Ritu Saxena @APPELLANT@Hash J.S. Grover And Another

VALMIKI J. MEHTA, J

Caveat No.614/2018

Counsel appear for the caveators. Caveat accordingly stands discharged.

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

Exemption allowed subject to just exceptions. C.M. stands disposed of.

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

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. Â

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. Â

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.

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.

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

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

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

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

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

Relief.â€​

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

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

PW-1 Ms. Ritu Saxena â€" plaintiff herself. In her examination-inchief, 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 â€" Agreement to sell dated 18.07.2004.

(ii) Ex.PW1/2 â€" Email dated 19.07.2006.

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

(iv) Ex.PW1/4 â€" Courier receipt dated 14.09.2004.

(v) Ex.PW1/5 â€" letter dated 21.12.2004.

(vi) Ex.PW1/6 â€" Courier receipt dated 21.12.2004.

(vii) Ex.PW1/7 â€" Statement of account of plaintiff.

(viii) Ex.PW1/8 â€" Call details of mobile no.981149970.

(ix) Ex.PW1/9 â€" Email dated 13.12.2004.

(x) Ex.PW1/10 â€" Email dated 08.12.2004.

(xi) Ex.PW1/11 â€" Mail dated 30.11.2004.

(xii) Ex.PW1/12 â€" Mail dated 30.11.2004.

(xiii) Ex.PW1/13  â€" Photocopy  of  possession  slip  dated 14.03.1983.

(xiv) Ex.PW1/14 â€"  Photocopy  of  conveyance  deed  dated 15.10.1997

Other than these documents, PW-1 has also relied upon following documents, which were admitted by the defendants during admission/denial:

(xv) Ex.P-1 â€" Receipt of Rs.1 lakh.

(xvi) Ex.P-2 â€" Legal Notice dated 19.04.2005.

(xvii) Ex.P-3 â€" Reply dated 27.04.2005 sent by defendant no.1.

(xviii) Ex.P-4 â€" Complaint dated 20.04.2005 to SHO P.S. Defence Colony.

(xix) Ex.P-5 â€"  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.P-6 â€" Schedule of fixture and fittings.

(xxi) Ex.P-7 â€" Photocopy of cheque no.044386 dated 18.07.2004 for Rs.1,00,000/- drawn on ICICI Bank, Vasant Vihar branch, New Delhi.

PW-2 Sh. Vishnu Kant â€" husband of the plaintiff. He has also deposed by way of affidavit in lieu of examination-in-chief which is Ex.PW2/A

wherein he has reiterated and reaffirmed the contents of the Plaint.

Both PW-1 and PW-2 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 PW-3.

PW-3 Sh. Anil Kumar Srivastava â€" 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.PW-3/1. 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.

The defendants in support of their case have examined themselves as DW-1 and DW-2. DW-1 Sh. J. S Grover and DW-2 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.â€​

9(i)Â 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  â€"  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.â€​

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 â€" 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 â€" 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  xxxxâ€​

(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 â€" PW-1 and her husband â€" PW-2 have throughout  the  cross-examination  deposed  that  they  were

 having funds/financial capacity to purchase the property. PW-1 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,

PW-1 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 PW-1 and PW-2 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 self-serving 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.Â

(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. Â

(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.

Â

(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. Â This is so held by the trial court by observing as under:-

XXXX Â 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 â€" 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 anti-thesis 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 â€" 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.â€​

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. Â

(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

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

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  XXXXâ€​

(iv)Â 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 nonsanction 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. Â

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.

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.

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.Â

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. Â

(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. Â

 xxxx  xxxx  xxxx xxxx

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. Â

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. Â

(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:-

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.â€​

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.

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-readinessâ€. 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 increases in prices of immovable properties,

to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for

performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in

disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an

owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter

century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees.

  xxxxx  xxxxx  xxxxx

Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanandam.

(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for

taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.

(ii) The courts will apply greater scrutiny and strictness when considering whether the purchaser was “ready and willing†to perform his part of

the contract.

(iii)Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the timelimits stipulated

in the agreement. The courts will also “frown†upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three

years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to

assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been

delivered in partperformance, where equity shifts in favour of the purchaser.â€​

(emphasis is mine)

