Supreme Court of India
SANGITA SINHAversusBHAWANA BHARDWAJ AND ORS.
- Citation
- 2025 INSC 450
- Decided
- 3 April 2025
- Disposal
- Appeal(s) allowed
- Bench
- DIPANKAR DATTA
Holding
The agreement to sell was cancelled and cannot be specifically enforced; consequently, the suit for specific performance was not maintainable.
Summary
The appellant, a beneficiary under the original seller's will, challenged a decree granting specific performance of an unregistered agreement to sell, alleging that the agreement had been cancelled by the seller before the suit was filed. The buyer had paid an earnest money deposit and post‑dated cheques, but after receiving a cancellation letter and demand drafts from the seller, she encashed the drafts during the pendency of the suit. The Supreme Court held that the buyer's conduct demonstrated a lack of willingness to perform, that the cancellation letter was a jurisdictional fact precluding specific performance, and that the buyer’s failure to seek declaratory relief or disclose the cancellation amounted to suppression of material facts. The Court also affirmed the appellant's locus standi as a necessary and interested party. Consequently, the agreement could not be specifically enforced, the earlier judgments and decrees were set aside, and the sale deed in favor of the buyer was declared null and void.
Issues considered
- Whether a suit for specific performance is maintainable when the buyer has accepted a refund of the majority of the earnest money and the agreement has been cancelled prior to filing the suit.
- Whether the buyer was continuously ready and willing to perform the contract throughout the pendency of the suit.
- Whether the seller's cancellation letter constitutes a jurisdictional fact that bars specific performance absent a prayer for declaratory relief.
- Whether the appellant, as a beneficiary under the will, has locus standi to file the appeal.
- Whether suppression of material facts by the buyer disqualifies her from obtaining discretionary relief of specific performance.
Legislation cited
- Specific Performance Act, 1963s. 16(c), s. 20, s. 21, s. 22, s. 23
Headnote
Issue for Consideration Issue arose whether a suit for specific performance of an agreement to sell is liable to be decreed if the buyer had accepted the refund of the majority of the earnest money deposit/advance consideration, during the pendency of the suit. Headnotes† Specific – Acceptance by buyer of refund of consideration amount – Effect on relief of specific performance – Unregistered agreement to sell executed between the buyer-respondent no. 1 and the seller – Buyer paid certain sum in cash and issued three post-dated cheques
Subjects
Specific reliefAgreement to sellEquitable and discretionary relief of specific performanceReadiness and willingness to perform contractCancellation of agreementEncashing demand draftsAcceptance by buyer of refund of considerationNecessary and interested partySuppression of material factsSuit for specific performance of an agreement to sellRefund of the majority of the earnest money deposit/advance consideration during pendency of suitLocus to file
Judgment
[2025] 4 S.C.R. 551 : 2025 INSC 450
Sangita Sinha
v.
Bhawana Bhardwaj and Ors.
(Civil Appeal No. 4972 of 2025)
04 April 2025
[Dipankar Datta and Manmohan,* JJ.]
Issue for Consideration
Issue arose whether a suit for specific performance of an agreement
to sell is liable to be decreed if the buyer had accepted the refund
of the majority of the earnest money deposit/advance consideration,
during the pendency of the suit.
Headnotes†
Specific Performance Act, 1963 – Specific performance of an
agreement – Acceptance by buyer of refund of consideration
amount – Effect on relief of specific performance – Unregistered
agreement to sell executed between the buyer-respondent
no. 1 and the seller – Buyer paid certain sum in cash and issued
three post-dated cheques – Upon failure of seller to execute
the sale deed, buyer filed a suit seeking specific performance
of agreement to sell – Seller made a complaint to the police
stating that her signatures had been fraudulently taken on
the agreement to sell and seller issued a letter cancelling the
agreement, and refunded some amount through demand drafts
and returned two of three post dated cheques, which were
subsequently encashed – On death of the seller, respondent
no. 3-step grandson of seller impleaded along with appellant
in whose favour subject property had been bequeathed – Trial
court passed the judgment in favour of the buyer – High Court
upheld the same – Correctness:
Held: Conduct of buyer in encashing the demand drafts establishes
beyond doubt that the buyer was not willing to perform her part of
agreement to sell and proceed with execution of the sale deed,
and the fact that entire advance consideration/earnest money had
not been returned to the buyer is irrelevant and immaterial – Act
of buyer in encashing the demand drafts leads to an irresistible
* Author
552 [2025] 4 S.C.R.
