JUDGMENT : 1. This is plaintiff’s first appeal against the judgment and decree dated 16.12.2013 passed by learned 3rd Additional District Judge of First Additional District Judge, Bilaspur, in Civil Suit No. 14-A/2012, by which the plaintiff suit for specific performance of contract dated 31.12.2019 has been dismissed and also prayer for declaring the sale deed dated 28.02.2011 executed in favour of defendant no. 5 to 7 to be declared as null and void has been rejected. 2. Brief facts reflected from the plaint are that the land bearing khasra no. 222/02 area .96 acres situated at village Pandhi P.H. No. 18, Revenue Circle Seepat, Tahsil Masturi, District Bilaspur is recorded in the name of defendant no. 1 to 4 (which in subsequent paragraph will be referred to as suit property). It has been contended that the suit property was inherited by defendants No. 1 to 4 from their ancestral Karamat Khan and they have full legal right to transfer the said property. It has been further contended that defendant No.1 for her family expenditure and for herself and her wards defendants No. 2 to 4, has executed an agreement on 31.12.2019 for sale of the property @ 5000 per dismal and after execution of the sale deed the property was handed over to the plaintiff. On the date of execution of agreement on 31.12.2009 an advance amount of Rs. 1,00,000/- was given to the defendants No. 1 to 4. It was specifically mentioned in the terms of the agreement that defendant No. 1 will conduct demarcation in presence of the plaintiff and whatever area of the suit property is physically available after demarcation the sale deed will be executed for that part of property only and the sale consideration will be given accordingly. But the defendant has not done the demarcation. 3. It has been further contended that in the agreement it has been specifically mentioned that the sale deed will be executed up to 28.02.2010 but in absence of demarcation the sale deed till that date could not be executed despite persuasion made by the plaintiff to defendant No. 1 for execution of sale deed. The plaintiff was ready and willing to perform his part of contract on 28.02.2010 and even thereafter also till today, the amount of sale consideration is kept reserved by him for execution of sale deed which is still lying with the plaintiff. The plaintiff was ready and willing to perform his part of contract on 28.02.2010 and even thereafter also till today, the amount of sale consideration is kept reserved by him for execution of sale deed which is still lying with the plaintiff. The defendant No.1 has sent legal notice on 01.03.2011. From bare perusal of the said notice, it is reflected that defendant no. 1 is not willing to perform his part of contract. The defendant No.1 has not declared the agreement dated 31.12.2009 as null and void still she has executed sale deed in favour of defendants No. 5 to 7 on 28.02.2011. On above factual matrix, the plaintiff has filed the present suit for declaring the sale deed dated 28.02.2011 executed between defendant no.1 and defendant No. 5 to 7 to be declared as null and void and also prayed for execution of sale deed in pursuance of agreement dated 31.12.2009 executed between the plaintiff and the defendants No. 1 to 4. It has also been prayed that in case defendant no. 1 to 4 failed to perform their part of contract then it may be executed by the intervention of this Court. 4. Defendant No. 1 to 4 have filed their written statement denying the allegation made therein. It has been specifically pleaded in the written statement that the demarcation of the suit property was very much clear and the plaintiff was never ready for measurement of suit property and even he was not ready to execute the sale deed despite persuasion made by defendants No. 1 to 4. It has been specifically admitted by defendants No. 1 to 4 that on the date of agreement i.e. 31.12.2009 she has received Rs. 1,00,000/- as advance but the plaintiff has not made any attempt to execute the agreement, therefore, on the basis of plaintiff disinterest to execute agreement the same has been cancelled. It has been further submitted that since the plaintiff has not shown their willingness to execute the agreement the defendants No. 1 to 4 have executed agreement with defendants No. 5 to 7 and the possession has already been given to them and would pray for dismissal of the suit. 5. The defendant no. It has been further submitted that since the plaintiff has not shown their willingness to execute the agreement the defendants No. 1 to 4 have executed agreement with defendants No. 5 to 7 and the possession has already been given to them and would pray for dismissal of the suit. 5. The defendant no. 5 to 7 have filed their written statement denying the allegation made in the plaint and have pleaded that plaintiff has failed to perform his part of contract, therefore, the agreement has already been cancelled and the defendant no.1 has duly intimated to the plaintiff about cancellation of agreement and after one year the sale deed has been executed in his favour and since they are in possession of the suit property. On the above factual matrix, the defendants have prayed for dismissal of the suit. 6. On the pleadings of the parties, learned trial Court has framed as many as four issues. (i) Whether the sale deed executed on 28.02.2011 of the suit property is void and illegal .? (ii) Whether agreement dated 31.12.2009 is valid and what is its effect. ? (iii) Whether plaintiff was ready and willing to perform his part of contract. If yes then what is its effect.? (iv) Relief and cost.? 7. The plaintiff to substantiate his stand has exhibited document agreement dated 31.12.2009 Ex.P-1, Notice dated 01.03.2011 (Ex.P-2), Sale deed dated 28.02.2011 (Ex.P-3) and examined plaintiff himself as PW-1 and Panchram Verma (PW-2). 