Padam Jain Vs Hemrai (Died) Through Legal Heirs-

		... Respondents
For Petitioners	:	Mr. BP Sharma with Mr. ML Saket and Mr. KN Singh, Advocates.
For Respondents No. 1 to 3	:	Mr. Abhishek Vaishnav, Advocate.
For Respondent/State	:	Mr. Devesh G. Kela, Panel Lawyer

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Hon’ble Smt. Justice Rajani Dubey,

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Hon’ble Shri Justice Sachin Singh Rajput, JJ

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C A V Judgment

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Per Rajani Dubey, J

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Challenge in this appeal is to the legality and validity of the judgment and decree dated 2^nd February, 2018 passed in Civil Suit No.62-A/2015 whereby the suit filed by the petitioners/plaintiffs for

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specific performance of contract has been dismissed. For the sake of convenience, parties shall hereinafter be referred to as per their description before the trial Court.

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Briefly stated, case of the plaintiffs is that there is a land situated at Village-Pulgaon, PHN 18/25, Khasra No.193/1, area 1.676 hectare in the joint ownership of defendants No. 1 to 5. Defendants No. 1 to 3 on behalf of their sisters defendants No. 4 & 5 entered into an agreement with the plaintiffs for sale of the aforesaid land on 30.9.2014 @ Rs.38 lacs per acre and as an advance, Rs.2 lac cash and one post-dated cheque of Rs.3 lacs of Syndicate Bank, Branch-Durg was received. On the date of execution of the agreement, it was agreed between the parties that Rs.20 lacs shall be paid by 10.11.2014 and after receiving rest of the amount of sale consideration within six months from the date of execution of agreement i.e. 30.9.2014, registered sale deed shall be executed either in the name of the plaintiffs or any other persons at the instance of the plaintiffs. Later on, after taking back those post-dated cheques, defendants No.1 to 3 were given cash of Rs.1.60 lacs and 1.40 lacs. As per agreement, Rs.20 lacs was to be paid by 10.11.2014 and hence being in need of money when on 3.11.2014 defendant No.3 demanded Rs.5 lacs cash from the plaintiffs out of the aforesaid amount of Rs.20 lacs, the plaintiffs gave RTGS Cheque No.249516 of Rs.5 lacs of Syndicate Bank, Durg. The plaintiffs deposited Rs.20 lacs in Syndicate Bank, Durg and informed

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defendants No. 1 to 3 orally but they replied that since as of now they are not in need of money, so they will inform them whenever needed.

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The plaintiffs requested defendants No. 1 to 3 for taking Rs.15 lacs but they did not agree, on which a registered notice along with three cheques, each of Rs.5 lacs, was sent on 27.11.2014 by the plaintiffs to them and after receipt of the said notice on 28.11.2014, defendants No. 1 to 3 on behalf of their sisters defendants No. 4 & 5 on 6.12.2014 sent a notice through an advocate which was replied by the plaintiffs. The defendants are refusing to execute sale deed in favour of the plaintiffs whereas they have always been ready and willing to perform their part of contractual obligations. Hence this suit.

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Respondents No. 1 to 3 in their written statement contended that the suit property is the joint Hindu property of defendants No. 1 to 5 and as such, they have equal right and share over the suit property. However, the agreement based on which the present suit is filed, is incomplete, illegal and void because it does not bear signatures of all the defendants and has not been executed by the defendants. There is no written or oral consent of defendants No. 4 and 5. The plaintiffs fraudulently obtained signature of defendants No. 1 to 3 on the first and last page of the agreement by taking advantage of their illiteracy and ignorance. Defendant No.3 never demanded Rs.5 lacs from the plaintiffs and in fact, it is plaintiff No.1 who out of his own free will deposited Rs.5 lacs in District Central Cooperative Bank, Durg without

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intimation to defendant No.3 whereas defendants No. 1, 2, 4 & 5 had not given any oral or written consent for the same to the plaintiffs. No such agreement was ever executed by the defendants in favour of the plaintiffs. In order to grab the suit land, the plaintiffs have committed forgery and prepared this agreement. It was specifically averred that the defendants agreed to sale the suit land @ Rs.1.50 crores per acre but the plaintiffs by forgery made it @ Rs.38 lacs per acre. Since the said agreement does not bear signature of defendants No. 4 & 5 and their mother Sumotin Bai (dead), therefore, it is void ab initio. Therefore, the suit is liable to be dismissed with cost and each of the defendants be awarded Rs.5 lacs as compensation.

