Delhi District Court
Ajay Aggarwal vs Binod Kumar Verma on 30 May, 2025
IN THE COURT OF MS. PRABH DEEP KAUR: DJ-05,
SOUTH EAST DISTRICT, SAKET COURTS, DELHI
CNR NO. DLSE01-010192-2019
CS DJ No. 1077/19
AJAY AGGARWAL Vs. BINOD KUMAR VERMA
In the matter of :-
1. Mr. Ajay Aggarwal,
S/o Late Sh. Shyam Lal Aggarwal,
R/o BJ-40(East), Shalimar Bagh,
Delhi -110088
2. Mr. Sumit Garg,
S/o Sh. J.P. Aggarwal,
R/o D-166,
Laxmi Nagar, Delhi -110092 .......PLAINTIFFS
Versus
Mr. Binod Kumar Verma
S/o Sh. Sadhu Saran Lal,
R/o 7/52, Second Floor,
Ramesh Nagar, New Delhi -110015
Also At:
Premises No. 404, Fourth Floor,
DCM Building, Barakhamba Road,
New Delhi -110001 ......... DEFENDANT
Date of Institution : 11.12.2019
Arguments concluded on : 05.05.2025
Date of Judgment : 30.05.2025
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION
JUDGMENT
1. Vide this Judgment, the suit of the plaintiff for specific performance and permanent injunction, filed against the defendant has been disposed off.
CS DJ 1077/19 Page no. 1/27AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP 2025.05.31 Date:
KAUR 16:27:38 +0530 Case of the plaintiff:
2. Plaintiffs entered into an agreement to sell dated 24.01.2019 (hereinafter called as ATS) qua the suit property with defendant. The ATS was signed only by plaintiff no. 2, as representative of both plaintiffs, due to non-availability of plaintiff no. 1. The ATS was executed on 25.01.2019 in the office of Mr. Bhawesh Kumar (PW-3)/witness to ATS. The total sale consideration was Rs. 50,90,000/- out of which a sum of Rs. 26,50,000/- had duly been received by the defendant at the time of signing of ATS. Rs. 10,00,000/- was paid by way of RTGS and the balance payment of Rs. 16,50,000/- was paid in cash by the plaintiffs and the payment was duly acknowledged by defendant in the ATS. At the time of execution of ATS, defendant had handed over the originals of the registered arguments qua the suit property to the plaintiffs. The plaintiffs were very well in the capacity to pay the balance sum i.e. Rs. 24,40,000/- left out of the total sale consideration price. The plaintiffs had contacted the defendant on numerous occasions, by way of personal visits, telephonic conversations and various other modes of communication, but defendant had miserably failed to oblige to the persistent requests of plaintiffs on one pretext or the other and kept extending the time to execute sale deed qua the suit property. In the last week of October, an unknown person, claiming to be defendants' representative boy came to plaintiff no. l's office and handed over a pre-filled cheque, bearing no. 288870, drawn upon Indusind Bank, Nehru Place Branch, amounting to Rs. 26,50,000/-, but being blank on account of date and drawees' name; citing that defendant had instructed him to CS DJ 1077/19 Page no. 2/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2025.05.31 KAUR 16:28:03 +0530 deliver the said cheque to plaintiff no. 1 and bring back the originals of the ATS and registration documents qua the suit property. Plaintiff no. 1 refused to take the cheque but the said person left the cheque and left the office of plaintiff no. 1 with the threats that defendant, being powerful man, will look into the matter himself. Defendant had failed to executed sale documents in favour of plaintiffs despite repeated requests, therefore, plaintiffs sent a legal notice dated 02.11.2019 through their counsel, inter alia for specific performance of ATS notifying the defendant to execute a sale deed in pursuance of ATS but of no avail. The plaintiffs are ready and willing to perform their part of ATS, the plaintiffs are having sufficient funds to the tune of Rs. 24,40,000/- payable to the defendant on account of execution of sale deed qua the suit property.
Defence of defendant
3. The defendant asked for the loan of Rs. 51,00,000/- by keeping the title documents of the suit property as security with the plaintiffs for the sake of security and the plaintiffs asked for the execution of the ATS which was never intended to be culminated into execution and registration of sale deed by the defendant in favour of the plaintiffs. However, in good faith the defendant signed the said ATS after receiving a sum of Rs. 10,00,000/-through RTGS, upon assurance of plaintiffs to pay remaining sum of Rs. 16,50,000/- after 25.01.2019 which has never been paid till date. The particulars of column No.2 of ATS are false as the said amount was never paid to the defendant by the plaintiffs as revealed therein that on 24.01.2019 the defendant (allegedly) received a sum of Rs. 16,50, 000/- from the plaintiffs.
