M/S. Pooja Crafted Homes Pvt.Ltd vs Mr. Riazuddin Ahmed on 5 May, 2026

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Telangana High Court

M/S. Pooja Crafted Homes Pvt.Ltd vs Mr. Riazuddin Ahmed on 5 May, 2026

Bench: K. Lakshman

 IN THE HIGH COURT FOR THE STATE OF TELANGANA
                 AT: HYDERABAD
         HON'BLE SRI JUSTICE K. LAKSHMAN
                       AND
      HON'BLE JUSTICE B.R.MADHUSUDHAN RAO

                  APPEAL SUIT No.90 OF 2022

                          Date:05-05-2026


Between:

M/s Pooja Crafted Homes Pvt. Ltd.                      ... Appellant

                                    and

Mr Riazuddin Ahmed                                    ... Respondent

This Court passed the following:-

                          JUDGEMENT

Heard Sri V. Ravinder Rao, learned senior counsel representing Sri Atla Abhinandhan Reddy, learned counsel for the appellant and Sri M.V.Suresh Kumar, learned Senior Counsel representing Sri Naren Sai Chiramdasu, learned counsel for the respondent.

2. This appeal is filed under Section 96 of CPC assailing the judgment and decree dated 09.12.2021 passed in O.S. No.413 of 2015 by the learned Special Sessions Judge for Trial of Cases Under SC & 2 ST (POA) Act - cum - VII Additional District Judge, Ranga Reddy District at L.B.Nagar.

(for sake of convenience, the parties hereinafter are referred to as plaintiff and defendant)

3. The appellant - plaintiff filed a suit in O.S.413 of 2015 against the respondent herein - defendant for specific performance of agreement of sale dated 01.08.2011 and for delivery of possession of the suit schedule property i.e. agricultural land admeasuring Ac.2.33 guntas in Sy.No.152/AA, situated at Kismathpur village, Rajendra Nagar, Ranga Reddy District.

4. Plaintiff filed the aforesaid suit contending:-

i. The plaintiff is a company.

ii. The defendant is the absolute owner and possessor of the suit schedule property having purchased from Md. Muktedan Khan S/o Late Md. Mustaffa Khan under a registered sale deed bearing No.3622/1988 dated 15.05.1987.

iii. The defendant offered to sell the suit schedule property to the plaintiff for sale consideration of Rs. 90,00,000/- per acre subject to the measurements and other terms and conditions. 3 iv. The plaintiff and the defendant entered into an agreement of sale on 01.08.2011 on specific terms and conditions mentioned therein, on payment of an advance of Rs.25,00,000/- vide two cheques bearing No.567772 dated 04.08.2011 for Rs. 10,00,000/- and a cheque No. 567773 dated 20.08.2011 for Rs.15,00,000/- drawn on HDFC Bank, Himayathnagar Branch. The defendant had received, acknowledged the same and encashed the said cheques.

v. As per the Clause No.4 of the agreement of sale, the plaintiff agreed to pay the balance sale consideration within three months from the date of the agreement of sale basing on the measurements of the land physically, and the defendant agreed to execute and register the sale deed in respect of the suit schedule property.

vi. As per clause No.6 of the agreement, the balance sale consideration amount is to be paid for finalizing the sale deed only on the demarcation of boundaries and making out clear marketable title by the defendant.

vii. As per Clause No.10 of the agreement of sale, the plaintiff got published a public notice on 04.12.2011 in two local daily newspapers in 'Eenadu' and 'Siasat'.

viii. Mr. Tausif Kureshi got published reply notice on 27.11.2012 in 'Siasat' Delhi, raising serious dispute with regard to the property.

ix. As per Clause No.10 of the agreement, the plaintiff demanded the defendant to rectify the said objection so as to finalize the same transaction.

x. The plaintiff came to know that the defendant and said Tausif Kureshi are close relations and in collusion with each other, they brought the said objection with an intention to postpone the execution.

xi. The plaintiff got issued a letter dated 02.02.2015 to the defendant stating that it is ready and willing to perform its part of contract, requested him to clear the objections raised by Mr. Tausif Kureshi and to execute register sale deed by receiving the balance sale consideration. But the defendant postponed the same saying that a suit in O.S.No.533 of 2013 filed by said Mr. 5 Tausif Kureshi, his brother-in-law is pending and the defendant has to clear the said litigation.

xii. On 21.12.2015, the plaintiff demanded the defendant for execution and registration of the sale deed but the defendant did not respond.

xiii. The plaintiff realized that the defendant with mala fide intention to defraud him, entered into the agreement of sale with the third parties.

xiv. On 04.03.2015, the Director (operations) of the plaintiff company approached the defendant and asked to receive the balance sale consideration and to execute and register sale deed in its favour but the defendant did not respond. xv. On 05.03.2015, the plaintiff received a letter along with three cheques dated 05.03.2015 for an amount of Rs. 25,00,000/- in total from the defendant, but the cheques were returned to the plaintiff through courier on 27.04.2015 stating that the time is not essence of contract.

xvi. The defendant in collusion with his brother in law, Mr. Tausif Kureshi, with ulterior motive created third party interest over 6 the suit schedule property for a higher price and thus defrauded the plaintiff.

xvii. Therefore, the plaintiff filed the aforesaid suit seeking specific performance of agreement of sale dated 01.08.2011.

5. The defendant filed his written statement contending as follows:-

i. As per Clause No.4 of the agreement of sale, the plaintiff has to pay the balance sale consideration within three months from the date of the said agreement of sale and in spite of the repeated requests, the plaintiff failed to pay the balance sale consideration.

ii. After expiry of the three months, the plaintiff raised a new issue stating that there is a civil suit bearing No. OS.No.317 of 2012 pending on the file of I Addl. District & Sessions Judge, Ranga Reddy District filed by one Tausif Kureshi. In fact, the said suit is speculative and benami in the name of the defendant. iii. In compliance of Clause No.14 of the said agreement, the defendant got issued a legal notice dated 03.09.2014 requesting the plaintiff to pay the balance sale consideration within 30 days 7 from the date of the receipt of the notice, otherwise, it stand cancelled.

iv. The plaintiff managed the postal staff to get the said legal notice returned. As per Clause No. 27 of the General Clauses Act, the notice sent to the addresses available is sufficient service so that the agreement stands cancelled.

v. The defendant issued legal notice dated 18.10.2014 along with the advance sale consideration to the plaintiff to the same address and cancelled the said agreement of sale but the same was returned.

vi. Thereafter, when the defendant personally requested the plaintiff to collect the advance sale consideration but the plaintiff demanded to pay exorbitant amount of Rs. 5 crores for which the defendant expressed his inability to pay such huge amount and the plaintiff did not come forward to collect the advance amount.

vii. The defendant got issued another notice dated 05.12.2014 cancelling the agreement of sale but the same was also returned. Subsequently, after lapse of more than three years with all false allegations, the plaintiff issued the notice and the defendant got 8 issued reply on 05.03.2015 by enclosing the three cheques for Rs.25,00,000/- and the same was received by the plaintiff. viii. On 27.04.2015, the plaintiff returned the cheques and filed the present suit. Thus the plaintiff failed to pay the balance sale consideration within three months from the date of agreement i.e. 01.08.2011 as per Clause No.4 and 14 of the agreement of sale. Therefore, the defendant terminated the agreement of sale and entered into a registered development agreement - cum- General Power of Attorney vide document No.8015 of 2014 dated 18.11.2014 with M/s Keerthi Estates Private Limited and the developing process is underway.

 ix.    The suit is barred by limitation.

  x.    There is no cause of action.

6. With the said submissions, the defendant sought to dismiss the suit.

7. Basing on the aforesaid pleadings, the trial Court framed the following issues in O.S.No.413 of 2015:-

1. Whether the plaintiff is entitled for executing the registered sale deed in terms of agreement of sale dated 01.08.2011 as prayed?

2. Whether conduct of plaintiff disentitle him, the equitable relief of specific performance?

3. Whether the suit is barred by limitation?

4. To what relief?

8. During the course of trial, the plaintiff examined its Director as P.W.1, G.V.Arjun Goud as P.W.2 and PVL Narsimha Reddy as P.W.3 the attestors to the agreement of sale dated 01.08.2011, and got marked Exs.A.1 to A.10. The defendant examined himself as D.W.1, Mr. Nawab Mir Muzaffar Ali Khan as D.W.2 and got marked Exs.B.1 to B.16.

9. On consideration of the evidence both oral and documentary, learned trial Court dismissed the suit holding that the plaintiff failed to pay the balance sale consideration though it pleaded that it is ready and willing to perform its part of contract, therefore, it is not entitled for the relief of specific performance of the agreement as per Section 16 (c) of the Specific Relief Act,1963.