Digital Supreme Court Reports
conclusion that the agreement stood cancelled – Seller had
issued a letter cancelling the Agreement to Sell prior to the filing
of the suit, the same constitutes a jurisdictional fact as till the said
cancellation is set aside, the buyer is not entitled to the relief of
specific performance – Thus, in absence of a prayer for declaratory
relief that cancellation of the agreement is bad in law, suit for
specific performance not maintainable – Plea that appellant lacked
the locus standi to file the present appeal as she did not have any
right, interest or title over the subject property is misconceived on
facts – Appellant is a beneficiary under the Will executed by the
original owner/seller, whereby the subject property was bequeathed
in her favour – Appellant, being a necessary and interested party
to the lis, has the locus to file the present appeal – Furthermore,
the onus to establish readiness and willingness is on the buyer
and the failure to establish the same disentitles the buyer from
the equitable and discretionary relief of specific performance –
Buyer failed to disclose in the plaint that the seller had issued the
cancellation letter, enclosing demand drafts and cheques which
amounts to suppression of material fact, disentitling her from the
discretionary relief of specific performance – Thus, agreement
to sell cannot be specifically enforced – Impugned judgment set
aside – Sale deed executed in favour of buyer declared null and
void. [Paras 15, 17-21, 25-30]
Specific performance – Specific performance of – Grant of
relief – ‘Readiness’ and ‘willingness’ to perform contract –
Explanation:
Held: ‘Readiness’ and ‘willingness’ are not one but two separate
elements – ‘Readiness’ means the capacity of the buyer to perform
the contract, which would include the financial position to pay the
sale consideration – ‘Willingness’ refers to the intention of the
buyer as a purchaser to perform his part of the contract, which is
inferred by scrutinising the conduct of the buyer/purchaser, including
attending circumstances – Continuous readiness and willingness
on the part of the buyer/purchaser from the date of execution of
Agreement to Sell till the date of the decree, is a condition precedent
for grant of relief of specific performance – It is not enough to show
the readiness and willingness up to the date of the plaint as the
conduct must be such as to disclose readiness and willingness at
all times from the date of the contract and throughout the pendency
of the suit up to the decree. [Paras 17-20]
[2025] 4 S.C.R. 553
Sangita Sinha v. Bhawana Bhardwaj and Ors.
Case Law Cited
R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr.,
Civil Appeal No. 3015 of 2013 decided on 21st November 2024;
Mehboob-Ur-Rehman (Dead) through Legal Representatives v.
Ahsanul Ghani [2019] 2 SCR 169 : (2019) 19 SCC 415; C.S.
Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives
and Ors. [2020] 2 SCR 676 : (2020) 3 SCC 280; Kamal Kumar v.
Premlata Joshi and Ors. [2019] 1 SCR 54 : (2019) 3 SCC 704; P.
Daivasigamani v. S. Sambandan [2022] 18 SCR 199 : (2022) 14
SCC 793; Gomathinayagam Pillai and Ors. v. Palaniswami Nadar
[1967] 1 SCR 227; Vijay Kumar and Others v. Om Parkash, 2018
SCC OnLine SC 1913; J.P. Builders and Another v. A. Ramadas
Rao and Another [2010] 15 SCR 538 : (2011) 1 SCC 429; Umabai
and Another v. Nilkanth Dhondiba Chavan (Dead) By LRs. and
Another [2005] 3 SCR 521 : (2005) 6 SCC 243; I.S. Sikandar
(Dead) By LRs. v. K. Subramani and Others [2013] 17 SCR 24 :
(2013) 15 SCC 27; A. Kanthamani v. Nasreen Ahmed [2017] 2
SCR 610 : (2017) 4 SCC 654; Shrisht Dhawan (Smt) v. Shaw
Bros. [1991] Supp. 3 SCR 446 : (1992) 1 SCC 534; Citadel Fine
Pharmaceuticals v. Ramaniyam Real Estates Private Limited and
Another [2011] 13 SCR 605 : (2011) 9 SCC 147 – referred to.
List of Acts
Specific Performance Act, 1963
List of Keywords
Specific relief; Agreement to sell; Equitable and discretionary relief
of specific performance; Readiness and Willingness’ to perform
contract; Cancellation of agreement; Encashing demand drafts;
Acceptance by buyer of refund of consideration; Necessary and
interested party; Suppression of material facts; Suit for specific
performance of an agreement to sell; Refund of the majority of the
earnest money deposit/advance consideration during the pendency
of the suit; Locus to file.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4972 of 2025
From the Judgment and Order dated 09.05.2024 of the High Court
of Judicature at Patna in F.A. No. 83 of 2018
554 [2025] 4 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Advs. for the Appellant:
S. B. Upadhyay, Sr. Adv., Ms. Indu Kaul, Rajiv Kumar Sinha,
Raj Kumar, Abhinav Kathuria.
Advs. for the Respondents:
Mungeshwar Sahoo, Ardhendumauli Kumar Prasad Sr. Advs.,
Samrandra Kumar, Vivek Kumar Srivastva, Pawan Kumar,
Ravi Bhushan Upadhyay, Ramesh Kumar Mishra, Shivam Tiwary,
Vishal Arun Mishra, Ramesh Kumar Mishra, Shivam Tiwary,
Ms. Anusha Rathore, Shivank S. Singh.
Judgment / Order of the Supreme Court
Judgment
Manmohan, J
1. Leave granted.
2. The primary issue that arises for consideration in the present civil
appeal is whether a suit for specific performance of an Agreement
to Sell is liable to be decreed if the buyer had accepted the refund
of majority of the earnest money deposit/advance consideration,
during the pendency of the civil suit?
3. Brief facts leading to the present appeal are as under:-
3.1. Late Kushum Kumari (“original defendant” / “seller”) was
allotted the subject property by the People’s Cooperative House
Construction Society Limited (“Society”) vide a registered sub-
lease dated 2nd April 1968.
3.2. On 25th January 2008, an unregistered Agreement to Sell with
respect to the subject property was executed between the
“Respondent No.1-buyer”-plaintiff and the seller for a total sale
consideration of Rs. 25,00,000/- (Rupees Twenty Five Lakhs).
At the time of the execution of the Agreement to Sell, the
Respondent No.1-buyer paid a sum of Rs.2,51,000/- (Rupees
Two Lakh Fifty One Thousand) in cash to the seller and issued
three post-dated cheques worth Rs.7,50,000/- (Rupees Seven
Lakh Fifty Thousand).
