DINESH KUMAR JAIN Vs. SANJEEV CHAUDHARY

JUDGEMENT

(1.) This Regular First Appeal under section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit for specific performance impugning the judgment of the Trial Court dated 6.6.2017 by which the Trial Court has dismissed the suit for specific performance by holding that appellant/plaintiff failed to prove his financial capacity to pay the balance sale consideration of Rs. 10 lacs under the agreement to sell dated 17.1.2005.

(2.) The facts of the case are that the appellant/plaintiff filed the subject suit for specific performance pleading that the parties had entered into an agreement to sell on 17.1.2005 with respect to the suit property bearing No. IX/90, Shyam Block Kailash Nagar, Delhi for a total consideration of Rs. 11,20,000.00 of which earnest money of Rs. 1,20,000.00 was sought to be paid and the balance of Rs. 10,00,000.00 was to be paid on or before 30.4.2005. Earnest money of Rs. 1,20,000.00 was paid into two parts one of which being a sum of Rs. 70,000.00 was paid in cash, and Rs. 50,000.00 was paid by cheque. The appellant/plaintiff pleads that since the respondent/defendant failed to perform his part of contract and did not execute the sale deed of the suit property in favour of the appellant/plaintiff, therefore, after serving a legal notice dated 9.9.2005, the subject suit for specific performance was filed.

(3.) The respondent/defendant contested the suit and pleaded that in fact no amount of earnest money, i.e Rs. 1,20,000.00 including the amount of Rs. 50,000.00 which was alleged to be paid by cheque by the appellant/plaintiff to the respondent/defendant was paid. The appellant/plaintiff is pleaded to be a tenant in a portion of the first floor, second floor and third floor of the suit property and without paying a single penny, it was pleaded that the subject suit for specific performance was filed.