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Ritu Saxena v/s J.S. Grover & Another

    RFA. No. 518 of 2018

    Decided On, 17 July 2018

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE VALMIKI J. MEHTA

    For the Appellant: Mandeep Singh Vinaik, Anjali Sharma, Deepak Bashta, Manish Lamba, Advocates. For the Respondents: Dalip Mehra, Advocate.



Judgment Text

Caveat No.614/2018

1. Counsel appear for the caveators. Caveat accordingly stands discharged.

C.M. No.27008/2018 (exemption)

2. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.518/2018 and C.M. No.27007/2018 (stay)

3. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the judgment of the Trial Court dated 28.2.2018 whereby trial court has dismissed the suit for specific performance filed by the appellant/plaintiff of the Agreement to Sell dated 18.7.2004 with respect to the apartment bearing no.272, ground floor, Gulmohar Enclave, New Delhi-110049. Trial court has however passed a money decree in favour of the appellant/plaintiff and against the respondents/defendants for the amount of Rs.1 lakh along with interest @ 15% per annum, paid by the appellant/plaintiff/buyer to the respondents/defendants/sellers under the Agreement to Sell.

4. The facts of the case are that the appellant/plaintiff and the respondent no.1/defendant no.1 entered into an Agreement to Sell dated 18.7.2004 with respect to the suit property which was jointly owned by both the respondents/defendants who are husband and wife. The total sale price was fixed at Rs.50 lacs of which an amount of Rs.1 lakh was paid by the appellant/plaintiff to the respondents/defendants on the date of entering into of the Agreement to Sell. The suit premises was already in possession of the appellant/plaintiff as appellant’s husband was an employee of the company M/s GE Capital Services India Ltd and M/s GE Capital Services India Ltd had taken the suit premises on lease from the respondents/defendants for the residence of appellant’s husband. The monthly rent of the suit premises was Rs.13,000/- per month as per the lease commencing on 1.9.2002. Appellant/plaintiff claimed that pursuant to the Agreement to Sell the appellant/plaintiff was put in possession of the suit property and that the appellant/plaintiff has spent a sum of Rs.5 lacs towards decoration and renovation of the suit property and conducting extensive repairs. Pleading that the respondents/defendants deliberately was avoiding to complete the transaction and was intending to sell the suit property to another person, a Legal Notice dated 19.4.2005 was sent to the respondents/defendants to complete the transaction. The respondents/defendants replied to the same vide Reply dated 27.4.2005. It was pleaded by the appellant/plaintiff that she had been at all time ready and willing to perform the subject Agreement to Sell, and therefore, the suit for specific performance be decreed. It was also pleaded that the appellant/plaintiff had got the requisite loan sanctioned from M/s ICICI Home Finance Company Ltd.

5. Suit was contested by the respondents/defendants. They filed their separate written statements. In the written statement of the respondent no.1/defendant no.1, the fact that the Agreement to Sell was entered into as also receipt of Rs.1 lakh, was admitted, and it was also admitted that the suit property was on lease from September, 2002 to M/s GE Capital Services India Ltd at rent of Rs.13,000/- per month for the residence of the husband of the appellant/plaintiff. It was pleaded by the respondent no.1/defendant no.1 that his wife was the co-owner of the suit property and since she was not a party to the Agreement to Sell, the suit for specific performance did not lie. It was denied that the appellant/plaintiff was put in possession of the suit property pursuant to the Agreement to Sell and that no such fact is therefore mentioned in the subject Agreement to Sell and this was also never so agreed otherwise. It was also denied that the appellant/plaintiff spent a sum of Rs.5 lacs on renovation/repair of the suit property. It was also denied that M/s ICICI Home Finance Company Ltd had sanctioned a loan of Rs.45 lacs to the appellant/plaintiff as the sanction was subject to the appellant/plaintiff filing documents with respect to her income proof and also her property papers, and which was not complied with and therefore loan was not finally sanctioned. It was denied by the respondent no.1/defendant no.1 that the appellant/plaintiff was ready and willing to perform her part of the contract. Suit was accordingly prayed to be dismissed.

6. Respondent no.2/ defendant no.2 filed her written statement and which was in essence similar to the written statement filed by her husband being the respondent no.1/defendant no.1.

7. After pleadings were complete, trial court framed the following issues:-

'1. Whether the defendant no.1 executed an agreement to sell the suit property to the plaintiff? OPP

2. Whether the plaintiff was ready and willing to perform her part of the agreement to sell dated 18.07.2004? OPP

3. Whether the agreement to sell is not enforceable for the reasons set out in paragraph 8 of the written statement? OPD

4. Whether the plaintiff had been put in possession of the suit property by the defendants as alleged in the plaint? OPP.

5. Whether the plaintiff is entitled to the relief prayed for in the plaint? OPP

6. Relief.'

8. Parties thereafter led evidence and which aspects are recorded in paras 7 to 9 of the impugned judgment and these paras read as under:-

'EVIDENCE ON RECORD

7. The plaintiff in support of her case has examined three witnesses who are as under:

PW1 Ms. Ritu Saxena – plaintiff herself. In her examination-in-chief, she has deposed by way of affidavit which is Ex.PW1/A wherein she has deposed identically as per the stand taken in the plaint. While reiterating submissions made in the plaint, she, in order to prove the plaintiff's case, has exhibited and marked the following documents:

(i) Ex.PW1/1 – Agreement to sell dated 18.07.2004.