[2025] 4 S.C.R. 555
Sangita Sinha v. Bhawana Bhardwaj and Ors.
3.3. It is the case of Respondent No.1-buyer that when she visited
the subject property along with her husband on 11th February
2008, the tenants of the seller created a scuffle and forced
them to return. In the circumstance, the Respondent No.1-
buyer issued legal notices dated 23rd February 2008 and 23rd
April 2008, expressing her intention to pay the balance sale
consideration and to get the property registered in her favour.
3.4. Upon the failure of the seller to execute the sale deed,
Respondent No.1-buyer filed a suit before the Trial Court, Sub
Judge-IV, Patna under the Specific Performance Act, 1963 (“Act,
1963)” seeking specific performance of the Agreement to Sell
dated 25th January 2008 and the same was registered as Title
Suit No. TS/176/2008 (“subject suit”).
3.5. The subject suit was contested by the seller by filing a written
statement, stating therein that she came to know about the
Agreement to Sell dated 25th January 2008 on 5th February 2008
and immediately thereafter, made a complaint dated 6th February
2008 with the Inspector of Police-cum-Station House Officer,
Kankarbagh Police Station, Patna stating that her signatures
had been fraudulently taken on the Agreement to Sell dated
25th January 2008. It was further stated that the seller issued a
letter dated 7th January 2008 cancelling the Agreement to Sell
dated 25th January 2008 and refunded Rs.2,11,000/- (Rupees
Two Lakh Eleven Thousand) through five demand drafts dated
7th February 2008 in lieu of the cash and returned two of the
three post-dated cheques of Rs.2,50,000/- (Rupees Two Lakh
Fifty Thousand) each, which were issued by the seller. Vide
Order dated 16th December 2008, issues were framed by the
Trial Court.
3.6. Upon the demise of the seller, the Respondent No.3 herein, who
is the step grandson of the seller, was impleaded as substituted
defendant no. 1 and the appellant herein was impleaded as
defendant no. 3 as the subject property had been bequeathed
in her favour by way of a Will dated 23rd September 2002
executed by the original owner/seller.
3.7. After consideration of the depositions of PW-1 (Respondent
No.1 herein) and her husband, PW-2, the Trial Court framed
three additional issues vide order dated 21st January 2013.
556 [2025] 4 S.C.R.
Digital Supreme Court Reports
The issues were framed once again on 27th April 2018, and a
judgment was passed in favour of Respondent No.1-buyer on
the same date.
3.8. The judgment dated 27th April 2018 and the decree dated 10th
May 2018 were challenged by the appellant herein in First Appeal
No. 83 of 2018. The said appeal was dismissed by the Patna
High Court vide the impugned Judgment dated 9th May 2024.
3.9. Upon the present Special Leave Petition being filed, this Court,
while issuing notice, had directed parties to maintain status quo
with respect to the possession on 20th August 2024.
SUBMISSIONS ON BEHALF OF THE APPELLANT
4. Shri S.B. Upadhyay, learned senior counsel for the appellant, stated
that the signatures of the seller on the Agreement to Sell dated 25th
January 2008 had been fraudulently obtained by Respondent No.3
herein. He stated that the seller-defendant signed some blank papers
believing the same to be related to the Will that she had executed
in favour of the appellant on 23rd September 2002.
5. He stated that upon the discovery of the Agreement to Sell dated
25th January 2008 on 5th February 2008, the seller made a criminal
complaint dated 6th February 2008 with the Inspector of Police-
cum-Station House Officer, Kankarbagh, Patna that her signatures
had been fraudulently obtained on the Agreement to Sell dated 25th
January 2008.
6. He stated that on 7th February 2008, the seller wrote a letter to
Respondent No.1-buyer cancelling the Agreement to Sell dated
25th January 2008 enclosing therewith five demand drafts dated
7th February 2008 amounting to Rs. 2,11,000/- (Rupees Two Lakh
Eleven Thousand) in lieu of the cash and two of the three post-dated
cheques of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) each,
which were issued by the Respondent No.1-buyer.
7. He pointed out that the Respondent No.1-buyer as well as her
husband-PW2, in their depositions, have admitted that they had
received five demand drafts dated 7th February 2008 amounting
to Rs. 2,11,000/-(Rupees Two Lakh Eleven Thousand) in lieu of
the cash and also received two of the three post-dated cheques of
Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) along with the letter
[2025] 4 S.C.R. 557
Sangita Sinha v. Bhawana Bhardwaj and Ors.
cancelling the Agreement to Sell dated 25th January 2008 in March
2008. He explained that five demand drafts dated 7th February 2008
of Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand) were encashed
by the Respondent No.1-buyer in July 2008, after institution of the
subject suit on 5th May 2008. He submitted that the encashment of
the demand drafts amounted to revocation of the Agreement to Sell
dated 25th January 2008. He contended that the subject suit was filed
by the Respondent No.1-buyer after revocation of the Agreement
to Sell dated 25th January 2008, without seeking any relief against
the revocation and without disclosing that she was in receipt of the
demand drafts and post-dated cheques.
8. He contended that the subject suit was filed on the basis of an
Agreement to Sell which stood cancelled and as such, the same was
not maintainable. He submitted that existence of a valid agreement
is sine qua non for grant of relief of specific performance. He pointed
out that, in similar circumstances, this Court in R. Kandasamy
(Since Dead) & Ors. vs. T.R.K. Sarawathy & Anr. (Civil Appeal
No. 3015 of 2013 decided on 21st November 2024), had set aside
the judgment and decree passed in favour of the Respondent No.1-
buyer inter alia on the ground that a non-existent Agreement to Sell
cannot be enforced by a Court of law.
