RITU SAXENAversusJ. S. GROVER & ANR.

                          [2019] 13 S.C.R. 349                           349


                          RITU SAXENA                                    A
                                  v.
                      J. S. GROVER & ANR.
               (Civil Appeal Nos. 7268-7269 of 2019)
                       SEPTEMBER 17, 2019                                B
     [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
      Specific Performance:
       Suit for specific performance – Seeking enforcement of
agreement to sell the suit property – Dismissed by trial court holding   C
that the plaintiff failed to prove her readiness and willingness to
perform her part of contract – Finding of trial court affirmed by
High Court – Appeal to Supreme Court – Held: The statement of the
plaintiff regarding sufficiency of financial resources to buy the suit
property was without any corroborating documentary evidence –
                                                                         D
Such statement cannot be relied upon to return a finding that the
plaintiff was ready and willing to perform her part of contract –
Finding recorded by courts below does not suffer from any illegality.
      Dismissing the appeals, the Court
      HELD: The sole document relied upon by the appellant to            E
prove her readiness and willingness is the approval of loan on
July 30, 2004 by the Bank. Such approval was subject to two
conditions, viz., furnishing of income tax documents of the
appellant and the property documents. The Bank had sent an
Email on May 12, 2005 to the husband of the appellant requiring
an Agreement to Sell on a stamp paper of Rs.50/- to be executed          F
between the parties, as per the legal opinion sought from the
empaneled lawyer, without which the Bank would not be able to
disburse the loan. Admittedly, no agreement was executed on
stamp paper, therefore, the appellant could not avail loan of Rs.50
lakhs from the Bank. Independent of such loan, there is mere             G
statement that appellant and her husband have income of Rs.80
lakhs per annum unsupported by any documentary evidence. Such
statement will be in the nature of ipsi dixit of the appellant and/or
her husband and is without any corroborating evidence. Such self-

                                                                         H
                                 349
350             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     serving statements without any proof of financial resources cannot
      be relied upon to return a finding that the appellant was ready
      and willing to perform her part of the contract. The appellant has
      not produced any income tax record or the Bank Statement in
      support of her plea of financial capacity so as to be ready and
      willing to perform the contract. Therefore, mere fact that the
B
      Bank has assessed the financial capacity of the appellant while
      granting loan earlier in respect of another property is not sufficient
      to discharge of proof of financial capacity in the facts of the present
      case to hold that the appellant was ready and willing to perform
      her part of the contract. [Para 15] [356-A-E]
C           A Kanthamani v. Nasreen Ahmed (2017) 4 SCC 654 :
            [2017] 2 SCR 610 – distinguished.
                               Case Law Reference
      [2017] 2 SCR 610                   distinguished             Para 14
D           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7268-
      7269 of 2019.
            From the Judgment and Order dated 17.07.2018 of the High Court
      of Delhi at New Delhi in RFA No. 518 of 2018 and order dated 29.08.2018
      in Review Petition No. 328 of 2018 in RFA No. 518 of 2018.
E
           Jayant Bhushan, Sr. Adv., Arun K. Sinha, Swastik Verma, Nayan
      Dubey, Advs. for the Appellant.
           Narender Hooda, Sr. Adv., Ankur Bansal, Rajendra Beniwal,
      Simranjeet Singh, Advs. for the Respondents.
F           The Judgment of the Court was delivered by
            HEMANT GUPTA, J.
             1. The unsuccessful plaintiff is in appeals before this Court arising
      out of a suit for specific performance of an Agreement dated July 18,
      2004 in respect of Flat No. 272, Ground Floor, Gulmohar Enclave, New
G     Delhi.
            2. The husband of the appellant, who as an employee of M/s. GE
      Capital Services India Ltd., was in occupation of the said residential
      premises on a monthly rent of Rs.13,000/- to be paid by the tenant i.e.
      M/s. GE Capital Services India Ltd. since September 2002 to the landlord.
H
                  RITU SAXENA v. J. S. GROVER & ANR.                          351
                         [HEMANT GUPTA, J.]