(ii) Ex.PW1/2 – Email dated 19.07.2006.

(iii) Ex.PW1/3 – Letter dated 14.09.2004 written by plaintiff to the defendants.

(iv) Ex.PW1/4 – Courier receipt dated 14.09.2004.

(v) Ex.PW1/5 – letter dated 21.12.2004.

(vi) Ex.PW1/6 – Courier receipt dated 21.12.2004.

(vii) Ex.PW1/7 – Statement of account of plaintiff.

(viii) Ex.PW1/8 – Call details of mobile no.981149970.

(ix) Ex.PW1/9 – Email dated 13.12.2004.

(x) Ex.PW1/10 – Email dated 08.12.2004.

(xi) Ex.PW1/11 – Mail dated 30.11.2004.

(xii) Ex.PW1/12 – Mail dated 30.11.2004.

(xiii) Ex.PW1/13 – Photocopy of possession slip dated 14.03.1983.

(xiv) Ex.PW1/14 – Photocopy of conveyance deed dated 15.10.1997 Other than these documents, PW1 has also relied upon following documents, which were admitted by the defendants during admission/denial:

(xv) Ex.P1 – Receipt of Rs.1 lakh.

(xvi) Ex.P2 – Legal Notice dated 19.04.2005.

(xvii) Ex.P3 – Reply dated 27.04.2005 sent by defendant no.1.

(xviii)

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Ex.P4 – Complaint dated 20.04.2005 to SHO P.S. Defence Colony.

(xix) Ex.P5 – Certified copy of cross-examination dated 10.09.2010 of Sh. J.S. Grover in suit no.609/08 titled as J.S. Grover & Anr. vs. M/s. GE Capital Services India.

(xx) Ex.P6 – Schedule of fixture and fittings.

(xxi) Ex.P7 – Photocopy of cheque no.044386 dated 18.07.2004 for Rs.1,00,000/drawn on ICICI Bank, Vasant Vihar branch, New Delhi.

8. PW2 Sh. Vishnu Kant – husband of the plaintiff. He has also deposed by way of affidavit in lieu of examinationinchief which is Ex.PW2/A wherein he has reiterated and reaffirmed the contents of the Plaint.

Both PW1 and PW2 were extensively cross-examined by Ld. Defence counsel which I shall be appreciating during discussion on issues. That apart one witness from bank was also examined as PW3.

PW3 Sh. Anil Kumar Srivastava – Zonal Head (North) ICIC Home Finance Company Limited. He has proved the letter dated 30.07.2004 as being issued by their company as Ex.PW3/ 1. He has deposed that after sanctioning the home loan and before its disbursal, the bank gets the documents vetted from empaneled agencies. During cross-examination, he deposed that the bank had never received the papers relating to property no.272, Gulmohar Enclave, New Delhi and loan in relation to the said property was never disbursed in favour of Sh. Vishnu Kant or his wife.

PE was closed and the matter was posted for DE.

9. The defendants in support of their case have examined themselves as DW1 and DW2.

DW1 Sh. J. S Grover and DW2 Ms. Veena Grover. Both the witnesses have tendered their affidavits of evidence as Ex.DW1/A and Ex.DW2/A wherein they have reiterated and reaffirmed the contents of the written statements. They were also duly crossexamined by Ld. Counsel for the plaintiff which I shall be appreciating during discussion on issues.'

9(i) Trial court has dismissed the suit by firstly holding that the appellant/plaintiff had failed to prove her readiness i.e financial capacity which is required under Section 16(c) of the Specific Relief Act, 1963 to complete the sale transaction. Trial court held that in terms of the sanction letter of M/s ICICI Home Finance Company Ltd dated 30.7.2004 (Ex.PW3/1) the loan was to be disbursed only after the finance company received all income documents and property documents but there is no evidence on record that the appellant/plaintiff complied with these conditions for sanction and disbursal of the loan. In this regard, trial court has held as under:-

'xxxx xxxx xxxx xxxx

At the outset, it be noted that the contract for sale carried a consideration of Rs.50 lakhs out of which the amount of earnest money paid was Rs.1 lakh i.e. 2% of the sale consideration. The balance i.e. Rs.49 lakhs was to be paid at the time of execution of sale documents. The only document sought to be relied upon by the plaintiff as regards her financial capacity to pay the sale consideration, is the sanction letter dated 30.07.2014 – Ex.PW3/1 issued by ICICI Bank vide which bank had sanctioned them a loan of Rs.50 lakhs. The body of the said letter is reproduced hereinunder:

'We have appraised your home loan request under application no.777-2415523 for home loan amount of Rs.50 lacs.

We are pleased to inform that we have approved the loan in principal and we would be able to disburse the loan only after we have received all income documents and property documents, as discussed with you.'

Thus, the bank had only tentatively sanctioned the loan but disbursement thereof was subject to submissions of the documents sought. Further, vide e-mail dated 12.05.2005 – Ex.PW2/7 addressed to the plaintiff's husband, the bank had asked the plaintiff to provide to the bank a duly executed Agreement to Sell on a stamp paper of Rs.50/-. It was also specifically stated in the said communication that in absence thereof loan would not be disbursed to him.