10. Aggrieved by the said judgment and decree, the plaintiff filed the present appeal contending:-

i. The execution of sale deed and payment of balance sale consideration is subject to the defendant's obligation of obtaining the rectification deed in respect of the boundaries of 10 the suit schedule property as per clause No.6 of the agreement of sale.

ii. It is the duty of the defendant to rectify any objections with regard to the title of the suit schedule property and the successive payment of balance sale consideration will only arise after a clear marketable title has been made out. iii. As per clause No.10 of the agreement of sale, grace period will be provided for plaintiff for payment of balance of sale consideration.

iv. Article 54 of the Limitation Act, 1963, is only applicable when there is specific time period provided in the agreement and in cases where there is no specific time, time is not the essence of the contract. But as seen from the present case, the limitation period will only start from the date of performance of the contract is refused.

v. The trial Court erred in holding that the suit is bad for non-

joinder of necessary parties as the petition filed by the plaintiff to implead M/s Keerthi Estates Private Limited as a party to the proceedings was dismissed by the trial Court. 11 vi. The trial Court erred in observing that Mr. Tausif Qureshi, who raised objection to the public notice published by the plaintiff, is the necessary party to the suit proceedings as independent claim made by the third party claiming rival title in respect of the suit schedule property cannot be decided. The burden lies on the defendant to clear the title and execute and register sale deed.

vii. The trial Court failed to consider the readiness and willingness of the plaintiff to pay the balance sale consideration and obtain register sale deed. It is the defendant who played the dilatory tactics in collusion with his brother-in-law, Mr. Tausif Qureshi, which clearly establishes the conduct of the respondent. viii. The trial Court failed to consider that the time is not the essence of the contract as per Clause No.10 of the agreement of sale. ix. When the Ex.B.2 notice dated 03.09.2014, Ex.B.5 notice dated 18.10.2014 and Ex.B.7 notice dated 05.12.2014 were not served on the plaintiff, the agreement will remain in force and subsisting and it cannot be cancelled until the obligations on the part of the defendant are not complied with. 12

x. Clauses Nos.4,10,14 of Ex.A.1 agreement of sale have to be read together in conjunction, but not in isolation.

11. Without considering the said aspects, learned trial Court dismissed the suit erroneously.

12.With the said contentions, plaintiff preferred the present appeal and sought to set aside the impugned judgment and decree.

13. Whereas, respondent contended that on consideration of evidence, both oral and documentary, conduct, intention of the parties, terms of contract, surrounding circumstances only, learned trial Court dismissed the suit. There is no error.

14. We have heard learned Senior Counsel appearing for parties extensively. We gave our thoughtful consideration of the same.

15. Sri V. Ravinder Rao, learned senior counsel representing Sri Atla Abhinandhan Reddy, learned counsel for the appellant placed reliance on the principle laid down by Apex Court in Chand Rani vs. Kamal Rani 1, Balasaheb Dayandeo Naik (died) vs. Appasaheb Dattairaya Pawar2, Saradamani Kandappan vs. S.Rajalakshmi 3, Panchanan Dhara vs. Monuatha Nathmaity 4, Sughar Singh vs. 1 (1993) 1 SCC 519 2 (2008) 4 SCC 464 3 (2011) 12 SCC 18 4 (2006) 5 SCC 340 13 Hari Singh5, Basavaraj vs Padmavathi 6, Nathulal vs. Phoolchand7, Annamalai vs. Vasanthi 8, K.S.Manjunath vs. Moorasavirappa9, Mrs.Chandee Widya Vati vs. Dr.L.Latial 10, Rojasara Ramjibhai vs. Jani Narottamdas 11, Ram Pyare vs. Ram Narain 12 and Nirmala Anand vs. Advent Corporation13, Zarina Siddique vs. A.Ramalingam14, Silvey vs. Arun Varghese15, Madina Begum vs. Shiv Murthy Prasad Pandey 16, Ahmadsahab Abdul Mulla died per LRs vs. Bibijan17, Syed Dastagir vs. T.R.Gopalkrishna Setty18 and Azhar Sultana vs. B.Rajamani 19

16. Sri M.V.Suresh Kumar, learned Senior Counsel representing Sri Naren Sai Chiramdasu, learned counsel for the respondent, placed reliance on the principle laid down by Apex Court in I.S.Sikandar (dead) by L.Rs. vs. K.Subramani 20, Mohinder 5 (2021) 17 SCC 705 6 (2023) 4 SCC 239 7 1969 (3) SCC 120 8 2025 SCC Online SC 2300 9 2025 SCC Online SC 2378 10 AIR 1964 SC 978 11 1986 (3) SCC 300 12 1985 (2) SCC 162 13 2002 (5) SCC 481 14 (2015) 1 SCC 705 15 (2008) 11 SCC 45 16 (2008) 11 SCC 322 17 (2009) 5 SCC 462 18 (1999) 6 SCC 337 19 (2009) 17 SCC 27 20 (2013) 15 SCC 27 14 Kaur vs. Sant Paul Singh21, C.C.Alavi Haji vs. Palapetty Muhammed 22, U.N.Krishnamurthy (since deceased) through Legal Representatives23, and Shenbagam vs. KK Rathinavel 24.

17. In the light of the said submissions, the points that arise for determination of this Court are as follows:-

1. Whether the time was essence of the contract under the agreement of sale dated 01.08.2011 and whether the failure of the plaintiff to perform the obligations casted upon it under the subject agreement of sale, justified the defendant in refusing the performance of contract?

2. Whether the plaintiff has established continuous readiness and willingness to perform its part of contract in terms of Section 16 (c) of the Specific Relief Act, 1963?

3. Whether the agreement of sale dated 01.08.2011 was validly cancelled by the defendant on the ground of non-performance of the obligations casted upon the plaintiff?

4. Is it compulsory to the plaintiff to seek declaration declaring the Ex.B.5 cancellation notice, as illegal?

5. Whether Ex.B.5 cancellation notice sent to the plaintiff was validly served on the plaintiff?

6. Whether the contract under Ex.A.1 agreement of sale, dated 01.082011 is enforceable in view of the subsequent developments subsequent to the execution of the agreement of sale dated 01.08.2011?

(2019) 9 SCC 358 22 (2007) 6 SCC 555 23 (2023) 11 SCC 775 24 2022 SCC OnLine SC 71 15

7. Whether the suit is barred by limitation?

8. Whether the plaintiff is entitled for equitable and discretionary relief of specific performance of agreement of sale dated 01.08.2011?

Point No.1:

Whether the time was essence of the contract under the agreement of sale dated 01.08.2011 and whether the failure of the plaintiff to perform the obligations casted upon it under the subject agreement of sale, justified the defendant in refusing the performance of contract?

18. There is no dispute with regard to execution of Ex.A.1 agreement of sale dated 01.08.2011 by the plaintiff and defendant for purchase of suit schedule property on the specific terms and conditions agreed thereon. Clause Nos.1 to 11 and 14 of the said agreement of sale are relevant and the same are extracted below:

1. That in pursuance to the above said agreement, the vendor hereby agree to sell and the purchaser hereby agreed to purchase the schedule property at Rs.90,00,000/- (Rupess Ninety Lakhs only) Per acre and the total sale consideration shall be computed as per the measurement of the total extent of land agreed to purchase which is subject to survey and boundary demarcation and also after making out a perfect title over the scheduled property.

2. That the purchaser accordingly paid an amount of Rs.25,00,000/-(Rupees Twenty Five Lakhs only) Vide Cheque No.567772, Dt.04-08-2011 for an amount of Rs. 10,00,000/- (Rupees Ten Lakhs only) and vide another Cheque No. 567773 Dt.20-08-2011 for an amount of Rs.15,00,000/-(Rupees Fifteen Lakhs only), both cheques are drawn on HDFC Bank, Himayathnagar, Hyderabad, on this day of this agreement, as advance and 16 towards part of total sale consideration, the receipt whereof the Vendor do hereby accept, acknowledge and confirm the same.

3. That the purchaser is authorized to get survey of the land and get demarcate the boundaries and arrive the actual extent of land with official surveyor thereafter to proceed further sale transaction.

4. That the purchaser agreed to pay the balance of sale consideration amount of the schedule property basing on the measurements of the physical land within three months from the date of this Agreement and get the sale deed

(s) prepared and the vendor covenants that he shall execute the sale deed(s) and get registered the same in respect of the schedule property.

5. That the vendor herein of the first part above named hereby declare, agree and covenant that he is the absolute and exclusive owner of the scheduled property and has all the authority and powers to sell the same and to receive the sale consideration from the purchaser and there are no other persons or parties interested in the said scheduled property in whatsoever the manner.

6. The parties herein reiterate further that the balance sale consideration shall be paid by the purchaser and for finalizing the Sale Deed only on compliance of the agreed terms herein that the demarcation of boundaries is done and duly intimated with regard to the same to the purchaser.

7. That the vendor hereby declares that the unregistered agreement of sale entered into with M/s TIRTHA (1) PROJECTS (P) LTD., and two others dated 29-06-2011 has been cancelled mutually with no claims whatsoever against each other by refunding the entire amount to TIRTHA (1) Projects Pvt.Ltd and two others by the vendor herein received by him. Further vendor declares and assures that M/s TIRTHA (I) PROJECTS (P) LTD and two others have no objection to sell the scheduled property to the purchasers herein and to evidence that to avoid any future disputes M/S TIRTHA (1) PROJECTS (P) LTD and two others are made witness to this deed and also they shall be witnesses to the sale deed.