9. Even otherwise, he contended that the Respondent No.1-buyer was
not ready and willing to perform the Agreement to Sell dated 25th
January 2008. He stated that a mere averment that the Respondent
No.1-buyer is ready and willing to perform the contract will not suffice
as readiness and willingness must be inferred in overall circumstances
of the case, including the conduct of the Respondent No.1-buyer
prior and subsequent to the filing of the suit.
10. He pointed out that the Respondent No.1-buyer in her cross-
examination, had admitted that at the time of execution of the
agreement, she was not aware of the balance in her bank account
and at the time when the three post-dated cheques for Rs.2,50,000/-
(Rupees Two Lakh Fifty Thousand) were issued, there was no
sufficient balance in her account. He contended that the conduct of
the Respondent No.1-buyer in encashing the demand drafts proved
that she was not ready or willing to perform the contract. In support
of his contentions, he relied upon the judgments of this Court in
Mehboob-Ur-Rehman (Dead) through Legal Representatives
558 [2025] 4 S.C.R.
Digital Supreme Court Reports
vs. Ahsanul Ghani (2019) 19 SCC 415 and C.S. Venkatesh vs.
A.S.C. Murthy (Dead) by Legal Representatives and Ors. (2020)
3 SCC 280.
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1
11. Per contra, Mr. Mungeshwar Sahoo, learned senior counsel for the
Respondent No.1-buyer stated that the suit had been decreed in
favour of the Respondent No.1-buyer by the Trial Court after rightly
appreciating the evidence and a sale deed had been executed
subsequently in favour of the Respondent No.1-buyer upon deposit
of Rs. 24,61,000/- (Rupees Twenty Four Lakh Sixty One Thousand)
before the Trial Court. He contended that the judgment and decree
passed by the Trial Court had been rightly upheld by the High
Court. He stated that the entire case of the appellant in the present
proceedings is based upon reappreciation of evidence and the same
cannot be permitted at this stage.
12. He stated that the entire earnest money/advance consideration
had not been refunded/returned by the seller. He stated that the
Respondent No.1-buyer had paid Rs.2,51,000/- (Rupees Two Lakh
Fifty One Thousand) in cash to the seller against which the seller
had refunded Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand)
through five demand drafts dated 7th February 2008. Therefore,
according to him, an amount of Rs. 40,000/- (Rupees Forty Thousand)
remained with the seller as earnest money/advance consideration.
He contended that as the balance sale consideration had been paid
subsequently, the cancellation of the Agreement to Sell dated 25th
January 2008 was not valid.
13. Even otherwise, he stated that a bilateral agreement cannot be
unilaterally cancelled by a party by returning the earnest money.
According to him, a (bilateral) agreement can only be cancelled by a
Court of law or by executing a subsequent agreement, cancelling the
prior agreement. He stated that in the event parties are permitted to
unilaterally cancel the agreement, the purchaser will be left remediless
as any third party can intervene by offering a higher earnest money.
14. He contended that the seller passed away before she could prove her
defense by leading evidence. He stated that neither the appellant nor
the Respondent No.3 herein had deposed in support of the written
statement filed by the seller. He therefore stated that the written
[2025] 4 S.C.R. 559
Sangita Sinha v. Bhawana Bhardwaj and Ors.
statement of the seller had not been proved. He also contended
that the appellant did not have the locus to file the present appeal.
According to him, the appellant had no right, title or interest in the
subject property and the findings of the Trial Court or the High Court
do not affect the appellant in any manner.
COURT’S REASONING
RESPONDENT NO.1 WAS NOT WILLING TO PERFORM THE
AGREEMENT TO SELL
15. Having heard learned senior counsel / learned counsel for the
parties and having perused the paper book, the admitted position
that emerges is that Respondent No.1-buyer had paid Rs. 2,51,000/-
(Rupees Two Lakh Fifty One Thousand) in cash and handed over
three post-dated cheques of Rs.2,50,000/- (Rupees Two Lakh Fifty
Thousand) each at the time of execution of the Agreement to Sell
dated 25th January 2008. It is also not disputed that the Respondent
No.1-buyer had subsequently received a letter dated 7th February
2008 cancelling the Agreement to Sell dated 25th January 2008
enclosing therewith five demand drafts dated 7th February 2008
totaling to Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand) (in
lieu of the cash paid by the Respondent No.1-buyer) along with
two of the three post-dated cheques of Rs.2,50,000/- (Rupees Two
Lakh Fifty Thousand) each, which had been issued initially by the
Respondent No.1-buyer. Further, the third post-dated cheque which
was not returned to the Respondent No.1-buyer had not been
encashed. The Respondent No.1-buyer has admitted that the letter
dated 7th February 2008 had been received prior to filing of the suit
for specific performance and five demand drafts dated 7th February
2008 totaling to Rs.2,11,000/- (Rupees Two Lakh Eleven Thousand)
had been encashed in July, 2008 after institution of the subject suit
on 5th May 2008, without raising any objection with respect to the
difference in the cash amount and the demand drafts furnished by
the seller.
16. It is settled law that under the Act, 1963, prior to the 2018 Amendment,
specific performance was a discretionary and equitable relief. In
Kamal Kumar vs. Premlata Joshi and Ors. (2019) 3 SCC 704,
which has been followed in P. Daivasigamani vs. S. Sambandan
(2022) 14 SCC 793, this Court framed material questions which
560 [2025] 4 S.C.R.
