Delhi District Court
Manohar R. Ramchandani vs Harish Ramchandani on 3 March, 2025
-1-
IN THE COURT OF MS. GUNJAN GUPTA
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of
CS DJ 10270/16
MR. HARISH RAMCHANDANI
S/o Shri Radhakrishan H. Ramchandani,
R/o M-25 Chittaranjan Park,
New Delhi-110019. .... Plaintiff
VERSUS
1. MR. MANU RAMCHANDANI (SINCE DECEASED)
Through LRs
(a) Mrs. Meera Ramchandani,
W/o Late Sh. Manu Ramchandani
(b) Mr. Kunal Ramchandani,
S/o Late Sh. Manu Ramchandani,
(c) Ms. Gunjan Ramchandani,
D/o Late Sh. Manu Ramchandani
2. Mrs. Meera Ramchandani,
S/o Late Sh. Manu Ramchandani
3. Mr. Kunal Ramchandani,
S/o Late Sh. Manu Ramchandani
4. Ms. Gunjan Ramchandani,
D/o Late Sh. Manu Ramchandani,
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
-2-
All above R/o E-182 (First & Second Floor),
Greater Kailash-II,
New Delhi - 110048. .... Defendants
Date of Institution : 01.03.1999
Date of judgment : 03.03.2025
DECISION : DECREED
Suit For Possession, Permanent Injunction Recovery of
Original Documents, Damages, Mesne Profits with
Interest
And
In the matter of
CS DJ 10259/16
MR. MANOHAR R. RAMCHANDANI (SINCE DECEASED)
(a) Mrs. Meera Ramchandani,
W/o Late Sh. Manohar R. Ramchandani
(b) Mr. Kunal Ramchandani,
S/o Late Sh. Manohar R. Ramchandani
(c) Ms. Gunjan Ramchandani,
D/o Late Sh. Manohar R. Ramchandani
All R/o E-182, Greater Kailash-II,
New Delhi - 110048. .... Plaintiffs
VERSUS
MR. HARISH RAMCHANDANI
S/o Shri R.K.H. Ramchandani,
R/o M-25 Chittaranjan Park,
New Delhi .... Defendant
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
-3-
Date of Institution : 26.05.1999
Date of judgment : 03.03.2025
DECISION : DISMISSED
Suit for Specific Performance
For the purposes of convenience, this judgment is divided into the
following parts :
INDEX
A. CASE OF THE PLAINTIFF...................................4
B. CASE OF THE DEFENDANT .............................12
C. ISSUES ..........................................................19
D. PLAINTIFF'S EVIDENCE ...................................22
E. DEFENDANT'S EVIDENCE ................................28
F. ARGUMENTS ON BEHALF OF THE PLAINTIFF ..... 31
G. ARGUMENTS ON BEHALF OF THE DEFENDANT...48
H. REASONS & FINDINGS IN THE SECOND SUIT........58
I. REASONS & FINDINGS IN THE FIRST SUIT...........123
J. RELIEF .........................................................135
JUDGMENT
1. By way of this common judgment, I shall dispose off
two suits namely:
(i). CS DJ 10270/16 Harish Ramchandani v. Manu
Ramchandani (since deceased) through Lrs (hereinafterCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
-4-referred to as “First suit”) for possession, permanent
injunction recovery of original documents, damages,
mesne profits with interest and costs.
ii). CS DJ 10259/16 Manohar R. Ramchandani vs.
Harish Ramchandani (hereinafter referred to as “Second
suit”) for Specific Performance of the oral agreement to sell
dt 18.03.1996.
For the purposes of convenience, Sh. Harish
Ramchandani shall be referred to as ‘Plaintiff’ and Sh. Manu
Ram Chandani / Manohar R. Ramchandani shall be referred
to as ‘defendant No. 1’. Sh. Manohar Ramchandani alongwith
his L.Rs shall be referred to as ‘defendants’.
2. CASE OF THE PLAINTIFF
Brief facts of the case, as culled out from the
pleadings of the plaintiff in both the suits are as under –
2.1). The plaintiff is the sole, absolute and
exclusive owner of the first and second floor of the
property admeasuring 251 sq yards bearing Municipal No.
E-182, Greater Kailash-II, New Delhi -110048 alongwith 2
servant quarters situated on the terrace floor and rights to
enjoy the common areas alongwith proportionate
undivided share in the land underneath the property
(hereinafter referred as the ‘Suit Property’). He had
purchased the suit property vide three registered sale deeds
dated 04.03.1994, 08.03.1994 and 18.03.1994, from his
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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mother late Smt. Sushila Ramchandani.
2.2). The plaintiff thereafter got the suit property
mutated in his name in the municipal records of the MCD,
Delhi and is paying the municipal taxes regularly as and
when demands are raised by MCD.
2.3). While residing in the suit property with his
mother, the plaintiff carried out the construction/
renovation in the suit property thereby adding one room,
kitchen, drawing room and toilets on the second floor of
the suit property. The mother of the plaintiff Smt. Sushila
Devi Ramchandani passed away on 17.10.1995 while
residing with the plaintiff in the suit property.
2.4). While residing in the suit property, the
plaintiff acquired the property bearing no. M-25,
Chittaranjan Park, New Delhi 110019, on 13.12.1995, vide
Agreement to Sell, Power of Attorney, etc. executed by the
erstwhile owner of the said property. The entire payment
for the said property was made by the plaintiff between
June & December 1995. After the acquisition of the said
property, the plaintiff shifted to the said property in the 1 st
week of April 1996. Prior thereto, at the request of
defendant no. 1 and out of love, affection and regard for
his elder brother the plaintiff allowed the defendant no.1
and his family to occupy the suit property as licencees. The
defendant no.1 and his family came into occupation of the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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suit property in February/March 1996 and the plaintiff
shifted to his newly acquired property in Chittaranjan Park
thereafter.
2.5). The defendant no. 1 and his family members
thereafter became greedy and developed ill intention of
grabbing the suit property. Consequently the plaintiff
repeatedly called upon the defendants to vacate the suit
property and deliver vacant and peaceful possession
thereof to him, however, the defendants did not pay heed
to the same. The plaintiff got the legal notice dated
07.02.1997 served upon the defendants calling upon them
to vacate the suit property and hand over the vacant and
peaceful possession of the same to him.
2.6). On or about 15.02.1997, while the plaintiff
was away to Jaipur, the defendant no. 1 removed the three
original sale deeds executed by the mother of the plaintiff
in favour of the plaintiff in respect of the suit property,
from the drawers and custody of the plaintiff situated in
the premises No. M-36B, Main Market, G.K. Part I, New
Delhi from where, a partnership business was being run in
the name and style of M/s Ramchandani Enterprises. The
the said partnership business was continued to be run by
the plaintiff and the defendant no. 1 even after the demise
of their mother Smt. Sushila Ramchandani, who was also a
partner in the said business. The defendant no. 1 thus
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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having access to the shop premises, removed the aforesaid
three sale deeds pertaining to the suit property, in the
absence of the plaintiff.
2.7). Immediately upon gaining knowledge of the
removal of the sale deeds by defendant no.1, the plaintiff
sent a notice dated 17.02.1997 to him for returning the
original sale deeds of the suit property.
2.8). A letter / reply dated 20.02.1997 of the
defendant no. 1 in response to the aforesaid legal notices
were received by the plaintiff, wherein the defendant no. 1
asserted that he had purchased the suit property from the
plaintiff after paying ‘Sale Consideration’. The defendant
no.1 in the said reply falsely claimed that the plaintiff had
received the entire agreed sale consideration and had
handed over vacant, peaceful and physical possession of
the suit property to the defendant no. 1 and had purchased
the property at M 25, Chittranjan Park, New Delhi out of
the “sale proceeds” of the suit property. It was also stated
that the plaintiff has failed to execute and register the sale
deed in spite of repeated requests and reminders and the
defendant no. 1 had purchased non-judicial stamp paper
for an amount of Rs. 67,200/- for execution of the sale
deed in respect of the suit property by the plaintiff. It was
further claimed that the original sales deed of the suit
property were duly handed over by the plaintiff to the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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defendant no. 1 at the time of handing over of the
possession of the suit property. The defendant no. 1 also
threatened legal action against the plaintiff in the event of
his not coming forward to sign, execute and register the
sale deed in respect of suit property within 15 days.
2.9). The plaintiff responded to the said reply vide
letter dated 14.03.1997 issued through his advocate,
reasserting his sole ownership of the suit property and the
wrongful possession of the defendants and denying the
claims in the reply by the defendants. It was also stated in
the letter, that as partners of an erstwhile partnership firm
there had been numerous financial transactions between
the parties, none of which could even remotely be
construed as the sale consideration for the suit property.
2.10). The defendant no. 1 sent another reply
through his Advocate M/s. Vohra and Co. dated
26.03.1997, improvising upon his story and for the first
time claiming that the defendant had paid an amount of Rs.
8,40,000/- as complete sales consideration by three
cheques dated 18.03.1996 and 04.04.1996. The defendant
no.1 justified the sale price by stating that he has paid a
sum of Rs.2,80,000/- for every 1/3rd share as compared to
Rs.1,90,000/- per 1/3rd share paid by the plaintiff for the
purchase of the said property. It was asserted that the
defendant no. 1 had carried out additions and alterations in
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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the suit property.
2.11). The plaintiff has never sold or ever agreed to
sell the suit property or any portion thereof to defendant
no.1 for an amount of Rs. 8,40,000/- or for any other
amount whatsoever. The amount of Rs. 8,40,000/-
advanced by the defendant no. 1 to the plaintiff was a
friendly loan in the course of partnership business and
there is no nexus or link of the loan amount of Rs. 8.40
lakhs advanced to plaintiff with the suit property. It is
averred that the market value of the suit property around
the time when the defendant no. 1 claims to have
purchased the same from the plaintiff was many times
more than the amount of Rs. 8.4 lakhs and was in excess
of Rs. 50 Lakhs. It is averred that the justification of the
sale price by defendant no.1 is of no avail to him as the
defendant no. 1 has overlooked the fact that the said
purchase by the plaintiff was from the plaintiff’s own
mother who was continuously residing with him. It is
averred that the sale was made primarily out of love,
affection of his mother towards plaintiff and the monetary
consideration reflected in the sale deed was merely a token
amount and the mother of the plaintiff had executed the
said sale deed primarily to avoid any controversy in
relation to the suit property by any one and particularly the
defendant after her demise.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 10 –
2.12). Considering the relationship of the parties the
plaintiff did not immediately launch the legal proceedings
and tried to persuade the defendants not to pursue their
illegal claim for the suit property. However, the defendants
did not pay any heed to the same and therefore, the
plaintiff issued a legal notice dated 15.11.1998 refuting the
claim of the defendants and informing the defendants that
the monthly damages for the continued illegal occupation
of the suit property were to the tune of Rs.43,000/-
alongwith interest @ 22% per annum.
2.13). Despite the service of the legal notice, the
defendants failed to deliver the possession of the suit
property and to hand over the original sale deeds of the
said property and have also not paid the mesne profits
claimed by the plaintiff. The defendants continued to be in
wrongful and unauthorized possession of the suit property.
2.14). Hence, the plaintiff has filed the first suit
praying for recovery of possession of the suit property, for
damages of Rs.9,89,000/- @ Rs.43,000/- per month for the
illegal possession of the suit property from 01.04.1997 to
28.02.1999 along-with interest @ 22% per annum from the
date of filing of the suit till realization, damages @
Rs.43,000/- per month from 01.03.1999 till the date of
handing over of the possession, for mandatory injunction
for return of the original sale deeds dated 04.03.1994,
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 11 –
08.03.1994 & 18.03.1994, and decree of permanent
injunction restraining the defendants from parting with the
possession of the suit property or from creating third party
rights in the same.
2.15). In the W.S filed in the second suit, the
plaintiff has denied the averments of the defendant and has
relied upon the same facts as above. It has been stated that
no negotiation and discussion took place between the
plaintiff and the defendants in the presence of Sh. Lilu
Moolchandani or Sh. Prem Chhablani and no meeting was
held on 18.03.1996 or on any other date whatsoever for
negotiating the sale of the suit property. The plaintiff is in
estranged terms with the said persons. It is stated that the
plaintiff did not hand over any original electricity or water
bills pertaining to the suit property to the defendants and
the same were kept at the shop premises of the partnership
business as they were paid from the account of the
partnership business. No photographs or the copy of the
passport of the plaintiff were handed over to the defendant
for the registration of the sale deed and the same has been
unauthorizedly copied by the defendants by taking
advantage of the fact that the plaintiff used to keep his
important papers and documents in the shop from where
the joint partnership business was being carried on.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 12 –
3. CASE OF THE DEFENDANTS
Brief facts of the case of the defendants, as culled
out from the pleadings of the defendants in both the suits
are as under –
3.1). The father of the defendant no.1 and the
plaintiff- Sh. R.K.H. Ramchandani purchased the first
floor of property bearing no. E-182, Greater Kailash-II,
New Delhi consisting of one room, terrace rights and roof
rights of the first floor and proportionate undivided share
in the land underneath of the total land admeasuring 251
square yards from his erstwhile owner Sh. Prem Prakash
Mehrish vide registered sale deed dt 12.08.1986. The said
Sh. R.K.H. Ramchandani constructed the entire first floor
and barsati on the roof of the first floor of the said property
(hereinafter referred to as “said premises”).
3.2) Sh. R.K.H. Ramchandani died on 16.11.1991
leaving behind a Will dated 28.10.1989, bequeathing the
said premises in favour of his wife Smt. Sushila
Ramchandani (mother of the plaintiff and defendant no. 1).
Smt. Sushila Ramchandani further sold the said premises
to her son Sh. Harish Ramchandani i.e. the plaintiff vide
three separate registered sale deeds dt 04.03.1994,
08.03.1994 & 18.03.1994 w.r.t 1/3rd undivided share each
in the said premises, for a total sale consideration of
Rs.5,70,000/- (1.90 lacs for each 1/3 share). Sh. Harish
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 13 –
Ramchandani thus became absolute owner of the said
premises.
3.3). In the months of September-October, 1995,
the plaintiff made efforts to sell the said premises but
could not find any suitable buyer, consequently the
plaintiff in the month of January, 1996 offered to sell the
said premises to the defendant no.1 whereupon certain
discussions and negotiations took place between the
plaintiff and defendant no. 1, in presence of other family
members. Consequent thereto a verbal agreement to sell
and purchase the said premises, was entered into by and
between the plaintiff and defendant no. 1 on 08.03.1996,
for a sale consideration of Rs. 8,40,000/-, at a meeting held
at the office of the defendant no.1 at C-197, Second Floor,
G.K.-I, New Delhi in the presence of family members Sh.
Lilu Mulchandani, s/o. Late Sh. B.L. Mulchandani and Sh.
Prem Chablani, s/o. Late Sh. Bhagwan Dass Chablani.
3.4). It was agreed between the parties that the sale
and purchase transaction shall be completed in the similar
manner as had been done between the plaintiff and his
mother Smt. Sushila Ramchandani i.e. by means of three
separate sale deeds.
3.5). The other basic terms and conditions agreed to
between the parties were as follows:
i. That the defendant no. 1 was to pay a total sale
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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consideration of Rs. 8.40 lacs to the plaintiff by means of
three separate payments of Rs. 2.80 lacs each on or before
17th April, 1996.
ii. The plaintiff on receipt of the full and final sale
consideration, would put the defendant no. 1 in vacant,
peaceful and physical possession of the said premises and
would handover all the original documents, bill etc.
pertaining to the said premises to the defendant no. 1.
iii. The defendant no. 1 was to pay all the dues like
house tax, electricity and water charges from the date of
handing over of the vacant possession of the said premises
by the plaintiff. However the previous dues pertaining to
the said premises were to be borne by the plaintiff.
iv. Pending execution and registration of the sale deeds
the defendant no.1 had the right to make additions,
alterations and modification in and over the said premises,
and to carry out construction entirely at his risks and costs.
v. After the receipt of the full and final sale
consideration, the plaintiff would sign, execute and register
the three sale deeds, conveying/transferring the respective
one third undivided share of the plaintiff in the said
premises, in favour of the defendant no. 1.
vi. The defendant no. 1 was liable to incur all the
expenses of stamp duty, registration charges and other
related expenses, for the execution and registration of theCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 15 –
three sale deeds.
3.6) In pursuance to the oral agreement to sell and
purchase, the defendant no. 1 handed over to the plaintiff
two cheques bearing nos. 298118 dt 18.03.196 and 298119
dt 18.03.1996 of Rs. 2.80 lacs each, drawn on Central
Bank of India, G.K-I, towards part payment of the total
agreed sale consideration of Rs. 8.40 lacs. The defendant
no.1 paid the balance sale consideration of Rs. 2.80 lacs to
the plaintiff vide cheque no. 298120 dt 04.04.1996 drawn
on Central Bank of India, G.K-1, New Delhi. The said
cheques were duly encashed by the plaintiff.
3.7). Thereafter the plaintiff with his family shifted
to M-25, Chitranjan Park, New Delhi on 31.03.1996.
3.8). Acting upon the terms of the agreement to sell
and purchase, the plaintiff on receipt of the remaining sale
consideration of Rs. 2.80 lacs on 04.04.1996, handed over
the vacant, peaceful, physical possession of the said
premises to defendant no.1 alongwith three original sale
deeds executed by Smt. Sushila Ramchandani in favour of the
plaintiff in respect of the said premises, together with the files
of original electricity and water bills and since then
defendant no. 1 is in exclusive possession of the said
premises as owner thereof. As to the remaining original
title documents, the plaintiff informed the defendant no. 1 that
they were not traceable and he would hand over the same asCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 16 –
and when found. The defendant no. 1 believing in good faith
the words of his younger brother i.e. the plaintiff accepted the
aforesaid sale deed provided to him at that time.
3.9). In further compliance of the agreement to sell
and purchase and at the request of the plaintiff, his friend Sh.
Ravi Mishra purchased three stamp papers of Rs. 22,400 each
amounting to a total of Rs. 67200/-, for the purposes of
execution of three sale deeds, upon receiving the said amount
from defendant no. 1. Thereafter the plaintiff requested the
defendant no.1 to get the sale deeds typed together with other
necessary documents of undertaking, affidavit etc and also
handed over to defendant no.1 his photographs and the
photocopies of his passport required for the purposes of
registration of sale deeds. The defendant no.1 got the three
sale deeds and documents typed, however, the plaintiff failed
to execute and register the same, despite repeated requests and
reminders.
3.10). During the period of April to October, 1995,
defendant no.1 carried out additions, alterations in and over
the said premises and converted the barsati floor into a
complete second floor and since then is enjoying the first and
the second floor together with the said premises as owner
thereof also discharging the obligations of payment of house
tax, electricity and water bills and other public dues in respect
of the same. The defendant no.1 even made the payment of
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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the house tax for the period prior to his taking over the
possession of the said premises.
3.11). It is averred that the intentions of the plaintiff
were dishonest from the very inception as inspite of receiving
full and final consideration and handing over the possession of
the said premises and shifting to M-25, C.R Park, New Delhi,
the plaintiff did not handover the complete chain of original
documents and instead issued a legal notice dt 07.2.1997 and
17.02.1997 to defendant no.1 casting false and frivolous
allegations with a concocted story. The defendant no.1
replied to the said notice vide reply dt 20.02.1997 requesting
the plaintiff to sign, execute and register the requisite sale
deed in his favour.
3.12). On 14.03.1997, the plaintiff issued a further
reply to the said reply refusing to sign and register the sale
deeds. The defendant no.1 vide a further reply dt 26.03.1997
again requested the plaintiff to complete the sale transaction.
Thereafter defendant no.1 also tried to persuade the plaintiff to
fulfill his obligation through other family members and
common family friends, but to no avail. It is averred that
since the defendant no.1 was the elder brother of the plaintiff,
he did not file the suit immediately.
3.13). On 05.03.1999, the defendant no.1 received
summons in a suit for possession filed by him against him and
his family members.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 18 –
3.14). Aggrieved by the conduct of the plaintiff of
refusing to execute the sale deeds, the defendant no.1 has filed
the second suit interalia praying for a decree of specific
performance of contract of sale dt 18.03.1996 praying for
directions to the plaintiff to execute and register the three sale
deeds w.r.t the said said premises and for handing over the
original title documents in respect thereof.
