REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7268-7269 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 29133-29134 OF 2018)

RITU SAXENA .....APPELLANT(S)

VERSUS

J.S. GROVER & ANR. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) The unsuccessful plaintiff is in appeals before this Court arising out

of a suit for specific performance of an Agreement dated July 18,

2004 in respect of Flat No. 272, Ground Floor, Gulmohar Enclave,

New Delhi.

2) The husband of  the  appellant,  who as  an employee of  M/s.  GE

Capital Services India Ltd., was in occupation of the said residential

premises on a monthly rent of Rs.13,000/- to be paid by the tenant

i.e. M/s. GE Capital Services India Ltd. since September 2002 to the

landlord.  On the expiry of the existing lease, the Agreement of

Lease was extended for 11 months from September 01, 2004 but

before the expiry of the lease, the appellant claims to have entered

into an Agreement of Purchase the said property for a total sum of

Rs.50  lakhs.   A  sum  of  Rs.1  lakh  by  cheque  was  paid  to  the

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defendants.  It was agreed that all further relevant documents such

as Agreement to Sell, Sale Deed, Will, Possession Certificate and

No Objection Certificate for  the purpose of  transferring the said

property shall be executed. The Agreement reads thus:

“I, J. S. Grover S/o G. S. Grover, resident of M-12 (First Floor)  Kailash  Colony,  New  Delhi  48  have  agreed  in principle  and  in  terms  to  sell  my  house  (for  a consideration of Rs. 50 lacs) which is a freehold joint property in my name and in my wife’s name Smt. Veena Grover,  known  as  house  bearing  no.272,  Gulmohar Enclave New Delhi 1100049.

In this transaction I acknowledge the receipt of Rs. 1 lac as  advance  money  by  cheque  number  044386  dt. 18.7.2004  issued  from  ICICI  Bank  Vasant  Vihar  New Delhi  and  agree  to  furnish  all  the  further  relevant document such as Agreement to Sale, Sale Deed, Will, Possession  Certificate,  NOCs  etc.  for  the  purpose  of transferring the above said property in the name of Ritu Saxena at present residing at 272, Gulmohar Enclave New Delhi 110049 and a permanent resident of B-377 Indira Nagar Lucknow, U.P.  

-sd- 18.7.2004

(J. S. Grover)”

3) The appellant relies upon communication dated July 30, 2004 that

a loan of Rs.50 lakhs has been approved by the ICICI Home Finance

Company Limited1 but the disbursal of the loan was only after the

bank receives all income tax and property documents as discussed

with her husband.  The appellant is said to have written a letter to

the defendants on September 14, 2004 to fix the date to complete

the  pending  documentation  and  other  formalities  followed  by

another  letter  dated December  21,  2004.   A  legal  notice  dated

April 19, 2005 was also served.  In reply dated April 27, 2005, it

was asserted that a formal Agreement to Sell was to be executed

1  for short, ICICI  

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on or before July 21, 2004 and the appellant was to pay 25% of the

total consideration.  Since the appellant has failed to pay 25% of

the total  consideration  amount,  therefore,  the Agreement is  not

enforceable.   It  is  thereafter  on  May  25,  2005,  suit  for  specific

performance was filed.   

4) The respondents denied the claim of the appellant to seek specific

performance of the Agreement dated July 18, 2004.  The parties

led the evidence.  The learned Trial Court dismissed the suit on

February 28, 2018, inter alia, holding that though the Agreement to

Sell was executed but appellant has failed to prove her readiness

and willingness to perform her part of the contract.  However, the

appellant was found entitled to Rs.1 lakh and interest thereon. A

decree to this effect was passed by the learned Trial Court.  The

first  appeal  was  dismissed  by  the  High  Court  on  July  17,  2018

affirming the findings recorded by the Trial Court.  Still aggrieved,

the appellant is before this Court.   

5) Learned  counsel  for  the  appellant  vehemently  argued  that  the

appellant has earlier availed the loan of Rs.13 lakhs for purchase of

a flat in Ghaziabad.  At that time, Rs.90 lakhs were assessed as the

capacity to avail loan by ICICI.  Later, the appellant applied for loan

to purchase the property in question.  The Bank has approved the

loan  of  Rs.50  lakhs  but  same  was  not  disbursed  since  an

Agreement on a stamp paper of Rs.50/- was not executed by the

defendants.  Therefore, the appellant has proved her readiness and

willingness  to  perform her  part  of  the  contract  and  the  finding

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recorded by the High Court is not sustainable.   

6) In support of her claim, the appellant tendered her evidence on

affidavit and made herself available for cross-examination as PW-1.

