Suit for specific performance of the agreement for sale in alternative refund of money – in the absence of showing continuous readiness and willingness on the part of the plaintiff, the relief of specific performance would not arise. – The evidence as tendered by the parties was taken note by the Trial Court and concluded that the plaintiffs were not ready and willing to perform their part of the obligation under the agreement and therefore has dismissed the suit. – The High Court on the other hand has arrived at the conclusion that the plaintiffs were ready and willing to perform their part of the agreement and that they had also possessed sufficient funds to pay the remaining sale consideration and therefore decreed the suit. – Readiness and willing to perform his part of contract means – Readiness includes the capacity to raise funds for purchasing the property. It is settled law that there is no necessity to make available the funds at the time of filing the suit. However, it has to be shown that he was in a position to raise funds for purchasing the property within the time specified. In the case on hand, the total consideration of the property would come around Rs. 1.5 crores of which Rs. 75 Lakhs was paid as advance and there was an offer to pay Rs. 75 Lakhs on or before 15.10.2007. Ext. A10 is the certified extract of an account maintained in the name of the 1st plaintiff, which would show that an amount of Rs. 75 Lakhs was credited on 11.10.2007. Therefore, it cannot be stated that plaintiffs were incapable of raising funds.

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6449 OF 2019
(Arising out of SLP (Civil) Nos.31787 of 2018)
Abdullakoya Haji & Ors. .…Appellant(s)
Versus
Rubis Tharayil & Anr. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.

   Leave granted.     
  1. The appellants herein were the defendants in the suit
    bearing OS No.89 of 2008. The suit in question was filed
    by the respondents herein seeking for a judgment and
    decree for specific performance of the agreement for sale
    dated 26.03.2007. The Trial Court on having considered
    the matter has decreed the suit in part by its judgment

Page 1 of 29
dated 23.12.2010. Through the said judgment, the
decree for specific performance was declined and the
alternate relief directing the appellant herein to pay the
sum of Rs. 75 Lakhs with interest at 9% per annum was
granted. The plaintiffs claiming to be aggrieved by the
same had preferred the appeal under Section 96 of the
Civil Procedure Code before the High Court of Kerala at
Ernakulam in RFA No. 344 of 2011. The Division Bench
of the High Court through its judgment dated
21.08.2018, set aside the judgment passed by the trial
court and has allowed the appeal.

  1. The appellants herein have accordingly been
    directed to execute the sale deed in favour of the
    Respondent No. 1 herein, conveying the properties
    described in Item Nos. 1, 2, & 5 on the balance sale
    consideration being deposited within the period of two
    months. In respect of the properties described in Item
    Nos. 3 & 4, the same was not included in the judgment
    since the said properties involved the minor’s interest.
    The defendants in the suit, who are the respondents in

Page 2 of 29
the appeal before the High Court are therefore before this
Court claiming to be aggrieved by the judgment dated
21.08.2018 passed by the High Court in RFA No.344 of

  1. Thus, on the divergent conclusion reached by the
    two Courts, consideration is required in this appeal.
  2. For the sake of convenience and clarity the parties
    would be referred to in the same rank as assigned to
    them in the original suit wherein the respondents herein
    were the plaintiffs and the appellants herein were the
    defendants.
  3. The brief facts necessary to be noted for the
    consideration of this appeal is that the defendants are the
    owners of the different item of properties which are
    described in the schedule to the suit subject agreement
    dated 26.03.2007. The total extent of property was
    indicated in the agreement as 12.775 acres. The plaintiffs
    agreed to purchase the said land at the rate of Rs. 11,350
    per cent of land. In that regard the agreement dated
    26.03.2007 was entered into and an advance of Rs. 75
    lakhs was paid by the first plaintiff to the defendants.

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The plaintiffs agreed to make a further payment of Rs. 75
lakhs on or before 15.10.2007 and before such time the
actual measurement of the property was required to be
made so as to determine the actual sale consideration
payable and to complete the sale transaction.