3.15). In para ‘C’ of the replication in the second suit, it
has been averred that since the plaintiff vacated the suit
property in the 1st week of April 1996, there was no question
of handing over the possession of the suit property in
February-March, 1996. The case of the plaintiff that the
possession of the suit property was handed over to the
defendant no.1 in February-March 1996 out of love and
affection is false as the plaintiff in another litigation bearing
no.838/1997 titled as Kunal Ramchandani V. Ramchandani
Enterprises & Ors. has averred that defendant no.1 is
dishonest and has been siphoning of family funds and in these
circumstances the plaintiff would not shift in smaller house in
C.R. Park and give a bigger house to defendant to stay.
3.16). In the W.S filed in the first suit, the defendant
has denied the averments of the plaint of the plaintiff and
stating the facts as above.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 19 –
4. ISSUES FRAMED IN FIRST SUIT
From the pleadings of the parties, the following
issues were framed vide order dt 11.11.2002.
1. Whether the plaintiff is entitled for the relief claimed
in the suit ? OPP
2. Whether the defendants are in illegal and
unauthorised occupation of the suit property, if yes, its
effect ? OPP
3. Whether the plaintiff is entitled for damages against
the defendants, if yes, at what rate and what period ? OPP
4. Whether the defendants are liable to pay interest to
the plaintiff, if yes, at what rate and on what amount and
for what period ? OPP
5. Whether plaintiff has put the defendant in possession
of the suit property as a licensee under an oral license ? If
so, its effect ? OPP
6. Whether the plaintiff is entitled to return of three
original sale deeds dt 04.03.1994, 08.03.1994 and
18.03.1994 executed by Smt Sushila Ramchandani in
favour of the plaintiff qua the suit property from the
defendants ? OPP
7. Whether the above said three sale deeds were stolen
from the place and between the period as alleged by the
plaintiff ? OPP
8. Whether the amount of Rs. 8,40,000/- paid to the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
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plaintiff by the defendant no.1 was a loan ? OPP
9. Whether market price of the suit property at the
relevant time i.e. March/April, 1996 was more than Rs.
8,40,000/- ? OPP
10. Whether the defence set up by the defendants is hit
by section 53-A of the Transfer of Property Act, 1882 ?
OPP
11. Whether there was any concluded oral agreement to
sell and purchase dt 18.03.1996 qua the suit property
between the plaintiff and defendant no.1. If no, if effect. If
yes, then whether the payment of Rs. 8,40,000/- made by
the defendant no.1 to the plaintiff, was sale consideration
at all ? OPD
12. Whether the suit is bad for non-joinder and/or
misjoinder of necessary or proper party ? OPD
13. Whether the suit has been properly valued for the
purposes of court fee and jurisdiction ? OPP
14. Whether the defendant took over possession of the
suit property as a consequence of oral agreement ? OPD
15. Whether the defendants have carried out any
constructions, additions, alterations and/or renovations
during April to October, 1996 in and over the suit
property, if yes whether the same was undertaken
authorisedly and legally ? OPD
16. Whether the Plaintiff has constructed second floor of
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 21 –
the suit property as alleged by him ? If yes, when ? OPP
17. Relief
5. ISSUES FRAMED IN SECOND SUIT
From the pleadings of the parties, the following
issues were framed vide order dt 11.11.2002:
1. Whether the suit has been filed within the prescribed
period of limitation ? OPP
2. Whether the suit is liable to be dismissed under
order 7 Rule 11 of CPC ? OPD
3. Whether the suit property has been properly valued
for the purposes of court fee and jurisdiction ? OPP
4. Whether the present suit is a counter blast of the suit
no. 456/99 ? OPD
5. Whether the plaintiff is entitled for claim of specific
performance of the alleged oral contract dt 18.03.1996 ?
OPP
6. Whether the plaintiff has entered into oral agreement
on 18.03.1996 to sell and purchase of the suit property
with the plaintiff as alleged and whether the payment of
Rs. 8,40,000/- is by way of consideration for the said
alleged agreement ? OPP
7. Whether the payment of Rs. 8,40,000/- made by the
plaintiff to defendant was by way of friendly loan ? OPD
8. Whether the alleged sale consideration of Rs.
8,40,000/- was the market value of the suit property, if no
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 22 –
its effect ? OPD
9. Whether the plaintiffs have carried out construction
additions, alterations and/or renovation in their existing
suit property, if yes its effect ? OPP
10. Whether the existence of a written contract is sine
quo non for invocation of section 53 A of Transfer of
property Act, if so its effect ? OPD
11. Whether plaintiff has performed his part of the
obligation in terms of alleged agreement to sell dated
18.03.1996 and the plaintiff is ready and willing to
perform his obligation in pursuance thereto ? OPP
12. Relief.
6. PLAINTIFFS EVIDENCE:
In support of his case, the Plaintiff examined the
following witnesses:
i). Plaintiff examined himself as PW1. He tendered
his evidence by way of affidavit Ex.PW1/X1 and relied
upon the following documents:
1. Certified copy of the Will dt 30.12.1992 Ex.PW1/1
2. Sale deeds dt 04.03.1994, 08.03.1994 & Ex.PW1/2 to
18.03.1994 Ex.PW1/4
(respectively)
3. Site plan of the property Ex.PW1/5
4. Sanction plan of the suit property Ex.PW1/6
5. MCD House Tax receipt dt 18.10.94 Ex.PW1/7
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 23 –
6. Relevant pass book pages Ex.PW1/8
7.Letter dt 27.12.1995 of DESU Ex.PW1/9
8. Original Certificate dt 04.02.2003 Ex.PW1/10
of Bank of India
9.Certificate dt 20.02.2003 issued by Ex.PW1/11
the doctor
10. Relevant pass book pages of mother Ex.PW1/12
11. Relevant pass book pages showing
payments made Ex.PW1/13
12. Copy of GPA dt 13/12/1995 Ex.PW1/14
13. Copy of Agreement to Sell Ex.PW1/15
14. Notice dt 07.02.1997 Ex.PW1/16
15. Copy of Will dt 07.06.1995 Ex.PW1/17
16.Copy of Partnership deed dt 11.07.1979 Ex.PW1/18
17. Copy of letter dt 30.05.1997 Ex.PW1/19
18.Bills bearing dt 16.02.1997 of Hotel Ex.PW1/20 &
Man Singh Ex.PW1/21
19. Notice dt 17.02.1977 Ex.PW1/22
20. Reply dt 20.02.1997 Ex.PW1/23
21. Notice dt 14.03.1977 Ex.PW1/24
22. Reply Notice dt 26.03.1997 Ex.PW1/25
23.Certified copy of sale deed dt 10.06.1996
Ex.PW1/26
24.Certified copy of sale deed dt 07.06.1996
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 24 –
Ex.PW1/27
25.Certified copy of sale deed dt 12.06.1996
Ex.PW1/28
26.Certified copy of sale deed dt 10.11.1995
Ex.PW1/29
27.Certified copy of sale deed dt 21.11.1995
Ex.PW1/30
28.Certified copy of sale deed dt 12.06.1996
Ex.PW1/31
29. Valuation Report by Govt. Approved Ex.PW1/32
Valuer
30. Price index of property published Ex.PW1/33
in The Times of India
31. Legal Notice dt 15.11.1998 Ex.PW1/34
32. Letter dt 12.01.1996 of Real Estate Ex.PW1/35
Dealer
33. Certified copy of Lease deed Ex.PW1/36
dt 10.08.1998
He was duly cross-examined and discharged.
ii). PW2-Sh. Om Prakash, Commercial Officer,
MTNL brought summoned record i.e. the complete record
history of Telephone nos. 26215180 and 26413185 which
is Ex.PW2/1 and the internal letter dt 07.01.2015 for
supply of record pertaining to the said phone nos.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 25 –
Ex.PW2/2 (Colly). He further exhibited the telephone Bill
dt 09.03.2014 as Ex.PW2/D(2-4/X1) and the bill dt
01.03.1997 as Ex.PW2/D(2-4/X2).
iii). PW3-Sh. Deepak Bhatia was summoned from
Bank of India, however, he could not bring the summoned
record as the same was not traceable being a 10 years old
record. The letter in this regard is Ex.PW3/1.
iv). PW4-Sh. Jagbir Singh is the witness
summoned from House Tax Department. He proved the
letter dt 16.02.2005 written by Sh. Harish Ramchandani to
their Department in respect of the suit property, as
Ex.PW4/A. He deposed that the record pertaining to
receipt no. 141098 dt 28.10.1994 (Ex.PW1/7) is destroyed
due to fire incident. The said letter is Ex.PW4/2.
During his cross-examination, he proved the receipt
bearing no. 541017 dt 30.09.2002 as Ex.PW4/X. He
further proved the letter dt 17.11.2014 written by Manohar
Ramchandani to their department along-with copy of the
receipt sent by Manohar Ramchandani with the said letter
as Ex.PW4/D2/3 (colly). The self assessment forms and
the receipt pertaining to 2004-2010 were exhibited as
Ex.PW4/D2/4 (colly).
v). PW5- Sh. Naresh Kumar Rao, a witness from
Bank of India has brought the account opening form of
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 26 –
account no. 11063 of M/s. Astral System dt 07.06.1996
with specimen signatures of its Prop. Sh. Harish
Ramchandani. The same is Ex.PW5/1. He further deposed
that the other summoned record is not available as the
same has been destroyed being more than 8 years old. The
letter dt 13.01.2015 written by their Chief Manager in this
regard is EX.PW5/2.
vi). PW6-Sh. M.L. Sharma has tendered his
evidence by way of affidavit Ex.PW6/A. He was duly
cross-examined and discharged.
vii). PW7-Sh. Paramjeet Singh, is the registered
Govtt. Approved Valuer. He tendered his evidence by way
of affidavit Ex.PW7/A. He deposed that the valuation
report was prepared by him which is already Ex.PW1/32.
He was duly cross-examined and discharged.
viii). PW8- Dr. Akhilesh Shrivastava, tendered his
evidence by way of affidavit Ex.PW8/A. He deposed that
he had issued a certificate dt 20.02.2003 which bears his
signatures and stamp at point A and is Ex.PW8/1. He was
duly cross-examined and discharged.
ix). PW9- Sh. Dashrath Prasad is the summoned
witness from Sub Registrar Office-VA. However, he could
not bring the summoned record stating that the record prior
to 02.07.2012 are kept and maintained with the Office of
Sub Registrar-V.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 27 –
x). PW10- Sh. Pawan Kumar Verma is the witness
from Vyapar Bhawan. He proved the Form S.T-8 dt
14.01.1997 and Form (B) dt 14.01.1997 of Astral System,
ie., the proprietorship concern of Sh. Harish Ramchandani.
The copy of which is already Ex.PW1/37 (colly).
xi). PW11- Sh. Ashok Kumar Aggarwal is the
witness from Man Singh Hotels and Resorts, Panchkuia
Road, New Delhi. He deposed that he could not bring the
summoned record as the same was old record and had been
weeded out. He was shown the photocopies of the Bills
bearing no. 018585 and 018583 dt 16.02.1997 and he
deposed the the said bills appears to have been issued by
their Hotel. The same were Marked as Mark X1 and X2.
xii). PW12-Sh. Bharat Sanwaria is the summoned
witness from SR Office-V, Mehrauli, Delhi. He proved the
sale deeds dt 07.06.1996 and 12.06.1996, certified copy of
which are already Ex.PW1/27 & Ex.PW1/28 respectively.
He further proved the Certified copy of sale deeds dt
10.11.1995 and 21.11.1995 which are already Ex.PW1/29
& Ex.PW1/30 respectively. The witness has further proved
the sale deed dt 10.06.1996 already Ex.PW1/26 and stated
the same to be correct as per their record.
xiii). PW13- Sh. Dinesh Mulchandani is the witness
summoned by the plaintiff to prove the bills of Ganesh
Audio Systems Pvt. Ltd raised against M/s. Astral
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CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 28 –
Systems, proprietorship concern of the plaintiff and
exhibited the said bills as Ex.PW13/1 (colly).
xiv). PW13-Sh. Dheeraj Kumar, Record Keeper
from the Office of Sub Registrar brought the summoned
record pertaining to sale deed dt 12.06.1996 which is
already Ex.PW1/31 and proved the same to be correct as
per their record. He has also brought the record pertaining
to lease deed dt 10.08.1998 which is already Ex.PW1/36
and proved the same to be correct as per their record.
xv). PW14- Sh. Anand, Ahlmad in the court of Ms.
Neelofer Abida Parveen who brought the summoned report
of the suit 9678/16 titled as Kunal Ramchandani vs.
Ramchandani Enterprises and proved the document
already Ex.PW1/17, Ex.PW1/18 & Ex.PW1/19.
7. DEFENDANTS EVIDENCE:
Defendant in support of his case examined the
following witnesses:
i). Manohar Ramchandani as DW1. He tendered his
evidence by way of affidavit Ex.DW1/A. He relied upon
the following documents:
i). Sale deed dt 04.03.1994 Ex.DW1/1
ii). Sale deed dt 08.03.1994 Ex.DW1/2
iii). Sale deed dt 18.03.1994 Ex.DW1/3
iv). Original phonogram Ex.DW1/4
between Akhilesh Chander
Mathur addressed to Harish
Ramchandani
v). Sanction plan Ex.DW1/7
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 29 –
vi). Copy of affidavit of Mark A
Mr. Prem B. Chablaney dt 11.04.2001
vii). Copy of affidavit of Mark B
Mr. Lilu Moolchandani dt 11.04.2001
viii). Unsigned and undated sale deed Ex.DW1/10
between Mr. Hari Ram Chandani
and Mr. Manohar R. Ramchandani
ix). Unsigned and undated sale deed Ex.DW1/11
between Mr. Hari Ram Chandani
and Mr. Manohar R. Ramchandani
x). Unsigned and undated sale deed Ex.DW1/12
between Mr. Hari Ram Chandani
and Mr. Manohar R. Ramchandani
xi). House Tax receipts (5 in number) Ex.DW1/13 to
Ex.DW1/18
xii). Certificate from the bank dt Ex.DW1/19
24.07.2004
xiii). Notice dt 07.02.1997 Ex.DW1/20
xiv). Notice dt 17.02.1997 Ex.DW1/21
xv). Notice dt 20.02.1997 Ex.DW1/22
xvi). Letter dt 14.03.1997 Ex.DW1/23
xvii). Notice dt 26.03.1997 Ex.DW1/24
xviii). Certified copy of sale deed Ex.DW1/25
dt 18.04.1996
xix). Certified copy of sale deed Ex.DW1/26
dt 17.02.1996
xx). Ten original UTI Certificates Ex.DW1/27 to
Ex.DW1/36
xxi). Death certificate dt 17.10.1995 Ex.DW1/37
issued by Dr. Akhilesh Srivastava
xxii). Intimation letter from cremation Ex.DW1/38
ground, Nizamuddin
xxiii) Death certificate of Sushila Ex.DW1/39
Ramchandani
He was duly cross-examined and discharged.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 30 –
ii). DW2-Sh. Nicholson Bernard, is the witness
from the Office of Sub-Registrar, Kalkaji. He brought the
original record of the sale deeds dt 18.04.1996 and dt
17.04.1996, which are already Ex.DW1/25 & Ex.DW1/26.
iii). D1W2-Sh. Rashim Girdhar is the summoned
witness who identified the signatures of his father Sh. M.L.
Girdhar on the affidavit of Sh. ML. Girdhar -Ex.D1W2/1.
He was duly cross-examined and discharged.
iv). D1W3-Sh. Sandeep Sarin, is the summoned
witness who identified the signatures of his father Sh. A.P.
Sarin on the affidavit Ex.D1W3/1 of Sh. A.P. Sarin. He
was duly cross-examined and discharged.
v). D1W4-Sh. Ravi Raj Chitkara tendered his
evidence by way of affidavit Ex.D1W4/1. He was duly
cross-examined and discharged.
vi). D1W5-Sh. Dharampal is the summoned
witness from Railway Board to prove the signatures of
Smt. Parpati Chablaney. He placed on record the certified
copy of service register, PPO certificate and specimen
signatures of Smt. Parpati Chablaney as Ex.D1W5/1
(Colly).
vii). D1W6- Sh. Dinesh Mulchandani was examined
by the defendant to prove the signatures of Sh. Naresh
Mulchandani on the untendered affidavit of Sh. Naresh
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 31 –
Mulchandani Ex.D1W6/1. He deposed that the signatures
on Ex.D1W6/1 are that of Sh. Naresh Mulchandani. He
was duly cross-examined and discharged.
viii). D1W7- Sh. Ved Prakash identified his
signatures on his affidavit Ex.D1W7/1 and he admitted the
same to be correct. He was duly cross-examined and
discharged.
ix). D1W8- Sh. Rajinder Sharda tendered his
evidence by way of affidavit Ex.D1W8/A. He was duly
cross-examined and discharged.
x). D1W9- Sh. Amarjeet Singh Marwah, tendered
his evidence by way of affidavit Ex.D1W9/A. He was duly
cross-examined and discharged.
8. ARGUMENTS OF LD. COUNSEL FOR THE
PLAINTIFF-SH. OM PRAKASH.
8.1). It was argued by the Ld. Counsel for the
plaintiff that the case of the defendants is a complete false
suit and is based upon misrepresentation of facts, thus
disentitling him to any relief prayed for by him in his suit.
The Ld. Counsel has advanced his arguments under the
following heads :
a. Failure of the defendants to prove the alleged oral
agreement dated 18.03.1996 :
It was argued that the defendants have in support of
their defence in the first suit and their case in the secondCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 32 –
suit have relied upon an alleged oral agreement to sell
dated 18.03.1996. It was argued that prior to filing of the
suits by the parties, a lot of correspondence and exchange
of legal notices has taken place between the parties,
however, no terms and conditions of the agreement to sell
as alleged in the pleadings of the defendants were ever
alleged in the said legal notices / correspondences and was
for the first time disclosed in the pleadings of the present
suits and even there was no mention about the purchase of
stamp papers or the date of delivery of the suit property in
the said notices. It was further argued that even the alleged
terms and conditions as set out in the pleadings does not
contain the essential conditions of an agreement to sell and
purchase such as the time frame within which the
agreement to sell was to be performed, mode of execution
of sale deed and the effect of non performance of the
obligation under agreement by anyone of the parties. The
Ld. Counsel argued that when any party to a suit relies
upon any oral agreement then it is incumbent upon him to
allege and to prove the fundamental/essential terms and
conditions of the agreement to sell between the parties.
The counsel argued that in a catena of judgments, the
Hon’ble Supreme Court and the Hon’ble High Court have
discussed the legal position as to when an oral agreement
to sell can be specifically enforced and how an oralCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 33 –
agreement to sell is required to be proved. The counsel
argued that heavy burden of proof lies on the plaintiff in
such cases to prove consensus-ad-idem in respect to the
oral agreement and the party alleging an oral agreement is
also required to prove the vital and fundamental terms of
the contract for the sale of immovable property concluded
between the parties. It was further argued that it is the case
of the defendants that the terms and conditions of the
agreement were finalised in the presence of the family
members Sh. Lilu Mulchandani and Sh. Prem Chablani,
however, the defendants have failed to examine the said
witnesses in support of their case and thus has failed to
prove the happening of the alleged meeting dated
18.03.1996 and the agreed terms and conditions as
claimed. It was argued that the defendant has failed to
prove the alleged oral agreement and therefore on this
ground alone, is not entitled to any decree of any specific
performance of said alleged agreement. It was argued that
“defendant no. 2 to 4 never entered the witness box and
therefore, a presumption under 114 (g) of the Indian
Evidence Act, 1872 (now Section 119 of the BSA 2023) is
attracted and adverse inference is to be drawn against the
defendants. In support of his contentions, the Ld. Counsel
has placed reliance upon judgments in T. Muralidhar Vs.
PVR Murthy – 2014 SCC Online Del 2326, H.R.CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 34 –
Subramanya Shastry and Others Vs. Sri K.Mohan Kumar –
2021 SCC OnLine KAR 14857 ILR 2021 KAR 2507,
Ouseph Varghese Vs. Joseph Aley and Others (1969) 2
SCC 519 and Jagadambal Ammal Vs. Narayanswami
Ayyar and Anr-1953 SCC OnLine SC 94 .
It was argued that even the story of the happening of
the negotiation in the presence of the family members
namely Lilu Moolchandani & Prem Chhablani was for the
first time set up in the WS filed in the first suit.
He argued that even the unsigned drafts of sale deed
presented by the defendant has no reference to the alleged
oral agreement between the parties and also does not
disclose the date of delivery of possession of the suit
property.
