High Court of Punjab and HaryanaRSA/4410/2015allowed

M/S Damini Resorts & Builders P Ltd v. Sarabjit Dhanda And ANR

2025-08-21Mr. Justice Vikram Aggarwal33 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Reserved on: 07.07.2025

Pronounced on: 21.08.2025

CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL " #$

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9 . *D Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another, 2022 AIR (SC) 4256; Desh Raj and others v. Rohtash Singh,

2023 AIR (SC) 163; Shyam Singh v. Daryao Singh (dead) by LRs and others, 2004 AIR (SC) 348; Kapilaben and others v. Ashok Kumar Jayantilal Sheth through POA Gopalbhai Madhusudan Patel and others, 2020(1) RCR (Civil) 352; United Bank of India v. Naresh Kumar and others, 1997 AIR (SC) 3; and R. Lakshmikantham v. Devaraji, 2019(8) SCC 62,#! 4 Radha Raman Sharma v. Raj Kumar, 2024(4) RCR (Civil) 485& !

9 . 9 "!4 Haja Mydeen (Died) and others v. K.S. Sanjayan and others, 2023(2) CTC 801.

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$ "That the Second Party shall be entitled to get the said property transferred and mutated in his own name or in the name of his nominee (s) in the Revenue Records or any other concerned authority at their own cost after the full payments are made to party of the First Party.

That the First Party shall execute proper sale deed, as per the agreed terms and conditions with the Second Party, in respect of the aforesaid property in his or his nominee(s) name and First Party shall have no objection for the same. In case the First Party fails to complete their obligation as per the said terms of agreement, Second Party can get the same executed through the court of law. In case the Second Party fails to make

0 the payment to the First Party on the dates mentioned above the First Party forfeits the earnest money and the agreement stands cancelled."

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+ ( 0//11/$ "WHEREAS the Party of the First Part has purchased land measuring 1500 sq. yds. Approx., left side portion facing Ferozepur Road out of total land of 5700 sq. yds. Approx., comprising in Khewat No.561, Khatuni No.657, Khasra No.33/9/1, 12/1, 12/2/2, 19/1/1 with in the revenue estate of Village Sunet, Hadbast No.159 as shown in the Jamabandi for the year 199697 situated at Ferozepur Road, Opp. Milk Plant, Ludhiana from Sh. Harbans Singh S/o Sh. Dasaundha Singh R/o 14B, Sarbha Nagar, Ludhiana vide Agreement dated 01.06.2002.

xxxx xxx xxx xxxx xxx xxx 3.

That the party of the First Part shall get the Sale Deed of 500 sq.yds., executed and registered on or before 3011 2002 on the receipt of price to this ratio after deducting proportional advance already paid, in favor of party of the Second Part either directly from the recorded owner i.e., Sh.

3 Harbans Singh or shall get it transferred in its name and then shall get the Sale Deed executed and Registered in favor of Second Part and shall deliver the actual physical possession of that portion with specific boundaries starting from the Ferozepur Road and demarcation at the spot.

That the balance sale consideration shall be payable at the time of registration of the sale deed for which a date is fixed as 31122002 and party of the First Part shall get the sale deed executed or registered in the name of the party of Second Part either directly from the original owner Sh. Harbans Singh or shall get it transferred in his name and then shall get the sale deed executed and registered in the name of party of Second Part within the stipulated period and shall get the property demarcated at the spot."

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In this appeal, therefore, the only question which arises for consideration is whether the plaint was duly signed and verified by a competent person.

In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest

6 should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company.

Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation.

In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure.

< power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.

xxx xxx xxx xxx xxx xxx 13.

The court had to be satisfied that Sh. L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Sh. L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Sh. L.K. Rohatgi in signing the plaint and thereafter it continued with the suit."

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& R.Kandasamy (Since Dead) and others v. T.R.K. Sarawathy and another, 2025 (3) SC 513&!

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Thirugnanam v. R. Jagan Mohan Rao, 1995 (5) SCC 115; Prakash Chandra v. Angadial, 1979(4) SCC 393; Nirmala Anand v. Advent Corpn. (P) Ltd., 2002(8) SCC 146; Kamal Kumar v. Premlata Joshi, 2019(3) SCC 704; P. Daivasigamani v. S. Sambandan, 2022(14) SCC 793; U.N. Krishnamurthy (Since Deceased) v. A.M. Krishnamurthy, 2023(11) SCC 775.

( *C.S.Venkatesh v. A.S.C.Murthy (D) By Lrs., 2020(3) SCC 280&!

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$ "15. The words 'ready and willing' imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.

/1 16.

In N.P. Thirugnanam (Dead) by LRs. v. Dr. R. Jagan Mohan Rao and Others, it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of 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. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.

17.

In Pushparani S. Sundaram and Others v. Pauline Manomani James(deceased) and Others2, this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: "So far these 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. 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." 1995 (5) SCC 115 2002 (9) SCC 582. 18.

Similar view has been taken by this Court in Manjunath Anandappa URF Shivappa Hanasi v. Tammanasa and Others and Pukhraj D. Jain and Others v. G. Gopalakrishna . "

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( Sangita Sinha v. Bhawana Bhardwaj and others, (Civil Appeal No.4972 of 2025, decided on 25.04.2025) Law finder ID 2715344: "16. It is settled law that under the Act, 1963, prior to the 2018 Amendment, specific performance was a discretionary and equitable relief. In Kamal Kumar vs. Premlata Joshi and Ors., (2019) 3 SCC 704, which has been followed in P. Daivasigamani vs. S. Sambandan, (2022) 14 SCC 793, this Court framed material questions which require consideration prior to grant of relief of specific performance. The relevant portion of the judgment in Kamal Kumar (supra) is reproduced hereinbelow: "7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:

7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property;

7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he

// is still ready and willing to perform his part as mentioned in the contract;

7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;

7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;

7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.

