Law Web: Necessary requirement for proving readiness and willingness in suit for specific performance of contract

Coming to the facts of the present case, the sole document relied upon by the appellant to prove her readiness and willingness is the

approval of loan on July 30, 2004 by the ICICI. Such approval was

subject to two conditions, viz., furnishing of income tax documents

of the appellant and the property documents. M/s. ICICI has sent

an Email on May 12, 2005 to the husband of the appellant

requiring an Agreement to Sell on a stamp paper of Rs.50/- to be

executed between the parties, as per the legal opinion sought from

the empaneled lawyer, without which ICICI will not be able to

disburse the loan. Admittedly, no agreement was executed on

stamp paper, therefore, the appellant could not avail loan of Rs.50

lakhs from ICICI. Independent of such loan, there is mere

statement that appellant and her husband have income of Rs.80

lakhs per annum unsupported by any documentary evidence. Such

statement will be in the nature of ipsi dixit of the appellant and/or

her husband and is without any corroborating evidence. Such selfserving

statements without any proof of financial resources cannot

be relied upon to return a finding that the appellant was ready and

willing to perform her part of the contract. The appellant has not

produced any income tax record or the bank statement in support

of her plea of financial capacity so as to be ready and willing to

perform the contract. Therefore, mere fact that the bank has

assessed the financial capacity of the appellant while granting loan

earlier in respect of another property is not sufficient to discharge

of proof of financial capacity in the facts of the present case to hold

that the appellant was ready and willing to perform her part of the

contract. Such is the finding recorded by both the courts below as

well.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7268-7269 OF 2019

RITU SAXENA Vs J.S. GROVER

HEMANT GUPTA, J.

Dated:SEPTEMBER 17, 2019.

1) The unsuccessful plaintiff is in appeals before this Court arising out

of a suit for specific performance of an Agreement dated July 18,

2004 in respect of Flat No. 272, Ground Floor, Gulmohar Enclave,

New Delhi.

2) The husband of the appellant, who as an employee of M/s. GE

Capital Services India Ltd., was in occupation of the said residential

premises on a monthly rent of Rs.13,000/- to be paid by the tenant

i.e. M/s. GE Capital Services India Ltd. since September 2002 to the

landlord. On the expiry of the existing lease, the Agreement of

Lease was extended for 11 months from September 01, 2004 but

before the expiry of the lease, the appellant claims to have entered

into an Agreement of Purchase the said property for a total sum of

Rs.50 lakhs. A sum of Rs.1 lakh by cheque was paid to the

defendants. It was agreed that all further relevant documents such

as Agreement to Sell, Sale Deed, Will, Possession Certificate and

No Objection Certificate for the purpose of transferring the said

property shall be executed. The Agreement reads thus:

“I, J. S. Grover S/o G. S. Grover, resident of M-12 (First

Floor) Kailash Colony, New Delhi 48 have agreed in

principle and in terms to sell my house (for a

consideration of Rs. 50 lacs) which is a freehold joint

property in my name and in my wife’s name Smt. Veena

Grover, known as house bearing no.272, Gulmohar

Enclave New Delhi 1100049.

In this transaction I acknowledge the receipt of Rs. 1 lac

as advance money by cheque number 044386 dt.

18.7.2004 issued from ICICI Bank Vasant Vihar New

Delhi and agree to furnish all the further relevant

document such as Agreement to Sale, Sale Deed, Will,

Possession Certificate, NOCs etc. for the purpose of

transferring the above said property in the name of Ritu

Saxena at present residing at 272, Gulmohar Enclave

New Delhi 110049 and a permanent resident of B-377

Indira Nagar Lucknow, U.P.