It was argued that the defendants have failed to
prove the existence of a valid and concluded contract
between the parties and has failed to establish the
consensus-ad-idem between the parties as to the terms and
conditions listed by the defendants.
It was also argued by the Ld. Counsel that the story
of the defendant that an oral agreement was entered into
between the parties also does not inspire confidence as the
defendant no.1 acted upon legal advice at every stage as is
evident from the oral deposition of DW1 dated 07.03.2018,
as per which the Will dated 19.05.1995 was got drafted by
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 35 –
the advocate of the defendant representing him in the
present proceedings. The defendant no.1 used to conduct
every matter in writing as is evident from the letter dated
30.05.1997-Ex.PW1/19, written by defendant no.1 to the
Bank of India, partnership deed dated 11.07.1979
Ex.PW1/18. It was argued that defendant no.1 even after
the death of Mrs. Sushila Ramchandani got executed
another partnership deed. It was argued that since the
defendant did all the important acts in writing then it is
unlikely that he would enter into an oral agreement for the
purchase of the property and would also not insisit upon
any receipt of payment in writing that too when he
believed the plaintiff to be a person unworthy of trust.
It was argued that it has been pleaded by the
defendant that the plaintiff had used the sale consideration
money for purchase of another house bearing no. M-25,
Ground floor, C.R. Park, New Delhi whereas the plaintiff
has by way of evidence proved that the said property was
purchased in 1995 prior to the receipt of the cheques from
defendant no. 1 and that the plaintiff had taken a friendly
loan from the defendant for the purposes of starting a new
business in the name of M/s Astral Systems which was
started by him contemporaneously. In this regard, the
counsel has relied upon the testimony of summoned
witness-PW10, who proved the Sales Tax and Central Tax
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 36 –
registration Forms namely Form ST-8 dt 14.01.1997 and
Form B dt 14.01.1997.
It was further argued that even it has been proved
on record that the said house was purchased by the
plaintiff in December 1995 i.e. much prior to the receipt
of the alleged sale consideration. It was argued that
defendant no.1 in his deposition dated 03.04.2018 has
admitted that the said averment was only his presumption.
The counsel argued that to support his story, the
defendant has contended the handing over of the 3 original
sale deeds and other documents by the plaintiff to him,
however, it has been proved by the plaintiff evidence that
the said sale deeds were stolen by the defendant from the
drawer of the plaintiff while the plaintiff was away to
Jaipur. In support of his arguments, the Ld. Counsel has
relied upon his legal notice dated 17.02.1997 Ex.P2, reply
to the legal notice dated 22.02.1997-Ex.P3, issued by the
defendant, Ex.PW1/20 & Ex.PW1/21 (Mark X1 and Mark
X2) i.e. the bills of Hotel Man Singh Jaipur, wherein the
plaintiff had stayed on 15th & 16th February and the
testimony of PW11-Sh. Ashok Kumar Aggarwal Director
of the hotel, who was summoned to prove the bills
Ex.PW1/20 & Ex.PW1/21.
The counsel further argued that defendant has failed
to prove that the sale deeds were handed over to him by
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 37 –
the plaintiff. He argued that there are contradictions in the
evidence of the defendant (DW1) regarding the handing
over of the file and even the defendant has failed to prove
the presence of the persons ie Sh. Lilu Moolchandani and
Sh. Prem Chhablani at the time of handing over of
documents. He argued that even Sh. Ved Prakash-D1W7
has given contradictory statements and cannot be relied
upon. The counsel further argued that the defendant has
also failed to prove that the possession was handed over to
him on 04.04.1996.
The counsel argued that even the defendant in his
self assessment form dated 26.10.2004 – Ex.PW4/D2/4,
submitted to the MCD, has admitted the exclusive
ownership of the plaintiff in the suit property. It is argued
that if the defendant no.1 had become the owner by way of
purchase, there is no reason why he should show the
plaintiff as owner in the Self Assessment Form filed before
the MCD.
The counsel further argued that the defendant has
examined D1W2, D1W3 and D1W6 to prove the
untendered affidavit of Sh. M.L. Girdhar whom he alleges
to have carried out construction at the suit property, Sh.
A.P. Sarin whom he alleges to have helped him in shifting
to suit property on 05.04.1996 and Sh. Naresh
Moolchandani, to prove the presence of Sh. Lilu
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 38 –
Moolchandani at the time of alleged agreement to sell,
however, the same cannot be relied upon as the said
witnesses never entered the witness box.
The counsel argued that the defendant has
reproduced the alleged terms & conditions of the
agreement in his WS, however, it is not possible for a
person to remember the exact language of the terms which
have been agreed between the parties 3-4 years back.
It is argued that evidence of DW18 & D1W9 is
beyond pleadings and cannot be relied upon.
b. Discretion under Section 20 Specific Relief Act
1963 to be exercised on sound and reasonable judicial
principles and relief of specific performance cannot be
granted merely because it is legal to do so:
It was argued by the Ld. Counsel for the plaintiff
that the relief of specific performance cannot be granted
merely because it is lawful to do so but the discretion
under Section 20 of Specific Relief Act 1963 is to be
exercised on the basis of sound judicial principles and the
court should meticulously consider the facts and
circumstances of the case to see that the same is not used
as an instrument of oppression or to derive an unfair
advantage. It was argued that the motive behind the
litigation is also required to be considered. The Ld.
Counsel has placed reliance upon judgment in H.R.CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 39 –
Subramanya Shastry and Others Vs. Sri K.Mohan Kumar –
2021 SCC OnLine KAR 14857 and Satish Kumar Vs.
Karan Singh and Anr – (2016) 4 SCC 352.
It was also argued that relief for specific
performance is an equitable relief and cannot be granted in
favour of the person who does not come to the court with
clean hands. In support of his contentions, the Ld. Counsel
has placed reliance upon judgments in Major Gen. Darshan
Singh (D) by Legal Representatives v. Brij Bhushan
Chaudhary (D) by Legal Representatives-(2024) 3 SCC 489.
The Ld. Counsel also argued that as per para 41 of
Ex.DW1/A the defendants has knowledge of the alleged
bad intentions of the plaintiff much prior to 07.02.1997
which only became more clear from legal notice of the
plaintiff dt 07.02.1997 whereby the plaintiff claimed
recovery of possession of the suit property, yet the
defendant did not institute any proceedings to protect their
rights uptil 1999. It is further argued that the defendant
claims to have purchased the suit property in 1996 and
despite non execution of documents in his favour did not
institute any proceedings against the plaintiff. Even the
defendant no.1 maintained a conspicuous silence for over 3
years after the alleged purchase of stamp papers and did
not take any steps for closure of the alleged sale
transaction. It was argued that even the contention of theCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 40 –
defendant that he did not immediately launch the legal
proceedings considering the relationships between the
parties also holds no weight as Sh. Kunal Ramchandani
had initiated legal proceedings against the plaintiff in the
year 1997 projecting a forged and fabricated Will of the
mother of the plaintiff with respect to partnership business
in which defendant no.1 supported the case of Sh. Kunal
Ramchandani. The said suit was ultimately decided in
favour of the plaintiff vide judgment dated 15.12.2022 in
CS No. 9678/2016 and PC No. 47/2018 passed by the Ld.
ADJ-04, South East District, Saket Courts. In the said
proceedings, various allegations of siphoning of funds
were made by the parties. Thus, it is clear that as per the
defendant’s, the plaintiff was not a trustworthy person yet,
the defendant chose to not file any proceedings against him
to protect his rights in respect of the said premises.
Further, no evidence has been lead by the defendants in
support of their averments that the defendants had tried to
convince the plaintiff to perform his obligations under the
contract, through friends and family. The Ld. Counsel
argued that the defendant has also levelled allegations
upon the plaintiff in his pleadings alleging therein that the
plaintiff used to mistreat his mother. Thus, it is clear that
the relationship between the parties could not have been a
factor for not filing the legal proceedings against theCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 41 –
plaintiff. It is argued that it is a settled law that readiness
and willingness is an essential ingredient in a suit for
specific performance and the plaintiff has to aver and
prove his readiness and willingness. The Ld. counsel
argued that the “willingness” is shown by the active steps
taken by a person to protect his rights including the filing
of a suit for specific performance. If a person launches
legal proceedings after a long delay of the arising of the
cause of action, he cannot be said to be willing to perform
the contract even though he files the suit within limitation.
The Ld. Counsel has placed reliance upon the the
judgments in Jagjit Singh Through LRs Vs. Awarjit Singh
(2018) 9 SCC 805 and Janardan Das and Ors. Vs. Durga
Prasad Agarwalla and Ors- 2024 SCC OnLine SC 2937.
It was argued that the defendant has failed to prove
his “willingness” which is an essential ingredient to be
entitled to the relief of specific performance. It is
submitted that the defendant has not proved anything on
record to show that he was requesting the plaintiff to
perform the alleged oral agreement dated 18.03.1996 and it
was only on 20.02.1997 that a first communication in the
form of a reply Ex.P3 was received from the defendant, in
response to the legal notices issued by the plaintiff Ex.P1
& P2. It was argued that the said reply dated 20.02.1997
was also received after one year of the alleged oral
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 42 –
agreement and the present suit was filed only after 2 years
of the said reply that too as a counter blast to the suit of the
plaintiff.
The counsel further argued that the second suit of
the defendant is only a counter blast to the suit of the
plaintiff.
c. Vague and non specific pleadings:
It was argued by the Ld. Counsel that the pleadings
of the defendant are vague and the defence set up by him is
also moonshine. It was argued that the pleadings of the
defendant do not disclose any specific dates on which prior
negotiations happened between the parties, the alleged
requests were made for execution of the sale deeds, for
appearing before the Sub Registrar, about meeting with
family and friends to convince the plaintiff to perform the
obligation under the contract, for payments of arrears of
house tax, electricity dues or the demand of chain of title
documents. It has also not been pleaded as to when was the
purchase of stamp papers conveyed to the plaintiff. It has
also not been disclosed as to whether the draft sale deeds
were shared with the plaintiff or not. Also, there is no
disclosure as to when and where the sale deeds were got
typed by the defendant. It was argued that even no dates of
the alleged requests made by the defendant to the plaintiff
for the execution of the documents of title have been
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 43 –
mentioned in the pleadings and even it has not been stated
as to what was the nature of the documentation required to
be executed between the parties. It is argued that mere
averments on these aspects have been made in the
pleadings without setting out the detailed facts and events.
The Ld. Counsel argued that the defendant has not
pleaded any notice in writing to the plaintiff about the visit
to the Sub Registrar office or as to its date and time for the
purposes of execution of the title documents.
The Ld. Counsel argued that no relief can be granted
to the defendant on the basis of vague pleadings as in the
absence of the above mentioned pleadings, the defendant
cannot be said to have proved the oral agreement as
alleged as well as the circumstances surrounding the said
agreement.
d. Bar of limitation:
It was argued by Ld. Counsel for the plaintiff that
the second suit filed by the defendant is barred by
limitation as the same has been filed after the expiry of 3
years from the date of the alleged oral agreement dated
18.03.1996. It was further argued that even as per para 41
of the affidavit of evidence of defendant no.1- Ex.DW1/A,
the defendant had the knowledge that the plaintiff is not
accepting the alleged oral agreement and is not ready to
perform the same. It is argued that apparently the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 44 –
defendant no.1 had the knowledge of the alleged dishonest
intention of the plaintiff as it has been alleged in the
affidavit that the plaintiff was adopting tactics to wriggle
out of the sale transaction. Thus, it is clear that defendant
no.1 had knowledge even prior to the receipt of the notice
of the plaintiff dated 07.02.1997 Ex.P1 and therefore, the
suit of defendant no.1 is barred by Article 54 of The
Limitation Act, 1963.
e). Non applicability of Section 53A of the Transfer of
Property Act 1882 :
It was argued by the Ld. Counsel for the plaintiff
that a written agreement is a sine qua non for the
applicability of the doctrine contained in the section 53A
of the TP Act, 1872. It was argued that the defendant in
the present case has relied upon an oral agreement and has
even failed to prove the same and, therefore, he is not
entitled to any protection of the above provision.
In support of his contention, the Ld. Counsel has
placed reliance judgments in Mool Chand Bakhru And Anr
Vs. Rohan and Ors.-(2002) SCC 612, Brij Mohan and
Ors. Vs. Surgra Begum and Ors.- MANU/DE/0492/1990,
Panchi Devi Vs. Omwati – MANU/DE/2568/2011, Vinod
Kumar Sharma & Anr Vs. Virender Kumar Sharma – 2014
(141) DRJ 646 & Omwati Vs. Panchi Devi – LAWPACK
2012 (190) DLT 720.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 45 –
f. Miscellaneous Arguments :
It was argued by Ld. Counsel for the plaintiff that
the witnesses examined by the defendant have not
supported the case of defendant and have given
contradictory statements and cannot be relied upon.
It was further argued that the defendants have also
led evidence beyond pleadings and is thus to be discarded.
It is argued that the evidence of D1W8 and D1W9 cannot
be looked into as the defendant by way of the said
evidence has introduced a new story about throwing a
party for purpose of a new house, which was not pleaded
in his plaint.
It was further argued that the defendant no. 1 has
alleged that he has purchased the stamp paper for the
purposes of sale deed etc. through Sh. Ravi Mishra,
however, has not examined him as a witness and therefore,
a presumption u/s 114 (g) of the Indian Evidence Act 1872
is to be raised against the defendant. It is further submitted
that even the evidence of DW1/defendant no.1 is
contradictory and demolishes the case of the defendant.
It was also argued that defendant no.2 to 4 did not
enter into the witness box and therefore, their WS cannot
be considered and even a presumption is to be raised
against them u/s 114 (g) of the Indian Evidence Act 1872.
It was argued that the defendant has not filed any
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 46 –
documents to show that he has disclosed the suit property
as an asset in his IT returns in statements.
It was argued that the claim of the defendant that he
shifted to the suit property in the first week of April is also
falsified by the very fact that the non judicial stamp papers
alleged to have been purchased on 08.04.1996 for the
execution of the sale deed and even the draft of the sale
deed does not mention the address of the defendant as that
of the suit property rather mentions the address of E-353,
First Floor, G.K.-II, New Delhi-110048, whereas the
defendant claims to have prepared the sale deed after
shifting to the suit property. It was submitted that even the
draft of the sale deed does not record any fact about the
entering into the oral agreement or the date of delivery of
possession of the suit property which is an essential term
of every sale deed.
The counsel further argued that by virtue of
Ex.PW2/1 & Ex.PW2/2 proved by PW2 coupled with the
admission of defendant no. 1 in his cross-examination dt
07.03.2018 that the telephone connection were shifted in
January, 1996, it has been proved that the defendant
shifted his telephones to the suit property in the month of
January-February, 1996 which supports the case of the
plaintiff that the defendant was allowed to occupy the 2 nd
floor of the suit property as a mere licensee while the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 47 –
plaintiff was himself residing in the suit property and
destroyed the case of the defendant that he shifted to the
suit property in the 1st week of April 1996.
The counsel argued that the deposition of witnesses
D1W2, D1W3, D1W4 & D1W6 is merely hearsay
evidence and deserves to be discarded.
The counsel also argued that the defendant has not
paid the proper court fee in the second suit filed by him as
the market rate of the suit property was around Rs.50 lakhs
at the relevant time and the defendant has failed to prove
that the market rate of the suit property was Rs. 8,40,000/-.
He submitted that the plaintiff has proved the same by
proving on record the certified copies of the sale deeds of
the nearby properties Ex.PW1/26 to PW1/31 proved by
PW12-Sh. Bharat Sanwaria, Record Keeper, Sub Registrar
Office-V, Mehrauli and PW13-Sh. Dheeraj Kumar,
Record Keeper, Sub Registrar Office-V, Mehrauli and
also by way of valuation report Ex.PW1/32 proved by
PW7. It was argued that even the contention of the
defendant that the suit property was purchased on the
market rate destroyed the story of the defendant that the
sale consideration was fixed keeping in view the sibling
relation and the love and affection between the parties.
The counsel argued that the defendant has also failed
to prove the phonogram Ex.DW1/4 set up by him as the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 48 –
defendant has not examined Sh. Akhilesh Mathur the
alleged sender of the phonogram. It was argued that the
same proves that the defendant has tried to concoct a story
about the efforts being made by the plaintiff to sell the suit
property. It was argued that his illegal design is further
clear from the fact that a phonogram which is alleged to be
received by the plaintiff has been filed by the defendant
from his possession and even the reply to the said
phonogram has been alleged to be got drafted by the
defendant at the request of the plaintiff from the same
advocate who represents him in the present proceedings.
As to the claim for damages for illegal occupation
by the defendants, the Ld. Counsel for plaintiff has relied
upon Ex.PW1/36 i.e. lease deed dt 10.08.1998 between Sh.
Jagdish Chander and M/s. Seagram Manufacturing Pvt.
Ltd with respect to first floor of property no. E-332, G.K.-
II, New Delhi, Ex.PW1/33 showing the Price Index of the
property situated in Greater Kailash, New Delhi as
published in Times Property of The Times of India, Delhi
Edition dt 22.02.2003 and Ex.PW1/35 which is a letter dt
12.01.1996 of M/s. Harwinder Associates, a real Estate
Dealer.
9. ARGUMENTS OF LD. COUNSEL FOR THE
DEFENDANTS – MR. ARUN VOHRA:
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 49 –
The Ld. counsel for defendant argued that the very
fact that the present transaction between the parties was
executed in the same fashion as the sale transaction
between the plaintiff and his mother supports the case of
the defendant. It was argued that the mother of the plaintiff
and defendant no.1 had transferred the suit property in the
name of the plaintiff by executing 3 separate sale deeds for
each 1/3rd share in the suit property and similarly the
plaintiff and the defendant had agreed to carry out the sale
transaction between them and therefore, 3 separate
cheques of Rs.2,80,000/- each were handed over to the
plaintiff, receipt of which is admitted by him. It is argued
that had it been a case of loan there would have been no
occasion for the defendant to draw 3 separate cheques, out
of which 2 were of the same date.
It was argued that it has been proved on record that
the plaintiff was making efforts to sell the suit property
and had entered into an agreement to sell dated 30.07.1995
with one Sh. Rahul Mathur. It is submitted that the
plaintiff had admitted in his cross-examination dated
28.07.2014 that he had received the phonogram Ex.DW1/4
which he had handed over to the defendant no.1 to reply
on his behalf and thereafter the same was got prepared by
defendant no.1 which he had signed and thus even the
reply dated 06.10.1995 Ex.PW1/D2-4/A i.e. the reply toCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 50 –
the phonogram stands proved and cannot be disputed by
the plaintiff.
It was argued that in the notice dated 07.02.1997
Ex.P1 the plaintiff admitted the fact that the defendant was
in possession of the suit property since April 1996 and had
claimed mesne profit for the said possession.
The counsel further argued that the story of the
plaintiff that the defendant had stolen the documents of the
suit property from the drawer of the plaintiff in the
partnership shop is also concocted as it is improbable that
the plaintiff would leave his title documents in the
premises where the defendant no.1 had unfettered access
even though a dispute had already arisen between the
parties as per his own legal notice dated 07.02.1997. It is
further argued that no complaint or FIR was filed by the
plaintiff against the defendant in this regard and this itself
shows that the story of theft is concocted by the plaintiff.
The counsel further argued that the plaintiff in his
reply dated 14.03.1997 Ex.P.4 did not aver anything about
the alleged friendly loan transaction between the parties
but for the first time raised the same in the pleadings. It is
submitted that in the said reply it was only averred that
several financial transactions have taken place between the
parties in view of the common interest in partnership
business and the sibling relation but none could be
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 51 –
construed as sale consideration.
The counsel further argued that in the reply dated
20.02.1997-Ex.P3 it was specifically averred by defendant
no.1 that defendant no.1 has carried out construction and
alterations in the suit property and after paying the sale
consideration has purchased non judicial stamp papers for
the execution of the sale deed, however, the plaintiff kept
silent as to the said averments in the notice.
The counsel further argued that even the plaintiff
maintained a conspicuous silence after the receipt of the
notice dated 26.03.1997 Ex.P5 and it was only on
15.11.1998 that a reply was received to the said notice
whereby the plaintiff tried to cover the lacunae in his
earlier communications/notices. The counsel further
argued that there was no occasion for the defendant to give
a loan to the plaintiff as the parties were admittedly
running a partnership business along-with their mother
and if at all any loan was to be granted for business
purposes the same would have been only in the name of
partnership concern.
