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6.2 Learned advocate Ms.Bhavnani would further submit that principle of 'readiness and willingness' has to be weighed considering the conduct of the defendant who has been though repeatedly urged to perform his part of contract and to execute sale deed since denied and later on unilaterally cancelled ATS. Thus this act can be treated that he is not ready and willing to perform his part of contract which is rightly being held by the learned City Civil Court. She would further submit that the ATS executed between the parties did not contain any clause about termination of ATS; does not give defendant the right to terminate the contract unilaterally and forfeit the earnest money. She would further submit that in absence of any clause regarding terminability of contract between the parties, such termination of contract by defendant no.1 must be treated to be breach of contract and thus for such unilateral termination of the contract, plaintiff is not required to seek a declaratory relief that the termination of agreement was bad in law as it covers under the issue that whether plaintiff is entitled to specific performance of contract or not. She would further submit that otherwise every vendor, after executing ATS, would unilaterally terminate the contract and get away from the performance of the contract. As far as applicability of principle that whether time is essence of contract or not, she would submit that NEUTRAL CITATION C/FA/2516/1999 CAV JUDGMENT DATED: 23/04/2026 undefined conduct of the party did not specify that time was the essence of the contract. She also referred to the notice exchanged between the parties and submits that defendant no.1 came out within seven months of execution of sale deed to cancel the same unilaterally by issuing notice, in reply of such notice (Exh.145), the plaintiff came out with specific case that plaintiff begs to continue to execute sale-deed during the ATS. In furtherance plaintiff pleaded his case that at different intervals of time, plaintiff paid different amounts to the defendant no.1 as he was required and in total of Rs.8400/- was paid before filing of the suit in addition to earnest money of Rs.2,000/-. Therefore, large amount of sale consideration was already paid to the defendant before filing of the suit. She would further submit that learned trial Court believed that defendant no.1 obtained Rs.6000/- on 12.12.1985 from the plaintiff, by making entry in the plaintiff's diary on his own handwriting (Exh.108).

7.7 The first contention of learned advocate Mr.Dhotare that in absence of declaration decree that termination of cancelling the contract was bad in law for suit for specific performance would not be maintainable which is an issue touches maintainability of the suit and can be permitted at any stage including First Appeal is concerned, having referred to the aforesaid terms and condition of the agreement executed between the parties none of the clause thereof permits the defendant no.1 to terminate the contract unilaterally and to forfeit earnest money. Rather the condition no.8 specifies that even if the vendor is not ready and willing to perform his part of contract, vendee would be entitled to file a civil suit before the court for the specific performance of the contract and to get sale deed registered. In absence of any condition authorising or permitting the defendant no.1 - vendor to terminate the contract, act of terminating the contract itself if bad rather in breach of terms and condition of the contract.

7.12 In the case of K. S. Manjunath (supra), the Supreme Court has examined the issue in detail. Paras:42, 43, 44 and 45 are relevant paras, which read thus:

"42. In addition to the views expressed by various High courts, as discussed above, this Court, in the recent decision of Annamalai v. Vasanthi, 2025 SCC OnLine SC 2300, wherein one of us, J.B. Pardiwala, J., was a member of the Bench, had the occasion to consider whether a suit for specific performance is maintainable without seeking a declaration that the termination of the agreement was invalid in law. This Court held that where a contract confers upon a party the right to terminate it under certain conditions, and if such right is exercised, then the continued subsistence of the contract becomes doubtful. In such cases, the plaintiff must first obtain a declaration that the termination is invalid before seeking specific performance. However, where no such contractual right NEUTRAL CITATION C/FA/2516/1999 CAV JUDGMENT DATED: 23/04/2026 undefined to terminate exists, or where the right has been waived, and a party nevertheless proceeds to terminate the contract unilaterally, such termination would amount to a repudiatory breach, in which event the non-terminating party can directly seek specific performance without first seeking a declaration as aforesaid. The relevant observation is as under:

(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