Specific Performance of an Agreement to Sell After the 2018 Amendment

Can a court force the seller to complete the sale?

Yes. A suit for specific performance asks the court to order the seller to do exactly what he promised: accept the balance price and execute and register the sale deed. If he still refuses after the decree, the court can execute the sale deed on his behalf in execution proceedings, and the deed registered that way is as good as one he signed himself.

Before 2018, specific performance was a discretionary remedy. Old section 20 allowed the court to refuse it even where the contract was proved, for example if the price had gone up sharply, if enforcing it would cause hardship to the seller, or if the buyer seemed to have taken unfair advantage. Sellers relied on that discretion, and many suits ended with the buyer being handed back the advance with some interest, which in a rising Delhi NCR property market was a poor outcome.

The Specific Relief (Amendment) Act 2018 removed that discretion. Section 10 now says specific performance of a contract shall be enforced by the court, subject to section 11(2), section 14 and section 16. In plain terms: if the agreement is valid, certain and enforceable, and the buyer is not barred by section 16, the decree should follow. The argument that the seller would suffer because prices have risen no longer has a place in the statute.

What exactly changed with the 2018 amendment?

Six provisions matter in a property case. Read them together, because the court will.

Does the 2018 amendment apply to an agreement signed before October 2018?

This is unsettled enough that you should plan for both answers. In Katta Sujatha Reddy v Siddamsetty Infra Projects (2022), the Supreme Court held that the 2018 changes are substantive and prospective, so they do not govern transactions entered into before 1 October 2018. That judgment was recalled on review in November 2024, but the review bench decided the case on its facts and did not settle the retrospectivity question. In a later judgment in October 2025, the Court again proceeded on the footing that the amendment is prospective.

The practical result: if your agreement is dated before 1 October 2018, expect the seller to argue that the old discretionary test applies and that hardship and price rise are relevant. Draft the plaint, and lead evidence, so that you succeed even under the old law. That means showing that you did not take unfair advantage, that the price was fair when agreed, that you paid a real part of the consideration, and that the delay was the seller's, not yours.

If your agreement is dated after 1 October 2018, the amended section 10 applies without argument. The seller's defences then shrink to questions about the contract itself and about your readiness and willingness, which is why the rest of this post spends so much time on those two.

What does 'ready and willing' mean, and how do you prove it?

Readiness means you had the money, or the means to arrange it, to pay the balance on the date fixed. Willingness means you actually wanted to complete the deal and behaved that way. Courts treat this as a continuous requirement, from the date of the agreement right up to the decree. A buyer who was ready in 2023 but whose finances fell apart in 2024 can lose, even if the seller was the first to default.

Proof is documentary. Bank statements showing a balance close to the amount due, fixed deposits, a loan sanction letter issued before the completion date, proof of sale of another property whose proceeds were earmarked, and income tax returns that make the funding believable. A bare statement in the witness box that you 'had arrangements' rarely survives cross-examination. Judges in the Delhi district courts routinely ask the buyer to show where the balance would have come from on the completion date.

Willingness is shown by conduct: letters or WhatsApp messages asking the seller for the title documents and a registration date, a legal notice calling on him to perform, a visit to the sub-registrar office on the agreed date with the balance ready, and no long silences. When Advocate B.K. Singh reads a buyer's file before advising on a suit, the first thing he lays out is a dated chain of every message and payment between the parties, because gaps of six months or more in that chain are where sellers build their case that the buyer lost interest.

Documents you need before filing

Collect these before the legal notice goes out. Missing pieces can sometimes be obtained later, but you should know at the start what you have.

Is time of the essence in a property deal?

Usually not. Indian courts have long held that in contracts for the sale of immovable property, time is not of the essence unless the contract says so in clear words and the surrounding circumstances support it. A completion date of 90 days does not, by itself, mean the buyer loses everything if he is a few weeks late, especially if the seller himself had not produced the title documents or obtained a required permission.

That said, time can be made essential. Look for clauses such as 'time shall be the essence of this agreement' combined with a clear consequence, such as forfeiture of earnest money on default. Even then, courts look at conduct: if the seller accepted part payments after the deadline or kept discussing completion, he is treated as having waived strict time. And a buyer cannot use the 'time is not essential' rule as a licence to wait for years. The three-year limitation period and the readiness requirement both punish delay.

