Russi Fisheries P. Ltd vs Bhavna Seth

RUSSI FISHERIES P. LTD. & ANR. …APPELLANT(S)

VERSUS

BHAVNA SETH & ORS. …RESPONDENT(S)

JUDGMENT

PANKAJ MITHAL, J.

1. This is an appeal arising from a suit for specific performance of

an agreement to sell.

2. The said suit for specific performance was dismissed with the

alternative relief of refund of the admitted amount paid in

advance with interest. The decree passed by the court of first

instance was reversed in first appeal which judgment and order

Signature Not Verified has been upheld by the High Court in Second Appeal. Digitally signed by GEETA AHUJA Date: 2026.04.09 16:51:49 IST Reason: 1

3. One Anil Kishore Seth (since deceased) now represented by his

heirs and legal representatives1 entered into an Agreement

dated 18.07.1988 with Russi Fisheries (P) Ltd.2 through its

Managing Director Smt. Surjit Kavaljit Singh3 to purchase

agricultural land admeasuring 79 Kanals 15 Marlas for a total

sale consideration of Rs. 15,41,000/-.

4. The aforesaid agreement to sell was executed by defendant

No.1 through its Managing Director, defendant No.2 and was

attested inter alia by her son Sanjit Kumar Singh4. The

aforesaid agreement is an unregistered agreement but as the

same was not denied, it was marked as an Exhibit.

5. Under the agreement, time was the essence of the contract and

the sale deed was to be executed by 15.12.1988. The time for

execution of the sale deed was twice extended and the last

extended time was up to 30.06.1989.

6. It is alleged that on the last date of the extended time i.e.

30.06.1989, the plaintiff attended the office of the Sub-

Registrar with the balance sale consideration to get the sale

1 Hereinafter referred to as the ‘plaintiff(s)’ 2 Hereinafter referred to as ‘defendant No. 1’ 3 Hereinafter referred to as ‘defendant No. 2’ 4 Hereinafter referred to as ‘defendant No. 3’

2 deed executed but no one appeared on behalf of the defendants

to execute the sale deed. Accordingly, after service of notice, the

plaintiff instituted Civil Suit No. 985/1989 for specific

performance of the agreement to sell dated 18.07.1988

contending inter alia that under the agreement the total sale

consideration agreed was Rs. 15,41,000/- out of which Rs.

75,000/- was paid by cheque as earnest money; 2,00,000/- by

cheque on 11.11.1988 to the defendant Nos. 2 and 3;

thereafter, a sum of Rs. 2,00,000/- was paid on 01.12.1988 in

cash to the defendant No. 3 and again a sum of Rs. 3,00,000/-

on 20.12.1988 to the defendant No. 3 when the time for

execution of sale deed was first extended to 31.01.1989. In this

way, the plaintiff allegedly paid Rs. 2,75,000/- by cheque and

Rs. 5,00,000/- in cash, totaling Rs. 7,75,000/-, and the

balance was payable at the time of execution of the sale deed.

He contended that he was always ready and willing to get the

sale deed executed and to perform his part of the agreement.

7. Defendant Nos.1, 2 and 3 all filed appearance but the suit was

contested by Defendant Nos. 1 & 2 only by filing a joint written

statement. They admitted the agreement to sell and the receipt

3 of Rs. 2,75,000/- through cheque as part of the sale

consideration but denied receiving the cash payment and that

the plaintiffs were never ready and willing to fulfill their part of

the agreement. They further stated that Defendant No. 3 was

not authorized to receive any payment on behalf of the

defendant No. 1 as he was merely an attesting witness to the

agreement.

8. The court of first instance dismissed the suit for specific

performance on 10.12.1999 by holding that the plaintiff failed

to prove his continuous readiness and willingness to perform

his part of the contract, but decreed it for the refund of sale

consideration of Rs. 2,75,000/-, admitted to have been paid in

cheques with interest @ 12% per annum.