8. That the first party hereby declare, agree and covenant that there are no legal impediments whatsoever nor any agreements in respect of schedule property between the vendor and any other third party.

9. The vendor hereby permit the purchaser to enter upon the land to get the same survey and demarcation of the land and fenced.

10. This Agreement is subject to making put of a perfect title of the property and the purchaser is entitled to obtain a legal opinion on the title of the scheduled property and also entitled to get a paper publication / caution notice. The vendor hereby agreed to furnish all the link documents and all 17 other relevant documents to show flow of the title in originals, tax receipts and other connected documents of scheduled property to the Purchaser with in a period of 30 days from the date of this agreement for legal scrutiny by the legal counsel. The vendor do hereby undertake to furnish all the documents called for by the legal counsel of the purchaser for the purpose of scrutiny and verification for rendering a legal opinion on the title of the scheduled property. In case any defect in the title is revealed after scrutiny of the documents or any objections arise from any third parties after the paper publication and the vendor in unmistakable terms agrees and assures that he shall clear and solve all objections and make the title marketable to the satisfaction of the Purchaser herein and accordingly in such eventuality the vendor herein accepts for allowing a grace period for making the final payment and getting the final sale deed (s) registered till the defect is rectified.

11. The vendor assures the purchaser that there are no encumbrances, charges, mortgages, or subsisting agreement (s) of sale, etc., in respect of the schedule property in favour of any person/s except with this purchaser and the vendor assures the purchaser that the schedule property is free from litigations and also assures that the schedule property is not under any acquisition and requisition by the Government or any other agency/cies. The vendor herein undertake to indemnify the purchaser all the loss, damages, and expenses incurred by the purchaser if any, in respect of any claims or disputes arises during the subsistence of this agreement.

14. In the event of the purchaser failed to pay the balance consideration amount within stipulated time as mentioned in the clause no.4, the vendor entitled to issue written demand notice to pay the balance consideration amount and if the purchaser fail to comply the said demand notice also, within 30 day from the receipt of the notice, the agreement shall stand cancelled, subject to the refund of the advance sale consideration to the purchaser which was received by the vendor and also subject to the compliance of the terms and conditions of this agreement between the parties herein.

19. It is not in dispute that the plaintiff has paid an amount of Rs.25,00,000/- under two cheques dated 04.08.2011 towards part sale consideration and the defendant has received and acknowledged the said amount and got issued Ex.A.2 and A.3 paper publications dated 04.082011 in Siasat and Eenadu daily newspapers. Total sale 18 consideration agreed is Rs.2,54,25,000/-. As discussed supra, the plaintiff has paid Rs.25 Lakhs towards advance sale consideration. The balance sale consideration is of Rs.2,29,25,000/-. The time agreed for payment of balance sale consideration is three months from 01.08.2011, the date agreement of sale and it was expired by 31.10.2011. The plaintiff got issued Ex.A.2 paper publication in Siasat daily newspaper and Ex.A.3 in Eanadu Telugu daily newspaper on 04.12.2011 i.e. After expiry of three months time. The defendant had issued Ex.B.2 notice dated 03.09.2014 to the plaintiff demanding payment of balance sale consideration within thirty days from the date of receipt of said notice, failing which Ex.A.1 agreement of sale would stand cancelled. The defendant has also issued Ex.B.5 notice dated 18.10.2014 to the plaintiff stating that the agreement of sale stood cancelled for non-payment of balance sale consideration by the plaintiff within thirty days (30) time as mentioned in Ex.B.2 along with the said notice, the defendant has also enclosed cheques for Rs.25 Lakhs, towards part sale consideration received by him and requested the plaintiff to return the original agreement of sale. The plaintiff had issued Ex.A.4 letter dated 02.02.2015 to the defendant with a request to clear the objections raised by third party in response to the Exs.A.2 19 and A3 paper publication dated 04.12.2011 and receive balance sale consideration. The defendant had issued reply dated 05.03.2015 to the plaintiff stating that the agreement was already terminated, the notices along with cheques issued by him to the plaintiff are managed to be returned to the defendant. Vide Ex.A.6 letter dated 27.04.2015, the plaintiff returned the said cheques to the defendant.

20. In the light of the aforesaid fact scenario, as per Ex.A.1 agreement of sale, the following obligations are casted upon the plaintiff:-

i. Get survey of the land, demarcate the boundaries and arrive the actual extent of land with official surveyor thereafter to proceed further sale transaction.

ii. Pay the balance sale consideration amount of the schedule property basing on the land available physically after survey, measurement and making out a perfect title over the suit schedule property within three months from the date of the agreement of sale. iii. Get the sale deed (s) prepared.

21. The duties casted upon the defendant in terms of Ex.A.1 agreement of sale are:-

i. Permit the plaintiff to enter upon the land to get the same surveyed and demarcation of the boundaries of the subject land. ii. Furnish all the link documents and all other relevant documents to show flow of the title in originals, tax receipts and other connected documents of scheduled property to the plaintiff with in a period of 30 days from the date of this agreement for legal scrutiny by the legal counsel.

iii. Furnish all the documents called for by the legal counsel of the plaintiff for the purpose of scrutiny and verification for rendering a legal opinion on the title of the scheduled property. iv. In case any defect in the title is revealed after scrutiny of the documents or any objections arise from any third parties after the paper publication, the defendant, in unmistakable terms agreed and assured that he shall clear and solve all objections, make the title marketable to the satisfaction of the plaintiff herein. Accordingly, in such eventuality the defendant herein accepted for allowing a grace period for making the final payment and getting the final sale deed (s) registered till the defect is rectified.

THE TERMS AGREED BY BOTH PARTIES:-

i. If the plaintiff fails to pay the balance consideration amount within stipulated time as mentioned in the Clause No.4, the defendant entitled to issue written demand notice to pay the balance consideration amount and if the plaintiff fail to comply with the said demand notice also, within 30 days from the receipt of the notice, the agreement shall stand cancelled, subject to the refund of the advance sale consideration to the plaintiff which was received by the defendant and also subject to the compliance of the terms and conditions of the Ex.A.1 agreement of sale.

22. It is the specific contention of the plaintiff that it got issued Exs.A.2 and A.3 paper publications dated 04.12.2011 in Siasat and Eenadu daily newspapers and in response to the same, Mr. Tousif Qureshi raised objection with regard to the suit schedule property and therefore, time is not the essence of the contract. It is also its contention that it has demanded the defendant to rectify the objections so as to finalize the sale consideration. But the defendant did not take any action for rectification of the same and the matter is being protracted in civil Courts.

23. Whereas in the written statement, the defendant admitted execution of Ex.A.1 agreement of sale including the terms. He contended that in spite of repeated requests, the plaintiff failed to pay the balance sale consideration within the three months time stipulated in Ex.A.1 and raised a new issue with regard to a civil suit in O.S.No.317 of 2012 pending on the file of learned I Additional District and Sessions Judge, Ranga Reddy, filed by Mr. Tausif Qureshi. In fact, the said suit is speculative. The defendant got issued Ex.B.2 legal notice, dated 03.09.2014 through registered post with acknowledgment due calling upon the plaintiff to pay the balance sale consideration within thirty days from the date of receipt of the said notice, otherwise, it stand cancelled. According to the defendant, the plaintiff managed the postal authorities and got the same returned, though the same was sent to the address mentioned in Ex.A.1 agreement of sale. The defendant also issued Ex.B.5 notice dated 18.10.2014 informing the plaintiff that the agreement of sale is cancelled for non-payment of balance sale consideration within the thirty days from the date of receipt of Ex.B.2 notice and also enclosed cheques towards repayment of the advance sale consideration of Rs.25 Lakhs. The defendant personally spoke to the plaintiff and requested to 23 collect the advance sale consideration, but the plaintiff demanded exorbitant amount of Rs.5 Crores from the defendant, for which the defendant expressed his inability to pay such a huge amount, as such the plaintiff did not come forward to collect the advance sale consideration. Therefore, the defendant has issued Ex.B.9 notice dated 05.03.2015 to the defendant by enclosing three cheques for Rs.25 Lakhs. The same was received by the plaintiff, but vide Ex.A.6 letter, the plaintiff returned the said cheques. Thus, the plaintiff failed to pay the balance sale consideration within the stipulated time of three months and within one month from the date of receipt of Ex.B.2 notice and failed to perform obligations casted upon it under Ex.A.1 agreement of sale.

24. As discussed supra, the plaintiff agreed to pay the balance sale consideration within three months from the date of Ex.A.1 agreement of sale dated 01.08.2011 and the plaintiff also agreed to get the suit schedule property surveyed and demarcate the boundaries through official surveyor. The said period of three months was expired on 31.10.2011, but it did not do so within the said period. The plaintiff has issued Ex.A.2 and A.3 paper publications in Siasat and Eanadu daily newspapers on 04.12.2011 informing the general public with 24 regard to entering Ex.A.1 agreement of sale with the defendant. Though three months time is specified in Ex.A.1 agreement of sale, plaintiff got issued Ex.A2, A.3 notices only on 04.122011 i.e. after expiry of three months period. Defendant was also silent for about three years till issuance of Ex.B.2 notice dated 03.09.2014 issued by the defendant.

