The main legal point established in the judgment is that the appellant/plaintiff's financial capacity to pay the balance sale consideration was crucial for specific performance of the Agreement to Sell.

VALMIKI J. MEHTA, J.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 05.09.2005 by which trial court has dismissed the suit for specific performance filed by the appellant/plaintiff with respect to the Agreement to Sell dated 18.07.1996 for the property on a plot of 22.5 sq yards situated at D-8, Old Seemapuri, Delhi, comprising of one shop, one room, staircase on the ground floor, two rooms, staircase on the first floor, latrine and bathroom on the second floor.

2. Before proceeding further, it requires to be stated that originally there were two plaintiffs in the suit, being the brother and sister, namely Sh. Mahender Lal Kapoor and Smt. Varsha Kapoor. These two plaintiffs were the proposed purchasers under the subject Agreement to Sell. Plaintiff no. 1 died during the pendency of the suit and he was therefore substituted by his mother Smt. Sita Devi, who also expired, and on the death of Smt. Sita Devi, the other legal heirs of Smt. Sita Devi being the siblings of the plaintiff no. 2, Smt. Varsha Kapoor, gave their no objections for the plaintiff no. 2 becoming the sole beneficiary of the rights under the subject Agreement to Sell. Plaintiff no. 2, Smt. Varsha Kapoor, hence became the sole plaintiff in the suit.

3. I need not narrate the facts in details because it is not disputed that parties did enter into the Agreement to Sell dated 18.07.1996/Ex.PW1/1 for the suit property. The total sale consideration was fixed at Rs. 4,60,00/- of which admittedly a sum of Rs. 2,65,000/- was received in cash by the respondent/defendant from the appellant/plaintiff. The time fixed under the Agreement to Sell was 18.07.1997. Whereas the case of the appellant/plaintiff was that Smt. Varsha Kapoor went to the office of the Sub-Registrar on 21.07.1997 (inasmuch as 18.07.1997 was a holiday), alongwith balance payment and the stamp papers purchased for execution of the sale deed, however the respondent/defendant failed to appear for registration of the sale deed. The respondent/defendant, on the contrary, contended that she was in fact present before the Sub-Registrar, but it was the original plaintiffs who failed to appear before the Sub-Registrar for making payment of the balance sale consideration and for execution of the sale deed. The respondent/defendant therefore claimed that she sent a Legal Notice dated 22.07.1997 to the original plaintiffs, and thereafter the respondent/defendant forfeited the amount of Rs. 2,65,000/- received by her under the subject Agreement to Sell. The respondent/defendant also pleaded that she had entered into an Agreement to Sell dated 16.05.1997/Ex.DW1/1 with one Sh. Dinesh Kumar to purchase his property of 75 sq. yds. out of Khasra no. 642, situated at village Chandravali, bearing no. 2216 in the abadi of Jwala Nagar, Illaqa Shahdara, Delhi-110032, and an amount of Rs. 1,50,000/- was paid to Sh. Dinesh Kumar, but since on account of the default of the appellant/plaintiff to pay the balance sale consideration, the respondent/ defendant could not go through the agreement with Sh. Dinesh Kumar, and hence Sh. Dinesh Kumar forfeited the amount of Rs. 1,50,000/- paid to him by the respondent/ defendant under the Agreement to Sell dated 16.05.1997.

4. After pleadings were complete, trial court framed issues. The trial court has dismissed the suit by deciding issue nos. 1 and 4 against the appellant/plaintiff by holding that the appellant/plaintiff was guilty of breach of contract because she did not prove her financial capacity to pay the balance sale consideration of Rs. 1,95,000/-. The relevant observations of the trial court in this regard read as under:-

“ISSUE NO. 1 & 4

1. Whether the plaintiffs are entitled to a decree of specific performance of contractor in the alternative, recovery of damages of Rs. 5,00,000/-? OPP

4. Whether the plaintiffs are guilty of breach of the agreement