IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 3541 of 2009
VASUDEV(D) BY LRS. Respondent(s)
O R D E R
The appellant, who was the plaintiff, is aggrieved by
order dated 14 October 2008 dismissing his Regular Second
Appeal, affirming the order in Regular Appeal No. 14 of 2003
dated 28 November 2005 preferred by the defendant. The latter
order set aside the decree for specific performance granted
to the plaintiff in O.S. No. 271 of 1994.
The learned counsel for the appellant submitted that
the agreement for sale dated 14 August 1986 itself recited
that the lands which were the subject matter of the agreement
were in dispute, and that the sale deed was to be executed
after the disputes were resolved. The balance consideration
was also to be paid at the time of execution. For this
reason, no time limit was fixed for the execution of the sale
deed. Time was thus not the essence of the agreement.
Thus it was the responsibility of the defendant to
inform the plaintiff when the disputes got resolved to enable
him to take necessary steps by payment of the balance
consideration to facilitate execution of the agreement. No
sooner that the plaintiff was made aware of the resolution of
the disputes, he gave a legal notice to the defendant on 18
June 1994. The plaintiff was always ready and willing to
perform his part of the agreement. It was the defendant who
did not perform his part of the agreement because of which
the suit had to be filed. The plaintiff has already paid a
sum of Rs.37,000/- as advance to the defendant from the total
consideration of Rs.80,000/-. Possession of the lands had
already been handed over to the plaintiff pursuant to the
execution of the agreement for sale.
The High Court erred in deciding the second appeal
without framing any substantial question of law. The finding
regarding lack of readiness and willingness on part of the
plaintiff is belied as the plaintiff took all necessary steps
which were required to be taken by him by giving a legal
notice and following it with a suit for specific performance
of the agreement for sale.
Learned counsel for the defendant submitted that there
are concurrent findings of the First Appellate Court as also
by the High Court that the plaintiff has not been able to
show readiness and willingness on his part for the execution
of the agreement for sale. On his own showing from his
evidence, he was aware that the disputes mentioned in the
agreement for sale were resolved in 1990. Yet he took no
steps to have the agreement for sale executed till he gave a
legal notice four years later in 1994. It has therefore
rightly been concluded that he was not ready and willing to
perform his part of the contract. The First Appellate Court
has returned a specific finding that the plaintiff was in
possession of the lands.
We have considered the submissions on behalf of the
parties. The High Court opined that the second appeal did not
raise any substantial question of law and dismissed the ap –
peal. In Hari Narayan Bansal v. Dada Dev Mandir Prabandhak
Sabha, (2015) 17 SCC 658, it was observed :
- In our opinion, a substantial question of law is not
required to be framed if the High Court decides to
dismiss the second appeal at an admission stage. Only
in a case where the second appeal is admitted or is
decided finally by allowing the same, a substantial
question of law is required to be framed by the High
- In the instant case, no substantial question of law
was involved in the second appeal and therefore, the
High Court had rightly dismissed the second appeal at
the admission stage by passing the impugned order. We,
therefore, see no reason to entertain this petition.
The agreement for sale contains a clear recital with
regard to the pendency of dispute concerning the subject
lands which were part of the agreement for sale. The
agreement itself provided that the sale deed was to be
executed after the dispute was resolved. In that context,
there was a recital that there was no specific time limit
fixed as it was dependent on the time to be taken in
resolution of the dispute. This clause cannot be considered
as a carte-blanche to seek enforcement of the agreement for
sale at any time irrespective of when the dispute was
It is also an undisputed fact that the plaintiff had
already paid Rs.37,000/- as part payment out of the total
consideration of Rs.80,000/-. The Trial Court decreed the
suit of the plaintiff primarily on basis of the genuineness
of the agreement for sale without returning any finding with
regard to the readiness and willingness of the plaintiff.
The First Appellate Court returned a specific finding
that the plaintiff had failed to prove readiness and
willingness on his part as required under Section 16(c) of
the Specific Relief Act, 1963. The defendant was in
possession of the suit lands. The High Court likewise
affirmed the finding of lack of readiness and willingness on
part of the plaintiff to perform his part of the agreement.
There is thus a concurrent finding of fact against the
plaintiff by two courts.
The dispute as mentioned in the agreement for sale
pertained to only one property from amongst three properties.
There is no controversy that the pending dispute was resolved
by the Tribunal in 1990. The plaintiff was a well educated
person holding the post of Director of Physical Education as
mentioned by him in his evidence. He also acknowledges
awareness of the disposal of the case by the Tribunal in
Yet legal notice was issued by him belatedly on 18 June 1994
without any explanation for the same. The notice simply
states that he had recently learnt that the dispute pending
regarding the lands had finally been disposed of and,
therefore, he was approaching the defendant immediately. No
source of information or date of knowledge is disclosed. At
this stage, it is very relevant to notice that the advocate
representing the defendant before the Tribunal was none other
than the friend of the plaintiff.
We are of the considered opinion that no further
discussion is required with regard to the fact that the
plaintiff was aware of the resolution of the dispute which
was an impediment in the execution of the sale deed no sooner
than it was resolved. Yet he made no efforts to approach the
defendant at the first instance without delay, much less did
he attempt to obtain any information in this regard from the
In view of the aforesaid discussion we find no reason
to interfere with the findings of the appellate court as
affirmed by the High Court that the plaintiff had failed to
demonstrate readiness and willingness on his part to perform
his duty under the agreement for sale by tendering the
balance amount and presenting his claim for execution of the
agreement at the earliest opportunity for which he took no
steps till he gave a legal notice four years later. This
conduct of the plaintiff has therefore correctly been held to
be evidence for lack of readiness and willingness on part of
the plaintiff to perform his part of the agreement for sale.
The First Appellate Court had directed refund of
Rs.37,000/- received by the defendant with interest at the
rate of 6% per annum from the date of the suit till
realisation of the amount.
Considering that the litigation is pending since 1994,
we consider it proper and equitable to award interest at the
rate of 10% per annum instead of 6% per annum. The payment
must be made to the appellant within a period of eight weeks
from today. Any failure to do so shall be construed as a
violation of the order and direction of this Court.
The appeal is allowed only to the extent indicated.
Pending application(s), if any, shall stand disposed
August 14, 2019
ITEM NO.103 COURT NO.12 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 3541/2009
VASUDEV(D) BY LRS. Respondent(s)
Date : 14-08-2019 This appeal was called on for hearing today.
HON’BLE MR. JUSTICE NAVIN SINHA
HON’BLE MR. JUSTICE A.S. BOPANNA
Mr. Sharanagouda Patil, Adv.
Ms. Supreeta Sharanagouda, Adv.
Mr. Shirish K. Deshpande, AOR
Mr. S.K. Kulkarni, Adv.
Mr. M. Gireesh Kumar, Adv.
Mr. Ankur S. Kulkarni, AOR
UPON hearing the counsel the Court made the following O R D E R
The appeal is allowed in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(MANISH SETHI) (SAROJ KUMARI GAUR)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)