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Defendants No. 4 & 5 in their written statement averred that the agreement is incomplete, illegal and void for want of signatures of all the defendants. It also does not bear signature of plaintiff Padam Jain. Defendants No. 4 & 5 never gave consent to defendants No. 1 to 3 for sale of the suit land or for execution of any agreement for this purpose. The owner of the suit land namely Sumotin Bai died on 27.1.2014 whereas the said agreement was executed on 30.9.2014 which is wholly illegal because in the said agreement name of deceased Sumotin Bai is also mentioned. For all these reasons the suit is liable to be dismissed with compensation of Rs.50,000/- to defendants No. 4 & 5.

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Based on the pleadings of the respective parties, the learned trial Court framed as many as seven issues and after appreciation of oral and documentary evidence on record, dismissed the suit by the impugned judgment and decree. Hence this appeal.

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Learned counsel for the appellants would submit that the impugned judgment is perverse and not sustainable in law. Learned trial Court has failed to appreciate that the agreement of sale in respect of suit property has been proved in accordance with law and after reaching the conclusion of its due execution by defendant No.1 to 3 and acceptance of amount of earnest money for and on behalf of themselves and also on behalf of defendants No. 4 & 5 by defendants No. 1 to 3, declaring it void in its entirety show that the learned trial Court has committed a grave error of law and jurisdiction and such illegal exercise of jurisdiction cannot be allowed to continue by this Court. He would next submit that not only the conduct of the plaintiffs is relevant but also the conduct of the defendants in the cases where law relating to equity is dealt with. Here in this case, the conduct of the defendants is blameworthy and even after such blameworthy conduct, non-suiting the plaintiffs amounts to travesty of justice. Learned trial Court has failed to appreciate the evidence on record in its correct perspective. Therefore, the impugned judgment and decree are liable to be set aside and consequently, the suit of the plaintiffs be allowed in toto . Alternatively, he would submit that in case of rejection of plea of

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specific performance, the appellants are entitled to refund of the amount paid to the defendants towards earnest money with interest.

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Reliance has been placed on the decisions in the matters of Chand Rani (Smt) (Dead) by LRs Vs. Kamal Rani (Smt) Dead by LRs, (1993) 1 SCC 519; Alok Bose Vs. Parmatma Devi and others, (2009) 2 SCC 582; Syscon Consultants Pvt. Ltd. Vs. Primella Sanitary Products Pvt. Ltd. & another, (2016) 10 SCC 353; Maharaj Singh and others Vs. Karan Singh (dead) through LRs and others, (2024) 8 SCC 83; R. Kandasamy (since dead) and others Vs. TRK Sarawathy and another; (2025) 3 SCC 513; and Vijay Prabhu Vs. ST Lajapathie and others, 2025 INSC 52 .

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On the other hand, learned counsel for the respondents supported the impugned judgment and decree and would submit that learned trial Court minutely appreciated the oral and documentary evidence and rightly dismissed the suit of the plaintiffs. Section 12 of the Specific Relief Act does not apply where inability to perform specific performance on part of the contract arises because of the plaintiff’s own conduct.

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Reliance is placed on the decisions in the matters of Vinod Kumar Arora Vs. Smt. Surjit Kaur, AIR 1987 SC 2179; Kartar Singh Vs. Harjinder Singh and others, AIR 1990 SC 854; Basantilal Vs. Rameshwar Prasad and another, 1993 0 ILR (MP) 584; B. Leelavathi Vs. Honnamma and another, 2005 SAR (Civil) 622

