Valmiki J. Mehta, J.

1. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment of the Trial Court dated 26.12.2016 by which trial court has decreed the suit for specific performance filed by the respondent/plaintiff of the Agreement to Sell dated 30.10.2009 with respect to the suit property being the entire third floor with roof and terrace rights of property bearing no.Q, South Patel Nagar, New Delhi measuring 95.7 sq mtrs. The total sale consideration under the Agreement to Sell was Rs.43.75 lacs of which the respondent/plaintiff had paid a sum of Rs.5.75 lacs to the appellant/defendant.

2. Before this Court, counsel for the appellant/defendant has argued as under:-

(i) In every suit for specific performance, a plaintiff/buyer must prove his readiness and willingness, and which is sine qua non because of Section 16(c) of the Specific Relief Act, 1963. It is argued that readiness being the financial capacity is not a matter of oral self-serving statement but the same has to be proved by means of such evidence, especially the documentary evidence, which satisfies the judicial conscience with respect to financial capacity of the buyer. Reliance is placed by the appellant/defendant on the judgment delivered by this Court in the case of Baldev Behl & Ors. Vs. Bhule & Ors. (2012) 132 DRJ 247 to argue that self-serving oral statements cannot prove the financial capacity and that too of a huge amount of Rs.38 lacs in the facts of the present case. It is argued therefore that trial court having not discussed this aspect of any proof filed by the respondent/plaintiff of financial capacity, except a cheque of the respondent/plaintiff without any supporting proof of moneys available in her bank account consequently, the suit for specific performance had to be dismissed.

(ii) At best, the respondent/plaintiff has paid a sum of Rs.5.75 lacs out of the total sale consideration of Rs.43.75 lacs, and therefore in such a case where only approximately 14% of the sale consideration is paid, the relief of specific performance should be declined in view of the judgment of the Supreme Court in the case of Saradamani Kandappan vs. S. Rajalakshmi and Others, 2011 (12) SCC 18 and as followed by this Court in various judgments including the judgment in the case of M/s Hotz Industries Pvt. Ltd. Vs. Dr. Ravi Singh (Since Deceased Through LRs) & Ors in CS(OS) 1261/1995 decided on 28.2.2018. The judgment in the case of M/s Hotz Industries Pvt. Ltd. (supra) has also been recently followed by this Court in its judgment dated 3.7.2018 in RFA No.535/2005 titled as Bhaskar Saini Vs. Satbir Singh. Accordingly, it is argued that since specific performance is a discretionary relief, the ratio of the judgment in the case of M/s Hotz Industries Pvt. Ltd. (supra) be applied by this Court and the respondent/defendant be held disentitled to the discretionary relief of specific performance.

3. Learned counsel for the appellant/defendant states that appellant/defendant has however no difficulty in case the Court passes a money decree for refund of a sum of Rs.5.75 lacs by the appellant/defendant to the respondent/plaintiff along with reasonable rate of interest on account of this amount being received by the appellant/defendant under the subject agreement to sell.

4. The arguments urged on behalf of the appellant/defendant are well merited and will succeed for the following reasons and discussion given hereinafter. At this stage, let me reproduce the relevant paras of the judgment passed by this Court in the case of M/s Hotz Industries Pvt. Ltd. (supra) and which are paras 14 to 23 of the said judgment, and these paras 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.