9. Aggrieved by the aforesaid judgment and order, the heirs of the

plaintiff preferred an appeal which was allowed on 23.04.2003

holding that the plaintiff had paid Rs. 7,75,000/- and since he

attended the office of the Sub-Registrar on 30.06.1989, he was

ready and willing to perform his part of the agreement and as

such is entitled to a decree of specific performance.

4

10. On Second Appeal being preferred on behalf of the defendants,

the judgment passed by the first appellate court was upheld.

Thus, the decree of the specific performance as passed in first

appeal was maintained.

11. The decree of specific performance passed by the first appellate

court and as upheld by the High Court in Second Appeal was

challenged by the defendants by filing a Special Leave Petition

on 20.08.2009 before this Court which was duly entertained by

granting leave on 08.01.2010 with an interim order, as prayed

for. Therefore, this appeal is before us.

12. Despite the fact that the leave was granted in the SLP and an

interim order was also passed, the heirs of plaintiff through the

process of the Court on the same very day i.e., 08.01.2010 got

the sale deed executed in their favour on the strength of the

decree of specific performance passed by the first appellate

court as affirmed in second appeal.

13. It is also pertinent to mention that the defendants sold 60

percent of the suit land on 12.02.2009 i.e., even before the SLP

was filed but during the pendency of the litigation. The

remaining 40 percent of the land was sold by them during the

5 pendency of this appeal on 27.02.2025. Therefore, though on

the one hand there is a sale deed in favour of the plaintiffs of

the suit land, the same also stands transferred to third parties

by the defendants during the pendency of the litigation.

14. In the background of the above transfers of the suit land made

by the parties, one of the points before this Court would be as

to the effect and impact of the above transfers on the outcome

of the suit itself.

15. We have heard Shri K. Parameshwar, learned senior counsel

for the defendants and Shri Pawanjit Singh Bindra, learned

senior counsel for the substituted plaintiffs.

16. Shri K. Parameshwar, learned senior counsel appearing for the

defendants, at the very outset, tenders unconditional apology

for not disclosing the fact of execution of the sale deeds dated

12.02.2009 and 27.02.2025, transferring the said land to third

parties and submits that such an omission in the pleadings

had occurred only on account of improper advice and the fact

that the sale, if any, made would be subject to the doctrine of

lis pendens. There was no oblique motive or any deliberate

concealment on the part of the defendants. Further, the sale

6 deeds so executed are not void ab initio but are subject to the

decision of this appeal. In this connection, he relied upon.

17. It is worth noting that the aforesaid transfers have been made

during the pendency of the litigation and therefore, the same

would be governed by the principle of lis pendens as enshrined

under Section 52 of the TP Act and the said transfers have to

abide by the ultimate decree to be passed in this appeal. In this

connection, reliance has been placed upon Thomson Press

(India) Ltd. vs Nanak Builders & Investors (P) Ltd5, wherein

the Division Bench held that transfer pendente lite is neither

illegal nor void ab initio but remains subservient to the rights

of the parties eventually determined by court in the pending

litigation. In view of the above, whatever transfers have been

made pending the litigation or this appeal would follow the

decision passed in this appeal. Therefore, in the facts, we

ignore the omission and proceed on the merits.

18. On merits, Shri K. Parameshwar submits that the grant of relief

of specific performance of an agreement to sell is an equitable

and a discretionary relief. The agreement to sell is dated

5 (2013) 5 SCC 397

7 18.07.1988 and the first appellate court had decreed the suit

on 23.04.2003. In between, there was immense increase of

price of the land and as such it became unequitable with the

passage of time to grant the relief of specific performance of the

agreement. In view of the above, he submits it is not justified

to uphold the decree after such a long distance of time from the

date of the agreement. It would be highly unequitable to the

defendants.

