VALMIKI J. MEHTA, J.

RFA No. 108/2017 and C.M. Appl. No. 3619/2017 (for stay)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit impugning the Judgment of the trial court dated 05.11.2016 by which the trial court has decreed the suit for specific performance filed by the respondent/plaintiff pertaining to the Agreement to Sell dated 26/27.05.2005 for the property being Flat no. 37, Second Floor, Cooperative Group Housing Society, Ankur Apartments, I.P. Extension, Plot no. 7, Patparganj, Delhi-110092. Trial court has held that it was the appellants/defendants who were guilty of breach of contract and that the respondent/plaintiff had proved her readiness and willingness for grant of the decree for specific performance. Trial court has also held that the appellants/defendants cannot succeed in displacing the respondent/plaintiff for the grant of relief of specific performance on the ground that the relief of specific performance is a discretionary relief and which ought not to be granted in favour of the respondent/plaintiff in the facts of the present case.

2. I need not narrate the facts of the case in detail, and the limited facts required for the decision of the present appeal are that an Agreement to Sell was admittedly entered into between the parties on 26/27.05.2005 with respect to the suit property. That the total sale consideration was Rs. 36,37,500/- is also not disputed. Out of the total sale consideration, only an amount of Rs. 2,00,000/- was paid as earnest money and this is also not disputed and also that the balance sale consideration of Rs. 34,37,500/- was payable in terms of the Agreement to Sell by 10.08.2005. It is also an undisputed position that at the time of payment of the balance sale consideration on or before 10.08.2005, the sale deed was to be executed and possession of the suit property was to be delivered by the appellants/defendants to the respondent/plaintiff.

3. There are two issues which are argued on behalf of the appellants/defendants for allowing of the present appeal and dismissing the suit for specific performance filed by the respondent/plaintiff. Firstly, it is argued that every plaintiff in a suit for specific performance must strictly prove the existence of financial capacity, and the same is a sine qua non as per Section 16(c) of the Specific Relief Act, 1963. It is argued that the respondent/plaintiff has miserably failed to prove her financial capacity of having the balance sale consideration of Rs. 34,37,500/-, and especially that the financial capacity to prove the balance sale consideration, even if the same is proved as on 10.08.2005, the same has definitely not been proved for the period from 10.08.2005 till the suit was decreed, and this is the requirement of law in view of the ratio of the judgment of the Hon'ble Supreme Court in the case of N.P. Thirugnanam (D) through LRs v. Dr. R. Jagan Mohan Rao & Ors, 1995 (5) SCC 115.

4. The following issues were framed in the suit:- (i) Whether the plaintiff is entitled to specific performance of an agreement to sell dated 26/27.05.2005 in respect of the suit property agreed to be sold by the defendants to her? OPP (ii) Which party to the suit was guilty of breach of the agreement to sell dated 26/27.05.2005 and to what effect? OP Parties. (iii) Whether the plaintiff was ready and willing to perform his part of the contract as contained in the agreement to sell dated 26/27.05.2005? OPP. (iv) In case the plaintiff is found not entitled to specific performance, to what amount the plaintiff shall be entitled to get as damages or otherwise from the defendants in terms of agreement to sell dated 26/27.05.2005? OPP (v) Relief.”

5. On the aspect of financial capacity, the trial court has held that the respondent/plaintiff has proved her financial capacity. For this purpose, besides the oral averments of the husband of the respondent/plaintiff who appeared in the w