V.K. Babbar v. Sunil Chopra & Ors.

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 appellantplaintiff 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.

2. 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 2014:DHC:1409 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.

3. 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.

4. The defence of the defendant was that the appellant failed to perform his part of the contract by failing to pay the balance sale consideration in time, and consequently the suit property was in fact sold to the defendant no.3 in the suit, the respondent no.3 herein. The sale is by means of a registered sale deed in favour of the defendant no.3/respondent no.3.

5. 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.

6. In my opinion, in the facts of the case such as the present where the appellant-plaintiff did not file any documents before the court below to show his financial capacity so as to pay the balance consideration of Rs.8,50,000/from 26.11.2010 till the filing of the suit on 3.3.2012, the court below while granting injunction was justified in asking the appellant-plaintiff to show his financial capacity by deposit of the balance consideration of Rs.8,50,000/-. No doubt, it is not mandatory for a buyer to deposit the balance consideration in the Court, however, since the power under Order 39 CPC being discretionary and equitable, I do not think any illegality is committed by the court below in directing the appellant to deposit the balance sale consideration of Rs.8,50,000/- while allowing the injunction application of the appellant-plaintiff.

7. On behalf of the appellant-plaintiff, it is argued before me that documents have been filed in this Court to show financial capacity of the appellant to pay the balance consideration and which should be considered by this Court. The documents which have been filed by the appellantplaintiff in this Court are the pass-book of a bank account jointly held in the name of the father of the plaintiff Sh. Sudesh Kumar Babbar, plaintiff himself and one Smt. Pinki Babbar who is stated to be wife of the appellant, and copies of certain fixed deposit receipts.

8. Firstly, these documents had not to be filed before this Court but had to be filed before the trial court at the time of deciding of the application under Order 39 CPC, however, I have yet considered these documents which have been filed to see the financial capacity of the appellant-plaintiff and therefore the appellant was ready and willing as required by Section 16(c) of the Specific Relief Act, 1963.

9. So far as the bank account in the joint names of Sh. Sudesh Kumar Babbar (father), Vijay Kumar Babbar (appellant-plaintiff) and Smt. Pinki Babbar(wife of appellant-plaintiff) is concerned, the said statement of account commences from October, 2011 whereas payment under the earnest money receipt/agreement to sell had to be paid within 60 days from 26.11.2010. Therefore, filing of an account from October 2011 and which is much later than January, 2011 cannot help the appellant. Also, even if, I take the entries in the account from October 2011, it is only shown that the entries show a balance varying between 4 lacs to about 6,85,000/- even till January 2012 and which amount is again not enough with respect to balance sale consideration of Rs.8,50,000/-, besides the fact that the bank account is not in the sole name of the plaintiff and the first name in the account is of the father of the appellant-plaintiff, who would also therefore be part owner of the monies in this account. Therefore, this document being the statement of bank account is not sufficient to show readiness and willingness of the appellant-plaintiff from October, 2011 till 3.3.2012 when the suit for specific performance was filed. Interestingly, it is only for the first time on 3.3.2012 that the amount in the account suddenly increases from Rs.6,82,000/- odd to Rs.11,32,000/- odd showing that the amount suddenly was got increased only at the time of filing of the suit for specific performance.

10. So far as the fixed deposit receipts are concerned, it is seen that the said fixed deposit receipts are of 1.10.2012 for an amount totaling to Rs.6,50,000/- and therefore again not only the amount stated therein is not sufficient for the balance sale consideration of Rs.8,50,000/-, but also that the amount is shown firstly as available only on 1.10.2012 i.e much later than even filing of the suit in March, 2012. The same is the position with respect to the other fixed deposit receipts and which are commencing from December, 2012 or June, 2013. Therefore, really appellant is not acting bonafidely and clearly the appellant has no prima facie case in his favour. There is no balance of convenience and irreparable injury in favour of the appellant-plaintiff inasmuch as, now third party rights have come into existence of the suit property as the same has been sold by a registered sale deed to the defendant no.3/respondent no.3.

11. In view of the above, although the court below ought to have dismissed the application under Order 39 Rules 1 and 2 CPC, but since the same is allowed by deposit of the balance sale consideration of Rs.8,50,000/, I do not find that there is any illegality whatsoever in the impugned order.

12. The appeal is therefore dismissed with costs of Rs. 25,000/-. Costs shall be paid within a period of six weeks and which shall be a condition precedent for pursuing of the suit by the appellant-plaintiff in the trial court.

MARCH 13, 2014 VALMIKI J. MEHTA, J. ib