Delhi District Court
Raj Pal Kalia vs Ms Venus Card Manufacturing Co And … on 9 June, 2025
IN THE COURT OF MS. MONA TARDI KERKETTA,
DISTRICT JUDGE-06, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI.
CS No.210225/2016
CNR No. DLSE01-002780-2016
Sh. Raj Pal Kalia
Proprietor of M/s CASBAH ENTERPRISES
R/o A-186, Inderpuri, First Floor,
New Delhi-110012 ............Plaintiff
Versus
1. M/s Venus Card Manufacturing Co.
G-195, Naraina Vihar,
New Delhi-110028
Through its partner Sh. Harjeet Singh Sachdeva
2. Sh. Harjeet Singh Sachdeva
S/o Sh. Ajeet Singh Sachdeva,
Partner of M/s Venus Card Manufacturing Co.
R/o G-195, Naraina Vihar,
New Delhi-110028
3. Mrs. Swaranjeet Kaur
W/o Sh. Ajeet Singh Sachdeva,
Partner of M/s Venus Card Manufacturing Co.
R/o G-195, Naraina Vihar,
New Delhi-110028 ........Defendants
Date of Institution : 21.04.2016
Date of Conclusive Final Arguments: 22.05.2025
Date of Judgment : 09.06.2025
Final Decision : Suit Dismissed.
CS No .210225/2016 Page 1 of 35 DJ-06/SE/SKT/Delhi
Appearances :
For the plaintiff : Sh. Sagar Suri, Adv.
For the defendants : Sh. Ajay Saroya, Adv.
JUDGMENT
Suit for Specific Performance
1. The brief facts of the case, as disclosed in the plaint,
are that the plaintiff is a Non-Resident Indian residing in the UK
for over 40 years. He was running a business in the UK under the
name M/s Casbah Food & Wine and arrived in Delhi on
23.08.2004. Defendant No.1 is a partnership firm, with
Defendant Nos. 2 and 3 as its partners, who are mother and son.
Defendant No.2 was closely acquainted with Mr. Satish Chander
Kalia, the plaintiff’s nephew and an employee of M/s
Justfare.com. The plaintiff’s son, Mr. Bal Raj Kalia, a US citizen
and proprietor of M/s Justfare.com, through his attorney Mr.
Devashish Sharma, entered into a Rent Deed dated 01.03.2004
with Defendant No.1 for the first floor of property no. C-79,
Okhla Industrial Area, Phase-I, New Delhi, at a monthly rent of
Rs. 51,000/-.
2. Defendant No.1, through Defendant No.2, handed
over possession of the first floor to M/s Justfare.com. Although
the rent deed did not include a security deposit clause, Defendant
No.2 demanded Rs. 3 lakhs as security, which was paid by
Justfare.com through two cheques drawn on HSBC Bank: Rs.
2,50,000/- dated 25.02.2004 and Rs. 50,000/- dated 14.04.2004.
3. On 10.10.2004, Defendant Nos. 2 and 3, in the
presence of Mr. Ajit Singh Sachdeva and Mr. Satish Chander
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Kalia, orally agreed on behalf of Defendant No.1 to sell the entire
building at C-79, Okhla Industrial Area, to the plaintiff for Rs. 77
lakhs. Defendants requested Rs. 23 lakhs by cheque for registry
purposes and Rs. 54 lakhs in cash.
4. In accordance with the oral agreement dated
10.10.2004, the plaintiff made payments totaling Rs. 71 lakhs by
07.02.2005 to the defendants, through a combination of cheques
and cash withdrawals, as detailed in the payment schedule and
mentioned in para 5 of the plaint. The plaintiff thus paid Rs. 23
lakhs via cheques and Rs. 48 lakhs in cash, leaving a balance of
Rs. 6 lakhs towards full payment.
5. In March 2005, defendants refused to pay the
remaining Rs. 6 lakhs, citing an inability to show large cash
transactions in the financial year ending March 31, 2005. They
promised to transfer the property in April 2006. The plaintiff
reluctantly agreed.
6. The oral agreement was formalized in writing and
signed on 01.04.2005, though no date appeared on the document.
Defendant No.2 signed on behalf of Defendant No.1. Witnesses
included Mr. Ajeet Singh Sachdeva and Mr. Satish Chander
Kalia. The written agreement acknowledged only the Rs. 23
lakhs paid by cheque. Defendants insisted on omitting the Rs. 48
lakhs cash in the document, promising to reflect it in the next
financial year’s records.
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7. After receiving Rs. 71 lakhs, defendants handed
over possession of the basement and mezzanine in March 2005.
Possession of the first floor, already let to M/s Justfare.com, was
also promised from April 1, 2005, with rent to be collected by
defendants until March 2005.
8. Plaintiff took steps to execute a new rent deed and
get an electric meter installed in the name of Casbah Enterprise.
The mezzanine was rented out beginning April 1, 2005.
Renovations to the first floor were undertaken from December
2005 to March 2006. A fresh rent deed was executed between
plaintiff and Justfare.com.
9. On April 1, 2005, the plaintiff executed three rent
deeds through Casbah Enterprise. From tenant Aban Exim Pvt.
Ltd. (basement occupant), Rs. 3,72,000/- rent and Rs. 75,764/-
TDS were received, along with a refundable security deposit of
Rs. 1,24,000/-.
10. Despite plaintiff’s possession of the basement,
defendant compelled plaintiff to issue a cheque for Rs.
1,24,000/-, which the tenant had paid as security, to avoid
disruption in execution of the final sale deed. Plaintiff complied
under coercion.
11. From tenant Naveen Goel of NGEL Software Pvt.
Ltd. (mezzanine occupant), plaintiff received Rs. 75,000/- in rent
and Rs. 45,000/- security. Defendant No.1 took this security
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amount via cheque. The mezzanine floor was eventually
transferred via sale deed dated 04.04.2006. From tenant Dada
Scanning System (also mezzanine), plaintiff received Rs.
2,47,608/- in rent and Rs. 96,000/- as security.
12. The first floor, already with Justfare.com, was
formally rented again to them from 1st April 2005 under a new
deed, with monthly rent of Rs. 54,000/- and annual 7%
increment. Rent received in 2005 totaled Rs. 6,54,000/- with Rs.
