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Judgment
Valmiki J Mehta, J.
C.M. No. 4703/2011 (Condonation of delay) in RFA No. 142/2011
For the reasons stated in the application, delay in refiling is condoned. Application stands disposed of.
RFA No. 142/2011 and C.M. No. 4702/2011
The challenge by means of the Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 23.12.2010 whereby the suit for specific performance or in the alternative for damages filed by the Appellant/Plaintiff has been decreed only for the alternative relief of damages and not for specific performance. The trial Court has decreed the suit for Rs. 3 lakhs, which is double the amount of advance paid of Rs. 1,50,000/-, in terms of a clause in the Agreement to Sell providing for double payment in case of breach by the Respondent/Defendant.
Learned Counsel for the Appellant has argued before this Court very vehemently that once the trial Court has given the finding that the Respondent was guilty of breach of contract, the suit should have been decreed for specific performance and not for the alternative relief of damages. During the course of arguments, I put a specific/direct query to the counsel for the Appellant that what was the evidence which was led by the Appellant/Plaintiff in the trial Court to show the Appellant''s/Plaintiff''s readiness and willingness to pay the balance consideration of Rs. 11,05,000/-. Learned Counsel for the Appellant very fairly, having no option, conceded that no evidence at all has been led in the trial Court with respect to showing the ability of the Appellant/Plaintiff to pay the balance consideration, whether by filing of bank accounts, details of financial capacity, income tax returns or in any other manner whatsoever. If that be so, the Appellant/Plaintiff therefore miserably failed to prove his readiness and willingness and in my opinion the Appellant/Plaintiff is fortunate that his suit has been decreed instead of being dismissed.
Learned Counsel for the Appellant then argued that readiness and willingness must necessarily be inferred from the fact that a legal notice was served upon the Respondent to appear before the Sub-Registrar for registration of the documents. I do not find any substance in the argument inasmuch as the financial capacity of a proposed buyer is to be proved by documents showing financial capacity such as bank accounts, income tax returns, ownership of properties and so on, and not by simply serving a notice asking the proposed seller/Defendant to appear before the sub-Registrar for registering the documents.
In my opinion, the Plaintiff is already fortunate in that besides return of the amount of Rs. 1,50,000/-, the trial Court has given an additional amount of Rs. 1,50,000/- as damages although the Appellant/Plaintiff failed to prove his readiness and willingness as stated above.
In view of the above, the appeal being without any merit is therefore dismissed, leaving the parties to bear their own costs.