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Judgment
Heard finally by consent of learned counsel for the respective parties.
The appellant is the original defendant. The respondent is the original plaintiff. The present appeal is directed against the judgment and decree dated 18.04.2019 passed by the learned District Judge-5, Nagpur in Regular Civil Appeal No.652 of 2016, whereby the appeal preferred by the appellant/original defendant came to be dismissed and the judgment and decree dated 29.09.2015 passed by the learned Civil Judge, Senior Division, Nagpur, in Regular Civil Suit No.1419 of 2010 came to be confirmed. By the said decree, the suit instituted by the respondent/plaintiff for specific performance of the agreement to sell dated 31.12.2009 was decreed.
This Court has heard the rival submissions and perused the judgments of the Courts below. The following substantial questions of law arise for consideration:
Whether the Courts below were justified in holding that the respondent had established readiness and willingness under Section 16(c) of the Specific Relief Act, 1963 in the absence of specific evidence regarding her financial capacity to pay the balance consideration;
Whether specific performance could be granted in respect of 1500 sq. ft. when the agreement contemplated the property admeasuring 2000 sq. ft.; and
Whether the Trial Court ought to have afforded further opportunity to the appellant to complete the cross-examination and lead evidence and whether the First Appellate Court ought to have remanded the matter.”
The case of the plaintiff is that the defendant had purchased the suit property and an adjoining portion, aggregating to 2000 sq. ft., and thereafter entered into an agreement to sell dated 31.12.2009 for a total consideration of Rs.17,80,000/-. The appellant paid Rs.7,00,000/- as earnest money and the balance amount of Rs.10,80,000/- was payable at the time of execution and registration of the sale deed. The agreement contemplated completion of the transaction within 120 days and also required completion of certain formalities relating to measurement and requisite permissions as well as documents. According to the respondent, the appellant failed to obtain the requisite regularisation/clearance under the Maharashtra Gunthewari Development Act, 2001, and therefore, the time for performance was extended. Subsequently, upon the respondent making enquiries, it was found that only 1500 sq. ft. had been approved by the competent authority and a portion of the property was affected by proposed road widening. The respondent consequently called upon the appellant to execute the sale deed in respect of the legally permissible extent upon accepting the proportionate balance consideration. As the appellant failed to do so, the suit for specific performance came to be filed.
Learned counsel for the appellant resisted the suit, contending that the agreement contemplated sale of the entire property ad-measuring 2000 sq. ft. and that the respondent could not subsequently seek enforcement in respect of only 1500 sq. ft. It was further contended that time was not the essence of contract and that there was no obligation upon the appellant to obtain a No Objection Certificate from the Nagpur Improvement Trust prior to execution of the sale deed. According to the facts disclosed, she was always ready and willing to execute the sale deed upon receipt of the balance consideration, and it was the respondent who had failed to perform her part of the contract. It was also contended that she had been deprived of an effective opportunity to defend the suit, as the cross examination of the respondent remained incomplete and P.W.-2 was not cross-examined, the absence being attributed to the negligence of the advocate. On that basis, remand of the matter was sought.
The record shows that the respondent examined herself at Exhibit-20 and also examined P.W.-2. Her affidavit of evidence was filed on 29.09.2011, and an additional affidavit was filed on 28.11.2013. The respondent was partly cross-examined on 11.07.2012, but the cross-examination was not completed. Thereafter, despite opportunities, the appellant did not remain present and the Trial Court closed the respondent’s evidence on 04.01.2014. P.W.-2 was examined on 18.01.2014, but he was also not cross-examined by the appellant. The appellant did not enter the witness box or adduce any oral evidence.
The Trial Court, after considering the material available on record, held that the respondent had established her readiness and willingness to perform her part of the agreement and that the appellant had failed to establish any breach attributable to the respondent. The suit was accordingly decreed on 29.09.2015. The First Appellate Court, upon re-appreciation of the material, affirmed the said findings and dismissed the appeal on 18.04.2019.