  1. According to the plaintiffs, they were ready and
    willing to pay the balance and secure completion of the
    transaction. In that regard the plaintiffs claim that they
    had also kept ready the sum of Rs. 75 lakhs which was
    agreed to be paid on or before 15.10.2007. The plaintiffs
    contend that defendants did not make available all the
    documents necessary for executing the sale deed. They
    therefore contend that the said position was accepted by
    the defendants and an appropriate endorsement was
    made at the foot of the agreement and the defendants
    had conceded that the amount payable on 15.10.2007
    can be paid on the date of the conveyance and that the
    documents will be satisfied prior to this date. The outer
    limit for completion of the transaction was fixed as
    22.01.2008. The further contention of the plaintiff is that

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despite they being ready and willing, since the defendant
did not come forward to complete the transaction, they
were constrained to file this suit.

  1. The defendant on being served with summons had
    appeared and filed their written statement. The
    execution of the agreement, the receipt of the sum of Rs.
    75 lakhs as also the manner in which the balance
    amount was to be paid and the transaction was to be
    completed was not disputed. However, it was contended
    that the plaintiffs did not possess the funds for paying
    the balance of the sale consideration and in such event
    the completion of the transaction did not arise. It was
    accordingly contended that the plaintiffs were not ready
    and willing to complete the transaction. It was alleged
    therein that since the plaintiffs did not have sufficient
    funds, they had entered into an agreement with regard to
    the same properties with one Shri Ali Khan without
    involving the defendants but neither the plaintiffs nor the
    said Shri Ali Khan had the funds to pay and complete the
    transaction.

Page 5 of 29

  1. The Trial Court, in the light of the rival pleadings
    had framed five issues for its consideration which read as
    hereunder:
    “(i) Whether the suit is bad for misjoinder of
    causes of action and parties?
    (ii) Whether the first plaintiff was ready and
    willing to perform their part of the
    contract?
    (iii) Whether the first plaintiff is entitled to get
    a decree for specific performance of the
    contract?
    (iv) Whether the first plaintiff is entitled to get
    a decree for realization of Rs. 75,00,000/­
    (Seventy­five lakhs) together with 18%
    interest per annum as an alternative
    relief?
    (v) Reliefs and costs?”
    In order to discharge the burden cast by the said issues,
    the second plaintiff examined himself as PW­1 and relied
    upon the documents at Exhibits A1 to A13. The first
    defendant examined himself as DW­1 and examined a
    witness i.e., the said Shri Ali Khan as DW­2 and relied
    upon the documents at Exhibit B1 to B25. The report of
    the Court Commissioner was marked as Exhibit C1 and
    C1(a). The subsequent agreement between the plaintiffs
    and Shri Ali Khan was marked as Exhibit X1.

Page 6 of 29

  1. The evidence as tendered by the parties was taken
    note by the Trial Court and concluded that the plaintiffs
    were not ready and willing to perform their part of the
    obligation under the agreement and therefore has
    dismissed the suit. The High Court on the other hand
    has arrived at the conclusion that the plaintiffs were
    ready and willing to perform their part of the agreement
    and that they had also possessed sufficient funds to pay
    the remaining sale consideration and therefore decreed
    the suit. In that background, though on the other issues
    framed by the Trial Court there is no serious dispute for
    consideration, the issue which arises for consideration is
    as framed at Issue No. 2 relating to the readiness and
    willingness of the plaintiffs.
  2. That being the position, we have heard Shri
    Jayanth Muth Raj, learned Senior Advocate for the
    appellants­defendants, Shri R.N. Ravindran, learned
    Senior Advocate for the respondent­plaintiff and perused
    the appeal papers.

Page 7 of 29

  1. In that background, in so far as the execution of
    the agreement dated 26.03.2007 and the payment of the
    advance amounting to Rs. 75 lakhs, there is no serious
    dispute. The requirement under the agreement was for
    the plaintiffs to pay a further sum of Rs. 75 lakhs on or
    before 15.10.2007. Apart from the endorsement dated
    14.10.2007 sought to be relied on by the plaintiffs to
    contend that they had arranged the funds for payment of
    Rs. 75 lakhs but had not paid the same since the
    defendants had not furnished the proper title deeds, the
    plaintiffs have also sought to rely on the documents at
    Exhibit A5 to A13. In that regard the documents at
    Exhibit A5 and A10 is the same. The second plaintiff has
    examined himself as PW­1, who by referring to the said
    documents has secured the marking of the same as
    exhibits. The marking of the document at Exhibit A9
    was objected to by the defendants.
  2. In that background, in so far as the payment of the
    advance amount of Rs. 75 lakhs though appears to be a
    substantial sum, the readiness and willingness of the