-sd-

18.7.2004

(J. S. Grover)”

3) The appellant relies upon communication dated July 30, 2004 that

a loan of Rs.50 lakhs has been approved by the ICICI Home Finance

Company Limited1 but the disbursal of the loan was only after the

bank receives all income tax and property documents as discussed

with her husband. The appellant is said to have written a letter to

the defendants on September 14, 2004 to fix the date to complete

the pending documentation and other formalities followed by

another letter dated December 21, 2004. A legal notice dated

April 19, 2005 was also served. In reply dated April 27, 2005, it

was asserted that a formal Agreement to Sell was to be executed

1 for short, ICICI

on or before July 21, 2004 and the appellant was to pay 25% of the

total consideration. Since the appellant has failed to pay 25% of

the total consideration amount, therefore, the Agreement is not

enforceable. It is thereafter on May 25, 2005, suit for specific

performance was filed.

4) The respondents denied the claim of the appellant to seek specific

performance of the Agreement dated July 18, 2004. The parties

led the evidence. The learned Trial Court dismissed the suit on

February 28, 2018, inter alia, holding that though the Agreement to

Sell was executed but appellant has failed to prove her readiness

and willingness to perform her part of the contract. However, the

appellant was found entitled to Rs.1 lakh and interest thereon. A

decree to this effect was passed by the learned Trial Court. The

first appeal was dismissed by the High Court on July 17, 2018

affirming the findings recorded by the Trial Court. Still aggrieved,

the appellant is before this Court.

5) Learned counsel for the appellant vehemently argued that the

appellant has earlier availed the loan of Rs.13 lakhs for purchase of

a flat in Ghaziabad. At that time, Rs.90 lakhs were assessed as the

capacity to avail loan by ICICI. Later, the appellant applied for loan

to purchase the property in question. The Bank has approved the

loan of Rs.50 lakhs but same was not disbursed since an

Agreement on a stamp paper of Rs.50/- was not executed by the

defendants. Therefore, the appellant has proved her readiness and

willingness to perform her part of the contract and the finding

recorded by the High Court is not sustainable.

6) In support of her claim, the appellant tendered her evidence on

affidavit and made herself available for cross-examination as PW-1.

PW-2 is her husband whereas PW-3 is the official from the ICICI who

has deposed regarding the loan sought by the appellant and/or her

husband. The appellant relied upon sanction letter dated July 30,

2004 (Ex.PW3/1) issued by ICICI. She stated that she had sufficient

funds and resources which she can draw and is in a position to

complete the transaction in her favour. She also stated that the

combined annual income of her and her husband is about Rs.80

lakhs per annum and they can easily avail a loan of upto Rs.1 crore

from any bank and a sum of Rs.50 lakhs is very easy to muster.

Similar is the affidavit of PW-2 Vishnu Kant, husband of the

appellant. PW-3 is Anil Kumar Shrivastava, Zonal Head (North),

ICICI who confirmed that the letter dated July 30, 2004 shown to

him from judicial file was issued by his Company though, his

Company does not have any copy of this letter in the record. In

cross-examination, he stated that 2-3 months prior to the said

approval, Vishnu Kant and the appellant were sanctioned home

loan to the tune of Rs.13 lakhs though they were entitled for the

loan to the extent of Rs.90 lakhs keeping in view their solvency.

They had applied for a loan of Rs.60 lakhs but later on, down sized

their requirement to about Rs.13 lakhs for purchasing the property

other than the suit property and that they have never received the

papers related to Flat No. 272, Ground Floor, Gulmohar Enclave,

New Delhi.

7) The document of availing loan of Rs.13 lakhs shows that the loan

has been sanctioned in respect of application No. 777-2415523. It

is the same application number which is relied upon by the

appellant for approval of Rs.50 lakhs as home loan to purchase the

property in question.

8) The learned Trial Court in respect of issue no. 2 as to whether the

plaintiff was ready and willing to perform her part of the

Agreement to Sell, returned the following finding:

“However, both the plaintiff – PW-1 and her husband –

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.”

