V.K. BABBAR Vs. SUNIL CHOPRA & ORS.

JUDGEMENT

(1.) APPELLANT who is an advocate has argued his case in person. This first appeal is filed under Order 43 Rule 1(r) CPC against the order of the trial court dated 19.8.2013 which while allowing the application of the appellant -plaintiff for injunction in a suit for specific performance has directed the appellant -plaintiff to deposit the balance sale consideration of Rs. 8,50,000/ - in court. The subject suit is a suit for specific performance of the agreement contained in the Bayana receipt/earnest money receipt dated 26.11.2010. The agreement to sell is with respect to the suit property bearing no. 31/1, Basement, West Patel Nagar, New Delhi -8. The balance payment as per the agreement to sell was to be made within a period of 60 days from 26.11.2010. Appellant -plaintiff alleges breach on the part of the respondent/defendant/seller and the subject suit for specific performance with other reliefs was filed on 3.3.2012.

(2.) ONE of the pre -requisites to succeed in a suit for specific performance, including for grant of injunction by showing a prima facie case, is that appellant -plaintiff was always ready and willing to perform his part of the contract in view of Section 16(c) of the Specific Relief Act, 1963. Readiness and willingness is shown by availability of monies with the appellant/plaintiff to pay the balance sale consideration not only within 60 days from 26.11.2010, but till 3.3.2012 when the subject suit for specific performance was filed.

(3.) IT is clear that the appellant/plaintiff did not file proof of his paying capacity before the court below from 26.11.2010 till 3.3.2012 when the suit was filed and injunction application was heard, and which is a sine qua non to show the readiness and willingness on the part of the appellant -plaintiff. Probably for this reason the court below doubting the readiness and willingness of the appellant/plaintiff/buyer directed deposit of Rs. 8,50,000/ - at the time of granting injunction, and which part of the order on deposit of balance amount of Rs. 8,50,000/ - is challenged in this Court.