If the seller sent a notice fixing a date and making time essential, read it carefully. A reasonable notice period, properly served, can turn a loose timeline into a firm one. Reply in writing before that date expires, and make sure your reply shows the money is available.

What is the deadline to file a specific performance suit?

Three years, under Article 54 of the Schedule to the Limitation Act 1963. Time runs from the date fixed for performance in the agreement. If no date is fixed, it runs from the date you had notice that the seller refused to perform. Courts cannot extend this period on sympathy, and section 5 condonation of delay does not apply to suits.

The second limb causes trouble. Buyers sometimes argue that there was 'no fixed date' because the agreement said completion would follow some event, such as conversion to freehold or a no-objection from an authority. If the agreement ties completion to a specific event, time may run from that event. If the seller clearly refused in a letter, a message or a reply to your legal notice, time can run from that refusal. Read every message from the seller with this in mind; the date of a clear 'I will not sell' is a date you should write down.

Do not let a legal notice exchange, a mediation attempt or negotiations with a broker eat into the three years. They do not stop the clock. Our post on limitation periods for civil suits explains how the Limitation Act counts time and when acknowledgments help.

Common situations and where buyers stand

These are general positions. Each depends on the exact facts and documents.

The seller has already sold the property to someone else. Is it too late?

Not necessarily. Under section 19(b) of the Specific Relief Act, specific performance can be enforced against anyone who claims under the seller by a title arising after your contract, except a transferee for value who paid in good faith and without notice of your agreement. So the second buyer is protected only if he paid real money and genuinely did not know about you.

Notice is often the battlefield. If you were in possession of the property, the law treats the second buyer as having notice, because possession is notice of the possessor's rights. If the second buyer is a relative or associate of the seller, paid well below the market, or bought within weeks of your legal notice, courts are slow to accept a claim of good faith. Both the seller and the subsequent purchaser should be made defendants, and the plaint should ask for the later sale deed to be declared not binding on you and for the subsequent purchaser to join in executing the conveyance.

Once your suit is filed, section 52 of the Transfer of Property Act (lis pendens) applies: any further transfer during the suit is subject to its result. That is useful, but it does not stop a sale from happening, and unwinding several transfers later is expensive. That is why buyers usually ask for a temporary injunction under Order 39 rules 1 and 2 CPC restraining the seller from selling, mortgaging or parting with possession, at the very first hearing. If the risk is immediate, you can ask for an urgent ad interim order on the day of filing. Our post on injunction suits explains what courts look for on such applications.

Unregistered or unstamped agreement: can you still sue?

An agreement to sell does not itself transfer ownership, so it is not compulsorily registrable for that purpose. The proviso to section 49 of the Registration Act 1908 expressly allows an unregistered document affecting immovable property to be received as evidence of a contract in a suit for specific performance. So an unregistered agreement on stamp paper, signed by both sides and witnessed, is enough to sue on.

Registration matters for a different reason. If you are in possession and want the protection of part performance under section 53A of the Transfer of Property Act, the agreement must be registered since the 2001 amendment to the Registration Act. That defence protects your possession; it does not give you title. If you only have an unregistered agreement and possession, the specific performance suit is your main route to a sale deed.

Stamping is a separate question. In Delhi and in Uttar Pradesh, an agreement to sell under which possession is handed over is charged with stamp duty much like a conveyance. An agreement that is insufficiently stamped can be impounded when produced in court, and you may have to pay the deficit duty and a penalty before the court acts on it. This is curable, but budget for it. The rates and rules are in our post on stamp duty and registration in Delhi and UP.

How to file a specific performance suit in Delhi NCR

This is the usual sequence. Some steps run in parallel when the risk of a sale is immediate.

1. Fix the limitation date

   Work out the three-year deadline from the completion date in the agreement or from the seller's clear refusal. Write it down and work backwards. If less than three months remain, the suit should be drafted before anything else.

2. Send a legal notice

   Call on the seller to execute the sale deed within a short period, state that the balance is ready, and ask for the title documents. Send it by speed post and courier to every known address, and by email or WhatsApp if he uses them. The reply, or the silence, becomes evidence. Our post on sending a legal notice covers drafting.

