IMPORTANT POINTS
What is the evidence and what is the weight to be attached to the evidence are two separate aspects.
Oral statements on important aspects of financial capacity cannot be accepted by the courts as proof of financial capacity.

JUDGMENT :

HEMANT GUPTA, J.

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 dated 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 Limited (for short, ICICI) 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 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 Agreem