Digital Supreme Court Reports
require consideration prior to grant of relief of specific performance.
The relevant portion of the judgment in Kamal Kumar (supra) is
reproduced hereinbelow:
“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, are:
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;
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 Forms 47/48 of Appendices 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.”
[2025] 4 S.C.R. 561
Sangita Sinha v. Bhawana Bhardwaj and Ors.
17. It is trite law that ‘readiness’ and ‘willingness’ are not one but two
separate elements. ‘Readiness’ means the capacity of the Respondent
No.1-buyer to perform the contract, which would include the financial
position to pay the sale consideration. ‘Willingness’ refers to the
intention of the Respondent No.1-buyer as a purchaser to perform
his part of the contract, which is inferred by scrutinising the conduct
of the Respondent No.1-buyer /purchaser, including attending
circumstances.
18. Continuous readiness and willingness on the part of the Respondent
No.1-buyer /purchaser from the date of execution of Agreement to
Sell till the date of the decree, is a condition precedent for grant
of relief of specific performance. This Court in various judicial
pronouncements has held that it is not enough to show the readiness
and willingness up to the date of the plaint as the conduct must
be such as to disclose readiness and willingness at all times from
the date of the contract and throughout the pendency of the suit
up to the decree. A few of the said judgments are reproduced
hereinbelow:-
A. In Gomathinayagam Pillai and Ors. vs. Palaniswami Nadar
(1967) 1 SCR 227, it has been held as under:-
“6. But the respondent has claimed a decree for
specific performance and it is for him to establish that
he was, since the date of the contract, continuously
ready and willing to perform his part of the contract.
If he fails to do so, his claim for specific performance
must fail. As observed by the Judicial Committee of
the Privy Council in Ardeshir Mama v. Flora Sassoon
1928 SCC OnLine PC 43:
“In a suit for specific performance, on the other hand,
he treated and was required by the Court to treat
the contract as still subsisting. He had in that suit to
allege, and if the fact was traversed, he was 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. Failure to make
good that averment brought with it the inevitable
dismissal of his suit.”
562 [2025] 4 S.C.R.
Digital Supreme Court Reports
The respondent must in a suit for specific performance
of an agreement plead and prove that he was ready and
willing to perform his part of the contract continuously
between the date of the contract and the date of hearing
of the suit….”
(emphasis supplied)
B. In Vijay Kumar and Others vs. Om Parkash, 2018 SCC
OnLine SC 1913, it has been held as under:-
“6. In order to obtain a decree for specific performance,
the plaintiff has to prove his readiness and
willingness to perform his part of the contract
and the readiness and willingness has to be
shown throughout and has to be established by
the plaintiff….”
(emphasis supplied)
C. In J.P.Builders and Another vs. A. Ramadas Rao and Another
(2011) 1 SCC 429, it has been held as under:-
“27. It is settled law that even in the absence of specific
plea by the opposite party, it is the mandate of the
statute that the plaintiff has to comply with Section
16(c) of the Specific Relief Act and when there is
non-compliance with this statutory mandate, the court
is not bound to grant specific performance and is left
with no other alternative but to dismiss the suit. It
is also clear that readiness to perform must be
established throughout the relevant points of time.
“Readiness and willingness” to perform the part
of the contract has to be determined/ascertained
from the conduct of the parties.”
(emphasis supplied)
D. In Umabai and Another vs. Nilkanth Dhondiba Chavan
(Dead) By LRs. and Another (2005) 6 SCC 243, it has been
held as under:-
“30. It is now well settled that the conduct of the
parties, with a view to arrive at a finding as to
[2025] 4 S.C.R. 563
Sangita Sinha v. Bhawana Bhardwaj and Ors.
whether the plaintiff-respondents were all along and
still are ready and willing to perform their part of
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 a statement
made in the examination-in- chief would not
suffice. The conduct of the plaintiff- respondents
must be judged having regard to the entirety of
the pleadings as also the evidence brought on
records.”
(emphasis supplied)
E. In Mehboob-Ur-Rehman (Dead) through Legal
Representatives v. Ahsanul Ghani (supra), it has been held
as under:-
“16. Such a requirement, of necessary averment
in the plaint, that he has already performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by
him being on the plaintiff, mere want of objection by
the defendant in the written statement is hardly of
any effect or consequence. The essential question
to be addressed to by the Court in such a matter
has always been as to whether, by taking the
pleading and the evidence on record as a whole,
the plaintiff has established that he has performed
his part of the contract or has always been ready
and willing to do so...”
(emphasis supplied)
F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal
Representatives & Ors. (supra), it has been held as under:-
“16. The words “ready and willing” imply that the
plaintiff was prepared to carry out those parts of the
contract to their logical end so far as they depend
upon his performance. The continuous readiness and
willingness on the part of the plaintiff is a condition
564 [2025] 4 S.C.R.
Digital Supreme Court Reports
precedent to grant the relief of performance. 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 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 which he
has to pay the defendant must be of necessity to be
proved to be available. Right from the date of the
execution of the contract till the date of decree,
he must prove that he is ready and willing to
perform his part of the contract. The court may
infer from the facts and circumstances whether
the plaintiff was ready and was always ready to
perform his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao
[N.P. Thirugnanam v. R. Jagan Mohan Rao (1995) 5
SCC 115], it was held that continuous readiness and
willingness on the part of the plaintiff is a condition
precedent to grant of 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 to 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 necessarily be proved to be
available.