CS DJ 1077/19 Page no. 3/27AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2025.05.31 KAUR 16:27:52 +0530 As the plaintiffs did not perform their bonafide contractual obligations towards the defendant, hence, the further payment of interest on said sum of Rs. 10,00,000/- has not been paid by the defendant. The suit property is worth more than Rs.1 Crore thereby its sale for a sum of Rs. 51,00,000/- is figment of imagination of the plaintiffs. Out of desired loan amount of Rs. 50,90,000/- only a sum of Rs. 10,00,000/- has been paid to the defendant on 25.01.2019. Thereafter, inspite of repeated requests of the defendant, the plaintiffs did not pay any amount to him and through the present suit plaintiffs are trying to blackmail the defendant on the basis of having custody of his property papers. The plaintiff had not capacity to pay the alleged balance sum of Rs. 24,40,000/- to defendant. If the plaintiffs have not paid the said sum of Rs. 16,50,000/- to the defendant then it is unbelievable that they are capable of paying the alleged balance amount of Rs. 24,40,000/- to the defendant. It is specifically denied that in last week of October an unknown person claiming to be defendant's representative office boy went to office of the plaintiffs at BT-13, Shalimar Bagh, Delhi and handed over a prefilled cheque bearing no. 288870, drawn upon Indus Bank, Nehru Place Branch, New Delhi amounting to Rs. 26,50,000/-. This averments prime facie reveals and proves that the agreement to sell was never executed for the purpose of its culmination into execution and registration of sale deed of the suit property, otherwise, why should, presuming not admitting at all, the defendant will handover the said cheque to plaintiffs. Rebuttal by plaintiff by way of replication:
4. The plaintiff has filed replication to the written statement CS DJ 1077/19 Page no. 4/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:28:12 +0530 of defendant thereby reaffirming and reiterating the contents of plaint and denying the contents of written statement. Issues
5. From the pleadings of the parties, following issues were framed vide order dated 20.04.2022:-
1. Whether plaintiff is entitled to the relief of specific performance of agreement to sell dated 24.01.2019, as prayed for? OPP
2. Whether the plaintiff is entitled to the Relief of permanent injunction as prayed for ? OPP
3. Relief.
6. Thereafter, matter was fixed for plaintiff's evidence. 6.1 In order to prove its case, the plaintiffs examined plaintiff no. 1 as PW-1. He has reiterated the facts of plaint in his affidavit Ex.PW1/A. He has relied upon the documents i.e.
i) Ex. PW1/1: Agreement to Sell dated 24.01.2019;
ii) Ex. PW1/2: Copy of the Statement of Account of plaintiff no.1 showing RTGS of Rs. 10,00,000/- dated 25.01.2019;
iii) Mark-PW2/Y: Copy of Aadhar Cards of friends and associates who had advanced cash to Plaintiff no. 1 and no.2.
iv) Ex. PW1/3: Copy of documents qua suit property (OSR);
v) Ex. PW1/4: Original Cheque for Rs. 26,50,000/-;
vi) Ex. PW1/5: Original Legal Notice dated 02.11.2019 alongwith Postal Receipts and Proofs of Service;
vii) Mark-PW1/B(Colly): Copy of documents showing comfortable cash/liquid funds position of plaintiff no. 1;
He was extensively cross examined at length by Sh. Naresh Sharma, Ld. Counsel for the defendant. 6.2 In order to prove its case, the plaintiffs examined plaintiff no. 2 /Sh. Sumit Garg, Chartered Accountant as PW-2. He has CS DJ 1077/19 Page no. 5/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP DEEP KAUR Date: 2025.05.31 KAUR 16:28:09 +0530 reiterated the facts of plaint in his affidavit Ex.PW2/A. He has also relied upon the documents which were relied upon by PW-1 during his testimony. He was extensively cross examined at length by Sh. Naresh Sharma, Ld. Counsel for the defendant. 6.3 Plaintiffs further examined Sh. Bhawesh Kumar i.e. the common friend and witness to the ATS as PW-3. He supported the fact stated by plaintiffs in the plaint. He was extensively cross examined at length by Sh. Naresh Sharma, Ld. Counsel for the defendant.
6.4 Plaintiffs further examined Sh. Nitin Garg as PW-4 who deposed that he paid friendly loan of Rs. 2,45,000/- in cash to plaintiff no. 2 on 23.01.2019. Further, Sh. Arvind Aggarwal was examined as PW-6 who deposed that he gave Rs. 2,40,000/- in cash to plaintiff no. 2 on 24.01.2019.