Admittedly, the plaintiff failed to provide the necessary documents to the bank and which was a pre-condition for disbursal of loan. PW3 – an official from ICICI Bank had proved the letter dated 30.07.2004 as Ex.PW3/1 and had deposed that in relation to the suit property loan was never disbursed to the plaintiff or her husband.

Xxxx xxxx xxxx xxxx'

(underlining added)

(ii)(A) Trial court also held that the appellant/plaintiff had not given any details of the any banker’s cheque with them to show financial capacity as was contended by her and nor had appellant/plaintiff filed copy of the bank account/bank statement. Trial court has also held that mere oral statements with respect to having a property worth Rs.80 lacs would not help the appellant/plaintiff to prove her readiness because no details were furnished about the said alleged property or any other document filed to show that the appellant/plaintiff or her husband had moneys in their bank accounts to pay the balance sale consideration of Rs.49 lacs. Accordingly trial court held that mere ipse dixit statements cannot be held to be discharge of onus of proof. Some of the relevant observations of the trial court in this regard read as under:-

' xxxx xxxx xxxx xxxx

However, both the plaintiff – PW1 and her husband – PW2 have throughout the cross-examination deposed that they were having funds/financial capacity to purchase the property. PW1 has deposed that on 09.04.2005 when they went to the defendants' house they were carrying a banker's cheque with them. But has neither given any details of the banker's cheque nor has placed on record a copy of the banker's cheque. Further, even copy of the passbook/ bank statement of the account from which the banker's cheque was got prepared, has been filed in support of her averment and to show that the banker's cheque was actually got prepared. Further, PW1 deposed that they had a property worth Rs.80 lakhs but again neither any details of the said property have been stated nor a copy of those property documents has been placed on record in support of this version. Thus, not even a single document has been filed to show that the plaintiff at any point of time from 18.07.2004 till filing of the suit, owned other property or had money in her bank account or in the account of her husband or any other source of fund for payment of the balance sale consideration of Rs.49 lakhs. In absence thereof, the statements of PW1 and PW2 are nothing more than bald averments carrying no weight. In this regard it would be important to note down the observations made by Hon'ble Delhi High Court in the case of Madan Mohan v. Sheel Gulati, 223 (2015) DLT 57. In the said case, it was observed that mere selfserving ipse dixit can't be held to be discharge of onus of prove with respect to a very important issue of readiness & willingness which is required to be proved by a proposed buyer in terms of Sec.16(c) of The Specific Relief Act, 1963. In the case in hand, plaintiff has not been able to show that he had with him at all relevant times the amount of balance sale consideration of Rs.49 lakhs and thus, the essential ingredient of readiness on her part is not established.

Xxxx xxxx xxxx xxxx"

(B) I would like to note at this stage that the loan which was sanctioned from M/s ICICI Home Finance Company Ltd was only for a sum of Rs.13 lacs, but the balance sale consideration payable was Rs.49 lacs i.e there was no loan which was sanctioned to the appellant’s/plaintiff’s husband for the difference of Rs.36 lacs.

(C) Also, the loan which was sanctioned was to the appellant’s/plaintiff’s husband and not the appellant/plaintiff and therefore the loan of Rs.13 lacs would not have been available to the appellant/plaintiff inasmuch as it is not disputed before this Court that the loan was to be directly disbursed to the respondents/defendants, and which is to be taken with the fact that the Agreement to Sell of the suit property was not with the appellant’s husband Mr. Vishnu Kant to whom the loan of Rs.13 lacs was sanctioned in terms of the letter dated 30.7.2004 (Ex.PW3/1) of M/s ICICI Home Finances Company Ltd.

(iii) Trial court however held that the respondents/defendants cannot claim that the Agreement to Sell was only with the respondent no.1/defendant no.1 and that there was no Agreement to Sell with the respondent no.2/defendant no.2 inasmuch as the respondent no.2/defendant no.2 was definitely a party to the subject Agreement to Sell especially because the cheque of Rs.1 lakh was deposited in the joint account of the respondents/defendants.

(iv) Trial court has further held that the case of the appellant/plaintiff is completely false that she was put in possession of the suit property under the Agreement to Sell because there is no such clause under the Agreement to Sell, and which stand of the appellant/plaintiff was held to be false because after entering into the Agreement to Sell the lease of the suit property was in fact specifically extended for a period of 11 months expiring on 30.7.2005 i.e relationship of lessor and lessee continued. This is so held by the trial court by observing as under:-

" XXXX XXXX XXXX XXXX

At the outset, it be noted that there is no recital in the Agreement to Sell with regard to the handing over of the possession of the property to the plaintiff. Dehors that, at the time when the Agreement to Sell was entered between the parties i.e. on 18.07.2004, admittedly, the plaintiff was already in possession of the suit property as the property was leased out by the defendants to GE Capital who was the employer of plaintiff's husband. Thus, the plaintiff and her husband were in occupation of the property – her husband being an employee of GE capital. The lease of the property was expiring in August, 2004. Also, as per the plaint averments, the defendants approached GE Capital and sought extension of lease for some more time and the defendants continued to receive rent for this property. If the intention of the defendants would have been to put the plaintiff in possession of the property pursuant to the Agreement or that her continued possession in the property be in terms of part-performance of the Agreement, then there would not have been any reason to further renew the tenancy with GE Capital and also to accept the rent for the said property even after entering into the contract to sell the property with the plaintiff.