25. According to the plaintiff, it has issued Ex.A.4 notice, dated 02.02.2015 to the defendant to execute register sale deed by receiving the balance sale consideration by clearing the objections raised by Mr. Tausif Qureshi, immediately. In Ex.A.4 the plaintiff had informed the defendant that pursuant to Exs.A.2 and A.3 publications, it has received serious objections from third parties disputing the title of the defendant over the suit schedule property by way of publishing notice on 27.12.2011 in Urdu newspaper. When the said objections were brought to the notice of the defendant, he has assured that the said objections arose in view of the misunderstandings between the defendant and his brother-in-law Mr. Tousif Qureshi, who got issued objections to the Ex.A.2 and A.3 paper publications and publication in Urdu daily newspaper. The defendant further assured that he would get clearance of the said objections and obtain consent of the objector to 25 the satisfaction of the plaintiff and execute sale deed, but the defendant failed to clear the said objections.

26. Thus, plaintiff was also silent for about three and half years. Plaintiff did not mention the date on which it received the said objections and the date on which it was informed to the defendant.

27. However, the defendant has issued Ex.A.5 reply dated

05..03.2015 to the said notice informing the plaintiff that the litigation created by his brother-in-law Mr. Tausif Qureshi, is only a speculative and baseless. He alone has perfect and marketable title over the suit schedule property. There is no impediment or such order passed by any court of law restraining the defendant from alienating the said land in favour of the plaintiff till date. Despite the said facts, the plaintiff has not paid the balance sale consideration within stipulated period. Under the guise of the said litigation, the plaintiff delayed the payment of balance sale consideration. Therefore, he has already terminated the agreement of sale by issuing valid notices enclosing cheques towards cancellation of the agreement of sale to the address mentioned in the sale agreement of sale. The plaintiff has managed to return the said notices.

28. The plaintiff has addressed letter dated 02.02.2015 by giving its office address. Therefore, Ex.A.4 notice has no bearing. The defendant has also enclosed three cheques for an amount of Rs.25,00,000/- along with Ex.A.5 reply notice towards refund of advance of sale consideration received by him. Vide ExA.6 letter dated 27.04.2015, the plaintiff returned the said cheques denying the allegations made by the defendant in Ex.A.5 reply. However, the plaintiff requested the defendant to settle the dispute between the defendant and his brother -in-law at the earliest and then execute sale deed in favour of the company without delay.

29. Thus, in Ex.A.4 and A.6, the plaintiff did not mention with regard to date on which it came to know about the litigation created by Mr. Tausif Qureshi. It has stated only with regard to the notices published by Mr. Tausif Qureshi, on 27.12.2011 in Urdu daily newspaper. There is no mention with regard to the date of knowledge of the said litigation and also the date on which it has informed the defendant to clear the said litigation.

30. As discussed supra, three months period agreed by the plaintiff and defendant for completion of the transactions under Ex.A.1 27 was expired on 31.11.2011 itself. Till 02.02.2015, there is no response from the plaintiff. For the first time, plaintiff demanded the defendant for rectification of boundaries by issuing Ex.A.4 notice dated 02.02.2025. The defendant has specifically pleaded the same in paragraph No.4 of the written statement.

31. During cross-examination, P.W.1 categorically admitted that for the first time, after four years, they have addressed Ex.A.2 letter to the defendant asking him to clear litigation. He has not stated in the plaint that the defendant has to obtain rectification deed. Under Ex.A.4 and A.6, the plaintiff did not mention with regard to performing of its obligations casted under Ex.A.1 agreement of sale. As per Ex.A.1 agreement of sale, the plaintiff agreed to get the suit scheduled property surveyed by the official surveyor, demarcate the boundaries and then pay the balance sale consideration as per the land available physically. The plaintiff never informed the defendant that in view of objections raised by Mr. Tausif Qureshi, by way of publishing notice dated 27.12.2011 in Urdu daily newspaper and also that it was not in position to get the suit schedule property surveyed through official surveyor and demarcate the same with boundaries. There was silence on the part of the plaintiff with regard to the said aspects. 28

32.It is apt to note that though three months period agreed under the Ex.A.1 agreement of sale for payment of balance sale consideration was expired on 31.10.2011, the plaintiff got issued Ex.A.2 and A.3 paper publications only on 04.12.2011 i.e. after expiry of the aforesaid three months period. There is no explanation from the plaintiff for the said delay.

33. It is apt to note that during cross-examination, P.W.1 - Director of the plaintiff categorically admitted that the plaintiff has issued Ex.A.2 and A.3 publications after expiry of three months time stipulated in Ex.A.1 agreement of sale. However, he tried to explain the same stating that the defendant requested the plaintiff to wait for some time for publication as they had some family function and they would not be available, so it could not be effected. They were asked to issue paper publication as and when the defendant instructs them. He has not filed any document to show that the defendant has instructed him to effect the paper publication only on 04.12.2011. It has not stated the same in the above referred correspondence. For the first time, D.W.1 has stated so in his evidence. Plaintiff failed to plead the said aspect in the plaint. Therefore, the same are improvements in the deposition.

34. P.W.1 further admitted that in reply notice, Mr. Tausif Qureshi, stated that he has purchased the same in the name of the defendant i.e. his brother-in-law with his own funds. GPA given to him by the defendant was also cancelled. The plaintiff did not issue any notice to Mr. Tausif Qureshi, for production of such documents in respect of the suit schedule property for verification of the same. When contacted, Mr. Tausif Qureshi, replied that it is not necessary for him to furnish any copies. However, the plaintiff did not plead the same in the plaint and stated in the above referred correspondence. The same are improvements.

35. It is also apt to note that P.W.1 further admitted during cross-examination that the defendant and Mr. Tausif Qureshi, are not in talking terms and he came to know the same after reply notice. He has further admitted that the plaintiff has not issued any notice to the defendant expressing its readiness and willingness to pay the balance sale consideration from the date of expiry of three months time stipulated under Ex.A.1 agreement of sale till Ex.A.4 letter dated 02.02.2015 issued by the plaintiff. Therefore, the plaintiff cannot contend that time is not essence of the contract and that the defendant 30 failed to perform the obligations casted upon him under Ex.A.1 agreement of sale.

36. It is apt to note that in respect of the immovable property, time is not the essence of contract. In Chand Rani (supra), the Apex Court held that although time is ordinarily not the essence in contracts relating to immovable property, the Court must examine the following conditions:-

i. Express terms of the contract, ii. Nature of property, and iii. Surrounding circumstances.

It was further held that to determine whether performance within the stipulated time was intended, the Court further held that where the conduct of the purchaser demonstrates lack of readiness and willingness to perform contractual obligations, the decree for specific performance cannot be granted.

37. Relevant paragraphs are extracted below:-

25. From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract.

Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:

1. From the express terms of the contract;

2. from the nature of the property; and 31

3. from the surrounding circumstances, for example:

the object of making the contract.

29. The analysis of evidence would also point out that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. In cross-examination it was deposed that since income tax clearance certificate had not been obtained the sum of Rs 98,000 was not paid. Unless the property was redeemed the payment would not be made. If this was the attitude it is clear that the plaintiff was insisting upon delivery of possession as a condition precedent for making this payment. The income tax certificate was necessary only for completion of sale. We are unable to see how these obligations on the part of the defendant could be insisted upon for payment of Rs 98,000.

Therefore, we conclude that though as a general proposition of law time is not the essence of the contract in the case of a sale of immovable property yet the parties intended to make time as the essence under clause (1) of the suit agreement. From this point of view, we are unable to see how the case in Nathulal [(1969) 3 SCC 120 : (1970) 2 SCR 854] could have any application to the facts of this case.

38. It was further held that normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract.

39. In Saradamani Kandappan (supra), the Apex Court while examining the doctrine that time is generally not the essence in contracts relating to immovable property, clarified that such a principle cannot be applied mechanically in modern commercial realities. The Court observed that although earlier precedents treated time stipulations in property contracts as merely indicative, the 32 significant escalation in property values and changing economic circumstances require courts to give due significance to the time stipulations agreed between the parties. Where the contract clearly prescribes specific dates for payment of consideration and provides consequences for default, such stipulations may demonstrate the intention of the parties to treat time as the essence of the contract. In such circumstances, failure to adhere to the agreed schedule of payment may justify termination of the agreement and disentitle the purchaser from seeking the equitable relief of specific performance.

40. In Padmakumari and others v. Dasayyan and others 25, the Apex Court, emphasized that where the agreement of sale stipulates a specific period for payment of the balance consideration, failure on the part of the purchaser to comply with such stipulation assumes significant legal importance in determining entitlement to specific performance. The Court held that when the purchaser does not pay the balance consideration within the agreed period and no acceptable explanation is offered for such default, the conduct of the purchaser clearly indicates lack of readiness and willingness to perform the essential terms of the contract. The Court further observed 25 (2015) 8 SCC 695 33 that courts must carefully examine the contractual terms and surrounding circumstances and cannot ignore such material aspects while granting the equitable relief of specific performance. Accordingly, non-compliance with the stipulated time for payment of consideration may disentitle the purchaser from obtaining the relief sought.