3. Value the suit and pay court fee

   A specific performance suit is valued on the sale consideration in the agreement, and court fee is paid ad valorem on that value. Valuation also decides the court: in Delhi, suits above ₹2 crore go to the original side of the Delhi High Court, and suits up to that value to the district court for the area where the property lies.

4. Draft the plaint carefully

   State the agreement, every payment, your continuous readiness and willingness with the source of funds, the seller's refusal and the dates. Add alternative reliefs: refund of the amount paid with interest, compensation under section 21, possession under section 22, and a declaration about any later sale. Join the seller, all co-owners and any subsequent buyer.

5. Apply for an injunction

   File an application under Order 39 rules 1 and 2 CPC asking that the seller be restrained from selling, mortgaging or parting with possession during the suit. Ask for an ad interim order if a sale is imminent, with the evidence that shows it.

6. Offer to deposit if directed

   Many judges ask the buyer to deposit the balance consideration, or a part of it, in court to show bona fides, often as a condition of interim relief. Be ready for that request. Refusing or failing to comply weakens the readiness case badly.

7. Pleadings, issues and evidence

   The seller files a written statement, issues are framed, and both sides lead evidence by affidavit followed by cross-examination. Your witness box testimony on readiness will be tested against your bank records, so prepare with the documents in hand.

8. Decree and execution

   If the suit is decreed, the court fixes a time for you to pay the balance. Pay within that time. If the seller still refuses to execute, apply in execution under Order 21 and the court will execute and register the sale deed through an officer of the court.

Which court: district court or High Court, and is it a commercial suit?

Section 16 of the CPC requires suits for rights in immovable property to be filed where the property is situated. For a flat in Dwarka, that is the district court with jurisdiction over that area; for property in Noida or Greater Noida, the civil courts at the Gautam Buddh Nagar district court at Surajpur; for Ghaziabad, the Ghaziabad district court. In Delhi, suits valued above ₹2 crore go to the Delhi High Court's original side.

An ordinary agreement to buy a home is not a 'commercial dispute' under the Commercial Courts Act 2015. That Act covers agreements relating to immovable property only where the property is used exclusively in trade or commerce. So a shop, warehouse or office bought for business may fall within the commercial courts, with the mandatory pre-institution mediation under section 12A unless urgent interim relief is sought, and strict timelines for the written statement. A residential flat does not. Getting this wrong at the filing stage costs months, so settle the question before the plaint is drafted.

Court fee and valuation in Delhi have their own rules for each kind of relief, and a plaint can be returned or the suit dismissed for deficient court fee if not corrected when the court asks. Our post on court fee and suit valuation in Delhi explains the calculation.

Mistakes that sink buyers' suits

Most failed specific performance suits fail on facts the buyer controlled.

• Waiting too long. Buyers spend a year negotiating through brokers and relatives and then find that the three-year period is close or gone. Negotiations do not stop limitation.
• No proof of funds. A plaint that says the buyer was 'always ready' without a single bank statement or sanction letter invites the readiness defence. Courts expect to see the money, or at least a realistic way to raise it.
• Long silences. A gap of a year with no message to the seller looks like a buyer who lost interest and came back when prices rose. Keep writing, even when nothing seems to happen.
• Asking only for specific performance. If the court finds the contract unenforceable for some reason, a plaint without alternative reliefs may leave you without even a refund decree. Always plead refund with interest and compensation in the alternative.
• Missing parties. Leaving out a co-owner, a legal heir or a subsequent buyer can make the decree useless against them. Do the title search and join everyone with an interest.
• Not complying with deposit directions. If the court asks for a deposit and you fail, the readiness case is badly damaged and interim protection may go.
• Altering the agreement. Handwritten changes or additions after signing, without the seller's initials, give the seller an easy argument that the document is not the contract he signed.

What will the seller argue in defence?

Expect four or five standard defences. The first is readiness: that you did not have the money on the completion date and are only now trying to buy cheap. The second is that the document was never meant to be a sale agreement, often that it was security for a loan, a 'friendly' arrangement or a draft. Courts examine the price agreed against the market value, who held the original documents, and the conduct of both sides. The third is that terms were uncertain, such as no fixed price, unclear area or an undefined plot.

