to take up and pay for any
debentures of a company;

(b) where the suit is for,-

(i) the execution of a formal deed
of partnership, the parties having commenced
to carry on the business of the partnership; or

(ii) the purchase of a share of a
partner in a firm;

(c) where the suit is for the
enforcement
of
a
contract
for
the
construction of any building or the execution
of any other work on land: Provided that the
following conditions are fulfilled, namely:-

(i) the building or other work is
described in the contract in terms sufficiently
precise to enable the court to determine the
exact nature of the building or work;

(ii) the plaintiff has a substantial
interest in the performance of the contract
and the interest is of such a nature that
compensation in money for non-performance
of the contract is not an adequate relief; and

(iii)
the
defendant
has,
in
pursuance
of
the
contract,
obtained
possession of the whole or any part of the
land on which the building is to be
constructed or other work is to be executed."

23. Section 15 of the Act of 1963
deals with who may obtain specific
performance and it reads as under:-

"Section 15 Who may obtain
specific
performance.-Except
as
984 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise provided by this Chapter, the
specific performance of a contract may be
obtained by-

(a) any party thereto;

(b) the representative in interest
or the principal, of any party thereto:
Provided that where the learning, skill,
solvency or any personal quality of such
party is a material ingredient in the
contract, or where the contract provides
that his interest shall not be assigned, his
representative in interest or his principal
shall
not
be
entitled
to
specific
performance of the contract, unless such
party has already performed his part of the
contract, or the performance thereof by his
representative in interest, or his principal,
has been accepted by the other party;

(c) where the contract is a
settlement on marriage, or a compromise of
doubtful rights between members of the
same family, any person beneficially
entitled thereunder;

(d) where the contract has been
entered into by a tenant for life in due
exercise of a power, the reminderman;

(e) a reversioner in possession,
where the agreement is a covenant entered
into with his predecessor in title and the
reversioner is entitled to the benefit of such
covenant;

(f) a reversioner in remainder,
where the agreement is such a covenant,
and the reversioner is entitled to the benefit
thereof and will sustain material injury by
reason of its breach;

(g) when a company has entered
into a contract and subsequently becomes
amalgamated with another company, the
new company which arises out of the
amalgamation;
(h) when the promoters
of
a
company
have,
before
its
incorporation, entered into a contract for
the purposes of the company, and such
contract is warranted by the terms of the
incorporation, the company: Provided that
the company has accepted the contract and
has communicated such acceptance to the
other party to the contract."

24. Importantly, Section 16 contains
personal bars which can be invoked to
refuse a decree of specific performance and
it reads as under:-

"Section 16 Personal bars to
relief.-Specific performance of a contract
cannot be enforced in favour of a person-

(a) who would not be entitled to
recover compensation for its breach; or

(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 wilfully acts at variance with,
or in subversion of, the relation intended to
be established by the contract; or

(c) who fails to aver and prove
that he has performed or has always been
ready and willing to perform the essential
terms of the contract which are to be
performed by him, other than terms the
performance of which has been prevented
or waived by the defendant. Explanation.-
For the purposes of clause (c),-

(i) where a contract involves the
payment of money, it is not essential for the
plaintiff to actually tender to the defendant
or to deposit in court any money except
when so directed by the court;
7 All. Arjun Prasad & Ors. Vs. Ganesh Prasad & Ors.
985

(ii)
the
plaintiff
must
aver
performance
of,
or
readiness
and
willingness
to
perform,
the
contract
according to its true construction."

x x x---------------x x x --------------------- x x
x ----------------------x x x

25. Another key section is Section 19
of the Specific Relief Act which speaks of
the relief to the parties and it also takes
within its ambit the instances of a
subsequent
purchaser
for
valuable
consideration without notice, and it reads as
under:-

"Section
19
Relief
against
parties and persons claiming under them
by subsequent title.-Except as otherwise
provided
by
this
Chapter,
specific
performance of a contract may be enforced
against-

(a) either party thereto;

(b) any other person claiming
under him by a title arising subsequently to
the contract, except a transferee for value
who has paid his money in good faith and
without notice of the original contract;

(c) any person claiming under a
title which, though prior to the contract
and known to the plaintiff, might have been
displaced by the defendant;

(d) when a company has entered
into a contract and subsequently becomes
amalgamated with another company, the
new company which arises out of the
amalgamation;

(e) when the promoters of a
company have, before its incorporation,
entered into a contract for the purpose of
the
company
and
such
contract
is
warranted
by
the
terms
of
the
incorporation, the company: Provided that
the company has accepted the contract and
communicated such acceptance to the other
party to the contract."