41. In I.S.Sikandar (Dead) by L.Rs.(supra), the Apex court held that where the plaintiff fails to perform his obligations within the stipulated period and the agreement stands terminated in accordance with its terms, the plaintiff cannot subsequently seek specific performance of such terminated agreement. The Court further reiterated that the plaintiff must establish continuous readiness and willingness to perform the contract as mandated under Section 16(c) of the Specific Relief Act.

42. In Saradamani Kandappan (supra), the Supreme Court held that the determination as to whether time is the essence of the contract must still depend upon the intention of the parties as reflected in the terms of the agreement and the conduct of the parties. 34

43. In K.R. Suresh vs. R.Poornima 26, the Apex court held that "whether time is of the essence in a contract", has to be culled out from the reading of the entire contract as well as the surrounding circumstances. Merely having an explicit clause may not be sufficient to make time the essence of the contract.

44. In Indira Kaur vs. Sheo Lal Kapoor27, the Apex Court held that in transactions of sale of immovable properties, time is not the essence of the contract. In the case of immovable property, there is no presumption as to time being the essence of the contract.

45. In the light of the aforesaid principle, coming to the present case, as discussed supra, there was absolute silence on the part of the plaintiff with regard to the obligations casted upon it i.e. getting the suit schedule property surveyed through official surveyor, demarcate it with the boundaries and pay balance sale consideration as per the land available physically within three months time. Admittedly, the plaintiff had issued Ex.A.2 and A.3 paper publications only on 04.12.2011. i.e. after expiry of the three months time. There is no mention with regard to the date on which it received a reply issued by 26 2025 SCC OnLine SC 1014 27 (1988) 2 SCC 488 35 Mr. Tausif Qureshi, in Urdu newspaper on 27.12.2011. There is no mention with regard to the date of the knowledge of the said notice by the plaintiff and bringing the said fact to the notice of the defendant.

46. However, it is also apt to note that the said reply of Mr. Tausif Qureshi was on 27.12.2011 i.e. after expiry of the aforesaid three months period as agreed by the plaintiff to pay the balance sale consideration to the defendant.

47. As discussed supra, at the cost of repetition, there is no explanation, much less, plausible explanation from the plaintiff with regard to issuance of Ex.A.2 and A.3 paper publications, getting the land surveyed and demarcating the boundaries within agreed timelines.

48. As rightly contended by the learned Senior counsel appearing for the plaintiff, clauses Nos.3, 4 and 14 of Ex.A.1 have to be read together. As discussed supra, plaintiff failed to perform obligations casted upon it in terms of Ex.A.1 agreement of sale within the agreed terms.

49. As discussed supra, the plaintiff tried to explain that it is the defendant which requested the plaintiff to wait for issuance of public notice. But the same was not pleaded in the plaint by it and in the 36 earlier correspondence. Therefore, the plaintiff cannot improve its version during its evidence. Thus, the plaintiff cannot plead that time is not the essence of contract.

50. In the light of aforesaid discussion, this point is answered against the plaintiff and in favour of the defendant. Point No.2:

Whether the plaintiff has established continuous readiness and willingness to perform its part of contract in terms of Section 16 (c) of the Specific Relief Act, 1963?

51. As discussed supra, the plaintiff agreed to pay the balance sale consideration within three months from the date of the said Ex.A.1 agreement of sale, dated 01.08.2011. It has issued Ex.A.2 and A.3 paper publications in Siasat and Eenadu daily newspapers only on 04.12.2011 i.e. after expiry of the aforesaid three months agreed period. Thereafter, there was silence on the part of the plaintiff. It has issued Ex.A.2 remainder only on 02.02.2015. Even in Ex.A.2, there is no mention that it is ready and willing at all times to perform its part of obligation including getting the land surveyed through official surveyor, demarcate it with boundaries and pay balance sale consideration. However, in Ex.A.4, the plaintiff stated that it was 37 ready to pay the balance sale consideration, it is only due to the defendant's inability, execution of the sale deed is being postponed. But the plaintiff did not mention specifically the dates on which it approached or informed the defendant with regard to the said alleged readiness.

52. As discussed supra, there is exchange of notices between the plaintiff and the defendant. The defendant has sent three cheques to the plaintiff towards refund of the advance sale consideration received by him on termination of the said Ex.A.1 agreement of sale, but the plaintiff returned the same.

53. As discussed supra, according to the plaintiff, it has informed the defendant that at all times it was ready and willing to pay the balance sale consideration and it is the defendant who postponed the same. According to the defendant, the plaintiff never expressed its readiness and willingness to pay the balance sale consideration.

54. In the light of the aforesaid rival submissions, it is apt to note that Section 16 (c) of the Specific Relief Act, 1963, is relevant and the same is extracted below:-

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 willfully 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;

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

55. To prove the claim of the plaintiff, it has examined its Director as P.W.1 and attesting witnesses as P.Ws.2 and 3 to Ex.A.1 agreement of sale and filed Exs.A.1 to A.10 documents. To disprove the same, the defendant examined himself as D.W.1 and third party as D.W.2. However, during cross-examination, P.W.1 categorically admitted that he has not issued any notice expressing their readiness to pay the balance sale consideration from the date of expiry of three months stipulated in Ex.A.1 agreement of sale till Ex.A.4 letter dated 39 02.02.2015. He tried to explain that the defendant several times asked orally in the presence of witnesses to come forward to execute sale deed by receiving balance sale consideration. However, the plaintiff has not plead the said fact in the plaint and in the earlier correspondence.

56. P.W.1 further admitted that for the first time after four years, he has addressed Ex.A.4 letter to the defendant asking him to clear the objections. P.ws.2 and 3 are only attesting witnesses to the Ex.A.1. During cross-examination, they have categorically admitted that they did not read the contents of the suit agreement at the time of signing, but earlier to that they have discussions about the clauses/conditions of the agreement. In fact, they are Commission Agents/Mediators. Managing Director of Plaintiff company agreed to pay commission to them. Their evidence is not useful to the plaintiff to prove its readiness and willingness.

57. It is apt to note that in Mankour (dead) by L.Rs. vs. Hartar Singh Sangha 28, the Apex Court clarified that breach of contract by the defendant and ready and willingness of the plaintiff 28 (2010) 10 SCC 512 40 are two distinct issues in a suit for specific performance. Even if, a defendant is proved to have committed breach, the plaintiff cannot obtain a decree unless he pleads and proves that he was always ready and willing to perform the essential terms of the contract as required under Section 16 (c) of the Act, 1963. Even if, the vendor wrongfully refuses to execute the sale deed, if the purchaser did not possess the financial capacity to pay the balance sale consideration at the time of the performance, he is not entitled to the specific performance.

58. In N.P.Thirugnanam (dead) by L.Rs. vs. Dr.Jaganmohan Rao 29, the Apex Court held that the conduct of the plaintiff, prior and subsequent to filing of the suit, availability of funds, surrounding circumstances are the relevant factors in determining whether the plaintiff has genuinely ready and willing to perform his part of contract. If the plaintiff fails to prove such readiness and willingness by producing relevant evidence, the relief of specific performance cannot be granted.

1995 5 SCC 115 41

59. In Smt. Chandrakanthamma vs. D.Ramakrishnaiah30, the Karnataka High Court reiterated the aforesaid principle.

60. In R.Kandaswamy vs. TRK Saraswathi 31, the Apex Court held that relief of specific performance is discretionary and equitable in nature. The plaintiff must plead and prove continuous readiness and willingness to perform the essential terms of the contract from the date of the agreement until the decree. The expression 'ready and willingness' signifies that the plaintiff must possess both the intention and financial capacity to perform the contractual obligations, particularly the obligation to pay the balance sale consideration. Mere assertions in pleadings are insufficient, plaintiff must place material on record demonstrating availability of funds or capacity to arrange the same within the stipulated time. In the absence of the same, plaintiff would not be entitled to the discretionary relief of specific performance.

61. It is apt to note that in Chand Rani, Saradamani Kandappan (supra) and Padmakumari vs. Dasayyan32, 30 (2015) SCC OnLine Kar. 6141 31 (2025) 2 SCC 513 32 (2015) 8 SCC 695 42 I.S.Sikandar (supra), the Apex Court held in a suit for specific performance, the Courts have to consider the express terms of the agreement, nature of property, intention and conduct of the parties and surrounding circumstances. If the plaintiff fails to perform his obligation within the stipulated time, agreement stands cancelled/terminated in accordance with the terms of the contract, the plaintiff cannot seek specific performance of such contract. The plaintiff must establish continuous readiness and willingness to perform the contract as mandated under Section 16 (c) of the Specific Relief Act, 1963.

62. In R.Shama Naik vs. G.Srinivasaiah 33, the Apex court held as follows:-

9. There is a legion of precedents on the subject of readiness and willingness.

10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time.

11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.

33

2024 INSC 927 43

12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff.