Both the witnesses were extensively cross examined at length by Sh. Naresh Sharma, Ld. Counsel for the defendant. 6.5 In order to support their claim, plaintiffs further examined Sh. Narender Kumar Mishra as PW-6 who deposed that he paid Rs. 2,30,000/- in cash in January 2019 to plaintiff no. 1, Sh. Arjun Singh as PW-7 who deposed that he paid Rs. 2,43,000/- in cash to plaintiff no. 1 in January 2019 and Sh. Gopal Singh as PW-8 who deposed that he paid Rs. 2,20,000/- to plaintiff no. 1 in cash and Sh. Rajesh Kumar as PW-9 who deposed that he paid Rs. 2,47,000/- in cash to plaintiff no. 1 in January 2019.
All these witnesses were extensively cross examined at length by Sh. Naresh Sharma, Ld. Counsel for the defendant. 6.6 In order to prove their financial capacity, plaintiffs summoned statement of account of plaintiff no. 1 through PW-11 CS DJ 1077/19 Page no. 6/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP DEEP KAUR Date: 2025.05.31 KAUR 16:28:22 +0530 i.e. Sh. Dheeraj Gupta, Sr. Manager, Union Bank of India who proved the statement of account of PW-1 for the period from June 2019 till February 2023. Plaintiff further summoned the statement of account of plaintiff no. 2 through Sh. Mohit Sharma, Deputy Manager, HDFC Bank who was examined as PW-13 and he proved statement of account of plaintiff no. 2 Ex. PW-13/1(colly) from June 2019 till February 2023. Plaintiff further summoned record of other accounts of plaintiff no. 2 through Sh. Sagar Garg, Bank of Baroda who was examined as PW-12 and he proved the document Ex. PW-12/1(colly) i.e. statement of account of plaintiff no. 2 from January 2019 till February 2023. Plaintiff further summoned Sh. Shubham Singh, AR of SMC Global Securities Ltd. who was examined as PW-14 and he proved document Ex. PW-14/1(colly) and Ex. PW-4/2(colly-90 pages) i.e. the statement of holding of securities held by plaintiff no. 1 alongwith its valuation report for the period 30.06.2019 to 21.07.2023. Plaintiff further examined Sh. Vinod Singh, AR of M/s Midas Global Securities Ltd. as PW-15 who proved the document Ex. PW-15/1(colly) i.e. statement of holding of security held by the defendant alongwith its valuation report for the period from 30.06.2019 to 31.03.2023.
All these witnesses were not cross examined by Sh. Naresh Sharma, Ld. Counsel for the defendant. 6.7 Plaintiffs further examined Sh. Rakesh Aggarwal as PW-16 who deposed that in the last week of October 2019 one unknown person came to his office and handed over the cheque Ex. PW-1/4 to plaintiff no.1 in his presence and asked the plaintiff no. 1 to hand over the original ATS and property CS DJ 1077/19 Page no. 7/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2025.05.31 KAUR 16:28:18 +0530 documents but plaintiff no. 1 denied to do so.
He was extensively cross examined at length by Sh. Naresh Sharma, Ld. Counsel for the defendant. Thereafter, matter was fixed for defendant's evidence.
7. Defendant examined himself as DW-1. He was extensively cross examined at length by Sh. Abhishek Sharma, Ld. Counsel for the plaintiff.
Further, defendant examined Sh. Ajay Prakash Mishra as DW-2. He was extensively cross examined at length by Sh. Abhishek Sharma, Ld. Counsel for the plaintiff. 8.1 On 16.02.2023 plaintiffs moved an application u/O 6 Rule 17 r/w Section 151 CPC r/w Section 22 of Specific Relief Act for the amendment of plaint and the same was allowed vide order dated 24.04.2024. However, defendant has preferred to rely upon original WS. In view of the amended plaint, following additional issue was framed.
(4) Whether plaintiff is entitled for alternative relief of recovery of earnest money of Rs. 26 lacs alongwith interest as prayed for? OPP 8.2 In pursuant to additional issue, plaintiffs have summoned Sh. Shaharyab Khan, Branch Indusind Bank as PW-15 who proved the bank statement of defendant with respect to account from which cheque was issued. He was not cross examined by Sh. Naresh Sharma, Ld. Counsel for the defendant. Thereafter, PE was closed. Defendant has not led any evidence subsequent to additional PE. Therefore, matter was fixed for final arguments.