Page 8 of 29
plaintiffs with the balance sale consideration is to be
taken note keeping in view that the balance sale
consideration payable was also substantial. The second
plaintiff examined himself as PW­1 by filing his affidavit
through which he has reiterated the plaint averments. In
respect of the payment of the balance sale consideration;
the contention on behalf of the plaintiff was that the
further amount of Rs. 75 lakhs was to be paid on or
before 15.10.2007 subject to the defendants furnishing
all documents relating to title and in that regard the
contention was also that in respect of the properties
owned by Late Beena, her legal heirs being minors
appropriate conveyance was required to be made after
completing the formalities. It is no doubt true in the sale
agreement dated 26.03.2007 an endorsement was made
that the amount payable on 15.10.2017 can be paid on
the date of conveyance and the documents shall be
satisfied prior to the same. In view of the said
endorsement the plaintiff has sought to contend that
though the amount of Rs. 75 lakhs was ready as on
15.10.2017, the same was not paid since all the

Page 9 of 29
documents were not made available. In so far as the said
endorsement, the defendants had contended that the
same was secured by misrepresentation.

  1. Be that as it may, as rightly pointed out by the
    learned Senior Advocate appearing for the defendants,
    the depiction in the said endorsement about the
    production of the title deeds does not reflect the true
    state of affairs in as much as PW­1 in his crossexamination has admitted that prior to the execution of
    the agreement, the copies of the title deeds produced
    before the Court were shown to him and that he had
    entered into the agreement on being satisfied that the
    defendants have ownership and title to the suit property.
    Though the issue relating to the transfer of the rights of
    the minor had also arisen, the defendants were prepared
    to execute the sale deed through the natural guardian
    representing the interest of the minors. Though the said
    aspect was also one of the issues, considering the fact
    that the Trial Court and the High Court have arrived at
    divergent conclusion relating to the availability of the

Page 10 of 29
remaining sale consideration, examination of that issue
would be appropriate as other issues would depend on
that aspect. In that background, it is necessary to
examine as to whether the plaintiffs had the financial
resource as was required to be paid prior to 15.10.2007
and even if as on such date the same was available,
whether the plaintiffs had continued to possess the said
funds as on the date when the demand was made to
execute the sale deed by issuing the legal notice and also
when they filed the suit seeking specific performance of
the agreement.

  1. To arrive at a conclusion in that regard, at the
    outset what is necessary to be taken note is the total
    value of the transaction; the amount that was required to
    be paid as the balance sale consideration if the
    transaction was to be concluded and, in that regard,
    whether the readiness and willingness was exhibited by
    the plaintiff. As on 15.10.2007, even if the availability of
    further amount of Rs. 75 lakhs is accepted as proved,
    would it be sufficient to hold that the plaintiff had

Page 11 of 29
possessed the balance sale consideration so as to issue a
direction to complete the transaction. In that regard if
the extent of land as indicated in the sale agreement
dated 26.03.2007 is taken into consideration and if the
value is worked out at the agreed rate of Rs. 11,350 per
cent of land, the total sale consideration for 1822 cents of
land would work out to Rs. 2,06,79,700 (Two Crores Six
Lakhs Seventy­Nine Thousand Seven Hundred only).
From the said amount if the advance of Rs. 75 lakhs
admittedly received by the defendants is deducted, the
balance sale consideration would be in a sum of Rs.
1,31,79,700 (One Crore Thirty­One Lakhs Seventy­Nine
Thousand and Seven Hundred only). If a similar
calculation is adopted to the extent as indicated in the
report of the Court Commissioner, the total sale
consideration for the 1771 cents of land would be in a
sum of Rs. 2,10,00850 (Two Crores Ten Lakhs Eight
Hundred and Fifty only). If the advance amount of Rs. 75
lakhs is deducted therefrom, the remaining sale
consideration would be in a sum of Rs. 1,26,00,850 (One
Crore Twenty­Six Lakhs Eight Hundred and Fifty only).