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Supreme Court; Bharat Ram Sahu Vs. Salik and others, 2006(2) CGLJ 352; Viseshar Yadav Vs. Govind Swami, 2006(2) CGLJ 255; AK Lakshmipathy (D) & others Vs. Rai Saheb Pannala H. Lahoti Charitable Trust & others, 2010 SAR (Civil) 8 Supreme Court; Nageshwar Prasad Singh Vs. Durga Devi and another, 2010(1) CGLJ 355; Haldhar Patel and others Vs. PS Thakur and another, 2012(3) CGLJ 495; Vathsala Manickavasagam and others Vs. N. Ganesan and another, (2013) 9 SCC 152; Rajasthan State Road Transport Corporation Vs. Bajrang Lal, 2014(3) MPLJ 506; Omprakash Vs. Laxminarayan and others, 2014(3) MPLJ 16; Premmada Prabhakar and others Vs. Youngmen’s Vysya Association and others, 2014 SAR (Civil) 999 Supreme Court; Syscon Consultants Pvt. Ltd. Vs. M/s Primella Sanitary Products Pvt. Ltd. and others; 2017 SAR (Civil) 10 Supreme Court; Lakshmi Sreenivasa Co-operative Building Society Ltd. Vs. Puvvada Rama Rao (dead) by LRs. & others; 2018 SAR (Civil Supp.II) 272 Supreme Court; Shyam Narayan Prasad Vs. Krishna Prasad and others, 2019(2) MPLJ 307; Ravi Setia Vs. Madan Lal and others, 2020 SAR (Civ) 23 Supreme Court; UN Krishnamurthy (since deceased) thr. LRs Vs. AM Krishnamurthy, 2022 0 Supreme (SC) 565; Desh Raj and others Vs. Rohtash Singh, 2022 0 Supreme (SC) 1244; R. Kandasamy (since dead) and others Vs. TRK Sarawathy and another; 2024 8 Supreme 684; Maharaj Singh and others Vs.

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Karan Singh (dead) thr. LRs. & others; 2024 5 Supreme 481; and Vijay Prabhu Vs. ST Lajapathie and others, 2025 INSC 52.

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Heard learned counsel for the parties and perused the material available on record.

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Learned trial Court on the basis of pleadings of the respective parties framed seven issues. The important issues being Issue Nos. 1,

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2 & 3 are reproduced as under:

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कमां��क	वा�द-प्रश्न	नि�ष्कर्ष�
1.	क्या�प्रति�वा�दी�क्रमां��क-1 से�3 द्वा�रा�प्रति�वा�दी� कमां��क4 वा5 क�सेहमांति�से�वा�दीभू�मिमांखसेरा�नं�. 193/1. राकबा�1.676 ह�क्टे�याराग्रा�मांफु�लगां��वा, प.ह.नं�. 18/25, �हसे!लवाजि#ल�दुगां% क�तिवाकया ह��वा�दी�गांणक�पक्षमां( दिदीनं��क30-09-014क* इकरा�रानं�मां�तिनंष्प�दिदी�तिकया�गांया�?	" इकरा�रानं�मां� प्रदीर्श% प!-1 प्रति�वा�दी�कमां��क-1 से�3क� मांध्यातिनंष्प�दिदी�तिकया�गांया�. जि#सेमां( प्रति�वा�दी�क्रमां��क4वा 5 क�सेहमांति�नंह/ थी!
2.	क्या�वा�दी�गांण, इकरा�रानं�मां�दिदीनं��क30-09-2014 क�प�लनंह��सेदी1वा�1या�रावा�त्पराराह�ह3?	"नंह/"
3.	क्या�वा�दी�गांणक�पक्षमां( तिनंष्प�दिदी�इकरा�रानं�मां� दिदीनं��क30-09-2014 अवा1धवार्श�न्याह1?	" प्रति�वा�दी�कमां��क4 वा5 औरा से�मांति�नं बा�ई क� परिराप्र�क्ष्यामां( र्श�न्याहनं�प�या� #��ह1"

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Both the parties filed various documents in support of their case. Ex.P/1 is the agreement dated 30.9.2014 and as per this agreement, it is clear that the same was executed between defendants – Hemraj, Pukhraj, Khemraj, Kunti Bai, Hemin Bai, Sumotin Bai and plaintiffs – Padam Jain & Roshan Jain. It is also clear from this agreement that only three defendants namely Hemraj, Pukhraj and Khemraj signed this document and it does not bear signature of other defendants.