19. He next submitted that the plaintiff had not entered into the

witness box to prove the plaint allegations despite the fact that

he was alive until 13.05.1996 and had the opportunity before

the court of first instance to appear and testify. In the absence

of any proof of pleadings contained in the plaint, the suit could

not have been decreed on the basis of the testimony of other

witnesses.

20. He further submitted that the plaintiff had only paid a sum of

Rs.2,75,000/- through cheques and thereafter, there was no

payment in favour of the defendant no.1-company. The cash

payment of Rs.2,00,000/- plus Rs.3,00,000/- totaling

Rs.5,00,000/- alleged to have been paid to the defendant no.3

8 would not enure to the benefit of defendant nos.1 i.e., the

Company inasmuch as defendant no.3 who allegedly accepted

the cash payment was never examined as a witness and also

had no authority to receive the same on behalf of the company.

21. Shri K. Parameshwar further submitted that the plaintiff was

never ready and willing to perform his part of the agreement

inasmuch as under the agreement dated 18.07.1988, time was

the essence of the contract and the sale deed was to be

executed on or before 15.12.1988. Further, the defendants

have not permitted any extension of time and even if the last

extended period is treated to be up to 30.06.1989, the plaintiff

had not given any notice requiring the defendants to appear

before the office of Sub-Registrar for the execution of the sale

deed. The defendants categorically denied receiving the notices

dated 13.06.1989 and 22.06.1989 alleged to have been issued

by the plaintiff in this connection.

22. In addition to the above, he submitted that there is no evidence

to prove that the plaintiff attended the office of the sub-

Registrar on 30.06.1989. The testimony of PW-4 in this

connection, is not admissible as there is no document or

9 pleading to verify PW-4’s involvement. Further, PW-1, the clerk

of the office of the Sub-Registrar had not and could not have

proved the signatures of the Sub-Registrar as he was not in the

office of Sub-Registrar in 1989 and had no personal knowledge

of the events. Therefore, there was no continuous readiness

and willingness on part of the plaintiff to carry out his

obligation under the agreement.

23. Lastly, Shri K. Parameshwar submitted that the suit for specific

performance as filed by the plaintiff was dismissed by the court

of first instance which decree was reversed by the first appellate

court. As such, there were two contrary judgments recording

conflicting findings on the facts as regards to the payment of

part of the sale consideration as well as on readiness and

willingness of the plaintiff. This being the position, the High

Court was not justified in dismissing the second appeal only on

the ground that it raises no substantial question of law by

simply stating that the findings recorded by the First Appellate

Court are correct in view of the testimony of PW-1 and PW-4

but without even considering the statements of the said

10 witnesses which do not actually prove what has been held by

the first appellate court.

24. Shri Bindra, learned senior counsel on behalf of the plaintiff

has strongly opposed all the arguments advanced on behalf of

the defendants aforesaid. He contends that the agreement to

sell is an admitted document which bears the signatures of

both the parties. The cash payment receipts are duly signed by

the defendant no.3 and stood proved by the handwriting

expert. Moreover, the receipts clearly states that the cash

payment is being received on behalf of the defendant no.1 -

company. This sufficiently proves the cash transactions.

25. Secondly, he submits that even on the letters of extension of

time, there are signatures of the defendant no.2 – the Managing

Director of the Company which have not been denied by her

rather accepted in her cross-examination and further identified

and proved by the expert.

26. Shri Bindra further submits that the plaintiff had given due

notice not one but two, dated 13.06.1989 and 22.06.1989

calling upon the defendants to attend the office of Sub-

Registrar for the execution of the sale deed. The defendants

11 were actually aware of the last date fixed for the execution of

the sale deed and as such they were obliged to attend the office

of the Sub-Registrar which they failed to do. The plaintiff has

proved his attendance on the said date before the Sub-registrar

by moving an application which was duly accepted, signed and

stamped by the Sub-Registrar. There is no contrary evidence to

belie the said document.