Page 12 of 29

  1. It is in that back drop even if the lower sum of Rs.
    1,02,60,850 (One Crore Two Lakhs Sixty Thousand Eight
    Hundred and Fifty only), is taken into consideration the
    availability of funds in that regard to pay balance sale
    consideration is to be examined. In that regard even
    though the document at Exhibit A5, the account extract
    of Axis Bank for the periods 09.10.2007 to 08.11.2007 is
    taken note, the same will at least indicate that the sum of
    Rs. 75 lakhs was available in the account as on
    15.10.2007. Though the sum of Rs. 75 lakhs was shown
    in the account and even if the endorsement dated
    14.10.2007 at the foot of the agreement is taken note, the
    said amount should be shown to have been available with
    the plaintiffs even subsequent to 08.11.2007, as also on
    the date when the demand was made by issue of legal
    notice and further when the suit was filed and specific
    performance was sought. In the absence of the same, a
    temporary arrangement made to have certain funds in
    the account on a relevant date alone cannot be
    considered as the financial resource being available to
    complete the transaction when in addition to the said

Page 13 of 29
amount, further sum was required. This is more so in a
circumstance where in the instant facts the first plaintiff
had entered into an agreement of sale dated 23.10.2007
(Exhibit X1) with one Shri Ali Khan during the
subsistence of the suit subject agreement and in the said
agreement the first plaintiff with reference to the very
properties which is the subject matter of the suit has
stated as hereunder :
“the party No. 1 of us have decided to
purchase the immovable property which are
mentioned in the schedule herein below
AND whereas the party No. 1 of us have no
intention to get the same conveyed directly
in to their name AND hence the party No. 1
herein agree and decide that they do not
have any objections to get conveyed and
register the same in favour of the party No.
2.”
The reference to party no. 1 is to the first plaintiff and the
party no. 2 is Shri Ali Khan. The plaintiff No. 1 has not
entered into the witness box to explain the purpose for
which the said agreement was executed. On the other

Page 14 of 29
hand, the said Shri Ali Khan was examined as DW­2 who
has stated as follows in his cross­examination.
“I was part of the Exhibit A1 agreement. I
participated in the same as a well­wisher of
both the parties. I know that the plaintiffs
have paid an amount of Rs. 75 Lakhs at the
time of the agreement. I know that the
agreement Exhibit A1 was not acted upon.”
“I came to know that the agreement did not
materialize as the plaintiffs did not have
necessary money with them. The plaintiffs
approached me and told that they are unable
to purchase and so I should purchase the
same. That time I inquired with the
defendant. I inquired with the defendant
within 3­4 days of the plaintiff intimating me.
The defendant No. 3 has told me that the
defendants have no objections in me
purchasing the property. Accordingly, I
entered in to Exhibit X1 agreement.”

  1. In the back drop of the evidence available on
    record more particularly with regard to the consideration
    of the relief of specific performance sought in the suit, the

Page 15 of 29
learned Senior Advocate for the appellants­defendants
has relied on the decision of this Court in the case of
Man Kaur (Dead) by L.Rs vs. Hartar Singh Sangha,
(2010) 10 SCC 512, to contend that the person who has
entered into the suit subject agreement namely Shri
Devassy not being examined will be fatal and that the
evidence tendered by PW­1 Shri Rubis Tharayil would be
in sufficient. In that regard it is contended that this
Court in the cited decision has held that the readiness
and willingness to perform is to be proved with the
evidence of the person having personal knowledge of the
details of transaction and the evidence tendered by the
Power of Attorney holder would be in sufficient. Having
taken note of the decision we are of the opinion that the
said decision would not be squarely applicable to the
present facts so as to discard the evidence of PW­1. In so
far as the agreement dated 26.03.2007 regarding which
specific performance is sought, we notice that though
Shri Devassy has entered into the agreement with the
defendants it is done so, for and on behalf of Shri Rubis
Tharayil and therefore Shri Rubis Tharayil is also arrayed

Page 16 of 29
as the plaintiff No. 1 in the suit. If that be the position,
in so far as the suit transaction and the evidence to prove
the sufficiency of funds, the evidence tendered by him
would be relevant. Hence, in so far as the personal
knowledge relating to the other aspects i.e. entering into
agreement with Shri Ali Khan and the recitals therein, it
was required to be explained by examining Shri Devassy
who would have been the relevant and competent witness
to explain that aspect of the matter more particularly
when reference with regard to the financial capacity is
made therein.