18. In Pushparani S. Sundaram v. Pauline Manomani
James [Pushparani S. Sundaram v. Pauline Manomani
James (2002) 9 SCC 582], this Court has held that
inference of readiness and willingness could be drawn
from the conduct of the plaintiff and the totality of
circumstances in a particular case. It was held thus:
(SCC p. 584, para 5)
[2025] 4 S.C.R. 565
Sangita Sinha v. Bhawana Bhardwaj and Ors.
“5. … So far these being a plea that they were
ready and willing to perform their part of the
contract is there in the pleading, we have no
hesitation to conclude, that this by itself is not
sufficient to hold that the appellants were ready
and willing in terms of Section 16(c) of the
Specific Relief Act. This requires not only such
plea but also proof of the same. Now examining
the first of the two circumstances, how could
mere filing of this suit, after exemption was
granted be a circumstance about willingness
or readiness of the plaintiff. This at the most
could be the desire of the plaintiff to have this
property. It may be for such a desire this suit
was filed raising such a plea. But Section 16(c)
of the said Act makes it clear that mere plea
is not sufficient, it has to be proved.”
(emphasis supplied)
19. Consequently, the readiness and willingness of the buyer to go
ahead with the sale of the property at the time of the institution of the
suit loses its relevance, if the Respondent No.1-buyer is unable to
establish that the readiness and willingness has continued throughout
the pendency of the suit.
20. After examination of the pleadings and evidence in the present suit
as well as the conduct of the Respondent No.1-buyer, this Court is
unable to agree with Respondent No.1-buyer that she was willing
to perform the Agreement to Sell dated 25th January, 2008 and go
ahead with the purchase of the property. This Court says so because
admittedly, as noted above, the five demand drafts dated 7th February
2008 for Rs. 2,11,000/- (Rupees Two Lakh Eleven Thousand) were
encashed by the Respondent No.1-buyer in July, 2008. The conduct
of the Respondent No.1-buyer in encashing the demand drafts
establishes beyond doubt that the Respondent No.1-buyer was not
willing to perform her part of the Agreement to Sell and proceed with
execution of the sale deed; for the Respondent No.1-buyer would
not have encashed the demand drafts if she was indeed willing to
perform the contract and have a sale deed executed. Consequently,
once it is established that the Respondent No. 1-buyer is not willing
566 [2025] 4 S.C.R.
Digital Supreme Court Reports
to perform the contract, the fact that the entire advance consideration/
earnest money had not been returned to Respondent No.1-buyer is
irrelevant and immaterial.
THE AGREEMENT TO SELL DATED 25TH JANUARY 2008 STOOD
CANCELLED / TERMINATED.
21. This Court is also of the view that the act of the Respondent No.1-buyer
in encashing the demand drafts leads to an irresistible conclusion
that the agreement in question stood cancelled.
22. The contention of the learned counsel for the Respondent No. 1-buyer
that the Agreement to Sell dated 25th January 2008 could not have
been cancelled unilaterally is contrary to facts as the letter dated 07th
February 2008 along with the refund of the demand drafts and two
post-dated cheques was nothing but repudiation of the Agreement
to Sell dated 25th January 2008 by the seller and the encashment
of the demand drafts was acceptance of such repudiation by the
Respondent No.1-buyer, leading to cancellation of the Agreement
to Sell dated 25th January 2008.
23. The contention that the demand drafts were encashed under protest
is misconceived on facts as there is nothing on record to show that
the demand drafts were encashed under protest. In fact, PW-2, who
is the husband of the Respondent No.1-buyer, has deposed that
upon receipt of the demand drafts and cheques, the Respondent
No.1-buyer had not issued any letter to the seller stating that the
amounts received by them were less than the earnest money paid
by them.
ABSENT A PRAYER FOR DECLARATORY RELIEF THAT
CANCELLATION OF THE AGREEMENT IS BAD IN LAW, A SUIT
FOR SPECIFIC PERFORMANCE IS NOT MAINTAINABLE
24. This Court further finds that the seller had admittedly issued a letter
dated 7th February 2008 cancelling the Agreement to Sell dated 25th
January 2008, prior to the filing of the subject suit on 5th May 2008.
Even though the demand drafts enclosed with the letter dated 07th
February, 2008 were subsequently encashed in July, 2008, yet this
Court is of the view that it was incumbent upon the Respondent
No.1-buyer to seek a declaratory relief that the said cancellation is
bad in law and not binding on parties for the reason that existence
[2025] 4 S.C.R. 567
Sangita Sinha v. Bhawana Bhardwaj and Ors.
of a valid agreement is sine qua non for the grant of relief of specific
performance.
25. This Court in I.S. Sikandar (Dead) By LRs. v. K. Subramani and
Others (2013) 15 SCC 27 has held that in absence of a prayer for
a declaratory relief that the termination of the agreement is bad
in law, the suit for specific performance of that agreement is not
maintainable. Though subsequently, this Court in A. Kanthamani
Vs. Nasreen Ahmed (2017) 4 SCC 654 has held that the declaration
of law in I.S. Sikander (Dead) By LRs. v. K. Subramani (supra)
regarding non-maintainability of the suit in the absence of a challenge
to letter of termination is confined to the facts of the said case, yet
the aforesaid issue has been recently considered in R. Kandasamy
(Since Dead) & Ors. v. T.R.K. Sarawathy & Anr. (supra) authored by
brother Justice Dipankar Datta and the conflict between the judgment
of I.S. Sikander (Dead) By LRs. v. K. Subramani (supra) and A.