1,02,000/- TDS.
13. Defendants had promised to hand over the ground
floor in April 2006. Plaintiff left India on 09.05.2005 and
returned on 11.10.2005. Defendant then asked for the remaining
Rs. 6 lakhs in cash. Plaintiff paid it on 17.10.2005 in cash via
cheque withdrawal bearing no.00517551, SBI, in the presence of
Mr. Satish Chander Kalia.
14. In February 2006, plaintiff sought execution of the
sale deed for the entire building but faced changed behavior from
Defendant No.2, who insisted only mezzanine and first floor
would be sold. Under pressure, plaintiff was forced to accept and
issue multiple cheques as detailed in para 14 of the plaint,
including security deposits that defendants had wrongly taken
earlier.
15. On 04.04.2006, defendants executed a sale deed
only for mezzanine and first floor for Rs. 18 lakhs, though they
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had received Rs. 77 lakhs. The Rs. 10 lakhs paid via cheque
no.0045551 dated 28.10.2004, UBI, Purhiran, Punjab on
28.10.2004 was acknowledged in the agreement but not included
in the sale deed.
16. Plaintiff was coerced into accepting two cheques
bearing no.437878 dated 23.03.2006 and 437883 dated
25.03.2006 for Rs. 6 lakhs and Rs. 4 lakhs. The second cheque
was dishonoured due to insufficient funds and later credited on
10.04.2006, post the sale deed execution. Plaintiff was threatened
with electricity disconnection and business disruption if he did
not comply.
17. The sale deed falsely stated possession of mezzanine
and first floor was handed over in April 2006, though plaintiff
had received possession in March 2005.
18. Plaintiff’s son had established operations at the
property since April 2004. Defendants threatened to block access,
cut electricity, and terminate tenancy if the plaintiff did not obey
their demands. Plaintiff took steps to secure power supply
independently and got mutation done for the mezzanine and first
floor on 17.02.2007.
19. Despite receiving full payment, defendants
intentionally withheld the ground and basement floors. Plaintiff,
after mutation and meter installation, approached the court
seeking direction to defendants to transfer ownership of the
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basement, ground floor, and half terrace rights of the first floor at
C-79, Okhla Industrial Area, Phase-I, New Delhi. Hence, the
present suit.
20. Plaintiff prayed to pass the following reliefs in his
favour and against defendants : –
20.1) A decree for specific performance of the Agreement
of April, 2005 thereby directing defendants to execute the sale
deed in respect of basement and ground floor and other half
terrace right (rear side) of first floor of property no.C-79, Okhla
Industrial Area, Phase-I, New Delhi ;
20.2) Any other order as this Court may deem fit and
proper in the interest of justice.
21. Defendants contested the present suit on the
following grounds:
21.1) The instant suit is a blatant misuse of the legal
process, orchestrated by the plaintiff with mala fide intent to
exert undue pressure on the defendants and to unlawfully usurp
the suit property. The plaintiff has fabricated a baseless and false
narrative in order to maintain a frivolous action.
21.2) No agreement, whether oral or written, was ever
executed between the parties for the sale of the entire suit
property. The claim of having paid Rs. 48 lakhs in cash, without
any documentary proof or receipt, is not only implausible but
also an attempt to mislead the Court. The plaintiff has failed to
demonstrate any legitimate cause of action.
21.3) Defendant No.1, a registered partnership firm
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comprising Defendant Nos.2 and 3, had agreed to sell only a
specific portion of the property, namely, the mezzanine floor, the
first floor, and the front half portion of the terrace of the
immovable property bearing No. C-79, Okhla Industrial Area,
Phase-I, New Delhi, admeasuring 400 sq. yards. The total sale
consideration of Rs. 18 lakhs were paid via three cheques dated
19.01.2005, 02.02.2005, and 25.03.2006.
21.4) The agreement to sell dated 04.04.2006 clearly
reflects the transaction, wherein only the above-mentioned
demised portions were agreed to be sold. It expressly records the
rights, interest, and title conveyed and does not include the
basement, ground floor, or rear terrace rights.
21.5) There is no document–oral or written–that
substantiates the plaintiff’s claim to the remaining portions of the
property. The allegations made in this regard are false and
unsupported by any evidence.
21.6) The plaintiff has admitted that no agreement exists
beyond what is recorded in the written agreement dated
04.04.2006. Therefore, the suit is devoid of a valid cause of
action.
21.7) The plaintiff has deliberately withheld material facts
and has resorted to suppressio veri and suggestio falsi, attempting
to create a false impression of a broader transaction than what
was agreed upon.
21.8) The purported cash payment of Rs. 48 lakhs are
entirely unsubstantiated. Considering the plaintiff’s education
and background, it is highly improbable that such a substantial
amount would be paid without any written acknowledgment or
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receipt.
21.9) The suit is founded on a forged and fabricated
agreement purportedly executed in April 2005. Even if such
document were to be considered, Clause (6) therein precludes the
plaintiff from seeking specific performance. It provides that in
the event of a default, the defaulting party would only be liable to
return the earnest money received. Thus, no relief of specific
performance arises therefrom.
21.10) Specific performance is a discretionary relief.
Where alternate remedies are stipulated in the contract, specific
performance is not maintainable. The appropriate relief, if any,
would be recovery of earnest money.
21.11) The agreement relied upon by the plaintiff is
unregistered and thus inadmissible under applicable provisions of
law. The reliance placed upon it is entirely misplaced and cannot
support the relief sought.
21.12) The plaintiff has intentionally undervalued the suit
to evade proper court fees. While alleging a total payment of Rs.
77 lakhs via cheque and Rs. 54 lakhs in cash, court fees have
been affixed only on Rs. 59 lakhs. This is a deliberate attempt to
understate the suit’s valuation contrary to the stated averments
and Clause (2) of the alleged agreement.
21.13) The basement floor was never handed over to the
plaintiff. Possession was given only for the mezzanine and first
floors, which were part of the agreed transaction. The plaintiff’s
claim regarding basement possession is false.