  1. In that regard, the extract from the agreement
    dated 23.10.2007 (Exhibit X1) between Shri Devassy and
    Shri Ali Khan noticed above indicates that the intention
    of seeking specific performance of the agreement dated
    26.03.2007 is given up there under. One of the parties to
    the said agreement namely Shri Ali Khan was examined
    by the defendants as DW­2, who apart from referring to
    the agreement has also stated that the same was entered
    into since the plaintiffs did not have the financial

Page 17 of 29
resources to continue the transaction. In that
circumstance, it is only Shri Devassy who could have
explained the real reason if any for executing the said
agreement dated 23.10.2007 if it was not for the purpose
indicated therein and as spoken to by DW­2. In such
situation the execution of the said agreement dated
23.10.2007 will have to be taken as a strong
circumstance wherein it indicates that the plaintiffs, prior
to filing the suit itself had intended to give up their right
to seek for specific performance for want of the financial
resources.

  1. In that circumstance what would also be relevant
    to be taken note is that in the suit, an application had
    been filed by the defendants to direct the plaintiff to
    deposit the balance sale consideration. Since the plaintiff
    had contended that the sum of Rs. 75 Lakhs had not
    been paid on 15.10.2007 as the title documents were not
    made available and the defendants on the other hand,
    had contended that the amount had not been made
    available though the documents were ready, the

Page 18 of 29
applications in IA No. 611/2008 and IA No. 1759/2008
were filed. In view of the directions issued in IA No.
611/2008 the defendants produced the title deeds.
Though in IA No. 1759/2008 the directions were issued
to deposit the balance consideration in Court within the
period, the said amount was not deposited. Due to nondeposit the suit was dismissed. However, the fact
remains that the said issue was considered by the High
Court in WP No. 25719/2008 and CRP No. 680/2008
assailing the said order. The High Court on considering
the said aspect and finding that the dismissal of the suit
for not depositing the entire balance sale consideration
would not be justified had restored the suit. Though the
said order has attained finality and to that extent the
restoration of the suit was justified; but the fact remains
that except the statement at Exhibit A5 to indicate that
the sum of Rs. 75 lakhs was available during the period
11.10.2007 to 19.10.2007, no other documents, such as
fixed deposit receipt for the said amount or deposit of the
very same amount in the account subsequent 08.11.2007
was produced. Even if the amount was not to be insisted

Page 19 of 29
to be deposited in the Court, the proof of availability
should have been tendered. In that circumstance, out of
the remaining documents, Exhibit A9, a communication
sent by the plaintiff No.1 not being supported by
authentic document is eschewed, from the amount
depicted in Exhibit A11 to A13, it would not constitute
the entire extent of balance sale consideration.

  1. In that background, the perusal of the judgment
    passed by the Trial Court would indicate that the Trial
    Court on appreciating the evidence has at the outset
    arrived at the conclusion that in view of endorsement
    dated 14.10.2007 contained in the agreement the nonpayment of Rs. 75 Lakhs on or before 15.10.2007 would
    constitute waiver and cannot be considered as a breach
    committed by the plaintiff. To that extent the Trial Court
    was justified and even if that be so the availability of the
    sum of Rs. 75 Lakhs sought to be established through
    the document at Exhibit A5 is taken into consideration,
    whether the said amount was still available subsequent
    thereto and whether the readiness and willingness can be

Page 20 of 29
accepted as proved was the appropriate consideration
required to be made. Hence the Trial Court in that
regard has rightly taken note of the entire evidence.
While taking note of this aspect, as has been referred to
by us herein above, the Trial Court has taken note that
the plaintiffs were required to arrange the total balance
sale consideration of Rs. 1,31,79,700/­ (One Crore
Thirty­One Lakhs Seventy­Nine Thousand Seven
Hundred only).