9. I have heard Ld. counsels for both the parties and meticulously gone through the record and also considered the CS DJ 1077/19 Page no. 8/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally signed by PRABH DEEP DEEP Date: 2025.05.31 KAUR KAUR 16:28:34 +0530 written arguments filed by them.
10. Both the parties have also filed written arguments in which they have reiterated the arguments addressed before the Court and same are not reproduced here in verbatim for the sake of brevity but will be dealt alongwith the findings upon issues at the relevant stage.
11. My issue-wise findings are as follows:-
Issue No. 1: Whether plaintiff is entitled to the relief of specific performance of agreement to sell dated 24.01.2019, as prayed for? OPP Issue no. 2: Whether the plaintiff is entitled to the Relief of permanent injunction as prayed for ? OPP Additional issue no. 4: Whether plaintiff is entitled for alternative relief of recovery of earnest money of Rs. 26 lacs alongwith interest as prayed for? OPP Issues no. 1, 2 and 4 are taken up together since they are interlinked involving common discussion and all the issues are inter dependent upon each other. The burden to prove the issues nos. 1, 2 and 4 was placed upon the plaintiff.
The crux of the matter is that both the parties have signed agreement to sell dated 24.01.2019 whereby plaintiff agreed to purchase the property of defendant for sum of Rs. 50,90,000/-. Admittedly, defendant has received Rs. 10 lacs by way of RTGS on 25.01.2019.
As per plaintiffs, they have also paid Rs. 16,50,000/- by way of cash on 25.01.2019 and thus they have paid a sum of Rs. 26,50,000/- towards earnest money and remaining amount was to be paid at the time of transfer of the property which was to be taken place on or before 30.06.2019. The plaintiffs further CS DJ 1077/19 Page no. 9/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP DEEP KAUR Date: 2025.05.31 KAUR 16:28:30 +0530 asserted that defendant failed to comply with the agreement to sell and in last week of October 2019, defendant offered refund of earnest money by way of cheque sent through some unknown person /AR of defendant.
While the defence of defendant is that there was a loan transaction between parties whereby plaintiffs agreed to give a loan of Rs. 51 lacs to the defendant and defendant deposited title documents of the suit property as a collateral security and plaintiffs only paid Rs. 10 lacs and assured to pay remaining sum of Rs. 16,50,000/- after 25.01.2019 but the same has not been paid till date, due to which defendant had not paid any interest to the plaintiffs. The defendant further asserted that the agreement to sell was signed in good faith but it was never to be acted upon and it is evident from the fact that the suit property is worth more than one crore and the cheque would never have been issued to the plaintiffs, had the agreement to sell was to be acted upon.
12. In order to get the decree in his favour, plaintiff is liable to prove that (a) that a valid agreement to sell was entered into between parties; (b) defendant committed breach of the agreement and (c) the plaintiff was always ready and willing to perform his part of obligation in terms of the agreement.
13. Execution of agreement to sell:
In the present suit, defendant has admitted that he signed the agreement to sell but he has taken the defence that it was never intended to be acted upon.
13.1 At this stage, it is important to look upon Section 91 and 92 of the Indian Evidence Act which are as follows:
91. Evidence of terms of contracts, grants and other dispositions of property CS DJ 1077/19 Page no. 10/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed by PRABH PRABH DEEP KAUR DEEP KAUR Date: 2025.05.31 16:28:44 +0530 reduced to form of documents.-When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence* shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, *[want or failure] of consideration, or mistake in fact or law:
Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document: Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved: Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:
Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract: Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts.
13.2 Section 91 runs into two parts. Its first part provides that if the terms of any contract, grant or other disposition of property have been reduced into a written document, then the existence of the document excludes all other evidence of its terms. Its second CS DJ 1077/19 Page no. 11/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:28:39 +0530 part provides that in all cases in which any matter is required by law to be reduced to the form of a written document, then the document itself must be put in evidence, unless secondary evidence of its contents is admissible under the Evidence Act. This section will obviousy apply where the parties intended the document to contain all the terms and conditions of the transaction. Where, however, it is shown that they did not intend to reduce all such terms and conditions into writing, then the section will not come into play and the parties will be entitled to give oral evidence of the terms which they did not intend to reduce into writing.