The first question is about readiness and willingness of performance of contract. In C.S. Venkatesh v. A.S.C. Murthy, (2020) 3 SCC 280, the Supreme Court has held that continuous readiness and willingness is a condition precedent for grant of specific performance and that the Court has to consider the conduct of the respondent before and after institution of the suit, the surrounding circumstances and the respondent's capacity to make the requisite payment. In U.N. Krishnamurthy v. A.M. Krishnamurthy, (2023) 11 SCC 775, it has been reiterated that mere pleading or assertion is not sufficient and that readiness and willingness must be established by cogent evidence, including, where relevant, availability of funds and capacity to arrange the balance consideration.
In the present matter, the respondent had paid Rs.7,00,000/- as earnest money, had repeatedly called upon the appellant to complete the requisite formalities and furnished the documents necessary for registration and had thereafter instituted the suit seeking enforcement of the agreement.
The appellant, despite asserting in the written statement that she was herself ready and willing to perform the agreement, did not enter the witness box to substantiate that defence. The Courts below, upon appreciation of the evidence and conduct of the parties, have concurrently recorded a finding that the respondent was ready and willing to perform her part of the contract. It was also noted that there was no such demonstration that the said finding is based on no evidence or is contrary to the material on record. Mere absence of a separate documentary statement showing availability of the entire balance consideration, in the facts of the present case, would not by itself render the concurrent finding perverse.
In Kamal Kumar v. Premlata Joshi, (2019) 3 SCC 704, the Supreme Court has held that specific performance is an equitable and discretionary relief and the Court is required to examine, inter alia, the existence of a valid and concluded contract, readiness and willingness of the respondent, performance of the respondent's obligations, the question of hardship and the availability of alternative relief. In the present case, the agreement and payment of earnest money are not seriously disputed. The conduct of the respondent, considered cumulatively, supports the finding recorded by the Courts below. The decision in Sangita Sinha v. Bhawana Bhardwaj, (2025) 11 SCC 98, relied upon by the appellant, turns upon the particular conduct of the purchaser in that case, including encashment of the amount returned by the seller and suppression of the cancellation of the agreement. The said factual circumstances are materially different from the present case, and therefore, the said decision does not warrant interference with the concurrent findings herein.
The second issue relates to the extent of the property. Learned counsel for the appellant contends that the agreement contemplated sale of 2000 sq. ft., whereas the respondent subsequently sought conveyance of only 1500 sq. ft. It is not in dispute that the respondent's subsequent demand was made after she came to know that only 1500 sq. ft. had been approved by the competent authority and that a portion of the property was affected by proposed road widening. The respondent did not abandon the transaction; rather, she sought completion of the transaction to the extent legally permissible. Specific performance cannot be directed in respect of an interest which cannot lawfully be conveyed. The Courts below have considered the circumstances and have found that the appellant had not completed the formalities necessary for lawful completion of the transaction.
In Silvey & Ors. v. Arun Varghese & Anr., AIR 2008 SC 1568, the Supreme Court recognised that where the purchaser remains ready and willing to perform her obligations and the vendor fails to fulfil obligations necessary for completion of the transaction, the purchaser cannot be deprived of appropriate relief on account of such failure. The principle stated in Shriram Gangaram Gupta v. M/s Veekay Builders Associates & Ors., 2010 (4) ALL MR 186, also supports enforcement of an agreement relating to immovable property where the requirements for specific performance are established.
The third question relates to remand of the matter, as the appellant was not afforded an opportunity to complete the cross-examination and to lead evidence. The record demonstrates that the appellant had filed her written statement and had participated in the proceedings. The respondent's cross-examination had commenced but was not completed. Thereafter, despite opportunities, the appellant failed to remain present. P.W.-2 was examined, but was not cross-examined, and the appellant did not lead her own evidence. The right of cross-examination is undoubtedly an important procedural safeguard; however, such right has to be exercised within the opportunities granted by the Court. A party cannot indefinitely keep the trial pending by failing to avail such opportunities and thereafter seek remand as a matter of course.