8. The defendant No. 1 to 4 have examined Subraatbee (DW-), and Meghnath Kenwat (DW-2). 9. The plaintiff witness Kundal Lal Patel (PW-1) in his examination in chief by way of affidavit as provided under Order 18 Rule 4 CPC has reiterated the averments made in the plaint. The witness was cross-examined by defendant no. 1 to 4 wherein he has admitted that he could not execute the sale deed on the date mentioned in the agreement i.e. on 28.02.2010 still he has not given any notice. He has also admitted that he has not given any notice to Subraatbee for execution of agreement. He has also admitted that notice given by the Subraatbee through his counsel has been received by him which is exhibited as Ex.P-2. He has also admitted that with regard to sale of suit property he has received information within 2-4 days from the date of sale deed. He has also admitted that notice given by the Subraatbee through his counsel has been received by him which is exhibited as Ex.P-2. He has also admitted that with regard to sale of suit property he has received information within 2-4 days from the date of sale deed. But he has not given any notice to Defendant No.1 10. Panchram Verma (PW-2) in his examination-in-chief by way of affidavit as provided under Order 18 Rule 4 CPC has supported the case of the plaintiff. The witness was cross-examined and nothing has been brought on the record in the cross-examination. 11. Subraatbee (DW-1) in her examination-in-chief by way of affidavit as provided under Order 18 Rule 4 CPC has reiterated the averments made in the written statement. The witness was cross-examined by the plaintiff and in the cross examination she has voluntary said that Kundan has refused to purchase the property, therefore, she has sold the property to defendant No. 5 to 7. The other witness Meghnath Kenwat was examined by defendant No.1 to 4 and he has supported the case of defendants No.1 to 4 and he was cross-examined by the plaintiff wherein he has stated that at the time of preparation of affidavit, he has told to the counsel that he alongwith Subraatbee has gone to Kundal Lal house for execution but he has refused to execute the sale deed. He has again denied that Kundan Lal has not refused to execute the sale deed. 12. The defendant No. 5 to 7 have not examined any witness in their support. 13. Learned trial Court after appreciating the evidence, material on record has dismissed the suit. Learned trial Court while dismissing the suit has recorded its finding that between 31.12.2009 to 28.02.2010 i.e. the time period given in the agreement, the plaintiff has not contacted the defendant No.1 for execution of agreement, he has not given any notice and there is no time period for extension of period in the agreement also, therefore, time is the essence of the agreement and the plaintiff is also unable to plead and prove that he is ready and willing to perform his part of contract. The finding recorded by the learned trial Court with regard to issue No. 4 whether plaintiff is ready and willing to perform his part of contract is legal, justified and in accordance with the provision of section 16(C) of the Specific Performance Act which is reproduced below for ready reference:- Section 16(C) of the Specific Performance Act Section 16 of the Specific Relief Act, 1963, as it stood at the material time (prior to amendment with effect from 1.10.2018), inter alia, provides:- Personal bars to relief. —Specific performance of a contract cannot be enforced in favour of a person— (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation. —For the purposes of clause (c), — (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” 14. The finding recorded by the learned trial Court with regard to willingness and readiness of the plaintiff to perform is his part of contract is in accordance with Section 16(C) of the Specific Relief Act, 1963 as this Section bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction. 15. From bare perusal of Section 16(C) of the Act, 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 statement 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 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. In the present case, neither any such pleading was made nor evidence was adduced by the plaintiff even he has admitted that during the time period of the execution of sale deed he has not made any attempt to get the sale deed executed in his favour. Thus there is no readiness or willing on the part of the plaintiff to perform his part of contract. 16. The Hon’ble Supreme Court in the case of U.N. Krishnamurthy(Since Deceased) Thr. Lrs vs. A. M. Krishnamurthy in Civil Appeal No. 4703 of 2022 decided on 12.07.2022 has held in paragraphs 26 to 31 as under :- 26. In Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512 this Court held that: “40. 16. The Hon’ble Supreme Court in the case of U.N. Krishnamurthy(Since Deceased) Thr. Lrs vs. A. M. Krishnamurthy in Civil Appeal No. 4703 of 2022 decided on 12.07.2022 has held in paragraphs 26 to 31 as under :- 26. In Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512 this Court held that: “40. …..A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to per- form the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not “ready and willing” to perform his obligations.” 