  1. In that regard, the document at Exhibit A5 namely
    the accounts statement of Axis Bank was taken into
    consideration and had rightly observed that the ledger
    extract for the period subsequent to 19.10.2007 was not
    produced and in that view the evidence of PW­1 was
    referred as he could not say on which day he withdrew
    Rs. 75 Lakhs from his bank account. The Exhibits A6,
    A7 and A8 were taken note though it was not
    appropriately attested and the amount as indicated in the
    said documents at Rs. 15,62,426.70/­ Rs. 5,00,488/­
    and Rs. 7,97,205/­ which were in credit to the said

Page 21 of 29
account was taken note. Having discarded Exhibit A9
which was a fax message without the supporting bank
documents, the amount of Rs. 2,33,399/­ in Exhibit A11
and Rs. 37,187/­ in Exhibit A12 was also taken note.
The Trial Court had also taken into consideration the
agreement entered into between Shri Devassy and Shri
Ali Khan, dated 23.10.2007 marked as Exhibit X1 which
was also one of the reasons to arrive at the conclusion
that the plaintiff had not proved their readiness and
willingness.

  1. As against the consideration made by the Trial
    Court, a perusal of the judgment passed by the High
    Court would indicate that the main basis for its ultimate
    conclusion is as contained in Para 20 of the judgment
    which reads as here under:
    In this case, Court below finds that the documents
    produced by the plaintiffs were not sufficient to prove
    that they had sufficient money with them to pay the
    balance sale consideration within the period
    prescribed for performance of the contract. Of
    course, if the plaintiffs seek specific performance of a
    contract their readiness and willingness to comply
    with the terms of the contract is of paramount
    necessity. Readiness includes the capacity to raise
    funds for purchasing the property. It is settled law
    that there is no necessity to make available the funds
    at the time of filing the suit. However, it has to be

Page 22 of 29
shown that he was in a position to raise funds for
purchasing the property within the time specified. In
the case on hand, the total consideration of the
property would come around Rs. 1.5 crores of which
Rs. 75 Lakhs was paid as advance and there was an
offer to pay Rs. 75 Lakhs on or before 15.10.2007.
Ext. A10 is the certified extract of an account
maintained in the name of the 1st plaintiff, which
would show that an amount of Rs. 75 Lakhs was
credited on 11.10.2007. Therefore, it cannot be
stated that plaintiffs were incapable of raising funds.
Other documents namely, Exts. A11 to A13 produced
by plaintiffs further proves their capacity to raise
funds and in fact they had substantial amounts at
the relevant time to purchase the property.
Therefore, the finding of court below to that extent is
erroneous and is liable to be set aside.
The learned Senior Counsel for the respondent­plaintiff
sought to contend that the High Court also having taken
note of the documents that were tendered in evidence has
taken into consideration the fact that towards the sale
consideration a sum of Rs. 75 Lakhs had been paid as
advance and the plaintiff had also shown that they were
ready with the further amount of Rs.75 lakhs which was
to be paid on or before 15.10.2007. In that view, it is
contended that the High Court had rightly taken note
that the plaintiff had the capacity to arrange the financial
resource and as such had decreed the suit. It is also his
contention that in the final conclusion when out of the
five properties the Item No. 3 and 4 properties were

Page 23 of 29
excluded since the right to transfer the minors property
had not been established, the balance amount payable
was much lesser being equivalent only to the value of the
properties in suit Item Nos. 1, 2 and 5. The balance
payable would amount to Rs. 52,34,700/­ and in view of
the judgment passed by the High Court the amount is
also deposited on 08.11.2018.

  1. The learned senior counsel for the appellantsdefendants on the other hand would contend that the
    defendants were willing to transfer all the five Items of
    the property provided the plaintiffs were ready and willing
    and had paid the entire balance sale consideration for all
    the items of property. It is contended that there was no
    bar to transfer the minors’ right by the natural guardian
    and in any event when the plaintiffs have filed the suit
    seeking specific performance of the agreement in its
    entirety, in order to succeed they were required to
    establish their readiness and willingness in entirety and
    only thereafter any other consideration even to carve out
    certain properties would have arisen. The learned senior

Page 24 of 29
counsel for the appellant has relied on the decision of
this Court in the case of N.P. Thirugnanam (dead) by
L.Rs vs. Dr. R. Jagan Mohan Rao and Ors. (1995) 5
SCC 1150 wherein it is held that in the absence of
showing continuous readiness and willingness on the
part of the plaintiff, the relief of specific performance
would not arise.