13.3 In the case of Bai Hira Devi v. Official Assignee, Bombay, AIR 1958 SC 448: (1958) 60 Bom LR 932, Gajendragadkar, J.
expounded the true scope and effect of section 91 thus (at pp. 449-50 of AIR):--
"Section 91 deals with the exclusion of oral by documentary evidence. The normal rule is that the contents of a document must be proved by primary evidence, which is the document itself in original. Section 91 is based on what is sometimes described as the 'best evidence rule'. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act."
13.4 Section 91 excludes extrinsic evidence in proof of the terms of contract, grant or other disposition of property, or in proof of a matter required by law to be reduced to the form of a document, and requires the production of the document itself except where secondary evidence becomes properly admissible. Section 92, on the other hand, says that when the terms of any CS DJ 1077/19 Page no. 12/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally signed by PRABH DEEP DEEP Date: 2025.05.31 KAUR KAUR 16:28:49 +0530 such contract, grant or other disposition of property, or of any matter required by law to be reduced to the form of a document, have been proved by the production of the document, or by secondary evidence where such evidence is admissible, evidence of any oral agreement or statement shall not be given for the purpose of contradicting, varying, adding to or subtracting from, the terms of the document. Both sections are deductions from what in English Law is called the "parole evidence, rule"; but whereas section 91 deals with the exclusiveness of documentary evidence, section 92 deals with the conclusiveness of such evidence; in other words, section 91 deals with the proof of matters mentioned in that section, but section 92 deals with what may, in a sense, be called disproof of such matters. 13.5 The Supreme Court in Gangabai v. Chhabubai, AIR 1982 SC 20: AIR 1999 SCW 4573, and Ishwar Dass Jain (dead) through L.R.s v. Sohan Lal (dead) by L.R.s, AIR 2000 SC 426, with reference to section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.
Thus, despite admission of defendant that he has signed the agreement, the defence of defendant that the agreement was never to be acted upon, can be proved by the defendant by way of oral or any other evidence and mere signing of the document CS DJ 1077/19 Page no. 13/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2025.05.31 KAUR 16:28:54 +0530 is not a proof that the document was executed between parties. The execution of an agreement requires more than mere signing of the agreement. It requires the intention of the parties that the parties signing the agreement want to act upon the agreement and the intention of parties can be gathered from the facts and circumstances of the case and evidence produced before the Court.
14.1 In the present case, both the plaintiffs have examined themselves as PW-1 and PW-2 respectively and they have deposed that the agreement to sell dated 24.01.2019 was executed on 25.01.2019 in the office of Mr. Bhawesh Kumar /PW-3 who is also a witness to be agreement. Plaintiffs have also examined Sh. Bhawesh Kumar as PW-3 who deposed that agreement to sell dated 24.01.2019 was executed on 25.01.2019 at the office of PW-3. Thus, both the plaintiffs and the witness to ATS, have categorically deposed that agreement to sell was dated 24.01.2019 but it was executed on 25.01.2019. Admittedly, the payment of Rs. 10 lacs was made by way of RTGS by plaintiff no. 1 to the defendant on 25.01.2019. As per plaintiffs, the remaining amount of Rs. 16,50,000/- was also paid on 25.01.2019 and admittedly no payment was made on 24.01.2019. 14.2 Now perusal of agreement to sell Ex. PW-2/1 shows that:
"AGREEMENT TO SELL This deed of agreement to sell is executed at Delhi on this 24 th day of January 2019 between Mr. Binod Kumar Verma S/O Shri Sadhu Saran Lal New Delhi. (Hereinafter called the 'FIRST PARTY') shall mean and include their respective heirs, successors, representatives and assigns of the ONE PART and Mr. Sumit Garg S/O J.P. Aggarwal R/o D-166, Luxmi Nagar Delhi-110092 and Ajay Aggarwal s/o Late Shyam Lal Aggarwal R/o BJ-40, East Shalimar bagh Delhi-88, India (Hereinafter called the SECOND PARTY') shall mean and include their respective heirs, successors, representatives and assigns........CS DJ 1077/19 Page no. 14/27
AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
KAUR 2025.05.31 16:28:59 +0530 That the FIRST PARTY has received Rs 26,50,000/- (Rupees Twenty six lacs fifty thousands only.) as a earnest amount Money from SECOND PARTY in the following mode:
Dated Cheque No Drawn on Amount 24-01-2019 10,00,000.00 24-01-2019 16,50,000.00
3. and the balance amount of Rs 24,40,000/- Rs. ( Rupees twenty four lacs fourty thousands Only) shall be paid by second Party to the first party at the time of transfer the said property/ flat."