27. Pt. Prem Raj v. D.L. F. Housing and Construction (Pvt) Ltd. And Anr AIR 1968 SC 1355 cited by Mr. Pt. Prem Raj v. D.L. F. Housing and Construction (Pvt) Ltd. And Anr AIR 1968 SC 1355 cited by Mr. Venugopal, this Court speaking 1 (2010) 10 SCC 512 2 AIR 1968 SC 1355 through Ramaswamy J. held that “it is well-settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract…..” and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanesburgh, in Ardeshir Mama v. Flora Sassoon 55 IA 300, at pg. 372 AIR 1928 PC 208 . 28. In D.L.F. Housing and Construction (Pvt.) Ltd. (supra), in the absence of an averment on the part of the Plaintiff in the plaint, that he was ready and willing to perform his part of the contract, it was held that the Plaintiff had no cause of action so far as the relief for Specific Performance was concerned. In this case, of course, there is an averment in the plaint that the Respondent Plaintiff was all along ready and willing to perform his obligations under the contract. The question is whether the Respondent Plaintiff had proved his readiness and willingness to perform his obligations under the contract. 29. N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. (1995) 5 SCC 115 , this Court reiterated that Sectopm 16(c) of the Specific Relief Act, 1963 envisages that the Plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him 3 55 IA 300, at pg. 372 : AIR 1928 PC 208 4 (1995) 5 SCC 115 other than those terms, the performance of which has been prevented or waived by the Defendant. In N.P. Thirugnanam (supra) this Court said that the continuous readiness and willingness on the part of the Plaintiff was a condition precedent for grant of the relief of Specific Performance. 30. 372 : AIR 1928 PC 208 4 (1995) 5 SCC 115 other than those terms, the performance of which has been prevented or waived by the Defendant. In N.P. Thirugnanam (supra) this Court said that the continuous readiness and willingness on the part of the Plaintiff was a condition precedent for grant of the relief of Specific Performance. 30. This Court, in effect, held that for determining whether the Plaintiff was ready and willing to perform his part of the agreement it is necessary for the Court to consider the conduct of the Plaintiff prior and subsequent to filing the suit for specific performance. The relevant part of the judgment is extracted herein below:- “5. … Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief…” 31. In Umabai v. Nilkanth Dhondiba Chavan (2005) 6 SCC 243 , this Court held that a finding as to whether the Plaintiffs were all along and still ready and willing to perform their part of the contract, was a mandatory requirement under Section 16(c) of the Specific Relief Act. The Court would necessarily have to arrive at the finding that the Plaintiff all along were, and still are ready and also willing to perform their part of 5 (2005) 6 SCC 243 the contract, taking into account the entirety of the pleadings as also the evidence brought on record. To quote this Court:- “So far there being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.” 17. Thus the finding recorded by the learned trial Court that the plaintiff was not ready and willing to perform his part of contract is legal, justified and in accordance with law which does not warrant any interference by this Court. So far as with regard to plaintiff prayer for refund of Rs. 1,00,000/- with interest is concerned, there is no such pleading in the plaint but in the memo of appeal he has prayed for refund of Rs. 1,00,000/- along with 12% interest from 31.12.2009 till its repayment by the defendant No. 1 to 4. 18. To examine the relief sought by the appellant in this appeal with regard of refund of Rs. 1,00,000/- with 12% interest, it is expedient for this Court to consider the provisions of Section 22 of the Specify Relief Act 1963 which is extracted below:- "22. Power to grant relief for possession, partition, refund of earnest money, etc.-- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub- section (1) shall be without prejudice to its powers to award compensation under section 21. 19. From bare perusal of the Section 22 of the Specific Relief Act, it is quite vivid that no doubt, the provision of Section 22 of the Specific Relief Act does provide that where a relief is not claimed with respect to refund of earnest money or advance price/deposit, the courts will not grant such a relief. The provision of Section 22 of the Specific Relief Act, however, allows amendment of the plaint at any stage of the proceedings to seek refund of the amount paid under an agreement to sell. In the facts of the present case, there was no specific prayer in the plaint with respect to the refund of the price. The issue is that whether non-mention in the plaint by writing and seeking refund of the advance price paid results in a complete prohibition for the courts to refund the price received by a seller under an agreement to sell, once it is found that the agreement to sell does not have to go through and the suit for specific performance is being dismissed. For better understanding the provisions of Section 22 of the Act, it is necessary to note as to what is the object and requirement of a pleading to be filed by a party. Pleading is defined under Order VI CPC. A pleading will include a plaint and a written statement. What is a plaint is specified under Order VII CPC, and what is a written statement is specified under Order VIII CPC. It is now a settled law by virtue of a catena of decisions of the Hon'ble Supreme Court that object of a pleading is to give notice of a case to the other party. What is a plaint is specified