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PW-1 Padam Jain (plaintiff No.1) also admits in para 10 and 11 of his cross-examination that when agreement of Ex.P/1 was executed, at that time defendants No. 4 and 5 namely Kunti Bai and Hemin Bai were not present there. He admits that in this case he has not filed any authorization letter/power of attorney executed by defendants No. 4 & 5 in favour of their brothers defendants No. 1, 2 & 3 for sale of land. He states that it is true that no document with regard to payment of advance amount to defendants No. 4 & 5 or receipt thereof has been produced. He volunteers that money was received by their brothers. He admits that in the revenue document B-1 (Ex.P/2) of the suit land, names of defendants No. 4 & 5 and their mother Sumotin Bai are also recorded. He admits that at the time of writing agreement of Ex.P/1, mother of defendants No. 4 & 5 namely Sumotin Bai was alive as per the document.

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In para 25 he admits that as per agreement Ex.P/1, apart from advance amount of Rs.5 lacs, a sum of Rs.20 lacs i.e. total Rs.25 lacs

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was to be paid by 10.11.2014 and that by 10.11.2014 the defendants were not paid Rs.25 lacs.

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The agreement Ex.P/1 was executed on certain terms and conditions. Condition No.2 of the agreement reads as under:

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“2. याहतिकपक्षक�राक्रमां��क-1 अपनं! उपराक्�सेम्पत्ति> क्र��क 38,00,000/(अक्षरा!-अड़�!सेल�खरुपया�मां�त्र) प्रति�एकड़क�दीरासे�तिबाक्र�करानं�क�सेCदी��या करालिलया�ह1, जि#सेक��ह�E तिवाक्र��नं�पक्षक�राक्र.-2 (क्र��) से�बा�Cराव्या�नं�रा�लिर्श रुपया� 2,00,000/- ( दी* ल�खरूपया�) नंगांदीएवा� 3,00,000/- (�!नंल�खरुपया�) चे�क क्र. 249513 दिदीनं��क 05.10.2014 सिंसेJडी!क�टेबा3कक�प्र�प्�करालिलया�ह1।क्र�� द्वा�रा�दिदी. 10.11.2014 �क 20,00,000/-(अक्षरा!-बा!सेल�खरुपया�) तिवाक्र��क* औराप्रदी�नंतिकया�#�वा�गां�।बा�क�क�राकमांपक्षक�राक्रमां��क-2 द्वा�रा�राजि#स्ट्री�क�सेमांया प्रदी�नंकरादी�#�वा�गां!।राजि#स्ट्री�क�सेमांया�से!मां�छःQ मां�ह�कतिनंध�%रिरा�क�गांईह1।"

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Thus, it is clear from the admission of plaintiff Padam Jain (PW1) and the conditions of the agreement (Ex.P/1) that at the time of execution of the agreement, all the owners of the suit property were not present, only defendants No. 1 to 3 were present and they signed the agreement. Defendants No. 4 & 5 were not present at the time of execution of the agreement and therefore, they did not sign the agreement. The plaintiff also admitted the suggestion of the defendants that he did not file any power of attorney or authorization letter executed by defendants No. 4 & 5 in favour of their brothers defendants No. 1 to 3 for sale of the suit land. The plaintiffs have also not filed any acknowledgment regarding payment of advance amount

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to defendants No. 4 & 5. Learned trial Court minutely appreciated the statements of all the witnesses and rightly found that the plaintiffs have failed to prove the fact that agreement (Ex.P/1) was executed between the plaintiffs and all the defendants on 30.9.2014 and held that no consent was given by defendants No. 4 & 5 to defendants No. 1 to 3 for execution of this agreement. It is also clear from Condition No.2 of the agreement that the plaintiffs had to pay Rs.20 lacs by 10.11.2014 to the defendants but they did not file any money receipt or acknowledgment to substantiate the fact regarding payment of this amount to the defendants. PW-1 Padam Jain admitted that he did not pay Rs.20 lacs by 10.11.2014 to the defendants. He volunteered that they had gone to the house of the defendants on 7.11.2014 for giving Rs.15 lacs but defendants refused to accept it saying that their sister is not present now and they would take it later, and therefore, cheque was sent subsequently. He admitted that the said fact is not mentioned in the legal notice (Ex.P/3), plaint and statement on oath. He also admitted that the cheque was issued after sending legal notice dated 27.11.2014 ( Ex.P/3).