27. Lastly, he submits that non-appearance of the plaintiff in the

witness box is not fatal to the suit as his Manager, PW-4 has

appeared as a witness and has proved the entire transactions

as he was working with him since before the execution of the

agreement.

28. In the end, he sums up by saying that the findings of fact

recorded by the First Appellate Court are not perverse and are

final. Therefore, there was no occasion for the Second Appellate

Court to re-appraise the evidence to examine the correctness of

the same. He further contends that once a sale deed dated

08.01.2010 had already been executed pursuant to the decree

of the First Appellate Court which has been upheld in second

appeal, there is no equity in favour of the defendants to get the

12 said sale deed reversed or set aside, rather in view of the said

sale deed, the sale deeds executed by the defendants are void

and non est.

29. In the instant case, though an issue was raised before the

Court of First Instance as to the valid existence of the

agreement to sell dated 18.07.1988, the said issue upon

consideration of the evidence adduced by the parties was

decided in favour of the plaintiffs but the suit was dismissed

for the relief of specific performance. Against the said finding,

the defendants have not filed any cross-objections in the appeal

preferred by the plaintiff. The said finding was accepted even

by the First Appellate Court and the suit for specific

performance was decreed. The defendants preferred second

appeal but never assailed the finding with regard to existence

of the agreement. No argument in this regard was raised, thus,

conceding that there exists a valid agreement to sell. In this

view of the matter, the existence of the valid agreement to sell

dated 18.07.1988 is no longer in dispute. Since, the said

agreement is acceptable to both the parties and has been

marked as an Exhibit, the question as to whether it was

13 unenforceable in law for want of registration loses all

significance and need not be gone into by us.

30. No doubt, the relief of specific performance was not granted by

the Court of First Instance and only the alternative relief to

refund the cheque amount of Rs.2,75,000/- paid in advance

was granted, nonetheless, the findings recorded by the First

Court were reversed by the Court of First Appeal and

categorical findings were recorded that the plaintiffs have

proved the extension of time for the execution of the sale deed,

the cash payment of Rs.5,00,000/- and that the plaintiff was

always ready and willing to get the sale deed executed within

time. These findings are strictly findings of facts and are not

shown to be perverse in any manner. They have not been

returned on the basis of any inadmissible evidence. Therefore,

in such a situation it was not open for the Second Appellate

Court to go into the correctness of those findings by

reappreciating the evidence adduced by the parties.

31. It is settled in law that the findings of fact howsoever erroneous,

cannot be reopened and disturbed in second appeal which is

required to be adjudicated only upon the substantial question

14 of law, if any, arising therein. Thus, the argument that the High

Court in second appeal ought to have examined the evidence

to ensure the correctness of the findings of the First Appellate

Court has no legs to stand and fails.

32. Long back in 1981, three judges of this Court in the case of

Bholaram vs. Ameerchand6 had ruled that even if findings of

facts by courts below are wrong or grossly inexcusable that by

itself would not entitle the High Court to interfere under

Section 100 CPC in the absence of clear error of law. A similar

view was reiterated in Madhavan Nair vs. Bhaskar Pillai

(Dead) by Lrs.7, wherein it has been laid down that even if the

First Appellate Court commits an error in recording a finding

of fact, that itself will not be a ground for the High Court to

upset the same.

33. In Kashibai w/o Lachiram and Another vs. Parwatibai w/o

Lachiram and others8, a similar proposition of law was laid

down by this Court and it was held that the High Court cannot

reappreciate the evidence and interfere with the findings of

6 (1981) 2 SCC 414 7 (2005) 10 SCC 553 8 (1995) 6 SCC 213

15 facts unless a substantial question of law or a question of law

duly formulated is to be decided. The second appeal does not

lie on the ground of erroneous findings of facts based on

appreciation of the relevant evidence.

34. Similar is the situation in the case at hand. The High Court has

not found any substantial question of law or a question of law

worth consideration in the second appeal and, therefore, there

was no occasion for it to have reappreciated the evidence so as

to come to a different conclusion.