The fourth is time, discussed above, usually combined with a forfeiture clause. The fifth is that the agreement was contingent on something that never happened, such as a permission from a development authority, the consent of family members or the release of a bank mortgage. If the contingency was within the seller's own control, courts are reluctant to let him rely on his own failure.

Sellers also sometimes deny their signature. That turns the case into a document dispute, with handwriting experts and the attesting witnesses. Keep the witnesses' contact details from the start, and if the agreement was notarised, the notary's register entry helps. If the seller's denial is plainly false, a complaint under section 336 of the Bharatiya Nyaya Sanhita for forgery or a perjury application can follow, but treat those as last resorts that slow down the civil suit rather than speed it up.

When a refund of earnest money is the better choice

Sometimes the right advice is not to sue for the property. If the title turns out to be defective, if the property is in an unauthorised colony with pending demolition action, if the seller is one of several feuding co-owners, or if your own funds have dried up, a suit for refund of the amount paid with interest is quicker, cheaper and less risky. Section 22 allows refund of earnest money to be claimed, and the court can award it even if it refuses specific performance, provided you asked for it.

The seller, on his side, may try to forfeit the earnest money. Courts allow forfeiture of a genuine, reasonable earnest amount where the buyer was at fault. A large 'advance' described as earnest money, such as half the price, is usually treated as part payment, and the seller can keep only what he shows as his actual loss under section 74 of the Contract Act. If the seller is the one who backed out, he cannot forfeit anything, and in many cases courts order refund with interest.

Money claims based on a written agreement can sometimes go through a faster route. Our post on summary suits under Order 37 explains when a refund claim qualifies. A point Advocate B.K. Singh often makes to buyers deciding between the two is that the specific performance suit should be chosen for the property, not as a pressure tactic to get the advance back, because a court will notice when the buyer's real aim is money.

After the decree: paying the balance and getting the sale deed

A decree for specific performance usually directs the buyer to pay or deposit the balance consideration within a fixed time, often 30 to 90 days, and the seller to execute and register the sale deed. Pay within the time given. If you need more time, apply before it expires and explain why. Under section 28 of the Specific Relief Act, if the buyer does not pay within the time allowed, the seller can apply in the same suit to rescind the contract, though the court has power to extend the time.

If the seller does not execute the deed, you file an execution petition under Order 21 of the CPC. The court can have a deed drafted, approve it, and execute it through an officer of the court, who then presents it for registration before the sub-registrar. Stamp duty on the sale deed is payable by you at the rate applicable at the time of registration, which is often higher than when the agreement was signed. Plan for that cost.

Appeals are common. The seller can appeal the decree, and an appeal does not automatically stay it; he has to ask the appellate court for a stay, which is often granted on conditions. If he appeals, keep the deposit in court rather than withdrawing anything, and ensure that the injunction against sale continues until the appeal is decided. After registration, apply for mutation in the municipal or revenue records; our post on property mutation in Delhi and UP explains that step.

What to do this week if the seller is backing out

• Find the original agreement and every payment record, and keep them out of the seller's reach
• Note the completion date and calculate three years from it, or from the seller's first clear refusal
• Collect bank statements, loan sanction letters and FD receipts for the period around the completion date
• Write to the seller, in a form you can prove, that you are ready to pay and asking for a registration date
• Ask a lawyer to check the seller's title, the co-owners and whether the property is mortgaged
• If you hear of a buyer or broker visiting the property, prepare for an urgent injunction application
• Do not sign any 'cancellation' or accept a refund cheque unless you have decided to give up the property

Getting the papers read before the deadline

Most specific performance cases are won or lost on paperwork assembled long before the suit is filed. If the seller has sent a cancellation notice or stopped answering, the two questions to answer immediately are how much of the three-year period is left and whether your bank records show you were ready on the completion date. Those answers decide whether to send a notice, file at once with an injunction application, or ask for a refund instead.

If you want an advocate to look at your agreement and payment trail before you reply to the seller, the team of Advocate B.K. Singh can review the papers and tell you the limitation date and the realistic options. You can send the documents through the online enquiry form, and you can read about his practice on the profile page.