A reading of the aforesaid paras shows that Courts have a bounden duty to take notice of galloping prices. Surely it cannot be disputed that the

balance of convenience i.e. equity in the present case is more in favour of the defendants who have only received 10% of the consideration. If the

hammer has to fall in the facts of the present case, in my opinion, it should fall more on the plaintiff than on the defendants inasmuch as today the

defendants cannot on receiving of the balance consideration of

Rs.44,00,000/-, and even if exorbitant rate of interest is received thereon, purchase any equivalent property for this amount. Correspondingly, the

plaintiff has had benefit of 90% of sale consideration remaining with him (assuming he has any) and which he could have utilized for purchase of

assets including an immovable property. In specific performance suits a buyer need not have ready cash all the time and his financial capacity has to

be seen and thus plaintiff can be said to have taken benefit of the 90% balance with him. It is well to be remembered at this stage that in a way that

part of Specific Relief Act dealing with specific performance is in the nature of exception to Section 73 of the Contract Act, 1872 i.e. the normal rule

with respect to the breach of a contract under Section 73 of the Contract Act, 1872 is of damages, and, the Specific Relief Act, 1963 only provides the

alternative discretionary remedy that instead of damages, the contract in fact should be specifically enforced. Thus for breach of contract the remedy

of damages is always there and it is not that the buyer is remediless. However, for getting specific relief, the Specific Relief Act, 1963 while providing

for provisions of specific performance of the agreement (i.e. performance instead of damages) for breach, requires discretion to be exercised by the

Court as to whether specific performance should or should not be granted in the facts of each case or that the plaintiff should be held entitled to the

ordinary relief of damages or compensation.

I have recently in the case titled as Laxmi Devi vs. Mahavir Singh being RFA No. 556/2011 decided on 1.5.2012 declined specific performance,

one of the ground being payment of only nominal consideration under the agreement to sell. Para 11 of the said judgment reads as under:-

“11. Besides the fact that respondent/plaintiff was guilty of breach of contract and was not ready and willing to perform his part of the contract

lacking in financial capacity to pay the balance consideration, in my opinion, the facts of the present case also disentitle the respondent/plaintiff to the

discretionary relief of specific performance. There are two reasons for declining the discretionary relief of specific performance. The first reason is

that the Supreme Court has now on repeated occasions held that unless substantial consideration is paid out of the total amount of consideration, the

Courts would lean against granting the specific performance inasmuch as by the loss of time, the balance sale consideration which is granted at a

much later date, is not sufficient to enable the proposed seller to buy an equivalent property which could have been bought from the balance sale

consideration if the same was paid on the due date. In the present case, out of the total sale consideration of Rs. 5,60,000/-, only a sum of Rs. 1 lakh

has been paid i.e. the sale consideration which is paid is only around 17% or so. In my opinion, by mere payment of 17% of the sale consideration, it

cannot be said that the respondent/plaintiff has made out a case for grant of discretionary relief or specific performance.…………..â€​

Therefore, whether we look from the point of view of Section 20 sub-Section 3 of the Specific Relief Act, 1963 or the ratio of the judgment of the

Supreme Court in the case of Saradamani Kandappan (supra) or even on first principle with respect to equity because 10% of the sale consideration

alongwith the interest will not result in the defendants even remotely being able to purchase an equivalent property than the suit property specific

performance cannot be granted. In fact, on a rough estimation, the property prices would have galloped to at least between 30

to 50 times from 1988 till date. I take judicial notice of this that in the capital of our country, like in all other megapolis, on account of the increase in

population and rapid urbanization, there is a phenomenal increase in the prices of urban immovable property.

 I therefore hold and answer issue no. 5 against the plaintiff and in favour of the defendants holding that the plaintiff is not entitled to discretionary

relief of specific performance. â€​

The ratio of the judgment passed by this Court in Jinesh Kumar Jain (supra) has been thereafter followed by this Court in the following cases:-

(i) Sushil Jain Vs. Meharban Singh and Others (2012) 131 DRJ 421.

(ii) Baldev Behl & Ors. Vs. Bhule & Ors. (2012) 132 DRJ  247 (In para 25 of this judgment it is noted that the  appeal against the judgment in the

case of Jinesh Kumar  Jain (supra) being RFA(OS) No.75/2012 stands  dismissed by a Division Bench of this Court on  31.8.2012).

(iii) A.K. Narula Vs. Iqbal Ahmed and Others ILR (2013) I Â Delhi 315.

22.(i) A reading of the ratio of the aforesaid judgment of this Court in the case of Jinesh Kumar Jain (supra) shows that a proposed buyer as a plaintiff

when only has paid a very limited amount of consideration, then such a plaintiff may not ordinarily be entitled to the discretionary relief of specific

performance when the grant of specific performance is being decided after a long period of time having elapsed after entering into the agreement to

sell and the suit for specific performance coming up for final disposal. The logic is very simple that from the balance sale consideration which has to

be paid by the plaintiff/proposed buyer under an agreement to sell to the defendant/proposed seller, even by adding thereto interest, surely the

defendant/proposed seller from the balance sale consideration plus interest cannot purchase a property of an equivalent type as would have been

purchased by receipt of the sale consideration at the time when the agreement to sell was entered into many many years earlier. (ii) As a result of rise