21.14) The execution of the rent deed pertaining to the
basement was permitted as a goodwill gesture, enabling the
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plaintiff to realize rent from the tenant, as possession of the
terrace portion was yet to be handed over. This arrangement was
made due to cordial relations prevailing at the time and does not
constitute evidence of sale or transfer.
22. Replication was filed by plaintiff wherein he denied
the contents of written statement and reiterated and reaffirmed
the contents of the plaint.
23. Vide order dated 09.11.2010, the following issues
were framed on the basis of the pleadings of the parties :
(i) Whether the suit has been properly valued for
the purpose of court fees and whether
appropriate court fees has been paid ? OPD
(ii) Whether the suit is liable to be rejected under
Order VII Rule 11 (a) CPC ? OPD
(iii) Whether there was any agreement to sell entered
between the plaintiff and the defendant in respect
of property bearing no.C-79, Okhla Industrial
Area, Phase-I, New Delhi, if so, to what effect ?
OPP
(iv) If issue no.(iii) is decided in affirmative, whether
the plaintiff had paid the entire sale
consideration of Rs.77 lacs to the defendant, if so,
on what date and to what effect ? OPP
(v) Whether the plaintiff is entitled to a decree of
specific performance, if so, to what effect ? OPP
(vi) Relief.
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24. Vide order dated 25.02.2011, the Ld. Predecessor
with the consent of the parties, framed the following additional
issues :
(g) Whether the plaintiff rented out the basement of
the suit property bearing no.C-79, Okhla
Industrial Area, Phase-I, New Delhi in his own
capacity as owner as alleged by the plaintiff or on
behalf of the defendants as alleged by the
defendants ? OPP & OPD
(h) Whether the plaintiff voluntarily refunded the
security amount to the defendants ? OPP
(i) Whether the payment of Rs.10,00,000/- made by
the defendants to the plaintiff was towards sale
consideration as alleged by the plaintiff or
towards re-payment of a friendly loan as alleged
by the defendants ? OPP & OPD
25. In order to prove his case, plaintiff examined
himself as PW-1 and tendered his evidence by way of affidavit
Ex.PW1/A and relied upon the following documents :
Ex.PW1/1 Copy of passport of plaintiff.
Ex.PW1/2 Letter dated 17.04.2007 issued by UBI, Purhiran
Branch.
Ex.PW1/3 Copy of passbook issued to plaintiff by SBI,
Parliament Street.
Ex.PW-1/4 Letter dated 28.03.2007 issued by UBI, Purhiran
Branch.
Ex.PW-1/5 Letter dated 17.04.2007 issued by Branch
Manager, UBI, Purhiran Branch.
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Ex.PW-1/6 Agreement of April, 2005.
Ex.PW-1/7 Copy of notice dated 25.08.2008.
Ex.PW-1/8 Postal receipt and AD Card.
(colly)
Ex.PW-1/9 Copy of name change demand note, duly
acknowledged by BSES Rajdhani Power Ltd.
Ex.PW-1/10 Revised Demand Note duly acknowledged by
BSES Rajdhani Power Ltd.
Ex.PW-1/11 Rent Deed for the basement.
Ex.PW-1/12 Rent Deed for the Mezzanine.
Ex.PW-1/13 Rent Deed for the Mezzanine.
Ex.PW-1/14 Rent Deed for the Mezzanine.
Ex.PW-1/15 Income Tax Return form for the assessment year
2006-2007.
Ex.PW-1/16 Income Tax Return form of wife of PW-1 for the
assessment year 2006-2007.
Ex.PW-1/17 Passbook of S.B. Account no.011090010279.
Ex.PW-1/18 Building plan of the plot no.C-79, Industrial
Area, Phase-I, New Delhi.
Ex.P-1 Original Agreement to sell and purchase dated
04.04.2006.
Ex.P-2 Original GPA executed by Sh. Ajeet Singh
Sachdeva in favour of Sh. Rajpal Kalia and Smt.
Rampiari Kalia.
Ex.P-3 Original Will dated 04.04.2006 executed by
Smt. Swarnjeet Kaur in favour of Sh. Rajpal
Kalia and Smt. Rampiari Kalia.
Ex.P-4 Original Will dated 04.04.2006 executed by Sh.
Harjeet Singh Sachdeva in favour of Sh. Rajpal
Kalia and Smt. Rampiari Kalia.
Ex.P-5 Original Receipt.
Ex.P-6 Original Receipt.
Ex.P-7 Original Possession Letter.
Ex.P-8 Original Affidavit of Smt. Swarnjeet Kaur and
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Sh. Harjeet Singh Sachdeva.
Ex.P-9 Original Affidavit of Smt. Swarnjeet Kaur and
Sh. Harjeet Singh Sachdeva.
Ex.P-10 Original SPA executed by Sh. Ajeet Singh
Sachdeva in favour of Sh. Rajpal Kalia and Smt.
Rampiari Kalia.
Ex.P-11 Original SPA executed by Sh. Ajeet Singh
Sachdeva in favour of Sh. Rajpal Kalia and Smt.
Rampiari Kalia.
Ex.P-12 Original SPA executed by Sh. Ajeet Singh
Sachdeva in favour of Sh. Rajpal Kalia and Smt.
Rampiari Kalia.
Ex.P-13 Original indemnity bond executed by Smt.
Swarnjeet Kaur and Sh. Harjeet Singh Sachdeva
in favour of in favour of Sh. Rajpal Kalia and
Smt. Rampiari Kalia.
26. The evidentiary affidavit of PW-2 Sh. Manoj Kumar
Sharma was taken off record on the submissions of learned
counsel for plaintiff recorded in order dated 16.09.2014.
27. Plaintiff further examined Dr. Nagendra Prasad
Dube as PW-3, who tendered his evidence by way of affidavit
Ex.PW-3/A and relied upon the documents already exhibited in
the testimony of PW-1. Plaintiff further examined Sh. B.K.
Chaudhary, Branch Manager, Union Bank of India, Purhiran
Branch, Punjab as PW-4 who proved the records relating to FDR
No.109/3158 and FDR No.110/3159 as Ex.PW-4/2 (colly).