35. Again, in Kulwant Kaur and Others vs. Gurdial Singh Mann

(Dead) by Lrs and Others9, it was emphasized that the fact

remains that in a second appeal, a finding of fact, even if

erroneous, will not be disturbed unless it is found that it stands

vitiated for want of perversity. No such case for interference has

been made out in the present case.

36. Even if we examine the evidence on record for the satisfaction

of the defendants, we find that the parties have mutually

agreed for the grant of extension of time to execute the sale

deed despite time being the essence of the agreement. The

9 AIR (2001) SC 1273

16 documents showing extension of time, two of which bear the

signatures of not only the defendant no.3 but also that of

defendant no.2 – the Managing Director of the Company –

defendant no.1. Significantly, defendant no.2, while appearing

as DW-1, has admitted her signatures on the agreement as well

as on other relevant documents, and has also acknowledged

that the last date of execution was extended till 30.06.1989. No

concrete or reliable evidence has been adduced to prove that

the extension of time was granted without taking her consent.

Further, the handwriting expert also corroborated the

genuineness of the disputed signatures. Therefore, the finding

of the First Appellate Court on the above score does not suffer

from any material illegality.

37. Secondly, the cash payment was made to the defendant no.3

who is none other than the son of defendant no.2 - the

Managing Director of the Company – defendant no.1. In the

receipts issued by him, he has categorically stated that he is

accepting payment on behalf of the company in the capacity of

being its Director and was authorized to receive the same. The

narration in the receipts that he is receiving payment on behalf

17 of the Company-defendant no.1 as the Director, has not been

denied by him as he never stepped into the witness box. No

evidence was brought on record to establish that he was not

the Director of the Company-defendant no.1. The submission

that the said receipts were in relation to some other

transactions does not stand established by any evidence

adduced by the defendants. Therefore, the finding of the First

Appellate Court in this connection is justified.

38. Lastly, the period of execution of the sale deed as last extended

was expiring on 30.06.1989. Therefore, the defendants were

under an obligation to show that they were also ready and

willing to execute the sale deed on or before the said date.

However, there is no positive evidence from their side to prove

discharge of their obligation. On the other hand, the plaintiffs

have issued notices dated 13.06.1989 and 22.06.1989 to the

defendants to attend the office of the Sub-Registrar on

30.06.1989 for the execution of the sale deed as that was the

last day for executing the same. No doubt, the said notices were

sent to the defendants under certificate of posting, which

proves that the notices were dispatched. Although, that may

18 not be conclusive evidence regarding their service, simply

denying receiving the notices would not mean that the notices

were not served, as it is not the allegation of the defendants

that they were not sent to the proper address. The defendants

have not adduced any evidence to prove that they were not

actually served with the said notices. The allegation in this

regard by them is only a bald allegation.

39. The plaintiff after giving the aforesaid notice had attended the

office of the of the Sub-Registrar on 30.06.1989 which stand

proved by his application submitted to the Sub-Registrar on

the said very date. The application clearly states that he has

come prepared and ready with the balance sale consideration

to get the sale deed executed. The receipt of the said application

in the office of Sub-Registrar with the stamp of the office of the

Sub-Registrar is duly proved by the evidence of the PW-1. The

mere fact that he has not proved the signatures of the Sub-

Registrar is not sufficient to belie the above document when the

submission of the application and the stamp of the Sub-

Registrar stand proved. Moreover, there is no denial of the fact

or evidence by the defendants that the contents of the

19 application are incorrect and that the plaintiff had not attended

the office with the necessary finances so as to get the sale deed

executed. The submission that no proof of possessing such

finance was produced is not material when the allegation in the

application that the plaintiff has come prepared with the

necessary funds is not sufficiently denied.

40. In view of the aforesaid facts and circumstances, the findings

as returned by the First Appellate Court on readiness and

willingness, extension of time and payment of cash money are

not perverse and illegal, which may warrant any interference.