in the prices of a property, that in the facts of the present case this Court can take judicial notice that prices of properties in Delhi, and that prices in

the year 1995 would be far far lesser than the prices of the property today in the year 2018, and that too more so with the fact of the suit property

being situated in one of the prime colonies of the Delhi being Maharani Bagh, grant of specific performance will severly and gravely prejudice the

defendants. On a conservative estimate the value of the suit property as on today would be at least around 20 times more than what was the price of

the suit property in the year 1995 and that therefore with the balance sale consideration payable to the defendants as on today even with interest, the

defendants will not be able to purchase the property as the defendants could have purchased with the value of the balance sale consideration in the

year 1995. Â

(iii) In my opinion in such cases as the present the plaintiff in fact should be extremely careful in such a suit for specific performance; that when

evidence is led the plaintiff also leads requisite evidence as to the loss which would be caused to the plaintiff on account of the breach of contract by

the defendants/proposed sellers, so that the Court can grant monetary damages to the plaintiff/proposed buyer on account of the breach of contract by

the defendants/proposed sellers along with the interest, but indubitably the position on record in the present case is that the plaintiff has led no evidence

whatsoever as to what was the difference of the property price in around April/May, 1995 than what was the price of the property on the date of

entering into agreement to sell on 10.2.1995. Once a plaintiff fails to lead any evidence whatsoever to prove loss, then the plaintiff harms its own case

because the Court in equity when it exercises discretionary power to deny specific performance because of Section 20 of the Specific Relief Act, and

that the Court wants to grant damages on the principles under Section 73 of the Indian Contract Act, the Court cannot do so since it does not have any

evidence before it in order to grant monetary damages to the plaintiff/proposed buyer and which loss/monetary damages the plaintiff would have been

entitled to on account of defendants/proposed sellers held guilty of breach of agreement to sell. After all it is not that the plaintiff has pleaded and

proved why it wants to be the owner only and only of the suit property and that why any other property in the same or similar area would not be

sufficient for the plaintiff's needs. Therefore since plaintiff with the balance sale consideration with it plus an additional amount could well have

purchased a similar property in the same or similar area in around May, 1995 and within some reasonable time thereafter, but yet plaintiff has chosen

not to, hence the plaintiff is held disentitled to the discretionary relief of specific performance. It is therefore held that since the plaintiff has only paid

approximately 14.5% of the sale consideration as on the date of entering into the agreement to sell being the amount of Rs.37 lacs, therefore plaintiff

is not entitled to the discretionary relief of specific performance. Â

(iv) It is also relevant that since plaintiff has over this period from the year 1995 to 2018 had moneys in its pocket of the balance sale consideration of

Rs.2.18 crores, the plaintiff would/could have invested wisely for obtaining returns on this amount of balance sale consideration. Â

(v) Therefore on the one hand defendants cannot purchase a similar property in similar area as in the year 1995 when the agreement to sell was

entered into with respect to the sale consideration of 1995 in the year 2018, on the other hand the plaintiff has had benefit of having enjoyed and put to

use and derived benefits of the balance sale consideration of Rs.2.18 crores, assuming the plaintiff had such a balance sale consideration amount with

it (and in reality though it does not have as held while deciding issue no.6) therefore if the plaintiff is granted specific performance in the facts of the

present case there would result not only in grave jeopardy to the defendants but that situation would be accompanied by the benefit which the plaintiff

has had by having with it and having used or could have used the balance sale consideration of Rs.2.18 crores. Â

I therefore hold that plaintiff in the facts of this case is not entitled to the benefit of being granted the discretionary relief of specific performance.

Issue no. 7 is therefore decided in favor of the defendant nos. 1 to 3 and against the plaintiff.â€​   (emphasis is mine)

(ii) I completely agree with the argument urged on behalf of the respondents/defendants that mere payment of an amount of Rs.1 lakh out of the total

sale consideration of Rs.50 lacs will not entitle the appellant/plaintiff to successfully seek the relief of specific performance. The ratio of the judgment

of the Supreme Court in the in the case of Saradamani Kandappan vs. S. Rajalakshmi and Others, 2011 (12) SCC 18 (and which has been followed in

the cases of M/s Hotz Industries Pvt. Ltd. (supra) as also Jinesh Kumar Jain Vs. Iris Paintal and Ors. ILR (2012) 5 Delhi 678) squarely applies and in

which judgment Supreme Court held that by merely making payment of 10% of the sale consideration a proposed buyer is not entitled to the

discretionary relief of specific performance. In the present case, the appellant/plaintiff has paid just 2% of the sale consideration and therefore the

appellant/plaintiff is not entitled to the discretionary relief of specific performance. The relevant observations made by this Court in the case of M/s