Kanthamani Vs. Nasreen Ahmed (supra) has been deliberated
upon. In R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy
& Anr. (supra), it has been clarified that the appellate court would
not be precluded from examining whether the jurisdictional fact
exists for grant of relief of specific performance, notwithstanding
the fact that the trial Court omitted or failed to frame an issue on
maintainability of the suit. The relevant portion of the judgment in
R. Kandasamy (Since Dead) & Ors. v. T.R.K. Sarawathy & Anr.
(supra) is reproduced hereinbelow:
“25. What follows from A. Kanthamani (supra) is that
unless an issue as to maintainability is framed by the Trial
Court, the suit cannot be held to be not maintainable at
the appellate stage only because appropriate declaratory
relief has not been prayed.
xxx
43. In Shrisht Dhawan (Smt) v. Shaw Bros. (1992) 1
SCC 534, an interesting discussion on ‘jurisdictional fact’ is
found in the concurring opinion of Hon’ble R. M. Sahai, J.
(as His Lordship then was). It reads:
“19. *** What, then, is an error in respect of
jurisdictional fact? A jurisdictional fact is one on
existence or non-existence of which depends
568 [2025] 4 S.C.R.
Digital Supreme Court Reports
assumption or refusal to assume jurisdiction by
a court, tribunal or an authority. In Black’s Legal
Dictionary it is explained as a fact which must exist
before a court can properly assume jurisdiction of a
particular case. Mistake of fact in relation to jurisdiction
is an error of jurisdictional fact. No statutory authority
or tribunal can assume jurisdiction in respect of
subject matter which the statute does not confer on
it and if by deciding erroneously the fact on which
jurisdiction depends the court or tribunal exercises
the jurisdiction then the order is vitiated. Error of
jurisdictional fact renders the order ultra vires and bad
(Wade, Administrative Law. In Raza Textiles [(1973) 1
SCC 633] it was held that a court or tribunal cannot
confer jurisdiction on itself by deciding a jurisdictional
fact wrongly. ***
(emphasis supplied)
44. Borrowing wisdom from the aforesaid passage, our
deduction is this. An issue of maintainability of a suit
strikes at the root of the proceedings initiated by filing of
the plaint as per requirements of Order VII Rule 1, CPC.
If a suit is barred by law, the trial court has absolutely no
jurisdiction to entertain and try it. However, even though a
given case might not attract the bar envisaged by section
9, CPC, it is obligatory for a trial court seized of a suit to
inquire and ascertain whether the jurisdictional fact does,
in fact, exist to enable it (the trial court) to proceed to trial
and consider granting relief to the plaintiff as claimed. No
higher court, much less the Supreme Court, should feel
constrained to interfere with a decree granting relief on the
specious ground that the parties were not put specifically
on notice in respect of a particular line of attack/defence
on which success/failure of the suit depends, more
particularly an issue touching the authority of the trial
court to grant relief if the ‘jurisdictional fact’ imperative for
granting relief had not been satisfied. It is fundamental,
as held in Shrisht Dhawan (supra), that assumption of
jurisdiction/refusal to assume jurisdiction would depend on
[2025] 4 S.C.R. 569
Sangita Sinha v. Bhawana Bhardwaj and Ors.
existence of the jurisdictional fact. Irrespective of whether
the parties have raised the contention, it is for the trial
court to satisfy itself that adequate evidence has been led
and all facts including the jurisdictional fact stand proved
for relief to be granted and the suit to succeed. This is
a duty the trial court has to discharge in its pursuit for
rendering substantive justice to the parties, irrespective
of whether any party to the lis has raised or not. If the
jurisdictional fact does not exist, at the time of settling the
issues, notice of the parties must be invited to the trial
court’s prima facie opinion of non-existent jurisdictional
fact touching its jurisdiction. However, failure to determine
the jurisdictional fact, or erroneously determining it leading
to conferment of jurisdiction, would amount to wrongful
assumption of jurisdiction and the resultant order liable
to be branded as ultra vires and bad.
45. Should the trial court not satisfy itself that the
jurisdictional fact for grant of relief does exist, nothing
prevents the court higher in the hierarchy from so satisfying
itself. It is true that the point of maintainability of a suit has
to looked only through the prism of section 9, CPC, and
the court can rule on such point either upon framing of an
issue or even prior thereto if Order VII Rule 11 (d) thereof
is applicable. In a fit and proper case, notwithstanding
omission of the trial court to frame an issue touching
jurisdictional fact, the higher court would be justified in
pronouncing its verdict upon application of the test laid
down in Shrisht Dhawan (supra).
46. In this case, even though no issue as to maintainability
of the suit had been framed in course of proceedings
before the Trial Court, there was an issue as to whether
the Agreement is true, valid and enforceable which was
answered against the sellers. Obviously, owing to dismissal
of the suit, the sellers did not appeal. Nevertheless, having
regard to our findings on the point as to whether the buyer
was ‘ready and willing’, we do not see the necessity of
proceeding with any further discussion on the point of
jurisdictional fact here.”
570 [2025] 4 S.C.R.
Digital Supreme Court Reports
26. Since in the present case, the seller had issued a letter dated 07th
February, 2008 cancelling the agreement to sell prior to the institution
of the suit, the same constitutes a jurisdictional fact as till the said
cancellation is set aside, the respondent is not entitled to the relief
of specific performance.