PW-2 is her husband whereas PW-3 is the official from the ICICI who

has deposed regarding the loan sought by the appellant and/or her

husband.  The appellant relied upon sanction letter dated July 30,

2004 (Ex.PW3/1) issued by ICICI.  She stated that she had sufficient

funds and resources which she can draw and is in a position to

complete the transaction in her favour.  She also stated that the

combined annual income of her and her husband is about Rs.80

lakhs per annum and they can easily avail a loan of upto Rs.1 crore

from any bank and a sum of Rs.50 lakhs is very easy to muster.

Similar  is  the  affidavit  of  PW-2  Vishnu  Kant,  husband  of  the

appellant.   PW-3 is  Anil  Kumar Shrivastava, Zonal  Head (North),

ICICI who confirmed that the letter dated July 30, 2004 shown to

him  from  judicial  file  was  issued  by  his  Company  though,  his

Company does not have any copy of this letter in the record.  In

cross-examination,  he  stated  that  2-3  months  prior  to  the  said

approval,  Vishnu Kant  and  the  appellant  were  sanctioned  home

loan to the tune of Rs.13 lakhs though they were entitled for the

loan to the extent of Rs.90 lakhs keeping in view their solvency.

They had applied for a loan of Rs.60 lakhs but later on, down sized

their requirement to about Rs.13 lakhs for purchasing the property

other than the suit property and that they have never received the

papers related to Flat No. 272, Ground Floor, Gulmohar Enclave,

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New Delhi.

7) The document of availing loan of Rs.13 lakhs shows that the loan

has been sanctioned in respect of application No. 777-2415523.  It

is  the  same  application  number  which  is  relied  upon  by  the

appellant for approval of Rs.50 lakhs as home loan to purchase the

property in question.

8) The learned Trial Court in respect of issue no. 2 as to whether the

plaintiff  was  ready  and  willing  to  perform  her  part  of  the

Agreement to Sell, returned the following finding:

“However, both the plaintiff – PW-1 and her husband – PW-2 have throughout the cross-examination deposed that  they  were  having  funds/financial  capacity  to purchase  the  property.   PW-1  has  deposed  that  on 09.04.2005 when they went to the defendants house they were carrying a banker’s cheque with them.  But has neither given any details  of  the banker’s cheque nor has placed on record a copy of the banker’s cheque. Further, even copy of the passbook/bank statement of the account from which the banker’s cheque was got prepared, has been filed in support of her averment and to  show  that  the  banker’s  cheque  was  actually  got prepared.   Further,  PW-1  deposed  that  they  had  a property worth Rs.80 lakhs but again neither any details of  the said  property  have been stated nor a copy of those property documents has been placed on record in support  of  this  version.   Thus,  not  even  a  single document has been filed to show that the plaintiff at any point of time from 18.07.2004 till filing of the suit, owned  other  property  or  had  money  in  her  bank account or in the account of her husband or any other source  of  fund  for  payment  of  the  balance  sale consideration of Rs.49 lakhs.  In absence thereof, the statements of  PW-1 and PW-2 are nothing more than bald averments carrying no weight.”

9) The Trial Court, thus, held that the appellant is not entitled to the

specific performance of the Agreement to Sell but granted a decree

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of recovery of Rs.1 lakh with 15% interest per annum from the date

of Agreement till recovery thereof.

10) In appeal, the High Court initially has taken into consideration that

only loan of Rs.13 lakhs were sanctioned as against the balance

sale consideration of Rs.49 lakhs but subsequently, the said aspect

was corrected finding error in view of the fact that a loan of Rs.13

lakhs was sanctioned in respect of the another property.  The High

Court  held  that  self-serving  averments  in  the  affidavit  of  the

appellant and her husband cannot be taken as discharge of onus of

proof of having financial capacity.  What is the evidence and what

is  the  weight  to  be  attached to  the  evidence are  two separate

aspects  and  oral  statements  on  important  aspects  of  financial

capacity cannot be accepted by the courts  as proof  of  financial

capacity.  The High Court did not find any favour with the argument

that there is no cross-examination in respect of financial capacity

of the appellant and her husband. It  was found that suggestion,

that  the  appellant  and  her  husband  have  deposed  falsely,  was

considered sufficient so as to dispute her financial capacity and to

disprove her readiness and willingness to perform her part of the

agreement.  The High Court also took the fact that the appellant is

not entitled to discretionary specific performance as the appellant

has paid Rs.1 lakh which is 2% of the total sale consideration of

Rs.50 lakhs.  The High Court also took notice of the fact that the

defendants have filed a suit for possession against the tenant that

is the employer of her husband as they failed to vacate the suit

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property  after  the  expiry  of  the  lease  period.   The  decree  of

possession  has  attained  finality  and  that  the  defendants  have

taken possession of the property as well.

