Gulshan Kumar vs Shyam Lal Through Lrs
2018 Latest Caselaw 2595 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.349/2018

%                                                    25th April, 2018

GULSHAN KUMAR                                          ..... Appellant
                           Through:      Mr. A.K. Sen, Advocate.
                versus
SHYAM LAL THROUGH LRs                                   ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.16410/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.349/2018 and C.M. No.16409/2018 (stay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908(CPC) is filed by the plaintiff in the suit

impugning the judgment of the Trial Court dated 23.12.2017 by which

trial court has dismissed the suit for specific performance filed by the

appellant/plaintiff with respect to the Agreement to Sell dated

24.5.2006 for 1/5th undivided share for land of the

respondent/defendant being 1/5th undivided share in the agricultural

land measuring 14 bighas and 8 biswas (equal to 2 bighas 17 bishwas

and 12 biswansis) bearing Mustatil No.85, Killa No.2(4-16), 3(4-16),

and 4(4-16) situated in the revenue estate of Village Jonapur, New

Delhi. Trial court however while dismissing the suit for specific

performance has granted the money decree in favour of the

appellant/plaintiff for a sum of Rs.12 lacs, which amount the

appellant/plaintiff had paid to the respondent/defendant in terms of the

subject Agreement to Sell. Total sale consideration was

Rs.1,02,00,000/-

3. I may note that the original defendant expired during the

pendency of the suit and thereafter he was represented by his legal

heirs and reference in this judgment to the defendant will as per the

context mean reference to the original defendant or his legal heirs.

4. From the facts, it is seen that Agreement to Sell entered

into between the parties on 24.5.2006 is now a proved document but

the issue arises as to whether the appellant/plaintiff has shown his

financial capacity and which is required to be shown as per

requirement of readiness and willingness as per Section 16(c) of the

Specific Relief Act, 1963. I would like to note that there was a dispute

between the parties as to whether or not the Agreement to Sell was

entered into by the appellant/plaintiff with the respondent/defendant

inasmuch as the respondent/defendant claimed to have entered into the

subject Agreement to Sell with one with M/s AMB Associate through

Sh. Manoj Sethi, but this issue has been held in favour of the

appellant/plaintiff and the trial court has held that it was the

appellant/plaintiff who had entered into the subject Agreement to Sell

with the respondent/defendant. On the aspect of whether the

appellant/plaintiff was ready and willing issue no.2 was framed and

this issue no.2 has been decided against the appellant/plaintiff by the

trial court in terms of the observations made in para 6.41 of the

impugned judgment and this para 6.41 reads as under:-

"6.41 Now the second aspect will be as to whether the plaintiff is entitled for specific performance of agreement to sell dated 24.05.2006. Section 16(c) of the Specific Relief Act 1963 requires every plaintiff in the suit for specific performance to ever and through readiness and willingness to perform his part of contract. Readiness means existence of financial capacity and willingness means intention to go ahead with the transaction. The plaintiff has not filed any bank account statement to show that he had money with him during that period and he has not filed his IT Returns and he has further not filed any document whatsoever to show that he had the financial capacity for making payment of the balance consideration. Merely stating in legal notice that plaintiff is ready to perform his part of contract is not sufficient to establish the readiness and willingness of the plaintiff to perform his part of obligations. The plaintiff has failed to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963, therefore, the plaintiff is not entitled for the relief of specific

performance. However, considering the fact that the plaintiff has already paid Rs.12 Lacs as part consideration amount, the plaintiff is entitled for the recovery of said amount from the defendant." (underlining added)

5. A reading of the aforesaid para shows that trial court held

the appellant/plaintiff as not being ready and willing as required under

Section 16(c) of the Specific Relief Act because appellant/plaintiff did

not file any bank statement to show that he had with him moneys

during the relevant period, appellant/plaintiff did not file any income

tax return and nor did the appellant/plaintiff file any other document to

show that he had financial capacity to pay the balance sale

consideration of Rs.90 lacs. Trial court held that mere averring

readiness and willingness in the legal notice sent could not show that

the appellant/plaintiff had financial capacity to complete the sale

transaction.

6. Counsel for the appellant/plaintiff has however drawn the

attention of this Court to the document Ex.PW1/4 (colly) which

contains a bank statement of the appellant/plaintiff, HDFC Bank, at

East Patel Nagar Branch and it is argued that trial court has illegally

failed to consider this document which showed appellant's/plaintiff's

financial capacity to pay balance sale consideration of Rs. 90 lacs. It

is argued on behalf of the appellant/plaintiff that this bank statement

shows that the appellant/plaintiff had an overdraft limit of Rs.7 crores

with his bank and consequently 90 days time period prescribed for

performance by the appellant/plaintiff of his obligation to complete

the sale deed expiring on 24.8.2006 had financial capacity. It is argued

that by virtue of the negative balance in the account of the

appellant/plaintiff on 24.8.2006 the appellant/plaintiff had deposited

Rs. 23 lacs in his account on 28.8.2006 resulting in earlier negative

balance becoming the positive balance of Rs.6,36,863/- and

consequently the appellant/plaintiff should be held to have the

necessary funds to pay the balance amount of Rs.90 lacs inasmuch as

the over draft limit in the HDFC Bank was Rs.7 crores.

7. I have put a specific query to the counsel for the

appellant/plaintiff as to whether any document whatsoever has been

filed by the appellant/plaintiff or any witness of the bank summoned

to show what was the overdraft limit available to the

appellant/plaintiff on 24.8.2006 but the counsel for the

appellant/plaintiff concedes that there is no document filed on record

proving the amount of the sanctioned limit available to the

appellant/plaintiff with HDFC Bank on 24.8.2006. In my opinion,

merely because earlier at one point of time on 2.5.2006 there is a debit

entry of Rs.7,96,85,963/- in his bank account would not mean that

appellant/plaintiff would have with him such over draft limit of Rs.7

crores even on 24.8.2006. The requisite aspect of financial capacity

had to be proved to the satisfaction of the judicial conscience of this

Court and this Court fails to understand as to why the

appellant/plaintiff could not have done so by easily getting a letter

from his bank of the sanctioned limit available in his over draft

account on 24.8.2006, but the same was not done with the fact that

admittedly no witness was even summoned from the HDFC Bank with

the record to show the limit available to the appellant/plaintiff on

24.8.2006. In my opinion, therefore, the statement of account which is

relied upon by the appellant/plaintiff does not help the

appellant/plaintiff to prove his financial capacity to pay the balance

sale consideration of Rs. 90 lacs. It is also seen that admittedly the

appellant/plaintiff has filed no other documentary evidence with

respect to having any properties, movable or immovable, by which the

balance sale consideration of Rs.90 lacs could be paid.

8. In view of the aforesaid discussion and which additional

reasons this Court has given in exercise of powers under Order XLI

Rule 24 CPC, it has to be held that appellant/plaintiff did not have the

financial capacity at the relevant time, being within 90 days of

entering into of the Agreement to Sell on 24.5.2006, to pay the

balance sale consideration of Rs.90 lacs. Appellant/plaintiff therefore

clearly failed to prove his readiness and willingness as required by

Section 16(c) of the Specific Relief Act and therefore trial court has

rightly declined the relief of specific performance. As already stated

above, however, the appellant/plaintiff has already been granted a

money decree of the sum of Rs.12 lacs paid by the appellant/plaintiff

to the respondent/defendant which is ordered to be decreed with

interest at 12% per annum from the date of decree.

9. Dismissed.

APRIL 25, 2018                              VALMIKI J. MEHTA, J
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