Plaintiff further examined Sh. Ashok Kumar, Messenger, State
Bank of India, Special NRI Branch, New Delhi as PW-5 who
proved the letter dated 21.02.2017 as Ex.PW-5/1 to the effect that
there is no transaction in the questioned account between the
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period 01.09.2014 to 01.12.2015 which is wrongly typed as
01.12.2005.
28. Plaintiff further examined Ms. Anuradha Jain, Chief
Manager, State Bank of India (Special NRI Branch), Parliament
Street, New Delhi as PW-6 who proved the statement of account
of Sh. Raj Pal Kalia having saving account no.01192463070 for
the period 1st September, 2004 to 1st December, 2005 as
Ex.PW-6/1. Plaintiff further examined Sh. Yash Pal, Assistant
Personnel Officer, Branch Office, Alakhnanda Division, G.K.-II,
New Delhi as PW-7 who proved the record pertaining to
electricity connection new K.No.2510N0620295 in the name of
M/s Casbas Enterprises, alongwith the name change demand
receipt for a sum of Rs.15,000/- dated 18.03.2005 and revised
demand note (load enhancement) for a sum of Rs.42,000/- dated
18.03.2005 and the complete connection file as Ex.PW-7/A
(OSR).
29. All the plaintiff’s witnesses were cross examined at
length. Vide separate statement of learned counsel for plaintiff
dated 28.11.2018, plaintiff evidence was closed.
30. Subsequent, thereto, the matter was fixed for
defendant’s evidence. In support of the defence taken, defendant
examined Sh. Harjeet Singh Sachdeva as DW-1 who tendered his
evidence by way of affidavit Ex.DW-1/A. Defendant’s evidence
was closed vide order dated 20.10.2023.
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31. Subsequent thereto, the matter was fixed for final
arguments which were heard conclusively on 22.05.2025 and
thereafter, the matter was fixed for pronouncement of judgment.
32. The final submissions of the plaintiff :
32.1) It is an undisputed fact that the rent deeds pertaining
to the First Floor, Basement, and Mezzanine Floor of the
property in question have been executed and proved by the
plaintiff. From these documents, it is evident that the defendants
handed over possession of the entire building–except the
Ground Floor–to the plaintiff. Further, the plaintiff was granted
unfettered rights of usage, including the right to let out these
portions and receive rental income therefrom.
32.2) The electricity and water connections for the entire
property, i.e., Property No. C-79, Okhla Industrial Area, Phase-I,
New Delhi, stand in the name of the plaintiff, establishing his
continuous and effective possession of the premises.
32.3) The contention of the defendants that the initial sum
of Rs.10 lakhs received from the plaintiff was a ‘friendly loan’ is
incorrect and contrary to the facts on record.
32.4) The defendants have not denied the execution of the
agreement dated April 2005 between the plaintiff and (1) Smt.
Swarnjeet Kaur and (2) Sh. Harjeet Singh Sachdeva. Their only
reliance is on Clause 6 of the said agreement. After receiving the
full sale consideration, possession of the entire building–
excluding the Ground Floor–was handed over to the plaintiff.
Accordingly, the plaintiff is entitled to protection under the
doctrine of part performance as codified under Section 53A of
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the Transfer of Property Act, 1882, pending the grant and
enforcement of a decree of specific performance.
32.5) The agreement dated 04.04.2006 is distinct and
independent of the earlier agreement executed in April 2005. The
earlier agreement pertained to the entire building and forms the
foundation of the present suit for specific performance.
32.6) The plaintiff has valued the suit properly for the
purpose of pecuniary jurisdiction and in case of any deficiency,
the plaintiff is willing to pay the requisite court fees.
Legal Propositions Advanced by the Plaintiff
(i) The mere presence of a clause stipulating liquidated
damages in the agreement does not render a suit for specific
performance non-maintainable. Furthermore, escalation in
property prices is not a valid ground to deny specific
performance.
(ii) Where the conduct of the parties demonstrates the
seller’s intent to sell and the buyer’s readiness and willingness to
purchase, and where the buyer has complied with his contractual
obligations, the Court must exercise its discretion in favour of
granting specific performance, irrespective of any clause
pertaining to liquidated damages. [Ref.: P.S. Ranakrishna Reddy
v. M.K. Bhagyalakshmi & Anr., (2007) 10 SCC 231].
(iii) In cases where the seller admits execution of the
agreement to sell and acknowledges the receipt of substantial sale
consideration, the plaintiff need not establish anything further to
claim relief of specific performance. The plaintiff in the instant
case has proved readiness, willingness, and performance of his
CS No .210225/2016 Page 16 of 35 DJ-06/SE/SKT/Delhi
part by transferring the entire agreed consideration. [Ref.: P.
Ramasubbamma v. Vijayalakshmi & Ors., (2022) 7 SCC 384].
Additional Judgments Relied Upon by the Plaintiff:
(a) R. Hemalatha v. Kashthuri, (2023) 10 SCC 725.
(b) Zarina Siddiqui v. A. Ramalingam @ R. Amarnathan, (2015) 1 SCC 705. (c) C. Cheriathan v. P. Narayanan Embranthiri, (2009) 2 SCC 673 (d) Kamal Kant Jain vs. Surinder Singh, (2019) 11 SCC 432.
33. The Final submissions of the defendants:
33.1) The suit has not been properly valued, and requisite
court fees have not been paid. The plaintiff ought to have valued
the suit at ₹77 lakhs, being the alleged sale consideration, and
paid court fees accordingly. No basis for the valuation at ₹59
lakhs has been furnished.
33.2) The suit is devoid of a valid cause of action and,
therefore, is liable to be dismissed.
33.3) The oral agreement dated 10.10.2004 has been
categorically denied in the written statement. The agreement to
sell dated Nil, allegedly signed by Defendant No.2, is disputed as
a forged and fabricated document. The signatures of Defendant
No.2 thereon are specifically denied.
33.4) The registered agreement to sell dated 04.04.2006,
pertaining to the entire mezzanine floor, entire first floor, and half
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terrace rights (front portion), for a consideration of ₹18 lakhs, is
admitted. Plaintiff, in his replication, has not disputed its
execution or existence.
