LexRUSSI FISHERIES P. LTD. & ANR. versus BHAVNA SETH & ORS.
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[2026] 4 S.C.R. 479 : 2026 INSC 339 Russi Fisheries P. Ltd. & Anr. v. Bhavna Seth & Ors. (Civil Appeal No. 109 of 2010) 09 April 2026 [Pankaj Mithal* and Prasanna. B. Varale, JJ.] Issue for Consideration Issue arose as regards the correctness of the order passed by the High Court in the Second Appeal filed by the defendants, whereby the judgment passed by the first appellate court was upheld and the decree of the specific performance as passed in first appeal maintained. Headnotes† Specific performance – Relief of – Agreement to sell between the parties – Suit for specific performance of an agreement to sell filed by the plaintiff, dismissed 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 – Appeal by the heirs of the plaintiff – Allowed holding that the plaintiff had paid almost half of the amount and was ready and willing to perform his part of the agreement – Second Appeal by the defendants – Judgment passed by the first appellate court upheld and the decree of the specific performance as passed in first appeal maintained – Thereafter, Special Leave Petition filed wherein leave was granted and the same day, heirs of plaintiff got the sale deed executed in their favour on the strength of the decree of specific performance passed – However, the defendants sold 60 percent of the suit land even before the filing of SLP and remaining 40 percent of the land sold by them during the pendency of the instant appeal: Held: Findings of fact howsoever erroneous, cannot be reopened and disturbed in second appeal which is required to be adjudicated only upon the substantial question of law, if any, arising therein – Findings as returned by the First Appellate Court on readiness and willingness, extension of time and payment of cash money not perverse and illegal, which may warrant any interference – Adverse presumption, if any, drawn for non-appearing in the witness box by * Author 480 [2026] 4 S.C.R. Supreme Court Reports the plaintiff, is a rebuttal presumption and if the said presumption is successfully rebutted by the other cogent evidence on record, the said presumption would not be material and applicable – PW-4, the Manager of the plaintiff, had appeared as a witness, 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 – 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 – Thus, in the light of the evidence of the PW-4, the allegations stand corroborated – Adverse inference drawn on account of non-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 not fatal – Agreement to sell was executed in 1988 and the decree of specific performance was passed by the first appellate court 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 – Sale deeds executed by the defendants during the pendency of the litigation 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 – Sale deeds executed by the defendants held to be non est and the decree as passed by the first appellate court maintained. [Paras 31, 41-46] Case Law Cited Thomson Press (India) Ltd. vs Nanak Builders & Investors (P) Ltd. [2013] 2 SCR 74 : (2013) 5 SCC 397; Bholaram v. Ameerchand (1981) 2 SCC 414; Madhavan Nair v. Bhaskar Pillai (Dead) by Lrs. (2005) 10 SCC 553; Kashibai w/o Lachiram and Another v. Parwatibai w/o Lachiram and Others [1995] Supp. 4 SCR 63 : (1995) 6 SCC 213; Kulwant Kaur and Others v. Gurdial Si
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