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TMI Blog2018 (2) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... e Delhi High Court being Suit No.1193 of 1987 for specific performance of the agreement to sell. It appears that due to a change in pecuniary jurisdiction, the suit was transferred to the District Courts and was re-numbered as Suit No.642 of 2001. A disturbing feature of the appeal is that even about 31 years later, the parties are not quite sure about the fate of the agreement to sell entered into in 1986. The period is extremely long and such a lapse of time for the enforcement (or otherwise) of a contract is good reason to re-think the procedures. 4. The appellants (Kalawati and others) are aggrieved by the judgment and decree dated 10th December, 2013 passed by a learned Single Judge of the Delhi High Court in R.F.A. No.521 of 2004. 5. In the plaint filed by the respondent (Rakesh Kumar), it was averred that he had entered into an agreement to sell on 29th May, 1986 in respect of land in Rectangle No.81, Killa Nos.21/1 (1-2), 22/1 (4-5), 19/2 (4-0), 19/1 (0-12), 20/2 (1-2) in all measuring 11 bighas and 1 biswa situated in Village Mehrauli, Tehsil Mehrauli, New Delhi. A part of the land was under the absolute ownership/bhumidari of Kalawati while the rest of the land was in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Judge framed several issues but we are only concerned with the issue whether the plaintiff (Rakesh Kumar) was at all times ready and willing to perform his part of the agreement. This issue was answered in the negative by the Trial Judge and against Rakesh Kumar resulting in the dismissal of the suit. Among the reasons given by the Trial Judge for coming to the conclusion that Rakesh Kumar was not ready and willing to execute the contract, at all times, was that at the time of grant of interim injunction prayed for by Rakesh Kumar in an application under Order XXXIX of Code of Civil Procedure while the suit was pending in the High Court, he was required to deposit the balance consideration as a pre-condition for restraining the defendants from selling, mortgaging, alienating or otherwise parting with possession with the land in dispute. The balance sale consideration was not deposited by Rakesh Kumar and therefore, the interim injunction prayed for by him was not granted. In the absence of any injunction against alienating the land in dispute, the defendants transferred it to defendant Nos.5, 6 and 7 in 1995. 12. The Trial Judge also noted that from his cross-examination it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in his favour, that was of no consequence and could not be held against him. We agree with the High Court only to this limited extent. 16. Taking all these factors into consideration, the High Court reversed the view of the Trial Judge and concluded that Rakesh Kumar was entitled to a decree for specific performance of the agreement to sell dated 29th May, 1986 and for delivery of vacant, peaceful and physical possession of the land in dispute. 17. Having heard learned counsel for the parties, we are not in favour of the view expressed by the High Court but subscribe to the view of the Trial Judge. 18. The law on the subject of specific performance of contracts is quite clear and it is not necessary to cite the dozens of judgments delivered by this Court on the issue. However, it is necessary to refer to two decisions which are quite apposite to the facts of the case before us. 19. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record to show that the plaintiff could have made arrangement for payment of the balance consideration amount to them. But, on the other hand the trial court has recorded the finding of fact to the effect that the correspondence between the parties and other circumstances would establish the fact that the plaintiff had no money for payment of balance sale consideration......." 21. In so far as the present appeal is concerned, the material on record clearly indicates that Rakesh Kumar did not have the necessary funds available with him to pay the balance consideration. His low income and low bank balance indicated his incapacity to make the balance payment. As far as his capacity to arrange for funds is concerned, it has come on record that Rakesh Kumar did take a loan from his cousin but that was only for his business and not for paying the balance consideration for the land in dispute. There is nothing on record to indicate that Rakesh Kumar could have not only repaid the loan taken from his cousin, but additionally, could have arranged sufficient funds to pay the balance consideration. It is very doubtful, and it is easy and reasonable to infer this, that Rakesh Kumar was in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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