33.5) The plaintiff’s version of an oral agreement dated
10.10.2004 for the sale of basement, ground floor, mezzanine
floor, and first floor for ₹77 lakhs, and a subsequent agreement
dated Nil, is inconsistent with para 5 of the plaint and clauses 1
and 2 of the agreement dated Nil. Payments allegedly made prior
to April 2005–by cheques and cash–are not reflected in the
said agreement dated Nil. Instead, the agreement records receipt
of ₹83 lakhs and lays down a future payment schedule. These
contradictions discredit the plaintiff’s narrative.
33.6) Cheques bearing nos. 230547 (dated 18.01.2005)
and 230548 (dated 02.02.2005) are acknowledged as part of the
registered agreement dated 04.04.2006. Similarly, cheque no.
142198 is admitted by the plaintiff.
33.7) By admitting the registered agreement dated
04.04.2006 (Ex.P-1), plaintiff acknowledges that the above
cheques were payments under that agreement, not under the
disputed oral or unregistered agreement. No explanation has been
provided for this contradiction.
33.8) The plaintiff has failed to establish payment of ₹77
lakhs as alleged. The initial cheque of ₹10 lakhs (cheque no.
45551 dated 28.10.2004) was extended as a friendly loan and
repaid by two cheques of ₹6 lakhs and ₹4 lakhs dated
08.03.2006 and 15.03.2006 respectively. This fact is not disputed
by the plaintiff in the replication.
CS No .210225/2016 Page 18 of 35 DJ-06/SE/SKT/Delhi
33.9) A comparison of the agreement dated Nil and the
registered agreement dated 04.04.2006 reveals that the former
lacks signatures of Defendant No.2 on each page and is executed
on plain paper. Defendant No.3 is named as a party but has not
signed it. The signatures of Defendant No.2 do not match.
Plaintiff has failed to produce any attesting witness. The
agreement also omits reference to the chain of title. These
infirmities and inconsistencies undermine its authenticity and the
plaintiff’s claims.
33.10) Even if ₹10 lakhs are assumed to be part of the
consideration, partial payment does not entitle the plaintiff to
seek specific performance in respect of an unproven and non-
existent agreement, particularly in the backdrop of substantial
rise in property prices since 2004, which would cause great
hardship to the defendants.
33.11) The transaction pertains to 2004-2005, and the suit
was filed in 2007. The 2018 amendment to the Specific Relief
Act, which restricts judicial discretion, is not applicable
retrospectively. Hence, the Court retains discretion whether or
not to grant specific performance [Ref.: Katta Sujatha Reddy v.
Sidhamsetty Infra Project Pvt. Ltd., (2023) 1 SCC 355].
33.12) The plaint lacks essential averments regarding
plaintiff’s “readiness” to perform his obligations. A bald
statement in the plaint regarding willingness is insufficient.
Furthermore, no cogent evidence has been led to prove readiness
and willingness or the alleged cash payments, especially ₹6 lakhs
said to be paid last. [Ref.: Mehboob Ur Rehman v. Ahsanul
Ghani, AIR 2019 SC 1178].
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33.13) There was no agreement for sale of the basement.
Plaintiff was merely permitted to collect rent from tenants on
defendants’ behalf due to cordial relations. Plaintiff refunded the
security deposit of ₹1,24,000 via cheque no. 142200 dated
28.03.2006. Plaintiff’s claim of ownership based on rent
agreements signed by him (in absence of defendant’s signatures
or prior knowledge) is untenable.
33.14) Plaintiff voluntarily refunded the security amount.
No evidence has been led to challenge this fact.
33.15) Plaintiff relies on Section 53A of the Transfer of
Property Act. However, in absence of a registered agreement to
sell and without possession over the portions now claimed,
plaintiff cannot invoke the protection of Section 53A.
34. Let us first discuss some of the relevant legal
proposition essentials for adjudication of a Civil Suit, which are
mentioned as under: –
34.1) It is well settled proposition of law that Plaintiff
must prove his entire case in accordance with law and stand on
his own legs. (Ref: Harish Mansukhani Vs. Ashok Jain, 2009
(109) ,DRJ 126 (DB) ; Ganpat Lal Vs. Nand Lal Hanswani &
Ors. AIR 1998 MP 209). In the judgment titled as Shri Sunil
Dang Vs. Dr. R.L.Gupta, CS(OS) 1617(2007), decided on
13.01.2009, It was held that even in the cases where Defendant is
ex-parte, responsibility of Plaintiff to prove his case does not get
diluted. On the contrary, on the Defendant being ex-parte, the
onus is more on Plaintiff to prove his case. When Defendant is
contesting the suit, the matters which are not disputed byCS No .210225/2016 Page 20 of 35 DJ-06/SE/SKT/Delhi
Defendant are deemed to be admitted and need not be proved.
However, when Defendant fails to appear, there can be no
admission and Plaintiff is to prove the entire case in accordance
with law.
34.2) There is an essential distinction between burden of
proof and onus of proof; burden of proof lies upon the person
who must prove a fact and it never shifts but the onus of proof
shifts. Such a shifting of onus is a continuous process in the
evaluation of evidence. (Ref: AIR 1964 SC Page 136; Section
101 & 102 of Indian Evidence Act).
34.3) It is the duty of the party to lead the best evidence in
his possession, which could throw light on the issue in
controversy and in case such material evidence is withheld, the
court may draw adverse inferences under section 114(g) of the
Evidence Act.
34.4) Plaintiff is required to produce best of evidence in
his possession and he is not entitled to get the decree on the basis
of failure of Defendant to prove his right or title. Plaintiff cannot
bank upon the weaknesses of Defendant in order to prove his
case on his own by producing the cogent materials. [Ref: Punjab
Urban Planning and Development Authority Vs. M/s Shiv
Saraswati Iron and Steel Re-rolling Mills , Civil Appeal No. 1734
of 1998 ].
34.5) Failure of a party to prove its defence does not
amount to admission nor it can reverse or discharge the burden of
proof of the Plaintiff (Ref: LIC of India & Ar. Vs. Ram Pal
Singh Bisen,(2010) 4 SCC 491).
