Vijay Kumar vs Om Parkash

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 10191 OF 2018 (Arising out of SLP(C)No.3768 of 2016)

VIJAY KUMAR & ORS. Appellant (s)

VERSUS

OM PARKASH Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) This appeal arises out of judgment and order dated 19th

December, 2015 passed by the High Court of Punjab and Haryana

at Chandigarh in R.S.A. NO.6184 of 2015 in and by which the

High Court has affirmed the judgment of the First Appellate

Court thereby granting decree for specific performance in

favour of the respondent-plaintiff.

(3) The facts of the case in a nutshell are as follows. The

appellants-defendant and the respondent-plaintiff had entered

into an agreement for sale on 9th November, 2007 in respect of a

shop for a total sale consideration of Rs.26,00,000 (Rupees

twenty six lakhs). Rs.4,00,000/- (Rupees four lakhs) was paid

by the respondent-plaintiff to the appellants-defendant as

earnest Signature Not Verified money and the remaining amount of Rs.22,00,000/- Digitally signed by MAHABIR SINGH Date: 2018.10.06

(Rupees Twenty Two Lakhs) was to be paid on 31st March, 2008 11:35:02 IST Reason:

that is the date fixed for executing the registration of the

sale deed. Admittedly, both the parties went to the concerned 2

Sub-Registrar’s Office on 31st March, 2008; but the sale deed

was not executed. The respondent-plaintiff filed a suit on 29 th

April, 2008 for specific performance. The appellants-defendant

contested the suit contending that the respondent-plaintiff was

not ready and willing to perform his part of the contract.

Upon consideration of oral and documentary evidence, the Trial

Court dismissed the suit for specific performance filed by the

respondent-plaintiff holding that the respondent has failed to

prove his readiness and willingness to perform the contract.

(4) In appeal, preferred by the respondent-plaintiff, the

First Appellate Court set aside the judgment of the Trial

Court and allowed the first appeal thereby granting specific

performance in favour of the respondent-plaintiff. The

judgment of the First Appellate Court was affirmed by the High

Court, as aforesaid in para (1).

(5) We have heard Mr. Kaushal Yadav, learned counsel appearing

for the appellants-defendant and Mr. Sumit Bansal, learned

counsel appearing for the respondent-plaintiff and also perused

the impugned judgment and the evidence/materials on record.

(6) Learned counsel for the respondent-plaintiff has submitted

that the respondent’s readiness and willingness has been

accepted by the two courts below and the respondent has

actually deposited the balance amount of Rs.22,00,000/- (Rupees

Twenty Two Lakhs) in 2015 after the judgment of the First

Appellate Court.

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(7) In order to obtain a decree for specific performance, the

plaintiff has to prove his readiness and willingness to perform

his part of the contract and the readiness and willingness has

to be shown through out and has to be established by the

plaintiff. In the case in hand, though the respondent-

plaintiff has filed the suit for specific performance on 29 th

April, 2008, the respondent-plaintiff has not shown his

capacity to pay the balance sale consideration of Rs.22,00,000

(Rupees Twenty Two Lakhs). In his evidence, the respondent-

plaintiff has stated that he has borrowed the amount from his

friends and kept the money to pay the balance sale

consideration. As rightly pointed out by the Trial Court, the

respondent-plaintiff could not produce any document to show

that he had the amount of Rs.22,00,000 (Rupees Twenty Two

Lakhs) with him on the relevant date; nor was he able to name

the friends from whom he raised money or was able to raise the

money. Further more, as rightly pointed out by the Trial

Court, the respondent-plaintiff could have placed on record his

Accounts Book, Pass Book or the Statement of Accounts or any

other negotiable instrument to establish that he had the money

with him at the relevant point of time to perform his part of

the contract. We are, therefore, in agreement with the view

taken by the Trial Court that the respondent-plaintiff has not

been able to prove his readiness and willingness on his part.

(8) The relief for specific performance is purely

discretionary. Though the respondent-plaintiff has alleged 4

that he was ready and willing to perform his part of the

contract, the First Appellate Court ought to have examined

first whether the respondent-plaintiff was able to show his

capacity to pay the balance money. In our considered view, the

First Appellate Court as well as the High Court has not

properly appreciated the evidence and the conduct of the

parties. The First Appellate Court as well as the High Court,

in our view, was not right in reversing the judgment of the

Trial Court and the impugned order cannot be sustained and

liable to be set aside.

(9) Considering the relief to be granted to the respondent-

plaintiff, admittedly the respondent-plaintiff had paid an

earnest money of Rs.4,00,000/- (Rupees Four Lakhs) to the

appellants-defendant and that has to be necessarily paid back

to the respondent-plaintiff, of course with interest at the

rate of 12% per annum (from the date of Agreement to Sell i.e.

9th November, 2007 till date i.e. 3rd October, 2018) and

thereafter at the rate of 10% per annum till the date of

releasing the payment. Ordered accordingly. The amount of

Rs.4,00,000/- (Rupees Four Lakhs) along with interest, as

above, be paid by the appellants-defendant by way of Demand

Draft in favour of the respondent within eight weeks from

today. Further, the respondent-plaintiff is permitted to

withdraw Rs.22,00,000/- (Rupees Twenty Two Lakhs) deposited by

him before the First Appellate Court along with the interest,

if any accrued on the same.

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(10) The appeal is accordingly allowed.

..........................J. (R. BANUMATHI)

..........................J. (INDIRA BANERJEE) NEW DELHI, OCTOBER 3, 2018.