The counsel further argued that the witness Sh. Lilu
Moolchandani & Sh. Prem Chhablani could not be
examined as they had expired before they could be called
for evidence, however, their testimony should not be
merely discarded on account of their death and have to be
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 52 –
considered if they are corroborated by other evidence on
record. In support of his contention the Ld. Counsel has
placed reliance upon the judgment in Krishan Dayal v.
Chanduram 1967 SCC online Del. 134 & Somagutta Erapa
Reddy (died) & Ors. v. Palapandia Chinna Gangappa &
Ors.- (2001) SCC online AP 1332.
The counsel further argued that the defendant has
proved his readiness and willingness as the entire sale
consideration is already paid to the plaintiff and the
defendant is in possession of the suit property since 1996.
It is submitted that his readiness and willingness is also
proved by the very fact that he purchased the 3 stamp
papers and got the sale deed drafted on the same. It is
submitted that defendant has already performed his part of
the obligations under the contract.
The counsel further argued that the defendant was
also in possession of the photographs and the copy of the
passport of the plaintiff for the purposes of the registration
of the sale deed and also the original documents including
the 3 sale deeds in the name of the plaintiff, electricity
bills, water bills & house tax bills. The counsel further
argued that there is no explanation by the plaintiff as to
how these documents came to the possession of the
defendant.
The counsel also relied upon the order dated
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 53 –
18.04.2001 passed by Hon’ble High Court in the first suit
while deciding the applications u/O 39 Rule 10 CPC and
Order 12 Rule 6 CPC, wherein it was noted by the Hon’ble
Court that there is a possibility of oral agreement between
the parties considering the relation between them and the
circumstantial evidences prima facie lend credence to the
story of the defendant and cannot to be said to be a
frivolous defence.
It was argued that in his cross-examination, the
plaintiff has admitted that the market value of the property
at the time of purchase by him from his mother was more
than Rs.40-50 lakhs but he had purchased the same for
Rs.5,40,000/-. It is argued that the said facts shows that the
correct market value was only Rs.5,40,000/- and the
allegation of the plaintiff that Rs.8,40,000/- is not the
correct market value is frivolous and baseless.
It was argued that the plaintiff has not produced any
income tax return to show that he was disclosing the suit
property as his asset despite claiming in his cross
examination dated 03.09.2013 that he has been showing
the purchase of the suit property in his income tax return.
It was argued that in his cross examination on 13.01.2014,
the plaintiff took a somersault and stated that he does not
file any income tax return in his individual name and also
said that he has not brought the return as the file was not
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 54 –
traceable. It was argued that this itself proves the falsity of
the case of the plaintiff.
The counsel also argued that the plaintiff has taken
contradictory stand by stating that he used to pay the house
tax as and when demanded by the department and by later
on admitting that he has not paid any house tax after 1994.
The counsel also argued that the plaintiff contends
that amount of Rs.8,40,000/- received by him from the
defendant was a friendly loan but admits that he did not
repay the said loan. The counsel also argued that if it was
only a loan then why was the same not repaid in all these
years.
The counsel also argued that though the plaintiff
contends that he had purchased the suit property from his
mother at a lesser value due to love and affection but raises
the objection to the sale consideration fixed between the
parties on the ground that the market value of the suit
property was much higher. It is argued that the plaintiff has
very conveniently forgotten that the parties were also
sharing a cordial sibling relation at the time of entering
into the oral agreement.
The counsel also argued that it has been averred by
the plaintiff in his suit that he had raised the construction
on the 2nd floor of the suit property by raising a personal
loan, whereas, in his cross-examination dated 16.01.2014,
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 55 –
it has been averred that he had incurred the expenses of the
construction from the personal savings. It is further
submitted that during the cross examination, the plaintiff
gave evasive reply to the questions of the counsel of the
defendant qua the averment of the said construction. It is
submitted that the plaintiff stated that he did not remember
even the approximate amount spent in the construction or
the name of the contractor who raised the construction.
The counsel also argued that PW6 did not support
the case of the plaintiff and even otherwise his evidence
cannot be looked into as in his cross examination, his reply
to all the questions about the facts stated in his affidavit
was either “I am not aware” or “I cannot recollect”.
It was argued that the evidence of PW7 examined by
the plaintiff to prove the value of the property is also not
trustworthy as he has admitted in his cross examination
that he had done the valuation in the year 1996 but had
prepared the report only in the year 2003. It is further
submitted that he had also admitted that he had prepared
the valuation report only by seeing from outside and he
had not measured the property nor seen the internal
construction. It is submitted that the said report prepared
by PW7 was prepared on the basis of information provided
by the plaintiff only and therefore cannot be relied upon.
It was argued that even the PW8 does not support
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 56 –
the case of the plaintiff and rather supports the case of
defendants as he has deposed that Smt. Sushila
Ramchandani was residing with Sh. Manu Ramchandani
and it was Sh. Manu Ramchandani who had called him for
his mother’s check up.
It was argued that the defendant has successfully
proved the transaction of 18.03.1996 and 04.04.1996
happened in the presence of Lilu Moolchandani & Prem
Chhablani. It was argued that D1W6 proved the signatures
of Sh. Naresh Moolchandani on his affidavit of evidence,
Ex.D1W6/1 wherein he deposed regarding the presence of
Sh. Lilu Moolchandani at the time of oral Agreement to
Sell and D1W5 who had brought the service register
record of MTS Railway Board proved the signature of
Smt. Parpati Chhablani on her affidavit of evidence dt
23.11.2004 wherein she deposed regarding the presence of
Sh. Prem Chhablani at the time of oral Agreement to Sell.
It is submitted that the affidavit of evidence of Lilu
Moolchandani & Prem Chhablani was filed during the
course of the proceedings, however, the same could not be
tendered in evidence due to the death of the said witnesses.
It was submitted that though the said witnesses could not
tender their evidence yet a duly signed affidavit is on
record and the same can be looked into as it amounts to a
statement of the said witnesses.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 57 –
It was argued that D1W7 – Mr. Ved Prakash has
supported case of the defendant that the plaintiff had
handed over the original sale deeds to defendant no.1
during the meeting at the office of Manu Ramchandani on
04.04.1996. It was argued that D1W2-Sh. Rashim Girdhar,
the son of Sh. M.L. Girdhar has supported the case of the
defendant regarding the construction by defendant no. 1 in
the barsati floor. It was argued that even D1W8 Sh.
Rajender Sharda and D1W9 Sh. Amarjeet Singh Marwah
have supported the case of defendant by proving that they
had attended a party organized by defendant no.1 for
celebrating the purchase of the suit property by him.
Ld. Counsel for defendant also argued that an oral
agreement is a valid agreement as per the provisions of
Indian Contract Act and if the oral agreement is proved to
exist then the defendant is entitled to the relief prayed for.
The counsel has placed reliance upon the judgment in S.B.
Narayana Swami v. Smt. Savithramma since deceased by
her LRs & Ors. ILR 2014 KAR 4185. However, during
the course of the said arguments, it was stated by the
counsel that since the plaintiff is not contending the
invalidity of an oral agreement, the said judgment relied
upon by him may not be considered.
Concluding the arguments, the counsel argued that
the defendant no.1 has successfully proved the factum of
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 58 –
oral agreement and the payment of sale consideration by
proving also the surroundings circumstances which only
lead to one conclusion that the suit property was purchased
by the defendant from the plaintiff and hence his suit is
liable to be decreed and the suit of the plaintiff be
dismissed.
10. I have heard arguments of both the sides, given my
thoughtful consideration to the same and also gone through
the record of the case including the judgments cited by the
parties.
11. The plaintiff is admittedly the owner of the suit
property having registered sale deeds in his favour Ex.P1,
Ex.P2 & Ex.P3. The defendant no. 1 claims to have
purchased the same from him and seeks specific
performance. Thus, if the suit of the defendant is decreed,
the suit of the plaintiff shall fail, however, if the same is
dismissed, then whether or not the plaintiff is able to prove
his case, he being the admitted owner shall be entitled to
the suit property and return of the title documents.
Keeping this in view, the issues in the second suit shall be
decided first.
12.REASONS & FINDINGS IN THE SECOND SUIT :
12.1). ISSUE NO.1 :
Whether the suit has been filed within the
prescribed period of limitation? OPPCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 59 –
As per para 16 (ii) of the affidavit of defendant
Ex.DW1/A, the entire sale consideration was to be paid by
April 17, 1996 and on receiving the said payment, the
plaintiff was liable to vacate and hand over the possession
of the suit property to the defendant and thereafter, the sale
deeds were to be executed between the parties. Further, as
per the para 29 & 30 of the said affidavit, the draft of the
sale deeds Ex.DW1/10 to DW1/12 were prepared in April
1996 immediately after obtaining the stamp paper dated
08.04.1996. Thereafter, several requests were made to the
plaintiff for execution & registration of the sale deeds,
however, the plaintiff failed to appear before the Sub
Registrar for the purposes of execution and registration of
the sale deeds. No specific dates of appearing before the
Sub Registrar or for execution of the sale deeds or of
refusal by the plaintiff has been specified in the pleadings
of the defendant or in the terms of the alleged oral
agreement dated 18.03.1996. The defendant has
maintained a conspicuous silence with respect to the same.
There is no evidence of a communication between the
parties regarding the request for execution of the sale
deeds or their denial thereof except the legal notices
exchanged between the parties Ex.P-1 to P-5 (Ex.DW1/20
to DW1/24). Thus, in these circumstances, it can be
presumed that the sale deeds were to be executed in the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 60 –
month of April 1996 as it is quite improbable that parties
would agree that the entire payment and also the
possession is to be handed over up till a particular date but
sale deed execution can be postponed indefinitely. Since
as per the defendants the plaintiff failed to appear before
the Sub Registrar, the defendant had notice of the refusal
of the plaintiff to perform the contract in the month of
April itself. Even otherwise, in the absence of any date
being fixed for execution of sale deeds, it has to be
presumed that the same was to be executed within a
reasonable time and in the circumstances alleged, wherein
acts of payment and possession have been completed by 4 th
April 1996 and even the stamp paper are purchased on
08.04.1996 and the drafts of the sale deeds are prepared
immediately thereafter, the reasonable time can be nothing
more than a few days on or around 8th April 1996. Further,
as per the statement of DW1 made in cross dated
03.04.2018 the defendant no.1 had engaged the services of
an advocate in the first week of April itself which itself
shows that defendant had notice of the refusal of the
plaintiff.
Further it was argued by Ld. Counsel that the
limitation would start from 07.02.1997 when the notice of
refusal was received from the plaintiff. Even in the cause
of action para in the second suit i.e. para 25, it has been
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 61 –
stated that the cause of action arose on 08.04.1996 i.e. the
date of purchase of stamp papers and on various dates
when the defendant tried to settle the matter with the
plaintiff with the help of family members and friends and
further also on 07.02.1997. Thus from the pleadings also it
is clear that the defendant had the notice of refusal of the
plaintiff much 07.02.1997 and since the stamp papers were
purchased on 08.04.1996 and the cause of action is stated
to have accrued on the said date without stating the dates
of meetings with the family, the only conclusion that can
be drawn is that the cause of action arose on 08.04.1996.
As per Article 54 the Limitation Act 1963, period of
3 years for a suit for specific performance starts from the
date fixed for the performance of the contract or if no such
date is fixed when the plaintiff has notice that the
performance is refused. Since it has been observed above
that the defendant had notice of refusal of plaintiff in the
month of April itself and since the second suit of the
defendant was filed on 24.05.1999, the same was beyond
three years limitation period and was barred by limitation
as per Article 54 of the Limitation Act.
In view of the above, this issue is decided in favour
of plaintiff and against the defendant and the suit is held to
be barred by limitation.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 62 –
12.2). ISSUE NO. 2:
Whether the suit is liable to be dismissed
under order 7 Rule 11 CPC ? OPD
No arguments were advanced by the parties
on this issue. Perusal of the W.S reveals that the ground
on which the said objection has been raised is the bar of
limitation. However, since the bar of limitation is not
apparent from the reading of the plaint and since Order 7
Rule 11 is a demurrers claim, the present issue is decided
in negative.
12.3). ISSUE NO.8:
Whether the alleged sale consideration of
Rs.8,40,000/- was the market value of the suit
property, if no, its effect ? OPD
It is the case of the plaintiff that the market
value of the suit property on the date of alleged oral
agreement dated 08.03.1996 was more than Rs.50 lakhs
and, therefore, there was no reason why the plaintiff would
sell the property for Rs.8,40,000/- only. To support his
case, the plaintiff has summoned PW12-Sh. Bharat
Sanwaria, Record Keeper, Sub Registrar Office, Mehrauli,
Delhi, who had brought the register in respect of the sale
deeds registered in respect of the properties in the same
vicinity i.e. property bearing no. E-4, Greater KailashCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 63 –
Enclave-I, New Delhi and thus proved Ex.PW1/26,
bearing no. E-89, G.K.-I, New Delhi & thus proved
Ex.PW1/27. He also proved Ex.PW1/28 i.e. the registered
sale deed dated 12.06.1996 with respect to property no.
R-209, G.K.-I, New Delhi and also Ex.PW1/29 i.e. the
registered sale deed dated 10.11.1995 with respect to the
property bearing no. S-387, G.K.-II, New Delhi and
Ex.PW1/30 i.e. the registered sale deed dated 22.11.1995
with respect to property no. N-94, G.K.-I, New Delhi.
Further Ex.PW1/31 i.e. sale deed pertaining to
property no. R-209, G.K-I, New Delhi was proved by
PW13-Sh. Dheeraj Kumar, witness from the office of Sub
Registrar-V, Mehrauli.
From a perusal of the said documents, it is clear that
the value of the suit property was definitely more that
Rs.8,40,000/- as the sale consideration mentioned in the
said sale deeds ranges from Rs.12 lakhs to around Rs.20
lakhs and it cannot be lost site of that it is a general
practice in the market to value the property in the sale
deeds at a price little higher than the circle rate but
definitely lesser than the market rates. Further the said sale
deeds only pertains to the single floors whereas the suit
property in question is comprised of two floors and a
terrace. Thus, the plaintiff has successfully proved that the
market value of the property at the relevant time was moreCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 64 –
than Rs.8,40,000/-.
The plaintiff also relied upon Ex.PW1/32 the report
of valuation of the government approved valuer and to
prove the said report the plaintiff examined PW7 Sh.
Paramjeet Singh. However, in the considered opinion of
this court, the evidence of said witness cannot be relied
upon as the witness has stated in cross examination that he
had carried out the valuation of the property on 30.05.1996
and the report was prepared on 19.02.2003, however, in his
affidavit of evidence Ex.PW7/A he states that he was
called by Sh. Harish Ramchandani to visit and survey the
suit property for the purposes of valuing the same, in the
month of February 2003. In the cross examination the
witness admitted that as per the valuation report, he visited
the property on 11.02.2003. Thus, contradictory statements
have been given by the witness in his testimony. Further,
even if the witness is to be believed that he had valued the
property in 1996 but had prepared the report in the year
2003 still the said report cannot be relied upon as it is not
possible for any person to prepare a report on the basis of
his memory after a lapse of around 7 years. Further, the
witness claims to have mentioned the exact date of his
inspection of the property in his report as 30.05.1996,
however, it is unbelievable that a person would remember
the exact date after a lapse of such a long period. It is alsoCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 65 –
pertinent to note that the witness in his cross examination
admitted to have prepared the report on the basis of
drawings, documents & oral information provided by the
plaintiff and not on the basis of his own inspection. He
also admitted that he was not provided with the plan of the
second floor of the suit property. Further, even the said
documents which allegedly formed the basis of the
valuation were not produced by the said witness or by the
plaintiff. In view of the same, Ex.PW1/32 and the
testimony of PW7 cannot be relied upon. However, in the
considered opinion of this court, the Ex.PW1/26 to
Ex.PW1/31 are sufficient to prove that the market value of
the suit property was more than Rs.8,40,000/-. Ex.PW1/26
to Ex.PW1/31 pertain to sale of a single floor and sale
consideration varies from 12.50 to 19.50 lacs. Further
Ex.PW1/26 to Ex.PW1/28 pertain to properties
admeasuring 200 to 208 sq. yards. However, the suit
property consists of two floors with terrace rights and
admeasures 251 sq. yards. Thus, it can safely be inferred
that the value of the suit property would in no case be less
than 30 to 40 lacs.
The plaintiff has also relied upon a newspaper report
Ex.PW1/33 regarding price under properties in G.K. Delhi,
however, the same has not been proved and hence cannot
be relied upon.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 66 –
It was argued by the Ld. Counsel for defendant that
the market value of the suit property at the time of oral
agreement dated 18.03.1996 was Rs.8,40,000/-. It has also
been stated in para 54 of the evidence affidavit Ex.DW1/A
that the market value of the suit property was between
Rs.8-8.50 lakhs and accordingly the sale consideration was
agreed at Rs.8,40,000/-. In support of his case, the
defendant has relied upon Ex.DW1/25 and Ex.DW1/26
which are the certified copies of the sale deeds of the
properties located in G.K.-I, New Delhi. However,
Ex.DW1/25 is the certified copy of the sale deed
pertaining to the Ground floor of property bearing no.
E-247, admeasuring 208 sq. yards for sale consideration of
Rs.10,25,000/-. Ex.DW1/26 is the certified copy of the sale
deed pertaining to the sale of 1/3 undivided share of the
property bearing no. N-239, admeasuring 300 sq. yards
consisting of 2 and half floors, for sale consideration of
Rs.8,00,000/-. The exhibition of the said documents was
objected by the plaintiff on the ground of mode, manner of
proof and authorship of the said documents. Since the said
documents were certified copies, a presumption has to be
raised u/s. 79 of Indian Evidence Act, 1872 (now section
78 BSA, 2023) and the said copies have to be presumed to
be genuine. Further the said documents have been proved
by DW2. However, it is pertinent to mention thatCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 67 –
Ex.DW1/25 only pertains to the ground floor, whereas, the
suit property pertains to the first and second floor and the
terrace rights. Thus, the value of the suit property would be
much more than the amount of sale consideration
mentioned in Ex.DW1/25. As far as Ex.DW1/26 is
concerned, the same pertains to 1/3rd undivided share in a
two and half story building and therefore is much less than
the suit property. Even otherwise as per the market trends
the undivided shares in the properties are valued at much
lesser prices than separate and independent properties with
well defined rights. Thus the defendant has failed to prove
that the market value of the suit property was
Rs.8,40,000/- at the time of alleged oral agreement to sell
dated 18.03.1996 and thus has failed to prove one of the
essential terms of an agreement to sell.
Further, the contention of the defendant with respect
to this issue is two folds and contradictory to each other.
On one hand, it was contended that the market value of the
property was Rs.8,40,000/- in the year 1996 and on the
other hand, Ld. Counsel for the defendant argued that the
sale consideration was fixed considering the sibling
relation between the parties. Also in the considered
opinion of this court, the second contention of the
defendant has no weight as in the pleadings of both the
parties, there are allegations about the bad conduct of the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 68 –
parties with respect to personal family relations. It has
been contended by the plaintiff in the plaint that the
mother of the plaintiff had executed the sale deed in his
name to avoid any dispute with respect to the same from
the defendants side. Similarly, it has been contended by
defendant no.1 in his pleadings that the plaintiff used to
torture his mother after obtaining the sale deed in his name
and created unbearable atmosphere for her due to which
she shifted with the defendant no.1. Further as per the
defendants themselves as stated in cross examination dated
03.04.2018, the plaintiff was in financial crises since about
April 1996. Thus, in these circumstances, it is improbable
that a sale consideration amount of lesser value than the
market rate would be agreed by the plaintiff.
Thus, in view of the above discussion the present
issue is decided in favour of the plaintiff and against the
defendant.
12.4). ISSUE NO.3.
Whether the suit property has been properly
valued for the purposes of court fees and
jurisdiction? OPP
The defendants have valued the suit at Rs.
8,40,000/- for the purposes of court fees and jurisdiction,
the same being the alleged sale consideration amount. As
per section 7 (x)(a) of the Court Fees Act, 1870, a suit for
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 69 –
Specific Performance has to be valued at the amount of
sale consideration and not at the market value of the suit
property. Thus, the present issue is decided in favour of
defendant.
12.5). ISSUE NO.4 :
Whether the present suit is a counter blast of
suit no. 456/99? OPD
As per the case of the defendant the oral agreement
to sell the suit property was entered into on 18.03.1996. On
05.04.1996 the defendant no.1 with his family, shifted to
the suit property. On 08.04.1996 the stamp papers for
execution of the sale deeds were purchased and thereafter
the draft of the sale deeds were got typed on the same,
however, despite repeated requests and reminders, the
plaintiff failed to appear before the Sub Registrar for the
purposes of execution and registration of the sale deeds.
