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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  money  and  the  remaining  amount  of  Rs.22,00,000/-

(Rupees Twenty Two Lakhs) was to be paid on 31st March, 2008

that is the date fixed for executing the registration of the

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

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

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

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 29th

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

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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.