The execution of the lease deed between employer of the husband of the plaintiff and defendants, is complete antithesis or in derogation to the fact/assertion that the plaintiff was put in possession of the suit property in part-performance of the agreement. Needless to state, that it cannot be that the property can be under lease – as has been done by execution of renewal of lease agreement between the aforesaid persons; and at the same time in possession of the plaintiff as well by virtue of an agreement to sell. Both cannot co-exist.

Thus, the discussion clearly clinches this issue against the plaintiff and it is held that the plaintiff was not in possession of the suit property in furtherance of the Agreement to Sell Ex.PW1/1.'

(underlining added)

10(i) Counsel for the appellant/plaintiff argued that trial court has wrongly held that appellant/plaintiff did not prove her financial capacity because the appellant/plaintiff had proved her financial capacity in view of the loan sanction letter dated 30.7.2004 and that the disbursal of loan was only a formality which would have been done because the suit property would have been mortgaged to the finance company M/s ICICI Home Finance Company Ltd for the loan.

(ii) I cannot agree with this argument urged on behalf of the appellant/plaintiff for various reasons which are stated hereinafter. Indubitably the sanction Letter dated 30.7.2004 specifically stated that the loan would only be disbursed after the husband of the appellant/plaintiff gave all income documents and property documents to the finance company as stated in the Letter dated 30.7.2004 but admittedly there is no evidence whatsoever led on behalf of the appellant/plaintiff that her husband gave to the finance company his income documents or property documents as are referred to in the letter of the finance company dated 30.7.2004. At this stage the relevant observations of the trial court, already reproduced above are referred to, that only vague deposition was made of ownership of property of appellant/plaintiff's husband without giving any details or documents of the alleged property. Therefore on the basis of the letter of the finance company dated 30.7.2004, it cannot be held that the appellant/plaintiff had available with her necessary finances to pay the balance sale consideration and that too of a sum of Rs.49 lacs. Admittedly though it is not written in the letter of the finance company dated 30.7.2004 as to what was the loan amount which was sanctioned, but it is not disputed on behalf of the appellant/plaintiff that the loan was only sanctioned for a sum of Rs.13 lacs by the finance company. In fact this aspect most surprisingly came out to the fore in the cross-examination of the witness from the finance company who appeared as PW-3, namely Sh. Anil Kumar Srivastava. In the cross-examination of Sh. Anil Kumar Srivastava on 7.5.2015, he admitted that the loan was sanctioned only for a sum of Rs.13 lacs. Though this witness has stated that the appellant/plaintiff and her husband were entitled to the loan of Rs.90 lacs keeping in view their solvency but how this self-serving oral statement is made i.e on the basis of which record this was so, was not deposed to by the witness PW-3, and therefore such self-serving statement without being co-related with the record from the finance company, cannot be believed.

(iii) I also reject the argument urged on behalf of the appellant/plaintiff that financial capacity of the appellant/plaintiff and her husband is proved from their affidavits of evidence inasmuch as self-serving averments in the affidavits by way of evidence of the availability of funds cannot be taken as discharge of onus of proof of having financial capacity. What is the evidence and what is the weight to be attached to the evidence are two separate aspects and oral statements on an important aspect of financial capacity viz readiness under Section 16(c) of the Specific Relief Act cannot be accepted by courts as being discharge of proof of financial capacity. This is so held by this Court in the judgment in the case of Baldev Behl & Ors. Vs. Bhule & Ors. (2012) 132 DRJ 247 and the relevant paras of which judgment are 26(i) and 26(ii) and these paras read as under:-

"26(i). This issue pertains to plaintiff No.1 being ready and willing to perform his part of the agreement to sell. As per Section 16(c) of the Act, every plaintiff in a suit for specific performance must aver and prove that the plaintiff has always been and continues to be ready and willing to perform his part of the contract/agreement to sell. Readiness is financial capacity to go ahead with the agreement to sell and willingness is the intention. I may, at this stage, specifically invite attention to the observations of the Supreme Court in the case of Balraj Taneja and Anr. (supra), and relevant paras have been reproduced above, and which show that in a suit for specific performance even if there is no defence of the defendant, yet, the aspect of readiness and willingness has to be specifically proved by the plaintiff. This is stated by the Supreme Court in para 30 of the said judgment. The question is whether the plaintiff No.1 has proved his readiness and willingness at the relevant time and also continues to be ready and willing to perform his part of the contract/agreement to sell.