However, the plaintiff did not file any suit for the specific
performance of the oral agreement dated 18.03.1996 up till
24.05.1999 (the date of filing of the suit of defendant).
Even no legal notice was issued to the plaintiff for the said
purpose until legal notices dated 07.02.1997 Ex.P1 and
17.02.1997 Ex.P2 were issued by the plaintiff. Even after
replying to the notice on 20.02.1997 Ex.P3 and informing
the plaintiff that legal action would be taken, the defendant
did not file the suit for around 2 years and 3 months and
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 70 –
filed the same only on 24.05.1999. It has been stated in
para 20 of plaint in second suit that after receiving the
legal notice of the plaintiff, the defendant tried to convince
the plaintiff to execute the sale deeds, personally as well as
through other family members and common family
friends, however, there are no details whatsoever as to the
persons through whom the plaintiff was approached, the
place where they met, the date of meeting and contacting
etc. There is nothing on record to prove even a single
conversation between the parties for the said purpose.
Even the pleadings of defendant do not mention any dates
of making such request to the plaintiff and it has been
simply stated that such requests were made several times.
Thus there is no evidence with respect to the above facts.
Further, the defendant’s pleadings are silent with respect to
the steps taken by the defendant for the completion of the
contract, between the period 08.04.1996 uptil 26.03.1997
i.e. the date of the reply notice of defendant requesting to
complete sale transaction.
It has also been averred in para 21 of the plaint in
the second suit that the defendant did not approach the
court considering that the plaintiff is his elder brother and
believing that good sense would prevail upon him.
However, admittedly the parties were contesting litigation
since early 1997, therefore, there is no reason why the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 71 –
defendant would not file a suit despite refusal of plaintiff
to honour his commitment despite engaging an advocate in
the first week of April 1996 itself as stated by DW1 in his
cross examination dated 03.04.2018.
Also in a suit for specific performance, the parties
instituting the suit has to show the ‘willingness’ to perform
the contract and there are a catena of judgments wherein it
has been held by Hon’ble Supreme Court that a
willingness of a party is reflected from the conduct of the
party suing in taking proactive steps for the completion of
the contract. If a party is unable to show that it had actively
pursued with the other party for the completion of the
contract and has diligently taken steps for the same and has
also instituted the legal proceedings without any delay and
has not waited to file the suit till the fag end of the
prescribed limitation period, then it can be said that the
party was willing to perform the contract. It has already
been discussed above that the defendant has failed to lead
any evidence in this regard.
Further it has been stated in para 25 of the plaint in
second suit that the cause of action to file the suit also
arose on 05.03.1999 when the plaintiff received the
summons of the first suit.
From the above it is clear that the suit of the
defendant i.e. the second suit is a counter blast to the suit
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 72 –
of the plaintiff and the issue is accordingly decided in
favour of plaintiff and against the defendant.
12.6). ISSUE NO. 9
Whether the plaintiffs have carried out the
construction, addition, alteration and / or
renovation in their existing suit property, if
yes, its effect? OPP
To prove this issue, the defendant has relied upon
the evidence of one Sh. M.L. Girdhar whom he alleges to
have raised the construction for him on the 2 nd floor of the
suit property, however, due to the demise of said Sh. M.L.
Girdhar, the said witness could not be examined. However,
his affidavit evidence was filed by the defendant, though
was never tendered. In these circumstances, the defendant
sought to prove the signature of Sh. M.L. Girdhar on his
affidavit of evidence bringing his son into the witness box
as D1W2 Sh. Rashim Girdhar. The said witness identified
the signatures of Sh. M.L. Girdhar on his affidavit
Ex.D1W2/1 and also deposed that the contents of the said
affidavit are correct. However, in his cross examination the
witness admitted that he had no personal knowledge of the
contents of the affidavit nor the same was prepared and
signed in his presence. He also stated that he was not
associated with the proprietorship company of his father
and his father was handling the same independently
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 73 –
whereas he was handling his own company. He also stated
that he cannot produce any record in respect of the
construction raised at the suit property. He also does not
state in his evidence as to why and how he believes the
contents of the affidavit Ex.D1W2/1 to be correct.
The evidence of Sh. Rashim Girdhar is of no weight
as the said witness only testified as to the contents of the
affidavit of Sh. M.L. Girdhar of which he admitted to have
no knowledge about. It is also proved that he also did not
have any concern with the company of Sh. M.L. Girdhar.
He has also failed to produce any record in respect of the
alleged construction. Thus in the absence of any direct
knowledge of the transaction and in the absence of any
basis to show his knowledge of the transaction, as to which
he was testifying, his evidence is of no value. Further, the
suggestion of the plaintiff that Sh. M.L. Girdhar and
defendant no.1 were the members of the same club has not
been denied by the witness. Merely identifying the
signatures of Sh. M.L. Girdhar on Ex.D1W2/1 does not
lend any support to the case of the defendant as the said
affidavit was never tendered and its credibility could not
be tested by way of cross examination.
The affidavit of evidence of D1W8 & D1W9 i.e. Ex.
D1W8/A & D1W9/A respectively which are verbatim the
same, also contains a mention that defendant no.1 raised
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 74 –
additional construction on the barsati floor and converted
the same into a complete second floor. However, in the
cross examination, D1W8 stated that he does not know
what was the exact extent of construction at the time of
party at the barsati floor. He also stated that he does not
know the exact date, month or even time of renovation
carried out at the barsati floor. It was further stated that he
cannot even tell whether the same was carried out after one
year, two years or five years of taking over of the
possession. D1W9 in his cross examination stated that at
the time of party at the barsati floor, there might be one or
two rooms and open space. However, as per the defendant
no.1 himself the extent of construction at the time of
purchase was one hall with bathroom and a lobby. D1W9
also stated that he cannot even tell whether the
construction was carried out after one year, two years or
five years of taking over of the possession of the suit
property. Thus both the witnesses could not lend any
support to the case of the defendant with respect to the fact
of construction by the defendant and even the extent of
construction and thus cannot be relied upon. It was also
argued by the counsel for the plaintiff that the evidence of
D1W8 & D1W9 is beyond pleadings. This court finds
merit in the contention of the plaintiff as it has not been
pleaded by the defendant that he had hosted a party at the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 75 –
suit property after taking possession of the same and
therefore, any evidence led with respect to the fact of
hosting of party would be beyond pleadings and cannot be
considered.
Apart from the above evidence, the defendant has
not led any documentary evidence of the said construction
allegedly carried out by him. No bills pertaining to
construction, no letter seeking sanction/permission to raise
construction, no approved site plan, or completion
certificate etc. has been produced by the defendant.
Further, the defendant has also not placed on record
any document to show that any intimation was given to the
MCD by him regarding the construction being carried out
by him on the second floor of the suit property after 1996,
for the purposes of payment of house tax.
In his cross examination dated 03.04.2018, the
defendant no.1 admitted that he had not applied for any
sanction for the construction of the 2nd floor. A question
was also put to the defendant no1 as to the extent of
construction on the second floor at the time he shifted to
the suit property. It was stated by the defendant that it
consisted of one hall, two washrooms, one lobby and one
kitchen, whereas, in his examination in chief Ex.DW1/A it
has been stated that the barsati floor consisted of one hall,
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 76 –
one bathroom and a lobby uptill April 1996, whereas in the
original sanction plan dated 21.10.1996-Ex.P6 which is an
admitted document, the barsati floor has been shown to be
consisting of two bedrooms, two washrooms, one dressing
room and the lobby.
Further defendant no.1 in his cross examination also
stated that the drawing, dinning, one bedroom with
washroom, a store and two servant quarters on the terrace
with washrooms were constructed by him after shifting.
Whereas in the chief examination it has been stated in para
33 that the defendant no.1 constructed one drawing room,
one bedroom, two bathrooms, one kitchen and a store on
the second floor and partitioned the hall converting the
same into two bedrooms. It is also stated that the two
servant rooms and one bathroom was constructed by him
on the third floor. Thus the defendant no.1 has given
contradictory statement in the chief-examination and in his
cross-examination. Also in the pleadings of the defendant
there is no mention whatsoever about the construction on
the terrace. In the cross examination of the plaintiff it has
been stated that when he purchased the property, it
consisted of a servant room with toilet on the terrace.
There is no suggestion in the cross examination that the
terrace floor did not have an existing servant room with
toilet. In fact both the parties during the arguments
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 77 –
admitted that one servant room with a washroom was
already existing on the terrace for the use of first and the
second floor at the time of purchase by the plaintiff. In
para 1 of the plaint of the first suit, it has been stated that
the terrace consisted of two servant quarters. The said
averment has not been specifically denied by the
defendant. Thus clearly inconsistent stand has been taken
by the defendant with respect to the construction of the suit
property. The defendant has also failed to prove the
knowledge of the plaintiff about the construction in the suit
property by the defendant, as averred by him.
Thus in the considered opinion of this court, the
defendant has failed to prove that he had carried out the
construction of one drawing room, one bed room, two
bathrooms, one kitchen and a store adjacent to the newly
added bed room, partition in the existing hall converting
the same into two bedrooms, on the second floor and two
servant rooms and one bathroom on the third floor as
stated in para 33 of his affidavit of evidence Ex.DW1/A.
The plaintiff has also led some amount of evidence
to prove that the construction was carried out by him on
the second floor. The plaintiff has relied upon the evidence
of PW1 and PW4 to support his case.
The plaintiff in his examination-in-chief has stated
in para 4 that he had carried out the construction of the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 78 –
second floor of the suit property by adding one room,
kitchen, drawing room and toilets and also got the
electricity load sanctioned and enhanced to 11 kw in the
suit property. The plaintiff has also failed to produce any
documentary evidence in support of the same. However,
there is no specific cross-examination of the plaintiff on
this aspect and even Ex.P6 has been admitted.
Further, a perusal of Mark PX/Ex.PW4/D2/4 (colly)
which are the self assessment forms for the year 2004-05,
2005-06, 2006-07 & 2009-2010 shows that with the self
assessment form for the year 2004-05 which was filed by
defendant no.1 with the MCD, there was a report of Govt.
Approved Valuer-Sh. Prakash Ahuja, wherein the suit
property has been shown to have been constructed in the
year 1986 & 1996. However, in the cross examination
dated 15.10.2016 it was stated by the counsel for the
defendant that the second floor of the suit property was
constructed by the defendant after 1996.
Ex.PW4/D2/4 (colly) was exhibited during the
cross-examination of PW4 at the instance of counsel for
defendant. This court is conscious that as per the
provisions of Section 139 of Indian Evidence Act, 1872
(section 144 of BSA, 2023), a witness summoned to
produce the documents cannot be cross examined with
respect to the contents of the same. However, in the cross
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 79 –
examination the counsel for the defendant got certain part
of the record exhibited including Ex.PW4/D2/4 (colly) and
thus in the considered opinion of this court the said
documents which were a part of the original record can be
read and looked into.
Though no specific and clear evidence was led by
the plaintiff to prove that the construction was carried out
by him. However, in view of the contradictory statements
of DW1 with respect to the extent of construction at the
time of purchase as well as the extent of construction
carried out by him, discussed in detail above, it is held that
on the preponderance of probability, the plaintiff has
successfully proved that the construction was carried out
by him in the suit property.
It is pertinent to state here that this court finds merits
in the contention of the plaintiff that even if it is proved
that the defendant no.1 had carried out the construction on
the suit property after obtaining the possession of the
same, it would add no weight-age to his case as the
carrying out of construction does not entitle him to specific
performance until and unless he is able to prove the oral
agreement between the parties.
In view of the above discussion, the present issue is
decided in favour of the plaintiff and against the defendant.
12.7). ISSUE NO.6 :
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 80 –
Whether the plaintiff has entered into oral
agreement on 18.03.1996 to sell and purchase
of the suit property with the plaintiff as
alleged and whether the payment of
Rs.8,40,000/- is by way of consideration
for the said alleged agreement? OPP
It is a settled law that heavy burden of proof lies
upon the plaintiff to prove that an oral agreement to sell
was concluded between the parties and the parties were at
consensus-ad-idem. In H.R. Subramanya Shastry and
Others Vs. Sri K.Mohan Kumar – 2021 SCC OnLine KAR
14857, the Hon’ble Kerala High Court in para 33
discussed the law laid down by the Hon’ble Supreme
Court with regard to the specific performance of oral
agreement of sale. The para 33 is reproduced hereunder:-
“33. The Hon’ble Supreme Court while considering the
provisions of Section 54 of the Transfer of Property Act with
regard to specific performance of oral agreement of sale sought
in the case of Brij Mohan and Others -vs- Sugra Begum and
Others reported in (1990) 4 SCC 147 at paragraphs 20 and 22
has held as under:
“20. We have given our careful consideration to the
arguments advanced by Learned Counsel for the parties
and have thoroughly perused the record. We agree with
the contention of the Learned counsel for the appellants
to the extent that there is no requirement of law that an
agreement or contract of sale of immovable property
should only be in writing. However, in a case where the
plaintiffs come forward to seek a decree for specific
performance of contract of sale of immovable property
on the basis of an oral agreement alone, heavy burden lies
on the plaintiffs to prove that there was consensus ad-
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 81 –
idem between the parties for a concluded oral agreement
for sale of immovable property. Whether there was such
a concluded oral contract or not would be a question of
fact to be determined in the facts and circumstances of
each individual case. It has to be established by the
plaintiffs that vital and fundamental terms for sale of
immovable property were concluded between the parties
orally and a written agreement if any to be executed
subsequently would only be a formal agreement
incorporating such terms which had already been settled
and concluded in the oral agreement.
22. In the oral evidence P.W. 1 Shri Brij Mohan,
plaintiff No. 1 stated that in the meeting arranged in
the 3rd week of April, 1979 Shri Ibrahim and Shri
Arif Ali came to the plaintiff’s shop and then they
all went to the residence of defendant No. 1. The
second plaintiff also accompanied them. The
husband of defendant No. 1 Shri Yunus was also
present at the meeting. He was introduced to them
insisted for Rs.10,00,000 as consideration of the
suit property and told the plaintiffs that she would
obtain the permission from the ceiling au- thority.
Shri Brij Mohan then stated that they raised their
offer to Rs.8,00,000 defendant No. 1 told them that
she would think over for two or three days and
inform them through Shri Arif Ali, Thereafter Shri
Brij Mohan states regarding the bargain held on
3.5.79. According to him he himself, second
plaintiff and Mr. Ibrahim Moosa went to Shri Arif
Ali on 3.5.79. Shri Arif Ali told them that defendant
No. 1 was not willing to sell the suit property for
less than Rs.10,00,000. And if they were willing to
purchase for Rs.10,00,000 then they were welcome
to do so at any time. Shri Brij Mohan then said that
they agreed to purchase the suit property for
Rs.10,00,000 and asked Shri Arif Ali to get the
confirmation from defendant No. 1. Shri Arif Ali
spoke to defendant No. 1 on telephone and then
informed that defendant No. 1 was willing to sell
the property to them for Rs.10,00,000. Shri Arif Ali
then said that they would buy the stamps for
agreement and fixed 6.5.79 morning for a meeting
with defendant No. 1. From a perusal of the aboveCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 82 –
evidence it would be abundantly clear that nothing
was settled on 3.5.79 except the fact that the
plaintiffs had conveyed their approval to purchase
the suit property for Rs.10,00,000 and Shri Arif Ali
after speaking to defendant No. 1 was willing to sell
the property for Rs.10,00,000. Admittedly at the
same time a meeting was fixed with defendant No.
1 on the morning of 6.5.79. According to the case
set up by defendant No. 1 she had never agreed to
obtain the permission from the ceiling Authority. It
would be important to note that no averment was
made in the plaint that defendant No. 1 had agreed
to obtain the permission from the ceiling Authority
in the meeting held in the third week of April, 1979.
However, Shri Brij Mohan plaintiff has sought to
introduce this fact for the first time in his statement
in the Court that defendant No. 1 had told them in
the meeting held in the third week of April, 1979
that she would obtain the permission from the
ceiling Authority. We are unable to accept the
above statement of Shri Brij Mohan that in the
meeting held in the third week of April, 1979 itself
the defendant No. 1 had agreed that she would
obtain the permission from the ceiling Authority. It
is an admitted position that till the meeting held in
the 3rd week of April, 1979 the plaintiffs had
offered Rs.8,00,000 and the first defendant had told
them that she would consider and communicate her
views through Shri Arif Ali some time later. We
agree with the conclusion of the High Court in this
regard that without first determining the sale price,
it was quite unlikely that the parties would have
bargained as to who should obtain the clearance
under the Urban Land Ceiling Act. It was known. to
the parties that until the clearance under the Urban
Land Ceiling Act and the Income Tax clearance, the
property will not be registered. The High Court was
right in concluding that it is unbelievable that in the
third week of April, 1979 when still there was a
wide gap of Rs. 2,00,000 in the price payable for
the suit building the parties would have stipulated
about the condition as to who should obtain the per-
mission under the Urban Land Ceiling Act. It is
further pertinent to mention that even in ExhibitsCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 83 –
A-1 and A-2 which are drafts of agreement of sale
there is no reference to the oral agreement said to
have taken place on 3.5.79. In case all the terms had
already been concluded in the oral contract between
the parties on 3.5.79 and only a formal agreement
was to be reduced in writing on 6.5.79, then in that
case there ought to have been a mention in the draft
agreement exhibits A-1 and A- 2 regarding the oral
agreement of 3.5.79. According to the statement of
Shri Brij Mohan plain- tiff No. 1 ,himself, nothing
was discussed with defendant ‘No. 1 herself and for
that reason a further meeting was fixed at the house
of the first defendant in the morning of 6.5.79. Shri
Arif Ali may have been an Income Tax Advocate
looking after the income tax and wealth tax matters
of defendant No. 1 but he was not a General Power
of Attorney holder to negotiate or settle any terms
with regard to any transaction of immovable
property belonging to defendant No.1. It is further
important to note that even in the agreement to sell
exhibit B-4 dated 22.6.1979 between defendant No.
1 and defendants Nos. 3 and 4, no responsibility
had been taken by the defendant No. 1 for obtaining
the clearance from the Urban Land Ceiling
Authority. The High Court in these circumstances
rightly believed the contention of the defendant No.
1 that the agreement fell through because the
plaintiffs insisted that defendant No. 1 should
obtain the permission from the Urban Land Ceiling
Authority while defendant No. 1 did not agree for
the same. There was no clinching evidence to show
that this stipulation was thought of by the parties on
any day prior to 6.5.79. Thus in the above
circumstances when the parties were consciously
negotiating about the bringing of no objection
certificate from the Urban Land Ceiling Authority
and the case put forward by defendant No. 1 in this
regard has been believed there is no question of
applying the principle contained in Section 55 of
the Transfer of Property Act. The general principle
contained in Sec. 55 of the Transfer of Property Act
regarding rights and liabilities of buyer and seller
can only apply in the absence of a contract to the
contrary and not in a case where the partiesCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 84 –
consciously negotiated but failed in respect of any
term or condition, as a result of which the
agreement itself could not be settled or concluded.
Once it is held, established in the present case that
no agreement was finally concluded or settled on
6.5.79 and negotiations failed and before this date it
was never settled that defendant No. 1 would bring
the no objection certificate from Urban Land
Ceiling Authority, there is no question of applying
general principles contained in Section 55 of the
Transfer of Property Act.”
It is the case of the defendant no.1 that he and the
plaintiff entered into an oral agreement dated 18.03.1996
for the sale of the suit property for a sale consideration of
Rs. 8,40,000/- out of which Rs.5,60,000/- was paid to the
plaintiff by way of two cheques on the same date and the
payment of Rs.2,80,000/- was paid to the plaintiff by way
of cheque on 04.04.1996 at the time of taking over the
possession of the suit property. It is his case that the oral
agreement was arrived at in the presence of Sh. Lilu
Moolchandani & Sh. Prem Chhablani. It is also his case
that even the possession of the suit property was taken in
the presence of the said persons. It is further his case that
at the time of taking the possession, a file containing the
title document of the suit property was handed over to him
by the plaintiff which he had handed over to his employee
Sh. Ved Prakash. It has also been averred that the
defendant no.1 shifted to the suit property on the 5 th week
of April.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 85 –
Perusal of the record shows that since the very
inception the defendant no.1 has been improvising his case
by additionally adding the facts and events. In the reply to
the legal notice dated 20.02.1997 Ex.P3 the only story set
up by the defendant is about the purchase of the suit
property on payment of sale consideration. There is no
mention whatsoever about the alleged oral agreement
dated 18.03.1996. No terms of agreement as pleaded in the
plaint and WS filed by defendant no.1 in both the suits, has
been set up in the said notices. There is no mention about
the date of shifting of defendant no.1 to the suit property
and even the amount and mode of payment of sale
consideration has not been stated.