63. In Sangeeta Sinha (supra) also, the Apex Court reiterated held the aforesaid principle.

64. In Annamalai (supra), the Supreme Court examined the scope of the relief of specific performance under Sections 16(c) and 20 of the Specific Relief Act, 1963, particularly in relation to the requirement of continuous readiness and willingness of the purchaser. The dispute arose from an agreement of sale, where the purchaser sought enforcement of the agreement after disputes arose regarding performance and subsequent sale of the property to a third party. The trial court dismissed the suit holding that the agreement was not acted upon within the stipulated period and that the plaintiff had failed to establish readiness and willingness. The first appellate court reversed the finding and decreed the suit for specific performance; however, the High Court interfered and directed refund of the advance amount instead.

65. While examining the matter, the Supreme Court reiterated the settled principle that in a suit for specific performance, the plaintiff 44 must plead and prove continuous readiness and willingness to perform his part of the contract from the date of the agreement till the decree. The Court clarified that "readiness" relates to the financial capacity of the purchaser to pay the sale consideration, whereas "willingness" refers to the intention and conduct of the purchaser demonstrating his commitment to complete the transaction. The Court emphasized that these two elements must coexist and must be established through pleadings, evidence, and the conduct of the parties. If the purchaser fails to establish these statutory requirements, the equitable relief of specific performance cannot be granted.

66. The decision further reiterates that courts must carefully evaluate the conduct of the plaintiff, the surrounding circumstances, and compliance with the contractual obligations before granting the discretionary remedy of specific performance.

67. In Zarina Siddique vs. A.Ramalingam 34, the Apex Court held that relief of specific performance is equitable and discretionary and therefore, courts have to consider the conduct of the parties and that parties must come before the court with clean hands. 34

(2015) 1 SCC 705 45

68. It is apt to note that in Beemaneni Maha Lakshmi vs Gangumalla Appa Rao (Since Dead) By Lrs35, the facts are that under the agreement of sale, it was agreed between the parties that the vendor has to get the land measured and produce all the documents including litigation documents making out a complete chain of the title of the vendor before paying balance consideration. He has also agreed to deliver the original sale deed. The vendor did not carry out measurements of the suit property after execution of the agreement of sale. D.W.1 admitted the said fact during the cross-examination. On consideration of the said aspects, the Apex Court held that the plaintiff was under no obligation to deposit/pay balance sale consideration and the plaintiff insisting of production of papers of Land Tribunal proceedings was natural conduct. The Apex Court further held that both the trial Court and the Appellate Court are justified in holding that the plaintiff insisted on the seller producing all the documents necessary for making out complete chain of his title.

(2019) 6 SCC 233 46

69. In R.C.Chandiok vs. Chunilal Subarwal 36, the Apex court held that readiness and willingness cannot be treated as straightjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.

70. In Sugarsingh vs. Harisingh (dead through L.Rs.) and others37, the Apex Court held that the Court while dealing with suit for specific performance, more particularly readiness and willingness to perform the contract, the Court has to consider overall circumstances, conduct on the part of the parties and prayer of the plaintiff in whose favour execution of agreement shall has been held to be proved. They are the relevant factors to be considered for the purpose of deciding readiness and willingness.

71. In Motilal Jain vs. Ramdasi Devi38, the Apex Court held that the readiness and willingness need not be in specific phraseology and language.

36 1970 (3) SCC 140 37 (2021) 17 SCC 705 38 AIR 2000 SCC 2408 47

72. Thus, the plaintiff has to express its readiness and willingness right from filing of the suit till decree. As discussed supra, in the present case, the plaintiff failed to express its readiness and willingness right from execution of the agreement of sale till filing of the suit. Plaintiff did not file any document to prove that it has funds with it and financial capacity to pay the balance sale consideration. Mere pleading in plaint with regard to readiness and willingness is not sufficient. It has to plead and prove the same by providing cogent evidence. The said principle was also laid down by the Apex Court in U.N.Krishnamurthy (supra). As discussed supra, the relief of specific performance is equitable in nature. Therefore, both the trial Court and this Court has to consider the conduct of the parties and also surrounding circumstances.

73. As discussed supra, at the cost of the repetition, the plaintiff agreed to pay the balance of sale consideration within three months as agreed in Ex.A.1 agreement of sale. It also agreed to get the land surveyed through official surveyor, demarcate boundaries and to pay the balance sale consideration within three months after the actual measurement of the suit schedule property. Though the plaintiff agreed under Ex.A.1 to issue notice seeking objections, it has issued Exs.A.2 48 and A.3 paper publications only on 04.12.2011 i.e. after expiry of three months of stipulated time agreed under Ex.A.1. In fact, the plaintiff has to issue the said notice within the three months time from the date of agreement. Thus, the plaintiff failed to perform the obligations casted upon it under Ex.A.1 agreement of sale.

74. In view of the aforesaid discussion, the principle laid down by the Apex Court, this Court is of the considered view that the plaintiff failed to prove and plead its readiness and willingness to pay the balance sale consideration as agreed in Ex.A.1.

75. Therefore, this point is answered in favour of the defendant and against the plaintiff.

Point No.3:

Whether the agreement of sale dated 01.08.2011 was validly cancelled by the defendant on the ground of non-performance of the obligations casted upon the plaintiff?

76. As discussed supra, in the Ex.A.1 agreement of sale, at clause No.14, both the plaintiff and defendant agreed that in the event of the plaintiff failed to pay the balance of sale consideration amount within the stipulated time as mentioned in the clause no.4, the 49 defendant entitled to issue written demand notice to pay the balance consideration amount and if the plaintiff fail to comply the said demand notice also, within 30 days from the receipt of the notice, the agreement shall stand cancelled, subject to the refund of the advance sale consideration to the plaintiff which was received by the vendor and also subject to the compliance of the terms and conditions of this agreement between the parties. In Clause No.10, the parties have agreed for making out a perfect title of the suit schedule property. Therefore, duty cast upon the plaintiff to get the land surveyed through official surveyor and demarcate the boundaries and thereafter, it has to demand the defendant to receive balance sale consideration on the land available physically, to execute the register sale deed in its favour. It failed to perform the duties casted upon it under Ex.A.1 agreement of sale. It has issued Ex.A.2 and A.3 paper publications only on 04.12.2011 i.e. after expiry of three months time. After lapse of three years, it has issued Ex.A.4 notice reminding the defendant to execute register sale deed for the first time and to clear the objections/notice issued by Mr. Tausif Qureshi, in Urdu newspaper on 21.07.2011. In fact, nothing on record to show that the plaintiff informed the defendant with regard to receipt of such notice and bringing the 50 same to the notice of the defendant with a request to clear the same.

77. As discussed supra, there is also delay on the part of the defendant. The defendant was also silent for almost three years. Within three years, he did not send any notice to the plaintiff with a request to complete the obligations casted upon it including conduct of survey, demarcation of boundaries and payment of balance sale consideration basing on actual measurement of the suit schedule property. The defendant has issued Ex.A.5 reply only on 05.03.2015. Thus, there is also delay on the part of the defendant.

78. It is also apt to note that the defendant has issued Ex.B.2 notice dated 03.09.2014 to the plaintiff with a request to pay the balance sale consideration within thirty days to the address i.e 2A, Rajoo Reidency, Street No.6, West Maredpally, Secunderabad, its Managing Director of M/s Pooja Ventures (p) Ltd. Mr. D.Showri Reddy. Ex.B.3 is the postal cover returned unserved with an endorsement 'Insufficient address", returned to sender". Ex.B.1 is postal receipt. The defendant has also issued Ex.B.5 notice dated 18.10.2014 to the plaintiff along with the cheques towards refund of 51 the advance sale consideration received by him cancelling the agreement of sale. Ex.B.4 is the postal receipt dated 20.10.2014. Ex.B.6 is the postal cover returned unserved with an endorsement 'Insufficient address', returned to sender'. The said notice was sent to the aforesaid address of Managing Director of the plaintiff. Ex.B.8 is returned registered postal cover dated 0612.2014 returned unserved with the endorsement 'insufficient address'. Thus, the defendant has cancelled the Ex.A.1 agreement of sale in terms of it. He has also returned the advance sale consideration received by him by sending cheques to the plaintiff which returned the same to the defendant.

79. It is relevant to note that the plaintiff contended that it has not received the said notice and the said notice was sent to a wrong address.

80. In the light of the said submission, it is apt to note that in Ex.A1 agreement of sale, the plaintiff has mentioned address of its Managing Director, Mr.D.Showri Reddy, the defendant has sent Exs.B.2,B.5 and B.7 notices to the aforesaid address and in proof of the same, he has filed postal receipts, which were returned unserved with an endorsement 'insufficient address', returned to sender'. 52 Sending notice to the address available is sufficient in terms of Section 27 of the General Clauses Act. Therefore, the plaintiff cannot say that the said notices were sent to a wrong address.

81. It is also apt to note that Mr. D.Showri Reddy, the Managing Director of the Plaintiff, did not enter into witness box, to deny the same and to rebut the presumption. Therefore, the plaintiff cannot contend that the defendant did not send the aforesaid notice to the plaintiff to incorrect address.

82. In the light of the aforesaid discussion, this Court is of the considered view that the defendant has cancelled Ex.A.1 agreement of sale in terms of Ex.A.1 agreement of sale.