CS No .210225/2016 Page 21 of 35 DJ-06/SE/SKT/Delhi
35. The issue-wise findings of the court are discussed as
under: –
Issue No.(i) : Whether the suit has been properly valued for
the purpose of court fees and whether
appropriate court fees has been paid? OPD
36. The onus to prove issue No. (i) was placed upon the
defendants. Upon consideration, the Court observes that although
no evidence has been adduced by the defendants in support of
their plea of improper valuation and inadequate court fees but
the defendants have referred to the averments made in the plaint
qua valuation of the suit and court fees. A perusal of the valuation
para reveals that the plaintiff has himself averred in the plaint
that the total consideration to be Rs.77,00,000/-, out of which
Rs.71,00,000/- has already been paid. Therefore, the plaintiff
ought to have valued the suit on the total sale consideration
amount of Rs.77,00,000/- and paid court fees accordingly. The
Court further notes that the plaintiff has failed to furnish the basis
for the valuation of the suit at Rs.59,00,000/- as rightly argued on
behalf of the defendants. Consequently, it is held that the suit has
not been properly valued and appropriate court fees have not
been paid thereon. Pertinently, the defendants have throughout
the adjudication of the suit maintained a consistent position
regarding the proper valuation and sufficiency of court fees.
However, at the stage of final adjudication, the proposition of the
defendant to cure the deficiency in valuation and court fees is
found to be belated and cannot be entertained at this juncture.
CS No .210225/2016 Page 22 of 35 DJ-06/SE/SKT/Delhi
Accordingly, Issue No. (i) is decided in favour of the defendants
and against the plaintiff.
Issue No.(ii) – Whether the suit is liable to be rejected under
Order VII Rule 11 (a) CPC? OPD
&
Issue No.(iii): Whether there was any agreement to sell
entered between the plaintiff and the
defendant in respect of property bearing
no.C-79, Okhla Industrial Area, Phase-I, New
Delhi, if so, to what effect? OPP
&
Issue No.(iv) : If issue no.(iii) is decided in affirmative,
whether the plaintiff had paid the entire sale
consideration of Rs.77 lacs to the defendant,
if so, on what date and to what effect? OPP
37. The aforesaid issues are being considered conjointly
as they are interrelated and can be adjudicated cumulatively. The
onus to prove issue No.(ii) lies upon the defendants, whereas
issues No.(iii) and (iv) are to be established by the plaintiff.
38. The plaintiff has alleged that an oral agreement to
sell was entered on 10.10.2004 with the defendants for the sale of
the basement, ground floor, mezzanine floor, and first floor of the
suit property for a consideration of Rs. 77 lakhs. In support, the
plaintiff also relies on a subsequent written agreement dated
“Nil”. The defendants, however, have denied the existence of
both agreements, terming the written agreement as forged and
CS No .210225/2016 Page 23 of 35 DJ-06/SE/SKT/Delhi
fabricated. The defendants, instead, rely on a registered
agreement to sell dated 04.04.2006, concerning the mezzanine
floor, first floor, and front half terrace for Rs. 18 lakhs–a
document not disputed by the plaintiff in the replication.
39. The plaintiff’s claim based on the oral agreement
and the subsequent written agreement dated “Nil” is inconsistent
with the pleadings and the contents of clauses 1 and 2 of the
alleged written agreement. As per paragraph 5 of the plaint, the
plaintiff claims to have made payments starting from 28.10.2004
to 02.02.2005 through cash and cheques. However, the
agreement dated “Nil”, said to be executed on 01.04.2005, does
not record any of these earlier payments, which casts serious
doubt on the plaintiff’s version.
40. The agreement dated “Nil” states that Rs. 23 lakhs
had already been paid, Rs. 14 lakhs was to be paid in the first
week of May 2005, and the balance Rs. 40 lakhs by August 2005.
This payment schedule contradicts the plaintiff’s claim of full
payment of Rs. 77 lakhs prior to April 2005. Moreover, two
cheques dated 18.01.2005 and 02.02.2005, allegedly issued under
the oral agreement, are in fact shown in the registered agreement
dated 04.04.2006. This alignment with the defendants’ version
undermines the plaintiff’s claim.
41. Another cheque, bearing no. 142198, is also referred
to in the registered agreement and is admitted by the plaintiff in
para 27 of the plaint. However, the plaintiff fails to explain the
CS No .210225/2016 Page 24 of 35 DJ-06/SE/SKT/Delhi
contradictory treatment of this payment–whether it pertains to
the oral agreement or the registered one–thus weakening the
credibility of the claim.
42. The cheque for Rs. 10 lakhs dated 28.10.2004,
claimed by the plaintiff as part of the sale consideration, has been
admitted as a friendly loan in the replication. It was repaid by the
defendants through two cheques dated 08.03.2006 and
15.03.2006 for Rs. 6 lakhs and Rs. 4 lakhs respectively.
Therefore, the plaintiff’s assertion that the amount formed part of
the consideration under an agreement to sell is not sustainable.
43. A comparison between the agreement dated “Nil”
and the registered agreement dated 04.04.2006 reveals several
irregularities. The signatures of defendant no. 2 are not found on
every page of the alleged agreement dated “Nil”, while the
registered agreement bears signatures on every page. Further, the
alleged agreement is executed on plain paper and mentions
defendant no. 3 as a party without bearing their signature. The
signatures of defendant no. 2 in both documents do not match.
44. The plaintiff has not produced any witness to the
alleged agreement dated “Nil”. The document also fails to
mention the chain of ownership of the property, which is
otherwise properly recorded in the registered agreement. These
deficiencies support the defendants’ plea that the document dated
“Nil” is not genuine.
CS No .210225/2016 Page 25 of 35 DJ-06/SE/SKT/Delhi
45. The plaintiff has not produced any receipts or
documentation to establish the alleged cash payments. Mere
withdrawal of funds from a bank account does not amount to
proof of delivery of cash to the defendants. The absence of any
reference to these cash transactions in the agreement dated “Nil”
and the contradictory payment terms further discredit the
plaintiff’s version.