In the subsequent reply dated 26.03.1997 Ex.P5, the
defendant no.1 details the amount and the mode of
payment. However, the reply was still silent as to the
factum of any previous oral agreement.
In the plaint filed in the second suit and the WS in
the first suit the defendant no.1 for the first time sets up an
oral agreement dated 18.03.1996 and its terms and
conditions. He also for the first time pleads the presence
of witnesses to the agreement to sell, the date of handing
over of possession in the presence of witnesses and the
handing over of the three original sale deeds executed by
Smt. Sushila Ramchandani and the file containing water
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 86 –
and electricity bills. For the first time, it was stated that the
stamp papers for execution of sale deeds were purchased
by one Sh. Ravi Mishra.
In his affidavit of evidence Ex.DW1/A, defendant
no.1 further improvise his story and for the first time
disclosed the details of the persons with whom the plaintiff
was alleged to have entered into a previous sale transaction
and also stated that there was exchange of correspondence
with the said persons on the advice of defendant no.1 and
for the first time, the defendant no.1 filed the said
correspondences in his evidence. For the first time it was
stated that the plaintiff told him that he can take the
possession of the suit property any time before 17th April
1996 on paying the final consideration and he shifted on 5 th
April 1996. It was also stated for the first time that he had
handed over the documents file to his employee Sh. Ved
Prakash for keeping the same in the safe custody. The
mode & manner of taking over of the possession was
stated for the first time. It was also for the first time stated
that the possession was taken in the presence of Sh. Lilu
Moolchandani & Sh. Prem Chhablani. It is also important
to note that the date of shifting to the suit property was
first time specifically stated to be 05.04.1996. For the first
time, it was stated that one Sh. A.P. Sareen had provided
him the assistance in shifting to the suit property. The date
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 87 –
of handing over of money for purchase of stamp papers to
Sh. Ravi Mishra was also stated for the first time. The
details of the person through whom the construction was
carried out was mentioned for the first time.
Thus para 10, 11, 18, part of para 19, para 20, 23 to
26 of the affidavit of evidence of defendant no.1 are
beyond pleadings.
In the pleadings and even in the examination in
chief, it was vaguely stated that various discussions and
negotiations took place between the plaintiff and defendant
no.1 to settle and finalize the sale consideration and the
terms and conditions of sale. No dates of any such
meetings or of offer to sell the property, was stated in the
chief examination. When a specific question was put to
the witness in this regard, in the cross examination dated
07.03.2018, it was stated by defendant no.1 that 2-3
meetings took place in January 1996, however, no dates
were told by the defendant no.1. It is pertinent to note that
in the entire pleadings, the defendant has been specific
about the dates and events but has conveniently skipped to
mention the dates of the negotiation meetings.
Further, in the plaint filed in the second suit, it has
been stated in para 9 of the plaint that the said meetings
took place in the presence of the family members.
However, in the cross examination dated 07.03.2018 it was
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 88 –
stated that no third person was present in the meetings of
negotiations.
Also it is pleaded in the pleadings of both the suits
that the possession of the suit property was handed over by
the plaintiff on 04.04.1996 on the receipt of the remaining
sale consideration and since then the defendant is in
exclusive possession of the same. However, in the
examination in chief, it was stated that the third cheque of
remaining sale consideration was handed to the plaintiff in
the presence of Sh. Lilu Moolchandani & Sh. Prem
Chhablani at the office of defendant no.1. It has been
stated that from his office, defendant no.1, the plaintiff, Sh.
Lilu Moolchandani & Sh. Prem Chhablani went to the suit
property, where, the plaintiff handed over the possession
of the suit property by removing locks from the suit
property and the defendant no.1 had put his own locks. In
contradiction to the same, it was stated in the cross
examination that he does not remember where the third
cheque was handed over and additionally stated that the
same was handed over in the presence of Ravi Mishra. It
was also stated that Sh. Lilu Moolchandani & Sh. Prem
Chhablani were only present at the time of final meeting
and at no point thereafter. When specific questions were
put to the defendant regarding the arrival and presence of
Sh. Lilu & Sh. Prem at the time of final meeting, defendant
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 89 –
no.1 simply stated that he does not remember the same. It
was also stated that he does not remember as to how long
the meeting lasted, even the approximate duration could
not be stated. Thus the defendant no.1 has contradicted his
own case as to the above facts.
It is also important to note the defendant has failed
to explain as to why the final meeting dated 18.03.1996
took place at his office and not at the place of partnership
business. A specific question was put to the defendant in
this regard in cross examination dated 17.03.2018. It was
stated by the witness that the meeting took place at his
office as the partnership business shop was in a market and
the meeting could not have been held there. However, it
was stated in the cross examination on the same date that
the previous negotiation meeting had taken place at the
place of partnership business and at home, and therefore, it
is difficult to understand why the meeting could not have
taken place at the same place which was more convenient
for both the parties.
In the examination in chief, it has been stated in para
23 that the files of original documents handed over by the
plaintiff to defendant no.1 was handed over by him to his
employee Sh. Ved Prakash for keeping the same in safe
custody. Though it has already been discussed above that
the said part of the chief examination is beyond pleadings,
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 90 –
yet it is important to note that the defendant has even failed
to prove the same. Sh. Ved Prakash- D1W7 in his evidence
could not prove that he was the employee of defendant
no.1, neither he stated as to in what capacity he is working
with the defendant no.1. He deposed in his examination in
chief that plaintiff had handed over the file containing the
title documents of the suit property to defendant no.1 who
gave it to him to keep in safe custody. However, in his
cross examination he stated that he did not even open and
check the file and was not aware of the contents of the
same. Since the witness was not aware as to what file was
handed over to him, his evidence is of no value. It is also
important to note that in a zeal to support the case of the
defendant the said witness stated that the file was handed
over in the presence of Sh. Lilu Moolchandani & Sh. Prem
Chhablani, whereas, it has already been discussed above
that defendant no.1 in his cross examination admitted that
the said persons were not present at any time after the final
meeting dated 18.03.1996. Thus, the evidence of the said
witness is not trustworthy, is beyond pleadings and in no
manner supports the case of the defendant.
It is also pertinent to mention that in his cross
examination dated 03.04.2018 it was stated by defendant
no.1 that he did not check the contents of the file at the
time of handing over by the plaintiff but checked it
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 91 –
subsequently, whereas, in his affidavit of evidence as well
as in his pleadings, it is the case of the plaintiff that he has
checked the contents of the same when the same was
handed over to him and it has also been stated in para 23 of
his affidavit of evidence that he handed over the file to Sh.
Ved Prakash after checking the same and questioning the
plaintiff about the missing title documents.
The defendant no.1 has not been able to examine Sh.
Lilu Moolchandani & Sh. Prem Chhablani with respect to
them being the witnesses to the alleged oral agreement to
sell dated 18.03.1996 as well as to the factum of handing
over the possession of the suit property and the receipt of
consideration. It was stated that the said witnesses had
expired before their evidence affidavit could be tendered in
evidence. However, the defendant no.1 made an attempt to
make the said affidavits of evidence of the said witnesses a
part of the evidence by examining other witnesses with
respect to the signature of the said persons on their
untendered evidence affidavits. To prove the untendered
evidence affidavits of Sh. Lilu Moolchandani & the facts
stated in the said affidavit, the defendant filed an affidavit
of evidence of Sh. Naresh Moolchandani Ex.D1W6/1 who
was the brother of Sh. Lilu Moolchandani. In the said
affidavit Sh. Naresh Moolchandani stated the facts
regarding the transaction between the plaintiff and
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 92 –
defendant no.1 as witnessed by Sh. Lilu Moolchandani and
further stated to have heard of the same from Sh. Lilu
Moolchandani. Thus, the Ex.D1W6/1 was merely hearsay
evidence also. The fact remains that even the said affidavit
of evidence was not tendered and to prove the signatures
of Sh. Naresh Moolchandani on Ex.D1W6/1 the defendant
examined D1W6 Sh. Dinesh Moolchandani who was the
son of Sh. Naresh Moolchandani. Neither the affidavit of
Sh. Lilu Moolchandani nor Sh. Naresh Moolchandani can
be considered as evidence as the said witnesses never
entered into the witness box. The judgments in Krishan
Dayal v. Chanduram 1967 SCC online Del. 134 &
Somagutta Erapa Reddy (died) & Ors. v. Palapandia
Chinna Gangappa & Ors. (2001) SCC online. AP 1332,
relied upon by the Ld. Counsel for the defendant regarding
the evidentiary value of the evidence of a dead witness are
not applicable to the fact of the present case.
Further, the said affidavits also state about the
presence of Sh. Lilu Moolchandani & Sh. Prem Chhablani
at the time of handing over of the possession and the
payment of final consideration amount and therefore, even
if the said affidavits were to be considered, the same could
not be relied upon as being not trustworthy as it has
already been discussed above that DW1 had deposed that
Sh. Lilu Moolchandani & Sh. Prem Chhablani were not
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 93 –
present at the time of handing over of the possession etc.
As far as the presence of Sh. Prem Chhablani is concerned,
the defendant no.1 attempted to prove the contents of his
affidavit by examining his wife Smt. Parpati Chhablani by
filing her evidence affidavit in this regard. However, again
Smt. Parpati Chhablani was not examined for the reasons
undisclosed and the defendant no.1 summoned the record
from the office of Smt. Parpati Chhablani to prove the
signatures of Smt. Parpati on her untendered evidence
affidavit and examined D1W5 in this regard. However, for
the same reasons as already stated in the previous
paragraphs with respect to evidence of Sh. Lilu
Moolchandani neither the affidavit of Sh. Prem Chhablani
nor Smt. Parpati Chhablani can be looked into. No witness/
employee from the office of defendant no.1 were examined
to prove the presence of the plaintiff as well as the above
mentioned persons on the date of the alleged meeting.
Coming to the terms of oral agreement as alleged by
the defendant in his pleading, it is pertinent to note that the
same are very vague and general terms. The terms which
shall form the essence of an agreement to sell have not
been averred by the defendant. Though specific date is
stated to have been agreed for the final payment and
handing over of possession, strangely the parties seem to
have not agreed upon any date of execution of sale deed.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 94 –
There is no mention about the date on which the plaintiff
shall execute the sale deed in favour of defendant no.1, the
parties have not bound themselves to any specific dates for
completion of the transaction, there are no terms as to the
consequences of non compliance of the terms of the
agreement, how and in what manner the possession of the
suit property shall be handed over to the defendant when
the plaintiff shall vacate the suit property and thus it is
clear that the defendant has not disclosed and pleaded the
essential terms of the alleged oral agreement to sell.
Further it is very strange that parties have agreed that sale
deed shall be executed after handing over of the possession
and full payment even though there were no compliance to
be carried out by the plaintiff or the defendant post the
above event, no reasons have been assigned as to why the
execution of the sale deed was to take place post payment
and handing over of possession. Also as already discussed
above, the said terms and the factum of the oral agreement
came to be disclosed for the first time in the pleadings of
the suit and no mention whatsoever was contained in the
first correspondence between the parties i.e. the reply
dated 20.02.1997 & 14.03.1997 issued by the defendant to
the legal notices of the plaintiff. It is a general tendency
that if certain facts exist at a particular point of time, any
person would disclose the same at the very first instance,
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 95 –
however, the same has not been done in the present case.
In T. Muralidhar Vs. PVR Murthy – 2014 SCC
Online Del 2326, it was observed by the Hon’ble High
Court of Delhi as follows:
“42. In the judgment reported at 2011 (125) DRJ 570 Braham
Singh v. Sumitra & Ors. relied upon by Mr. Ankit Jain,
learned counsel for the defendant it was held as follows:
” 4. Some of the essential ingredients of an
Agreement to Sell an immovable property are (i)
identity of vendor and purchaser (ii) complete
description of the property subject matter of the
agreement (iii) amount of consideration to be paid by
the purchaser to the seller (iv) time within which the
agreement is to be performed and (v) earnest money
if any paid to the vendor, if one of these essential
ingredients are missing, the agreement between the
parties would not amount to concluded contract. A
Division Bench of this Court in Mirahul Enterprises
v. Mrs. Vijaya Srivastava, AIR 2003 Delhi 15
referring to the provisions contained in Section 10 of
Specific Relief Act, observed that a true contract
requires the agreement of the parties, freely made
with full knowledge and without any feeling of
restraint and the parties must be ad-idem on the
essential terms of the contract and in case it is an
Agreement to Sell of immovable property, the law
requires that it must certainly identify the property
agreed to be sold and the price fixed as consideration
paid or agreed to paid.” (Underlining by us)
43. It is trite that the ingredients necessary to make
out a legal, valid and enforceable agreement to sell
include (i) the date of the agreement; (ii) the
particulars of the consideration; (iii) certainty as to
party i.e. the seller and the purchaser (iv) certainty as
to the property which was the subject matter of the
agreement (v) certainty as to other terms relating to
probable cost of conveyance to be borne by each of
the parties (vi) time within which the conveyance of
the property was to be effected. There must have
been clear consensus between the parties about theCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 96 –
above stipulations and the parties must be ad-idem.
(Ref : 63 (1996) DLT 52 Aggarwal Hotels (P) Ltd. v
Focus Properties (P) Ltd.) In the event of any of the
above constituents missing, it has to be held that
there was no valid contract at all.
xxxxx
48. Learned counsel for the plaintiff has carefully
taken us through the plaint as well as documents
which were filed by him before the learned Single
Judge. In the case in hand as well, other than vaguely
pleading an oral agreement, the plaint does not even
suggest the date, month or year when such
agreement was arrived at between the parties. The
appellant has set up a plea that the agreement to sell
was for a sale of the flat in question. However,
admittedly the promised agreement to sell never
came into existence. No time or mode of execution
of the conveyance or transfer of property is pleaded
in the plaint nor is discernible from any of the
averments or the documents filed by the appellant.
49. The assertions in the plaint set out above as well
as the documents relied upon by the plaintiff would
show that the plaintiff has failed to disclose
existence of any valid /enforceable agreement to sell
entered into or executed between the parties in his
favour with regard to the suit property. Even if it
could have been held that there was any agreement
to sell, none of the essential terms thereof are
disclosed. The plaintiff is unable to point out any
date or time when he came to occupy the suit
property or to support it by any averment in the
plaint or document. The letter from the defendant
(relied upon by the plaintiff) is too contrary. It is trite
that only lawful settled possession would be
protected by law.
The plaintiff has therefore, been unable to displace
any of the findings of the learned Single Judge or the
conclusion that the plaint failed to disclose cause of
action.”
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 97 –
The defendant has also relied upon the drafts
of the sale deed prepared by him for completing the
alleged sale transaction between the parties. The same
were marked as Ex.DW1/10 to DW1/12. An objection was
raised to the same by the plaintiff on the ground that the
same were unexecuted and therefore have no evidentiary
value in the eyes of law and are not capable of being
proved as the same are not signed. In the considered
opinion of this court, the said sale deeds have no
evidentiary value as the same are the documents prepared
by the defendant himself and are unsigned and there is no
averment that the said drafts were shared with the plaintiff
at any point of time or were approved by the plaintiff.
Further, no evidence whatsoever has been led to prove the
said document. Merely typing of the contents of a deed on
a stamp paper does not prove the case of the defendant.
However, even if the said documents were to be looked
into, the same would not support the case of the defendant
as the drafts of the sale deed relied upon by the defendant
are very vague and general. It contains no mention
whatsoever of any prior oral agreement to sell dated
18.03.1996 between the parties. It is drafted in such a
fashion that from a reading of it, it appears to be the first
and the last agreement between the parties. It has been
simply stated that the vendor ‘has agreed to sell’. There is
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 98 –
no mention as to when the defendant no.1 came into
possession of the property. It is only stated as follows:-
“and whereas the entire first floor and barsati floor of the
property under sale is in possession/occupation of the
purchaser who also is in physical possession of the servant
room on the terrace floor of the property”.
Again there is no mention that the purchaser is in
occupation of premises under the oral agreement to sell.
There is also no mention as to when the purchaser came
into possession.
It is pertinent to note that there is a change in the
font of the words ‘purchaser who also is’ in the above
mentioned clause. The same appears to have been
incorporated at a later stage and appears to be typed by a
typewriter by first putting a whitener on the original
content of the clause.
There is no reference whatsoever to the previously
agreed terms and conditions between the parties and even
contains the terms and conditions which did not form the
part of the alleged oral agreement example the obtaining of
the NOC as mentioned in clause 6 or liability to reimburse
as mentioned in clause 9. Further, clause 8 of the draft
mentions that the “purchaser shall henceforth peacefully
enter into possession” whereas, in the clause reproduced
above it has been stated that the purchaser is in possession.
This also explains that there was an overwriting in the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 99 –
above mentioned clause. Further Clause I of the draft
deeds reads as under :
“that in consideration of the sum of Rs.2,80,000/=
(Rupees Two Lakhs Eighty Thousand only), which
has already been paid by the purchaser to the vendor
vide cheque no.298120 dated 04.04.1996 drawn on
Central Bank, Greater Kailash-I, New Delhi, the
receipt of which the vendor does hereby admits and
acknowledges. The vendor, doth hereby releases the
purchaser from the payment of the same and in
consideration of the above, the vendor doth hereby
grant, convey, sell, transfer and assign all the vendors
1/3rd undivided freehold rights in the property……”
A reading of the above combined with the fact
that there is no mention of the previous agreement to sell,
shows that there was no prior oral agreement whatsoever
between the parties and even the amount of Rs.8,40,000
paid by way of cheques was not paid as agreed sale
consideration. Had this been the case, it would not have
been mentioned in the sale deed that the vendor is selling
the property in consideration of the sum already paid and
is releasing the purchaser from the payment of the same. In
fact it would have been mentioned that the agreed sale
consideration has already been paid in view of the oral
agreement dated 18.03.1996 between the parties. Merely
because the receipt of cheque and their encashment has
been admitted by the plaintiff, does not relieve the
defendant of his burden to prove that the cheques were
issued towards payment of the agreed sale consideration in
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 100 –
pursuance to the alleged oral agreement to sell. However,
the defendant has failed to prove the same as there is no
reliable evidence whatsoever to prove the oral agreement
dated 18.03.1996 and even the defendant has failed to
prove the presence of the witnesses at the relevant time as
alleged.
In fact it has already been discussed in Issue no.8
above, that the defendant has failed to prove that the
agreed sale consideration was the market rate of the suit
property, as averred, and hence, the defendant has failed to
prove the consensus-ad- idem as to one of the essential
terms of the alleged oral agreement to sell.
From the above, it is clear that the story of the oral
agreement is nothing but a set of concocted facts.
It has been averred by the defendant that he
requested the plaintiff to complete the sale transaction by
executing the documents of sale deed etc. however, there is
a complete lack of the dates on which such requests were
made. There is also no averment as to whether the
defendant informed the plaintiff about the date of visit to
the Registrar Office and it has been simply stated that the
plaintiff did not turn up for registration at Registrar office.
Also no evidence has been led to show that any
appointment was fixed for a particular date with the Sub
Registrar Office and that the defendant was present on any
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 101 –
particular date at the said office.
It is the case of the plaintiff that the defendant had
shifted to the suit property in February-March 1996 as a
licensee and has led evidence of PW2 to show that the
landline telephone connection of the defendant had been
shifted / restored to the suit property in the month of
February 1996. The said fact was proved by Ex.PW2/1 &
PW2/2 exhibited by PW2 which is the record of the
Telephone Department showing the transfer of connection
from E-138 to E-182 i.e. the suit property in the month of
February, 1996. The factum of shifting the telephone
connection in the suit property has also been admitted by
the defendant in his cross examination dated 07.03.2018
wherein it was stated that the telephone connections were
transferred at the time of negotiations, which as per the
case of the defendant happened in January 1996. The
defendant has not been able to explain as to why his
telephone connections were transferred in the month of
February, 1996 when his case is that the oral agreement to
sell was only entered into in the month of March 1996.