(ii) Readiness to perform the obligations by a proposed purchaser is a very important aspect and it has to be proved by categorical evidence. Mere oral evidence and self-serving depositions cannot be a substitute for categorical evidence on the specific statutory requirement of Section 16(c). It is not disputed on behalf of the plaintiff No.1 that plaintiff No.1 has not filed any income tax returns or any bank account or proof of any other assets/properties or any other evidence to show the financial capacity of the plaintiff No.1 to pay the balance sale consideration. As per the case of the plaintiff No.1, the balance sale consideration would be approximately Rs.19.5 lacs and there is no evidence worth the name in the record to show the plaintiff No.1’s financial capacity for this amount. Of course, while on this argument, I am assuming that there is a certainty as to consideration because in reality there is no certainty as to balance sale consideration inasmuch as the plaintiff No.1 has failed to exercise the option in terms of the agreement to sell as to which area of the balance land less the hutment/portion the plaintiff No.1 seeks specific performance of. Also, as already stated above, this area claimed by the plaintiff No.1 has to be further conditioned by an area of 12 bighas which has already been sold to be defendant No.3 under the sale deed dated 8.4.1988. In any case, I need not state anything further inasmuch as there is not a single piece of paper on record or any credible evidence which proves the financial capacity of the plaintiff No.1. I accordingly hold that plaintiff No.1 has miserably failed to prove his readiness to perform his obligations under the agreement to sell dated 27.8.1988. In fact, even willingness on the part of the plaintiff No.1 is absent inasmuch as there is no certainty of any option exercised by the plaintiff No.1 as to specific area which the plaintiff No.1 seeks to purchase, and which specific area had necessarily to be clear inasmuch as there is the issue of lessening the area whether on account of hutments or on account of 12 bighas of land already purchased by the defendant No.3 vide sale deed dated 8.4.1988 and hence of clarity as to for what area and for what price the agreement to sell has to go ahead."

For the sake of convenience, the relevant self-serving depositions made in the affidavits by way of evidence of the appellant/plaintiff and her husband and which are not believed by this Court, much less for the necessary weight being attached to them as proof of readiness/financial capacity, read as under:-

Relevant portion of affidavit by way of evidence of the appellant

" XXXX XXXX XXXX XXXX

6. Thereafter, I continued to call upon the defendants regularly, and was contacting the defendants frequently to express my readiness and willingness to complete the transaction of sale, and to pay the balance sale consideration as envisaged in the agreement. However, the defendants kept putting off the completion of the transaction and have been making excuses for the undue delay on their part. On several occasions, I, along with my husband visited the defendants, and made telephone calls to the defendants, and wrote letters exhorting them to complete the transaction and to execute the conveyance deed in my favour. On all these occasions, I, either directly, or through her husband, reminded the defendants of their solemn obligation to convey the property to me. On all such occasions when I communicated with the defendants, I informed them in no uncertain terms that I had the resources to purchase the property, and that I was ready and willing to do the needful to take the transaction to fulfilment. I must also emphasis the fact that besides having the housing loan sanctioned, I also had access to other resources. I am stating that I had sufficient resources, and still have, from which I can draw and state that I am in a position, both financially and otherwise, to complete the transaction in my favour. I am here setting out the details of the assets to which I had and I still have access to in order to establish the fact that I am, and was, ready and willing to perform my obligations under contract. In any case the availability of or arrangement for a loan of Rs.50 lakhs is not a very difficult job for my family. Most banks follow a norm in terms of which any persons eligibility of loan is to the extent of 60 times the net monthly income of the family. I and my husband have a combined approximate annual income of Rs.80 Lakhs. We can easily get a loan of up to Rs.One Crore from any bank based on our net worth and a loan of Rs.50 lakhs is very easy indeed for me to muster. In any case the sanction letter issued by ICICI bank also shows me and my husband as joint applicants. Apart from the capacity to raise a loan sufficient for completing this transaction, I and my husband have paid income tax of over Rs.5.5 Lacs in the accounting year in which we entered into this transaction. On 18th July 2004 the liquid funds including cash and bank balances easily accessible to me were over Rs.20 Lacs. Even today, as on the date of filing of this statement, over Rs.30 Lacs is accessible and available to me. I also have huge funds available with close relatives and friends who are willing to give her access to the same. My personal worth alone is over Rs.300 Lacs and the total worth of my family is over Rs.500 Lacs. I have a plot of land worth over Rs.2 Crores, which can be liquidated any time and the sale consideration can be paid in one go. This is sufficient to establish the fact that I have the capacity and financial strength to complete the transaction. Even I, myself, along with my husband, have adequate resources based on our savings, to complete the transaction and to pay off the balance sale consideration.