46. Based on the foregoing discussion, it is clear that the
plaintiff has failed to establish the existence of an oral agreement
dated 10.10.2004 for the sale of the entire property. The
pleadings are self-contradictory and unsupported by credible
evidence. The payments claimed under the oral agreement have
either been accounted for under the registered agreement or
acknowledged as friendly loans.
47. The written agreement dated “Nil” lacks
authenticity. It is not signed by all concerned parties, does not
mention key details such as cash transactions and property
ownership, and contains a contradictory payment schedule. The
absence of attesting witnesses and unmatched signatures further
renders the document unreliable.
48. The only valid and admitted agreement on record is
the registered agreement dated 04.04.2006, which relates only to
a portion of the property and is supported by bank instruments
and documentary evidence.
CS No .210225/2016 Page 26 of 35 DJ-06/SE/SKT/Delhi
49. The plaintiff’s case rests on vague, contradictory,
and unsubstantiated claims. No credible evidence has been led to
prove payment of Rs. 77 lakhs or to establish the oral or written
agreements relied upon. Accordingly, the suit is without merit.
In view of the above discussion, issue No. (ii) is
decided in favour of the defendants and against the plaintiff.
Issue No. (iii) is decided against the plaintiff and in favour of the
defendants. Issue No. (iv) does not survive in view of the
findings on Issue No. (iii) and is answered in the negative.
Issue No.(v): Whether the plaintiff is entitled to a decree of
specific performance, if so, to what effect?
OPP
50. The onus to prove the issue lies upon the plaintiff. It
was contended on behalf of the defendants that the transaction in
question pertains to the year 2004-2005. The Specific Relief Act,
1963, was amended in the year 2018, whereby the discretionary
power of the Courts to grant specific performance was taken
away. However, in the judgment Katta Sujatha Reddy vs.
Siddamsetty Infra Projects Pvt. Ltd. (Supra), it was categorically
held that the 2018 Amendment to the Specific Relief Act is
prospective in nature and not retrospective. Therefore, the said
amendment would not be applicable to the facts and
circumstances of the present case and this court has a discretion
as to whether allow or disallow the relief of Specific
Performance as sought by the plaintiff.
CS No .210225/2016 Page 27 of 35 DJ-06/SE/SKT/Delhi
51. It was further argued that the plaintiff’s pleadings
are essentially directed towards establishing the existence of an
oral agreement to sell dated 10.10.2004 and another undated
agreement to sell. The inconsistencies and absence of precise
documentary proof as explained above, according to the
defendants, are fatal to the claim for specific performance sought
by the plaintiff.
52. Conversely, it was argued on behalf of the plaintiff
that the interpretation given by the defendants to the 2018
Amendment is erroneous, and the judgment relied upon by the
defendants, in fact, supports the case of the plaintiff.
53. Upon consideration of the rival contentions and the
judgment relied upon, this Court is of the view that it continues
to retain discretion in granting or refusing the relief of specific
performance, as clarified by the ratio laid down in Katta Sujatha
Reddy (Supra). This Court, while adjudicating upon issue Nos.
(ii), (iii) and (iv), has already held that the plaintiff has failed to
prove the execution of the alleged oral agreement dated
10.10.2004 and the undated agreement to sell. Further, the
plaintiff has also failed to demonstrate that he was ready and
willing to perform his part of the contract, which is a
fundamental requirement for seeking specific performance under
Section 16 of the Specific Relief Act.
54. A perusal of the plaint reveals that beyond a bald
averment that the plaintiff has performed and is willing to
CS No .210225/2016 Page 28 of 35 DJ-06/SE/SKT/Delhi
perform his part of the contract, there is no substantiating
evidence to prove such readiness or willingness. In fact, there is a
complete absence of any specific averment regarding the
plaintiff’s readiness. No evidence has been led by the plaintiff to
substantiate the same.
55. Moreover, the plaintiff has failed to connect the
payments referred to in the plaint, including the payment of
Rs.6,00,000/- in cash allegedly made as the last payment, with
the alleged agreements to sell. Instead, the plaintiff’s pleadings
reflect an attempt to assert the existence of an oral agreement
dated 10.10.2004 and an undated agreement, without any cogent
foundation. Additionally, there exist self-contradictory statements
in the plaint, which stand in conflict with the plaintiff’s own
documentary evidence, as noted in the findings on Issue Nos. (iii)
and (iv).
56. This Court, therefore, finds that the plaintiff is
attempting to manufacture a case for an agreement to sell in
relation to the property in question. Such conduct disentitles the
plaintiff to the equitable relief of specific performance.
57. Furthermore, the plaintiff has not produced any
credible evidence to establish the payment of sale consideration
in support of the averments made in paragraph 5 of the plaint.
Even assuming the plaintiff’s contentions to be true, the alleged
payment of Rs.10,00,000/- by cheque against a purported total
consideration of Rs.77,00,000/- does not create any enforceable
CS No .210225/2016 Page 29 of 35 DJ-06/SE/SKT/Delhi
right in favour of the plaintiff to seek specific performance of a
non-existent agreement.
58. Additionally, this Court takes judicial notice of the
fact that since the year 2004, there has been a substantial increase
in the market value of the suit property. The grant of specific
performance, being an equitable and discretionary remedy,
cannot be allowed in the present case as it would cause undue
hardship to the defendants, as rightly argued on their behalf.
59. It is also relevant to note that the evidence led by the
plaintiff does not disclose any material against the defendants
that would justify the grant of specific performance.
60. In view of the foregoing observations, this Court
concludes that the plaintiff is not entitled to the discretionary
relief of specific performance as prayed for in the suit. The issue
in hand is accordingly decided against the plaintiff and in favour
of the defendants.
Issue No.(g) : Whether the plaintiff rented out the basement
of the suit property bearing no.C-79, Okhla
Industrial Area, Phase-I, New Delhi in his
own capacity as owner as alleged by the
plaintiff or on behalf of the defendants as
alleged by the defendants? OPP & OPD
CS No .210225/2016 Page 30 of 35 DJ-06/SE/SKT/Delhi
61. The burden of proof for the present issue rests
equally upon both the parties. The defendants contended that they
were never handed over possession of the frontside terrace.