  1. In the above background, we find that the
    consideration as made by the High Court does not
    indicate that the High Court has taken note of the
    evidence in the manner as has been analysed by the Trial
    Court. From the reasoning as extracted above the High
    Court has proceeded by indicating that the readiness
    includes the capacity to raise funds for purchasing the
    property. To that extent though the High Court was
    justified, the assessment of the evidence made does not
    indicate that there were sufficient documents to show
    that they had the capacity to raise the funds for the
    entire balance sale consideration. The error committed
    by the High Court is that it proceeded on the basis that

Page 25 of 29
the total consideration of the transaction is Rs. 1.5 crores
of which Rs. 75 Lakhs was paid as advance and since
there was an offer to pay the balance of Rs. 75 Lakhs on
or before 15.10.2007 which was available in credit to
their account as on 11.10.2007 the same was sufficient.
Hence it concluded that it cannot be stated that the
plaintiffs were incapable of raising the funds. From the
discussion made by the Trial Court as also by us in the
course of this judgment, it would indicate that in so far
as the total sale consideration is concerned, even if the
extent indicated as per the Court Commissioner’s report
is taken, it would be the sum of Rs. 2,01,00,850/­.
Therefore, the balance payable would be Rs.
1,26,00,850/­. Towards payment of such balance sale
consideration though as on 15.10.2007 the sum of Rs. 75
Lakhs was shown to the credit, the availability of that
amount subsequent to 08.11.2007 is not shown as the
statement at Exhibit A5 is only for the periods
09.10.2007 to 08.11.2007. Hence, the said amount will
have to be taken as being made available at one point in
time by juggling the figures and was not shown available

Page 26 of 29
for payment at the relevant point when the suit was filed.
Hence on exclusion of the same the remaining amount
through Exhibit A11 to A13 would be in­sufficient to
indicate that as on date of filing the suit they had the
entire remaining balance sale consideration and were
ready and willing to complete the transaction. In that
circumstance, the deposit presently made after the
judgment is rendered by the High Court to the reduced
extent would not be of assistance as there would be
change in the circumstances after more than a decade, as
against what the position was in the year 2007.

  1. In that circumstance, when not only the
    availability of fund was satisfactorily explained but in a
    circumstance where the first plaintiff had entered into an
    agreement dated 23.10.2007 in favour of Shri Ali Khan in
    respect of the very same properties even before securing
    the sale deed in their favour, the bonafides would also
    become relevant when the specific performance as an
    equitable relief is taken into consideration. In that view,
    the Trial Court while declining the relief of specific

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performance has appropriately granted the decree for
realisation of the sum of Rs. 75 Lakhs with interest at 9%
per annum. To that extent though the Trial Court was
justified, we find it necessary to protect the interest of the
plaintiffs to recover the said amount. In that view, it is
necessary to direct the defendants to refund the amount
to the plaintiffs within a time frame, failing which the
amount is to be paid with the higher rate of interest.
Further, charge is to be created over the suit schedule
properties to ensure repayment of the amount. Subject
to the above the impugned judgment dated 21.08.2018 in
RFA No. 344/2011 is liable to be set aside.

  1. In the result we pass the following,
    ORDER
    a) The judgment dated 21.08.2018 passed in RFA No.
    344/2011 is set aside and the judgment dated
    30.07.2008 in OS No. 89/2008 is restored.
    b) The appellant is directed to refund the amount of Rs.
    75 Lakhs with interest at 9% per annum from the
    date of receipt till the date of repayment and the

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repayment shall be made within 3 months from this
date.
c) If the refund is not made within 3 months, the said
sum of Rs. 75 Lakhs shall attract interest at 12% per
annum from the date of receipt till the date of repayment.
d) There shall be a charge over the suit schedule
properties until realisation of the amount by the
plaintiff and such charge shall stand automatically
raised if the amount is deposited in compliance of the
directions contained above.
e) The appeal is allowed in the above terms, however, in
the facts and circumstance the cost incurred in this
appeal shall be borne by the appellant.
……………………….J.
(R. BANUMATHI)
……………………….J.
(A.S. BOPANNA)
New Delhi,
August 20, 2019

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