XXXX XXXX XXXX XXXX

Relevant portion of affidavit by way of evidence of the appellant’s husband

XXXX XXXX XXXX XXXX

7. Thereafter, my wife and I continued to call upon the defendants regularly, and were contacting the defendants frequently to express her readiness and willingness to complete the transaction of sale, and to pay the balance sale consideration as envisaged in the agreement. However, the defendants kept putting off the completion of the transaction and have been making excuses for the undue delay on their part. On several occasions, I, along with my wife, visited the defendants, and made telephone calls to the defendants, and wrote letters exhorting them to complete the transaction and to execute the conveyance deed in favour of the plaintiff. On all these occasions, I, on behalf of my wife, reminded the defendants of their solemn obligation to convey the property to the plaintiff. On all such occasions when I communicated with the defendants, I informed them in no uncertain terms that my wife had the resources to purchase the property, and that she was ready and willing to do the needful to take the transaction to fulfilment. I must also emphasis the fact that besides having the housing loan sanctioned, she also had access to other resources. I am stating that both I and my wife, at all times, had sufficient resources, and still have, from which we can draw and state that we are in a position, both financially and otherwise, to complete the transaction in her favour. I am here setting out the details of assets to which the plaintiff and I still have access to in order to establish the fact that the plaintiff was ready and willing to perform her obligations under contract. In any case the availability of or arrangement for a loan of Rs.50 lakhs is not a very difficult job for my family. Most banks follow a norm in terms of which any persons eligibility of loan is to the extent of 60 times the net monthly income of the family. My wife and I have a combined approximate annual income of Rs.80 Lakhs. We can easily get a loan of up to Rs.One Crore from any bank based on our net worth and a loan of Rs.50 lakhs is very easy indeed for me to muster. Apart from the capacity to raise a loan sufficient for completing this transaction, I and my wife have paid income tax of over Rs.5.5 Lacs in the accounting year in which we entered into this transaction. On 18th July 2004 liquid funds including cash and bank balances easily accessible to me were over Rs.20 Lacs. Even today, as on the date of filing of this statement, over Rs.30 Lacs is accessible and available to the plaintiff. I have also huge funds available with close relatives and friends who are willing to give me and my wife, access to the same. My personal worth alone is over Rs.200 Lacs and the total worth of my family is over Rs.500 Lacs. My wife has a plot of land worth over Rs.200 lacs, which can be liquidated any time and the sale consideration can be paid in one go. This is sufficient to establish the fact that the plaintiff has the capacity and financial strength to complete the transaction. Even I, myself, along with my wife, have adequate resources based on our savings, to complete the transaction and to pay off the balances sale consideration.

XXXX XXXX XXXX XXXX'

(iv) I also reject the argument urged on behalf of the appellant/plaintiff that financial capacity of appellant/plaintiff stands proved as allegedly there is no cross-examination of the appellant/plaintiff and her husband of their financial capacity inasmuch as in the cross-examination necessary questions have been put to the appellant/plaintiff and her husband with respect to non-sanction and disbursal of the loan to the appellant/plaintiff and her husband with the fact that at the end of cross-examination there is the suggestion with respect to the appellant/plaintiff and her husband falsely deposing as per their evidence and which in the facts of this case is sufficient that the respondents/defendants had questioned the lack of financial capacity of the appellant/plaintiff to make payment of balance sale consideration under the subject Agreement to Sell. In any case, not putting a question in cross-examination is only one of the aspects which a civil court considers, and which is considered in overall facts and evidence led in a case, and as per the facts of the present case and evidence led in the case, as also with respect to lack of weight to be attached to the self-serving statements of appellant/plaintiff and her husband of financial capacity, it has to be held that appellant/plaintiff had failed to prove her readiness and financial capacity and which is a sine qua non under Section 16(c) of the Specific Relief Act. 11. I therefore hold that trial court has rightly held that the appellant/plaintiff had failed to prove her readiness as required under Section 16(c) of the Specific Relief Act and therefore appellant/plaintiff was not entitled to the relief of specific performance. I have also given additional reasoning for holding that the appellant/plaintiff had failed to prove her readiness/financial capacity which this Court is entitled to do so under Order XLI Rule 24 CPC.

12(i) The issue which was then argued was as to whether the appellant/plaintiff is entitled to the discretionary relief of specific performance. It was argued on behalf of the respondents/defendants that by merely paying a sum of Rs.1 lakh out of the sum of Rs.50 lacs, the appellant/plaintiff should not be granted the discretionary relief of specific performance and reliance in this regard was placed by the respondents/defendants on paras 14 to 23 of the judgment passed by this Court dated 28.2.2018 in CS(OS) No.1261/1995 titled as M/s Hotz Industries Pvt. Ltd. Vs. Dr. Ravi Singh (Since Deceased Through LRs) & Ors. and which paras 14 to 23 read as under:-

'14. The next issue which arises is that even if the defendants have to be held guilty of the breach of contract being the agreement to sell dated 10.2.1995, whether the plaintiff is entitled to specific performance of the subject agreement to sell. In order to decide the issue of entitlement of the plaintiff to get specific performance of the agreement to sell, two issues have to be decided in favour of the plaintiff. One issue is that the plaintiff has to prove that it always has been and continued to be ready and willing to perform its part of the agreement to sell, and as is so required by Section 16(c) of the Specific Relief Act, 1963, the subject matter of the issue no.6. I note that the issue no.6 framed is not happily worded as it does not contain the requirement of continuous readiness and willingness as the requirement of Section 16(c) of the Specific Relief Act is that a plaintiff in a suit for specific performance must always be and continues to be ready and willing to perform his part under the agreement to sell, and therefore issue no.6 is read as modified in terms of the requirement of the language of Section 16(c) of the Specific Relief Act. One other issue would be whether plaintiff is entitled to discretionary relief for specific performance.

15. Let us now examine as to whether plaintiff has led evidence and proved in this suit that the plaintiff has always been and continues to be ready and willing to perform its part of the contract.

16. In my opinion the expression 'has always been and continues to be ready and willing to perform the contract' includes that plaintiff must show that he always has had the financial capacity to perform its part of the contract for making payment of balance sale consideration of Rs.2.10 crores/Rs.2.18 crores. No doubt financial capacity which is to be proved under the term readiness and willingness is not that plaintiff has to show that it had with it liquid moneys, but however it is equally necessary for the plaintiff to show its financial capacity, and having much assets, for being able to pay the balance sale consideration.