26. Having noticed the aforesaid
provisions, it would reveal that in a suit for
specific performance of contract relating to
an immovable property, it is per-se
essential for the plaintiff to prove the due
execution of the agreement to sell and that
it is capable of enforcement. It is also
required to not only plead but also amply
demonstrate by evidence that the plaintiff is
and has been always ready and willing to
perform his part of the contract from the
time of the execution of the agreement and
throughout the proceedings in the Court till
it is concluded. The plaintiff is also
required to indicate that it is the defendant
who is responsible for non-implementation
of the agreement and the defendant has
failed to perform his legal obligation as per
the terms of the agreement.

27. In light of the aforesaid legal
provisions and propositions, it will now be
worthwhile to notice certain leading
decisions of the Apex Court which
illuminates the scope and intent of the
provisions as noticed hereinabove and its
nuances.

28. Whether time is the essence of
contract relating to an immovable property
was considered by the Apex Court in
Chand Rani v. Kamla Rani, (1993) 1
SCC 519, wherein it was held as under:-

"It is a well-accepted principle
that in the case of sale of immovable
property, time is never regarded as the
essence of the contract. In fact, there is a
986 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption against time being the essence
of the contract. This principle is not in any
way different from that obtainable in
England. Under the law of equity which
governs the rights of the parties in the case
of specific performance of contract to sell
real estate, law looks not at the letter but at
the substance of the agreement. It has to be
ascertained whether under the terms of the
contract the parties named a specific time
within which completion was to take place,
really and in substance it was intended that
it should be completed within a reasonable
time. An intention to make time the essence
of the contract must be expressed in
unequivocal language."

29. The plea of readiness and
willingness is an important and essential
ingredient in relation to Section 16(c) of the
Specific Relief Act, 1963 and it has been
held that it is not a straight jacket formula.
In
R.C.
Chandiok
v.
Chuni
Lal
Sabharwal (1970) 3 SCC 140, the Hon'ble
Apex Court observed as under:-

"readiness and willingness cannot
be treated as a straitjacket formula and the
issue has to be decided keeping in view the
facts and circumstances relevant to the
intention
and
conduct
of
the
party
concerned"

30. In Narinderjit Singh v. North
Star Estate Promoters Limited, (2012) 5
SCC 712, in para 21 to 23 held as under:-

"20. In our view, the concurrent
findings recorded by the trial court and the
lower appellate court on the issues of
execution
of
the
agreement
by
the
appellant's father and the respondent's
readiness and willingness to perform its
part of the agreement were based on correct
evaluation of the pleadings and evidence of
the parties and the learned Single Judge of
the High Court did not commit any error by
refusing to upset those findings. The
argument of the learned Senior Counsel for
the appellant that in the absence of specific
pleading about continued readiness and
willingness of the respondent to perform its
part of the agreement and availability of
funds necessary for payment of the sale
consideration, the High Court should have
set aside the concurrent finding recorded by
the courts below sounds attractive but on a
careful scrutiny of the record we do not
find any valid ground to entertain the same.

21. In R.C. Chandiok v. Chuni
Lal Sabharwal [(1970) 3 SCC 140] this
Court
observed
that
"readiness
and
willingness
cannot
be
treated
as
a
straitjacket formula and the issue has to be
decided keeping in view the facts and
circumstances relevant to the intention and
conduct of the party concerned". The same
view was reiterated in P. D'Souza v.
Shondrilo Naidu [(2004) 6 SCC 649].