On the expiry of the existing lease, the Agreement of Lease was extended      A
for 11 months from September 01, 2004 but before the expiry of the
lease, the appellant claims to have entered into an Agreement of Purchase
the said property for a total sum of Rs.50 lakhs. A sum of Rs.1 lakh by
cheque was paid to the defendants. It was agreed that all further relevant
documents such as Agreement to Sell, Sale Deed, Will, Possession
                                                                              B
Certificate and No Objection Certificate for the purpose of transferring
the said property shall be executed. The Agreement reads thus:
          “I, J. S. Grover S/o G. S. Grover, resident of M-12 (First Floor)
          Kailash Colony, New Delhi 48 have agreed in principle and in
          terms to sell my house (for a consideration of Rs. 50 lacs) which
          is a freehold joint property in my name and in my wife’s name       C
          Smt. Veena Grover, known as house bearing no.272, Gulmohar
          Enclave New Delhi 1100049.
        In this transaction I acknowledge the receipt of Rs. 1 lac as
        advance money by cheque number 044386 dt. 18.7.2004 issued
        from ICICI Bank Vasant Vihar New Delhi and agree to furnish           D
        all the further relevant document such as Agreement to Sale, Sale
        Deed, Will, Possession Certificate, NOCs etc. for the purpose of
        transferring the above said property in the name of Ritu Saxena
        at present residing at 272, Gulmohar Enclave New Delhi 110049
        and a permanent resident of B-377 Indira Nagar Lucknow, U.P.          E
                                                                       -sd-
                                                                 18.7.2004
                                                           (J. S. Grover)”
        3. The appellant relies upon communication dated July 30, 2004
that a loan of Rs.50 lakhs has been approved by the ICICI Home Finance        F
Company Limited1 but the disbursal of the loan was only after the bank
receives all income tax and property documents as discussed with her
husband. The appellant is said to have written a letter to the defendants
on September 14, 2004 to fix the date to complete the pending
documentation and other formalities followed by another letter dated
December 21, 2004. A legal notice dated April 19, 2005 was also served.       G
In reply dated April 27, 2005, it was asserted that a formal Agreement to
Sell was to be executed on or before July 21, 2004 and the appellant was
to pay 25% of the total consideration. Since the appellant has failed to

1
    for short, ICICI
                                                                              H
352            SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A     pay 25% of the total consideration amount, therefore, the Agreement is
      not enforceable. It is thereafter on May 25, 2005, suit for specific
      performance was filed.
             4. The respondents denied the claim of the appellant to seek
      specific performance of the Agreement dated July 18, 2004. The parties
B     led the evidence. The learned Trial Court dismissed the suit on February
      28, 2018, inter alia, holding that though the Agreement to Sell was
      executed but appellant has failed to prove her readiness and willingness
      to perform her part of the contract. However, the appellant was found
      entitled to Rs.1 lakh and interest thereon. A decree to this effect was
      passed by the learned Trial Court. The first appeal was dismissed by
C     the High Court on July 17, 2018 affirming the findings recorded by the
      Trial Court. Still aggrieved, the appellant is before this Court.
              5. Learned counsel for the appellant vehemently argued that the
      appellant has earlier availed the loan of Rs.13 lakhs for purchase of a
      flat in Ghaziabad. At that time, Rs.90 lakhs were assessed as the capacity
D     to avail loan by ICICI. Later, the appellant applied for loan to purchase
      the property in question. The Bank has approved the loan of Rs.50
      lakhs but same was not disbursed since an Agreement on a stamp paper
      of Rs.50/- was not executed by the defendants. Therefore, the appellant
      has proved her readiness and willingness to perform her part of the
E     contract and the finding recorded by the High Court is not sustainable.
            6. In support of her claim, the appellant tendered her evidence on
      affidavit and made herself available for cross-examination as PW-1.
      PW-2 is her husband whereas PW-3 is the official from the ICICI who
      has deposed regarding the loan sought by the appellant and/or her
F     husband. The appellant relied upon sanction letter dated July 30, 2004
      (Ex.PW3/1) issued by ICICI. She stated that she had sufficient funds
      and resources which she can draw and is in a position to complete the
      transaction in her favour. She also stated that the combined annual
      income of her and her husband is about Rs.80 lakhs per annum and they
      can easily avail a loan of upto Rs.1 crore from any bank and a sum of
G     Rs.50 lakhs is very easy to muster. Similar is the affidavit of PW-2
      Vishnu Kant, husband of the appellant. PW-3 is Anil Kumar Shrivastava,
      Zonal Head (North), ICICI who confirmed that the letter dated July 30,
      2004 shown to him from judicial file was issued by his Company though,
      his Company does not have any copy of this letter in the record. In
H     cross-examination, he stated that 2-3 months prior to the said approval,
             RITU SAXENA v. J. S. GROVER & ANR.                              353
                    [HEMANT GUPTA, J.]

