IMPORTANT POINT
There is difference between pleading of readiness and willingness and proof of readiness and willingness.

Valmiki J. Mehta, J.—This Regular First Appeal under section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit for specific performance impugning the judgment of the Trial Court dated 6.6.2017 by which the Trial Court has dismissed the suit for specific performance by holding that appellant/plaintiff failed to prove his financial capacity to pay the balance sale consideration of Rs. 10 lacs under the agreement to sell dated 17.1.2005.

2. The facts of the case are that the appellant/plaintiff filed the subject suit for specific performance pleading that the parties had entered into an agreement to sell on 17.1.2005 with respect to the suit property bearing No. IX/90, Shyam Block Kailash Nagar, Delhi for a total consideration of Rs. 11,20,000/- of which earnest money of Rs. 1,20,000/- was sought to be paid and the balance of Rs. 10,00,000/- was to be paid on or before 30.4.2005. Earnest money of Rs. 1,20,000/- was paid into two parts one of which being a sum of Rs. 70,000/- was paid in cash, and Rs. 50,000/- was paid by cheque. The appellant/plaintiff pleads that since the respondent/defendant failed to perform his part of contract and did not execute the sale deed of the suit property in favour of the appellant/plaintiff, therefore, after serving a legal notice dated 9.9.2005, the subject suit for specific performance was filed.

3. The respondent/defendant contested the suit and pleaded that in fact no amount of earnest money, i.e Rs. 1,20,000/- including the amount of Rs. 50,000/- which was alleged to be paid by cheque by the appellant/plaintiff to the respondent/defendant was paid. The appellant/plaintiff is pleaded to be a tenant in a portion of the first floor, second floor and third floor of the suit property and without paying a single penny, it was pleaded that the subject suit for specific performance was filed.

4. After completion of pleadings issues were framed on 7.11.2006 and thereafter additional issues were also framed on 25.3.2010. These issues read as under:-

“On 07.11.2006

(1) Whether plaintiff did not pay advance amount of Rs. 1,20,00/- to the defendant in terms of the agreement deed dated 17.01.2005 entered into between the parties as claimed for by the defendant in preliminary objection No.2 of his written statement? OPD.

(2) Whether the plaintiff is entitled to relief of specific performance as claimed for by him in the present suit? OPP.

(3) Whether plaintiff is entitled to relief of permanent injunction as claimed for by him in the present suit? OPP.

(4) Relief.

On 25.03.2010:

(1) Whether the plaintiff has no locus standi to file the present suit? OPD.

(2) Whether plaintiff is entitled to specific performance of agreement to sell? OPP.

(3) Whether plaintiff is entitled to permanent injunction, as prayed? OPP.

(4) Relief.”

5. Trial Court has held that the appellant/plaintiff failed to prove the readiness and willingness because the appellant/plaintiff failed to prove that he had with him the balance amount of Rs. 10,00,000/- to make payment of the balance sale consideration. The relevant findings and observations of the trial court in this regard are contained in para 7 of the impugned judgment and this para 7 reads as under:-

“Issue no.2 dated 07.11.2006 and 25.03.2010:

Whether the plaintiff is entitled to relief of specific performance as claimed for by him in the present suit? OPP.

Whether plaintiff is entitled to specific performance of agreement to sell? OPP

The onus of proving this issue was on plaintiff. Plaintiff was required to be proved that he was always ready and willing to perform his part of contract as required under section 16C of the Specific Relief Act. The cross-examination of the plaintiff in this regard is very relevant. The plaintiff in his cross-examination dated 18.09.2013 admits that on 30.04.2005 i.e. on the last date of stipulated period he has no balance of Rs. 10 lacs in his bank account. Though he claims voluntarily that he ha