Thus, as recorded in the ATS, it was executed on 24.01.2019 and even the payment is mentioned being made on 24.01.2019 and it contradicts the stand of plaintiffs. By virtue of Section 91 and 92 of Indian Evidence Act as explained above, the evidence adduced by plaintiffs to prove that the agreement was executed on 25.01.2019 and payment was also made on 25.01.2019, cannot be considered being contradictory to the terms and conditions mentioned in the written ATS relied by plaintiffs themselves.
14.3 Further, admittedly the payment to defendant was not made on 24.01.2019 when the ATS Ex. PW-2/1 was executed and thus, it corroborates the defence of defendant (as deposed by defendant during DE also) that no payment was made at the time of signing the agreement to sell. Moreover, the ATS Ex. PW-2/1 cannot be even considered as a contract because on the day when it was signed i.e. 24.01.2019, no consideration was paid to the defendant and agreement signed without payment of consideration is not binding upon the defendant.
15. Readiness & Willingness to perform the contract:-
(Assuring that ATS is binding upon the defendant) 15.1 Section 16(c) of the Specific Relief Act 1963 (as stood after the Amendment Act 18 of 2018) requires every plaintiff in a CS DJ 1077/19 Page no. 15/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:29:03 +0530 suit for specific performance to prove readiness and willingness to perform his part of the contract. Readiness means existence of financial capacity and willingness means intention to go ahead with the transaction.
15.2 In the present case, as per plaintiffs the time limit for the transfer of the flat has been mutually agreed as "on or before date 30th June 2019 between the parties". Further, the clause no. 5 and 6 have mentioned about the consequences of failure of any of the parties to perform their part "within the above mentioned stipulated period". Thus, as per the agreement the deadline to complete the agreement was 30th June 2019 and it was not that only on 30.06.2019 the agreement was to be performed in completion. The plaintiffs were required to prove that in between the duration from 26.01.2019 till 30.06.2019, they had approached the defendant to perform his part of the contract and they had offered the performance of their part of contract to the defendant during that time. However, all the pleadings and all the evidence are silent as to what steps plaintiffs had taken in between 23.01.2019 till 30.06.2019 to get the performance of ATS.
15.3 The plaintiffs have nowhere pleaded or proved that they had approached the defendant during the above mentioned period with the balance amount, thereby calling the defendant to transfer the flat to them and to execute the documents. Rather, plaintiffs have not filed any proof to prove their financial capacity during the period from 26.01.2019 till 30.06.2019 to pay balance consideration of Rs. 24,50,000/- to the defendant. All the evidence produced by plaintiffs show their capacity to pay the CS DJ 1077/19 Page no. 16/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:29:09 +0530 balance amount from 30.06.2019 onwards and not prior to that. 15.4 Moreover, plaintiffs have not disclosed even one single specific date when they had approached the defendant with balance amount, thereby calling the defendant to execute his part of performance.
15.5 There is no averment or proof that plaintiffs had attended the office of Sub-Registrar on 30.06.2019 i.e. the last date stipulated in the agreement for execution of Sale Deed. Plaintiffs have nowhere deposed that on 30-06-2019 they contacted the defendant to accept the balance amount and to execute the documents in their favour and to transfer the flat to them. 15.6 There is no evidence produced by the plaintiffs that even before sending of legal notice dated 02-11-2019,plaintiffs have ever approached the defendant physically or telephonically thereby offering the defendant to accept the balance payment and perform his part of contract.
Thus, plaintiffs have clearly failed to prove that they were ready and willing to perform their part of contract.
16. Further, in the plaint as well as during evidence both plaintiffs have deposed that "the agreement to sell dated 24.01.2019 was got prepared by the defendant, including the stamp paper being purchased by the defendant". However, perusal of ATS Ex. PW-2/1 shows that it is specifically written "certificate issued date 24.01.2019 1:42 PM, purchased by Sumit Garg(plaintiff no. 2 herein), stamp duty paid by Sumit Garg(plaintiff no. 2 herein)". Thus, as per documentary evidence the stamp paper was purchased by plaintiff no. 2 and not by the defendant and this contradiction might not be of utmost important but considering the defence of defendant, it is a CS DJ 1077/19 Page no. 17/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:29:13 +0530 relevant contradiction.
Similarly, it is also important to note that the ATS even does not mention the address of defendant and it is strange that defendant is getting the ATS prepared (as per plaintiffs) and he will not mention his own address on the ATS and plaintiffs, both being CAs, will not ask the defendant to write his address on the ATS.
17. Further, admittedly defendant had handed over the original title documents to the plaintiffs at the time of signing the ATS dated 24.01.2019. No ordinary prudent person would hand over the original title documents to the prospective buyers after receiving only 50% of the consideration.