83. Therefore, this point is also answered in favour of the defendant and against the plaintiff.

Point No.4 Is it compulsory to the plaintiff to seek declaration declaring the Ex.B.5 cancellation notice as illegal?

84. As discussed supra, the plaintiff has filed the aforesaid suit in O.S.No.413 of 2015 seeking specific performance of agreement of sale dated 01.08.2011. It did not seek any relief to declare the 53 Ex.A.B.5 dated 18.10.2014 i.e. notice of cancellation of Ex.A.1 agreement of sale as null and void.

85. The plaintiff filed O.S.No.413 of 2015 on 29.04.2015. It has received Ex.A.5 letter from the defendant on 05.03.2015 specifically stating with regard to the cancellation of agreement of sale. Even then, the plaintiff did not seek to declare the said cancellation notice as null and void.

86. In the light of the aforesaid discussion, the plaintiff cannot contend that it has not received Exs.B.2, B.5 and B.7 notices which were sent to address mentioned in Ex.A.1 agreement of sale and it is not aware of cancellation/termination of Ex.A.1 agreement of sale.

87. P.W.1 in his cross-examination, categorically admitted that Mr. B.Showri Reddy, the Managing Director of the plaintiff is residing in .e 2A, Rajoo Reidency, Street No.6, West Maredpally, Secunderabad, to till day. In Ex.A.1, the residential address of its Managing Director is shown as the aforesaid address. He has further admitted that for the first time after four years, they have issued Ex.A.2 letter to the defendant asking him to clear litigation. Thus, the plaintiff is aware of the cancellation of Ex.A.1 agreement of sale through Ex.B5 cancellation notice. Even then, the plaintiff did not 54 seek declaration to declare the said cancellation notice as null and void.

88. In the light of the same, it is apt to note that in Annamalai (supra), the Apex Court held that a declaratory relief seeks to clear what is doubtful, and which is necessary to make it clear. If there is a doubt on the right of a plaintiff, and without doubt being cleared, no further relief can be granted, a declaratory relief becomes essential because without such declaration, the consequential relief may not be available to the plaintiff. A declaratory relief would be required where a doubt or a cloud is there on the right of the plaintiff and grant of relief to the plaintiff is dependant on removal of that doubt or cloud. However, whether there is a doubt or cloud on the right of the plaintiff to seek consequential relief, the same is to be determined on examination of the facts of each case.

89. Apex Court further held that for example a contract may give right to the parties, or anyone of the parties, to terminate the contract on existence of certain conditions, in terms thereof, the contract is terminated, a doubt over subsistence of the contract is created and, therefore, without seeking a declaration that termination is bad in law, a decree for specific performance may not be available. 55 However, where there is no such right conferred on any party to terminate the contract, or the right so conferred, is waived, yet the contract is terminated unilaterally, such termination may be taken as a breach of contract by repudiation and the party aggrieved may, by treating the contract as subsisting, sue for specific performance without seeking declaratory relief, qua validity of such termination.

90. In the said case, as per the contents of the agreement of sale, the purchaser has to pay an amount of Rs.10,000/- within six months. The said amount was not paid within the aforesaid time. Even then, learned owners/sellers accepted an additional sum of Rs.1,95,000/- after expiry of the aforesaid stipulated period of six months. They have already made endorsement receiving and acknowledging the said amount of Rs.1,95,000/-. On examination of the said facts and also considering the scope of Section 55 of the Contract Act, the Apex Court held that the original land owners accepted performance of agreement of sale after the stipulated time enabling the delayed performance treating sale deed as subsisted, they waived their right to terminate on the ground of delay. Therefore, subsequent termination notice dated 20.08.2010 was held to be 56 invalid. In such circumstances, there is no need of seeking declaration to declare the termination notice as invalid.

91. In K.S. Manjunath (supra) considering the principle laid down in Annamalai (supra), the Apex Court laid down certain principles of law that are discernible in paragraph No.43 and the same is relevant and it is extracted below:-

43. Thus, in view of the above discussion, the following principles of law are discernible:

(i). Unilateral termination of the agreement to sell by one party is impermissible in law except in cases where the agreement itself is determinable in nature in terms of Section 14 of the Act of 1963;

(ii). If such unilateral termination of a non-determinable agreement to sell is permitted as a defence, then virtually every suit for specific performance can be frustrated by the defendant by placing an unfair burden on the plaintiff, who despite performing his part of the obligations and having showcased readiness and willingness, would require to also seek a separate declaration that the termination was bad in law. In such cases, the burden cannot be casted upon the plaintiff to challenge the alleged termination of agreement;

(iii). Where a party claims to have valid reasons to terminate or rescind a non-determinable agreement to sell, with a view to err on the side of caution, it should be such terminating party, if at all, who ideally should approach the court and obtain a declaration as to the validity of such termination or rescission, and not the non-terminating party. However, this must not mean that the defendant (the terminating party) in such cases would mandatorily be required to seek a declaration because Sections 27 and 31 of the Act of 1963 respectively, while using the phrase "may sue" merely give an option to any person to have the contract rescinded or adjudged as void or voidable;

(iv). Once the alleged termination of a non-determinable agreement in question is found to be not for bona fide reasons and being done in a unilateral manner on part of the defendant, it cannot be said that any declaration challenging the alleged termination was required on part of plaintiff;

(v). If a contract itself gives no right to unilaterally terminate the contract, or such right has been waived, and a party still terminates the contract unilaterally then that termination would amount to a breach by repudiation, and the non-

terminating party can directly seek specific performance without first seeking a declaration; and

(vi). In the event it is found that the termination of agreement to sell by the defendant was not valid, then such an agreement to sell will remain subsisting and executable.

92. On examination of the facts of the case and also considering the principle laid down by the various High Courts, the Apex Court held that unilateral termination of the agreement is impermissible in law except in cases where the agreement itself is determinable in nature in terms of Section 14 of the Act of 1963.

93. In the light of the principle laid down by the Apex Court in the aforesaid judgments, it is apt to note that even in Ex.A.4 issued by the plaintiff to the defendant dated 02.02.2015, it has specifically mentioned about notice published by Mr. Tousif Qureshi on 27.12.2011 in Urdu daily newspaper. It is also the specific contention of the plaintiff that there is cloud over the title of the defendant over the suit schedule property. There is also cloud over the right of the plaintiff in respect of Ex.A.1. Therefore, it has to seek declaration to declare the Ex.B.5 cancellation notice as null and void. Even after 58 receipt of Ex.A.5 reply, plaintiff did not seek to declare the cancellation/termination of notice as null and void.

94. In the light of the aforesaid discussion, the contention of the learned senior counsel for the plaintiff that there is no need to the plaintiff to seek Ex.B.5 cancellation notice as null and void is untenable.

95. Therefore, this point is answered in favour of the defendant and against the plaintiff.

Point No.5:

Whether Ex.B.5 cancellation notice sent to the plaintiff was validly served on the plaintiff?

96. As discussed supra, the defendant has sent Ex.B.2 notice dated 03.09.2014, Ex.B.5 notice dated 18.10.2014 to the aforesaid address of the Managing Director of the plaintiff as mentioned in Ex.A.1. P.W.1 admitted the said fact. To prove that the defendant has sent Ex.B.2 and B.5 to the aforesaid address, he has filed Ex.B.1 postal receipt dated 03.09.2014 and Ex.B.4 postal receipt dated 20.10.2014 and Ex.B.3 and B.6 returned postal covers. In the light of the same, the plaintiff cannot contend that the said notice was not served on the plaintiff.

97. As discussed supra, sending notice to the address of the plaintiff available in Ex.A.1 agreement of sale with the defendant is sufficient in terms of Section 27 of the General Clauses Act. Thus, the defendant has sent the aforesaid notices to the address mentioned in Ex.A.1. In fact, the plaintiff has to show that the notice was not sent on the address and it was not received.

98. As discussed supra, Mr. D.Sowri Reddy, Managing Director of the plaintiff was residing in the aforesaid address as mentioned in Ex.A.1. PW.1 admitted the said fact. Even then, the plaintiff did not examine said Mr D.Showri Reddy, its Managing Director, to rebut the said presumption. The said principle was also laid down by the Apex Court in C.C.Alavi Haji (supra). Therefore, it cannot contend that the defendant did not serve Ex.B.2 demand notice and Ex.B.5 cancellation notice on the plaintiff.

99. Therefore, this point is also answered in favour of the defendant and against the plaintiff.

Point No.6:

Whether the contract under Ex.A.1 agreement of sale is enforceable in view of the subsequent developments 60 subsequent to the execution of the agreement of sale dated 01.08.2011?

100. It is apt to note that in the written statement filed by the defendant, he has specifically stated with regard to execution of Ex.B.16 registered Development Agreement -cum- General Power of Attorney bearing document No.8015 of 2014, dated 18.11.2015 in favour of M/s Keerthi Estates Private Limited, with regard to the suit schedule property. The said company has filed I.A.No.2225 of 2015 in O.S.No.413 of 2015 under Order 1 Rule 10 of CPC to implead it as second defendant. Vide order dated 23.02.2016, the said application was dismissed by the trial Court. Aggrieved by the same, the plaintiff has filed a revision vide CRP No.4911 of 2016.