However, in view of the then-cordial relations between the
parties, the defendants permitted the plaintiff to collect rent from
the basement portion of the property on a temporary basis. It was
specifically argued that there was no agreement for the sale of the
basement. On the other hand, the plaintiff submitted that the
defendants’ acknowledgment of the rent deed and rental receipts
pertaining to the property supports the assertion that the entire
property was agreed to be sold to him vide an oral agreement to
sell dated 10.10.2004 and another agreement to sell dated NIL.
62. In this regard, it is pertinent to note that while
adjudicating Issue Nos.(iiselect), (iii) and (iv), the Court has
already recorded a finding that no agreement to sell was entered
into between the parties with respect to sell out the entire
property and that the plaintiff has failed to prove that he paid the
entire sale consideration of Rs. 77 lakhs to the defendants for
purchase of the whole property. Qua this issue also, the Court
finds that no cogent evidence was led by the plaintiff to
substantiate the existence of any agreement for the sale of the
entire property and specifically for the sale of the basement
portion. Understandably, the plaintiff’s reliance on the rent
agreements, wherein he signed as the owner of the basement,
does not, in and of itself, confer any ownership rights as rightly
argued on behalf of the defendants. Importantly, the defendants
were not signatories to any of these rent agreements. Moreover, it
CS No .210225/2016 Page 31 of 35 DJ-06/SE/SKT/Delhi
has not been the case of the plaintiff that he informed or
exhibited the rent agreement relating to the basement floor to the
defendants prior to executing the same with the tenant. The
electricity and water connection in the name of the plaintiff is
insufficient to prove ownership of the plaintiff in the entire
property . In light of the above facts and circumstances, it stands
proved on record that there is no evidence to show that the
plaintiff had rented out the basement of the property in his own
capacity as owner as claimed by him. Hence, the issue is decided
against the plaintiff and in favour of the defendants accordingly.
Issue No.(h) : Whether the plaintiff voluntarily refunded the
security amount to the defendants? OPP
63. The onus to prove this issue is upon the plaintiff.
The defendants have not disputed that the plaintiff voluntarily
refunded the security amount. Otherwise, also there is no
evidence on the record to the contrary, as argued on behalf of the
defendants. Furthermore, in view of the findings returned on the
issues as discussed above, this issue has become redundant.
Hence, this issue is decided in favour of the plaintiff
accordingly.
Issue No.(i): Whether the payment of Rs.10,00,000/- made
by the defendants to the plaintiff was towards
sale consideration as alleged by the plaintiff
or towards re-payment of a friendly loan as
alleged by the defendants? OPP & OPD
CS No .210225/2016 Page 32 of 35 DJ-06/SE/SKT/Delhi
64. The burden of proof for the present issue rests
equally upon both the parties. It was contended on behalf of the
plaintiff that the assertion made by the defendants–that the
initial sum of ₹10,00,000/- received by them from the plaintiff
was a ‘friendly loan’–is erroneous and inconsistent with the
material facts and evidence available on record. The plaintiff
further submitted that the defendants have not denied the
execution of the agreement dated April 2005, entered between
the plaintiff and (1) Smt. Swarnjeet Kaur and (2) Shri Harjeet
Singh Sachdeva. The defence taken by the defendants’ rests
solely on the interpretation of Clause 6 of the said agreement.
65. It was further submitted on behalf of the plaintiff
that, pursuant to receipt of the full sale consideration, possession
of the entire building–except the Ground Floor–was handed
over to the plaintiff. On this basis, the plaintiff claimed
entitlement to the protection available under the doctrine of part
performance as enshrined in Section 53-A of the Transfer of
Property Act, 1882, pending the grant and execution of a decree
for specific performance.
66. Per contra, the defendants reiterated their stand that
the amount of ₹10,00,000/- was advanced by the plaintiff as a
friendly loan and was not in discharge of any sale consideration.
It was argued that the said amount was duly repaid by the
defendants by way of two cheques and the issuance and receipt
of the said cheques stand admitted by the plaintiff in the
replication.
CS No .210225/2016 Page 33 of 35 DJ-06/SE/SKT/Delhi
67. In this context, the Court notes that, according to the
plaintiff’s own pleadings, there is no registered agreement to sell
in favour of the plaintiff with respect to the subject property. The
claim for relief in the plaint is based upon unregistered and
disputed agreements, which do not fulfil the statutory
requirements necessary for invoking legal protection under the
Transfer of Property Act, 1882.
68. Consequently, the Court is of the view that the
plaintiff cannot derive any benefit from the provisions of Section
53-A of the Transfer of Property Act, 1882. The essential pre-
condition for invoking the said provision–namely, the existence
of a valid and duly registered agreement to sell–is clearly absent
in the present case.
69. Additionally, it is not in dispute that the plaintiff is
not in possession of those portions of the property in respect of
which the relief of specific performance is being sought. In the
absence of possession and in the absence of a registered
instrument evidencing the agreement to sell, the plaintiff is not
entitled to equitable relief or statutory protection under Section
53-A of the Transfer of Property Act, 1882.
70. Hence, it is established on record that the payment
of Rs.10,00,000/- made by the defendants to the plaintiff was not
towards sale consideration as alleged by the plaintiff. The issue in
hand is accordingly decided in favour of the defendants and
against the plaintiff.
CS No .210225/2016 Page 34 of 35 DJ-06/SE/SKT/Delhi
Relief :
71. In view of the findings returned on the issues
framed, the suit of the plaintiff stands dismissed leaving the
parties to bear their own costs.
72. Decree sheet be prepared accordingly.
73. File be consigned to record room after completion of
necessary formalities.
(Announced in the open Court
on 9th Day of June, 2025)
(Mona Tardi Karketta)
Additional Sessions Judge-01(South)
Special Court (POCSO)
Saket Courts/New Delhi
09.06.2025
Previously Posted as District Judge-06,
South East District, Saket Courts,
New Delhi
09.06.2025
Note: Judgment passed pursuant to the Order
No. 15/D-3/Gaz.IA/DHC/2025 dated 30.05.2025 of
the Hon’ble High Court of Delhi.
CS No .210225/2016 Page 35 of 35 DJ-06/SE/SKT/Delhi