The defence of defendant is that it was actually a loan transaction wherein he gave his original title documents as a collateral security to the plaintiffs and plaintiffs received the original title documents and also got the agreement to sell signed from the defendant with the assurance that ATS would never be acted upon.
The fact that defendant had handed over original title documents to the plaintiffs at the time of signing the ATS dated 24.01.2019, tilts the scale of probabilities in favour of defendant and the onus shifts upon the plaintiffs to give a probable explanation as to why the original documents were handed over to them at the time of signing of ATS. It is also important to note that both the plaintiffs are chartered accountant and even the witness to ATS, namely Mr. Bhawesh Kumar (PW-3) is also a chartered accountant by profession. However, plaintiffs have not comeforward with any explanation at all.
CS DJ 1077/19 Page no. 18/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2025.05.31 KAUR 16:29:18 +0530
18. Further, both the plaintiffs as PW-1 and PW-2 and the witness to ATS namely Mr. Bhawesh Kumar (PW-3) and brother of plaintiff no. 1 Sh. Rakesh Aggarwal/PW-16, all have categorically deposed that:
"in the last week of October, an unknown person claiming to be defendant representative/office boy came to plaintiff no. 1 office situated at BT-13, Shalimar Bagh, Delhi -110088 and handed over a prefilled cheque (Ex. PW-1/4) bearing no. 2887, drawn upon Indusind Bank, Nehru Place Branch, amounting to Rs. 26,50,000/-, but being blank on account of date and drawees name, citing that defendant had instructed him to deliver the said cheque to plaintiff no. 1 and bring back the originals of agreement to sell dated 24.01.2019 and registration documents qua the suit property".
Now all the four witnesses have failed to disclose the exact date, day and time when the said unknown person had visited the office of plaintiff no. 1. It is highly improbable that the exact date, day and time of such a milestone incident in the case of plaintiffs would not been mentioned by plaintiffs even during pleadings despite the fact that suit has been filed on 11.12.2019 i.e. within one and half month of the alleged incident which happened in the last week of October 2019.
Moreover, as per plaintiffs, they served the legal notice to defendant on 02.11.2019 which is almost immediately after the incident of last week of October 2019 and despite that even in the legal notice Ex. PW-2/4 the exact date, day and time of the said incident had not been mentioned.
Therefore, the story of handing over of the cheque by defendant through his AR/office boy, towards repayment of earnest money of Rs. 26,50,000/- seems improbable and against the course of human nature because if the defendant turned dishonest then why would he even offer the return of earnest money.
CS DJ 1077/19 Page no. 19/27AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:29:23 +0530 The Court is cautious of the fact that defendant has also not come up with the satisfactory explanation how the signed cheque of the defendant landed into the hands of plaintiffs, however, it is settled principle that the benefit of weakness of defence cannot be imputed to the plaintiffs and the case of the plaintiffs has to stand on its own legs.
19. Further, the defendant has taken the defence that the suit property is worth more than Rs. 01 crore and therefore, its sale for sum of Rs. 51 lacs is figment of imagination of plaintiffs.
On the other hand, it has been argued on behalf of plaintiffs that defendant was in need of money and defendant had not led any evidence to prove that the suit property valued more than Rs. 01 crore.
As far as this plea is concerned, perusal of record shows that as per the title documents in favour of defendant i.e. registered agreement to sell, GPA etc. Ex. PW-2/2(colly), the defendant had purchased the suit property on 30.03.2017 for Rs. 50,46,000/-. Now as per ATS dated 24.01.2019 defendant sold the suit property to plaintiffs for total consideration of Rs. 50,90,000/- and thus, approximately after two years, defendant increased the sale consideration only by Rs. 44,000/-. Though the inadequacy of consideration is no ground to discard the agreement in entirety, however, the same is a relevant factor to take into consideration specifically when the defendant has already been able to show reasonable doubt over the credibility of the transaction.
20. Proof of payment:
In the present case, as per plaintiffs, they have paid Rs.CS DJ 1077/19 Page no. 20/27
AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:29:30 +0530 26,50,000/- to the defendant on 25.01.2019 towards payment of earnest money, out of which Rs. 10 lacs was paid by way of RTGS and Rs. 16.50 lacs was paid by way of cash. The defendant has admitted that he received Rs. 10 lacs by way of RTGS on 25.01.2019 but he has disputed that he had received Rs. 16.50 lacs by way of cash on 25.01.2019.