11) Learned counsel for the appellant refers to judgment of this Court

in A. Kanthamani v. Nasreen Ahmed2 to contend that readiness

and willingness is not as if the appellant is to carry hard cash or the

amount in Bank but it is financial capacity to pay. The appellant

has proved her capacity to pay the balance sale consideration. This

Court in the cited case held as under:

“26.   This  Court  in Sukhbir  Singh v. Brij  Pal Singh [Sukhbir  Singh v. Brij  Pal  Singh,  (1997)  2  SCC 200  :  AIR  1996  SC  2510]  followed  the  aforesaid principle with these words: (SCC p. 202, para 5)

“5. Law is not in doubt and it is not a condition that  the  respondents  should  have  ready  cash with them. The fact that they attended the Sub- Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of  the Sub-Registrar  is  a  positive  fact  to  prove that  they  had  necessary  funds  to  pass  on consideration  and  had  with  them  the  needed money  with  them  for  payment  at  the  time  of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.”

xx xx xx

28.  At the outset, we may observe that this Court is loath to undertake the task of appreciating the evidence

2  (2017) 4 SCC 654

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in an appeal filed under Article 136 of the Constitution of India. It is more so when such appeal arises out of the judgment, which has recorded concurrent findings of fact.”

12) The argument of the appellant that the capacity to pay is proved

by the approval of loan by ICICI and the fact that the appellant and

her husband have substantial income of Rs.80 lakhs per annum,

therefore, the findings recorded by both the Courts below are not

sustainable.   

13) On the other hand, Mr. Narender Hooda, learned senior counsel for

the  respondents,  submitted  that  the  appellant  is  seeking

reappreciation of evidence in the present appeal under Article 136

of the Constitution of India.  There is no substantial question of law

of  general  importance  which  is  arising  for  consideration  of  this

Court.   It  is also argued that relief for specific performance is a

discretionary  relief.  Both  the  courts  have  declined  discretionary

relief, therefore, no case is made out for interference in the present

appeals.

14) We do not find any merit in the present appeals. The judgment in

A. Kanthamani was in an appeal filed by the defendant against

the  concurrent  finding  of  fact  recorded  by  the  courts  below

granting decree of specific performance of the Agreement.  This

Court has not interfered with the findings of fact recorded even

after reappreciation of evidence.

15) Coming to the facts of the present case, the sole document relied

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upon by the appellant to prove her readiness and willingness is the

approval of loan on July 30, 2004 by the ICICI.  Such approval was

subject to two conditions, viz., furnishing of income tax documents

of the appellant and the property documents.  M/s. ICICI has sent

an  Email  on  May  12,  2005  to  the  husband  of  the  appellant

requiring an Agreement to Sell on a stamp paper of Rs.50/- to be

executed between the parties, as per the legal opinion sought from

the  empaneled  lawyer,  without  which  ICICI  will  not  be  able  to

disburse  the  loan.   Admittedly,  no  agreement  was  executed  on

stamp paper, therefore, the appellant could not avail loan of Rs.50

lakhs  from  ICICI.   Independent  of  such  loan,  there  is  mere

statement that appellant and her husband have income of Rs.80

lakhs per annum unsupported by any documentary evidence. Such

statement will be in the nature of ipsi dixit of the appellant and/or

her husband and is without any corroborating evidence. Such self-

serving statements without any proof of financial resources cannot

be relied upon to return a finding that the appellant was ready and

willing to perform her part of the contract.  The appellant has not

produced any income tax record or the bank statement in support

of her plea of financial capacity so as to be ready and willing to

perform  the  contract.   Therefore,  mere  fact  that  the  bank  has

assessed the financial capacity of the appellant while granting loan

earlier in respect of another property is not sufficient to discharge

of proof of financial capacity in the facts of the present case to hold

that the appellant was ready and willing to perform her part of the

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contract. Such is the finding recorded by both the courts below as

well.  

 16) In view of the said fact, we do not find, even on reappreciation of

evidence, that the finding recorded by the High Court suffers from

any  illegality  which  may  warrant  interference  in  the  present

appeals.  Consequently, the appeals are dismissed.

17) The amount of Rs. 3.5 crores deposited by the appellant in terms of

order  dated  November  19,  2018  of  this  Court,  which  has  been

invested in the FDR, may be returned to her, along with the interest

accrued thereon, as per rules.  

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; SEPTEMBER 17, 2019.

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