Vishnu Kant and the appellant were sanctioned home loan to the tune of       A
Rs.13 lakhs though they were entitled for the loan to the extent of Rs.90
lakhs keeping in view their solvency. They had applied for a loan of
Rs.60 lakhs but later on, down sized their requirement to about Rs.13
lakhs for purchasing the property other than the suit property and that
they have never received the papers related to Flat No. 272, Ground
                                                                             B
Floor, Gulmohar Enclave, New Delhi.
        7. The document of availing loan of Rs.13 lakhs shows that the
loan has been sanctioned in respect of application No. 777-2415523. It
is the same application number which is relied upon by the appellant for
approval of Rs.50 lakhs as home loan to purchase the property in question.
                                                                             C
       8. The learned Trial Court in respect of issue no. 2 as to whether
the plaintiff was ready and willing to perform her part of the Agreement
to Sell, returned the following finding:
      “However, both the plaintiff – PW-1 and her husband – PW-2
      have throughout the cross-examination deposed that they were           D
      having funds/financial capacity to purchase the property. PW-1
      has deposed that on 09.04.2005 when they went to the defendants
      house they were carrying a banker’s cheque with them. But has
      neither given any details of the banker’s cheque nor has placed
      on record a copy of the banker’s cheque. Further, even copy of
      the passbook/bank statement of the account from which the              E
      banker’s cheque was got prepared, has been filed in support of
      her averment and to show that the banker’s cheque was actually
      got prepared. Further, PW-1 deposed that they had a property
      worth Rs.80 lakhs but again neither any details of the said property
      have been stated nor a copy of those property documents has            F
      been placed on record in support of this version. Thus, not even
      a single document has been filed to show that the plaintiff at any
      point of time from 18.07.2004 till filing of the suit, owned other
      property or had money in her bank account or in the account of
      her husband or any other source of fund for payment of the balance
      sale consideration of Rs.49 lakhs. In absence thereof, the             G
      statements of PW-1 and PW-2 are nothing more than bald
      averments carrying no weight.”
      9. The Trial Court, thus, held that the appellant is not entitled to
the specific performance of the Agreement to Sell but granted a decree
                                                                             H
354               SUPREME COURT REPORTS                        [2019] 13 S.C.R.


A     of recovery of Rs.1 lakh with 15% interest per annum from the date of
      Agreement till recovery thereof.
             10. In appeal, the High Court initially has taken into consideration
      that only loan of Rs.13 lakhs were sanctioned as against the balance
      sale consideration of Rs.49 lakhs but subsequently, the said aspect was
B     corrected finding error in view of the fact that a loan of Rs.13 lakhs was
      sanctioned in respect of the another property. The High Court held that
      self-serving averments in the affidavit of the appellant and her husband
      cannot be taken as discharge of onus of proof of having financial capacity.
      What is the evidence and what is the weight to be attached to the evidence
      are two separate aspects and oral statements on important aspects of
C     financial capacity cannot be accepted by the courts as proof of financial
      capacity. The High Court did not find any favour with the argument that
      there is no cross-examination in respect of financial capacity of the
      appellant and her husband. It was found that suggestion, that the appellant
      and her husband have deposed falsely, was considered sufficient so as
D     to dispute her financial capacity and to disprove her readiness and
      willingness to perform her part of the agreement. The High Court also
      took the fact that the appellant is not entitled to discretionary specific
      performance as the appellant has paid Rs.1 lakh which is 2% of the total
      sale consideration of Rs.50 lakhs. The High Court also took notice of
      the fact that the defendants have filed a suit for possession against the
E     tenant that is the employer of her husband as they failed to vacate the
      suit property after the expiry of the lease period. The decree of possession
      has attained finality and that the defendants have taken possession of
      the property as well.
             11. Learned counsel for the appellant refers to judgment of this
F     Court in A. Kanthamani v. Nasreen Ahmed2 to contend that readiness
      and willingness is not as if the appellant is to carry hard cash or the
      amount in Bank but it is financial capacity to pay. The appellant has
      proved her capacity to pay the balance sale consideration. This Court in
      the cited case held as under:
G              “26. This Court in Sukhbir Singh v. Brij Pal Singh [Sukhbir
               Singh v. Brij Pal Singh, (1997) 2 SCC 200 : AIR 1996 SC 2510]
               followed the aforesaid principle with these words: (SCC p. 202,
               para 5)

      2
H         (2017) 4 SCC 654
               RITU SAXENA v. J. S. GROVER & ANR.                                355
                      [HEMANT GUPTA, J.]