17.(i) When we examine the facts of the present case it is found that plaintiff in order to prove readiness and willingness has relied upon two aspects. The first aspect is the availability of the balance sale consideration as on 22.5.1995 in terms of the certificate filed and proved by the plaintiff as Ex.PW1/8, and which is a certificate issued by the A.B.N. Amro Bank, Sansad Marg Branch, New Delhi that it was the plaintiff who had got prepared as on 22.5.1995 bank drafts in favour of the defendant no.1 in this suit for amounts of Rs.18 lacs, Rs.1.45 crores, Rs.30 lacs, Rs.15 lacs and Rs.10 lacs, and which amounts total to the balance sale consideration. The second aspect of the plaintiff being ready and willing has been argued on behalf of the plaintiff on the basis that when the plaintiff entered into the compromise with the defendant no.4 in the suit in February, 2005, the plaintiff had paid a consideration of Rs.42.50 lacs to the defendant no.4 and which is so recorded in the order of this Court dated 9.2.2005. It is argued that therefore as on 9.2.2005 and even thereafter the plaintiff has proved his financial capacity and therefore readiness and willingness.

(ii) I cannot agree with the argument urged on behalf of the plaintiff that plaintiff had proved its readiness and willingness as required by Section 16(c) of the Specific Relief Act. As already observed above, readiness and willingness has to be a continuous act from the date of entering into the agreement to sell till at least the leading of evidence by the plaintiff in the suit, if not even as on date at the stage of final arguments, and in this regard it is seen that the plaintiff has at best proved that it had the balance consideration with it only in May, 1995. Having financial capacity in May, 1995 in the opinion of this Court will not enable the plaintiff to show financial capacity of the plaintiff for the period from after May, 1995 till the evidence has been concluded by the plaintiff in the present suit in August, 2010. In fact the plaintiff has to be held to be guilty of the concealing documents from this Court, and which documents are in the special knowledge of the plaintiff and therefore required to be proved by the plaintiff in terms of Section 106 of the Indian Evidence Act. These documents in possession of the plaintiff with respect to its financial capacity would be the documents of the bank accounts of the plaintiff, any fixed deposit receipts of the plaintiff of amounts in its bank, audited Balance Sheets and Profit and Loss accounts of the plaintiff from the year 1995 till plaintiff’s evidence was closed in August, 2010 in terms of the statement made on behalf of the plaintiff. Section 16(c) of the Specific Relief Act deliberately requires continuous rediness and willingness i.e continuous financial ability to complete the transactions. The stage of complying with obligations under the agreement to sell by a proposed buyer even if does not arise, yet Section 16(c) of the Specific Relief Act requires the plaintiff to show continuous financial capacity to prove the balance sale consideration. In my opinion, it has to be held that the plaintiff in this regard has miserably failed because merely by showing financial capacity as on date on 22.5.1995 cannot mean that the plaintiff had financial capacity from 23.5.1995 till the plaintiff concluded its evidence in August, 2010. As already stated above the plaintiff has not filed any document with respect to its financial capacity like Balance Sheets, Profit and Loss accounts and therefore against the plaintiff adverse inference has to be drawn under Section 114 of the Indian Evidence Act on account of the plaintiff having deliberately not filed such documents. It is therefore held that the plaintiff cannot be held to have complied with Section 16 (c) of the Specific Relief Act merely because plaintiff has proved the certificate of bank Ex.PW1/8 dated 5.1.2004 showing that plaintiff had prepared pay orders with respect to balance sale consideration on one day and date of 22.5.1995. Also and simply because the plaintiff has paid a sum of Rs.42.50 lacs to defendant no. 4 in February, 2005 would also not mean that plaintiff is to be held that it had always the capacity to pay the entire balance sale consideration to defendant nos. 1 to 3 with the fact that payment by plaintiff to defendant no. 4 of a sum of Rs.42.50 lacs will only show financial capacity of the plaintiff of Rs.42.50 lacs and not with respect to total balance sale consideration payable by the plaintiff to the defendant nos. 1 to 3 of Rs.2.18 crores.

Xxxx xxxx xxxx xxxx

18. It is, therefore, held that plaintiff has failed to show that it had always been and continued to be always ready and willing to perform its part of agreement to sell by having the necessary financial capacity to pay the balance sale consideration of Rs.2.18 crores till February, 2005 and thereafter till August, 2010 for the sum of Rs.2.18 crores less the sum of Rs.42.50 lacs paid to the defendant no.4.

19. Issue no. 6 is therefore decided against the plaintiff and in favor of defendant nos. 1 to 3.

20.(i) The next aspect to be considered is as to whether plaintiff is entitled to the discretionary relief of specific performace. In law, merely because there is an agreement to sell, and that the proposed seller is found to be guilty of breach of agreement to sell, yet it does not automatically follow that a proposed buyer is only for that reason entitled to the specific performance of the agreement to sell. In fact, besides the defendants/proposed sellers being guilty of breach of contract, and that even if the proposed buyer/plaintiff proves that there was financial capacity in the plaintiff to pay the balance sale consideration, yet the plaintiff is not necessarily and automatically entitled to specific performance, and this is because the grant of relief of specific performance is a discretion vested in the Court as per Section 20 of the Specific Relief Act.