101. During pendency of the said revision M/s Keerthi Estates Private Limited has submitted an undertaking affidavit stating that it will abide by the decision of the trial Court on the contest made by the Defendant and it will not claim any equities by virtue of the registered DA-cum GPA dated 18.11.2015 in case, there is any adverse decision. Recording the said undertaking, vide order dated 27.01.2017, this Court disposed of the aforesaid revision.

102. Ex.B.16, DA-cum-GPA was executed on 18.112014 after issuance of Ex.B.2 and B.5 notices.

103. During the course of hearing, it is brought to the notice of this Court that said M/s. Keerthi Estates Private Limited, has obtained permission for construction of villas and it has completed the construction. It has also sold villas to respective purchasers. There is no vacant land. It is the plaintiff which has filed the aforesaid documents along with the application to receive additional documents along with photographs vide I.A.No.1 of 2025.

104. As discussed supra, Ex.A.1 agreement of sale is with regard to open land, but there is no open land.

105. It is apt to note that in K.Narendra vs. Riviera Apartments (P) Ltd 39, the Supreme Court, on examination of the facts therein held that where the subject matter of the contract has been so altered by intervening events without performance cannot be secured with precision, a contract stands frustrated under Section 56 of the Indian Contract Act, 1872.

1999 (5) SCC 77 62

106. In Saradamani Kandappan (supra), the Apex Court held that escalation in the value of immovable property can be with inflation constitutes a circumstance that may render grant of specific performance inequitable.

107. As discussed supra, in the present case, it is admitted fact that M/s Keerthi Estate Private Limited has already constructed villas in the suit schedule property after obtaining permission.

108. In the light of the aforesaid discussion, this Court is of the considered view that Ex.A.1 agreement of sale cannot be enforced to grant relief of specific performance of Ex.A.1 agreement of sale cannot be enforced to grant relief this point is also answered in favour of the defendant and against the plaintiff.

109. Sri V. Ravinder Rao, learned Senior counsel referring to judgment in O.S.No.533 of 2013 and supplementary agreement dated 12.04.2023, would contend that said M/s. Keerthi Estates Private Limited and the defendant settled the matter with the legal heirs of Ms. Tousif Qureshi, after his death and therefore, the defendant agreed that there is cloud over his title. 63

110. As discussed supra, in the present case, it is an admitted fact that M/s Keerthi Estates Private Limited has already constructed villas in the suit schedule property after obtaining permission.

111. It is apt to note that the said Ms. Tousif Qureshi is brother in law of the defendant and after his death, the defendant has settled the matter with his sister and niece.

112. As discussed supra, the plaintiff having failed to perform its obligations casted upon it under Ex.A.1 within the timelines, cannot blame the defendant.

113. It is apt to note that vide order dated 08.062017 in C.M.A.No.805 of 2015, a Division Bench of this Court directed the defendant not create 'fresh' third party rights in the suit. He has not created any fresh third party right after the said order. Point No.7:

Whether the suit is barred by limitation?

114. As discussed supra, under Ex.A.1 agreement of sale, the plaintiff and defendant agreed to complete the transaction within three months. Even then, the plaintiff got issued Ex.A.2 and A.3 paper 64 publications only on 04.09.2011 i.e. after expiry of three months time stipulated in Ex.A.1. The defendant has issued Ex.B.2 notice demanding to pay balance sale consideration, the same was returned unserved. Therefore, the defendant has issued Ex.B.5 notice, cancelling Ex.A.1 agreement of sale, since balance of sale consideration was not paid within stipulated time, the same was also returned with endorsement 'insufficient address'. The defendant has also issued Ex.B.7 notice dated 05.12.2014 stating that in spite of sending Exs.B.2 and B.5 notices demanding payment of balance sale consideration and cancelling the Ex.A.1 agreement of sale, the plaintiff did not respond. Therefore, the defendant returned the cheques given towards advance sale consideration towards cancellation of Ex.A.1 agreement. Thereafter, the plaintiff has issued Ex.A.4 notice requesting the defendant to clear the objection raised by Mr.Tousif Qureshi over the title of the suit schedule property and the defendant got issued Ex.A.5 reply dated 05.03.2015 returning the said cheques. The plaintiff has filed the aforesaid suit only on 29.04.2015.

115. In the light of the aforesaid submissions, it is apt to note that Article 54 of the Limitation Act, has two limbs, "i.e. the date fixed for the performance, or, if no such date is fixed, when the plaintiff has 65 noticed that performance is refused". If there is a specific date fixed for performance, the limitation period would be three years from the date, otherwise, three years from the refused to perform the said contract. The said principle was also held by the Apex Court in Usha Devi and others vs. Ramkumar Singh and others 40. According to the plaintiff, the defendant has refused to perform its obligations only by reply notice Ex.A.5 dated 05.03.2015. Therefore, it has filed a suit on 29.04.2015. As such, the said suit is filed well within the limitation.

116. As discussed supra, the defendant has issued Ex.B.2 notice dated 03.09.2014 to the plaintiff with a request to pay the balance sale consideration, the same was returned unserved with an endorsement insufficient address. Therefore, he has issued Ex.B5 notice dated 18.10.2014 cancelling Ex.A.1 agreement of sale. The said notice was also returned unserved with an endorsement 'insufficient address'. Therefore, he has issued Ex.B.7 notice requesting the plaintiff to pay the balance sale consideration. Therefore, the plaintiff has filed the suit well within the limitation.

117. This issue is answered in favour of the plaintiff and against the defendant.

Whether the plaintiff is entitled for equitable and discretionary relief of specific performance of agreement of sale dated 01.08.2011?

118. It is well settled that the relief of specific performance under the Specific Relief Act, 1963 cannot be granted as a matter of course. The remedy is essentially equitable and discretionary in nature, and the court must examine the conduct and intention of the parties, the surrounding and overall circumstances of the case before granting such relief.

119. In K. Prakash v. B.R. Sampath Kumar 41, the Apex Court held that where the agreement of sale is proved, the court is not bound to grant specific performance automatically. The court must exercise judicial discretion and determine whether the plaintiff has approached the court with clean hands and whether the circumstances of the case justify the grant of such relief. At the same time, it has also been consistently held that contracts relating to immovable property are ordinarily enforced through specific performance, since monetary compensation is often inadequate to compensate for the loss of a specific immovable property.

(2015) 1 SCC 587 67

120. It is well settled law that where a valid agreement of sale is established and the plaintiff has demonstrated readiness and willingness to perform the contract, the normal rule is to grant specific performance unless equitable considerations justify refusal of such relief. The conduct of the parties and the surrounding circumstances, therefore, tilt the balance of equities in favour of the plaintiff.

121. In the light of the aforesaid principle, this court has to consider the conduct of the parties and surrounding circumstances for granting equitable and discretionary relief of specific performance of agreement of sale. This Court also has to consider the intention and conduct of the plaintiff before the filing and during pendency of the suit. As discussed supra, the plaintiff herein failed to perform its obligations casted upon it under Ex.A.1 agreement of sale. There are improvements in the version of the plaintiff as that of earlier correspondence, plaint and deposition of P.W.1. Therefore, the plaintiff is not entitled for specific performance of Ex.A.1 agreement of sale.

122. It is also apt to note that Ex.A10 is the copy of the plaint in O.S.No.318 of 2012 filed by Mr. Tousif Qureshi against the defendant 68 and his brother to declare him as owner and possessor of the suit schedule property therein to send the deed of cancellation of the GPA dated 14.02.2011 vide registered document No.58/IV/2011 and also sale deed dated 09.02.2012 bearing document No.1578 of 2012 to the District Registrar, Ranga Reddy District for cancellation as being null and void. He has narrated about the entire facts including the dispute between him, his wife, sister of the defendant. The same was dismissed for default.

123. As discussed supra, the plaintiff failed to explain the date on which it came to know about the notice published by Mr.Tousif Qureshi, on 27.12.2011 in Urdu newspaper and on which date and pendency of the aforesaid suit. Moreover, it has issued Ex.A2 and A3 paper publications only on 04.12.2011 i.e. after expiry of three months time stipulated in Ex.A.1 for completion of transaction. Plaintiff did not file the notice in the trial Court. The same is not part of the record. Therefore, the plaintiff cannot contend that there is cloud over the title of the defendant over the suit schedule property. Thus, the plaintiff is not entitled for equitable and discretionary relief of specific performance of agreement of sale dated 01.08.2011. 69

124. On consideration of the said aspects, more particularly, the evidence both oral and documentary and also principle laid down by the Apex Court in catena of judgments, the learned trial Court dismissed the aforesaid suit filed by the plaintiff. It is a reasoned judgment and well founded. Therefore, the appellant - plaintiff herein failed to make out any case to interfere with the judgment and decree impugned herein.

125. In the light of the aforesaid discussion, this appeal is dismissed.

Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.

________________________ JUSTICE K. LAKSHMAN 344333 __________________________________ JUSTICE B.R MADHUSUDHAN RAO Date:05.05.2026 vvr.

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