Delhi High Court
V.K.Babbar vs Sunil Chopra & Ors. on 13 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 377/2013
% 13th March, 2014
V.K.BABBAR .....Appellant
Through: Mr. Himanshu, Adv.
Appellant in person.
VERSUS
SUNIL CHOPRA & ORS. ...... Respondents
Through: Mr. Shailendra Singh, Adv. for R-1
& 3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Appellant who is an advocate has argued his case in person. This first
appeal is filed under Order 43 Rule 1(r) CPC against the order of the trial
court dated 19.8.2013 which while allowing the application of the appellant-
plaintiff for injunction in a suit for specific performance has directed the
appellant-plaintiff to deposit the balance sale consideration of Rs.8,50,000/-
in court.
2. The subject suit is a suit for specific performance of the agreement
contained in the Bayana receipt/earnest money receipt dated 26.11.2010.
The agreement to sell is with respect to the suit property bearing no.31/1,
Basement, West Patel Nagar, New Delhi-8. The balance payment as per the
FAO 377/2013 Page 1 of 6
agreement to sell was to be made within a period of 60 days from
26.11.2010. Appellant-plaintiff alleges breach on the part of the
respondent/defendant/seller and the subject suit for specific performance
with other reliefs was filed on 3.3.2012.
3. One of the pre-requisites to succeed in a suit for specific performance,
including for grant of injunction by showing a prima facie case, is that
appellant-plaintiff was always ready and willing to perform his part of the
contract in view of Section 16(c) of the Specific Relief Act, 1963. Readiness
and willingness is shown by availability of monies with the
appellant/plaintiff to pay the balance sale consideration not only within 60
days from 26.11.2010, but till 3.3.2012 when the subject suit for specific
performance was filed.
4. The defence of the defendant was that the appellant failed to perform
his part of the contract by failing to pay the balance sale consideration in
time, and consequently the suit property was in fact sold to the defendant
no.3 in the suit, the respondent no.3 herein. The sale is by means of a
registered sale deed in favour of the defendant no.3/respondent no.3.
5. It is clear that the appellant/plaintiff did not file proof of his paying
capacity before the court below from 26.11.2010 till 3.3.2012 when the suit
was filed and injunction application was heard, and which is a sine qua non
FAO 377/2013 Page 2 of 6
to show the readiness and willingness on the part of the appellant-plaintiff.
Probably for this reason the court below doubting the readiness and
willingness of the appellant/plaintiff/buyer directed deposit of Rs.8,50,000/-
at the time of granting injunction, and which part of the order on deposit of
balance amount of Rs.8,50,000/- is challenged in this Court.
6. In my opinion, in the facts of the case such as the present where the
appellant-plaintiff did not file any documents before the court below to show
his financial capacity so as to pay the balance consideration of Rs.8,50,000/-
from 26.11.2010 till the filing of the suit on 3.3.2012, the court below while
granting injunction was justified in asking the appellant-plaintiff to show his
financial capacity by deposit of the balance consideration of Rs.8,50,000/-.
No doubt, it is not mandatory for a buyer to deposit the balance
consideration in the Court, however, since the power under Order 39 CPC
being discretionary and equitable, I do not think any illegality is committed
by the court below in directing the appellant to deposit the balance sale
consideration of Rs.8,50,000/- while allowing the injunction application of
the appellant-plaintiff.
7. On behalf of the appellant-plaintiff, it is argued before me that
documents have been filed in this Court to show financial capacity of the
appellant to pay the balance consideration and which should be considered
FAO 377/2013 Page 3 of 6
by this Court. The documents which have been filed by the appellant-
plaintiff in this Court are the pass-book of a bank account jointly held in the
name of the father of the plaintiff Sh. Sudesh Kumar Babbar, plaintiff
himself and one Smt. Pinki Babbar who is stated to be wife of the appellant,
and copies of certain fixed deposit receipts.
8. Firstly, these documents had not to be filed before this Court but had
to be filed before the trial court at the time of deciding of the application
under Order 39 CPC, however, I have yet considered these documents which
have been filed to see the financial capacity of the appellant-plaintiff and
therefore the appellant was ready and willing as required by Section 16(c) of
the Specific Relief Act, 1963.
9. So far as the bank account in the joint names of Sh. Sudesh Kumar
Babbar (father), Vijay Kumar Babbar (appellant-plaintiff) and Smt. Pinki
Babbar(wife of appellant-plaintiff) is concerned, the said statement of
account commences from October, 2011 whereas payment under the earnest
money receipt/agreement to sell had to be paid within 60 days from
26.11.2010. Therefore, filing of an account from October 2011 and which is
much later than January, 2011 cannot help the appellant. Also, even if, I
take the entries in the account from October 2011, it is only shown that the
entries show a balance varying between 4 lacs to about 6,85,000/- even till
FAO 377/2013 Page 4 of 6
January 2012 and which amount is again not enough with respect to balance
sale consideration of Rs.8,50,000/-, besides the fact that the bank account is
not in the sole name of the plaintiff and the first name in the account is of the
father of the appellant-plaintiff, who would also therefore be part owner of
the monies in this account. Therefore, this document being the statement of
bank account is not sufficient to show readiness and willingness of the
appellant-plaintiff from October, 2011 till 3.3.2012 when the suit for specific
performance was filed. Interestingly, it is only for the first time on 3.3.2012
that the amount in the account suddenly increases from Rs.6,82,000/- odd to
Rs.11,32,000/- odd showing that the amount suddenly was got increased
only at the time of filing of the suit for specific performance.
10. So far as the fixed deposit receipts are concerned, it is seen that the
said fixed deposit receipts are of 1.10.2012 for an amount totaling to
Rs.6,50,000/- and therefore again not only the amount stated therein is not
sufficient for the balance sale consideration of Rs.8,50,000/-, but also that
the amount is shown firstly as available only on 1.10.2012 i.e much later
than even filing of the suit in March, 2012. The same is the position with
respect to the other fixed deposit receipts and which are commencing from
December, 2012 or June, 2013. Therefore, really appellant is not acting
bonafidely and clearly the appellant has no prima facie case in his favour.
FAO 377/2013 Page 5 of 6
There is no balance of convenience and irreparable injury in favour of the
appellant-plaintiff inasmuch as, now third party rights have come into
existence of the suit property as the same has been sold by a registered sale
deed to the defendant no.3/respondent no.3.
11. In view of the above, although the court below ought to have
dismissed the application under Order 39 Rules 1 and 2 CPC, but since the
same is allowed by deposit of the balance sale consideration of Rs.8,50,000/,
I do not find that there is any illegality whatsoever in the impugned order.
12. The appeal is therefore dismissed with costs of Rs. 25,000/-. Costs
shall be paid within a period of six weeks and which shall be a condition
precedent for pursuing of the suit by the appellant-plaintiff in the trial court.
MARCH 13, 2014 VALMIKI J. MEHTA, J.
ib