8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts."

17. It is trite law that 'readiness' and 'willingness' are not one but two separate elements. 'Readiness' means the capacity of the Respondent No.1 buyer to perform the contract, which would include the financial position to pay the sale consideration. 'Willingness' refers to the intention of the Respondent No.1buyer as a purchaser to perform his

/0 part of the contract, which is inferred by scrutinising the conduct of the Respondent No.1buyer /purchaser, including attending circumstances.

18. Continuous readiness and willingness on the part of the Respondent No.1buyer /purchaser from the date of execution of Agreement to Sell till the date of the decree, is a condition precedent for grant of relief of specific performance. This Court in various judicial pronouncements has held that it is not enough to show the readiness and willingness up to the date of the plaint as the conduct must be such as to disclose readiness and willingness at all times from the date of the contract and throughout the pendency of the suit up to the decree. A few of the said judgments are reproduced hereinbelow: A.

In Gomathinayagam Pillai and Ors. vs. Palaniswami Nadar, (1967) 1 SCR 227, it has been held as under: "6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sassoon, SCC OnLine PC 43:

"In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was 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. Failure to make good that averment brought with it the inevitable dismissal of his suit." The respondent must in a suit for specific performance of an agreement

/3 plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit...." (emphasis supplied) B. In Vijay Kumar and Others vs. Om Parkash, 2018 SCC OnLine SC 1913, it has been held as under: "6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff...." (emphasis supplied) C. In J.P. Builders and Another vs. A. Ramadas Rao and Another, (2011) 1 SCC 429, it has been held as under: "27.

It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is noncompliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." (emphasis supplied) D. In Umabai and Another vs. Nilkanth Dhondiba Chavan (Dead) by LRs and Another, (2005) 6 SCC 243, it has been held as under: "30.

circumstances. A bare averment in the plaint or a statement made in the examinationin chief would not suffice. The conduct of the plaintiff respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records." (emphasis supplied) E. In Mehboob UrRehman (Dead) through Legal Representatives v. Ahsanul Ghani (supra), it has been held as under: "16. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence.

The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so..." (emphasis supplied) F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives & Ors. (supra), it has been held as under: "16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail.

To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available.

/6 contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.

17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115], it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of 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. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along with other attending circumstances.

The amount of consideration which he has to pay to the defendant must necessarily be proved to be available." /E

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After taking into consideration the submissions made by both the sides, I am of the considered view that the agreement to sell dt. 22.6.02 executed between Sarabjit Dhanda and Damini Resorts and Builders Pvt. Ltd., Company has duly been admitted by the defendant No. 1. From the perusal of written statement, it reveals that the defendant No. 1 has duly admitted the agreement to sell dt. 22.6.02 which has been executed between Sarabjit Dhanda defendant No. 1 and plaintiff. From the bare perusal of Ex. P7 i.e. agreement to sell dt. 22.6.02 has been specifically mentioned that Damini Resorts and Builders Pvt. Ltd company incorporated under the Companies Act, 1956 having its office at SCO 1, Basant Avenue Road,

/E Ludhiana through its Director Vijay Kumar. I am of the considered view that when the agreement to sell has duly been admitted by the defendant No.1 and the execution of the agreement of sale by Sarabjit Dhanda with the plaintiff company and at that time, the defendant No. 1 did not raise any objection that Vijay Kumar, is not the Director of the plaintiff Company. In the written statement, the defendant No. 1 has duly admitted regarding the contents of the agreement to sell dt.22.6.02, therefore, at this stage, taking plea by defendant No. 1 that Vijay Kumar is not the Director of the plaintiff company, therefore, he is not competent to file this suit and also the suit is not maintainable. From the bare perusal of the file i.e. Ex.P1 memorandum of association of Damini Resorts and Builders Pvt. Ltd., Ex.

P3 which is true copy of resolution passed in the Board meeting dt. 5.4.03 wherein the resolution has been passed and Vijay Kumar has been authorised to sign and verify the pleadings and to do all the necessary acts and sign relating papers on behalf of the company. The authorities relied upon by Ld. Counsel for the defendant No. 1 i.e. Escorts Ltd., Vs. Sai Auto, 1991 CCC 363(Delhi). Nibro Ltd., Vs. National Insurance Co. Ltd., AIR 1991, Delhi, 25. Ashish C. Shah Vs. Seth Developers Pvt. Ltd., 2011(3), CCC 412(Bombay). Mukesh Kumar Vs. St. of Haryana, 2011(1), CCC 886(P&H). К. Bhaskar Rao Vs. K.A. Rama Rao, 2011(2), CCC 562 (Andhra Pradesh). State Bank of Travancore Vs. Kingston Computers(1) P. Ltd., 2011(3), R.A.J. 77(S.

/2 Ld. Counsel for the plaintiff i.e. M. Iqbal and Company Vs. Someswara Cements Chemical Ltd., 1999(2), RCR(Civil) , 21(Andhra Pradesh) , and M/s Gupta Plastic Pvt. Ltd., Vs. Firm Amrish Plastics, 2010(6), RCR(Civil), 1057(Rajasthan) supra are fully applicable to the facts of the present case. Accordingly the contention of Ld. counsel for the defendant No. 1 that Vijay Kumar is not competent to file the present suit, cannot be taken into consideration."

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