22. In N.P. Thirugnanam v. R.
Jagan Mohan Rao [(1995) 5 SCC 115] the
Court found that the appellant was dabbling
in real estate transaction without means to
purchase the property and observed: (SCC
pp. 117-18, para 5)

"5. ... Section 16(c) of the Act
envisages that the plaintiff must plead and
prove that he had performed or has always
been ready and willing to perform the
essential terms of the contract which are to
be performed by him, other than those
terms the performance of which has been
prevented or waived by the defendant. The
continuous readiness and willingness on the
part of the plaintiff is a condition precedent
to grant the relief of specific performance.
This circumstance is material and relevant
7 All. Arjun Prasad & Ors. Vs. Ganesh Prasad & Ors.
987
and is required to be considered by the
court while granting or refusing to grant the
relief. If the plaintiff fails to either aver or
prove the same, he must fail. To adjudge
whether the plaintiff is ready and willing to
perform his part of the contract, the court
must take into consideration the conduct of
the plaintiff prior and subsequent to the
filing of the suit along with other attending
circumstances.
The
amount
of
consideration which he has to pay to the
defendant must of necessity be proved to be
available. Right from the date of the
execution till date of the decree he must
prove that he is ready and has always been
willing to perform his part of the contract.
As stated, the factum of his readiness and
willingness to perform his part of the
contract is to be adjudged with reference to
the conduct of the party and the attending
circumstances. The court may infer from
the facts and circumstances whether the
plaintiff was ready and was always ready
and willing to perform his part of the
contract."

23. In J.P. Builders v. A.
Ramadas Rao [(2011) 1 SCC 429 : (2011)
1 SCC (Civ) 227] the Court has merely
reiterated the principles already laid down
and no new proposition has been laid down
which may help the cause of the appellant."

31. Recently, this Court considered
the issue of readiness and willingness with
the aid of decided cases of the Apex Court
in Ramzan Ali and another v. Altafur
Rahman, 2023:AHC-LKO-30146 and in
paras 27 to 30 reads as under:-

"27.
In
the
Corpus
Juris
Secundum,
vol.
81
pp.950-951,
the
readiness
and
willingness
has
been
interpreted to mean, a general principle of
law
that
a
person
seeking
specific
performance must show that he has
performed or offered to perform or is
ready, able and willing to perform, all the
essential acts required by the contract and
he must not remain quiet or hold himself
aloof so as to enforce or abandon the
contract as events may prove advantageous.
The
plaintiff
is
entitled
to
specific
performance where he alleges and proves
that he has complied substantially with the
conditions of the contract or is able, ready
and willing to perform the contract. (See
also Satya Jain v Anis Ahmed Rushdie AIR
2013 SC 434).

28. In the case of Bijai Bahadur
v. Shri Shiv Kumar AIR 1985 All 223, this
Court held that so far as the question of
readiness and willingness is concerned
while 'willingness' is merely a mental
process, 'readiness' is something to do with
translating that will into action and is
preceded by a necessary preparation for
being in a position to be ready. As to the
averments about this continuous readiness
and willingness the law never insists on any
particular form and the necessary averment
may be made in any language the plaintiff
may choose to employ. The language is not
important. The crucial thing is that the
totality of the averments made in the plaint
must indicate the readiness and willingness
of the plaintiff, even though by necessary
inference.

29. This Court also notices the
decision of the Apex Court in His Holiness
Acharya Swami Ganesh Dassji Vs. Sitaram
Thapar; 1996 (4) SCC 526 wherein the
concept of readiness and willingness has
been noticed and has been held as under:-

"2. There is a distinction between
readiness to perform the contract and
willingness to perform the contract. By
988 INDIAN LAW REPORTS ALLAHABAD SERIES
readiness may be meant the capacity of the
plaintiff to perform the contract which
includes his financial position to pay the
purchase
price.
For
determining
his
willingness to perform his part of the
contract, the conduct has to be properly
scrutinised. There is no documentary proof
that the plaintiff had ever funds to pay the
balance of consideration. Assuming that he
had the funds, he has to prove his
willingness to perform his part of the
contract. According to the terms of the
agreement, the plaintiff was to supply the
draft sale deed to the defendant within 7
days of the execution of the agreement, i.e.,
by 27-2-1975. The draft sale deed was not
returned after being duly approved by the
petitioner. The factum of readiness and
willingness to perform plaintiff's 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. The facts of this case would
amply
demonstrate
that
the
petitioner/plaintiff was not ready nor had
the capacity to perform his part of the
contract as he had no financial capacity to
pay the consideration in cash as contracted
and intended to bide for the time which
disentitles him as time is of the essence of
the contract."

30.