          “5. Law is not in doubt and it is not a condition that the             A
          respondents should have ready cash with them. The fact that
          they attended the Sub-Registrar’s office to have the sale deed
          executed and waited for the petitioners to attend the office of
          the Sub-Registrar is a positive fact to prove that they had
          necessary funds to pass on consideration and had with them
                                                                                 B
          the needed money with them for payment at the time of
          registration. It is sufficient for the respondents to establish that
          they had the capacity to pay the sale consideration. It is not
          necessary that they should always carry the money with them
          from the date of the suit till the date of the decree. It would,
          therefore, be clear that the courts below have appropriately           C
          exercised their discretion for granting the relief of specific
          performance to the respondents on sound principles of law.”
          xx                       xx                           xx
      28. At the outset, we may observe that this Court is loath to
      undertake the task of appreciating the evidence in an appeal filed         D
      under Article 136 of the Constitution of India. It is more so when
      such appeal arises out of the judgment, which has recorded
      concurrent findings of fact.”
       12. The argument of the appellant that the capacity to pay is proved
by the approval of loan by ICICI and the fact that the appellant and her         E
husband have substantial income of Rs.80 lakhs per annum, therefore,
the findings recorded by both the Courts below are not sustainable.
       13. On the other hand, Mr. Narender Hooda, learned senior
counsel for the respondents, submitted that the appellant is seeking
reappreciation of evidence in the present appeal under Article 136 of the        F
Constitution of India. There is no substantial question of law of general
importance which is arising for consideration of this Court. It is also
argued that relief for specific performance is a discretionary relief. Both
the courts have declined discretionary relief, therefore, no case is made
out for interference in the present appeals.                                     G
       14. We do not find any merit in the present appeals. The judgment
in A. Kanthamani was in an appeal filed by the defendant against the
concurrent finding of fact recorded by the courts below granting decree
of specific performance of the Agreement. This Court has not interfered
with the findings of fact recorded even after reappreciation of evidence.
                                                                                 H
356             SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A             15. Coming to the facts of the present case, the sole document
      relied upon by the appellant to prove her readiness and willingness is the
      approval of loan on July 30, 2004 by the ICICI. Such approval was
      subject to two conditions, viz., furnishing of income tax documents of
      the appellant and the property documents. M/s. ICICI has sent an Email
      on May 12, 2005 to the husband of the appellant requiring an Agreement
B
      to Sell on a stamp paper of Rs.50/- to be executed between the parties,
      as per the legal opinion sought from the empaneled lawyer, without which
      ICICI will not be able to disburse the loan. Admittedly, no agreement
      was executed on stamp paper, therefore, the appellant could not avail
      loan of Rs.50 lakhs from ICICI. Independent of such loan, there is
C     mere statement that appellant and her husband have income of Rs.80
      lakhs per annum unsupported by any documentary evidence. Such
      statement will be in the nature of ipsi dixit of the appellant and/or her
      husband and is without any corroborating evidence. Such self-serving
      statements without any proof of financial resources cannot be relied
      upon to return a finding that the appellant was ready and willing to perform
D
      her part of the contract. The appellant has not produced any income tax
      record or the bank statement in support of her plea of financial capacity
      so as to be ready and willing to perform the contract. Therefore, mere
      fact that the bank has assessed the financial capacity of the appellant
      while granting loan earlier in respect of another property is not sufficient
E     to discharge of proof of financial capacity in the facts of the present
      case to hold that the appellant was ready and willing to perform her part
      of the contract. Such is the finding recorded by both the courts below as
      well.
             16. In view of the said fact, we do not find, even on reappreciation
F     of evidence, that the finding recorded by the High Court suffers from
      any illegality which may warrant interference in the present appeals.
      Consequently, the appeals are dismissed.
            17. The amount of Rs. 3.5 crores deposited by the appellant in
      terms of order dated November 19, 2018 of this Court, which has been
G     invested in the FDR, may be returned to her, along with the interest
      accrued thereon, as per rules.

      Kalpana K. Tripathy                                         Appeals dismissed.



H