The central legal point established in the judgment is the requirement for clear proof of readiness and willingness in cases of specific performance, particularly the need to substantiate the availability of balance monies for payment of the sale consideration.

Valmiki J. Mehta, J.

1. The present first appeal under Section 96 of the Code of Civil Procedure, 1908 impugns the judgment and decree dated 12.1.1998 whereby the suit of the Respondent/Plaintiff for specific performance was decreed. The agreement to sell in question is dated 6.10.1986 with respect to the property No. 874 (Old No. 355/56) Prem Gali No. 3-C, Gandhi Nagar, Delhi-31. The total consideration under the agreement to sell was Rs. 90,000/- of which Rs. 10,000/- was paid on the date of the agreement to sell. The balance amount of Rs. 80,000/- was to be payable in one month by 6.11.1986 when the sale deed was to be executed and registered.

2. It is not in dispute that there was an agreement to sell and nor is the consideration amount in dispute. It is also not disputed that the agreement to sell was to be performed within one month by the Respondent/Plaintiff getting executed the sale deed in its favour. Though various defences were raised by the Appellant/Defendant the main defence was the lack of readiness and willingness of the Respondent/Plaintiff.

3. The trial court framed the following issues for consideration.

1. Which of the parties is guilty of committing a breach of the agreement to sell dated 6-10-86? Onus on parties.

2. Whether the suit is within time as alleged?OPP

3. Whether the suit is without any causes of action as alleged?OPP

4. Whether the suit is bad for mis-joinder of Defendant No. 2 as alleged? If so to what effect? OPD

5. Whether the Plaintiff is entitled to a decree for specific performance of the agreement as alleged?OPP

6. Relief.

4. The learned Counsel for the Appellant has very vehemently argued before this Court that the trial court clearly erred in its finding with regard to the issue No. 5 because the Respondent/Plaintiff failed to show his capacity to pay the balance consideration of Rs. 80,000/- during the period when performance of this obligation was to be done viz in October/November,1986. The learned Counsel for the Appellant referred to the statement of PW-1 (Respondent/Plaintiff) and which is the only evidence led in the trial court with regard to the financial capacity of the Respondent/ Plaintiff.

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I had the money ready for getting executing the required document as I sold a residence for Rs. 70,000/- at Shankar nagar and the remaining amount was available at my home. It was a plot at Shankar nagar which I sold about after 4-5 days of the agreement. Number of which I do not remember. And I have given over the documents pertaining to that plot to the buyer. I do not remember the name of the buyer.

Referring to the aforesaid portion, counsel for the Appellant argued that even this evidence is in the cross examination of PW1 and not in the examination in chief of the Respondent/Plaintiff. Nothing further was proved so as to show the readiness and willingness in terms of availability of money with the Respondent/Plaintiff for payment of the balance consideration for execution of the sale deed.

5. During the course of arguments, I put it to the learned Counsel for the Respondent as to whether the Respondent/Plaintiff had before the trial court filed his statement of bank account to show whether he had with him a sum of Rs. 80,000/- in October/November,1986, and to which, the counsel for the Respondent/Plaintiff said that no such copy of the bank account was filed in the trial court. I further put it to the counsel for the Respondent/Plaintiff as to whether the copies of the title documents of the property which the Respondent/Plaintiff allegedly owned at Shankar Nagar were filed in the trial court, and again to which, the learned Counsel for the Respondent/Plaintiff replied in the negative. My further query was that whether the Respondent/Plaintiff had filed in the trial court copies of the documents showing the sale of the Shankar Nagar property, and once again learned Counsel for the Respondent/Plaintiff said that no such documents were filed in the trial court. The conclusion therefor