Delhi High Court
Jugal Rakesh Kumar vs Baldev Raj Bajaj on 7 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.142/2011
% 7th March, 2011
JUGAL RAKESH KUMAR ...... Appellant
Through: Mr. Ravi Chawla, Advocate.
VERSUS
BALDEV RAJ BAJAJ ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.4703/2011 (Condonation of delay) in RFA No.142/2011
For the reasons stated in the application, delay in refiling is
condoned.
Application stands disposed of.
+ RFA No.142/2011 and C.M. No.4702/2011
1. The challenge by means of the Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment and decree dated 23.12.2010 whereby the suit for specific
performance or in the alternative for damages filed by the
RFA No.142 /2011 Page 1 of 3
appellant/plaintiff has been decreed only for the alternative relief of
damages and not for specific performance. The trial Court has decreed the
suit for Rs.3 lakhs, which is double the amount of advance paid of
Rs.1,50,000/-, in terms of a clause in the Agreement to Sell providing for
double payment in case of breach by the respondent/defendant.
2. Learned counsel for the appellant has argued before this Court
very vehemently that once the trial Court has given the finding that the
respondent was guilty of breach of contract, the suit should have been
decreed for specific performance and not for the alternative relief of
damages. During the course of arguments, I put a specific/direct query to
the counsel for the appellant that what was the evidence which was led by
the appellant/plaintiff in the trial Court to show the appellant's/plaintiff's
readiness and willingness to pay the balance consideration of Rs.11,05,000/-.
Learned counsel for the appellant very fairly, having no option, conceded
that no evidence at all has been led in the trial Court with respect to showing
the ability of the appellant/plaintiff to pay the balance consideration, whether
by filing of bank accounts, details of financial capacity, income tax returns or
in any other manner whatsoever. If that be so, the appellant/plaintiff
therefore miserably failed to prove his readiness and willingness and in my
opinion the appellant/plaintiff is fortunate that his suit has been decreed
instead of being dismissed.
RFA No.142 /2011 Page 2 of 3
3. Learned counsel for the appellant then argued that readiness
and willingness must necessarily be inferred from the fact that a legal notice
was served upon the respondent to appear before the Sub-Registrar for
registration of the documents. I do not find any substance in the argument
inasmuch as the financial capacity of a proposed buyer is to be proved by
documents showing financial capacity such as bank accounts, income tax
returns, ownership of properties and so on, and not by simply serving a
notice asking the proposed seller/defendant to appear before the sub-
Registrar for registering the documents.
4. In my opinion, the plaintiff is already fortunate in that besides
return of the amount of Rs.1,50,000/-, the trial Court has given an additional
amount of Rs.1,50,000/- as damages although the appellant/plaintiff failed to
prove his readiness and willingness as stated above.
5. In view of the above, the appeal being without any merit is
therefore dismissed, leaving the parties to bear their own costs.
MARCH 07, 2011 VALMIKI J. MEHTA, J.
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