27. Consequently, this Court is of the opinion that absent a prayer for
declaratory relief that termination/cancellation of the agreement is
bad in law, a suit for specific performance is not maintainable.
APPELLANT HAS THE LOCUS STANDI TO FILE THE APPEAL
28. The preliminary objection raised by the Respondent No.1-buyer that
the issue of her readiness and willingness should not be examined by
this Court as the appellant lacked the locus standi to file the present
appeal as she did not have any right, interest or title over the subject
property is misconceived on facts. The appellant was impleaded as
defendant no. 3 in the subject suit as she is a beneficiary under the
Will dated 23rd September 2002 executed by the original owner/
seller, whereby the subject property has been bequeathed in her
favour. Consequently, the appellant, being a necessary and interested
party to the lis, has the locus to file the present appeal. Further, the
onus to establish readiness and willingness is on the Respondent
No.1-buyer and the failure to establish the same disentitles the
Respondent No.1-buyer from the equitable and discretionary relief
of specific performance.
SUPPRESSION OF MATERIAL FACTS DISENTITLES THE BUYER
FROM THE EQUITABLE AND DISCRETIONARY RELIEF OF
SPECIFIC PERFORMANCE
29. A perusal of the record shows that not only did the Respondent No.
1-buyer fail to seek a declaratory relief, but also it failed to disclose
in the plaint that the seller had issued the cancellation letter dated
7th February 2008 enclosing therewith the demand drafts dated 7th
February 2008 and two of the three post-dated cheques. The failure
of the Respondent No. 1-buyer to disclose the same in her plaint
amounts to suppression of material fact, disentitling her from the
discretionary relief of specific performance. This Court in Citadel
Fine Pharmaceuticals v. Ramaniyam Real Estates Private Limited
and Another (2011) 9 SCC 147 has held as under:
[2025] 4 S.C.R. 571
Sangita Sinha v. Bhawana Bhardwaj and Ors.
“57. There is another aspect of the matter also. In the
instant case by asking for specific performance of the
contract, the plaintiff purchaser is praying for a discretionary
remedy. It is axiomatic that when a discretionary remedy
is prayed for by a party, such party must come to court
on proper disclosure of facts. The plaint which it filed
before the court in such cases must state all the facts
with sufficient candour and clarity. In the instant case the
plaintiff purchaser made an averment in the plaint that the
defendant vendor be directed to return the advance amount
of Rs 10,00,000 with interest at the rate of 24% from the
date of payment of the said amount till the realisation and
an alternative prayer to that effect was also made in the
prayer clause (c).
58. However, the fact remains that prior to the filing of the
suit the defendant vendor returned the said amount of Rs
10,00,000 by its letter dated 4-9-1996 by an account payee
cheque in favour of the plaintiff and the same was sent
to the plaintiff under registered post which was refused
by the plaintiff on 6-9-1996. The plaintiff suppressed this
fact in the plaint and filed the suit on 9-9-1996 with a
totally contrary representation before the court as if the
amount had not been returned to it by the vendor. This is
suppression of a material fact, and disentitles the plaintiff
purchaser from getting any discretionary relief of specific
performance by the court.
59. In this connection we may refer to the Principle of
Equitable Remedies by I.C.F. Spry, (4th Edn., Sweet &
Maxwell, 1990). Dealing with the question of “clean hands”
the learned author opined that where the plaintiff is shown
to have materially misled the court or to have abused its
process, or to have attempted to do so, the discretionary
relief of specific performance can be denied to him. In
laying down this principle, the learned author relied on a
decision of the English Court in Armstrong v. Sheppard &
Short Ltd. [(1959) 2 QB 384 : (1959) 3 WLR 84 : (1959)
2 All ER 651 (CA)] , QB at p. 397. (See Spry, Equitable
Remedies, p. 243.)
572 [2025] 4 S.C.R.
Digital Supreme Court Reports
60. This Court has also taken the same view in Arunima
Baruah v. Union of India [(2007) 6 SCC 120] . At p. 125,
para 12 of the Report, this Court held that it is trite law that
to enable the court to refuse to exercise its discretionary
jurisdiction suppression must be of a material fact.
This Court, of course, held that what is a material fact,
suppression whereof would disentitle the suitor to obtain
a discretionary relief, would depend upon the facts and
circumstances of each case. However, by way of guidance
this Court held that a material fact would mean that fact
which is material for the purpose of determination of the lis.
61. Following the aforesaid tests, this Court is of the
opinion that the suppression of the fact that the plaintiff
refused to accept the cheque of Rs 10 lakhs sent to it by
the defendant under registered post with acknowledgment
due in terms of Clause 9 of the contract is a material fact.
So on that ground the plaintiff purchaser is not entitled to
any relief in its suit for specific performance.”
CONCLUSION
30. Keeping in view the aforesaid findings, this Court is of the view that
the Agreement to Sell cannot be specifically enforced. Accordingly,
the present appeal is allowed and the impugned Judgment dated
27th April, 2018 as well as decrees dated 10th May, 2018 and 09th
May, 2024 are set aside. Further, the sale deed executed in favour
of Respondent No.1-buyer in pursuance of the impugned judgments
is declared as null and void and the Appellant is directed to refund
the balance sale consideration amount of Rs.24,61,000/- (Rupees
Twenty Four Lakh Sixty One Thousand) deposited by Respondent
No.1-buyer in pursuance to the impugned judgment and decrees.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Nidhi Jain
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Specific relief"Sign in to search