ASHA VERMA & ANR Vs. MONIKA SINGLA

JUDGEMENT

(1.) Rfa No. 108/2017 and C.M. Appl. No. 3619/2017 (for stay)

(2.) I need not narrate the facts of the case in detail, and the limited facts required for the decision of the present appeal are that an Agreement to Sell was admittedly entered into between the parties on 26/27.05.2005 with respect to the suit property. That the total sale consideration was Rs. 36,37,500/- is also not disputed. Out of the total sale consideration, only an amount of Rs. 2,00,000/- was paid as earnest money and this is also not disputed and also that the balance sale consideration of Rs. 34,37,500/- was payable in terms of the Agreement to Sell by 10.08.2005. It is also an undisputed position that at the time of payment of the balance sale consideration on or before 10.08.2005, the sale deed was to be executed and possession of the suit property was to be delivered by the appellants/defendants to the respondent/plaintiff.

(3.) There are two issues which are argued on behalf of the appellants/defendants for allowing of the present appeal and dismissing the suit for specific performance filed by the respondent/plaintiff. Firstly, it is argued that every plaintiff in a suit for specific performance must strictly prove the existence of financial capacity, and the same is a sine qua non as per Section 16(c) of the Specific Relief Act, 1963. It is argued that the respondent/plaintiff has miserably failed to prove her financial capacity of having the balance sale consideration of Rs. 34,37,500/-, and especially that the financial capacity to prove the balance sale consideration, even if the same is proved as on 10.08.2005, the same has definitely not been proved for the period from 10.08.2005 till the suit was decreed, and this is the requirement of law in view of the ratio of the judgment of the Hon'ble Supreme Court in the case of N.P. Thirugnanam (D) through LRs v. Dr. R. Jagan Mohan Rao & Ors, 1995 5 SCC 115.