Further, the defendant has confronted the witness
PW4 i.e. the official from the MCD with the self
assessment form and the receipt of house tax for the year
2004-2005, 2005-2006, 2006-2007 & 2009-2010 marked
as Ex.PW4/D2/4 (colly). The said document was got
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 102 –
exhibited by the defendant himself from the summoned
record brought by the witness. The said assessment form
for the year 2004-2005 contained the name of the plaintiff
as the owner. The defendant has again failed to explain as
to why in the self assessment form filed by him after the
alleged purchase of the property, he has shown the plaintiff
as the owner. Even PW4/X which was again got exhibited
by the defendant from the summoned record also shows
the plaintiff as the owner. It was the contention of the
defendant that the said payments have been made by him,
however, in the considered opinion of this court, the same
is without any merit as merely making the payment of
house tax does not entitle him to the ownership.
Interestingly there is also a letter dated 17.11.2014 Ex.
PW4/D2/3 (colly) addressed by the defendant to the House
Tax Department wherein, the defendant himself has stated
that the house tax has been paid by the previous owner as
well as by him from 1994 onwards, whereas it has been
pleaded by the defendants that the entire house tax, even
prior to 31.03.1996, was paid by the defendants.
It has been averred by the defendant in his pleadings
that the plaintiff humiliated his mother and made her life
miserable and also got the property transferred in his name
by paying only a few thousand rupees and not the entire
sale consideration. It is also been averred that due to the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 103 –
acts of plaintiff, the mother of the parties also wanted to
initiate action against the plaintiff for the deception
committed by him. If the defendant was aware that the
plaintiff is not a trustworthy person and has already duped
his mother for the same property, then there is no reason
why the defendant would enter into an oral agreement with
the plaintiff for the sale of the same property and would
also not insist upon any formal receipt of the payment of
the sale consideration. It has also not been explained as to
if the relations were so good between the plaintiff and
defendant no.1 that the defendant no.1 did not feel any
need to get the written document executed, then why he
was in such a hurry to get the sale deed executed that
immediately after shifting to the property on 05.04.1996 as
alleged he even got the stamp papers purchased on
08.04.1996 and immediately got the sale deed prepared
thereafter. Also if the defendant has been careful enough
to ensure the presence of witnesses at every stage, which
itself demolishes the case of the defendant that due to
sibling relation, love and trust, no written agreements were
required.
The defendant has also examined D1W3, D1W4 &
D1W8 and D1W9 to prove that he shifted to the suit
property in the month of April 1996. The evidence of each
witness is discussed herein below –
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 104 –
(a) D1W3 Sh. Sandeep Sarin was examined by
the defendant to prove the affidavit of Sh. A.P. Sarin
Ex.D1W3/1 which was filed by the defendant but was not
tendered in evidence. It was deposed by D1W3 that his
father Sh. A.P. Sarin has no mobility and cannot move and
that he was suffering from parkinson disease. However, no
document was proved in this regard and therefore, it
remained unexplained as to why Sh. A.P. Sarin did not
enter the witness box and thus even if the D1W3 identified
the signatures of A.P. Sarin, the same hold no weightage.
Further, there is no evidence led by the defendant nor any
documents have been annexed with the affidavit of A.P.
Sarin to show that he provided any labour or transport
assistance to the defendant for shifting to the suit property.
Thus neither the evidence affidavit of A.P. Sarin nor the
evidence of D1W3 has any evidentiary value.
(b) D1W4 Sh. Ravi Chitkara was the resident of
the ground floor of E-138, Greater Kailash-I, New Delhi
and deposed in his affidavit that the defendant shifted to
the suit property in the first week of April 1996, whereas
in his cross examination he stated that defendant no.1
shifted to the suit property in June-July 1996. Further, he
stated in his cross examination that he had got his affidavit
typed through his counsel in the year 1995 i.e. even before
the date of agreement between the parties. He also stated
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 105 –
that he does not remember whether the affidavit was
attested on the same day or not and whether it was attested
in his presence or not. This itself casts doubt upon the
authenticity of the affidavit. The very fact that the
affidavit was got typed in the year 1995 shows that the
entire story of the defendant is concocted and the
defendant had already prepared his case even before the
alleged oral agreement was entered into between the
parties. It was also stated by the witness that he and the
defendant are the members of South Delhi Club and he had
obtained the membership through the defendant. Thus
even the said witness does not support the case of the
defendant and is also not trustworthy.
(c) D1W8-Sh. Rajender Sharda who is the family
friend of the defendant admitted in his cross examination
that the defendant did not shift to the suit property in his
presence and he also stated that he cannot tell whether the
defendant shifted in January or April 1996. He stated that
since he attended the party of the defendant in April, 1996,
he was under an impression that the defendant shifted in
the said month. He also deposed as to having heard about
the factum of taking over of the house from the defendant
himself and was not aware whether he took over as owner
or licensee. Thus, even the said witness did not support the
case of the defendant.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 106 –
(d) D1W9 Sh. Amar Jeet Marwah also deposed
on the same lines as D1W8 and admitted that since the
defendant did not shift in his presence, he cannot say on
what date he shifted and does not know if the defendant
shifted in January 1996. Thus even D1W9 could not stand
the test of cross examination and contradicted himself. It is
also interesting to note that affidavit of D1W8 & D1W9
were executed on the same date and were verbatim the
same.
It is further pertinent to note that neither in the reply
to the legal notices nor in the pleadings, the exact date of
shifting to the suit property has been disclosed. It was for
the first time that it was mentioned in Ex.DW1/A i.e. the
affidavit evidence of the defendant that he shifted to the
suit property on 05.04.1996. Further, the defendant
mentions in his pleadings that the plaintiff shifted to his
newly acquired house in C.R. Park in the first week of
April, whereas in the Ex.DW1/A he states that the plaintiff
shifted on 31.03.1996. Further, it is also unbelievable that
upon obtaining the possession on 04.04.1996 as alleged in
the examination-in-chief, the defendant no.1 immediately
shifted on 05.04.1996. In the considered opinion of this
court, this is sufficient to raise suspicion upon the story of
the defendant regarding the shifting to the suit property.
Further, the address of the defendant as mentioned
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 107 –
on the drafts sale deed Ex.DW1/10 to Ex.DW1/12 is
E-353, 1st Floor, G.K.-II, New Delhi i.e. the previous
residence of the defendant, in which, he resided even prior
to shifting to E-138, G.K.-I, New Delhi, whereas, it is the
case of the defendant that he got the sale deeds typed after
shifting to the suit property. Since, as per the case of the
defendant, he had already shifted to the suit property at the
time of preparing the drafts then it is not understood as to
why the oldest address of the defendant has been
mentioned therein. Even the stamps of purchase of the
stamp papers on the drafts of the sale deed bear the same
address. It is also interesting to note that it is the case of
the defendant that all the stamp papers for the execution of
the necessary documents were purchased by Sh. Ravi
Mishra on receiving the payment from the defendant and
he had got the necessary documents prepared. However, a
perusal of the draft affidavits filed along-with the sale
deeds would show that the stamp papers for the same were
purchased on 10.11.1996 and some of them are purchased
on 10.04.1996. It is not explained as to why the stamp
papers bear the different dates and further makes it
impossible that the necessary drafts were prepared on or
about 08.04.1996. Interestingly, even the name of the
purchaser of the stamp papers appears to have been entered
later on as the same is in blue ink, whereas, the other
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 108 –
contents and the signature of the issuing authority is in
black ink.
It is also contended by the defendant that the
plaintiff was wanting to sell the suit property and had
entered into an agreement to sell with one Sh. Rahul
Mathur but the deal failed whereafter the plaintiff offered
to sell the property to the defendant. However, in his
cross-examination dated 07.03.2018, it was stated by
defendant no.1 that he does not have any personal
knowledge about the agreement to sell between the
plaintiff and Sh. Rahul Mathur and his knowledge was
derived from the telegrams handed over by the plaintiff to
him. It is important to note that as per the defendant
himself the reply to the said letter from Sh. Rahul Mathur
was got drafted by the defendant through his advocate Sh.
Arun Vohra. A perusal of said reply shows that it has been
stated in the said reply that no agreement to sell was
executed between Sh. Harish Ramchandani & Sh. Rahul
Mathur, however, the defendant concealed the said fact
and simply stated that the plaintiff was attempting to sell
the property. Even when a question was put in this regard
during the cross examination, the defendant no.1 gave an
evasive reply stating that he can neither admit nor deny the
same. Further, in the affidavit of evidence, the said
correspondence has been marked as Ex.PW1/4 to PW1/6,
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 109 –
however, it was admitted in the cross examination that the
said DW1/5 & DW1/6 were not annexed with the affidavit
(Ex.PW1/5 to PW1/6 were referred to as DW1/5 & DW1/6
as the defendant no.1 was deposing as defendant witness in
view of consolidation of suits). Further, Ex.DW1/4 filed by
the defendant pertained to one Sh. Akhilesh Chandra
Mathur and not Sh. Rahul Mathur. Also, it is not explained
as to how the defendant was in possession of Mark X1 i.e.
copy of the notice sent by Sh. Akhilesh Mathur and Sh.
Rahul Mathur and the reply dt 06.10.1995 Ex.PW1/D2-
4/A, when the same are stated to have been despatched to
the concerned persons. Further, no evidence has been led
by the defendant to prove the contents of the phonogram
despite the fact that the plaintiff specifically denied having
entered into any agreement with them. Thus, in my
considered opinion, the defendant no.1 has failed to prove
that the plaintiff was attempting to sell the property in the
month of September – October 1995.
It is also pertinent to mention here, that to show that
the defendant no.1 was not in requirement of any place to
stay and could not have made a request to the plaintiff for
allowing him to stay in the suit property, as alleged by the
plaintiff it was for the first time stated in his cross
examination that he was the owner of E-138, G.K.-I i.e.
place of his previous residence and also stated that he had
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 110 –
purchased the same from Sh. Mandeep Singh but the same
was not registered in his name. Even in the cross
examination dated 03.04.2018 it was stated that the
property bearing no. E-138 was not deliberately transferred
in his name. However, in his examination-in-chief it has
been clearly stated by defendant no.1 that the said flat
belonged to on Sh. Mandeep Singh and at his request, he
had handed over the keys of the same to one Sh. Gurmeet
Singh Grover who shifted in the said flat. If at all the
defendant no.1 was the owner of the said flat, there was no
reason why he would hand over the property to a third
person at the request of the previous owner. Thus, this
lends support to the case of the defendant was in need of a
place to stay and at his request, the defendant was allowed
to stay in the suit property.
Further, to support his story, it has also been averred
by the defendant that the plaintiff purchased another
property at C.R. Park, New Delhi, out of the funds
received as sale consideration. However, the defendant has
not led any evidence to prove the said contention and in
the cross-examination it has been stated by him that it was
presumed by him that the plaintiff has purchased the said
property from the funds received from the sale
consideration. It has been admitted in cross examination
that defendant no.1 was not aware as to when the said
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 111 –
property was purchased by the plaintiff and when the
payment for the same was made. To the contrary, the
plaintiff has relied upon Ex.PW1/13 to Ex.PW1/15 to
prove that the property in C.R. Park was purchased by him
on 13.12.1995 and even the sale consideration was paid by
him between June to December 1995. The originals of the
above documents were produced at the time of evidence.
However, the same were objected to by Ld. Counsel for
defendants on the ground of mode of proof. Even though
no evidence was led by the plaintiff to prove the same, the
Defendant no. 1 himself admitted in his cross-examination
(already discussed above) that he had presumed that the
C.R. Park property was purchased out of the sale
consideration funds. Thus, the story of the defendant qua
the motive of the plaintiff for selling the suit property
stands destroyed.
The defendant has also averred that the construction
on the second floor of the suit property was carried out by
him after shifting to the suit property. However, in issue
no. 9 above, it has already been held above that the
defendant has failed to prove that the construction was
carried out by him.
The defendant has also tried to prove that the mother
of the defendant died at his E-138 residence, however, in
the considered opinion of this court the same is irrelevant
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 112 –
for the purposes of the present case and therefore, is not
discussed in this judgment.
Before parting with this issue, it is important to take
note that the affidavits of-DW1-Sh. Manohar
Ramchandani, Ex.D1W2/1 – Sh. M.L. Girdhar, D1W4-Sh.
Ravi Raj Chhitkara, D1W8-Sh. Rajinder Sharda, D1W9-
Sh. Amarjeet Marwah, Sh. Gurmeet Singh Grover
(untendered) & Sh. R.K. Chhabra (untendered) were
prepared on the same date i.e. 23.11.2004 and the affidavit
of Sh. A.P. Sarin Ex.D1W3/1, Sh. Naresh Moolchandani
D1W6/1 and D1W7 were prepared on the same date i.e.
24.02.2003.
From the above discussion, it is clear that the
defendant has failed to prove that the plaintiff was looking
for a buyer of the suit property, that negotiations happened
between the parties for the sale of the suit property, Sh.
Lilu Moolchandani & Sh. Prem Chhablani were present at
the time of alleged oral agreement dt 18.03.1996, the
plaintiff handed over the file of the documents of the suit
property to the defendant on 04.04.1996, Sh. Lilu
Moolchandani & Sh. Prem Chhablani were present at the
time of handing over of the third cheque on 04.04.1996,
the defendant handed over the file of documents to Sh.
Ved Prakash, the possession was handed over by going to
the suit property, the possession was handed over in the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 113 –
presence of Sh. Lilu Moolchandani & Sh. Prem Chhablani,
the amount of Rs. 8.40 lacs was paid as sale consideration,
the defendant shifted to the suit property on 05.04.1996,
the plaintiff vacated the suit property in the first week of
April, the plaintiff purchased the C.R. Park property out of
the funds received from the defendant, all the stamp papers
were purchased on 08.04.1996, several requests were made
to the plaintiff to execute the sale deed, the drafts of the
sale deeds were prepared on or after 08.04.1996,
construction was carried out by the defendant on the
second floor and terrace of the suit property and thus it is
clear that the defendant has failed to prove that any oral
agreement or even a discussion for the sale of the suit
property even took place between the parties leave alone
the proving of consensus-ad-idem of the parties. The
defendant has failed to discharge his onus of proof and has
even failed to stand the test of cross examination. The
witnesses examined by the defendant also gave
contradictory statements. Thus, the only conclusion that
can be drawn is that there was no concluded oral
agreement between the parties.
Before parting with this issue, it is important to
mention that the defendant has placed heavy reliance upon
the order of Hon’ble High Court of Delhi dt 18.04.2001
passed while deciding the application under order 39 Rule
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 114 –
1 and 2 CPC. It was argued that the Hon’ble Court had
held that the circumstantial evidence lends credence to the
story of the defendant and it cannot be said that the the
defence is sham and frivolous. It was submitted that since
the said order was not challenged, the same has attained
finality and the suit of the defendant is required to be
decreed. However, the argument is baseless as the said
order is only an interim order passed during the pendency
the suit while deciding the application filed by the plaintiff
and merely records the prima facie opinion of the Hon’ble
High Court of Delhi. Thus the observations in the said
order cannot form the basis of the judgment.
In view of the above discussion, the present issue is
decided against the defendant and it is held that there was
neither any concluded oral agreement between the parties
nor Rs.8,40,000/- were paid as sale consideration.
12.8). ISSUE NO.7 :
Whether the payment of Rs. 8,40,000/- made
by the plaintiff to the defendant was by way of
friendly loan ? OPD
The burden to prove this issue was on the plaintiff.
However, it has already been discussed in issue no. 6
above that the defendants have failed to prove that the
amount of Rs. 8.40 lacs was paid as sale consideration andCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 115 –
have thus failed to discharge their burden of proof u/s. 101
of the Indian Evidence Act. 1972 (now section 104 of
BSA, 2023). Since the defendants failed to discharge the
burden of proof, the same did not shift upon the plaintiff to
disprove the contention of the defendants that the amount
of Rs. 8.40 lacs was the agreed sale consideration.
However, since an issue has been framed in this regard, the
reasons and findings on the same are discussed hereunder.
It is the case of the plaintiff that the amount of Rs.
8.40 lacs was received by him from defendant no. 1 as a
friendly loan with which he contemporaneously
established his business in the name of M/s. Astral
Systems. To support of his case, the plaintiff has placed
on record the copies of the Sales Tax Registration Form
i.e. Form ST-8 and Form B of the Proprietorship concern
M/s Astral System (Ex.PW1/37 (colly)) which was proved
by witness PW10-Sh. Pawan Kr. Verma, the Record
Keeper, ITO, Sales Tax Department. PW10 had also
proved the balance sheet of the year 1997-98 till 2001-
2002- Mark PW10/D2/1 which were got exhibited by
counsel for defendant during cross-examination. The
perusal of the said documents shows that M/s. Astral
System was functioning and was operational during the
year 1996.
However, in the Legal notice dated 15.11.1998
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 116 –
Ex.PW1/34 and also in his pleadings, the plaintiff only
contended that the said amount was a loan granted by the
defendant to the plaintiff in the course of business. Thus,
the plaintiff has not taken a specific stand that the said
payment was for the purposes of starting the business in
the name of Astral System, though by that time, as per the
evidence led by the plaintiff, the said proprietorship
concern was already in operation. Even no specific
pleading as to the loan for the purposes of proprietorship
business is contained in the pleadings of the plaintiff and it
was only during evidence that the documents pertaining to
the said business were filed by the plaintiff. Thus it
appears that the plaintiff has later on improvised his story
in the evidence.
The plaintiff has also relied upon Ex.PW13/1 i.e. the
bills raised in the name of Astral System by Ganesh Audio
System Pvt. Ltd which were shown to PW13 during his
examination-in-chief. However, the evidence of PW13
cannot be relied upon as the witness has clearly stated that
he became the Director of the Company only in the year
2000 and the business has not be transacted since last 10-
12 years. He also stated that he did not bring the
summoned record as the same is very old. He also stated
that he does not have the knowledge as to what
transactions the bills pertain to and he was in school at the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 117 –
time of raising of the said bills. Further the documents
Ex.PW13/1 cannot be considered as the same were never
filed by the plaintiff with his pleadings or in his evidence
and were for the first time shown to the witness in his chief
examination. Even otherwise, the said documents cannot
be said to have been proved by PW13 in view of his
statement-in-chief as stated above.
It was contended by the plaintiff that the fact that the
proprietorship business was started at about the same time
as the time of receipt of Rs.8,40,000/- proves his case that
the payment was only a friendly loan with which he started
the said business and not the payment of sale
consideration. However, in the considered opinion of this
court, the contention is without any merit as the plaintiff
has not led any evidence to prove that he had taken a
friendly loan for the purposes of starting a business.
Further, it has been pleaded by the plaintiff that the loan
was given in the course of business, whereas he leads
evidence to prove a personal loan given by the defendant
to the plaintiff. It is also pertinent to mention that merely
showing that a business was started on or about the same
time when the amount of Rs. 8.40 lacs was paid, does not
in any manner, in the absence of any other evidence, prove
that the said amount was given as a friendly loan.
Thus in view of the above, the present issue is
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 118 –
decided against the plaintiff.
12.9). ISSUE NO. 10 :
Whether the existence of a written contract is
sine-qua-non for invocation of section 53-A of
the Transfer of Property Act, if so its effect ?
OPD
Section 53-A of the Transfer of Property Act, 1882
reads as under :
“53A. Part performance.– Where any person contracts to transfer for
consideration any immoveable property by writing signed by him or on
his behalf from which the terms necessary to constitute the transfer can
be ascertained with reasonable certainty, and the transferee has in part
performance of the contract, taken possession of the property or any part
thereof, or the transferee, being already in possession, continues in
possession in part performance of the contract and has done some act in
furtherance of the contract, and the transferee has performed or is willing
to perform his part of the contract, then, notwithstanding that or, where
there is an instrument of transfer, that the transfer has not been completed
in the manner prescribed therefor by the law for the time being in force,
the transferor or any person claiming under him shall be debarred from
enforcing against the transferee and persons claiming under him any
right in respect of the property of which the transferee has taken or
continued in possession, other than a right expressly provided by the
terms of the contract:
Provided that nothing in this section shall affect the
rights of a transferee for consideration who has no notice of
the contract or of the part performance thereof.”
The use of the words “contracts to transfer for
consideration any immovable property by writing signed
by him” in the above provision, shows that an agreement
in writing is essential for the purposes of claiming the
protection of section 53A. After the amendment in the year
2001, it is necessary that the said document should be
registered. It was held by the Hon’ble High Court of Delhi
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 119 –
in Babita Joshi v. Dilip Rawat, passed on 21.04.2015 that
“possession of a person is protected u/s 53A of the TP Act
only if he claims it under a written contract to transfer the
property to him for consideration…”.