Hotz Industries Pvt. Ltd. (supra) in paras 20(ii) and 22(i) to (v) are relevant and are already reproduced above and are not repeated herein to avoid

repetition because the appellant/plaintiff is not remediless in case of breach of performance by the respondents/defendants/sellers as the

appellant/plaintiff/buyer could always have pleaded and proved monetary loss on account of breach of contract by the respondents/defendants and

such monetary loss, which is caused on account of the increase of the price of the property in around the date fixed for performance than as

compared to the agreed price under the Agreement to Sell, could always have been proved by the appellant/plaintiff by leading evidence, loss being

the rise in the value of the property, and which would have been given as monetary relief/decree of damages along with interest, but the

appellant/plaintiff has admittedly neither pleaded nor proved any monetary loss caused on account of breach of the Agreement to Sell by the

respondents/defendants, and therefore, even monetary damages cannot be granted to the appellant/plaintiff. Â

Learned counsel for the appellant/plaintiff then argued that since after the Agreement to Sell fresh lease was entered into at enhanced rate and

the existing lease was extended for 11 months ending on 30.7.2005, and therefore the increase of rent should be held to be a factor for granting the

discretionary relief of specific performance. This argument is misconceived because payment of rent to stay in a premises is an aspect which has

nothing to do with the specific performance of an Agreement to Sell with respect to the property. In fact, I must note at this stage the dishonesty of

the appellant/plaintiff because she falsely pleaded that the respondents/defendants had put the appellant/plaintiff in possession of the suit property

under the Agreement to Sell, whereas there is no such fact which is mentioned in the Agreement to Sell, and which argument of the appellant/plaintiff

was also rightly negated by the trial court in terms of the observations which have already been reproduced above. I may also add that in case the

appellant/plaintiff who was staying in the suit premises on behalf of the tenant/employer company was put in possession under the Agreement to Sell,

then there would not have arisen payment of rent every month after the Agreement to Sell, but the fact of the matter is that not only payment of rent

continued to the respondents/defendants but also that the lease was extended at an enhanced rent for 11 months ending on 30.7.2005. This argument

of the appellant/plaintiff is therefore rejected. Â

On behalf of the appellant/plaintiff, it was then argued that appellant/plaintiff had spent a sum of Rs.5 lacs on renovation and therefore

appellant/plaintiff be held entitled to the discretionary relief of specific performance, however in my opinion even this argument is misconceived and

without any merit and has to be rejected because trial court has rightly held that no proof was filed by the appellant/plaintiff with respect to the

incurring expenditure of Rs.5 lacs for renovation/repairs. Counsel for the appellant/plaintiff sought to refer to the documents of M/s Krishna

Construction Co.(Ex.PW2/1) of August and September, 2004 to argue that these documents showed that around Rs.3 lacs was paid by the

appellant/plaintiff to the M/s Krishna Construction Co but it is seen that except the fact that these documents show receipt of approximately Rs.3 lacs

by M/s Krishna Construction Co from Ms. Ritu Saxena there is not even a whisper in these documents that these documents pertain to any payment

in any work carried out by M/s Krishna Construction Co in the suit property. Â Even if the spent of money on renovation is for the sake of arguments

accepted as correct, even then this will not entitle the appellant/plaintiff to the relief of specific performance on account of appellant/plaintiff having

failed to prove readiness and other reasons existing for declining the discretionary relief of specific performance and therefore at best the

appellant/plaintiff could have prayed for the relief of recovery of Rs.5 lacs. Â

Counsel for the appellant/plaintiff finally argued that appellant/plaintiff has pleaded in the plaint and also deposed in their affidavits of the suit

property being suitable for them as they have settled in this suit property in the particular locality and they have developed close friends as also their

parents have also developed social circle and that parents are also enrolled with hospitals etc in the area, however these aspects would be relevant

only in case appellant/plaintiff was otherwise entitled to the discretionary relief of specific performance and the appellant/plaintiff is not entitled to the

discretionary relief of specific performance for the reasons as already given above including of paying of just 2% of the total sale price i.e Rs.1 lakh

out of the total sale consideration of Rs.50 lacs. Â

Finally I would like to add that respondents/defendants were forced to file a suit for possession against the appellant/plaintiff and the employer

company as the appellant/plaintiff with her husband failed to vacate the suit property after expiry of the lease period, and in this suit filed by the

respondents/defendants for possession, respondents/defendants were successful, and the decree for possession in favour of the

respondents/defendants was sustained right till the Apex Court and the respondents/defendants have already taken possession of the suit premises in

execution of the decree for possession obtained by the respondents/defendants.

In view of the aforesaid discussion, I do not find any merit in the appeal. The appeal is accordingly dismissed with costs of Rs.50,000/- payable by

the appellant to the respondents within six weeks from today.