(ii) An agreement to sell is a contract between the parties and contracts between the parties are subject matter of the Indian Contract Act, 1872. The effect of breach of contract is provided under Section 73 of the Indian Contract Act. If there is a breach of contract then an aggrieved party is entitled to monetary damages as per Section 73 of the Indian Contract Act and which monetary damages is the amount of loss which is caused to the aggrieved party under the contract. An aggrieved party who was the proposed buyer under the agreement to sell will suffer loss if in case on the date and in around the date of breach, the value of a similar property as the contracted property under the agreement to sell, which could be purchased by the plaintiff as a proposed buyer, had increased. To the extent of increase of price of the property a plaintiff who is a proposed buyer suffers loss when a proposed seller/defendant does not sell the property under an agreement to sell, because a buyer has to pay a higher price for purchase of a similar property, and thus ordinarily whenever there is a breach of contract of an agreement to sell on account of the breach by the defendant/proposed seller, then the plaintiff/proposed buyer becomes entitled ordinarily to damages/loss under Section 73 of the Indian Contract Act being the difference of the contract price and the higher price of a similar property in around the date of breach. The Specific Relief Act contains provisions that in spite of a plaintiff who is the proposed buyer, and against whom breach of contract is caused by a defendant in the suit being the proposed seller, the plaintiff/proposed buyer need not ask for and be granted damages in such a case where the plaintiff/proposed buyer pleads and seeks that there should be specific performance of the contract and not the breach of the contract. In a way therefore the provisions of Specific Relief Act directing specific performance of a breached agreement to sell are in the nature of Exceptions or Provisos to Section 73 of the Indian Contract Act. What is being stated by this Court is that if there is a breach of contract then an aggrieved party on account of the breach of the contract gets under Section 73 of the Indian Contract Act monetary damages but where instead of grant of damages because of the contract being broken, a plaintiff/proposed buyer instead seeks/prays that the contract should be specifically performed, then such a scenario is in the nature of an Exception or a Proviso to the ordinary situation comprised in Section 73 of the Indian Contract Act that breach of contract entitles a person to monetary damages on account of the loss caused. Therefore once the provisions of Specific Relief Act with respect to specific performance are not the normal consequence of a breach of contract being of grant of damages as per Section 73 of the Indian Contract Act, therefore the provisions of the Specific Relief Act; with the important provision therein being Section 20 of the Specific Relief Act; provides that Court has the discretion whether or not to grant specific performance and that merely because it is lawful to do so, the Court will not grant specific performance but instead may only grant damages with the measure of damages being those as provided in Section 73 of the Indian Contract Act. This aspect has been considered by this Court in detail in the judgment in the case of Jinesh Kumar Jain Vs. Iris Paintal and Ors. ILR (2012) 5 Delhi 678. The relevant paras of this judgment are paras 13 to 18 and these paras read as under:-

"13. Now let us assume that the agreement to sell dated 26.9.1988 was not hit by the 1972 Act; the defendants were guilty of breach of their obligation to perform their part of contract; and that the plaintiff was ready and willing to perform his part; even then, can it be said that the plaintiff is yet entitled to the discretionary relief of specific performance. It will be appropriate at this stage to refer to Section 20 of the Specific Relief Act, 1963, and more particularly sub- Section 3 thereof. Section 20 reads as under:-

20. Discretion as to decreeing specific performance.-

(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capably of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:-

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.'

14. Sub-Section 3 makes it clear that Courts decree specific performance where the plaintiff has done substantial acts in consequence of a contract/agreement to sell. Substantial acts obviously would mean and include payment of substantial amounts of money. Plaintiff may have paid 50% or more of the consideration or having paid a lesser consideration he could be in possession pursuant to the agreement to sell or otherwise is in the possession of the subject property or other substantial acts have been performed by the plaintiff, and acts which can be said to be substantial acts under Section 20(3). However, where the acts are not substantial i.e. merely 5% or 10% etc of the consideration is paid i.e. less than substantial consideration is paid, (and for which a rough benchmark can be taken as 50% of the consideration), and/or plaintiff is not in possession of the subject land, I do not think that the plaintiff is entitled to the discretionary relief of specific performance.

15. The Supreme Court in the recent judgment of Saradamani Kandappan vs. Mrs. S. Rajalakshmi, 2011 (12) SCC 18 has had an occasion to consider the aspect of payment of a nominal advance price by the plaintiff and its effect on the discretion of the Court in granting the discretionary relief of specific performance. Though in the facts of the case before the Supreme Court, it was the buyer who was found guilty of breach of contract, however, in my opinion, the observations of the Supreme Court in the said case are relevant not only because I have found in this case the plaintiff/ buyer guilty of breach of contract, but also because even assuming the plaintiff/buyer is not guilty of breach of contract, yet, Section 20 sub-Section 3 of the Specific Relief Act, 1963 as reproduced above clearly requires substantial acts on behalf of the plaintiff/proposed purchaser i.e. payment of substantial consideration. Paras 37 and 43 of the judgment in the case of Saradamani Kandappan (supra) are relevant and they read as under:

'37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and 'non-readiness'. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increase