under Order VII CPC, and what is a written statement is specified under Order VIII CPC. It is now a settled law by virtue of a catena of decisions of the Hon'ble Supreme Court that object of a pleading is to give notice of a case to the other party. The object of giving notice of a case to the other party is to ensure that the other party can meet the case. On this principle, the appellate courts have allowed the issues which are pure questions of law even at the appellate stage, even in cases till the Hon'ble Supreme Court, if the issue of law goes to the root of the matter, and even if there is no specific pleading, but the issue does arise from the admitted facts and the pleadings on record. Thus, the trial court as also the appellate courts can, depending on facts of a particular case, allow a pure issue of law to be raised, at any stage of the legal proceedings. This is being stated because when the object of Section 22 of the Specific Relief Act is seen, and of the requirement of seeking a relief with respect to the advance price paid under an agreement to sell to be included in the plaint, it is found that the object of stating/praying in a pleading for refund of the advance price and/or earnest money paid is to allow a defendant/seller to take up a defence as to why the advance price and/or earnest money should not be repaid. Obviously, defence of a defendant/seller would be that the advance price and/or earnest money is not to be re-paid because it is forfeited or liable to be forfeited either because of a specific term of the agreement to sell or because the defendant/seller has suffered a loss and consequently for the loss suffered by the defendant/seller, the advance price and/or earnest money paid under the agreement to sell has to be forfeited by applying the provision of Section 74 of the Indian Contract Act, 1872. 20. 20. It is also settled law that unless a seller proves a loss being caused to him on account of breach by a buyer in purchasing a property under an agreement to sell, the advance price and/or earnest money received under the agreement to sell cannot be forfeited because forfeiture is in the nature of being liquidated damages under Section 74 of the Indian Contract Act, and that Section 74 of the Indian Contract Act cannot come into play if the nature of the contract is such that the loss which is caused on account of the breach of contract can be proved and assessed in a court of law. This is the law as laid down way back by the Constitution Bench of the Hon'ble Supreme court in the case of Fateh Chand v/ Balkishan Dass, AIR 1963 SC 1405 , and such ratio being elaborated and expounded in the recent judgment of the Hon'ble Supreme Court in the case of Kailash Nath Associates v. Delhi Development Authority and Anr. (2015) 4 SCC 136 wherein the Hon’ble Supreme Court has held as under:- paragraph 42 to 43 is quoted herein below;- 42. In the present case, forfeiture of earnest money took place long after an agreement had been reached. It is obvious that the amount sought to be forfeited on the facts of the present case is sought to be forfeited without any loss being shown. In fact it has been shown that far from suffering any loss, DDA has received a much higher amount on re-auction of the same plot of land. 43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:- 43.1 Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation. 43.2 Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. 43.3 Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section. 43.4 The Section applies whether a person is a plaintiff or a defendant in a suit. 43.5 The sum spoken of may already be paid or be payable in future. 43.6 The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. 43.7 Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application. 21. From the above stated legal position and considering the facts and circumstances of the case, it is not in dispute that plaintiff has nowhere pleaded in the plaint with regard to refund of earnest money but in the memo of appeal he has claimed for refund of earnest money with 12% interest. The appeal is continuous proceedings, therefore, this Court can very well consider grant of refund of earnest money to the plaintiff. The defendant No. 1 to 4 in their written statement have clearly admitted the fact that they have received Rs. 1,00,000/- as advance amount and thereafter on 28.02.2011 they have sold the property to the defendant no. 5 to 7 for sale consideration of Rs. The defendant No. 1 to 4 in their written statement have clearly admitted the fact that they have received Rs. 1,00,000/- as advance amount and thereafter on 28.02.2011 they have sold the property to the defendant no. 5 to 7 for sale consideration of Rs. 4,80,000/- and no monetary loss for delay in sale of the property has been proved by the defendants No. 1 to 4, therefore, the defendants No. 1 to 4 cannot forfeit the earnest money given by the appellant, as such the judgment and decree passed by the learned trial Court needs to be modified and it is modified to the extent that the defendants No. 1 to 4 shall refund the earnest money of Rs. 1,00,000/- to the plaintiff within eight weeks from the date of receipt of the copy of the judgment and decree passed by this court. If the said amount of Rs. 1,00,000/- is not refunded to the plaintiff within eight weeks the same shall carry 6 % interest from the date of judgment and decree passed by this Court till actual payment is made. 22. In view of the above, the appeal is allowed in part. No order as to the cost. 23. Decree be drawn up accordingly.