In the present case, the defendants have relied upon
an oral agreement and it is not their case that the said
agreement was reduced into writing at any point of time.
Thus, the defence of the defendant that the suit of the
plaintiff is liable to be dismissed as he is in possession of
the suit property in pursuance of oral agreement to sell and
having paid the full sale consideration, is baseless and is
clearly hit by the provisions of Section 53A of The
Transfer of Property Act, 1882.
In view of the above, the present issue is decided in
favour of the plaintiff and against the defendants.
12.10). ISSUE NO. 11:
Whether the plaintiff has performed his part of
the obligation in terms of alleged agreement to
sell dated 18.03.1996 and the plaintiff is ready
and willing to perform his obligation in
pursuance thereto? OPP
In a Catena of judgments, the Hon’ble
Supreme Court has defined as to what constitutes readiness
and willingness in the suit for specific performance. It has
been time and again held that the word ‘readiness’ relatesCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 120 –
to the financial capacity of the purchaser and the
willingness is to be ascertained from the conduct of the
person suing for specific performance and it is to be seen
as to how pro-actively the person suing has taken steps for
the completion of the contract.
In the present case the defendant pleads that the
entire sale consideration stood paid by way of cheques to
the plaintiff. However, it has already been held above that
the defendant has failed to prove that Rs.8,40,000/- was
paid as sale consideration.
As far as the willingness is concerned, in the
considered opinion of this court, the defendant has also
failed to prove the same. Though the defendant alleges an
oral agreement to sell dated 18.03.1996 as per which the
final payment was to be made by 17.04.1996, he has failed
to show that he made any efforts to get the sale deeds
executed within a reasonable time (no time for execution
of sale deed has been mentioned in the terms and
conditions). If the parties contemplated that the possession
and payment is to be completed by 17 th April 1996 then it
is quite obvious that the sale deed should also have been
executed at the same time or at the most as soon as
possible after 17th April 1996. The defendant alleges that
he got the stamp papers purchased on 08.04.1996 and also
got them typed, yet he has failed to place on record anyCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 121 –
evidence to show that he contacted the plaintiff for the
purposes of the execution of the same or even informed
him about the date fixed before the Registrar. Further,
there is no evidence whatsoever to show that after the
failure of the plaintiff to appear before the Registrar, the
defendant took any pro-active steps for the execution of
the sale deeds. It is also not stated as to who all family
members and friends were involved in convincing the
plaintiff to honour the agreement (discussed in detail in
issue no.6 above). Further, there is not even a single notice
to the plaintiff calling upon him to perform the oral
agreement despite the fact being that the parties were
already contesting litigation against each other. Also in his
cross examination dated 03.04.2018 it has been stated that
the defendant engaged the services of an advocate in the 1 st
week of April 1996 and information him that the complete
chain of title documents is not contained in the file that
was handed over by the plaintiff. However, it is not clear
as to why the said advocate was engaged in the 1 st week of
April itself when the defendant allegedly shifted to the suit
property only on 05.04.1996 and at that time there was no
dispute between the parties with respect to the oral
agreement dated 18.03.1996. However, the fact remains
that despite the defendant acting under legal advice, no
legal notice whatsoever was sent to the plaintiff nor anyCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 122 –
legal action was taken. The first legal action taken by the
defendant was in the form of a reply dated 20.02.1997
Ex.P3 which was sent to the plaintiff in response to his
legal notices dated 07.02.1997 & 17.02.1997 Ex.P1 & P2
respectively. Further despite informing the plaintiff in the
reply Ex.P3 that the defendant would take legal action
against him no action whatsoever was taken against the
plaintiff and the suit came to be filed by the defendant only
on 24.05.1999 that too after the filing of the first suit by
the plaintiff on 25.02.1999. Thus clearly the defendant has
failed to prove his willingness to perform the contract.
In view of the above, this issue is decided against the
defendant.
12.11). ISSUE NO. 5
Whether the plaintiff is entitled for claim of
specific performance of the alleged oral
agreement dated 18.03.1996? OPP
It has already been held in issue no.6 above that the
defendant has failed to prove the oral agreement dated
18.03.1996 and also that Rs.8,40,000/- was paid as sale
consideration. Further the issue no.1, 3, 4, 8, 9 & 11 have
also been decided against the defendant.
In Ganesh Shet Vs. C.S.G.K. Setty & Ors.,
MANU/SC/0383/1998, the Hon’ble Supreme Court held as
follows :
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 123 –
“21. It is well settled that the circumstances referred to in
sub-clauses (2) to (4) in regard to exercise of discretion for
granting a decree for specific performance are not exhaustive.
The relief for specific performance is discretionary and is not
given merely because it is legal but it is governed by sound
judicial principles. See (1965)2SCR211 and Sardar Siingh v.
Smt. Krishna Devi and Anr., MANU/SC/0102/1995: (1994)
3SCR717).
22. It is also well settled that, in a suit for specific
performance based on, the evidence and proof of the
agreement must be absolutely clear and certain.
23. In Pomeroy on ‘Specific Performance of Contracts’ (3rd
Edn) (Para 159) it is stated clearly, that a “greater amount or
decree of certainly is required in the terms of an agreement,
which is to be specifically executed in equity, than is
necessary in a contract which is to be the basis of an action at
law for damages. An action at law is founded upon the mere
non-performance by the defendant, and this negative
conclusion can often be established without determining all
the terms of the agreement which exactness. The suit in
equity is wholly an affirmative proceeding. The mere fact of
non performance is not enough; its object is to procure a
performance by the defendant, and this demands a clear,
definite, and precise understanding of all the terms; they must
be exactly ascertained before their performance can be
enforced. This equity of certainly can best be illustrated by
examples selected from the decided cases….”
Thus, in view of the same, the defendant is not
entitled to the claim of specific performance of the alleged
oral agreement dated 18.03.1996 and the issue is
accordingly decided against the defendant.
12.12). RELIEF:
In view of the above discussion, the second suit
bearing no. CS DJ 10259/16 is dismissed.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 124 –
13. REASONS & FINDINGS IN THE FIRST SUIT :
For the purposes of convenience, the issues in the
present suit shall be decided in the following order.
13.1). ISSUE NO. 11
Whether there was any concluded oral
agreement to sell and purchase dt 18.03.1996
qua the suit property between the plaintiff and
defendant no.1. If no, its effect. If yes, then
whether the payment of Rs. 8,40,000/- made
by the defendant no.1 to the plaintiff, was sale
consideration at all ? OPDThis issue is the same as issue no.6 framed in the
second suit. Thus for the reasons and findings in issue no.5
& 6 of the second suit, the present issue is decided against
the defendant.
13.2). ISSUE NO. 10:
Whether the defence set up by the defendants
is hit by section 53-A of the Transfer of
Property Act, 1882 ? OPP
This issue is the same as issue no.10 framed in the
second suit. Thus for the reasons and findings in issue
no.10 of the second suit, the present issue is decided
against the defendant.
13.3). ISSUE NO.8
Whether the amount of Rs. 8,40,000/- paid toCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 125 –
the plaintiff by the defendant no.1 was a
loan ? OPP
This issue is the same as issue no.7 framed in the
second suit. Thus for the reasons and findings in issue no.7
of the second suit, the present issue is decided against the
plaintiff.
13.4). ISSUE NO. 9 :
Whether market price of the suit property at
the relevant time i.e. March/April, 1996 was
more than Rs. 8,40,000/- ? OPP
This issue is the same as issue no.8 framed in the
second suit. Thus for the reasons and findings in issue no.8
of the second suit, the present issue is decided against the
defendant and in favour of the plaintiff.
13.5). ISSUE NO. 13
Whether the suit has been properly valued for
the purposes of court fee and jurisdiction ?
OPP
The defendant has merely raised an unsubstantiated
averment in his W.S that the suit of the plaintiff is not
properly valued for the purposes of court fees and
jurisdiction. Contrary to the said averment, the defendants
in the second suit have pleaded that the value of the suit
property was Rs.8,40,000/- in the year 1996 and have
relied upon Ex.DW1/25 & DW1/26 in this regard. TheCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 126 –
plaintiff in his plaint has valued the property at Rs. 50
lakhs for the purposes of relief of possession and
Rs.9,89,000/- for the purposes of damages and mesne
profits. The evidence led by the plaintiff with respect to the
value of the suit property has already been discussed in
Issue no.8 in the second suit. Thus, in view of the above
and the decision in issue no.8 in the second suit, the
present issue is decided in favour of the plaintiff and
against the defendant.
13.6). ISSUE NO. 15 & 16
Whether the defendants have carried out any
constructions, additions, alterations and/or
renovations during April to October, 1996 in
and over the suit property, if yes whether the
same was undertaken authorisedly and
legally ? OPD
and
Whether the Plaintiff has constructed second
floor of the suit property as alleged by him ? If
yes, when ? OPP
These issues can be disposed off by the same
reasoning and findings as discussed in issue no.9 framed in
the second suit. Thus for the reasons and findings in issue
no.9 of the second suit, the present issue is decided against
the defendants and in favour of the plaintiff.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 127 –
13.7). ISSUE NO.7
Whether the above said three sale deeds were
stolen from the place and between the period
as alleged by the plaintiff ? OPPIn view of the pleadings of the parties on this aspect,
it has to be examined by this court as to whether the three
sale deeds executed by mother of the plaintiff and
defendant no.1 in favour of the plaintiff were stolen by the
defendant no.1 from the drawer of the plaintiff in the
premises of the partnership business namely Ramchandani
Enterprises or whether the same were handed over by the
plaintiff to defendant no.1 on 04.04.1996 at the time of
handing over the third cheque of Rs. 2.80 lacs.
To prove his case, the plaintiff relied upon Ex.P2 i.e.
the legal notice dated 17.02.1997 that the plaintiff got
served upon defendant no.1 regarding the said fact and
demanding his sale deeds and Ex.PW1/20 & Ex.PW1/21
i.e. the bills of Man Singh Hotel, Jaipur. The plaintiff has
also examined PW11 Sh. Ashok Kumar Aggarwal, the
Managing Director of Man Singh Hotel, Jaipur to prove
the bills of the said hotel with respect to stay of the
plaintiff in the said hotel on 15th & 16th February.
However, the only conclusion that can be drawn from the
above evidence is that the plaintiff had visited Jaipur on
the said date but the same does not in any manner prove
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 128 –
that the sale deed were stolen by the defendant no.1. This
court also finds merit in the contention of defendant no.1
that it is highly improbable that a person would leave his
original ownership documents at a place where a person
with whom he is already in dispute qua the said property
has unfettered access. There has been no pleading
whatsoever that the said documents were under a lock &
key and the same have been removed by breaking the
same. It is clear from the notice dated 07.02.1997 Ex.P-1
that the parties were already in dispute qua the said
property. It is also important to note that on 13.01.2014 it
was stated by the plaintiff in his cross-examination that he
does not recall if any other documents were also got stolen
apart from the three sale deeds. In the considered opinion
of this court the answer is evasive as it should have been in
the knowledge of the plaintiff as to what documents were
exactly lying in the said drawer and were stolen by
defendant no.1. The plaintiff could have given a specific
answer in ‘yes’ or ‘no’. However, he did not do so
probably because the defendant no.1 was also shown to be
in the possession of the house tax, electricity and water
bills pertaining to the suit property which did not find any
mention in the legal notice of the plaintiff. It is pertinent to
note that despite such an incident taking place the plaintiff
does not share the same with anybody else except his own
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 129 –
advocate. Allegedly the theft happened in the business
premises of the parties and therefore some hue and cry is
bound to happen when such a theft is discovered.
Ordinarily a person would also inquire from his employees
in the premises about the incident and would try to find out
as to what transpired behind his back. However, there is no
pleading whatsoever to this extent and even there is
nothing to show as to why the plaintiff believed that it is
only and only the defendant no.1 who has stolen the
documents. There is nothing in the pleadings to show as to
what hinted him to doubt the defendant no.1 and why and
on what basis directly a legal notice was issued to him.
Thus, the story of the plaintiff does not inspire confidence.
The defendant no.1 has relied upon Ex.P-3 i.e. the
reply dated 20.02.1997 wherein the said allegations of the
plaintiff were totally denied and it was stated that the
defendant has purchased the suit property from him. The
evidence led by defendant no.1 in this regard has already
been discussed in issue no. 6 in the second suit and it has
been held that the defendants have failed to prove that the
plaintiff had handed over the file of the document
pertaining to the suit property to the defendant no.1.
Thus both the parties have failed to prove their
respective contentions with respect to the present issue.
From the above discussion it is clear that the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 130 –
plaintiff has failed to prove that the sale deeds were stolen
by the defendant and thus the present issue is decided
against the plaintiff.
13.08). ISSUE NO. 12
Whether the suit is bad for non-joinder and/or
misjoinder of necessary or proper party ? OPD
The onus to prove this issue was on the defendant,
however, no arguments were addressed by the defendant
on the said issue. A perusal of the WS in the first suit
shows that it has been averred that the suit is bad for non
joinder and misjoinder of parties. However, it has not been
substantiated as to for whose non joinder the suit is to be
dismissed & who is a necessary party who has not been
joined.
As far as the averment of misjoinder of defendant
no.2, 3 & 4 is concerned, the same has been taken care of
vide order dated 17.04.2010 whereby the application u/O 1
Rule 10 CPC filed by defendant no.1 for deletion of
defendant no.2, 3 & 4 from the array of parties, was
dismissed. Even otherwise as per the provisions of CPC a
suit is not liable to be dismissed for misjoinder of parties
(Section 99 of the CPC r/w Order 1 Rule 9 CPC r/w Order
1 Rule 13 CPC).
In view of the above discussion, the present issue is
decided in favour of the plaintiff and against the defendant.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 131 –
13.09). ISSUE NO. 5
Whether plaintiff has put the defendant in
possession of the suit property as a licensee
under an oral license ? If so, its effect ? OPP
The second suit filed by the defendant has been
dismissed in view of the reasons and findings discussed
therein. It has been already held in the second suit that the
defendant has failed to prove that he entered into an oral
agreement dated 18.03.1996 with the plaintiff, that
Rs.8,40,000/- was paid by way of sale consideration, that
he shifted to the suit property in the 1 st week of April 1996
as purchaser thereof, the agreed sale consideration was the
market value of the suit property as alleged & also that the
plaintiff used the funds of sale consideration for the
purchase of another property in C.R. Park, Delhi. It has
also been discussed in issue no. 6 in the second suit that
the defendants had shifted to the suit property in the month
of January, 1996. It is admitted that the plaintiff was the
owner of the suit property at the time of the alleged oral
agreement dated 18.03.1996. Thus, the only conclusion
that can be drawn is that the plaintiff had put the defendant
in possession of the suit property as a licensee as neither
the oral agreement is proved nor there is any reason why
the defendant would have shifted to the suit property even
prior to the oral agreement to sell dt 18.03.1996.
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 132 –
Thus in view of the above discussion and the
findings and discussions on the issues in the second suit,
the present issue is decided against the defendant and in
favour of the plaintiff.
13.10). ISSUE NO.2
Whether the defendants are in illegal and
unauthorized occupation of the suit property,
if yes, its effect ? OPP
In view of the discussion in issue no.5 above and
since the legal notices Ex. P1, P2 & P4 issued by the
plaintiff, are admitted documents, the license of the
defendant stands terminated w.e.f. 22.02.1997 i.e. 15 days
from the date of the first legal notice dt 07.02.1997, issued
by the plaintiff and thus the possession of the defendant
becomes illegal and unauthorized from 22.02.1997.
Accordingly, the present issue is decided in favour of the
plaintiff and against the defendant. Thus the plaintiff is
entitled to recover the possession of the suit property as
well as the mesne profits from the defendant from the date
the possession of the defendant became illegal.
13.11) ISSUE NO: 14:
Whether the defendant took over possession
of the suit property as a consequence or oral
agreement ? OPDCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 133 –
In view of the reasons and findings in the
second suit and issue no.5 in the first suit, the present issue
is decided against the defendants.
13.12) ISSUE NO. 6 :
Whether the plaintiff is entitled to return of
three original sale deeds dt 04.03.1994,
08.03.1994 &18.03.1994 executed by Smt
Sushila Ramchandani in favour of the plaintiff
qua the suit property from the defendants ?
OPP
In view of the discussion in the above issues and the
reasons and findings in the issues in the second suit and
since the defendant has failed to prove the oral agreement
of sale as alleged by him and further since the plaintiff is
admittedly the owner of the suit property, the plaintiff is
held entitled to recover the title documents i.e. the three
sale deeds executed by Smt. Sushila Ramchandani in
favour of the plaintiff, from the defendant. The issue is
accordingly decided in favour of the plaintiff.
13.13). ISSUE NO. 3
Whether the plaintiff is entitled for damages
against the defendants, if yes, at what rate and
what period ? OPP
In view of the decision in issue no. 2 above, the
plaintiff is held entitled to recover damages from the
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 134 –
defendant for the period of illegal and unauthorized
occupation of the suit property.
The plaintiff has claimed the damages @ 43,000 per
month from 01.04.1997 till the date of handing over the
possession. In this regard, the plaintiff has relied upon Ex.
PW1/35 i.e. the letter dated 20.01.1996 of a Real Estate
Dealer & PW1/36 i.e. the copy of certified copy of the
registered lease deed dated 10.08.1998 with respect to the
first floor of the property bearing no. E-332, G.K.-II, New
Delhi, which was proved by PW13. As per Ex.PW1/36, the
rate of rent was Rs. 20,000/- p.m. A question was put to
DW1 regarding the prevailing market rate of rent,
however, the defendant pleaded lack of knowledge. No
evidence was led by the defendant to disprove the above
documents or to show the prevailing market rate of rent.
Thus considering the total time for which the defendant
has been in possession of the suit property and that the suit
property consists of two floors with terrace and taking
judicial notice of the current market rate, the claim of the
plaintiff for Rs.43,000/- p.m. is a reasonable amount and is
liable to be decreed. In view of the same, the defendant is
held liable to pay the damages at the rate of Rs.43,000/-
p.m. from 01.04.1997 uptil the date of handing over of the
possession to the plaintiff.
13.14). ISSUE NO.4
CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 135 –
Whether the defendants are liable to pay
interest to the plaintiff, if yes, at what rate and on what
amount and for what period ? OPP The plaintiff has
claimed pendente lite and future interest @22% p.a.
However, no evidence has been led by the plaintiff to show
that he is entitled to this exorbitant rate of interest which
appears to be penal in nature. Thus in view of the law
settled by the Hon’ble Supreme Court of India in The Central
Bank of India Vs. Ravindra & Ors. Decided on 18.10.2001
and in view of the provisions of Section 34 CPC, the plaintiff
is held entitled to interest @ 7% per annum on the decreetal
amount from the date of filing of the suit till realisation.
13.15). ISSUE NO.1
Whether the plaintiff is entitled for the relief
claimed in the suit ? OPP
In view of the reasons and findings in the second
suit and for the reasons and findings in issues above in the
present suit, the present issue is decided in favour of the
plaintiff.
13.16). RELIEF :
In view of the above discussion, the suit of the
plaintiff bearing no. CS DJ 10270/16 is decreed.
The plaintiff is entitled to recover possession of the
First Floor, Second Floor and the Terrace with
construction as on date, of the property bearing no. E-182CS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani
– 136 –
G.K.-II, New Delhi, from the defendants. The defendants
are directed to hand over the peaceful vacant possession of
the suit property to the plaintiff within two months.
The defendants are also directed to hand over to the
plaintiff the three original sale deeds executed by Smt.
Sushila Ramchandani in favour of the plaintiff within 2
weeks against due acknowledgment.
The plaintiff is also held entitled to recover
Rs.43,000/- p.m. from 01.04.1997 uptil the date of handing
over of the possession of the property. The plaintiff is also
held entitled to interest on the decreetal amount from the
date of filing of the suit till realization @ 7% per annum.
Decree sheet be drawn subject to payment of the
court fees on the damages awarded to the plaintiff.
Both the suit files be consigned to Record Room.
Announced in the
open Court on 03.03.2025. Digitally signed
by GUNJAN
GUNJAN GUPTA
GUPTA Date:
2025.03.05
17:22:46 +0530(GUNJAN GUPTA)
District Judge-04 (SE),
District Courts, Saket, New DelhiCS DJ 10270/16 Harish Ramchandani v. Manu Ramchandani (since deceased) through LRs
CS DJ 10259/16 Manohar R. Ramchandani (since deceased) through L.Rs vs. Harish
Ramchandani