The contention that the lapse was attributable to the advocate also cannot, in the facts of the present case, furnish a sufficient ground for remand. The appellant has not demonstrated that she was wholly denied an opportunity of defending the suit. The First Appellate Court was required to consider the statutory requirements of Order XLI Rules 23 and 23-A of the Code of Civil Procedure before directing a remand. Remand is warranted only where the conditions prescribed therein are satisfied, and a retrial is necessary for proper adjudication. The decision in Sarjabai w/o Narayanrao Manmode v. Dhanraj s/o Pandurang Manmode, 2017 (6) Mh.L.J. 869, relied upon by the appellant, has to be considered in its factual context and does not mandate remand in every case where a party has failed to avail the opportunity granted during trial.
Concurrent findings of fact can be interfered with only where the findings are shown to be perverse, based on no evidence, contrary to material evidence or otherwise vitiated by an error of law. In the present case, both the Courts below have considered the pleadings, agreement, notices and evidence available on record. The appellant has not established that the findings regarding readiness and willingness or the appellant's failure to complete the requisite formalities are such that no reasonable judicial forum could have arrived at them.
The defendant has further sought to attribute the failure to properly contest the proceedings to negligence on the part of the advocate. The Supreme Court in Rafiq v. Munshilal, (1981) 2 SCC 788, recognised that a litigant should not ordinarily be made to suffer for a default attributable to his advocate where the litigant himself has acted bonafide and has done what could reasonably be expected of him. The principle proceeds on the consideration that procedural rules are intended to advance justice and should not ordinarily operate to defeat a genuine litigant merely because of an inadvertent default of counsel.
However, the principle in Rafiq does not mean that every omission or negligence of an advocate automatically entitles a party to reopening or remand. In Salil Dutta v. T.M. & M.C. Private Ltd., (1993) 2 SCC 185, the Supreme Court held that the relationship between a litigant and advocate is one of principal and agent and that there cannot be an absolute proposition that a litigant can always avoid the consequences of the acts or omissions of his advocate. Recently, the Hon'ble Apex Court has observed that by considering the judgment of Salil Dutta (supra) held that there is no such absolute rule that a party can disown its advocate at any time and seek relief. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted. Therefore, in the present case, the plea of advocate negligence cannot be considered in isolation. The Court would have to examine whether the defendant was personally diligent, whether the defendant was aware of the proceedings, whether the defendant was represented on the relevant dates, whether applications for adjournment or recall were filed, and whether the defendant took any steps immediately after becoming aware of the alleged default.
On a cumulative consideration of the material on record and the legal principles discussed hereinabove, this Court finds that the respondent has established the essential requirements for grant of specific performance. The finding regarding readiness and willingness is supported by the respondent's conduct and the evidence available on record. The appellant, having failed to establish her own case by entering the witness box or leading evidence, cannot successfully challenge the concurrent findings merely by asserting that the respondent had not produced a separate document evidencing availability of the balance consideration. The demand for execution of the sale deed in respect of 1500 sq. ft. was also made in the context of the legal status and approval of the property and cannot, in the circumstances of the case, be treated as abandonment of the agreement.
Consequently, the substantial questions of law framed herein are answered against the appellants. The judgment and decree dated 18.04.2019 passed by the learned District Judge-5, Nagpur in Regular Civil Appeal No.652 of 2016 and the judgment and decree dated 29.09.2015 passed by the learned Civil Judge, Senior Division, Nagpur in Regular Civil Suit No.1419 of 2010 do not call for interference. The decree for specific performance shall, however, operate only to the extent of the property which is legally permissible and capable of valid conveyance, and subject to compliance with all statutory requirements and payment of the balance consideration as directed by the decree.
Accordingly, the second appeal stands dismissed. The judgment and decree passed by the Courts below are confirmed. In the facts and circumstances of the case, there shall be no order as to costs. Pending application(s), if any, stand(s) disposed of.