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The Hon’ble Supreme Court in the matter of Ravi Setia (supra) held in paras 9 & 10 of its judgment as under:

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“9. There can be no straight jacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances. We are of the considered opinion, that

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in the facts and circumstances of the present case, the failure of the plaintiff to offer any explanation why the balance consideration was not deposited within the time granted, the filing of the application for extension of time after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the application for extension that the money would lie in the bank without earning interest, are all but evidence of incapacity on part of the plaintiff to perform his obligations under the agreement and reflective of lack of readiness and willingness. He preferred to wait and abide by the gamble of a favourable decision in the first appeal.

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The grant of relief for specific performance under Section 16(1)(c) of the Act is a discretionary and equitable relief. Under Section 16(1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that

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there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations.”

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In the matter of R. Kandasamy (supra) the Hon’ble Apex Court in paras 21 and 29 of its judgment observed as under:

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“21. Requisite pleadings and proof that are required of a plaintiff to succeed in a suit for specific performance are succinctly captured in this Court's decision of recent origin in U.N. Krishnamurthy v. A.M. Krishnamurthy, (2023) 11 SCC 775. The relevant passage reads: (SCC p. 783, para 24)

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"24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to

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specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money."

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Absent a prayer for declaratory relief that termination of the agreement is bad in law, whether a suit for specific performance is maintainable?

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A suit for specific performance of a contract for sale, normally, is premised on a written agreement between the contracting parties, signifying a meeting of minds of two persons or more. Terms of the agreement, which are reasonably ascertainable from the written document, assume extreme relevance. After all, compliance with other requisites takes the shape of a concluded contract and should there be no vitiating factor, the parties are bound thereby.”

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In the matter of UN Krishnamurthy (supra), the Hon’ble Supreme Court held in paras 43 & 44 of its judgment as under:

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“43. In Saradamani Kandappan (supra) this Court reiterated that (1) while exercising discretion in suits for Specific Performance, the Courts should bear in mind that when the parties prescribed a time for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored; (ii) the Courts will apply greater scrutiny and strictness when considering whether purchaser was ready and willing to perform his part of the contract and (iii) every suit for Specific Performance need not be decreed merely because it is filed within the period of limitation,

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by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.

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In Atma Ram v. Charanjit Singh, (2020) 3.SCC 311 Justice V. Ramasubramanian speaking for this Court made the following pertinent observation:-

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"9... No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming. readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance."

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Learned trial Court upon due appreciation of oral and documentary evidence rightly found that the agreement (Ex.P/1) was not signed by defendants No. 4 & 5 and they were not consenting party to this agreement. Accordingly, the learned trial Court was justified in deciding Issue No.3 that this agreement is null and void in relation to defendants No. 4 & 5.

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DW-1 Khemraj admits in para 12 of his deposition that at the time of execution of the agreement, they were given Rs.2 lacs cash and self-cheque of Rs.3 lacs as earnest money and subsequently three lacs cash was given in two installments in lieu of that cheque. In para 13 he admits that later on a sum of Rs.5 lacs was deposited in his account without his knowledge and they did not inform about it to the plaintiffs. He admits that they utilized the said five lacs and did not return it till date. It is also clear from penultimate paragraph of notice Ex.P/14 that the defendants have obtained total Rs.10 lacs from the plaintiffs and they are ready to return the said amount to the plaintiffs.

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Learned trial Court also found that defendants No. 1 to 3 received Rs.10 lacs as advance money but defendants No. 4 & 5 did not sign the agreement and also the plaintiffs failed to prove that defendants No. 4 & 5 received any advance money from the plaintiffs and as such, this agreement is not binding on them.

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The Hon’ble Supreme Court in the matter of Satish Batra Vs. Sudhir Rawal reported in (2013) 1 SCC 345 held in para 15 as under:

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“15. Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance, by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get the double the amount, if it is

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so stipulated. It is also the law that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.”

