JUGAL RAKESH KUMAR Vs. BALDEV RAJ BAJAJ

JUDGEMENT

(1.) C.M. No.4703/2011 (Condonation of delay) in RFA No.142/2011 The challenge by means of the Regular First Appeal under Section 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.

(2.) 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.

(3.) IN view of the above, the appeal being without any merit is therefore dismissed, leaving the parties to bear their own costs.