41. Now, the crucial issue which remains is about the effect of non-

appearance of the plaintiff in the witness box to prove his plaint

case. It is an admitted position that the plaintiff himself has

not entered the witness box and has not offered himself to be

cross-examined. In such a situation, a presumption can always

be drawn against him that the case, as pleaded by him, is not

correct. In this connection, a reference can be made to the

decision of this Court in the case of Vidhyadhar vs Manikrao

and Another10, which lays down that where a party does not

10 (1999) 3 SCC 573

20 appear in the witness box, a presumption would arise that the

case set up by him is not correct. This Court in laying down as

aforesaid has referred to various decisions of the High Court.

The decisions of the High Court are also to the effect that when

a party fails to appear as a witness, it gives rise to an adverse

inference and nothing more.

42. The adverse presumption, if any, drawn for non-appearing in

the witness box by the plaintiff, is a rebuttal presumption and

if the aforesaid presumption is successfully rebutted by the

other cogent evidence on record, the said presumption would

not be material and applicable. In the present case, PW-4, the

Manager of the plaintiff, had appeared as a witness. He has

stated that he had been working with the plaintiff since 1988

and had the knowledge of all the transactions in relation to the

agreement to sell dated 18.07.1988. His testimony

substantially corroborates the case as set up by the plaintiff in

the plaint, including execution of agreement, payment of

consideration and extension of time. Therefore, in the light of

the evidence of the PW-4, the plaint allegations stand

corroborated. The adverse inference drawn on account of non-

21 appearance of the plaintiff stands rebutted by his evidence and

other evidence on record. In these circumstances, the non-

appearance of the plaintiff in the witness box would not be fatal

in this case.

43. In the recent case of Rajesh Kumar vs Anand Kumar and

Others11 in which one of us (P. Mithal, J) was a party, relying

upon Janki Vashdeo Bhojwani and Another vs Indusind

Bank Ltd. and Other12, it was held that a power of attorney

holder may depose on behalf of the principal in respect of such

acts which are within his personal knowledge but he cannot

certainly depose for the principal, for the acts done by the

principal and not known personally by him. Applying the same

analogy, the Manager, PW-4 herein had deposed about the

entire transaction based upon his personal knowledge as he

was attached to the plaintiff as the Manager. In such

circumstances, his evidence cannot be discarded.

44. This takes us to the last limb of the argument of the parties

with regard to the equitable and discretionary jurisdiction of

the court to grant the relief of specific performance. No doubt,

11 (2024) 13 SCC 80 12 (2005) 2 SCC 217

22 the agreement to sell was executed on 18.07.1988 and the

decree of specific performance was passed by the First

Appellate Court on 23.04.2003, after a gap of 15 years, no

evidence whatsoever was brought on record to establish that

within this period the price of property in the area had

escalated, making it inequitable to grant the decree of specific

performance.

45. The sale deeds executed by the defendants during the

pendency of the litigation are certainly hit by doctrine of lis

pendens and are non est. At the same time, the plaintiffs have

got the sale deed of the suit land executed in their favour by

following the due process of law on the basis of the decree of

specific performance granted in their favour by the First

Appellate Court. In such circumstances when the decree has

already been executed and substantive rights have accrued in

favour of the heirs of the plaintiff, it would be inequitable to

dislodge them from the benefit of the sale in exercise of

discretionary jurisdiction.

46. Accordingly, in the facts and circumstances of the case, we find

no merit in this appeal and the same is dismissed. The sale

23 deeds executed by the defendants on 12.02.2009 and

27.02.2025 are held to be non est and the decree as passed by

the First Appellate Court is maintained.

...................………………………….. J.

(PANKAJ MITHAL)

.............……………………………….. J.

(PRASANNA.B. VARALE) NEW DELHI;

APRIL 09, 2026.

24