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As per learned counsel for the appellants, once the learned trial Court held the agreement (Ex.P/1) valid in respect of defendants No.1 to 3, it ought to have partly decreed the suit of specific performance of contract in favour of the plaintiffs in view of provisions of Section 12 of the Specific Relief Act. However, it is clear that the plaintiffs have failed to prove their readiness and willingness to perform their contractual obligations. They did not pay Rs.20 lacs as per conditions of the agreement within the stipulated period. Learned trial Court also found that all the defendants are joint owner of the suit property, so agreement of Ex.P/1 is not executable against defendants No. 1 to 3 and thus, decided the issues against the plaintiffs and in favour of the defendants. The findings recorded by learned trial Court are based on proper appreciation of the overall material available on record and are in consonance with the aforesaid guidelines of the Hon’ble Supreme Court.

¶103

The Hon’ble Supreme Court in the matter of Vijay Prabhu (supra) held in para 15 of its judgment as under:

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“15. In the aforesaid context, we may refer to a decision of this Court in Jaswinder Kaur (Now Deceased) through her Legal

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Representatives and Others v. Gurmeet Singh and Others reported in (2017) 12 SCC 810, wherein this Court observed in paras 19, 20 and 21 respectively as under:

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"19. In Abdul Haq v. Mohd. Yehia Khan reported in AIR 1924 Pat 81, the Court observed that the Court will not as a general rule compel specific performance of a contract unless it can execute the whole contract. It is not a case where the entire contract is not capable of performance. Section 12 encompasses provisions in respect of a claim for specific performance of part of a contract. Sections 14 and 17 of the old Act have been amalgamated with modifications and the explanation based on Section 13 of the repealed Act together, the law is stated with clarity under Section 12 of the Act.

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Section 12(1) of the Act provides that specific performance can be granted on part of a contract only in the circumstances mentioned in the section.

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Section 12(2) of the Act deals with breach the contract if a party is unable to perform the whole of its part and such part bears a small proportion to the whole in value and admits compensation in money. The expression "unable to perform" in Section 12(2) of the Act for instance would mean that a part of the property destroyed after contract or act of God or an act by which it would cease to exist. In such a case party to a contract shall be deemed to be unable to perform the whole or its part of the contract. Such a person would come within the words "party in default". The inability to perform may arise by deficiency in quantity of subject-matter or deficiencies or some legal prohibition or such other causes. None of such causes is present in the instant case.

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Section 12 of the Act does not apply where the inability to perform specific performance on part of contract arises because of the plaintiff's own conduct as held in Abdul Rahim v. Maidhar Gazi reported in AIR 1928 Cal 584.

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In Graham v. Krishna Chunder Dey reported in AIR 1925 PC 45, it has been laid down that the Explanation in the section exhaust all the circumstances in which partperformance can be granted. Section 12(2) of the Act deals with the situation where a party is unable to perform and such part is only a small proportion in value and capable of compensation in form of money. It was not a

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case covered in Section 12(2) of the Act at all. Under Section 12(3) of the Act party in default is entitled to specific performance on payment of whole consideration or for the part left unperformed but here in the instant case the plaintiff being in default could not be said to be entitled to invoke Section 12(3) of the Act also.”

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In light of the aforesaid decision and the oral and documentary evidence on record coupled with the conduct of the plaintiffs, we are not inclined to grant decree for specific performance of part of a contract. The judgments relied upon by learned counsel for the appellants being distinguishable on facts are of no help to appellants. However, in view of the admitted position as is reflected from the evidence of DW-1 Khemraj and the legal notice (Ex.P/14) that defendants No. 1 to 3 received total Rs.10 lacs as advance money from the plaintiffs, we are of the opinion that the plaintiffs are entitled for refund of this amount with interest.

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In the result, the appeal is allowed in part. Defendants No. 1 to 3 are directed to return Rs.10 lacs to the plaintiffs with interest @ 6% p.a. from the date of passing of this judgment till its actual payment, within a period of six months from today. The impugned judgment and decree stand modified to the above extent.

¶116

Let a decree be drawn up accordingly.

¶117

Sd/ Sd/ (Rajani Dubey) (Sachin Singh Rajput) Digitally signed MOHD by MOHDAKHTAR KHAN Judge Judge AKHTAR Date: KHAN 2025.07.1716:39:25 +0530 Khan

Padam Jain v. Hemrai (Died) Through Legal Heirs-

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Padam Jain v. Hemrai (Died) Through Legal Heirs-

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