9) The Trial Court, thus, held that the appellant is not entitled to the

specific performance of the Agreement to Sell but granted a decree

of recovery of Rs.1 lakh with 15% interest per annum from the date

of Agreement till recovery thereof.

10) In appeal, the High Court initially has taken into consideration that

only loan of Rs.13 lakhs were sanctioned as against the balance

sale consideration of Rs.49 lakhs but subsequently, the said aspect

was corrected finding error in view of the fact that a loan of Rs.13

lakhs was sanctioned in respect of the another property. The High

Court held that self-serving averments in the affidavit of the

appellant and her husband 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 important aspects of financial

capacity cannot be accepted by the courts as proof of financial

capacity. The High Court did not find any favour with the argument

that there is no cross-examination in respect of financial capacity

of the appellant and her husband. It was found that suggestion,

that the appellant and her husband have deposed falsely, was

considered sufficient so as to dispute her financial capacity and to

disprove her readiness and willingness to perform her part of the

agreement. The High Court also took the fact that the appellant is

not entitled to discretionary specific performance as the appellant

has paid Rs.1 lakh which is 2% of the total sale consideration of

Rs.50 lakhs. The High Court also took notice of the fact that the

defendants have filed a suit for possession against the tenant that

is the employer of her husband as they failed to vacate the suit

property after the expiry of the lease period. The decree of

possession has attained finality and that the defendants have

taken possession of the property as well.

11) Learned counsel for the appellant refers to judgment of this Court

in A. Kanthamani v. Nasreen Ahmed2 to contend that readiness

and willingness is not as if the appellant is to carry hard cash or the

amount in Bank but it is financial capacity to pay. The appellant

has proved her capacity to pay the balance sale consideration. This

Court in the cited case held as under:

“26. This Court in Sukhbir Singh v. Brij Pal

Singh [Sukhbir Singh v. Brij Pal Singh, (1997) 2 SCC

200 : AIR 1996 SC 2510] followed the aforesaid

principle with these words: (SCC p. 202, para 5)

“5. Law is not in doubt and it is not a condition

that the respondents should have ready cash

with them. The fact that they attended the Sub-

Registrar's office to have the sale deed executed

and waited for the petitioners to attend the office

of the Sub-Registrar is a positive fact to prove

that they had necessary funds to pass on

consideration and had with them the needed

money with them for payment at the time of

registration. It is sufficient for the respondents to

establish that they had the capacity to pay the

sale consideration. It is not necessary that they

should always carry the money with them from

the date of the suit till the date of the decree. It

would, therefore, be clear that the courts below

have appropriately exercised their discretion for

granting the relief of specific performance to the

respondents on sound principles of law.”

xx xx xx

28. At the outset, we may observe that this Court is

loath to undertake the task of appreciating the evidence

2 (2017) 4 SCC 654

in an appeal filed under Article 136 of the Constitution

of India. It is more so when such appeal arises out of

the judgment, which has recorded concurrent findings

of fact.”

12) The argument of the appellant that the capacity to pay is proved

by the approval of loan by ICICI and the fact that the appellant and

her husband have substantial income of Rs.80 lakhs per annum,

therefore, the findings recorded by both the Courts below are not

sustainable.

13) On the other hand, Mr. Narender Hooda, learned senior counsel for

the respondents, submitted that the appellant is seeking

reappreciation of evidence in the present appeal under Article 136

of the Constitution of India. There is no substantial question of law

of general importance which is arising for consideration of this

Court. It is also argued that relief for specific performance is a

discretionary relief. Both the courts have declined discretionary

relief, therefore, no case is made out for interference in the present

appeals.

14) We do not find any merit in the present appeals. The judgment in

A. Kanthamani was in an appeal filed by the defendant against

the concurrent finding of fact recorded by the courts below

granting decree of specific performance of the Agreement. This

Court has not interfered with the findings of fact recorded even

after reappreciation of evidence.

15) Coming to the facts of the present case, the sole document relied upon by the appellant to prove her readiness and willingness is the