20.1 Now to prove that plaintiffs have paid Rs. 16.50 lacs in cash to the defendant on 25.01.2019, plaintiffs themselves have entered into witness box as PW-1 and PW-2 and both have deposed that Rs. 16.50 lacs was paid in cash by both plaintiffs, cash being handed over to defendant through plaintiff no. 2 at the time of signing of ATS in the office of Sh. Bhawesh Kumar/PW-3, in the presence of PW-3. Further, Sh. Bhawesh Kumar/PW-3 also supported the claim of plaintiffs and deposed on the same lines. All the three PWs also deposed that the payment of Rs. 16.50 lacs made in cash was duly acknowledged by the defendant in the agreement.
20.2 Now perusal of ATS Ex. PW-2/1 shows that it has been recorded in the ATS that "the first party has received Rs.
26,50,000/- as a earnest amount money from second party in the following mode Dated Cheque No. Drawn on Amount 24.01.2019 - - Rs.10 lacs 24.01.2019 - - 16.50 lacs"
Admittedly, the payment was made on 25.01.2019 and not on 24.01.2019 as recorded in the ATS and therefore, no question of acknowledgment of receiving by way of ATS arises. As has been mentioned above, plaintiffs cannot adduce oral evidence to CS DJ 1077/19 Page no. 21/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2025.05.31 KAUR 16:29:34 +0530 deny or contradict the terms and conditions recorded in the ATS and therefore, ATS cannot be read as acknowledgment of receipt of Rs. 16.50 lacs in cash by the defendant.
20.3 Further, admittedly ATS has been signed by plaintiff no. 2, also on behalf of plaintiff no. 1 as plaintiff no. 1 was not available at the time of signing of ATS. Plaintiff no. 1 has made payment of Rs. 10 lacs by way of RTGS on 25.01.2019. As per plaintiffs, the amount of Rs. 16.50 lacs was handed over by plaintiff no. 2 to defendant on 25.01.2019, after collecting the cash of Rs. 16.50 lacs from both the plaintiffs who have arranged the amount after taking friendly loan from their friends. 20.4 Plaintiffs have examined six witnesses i.e. their friends who have deposed that they have given friendly loan to the plaintiffs and the crux of their testimonies is as follows:
Name of Witness Date of friendly Amount of loan Loan given loan to/borrower PW-4/Sh. Nitin On 23.01.2019 Rs. 2,45,000/- in Plaintiff no. 2 Garg cash PW-5/Sh. Arvind In January 2019 Rs. 2,40,000/- in Plaintiff no. 2 Aggarwal cash PW-6/Sh. Narender In January 2019 Rs. 2,30,000/- in Plaintiff no. 1 Kumar Mishra. cash PW-7/ Sh. Arjun In January 2019 Rs. 2,43,000/- in Plaintiff no. 1 Singh cash PW-8/Sh. Gopal In January 2019 Rs. 2,20,000/- in Plaintiff no. 1 Singh cash PW-9/Sh. Rajesh In January 2019 Rs. 2,47,000/- in Plaintiff no. 1 Kumar cash (Amount) Arranged by Rs. 2,25,000/- By plaintiffs themselves.
Total - Rs. 16,50,000/- -
20.5 All the six witnesses i.e. PW-4 to PW-9 have deposed that CS DJ 1077/19 Page no. 22/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:29:37 +0530 they had given friendly loan in cash but admittedly none of them had taken any receipt of the payment. It is strange that none of these six persons will take a receipt of the amount given in cash to plaintiffs, who admittedly are their good acquittance only, while the amount given them by them as friendly loan is not a small amount specifically considering that during cross examination, all the witnesses admitted that their annual income is approximately Rs. 5 to 6 lacs only. Further apart from PW-4 Sh. Nitin Garg, none of the other five PWs has been able to disclose even the exact date, day and time when they had given friendly loan to plaintiffs. Further, none of these six PWs has disclosed the duration of the loan given to plaintiffs nor they had charged any interest from the plaintiffs nor they had fixed any date when the loan was to be repaid by the plaintiffs. Further, all the six PWs have categorically deposed that they had given loan to the plaintiffs as plaintiffs informed them that they were in process of purchasing a commercial property in Nehru Place from defendant and it is strange that despite knowing the purpose, all these six persons have agreed to give interest free friendly loan to the plaintiffs. All the facts are not only against the ordinary course of business and human nature but also raise a suspicions over the credibility of testimonies of these witnesses. 20.6. Further, plaintiff no. 2 deposed that he paid Rs. 16.50 lacs in cash to defendant on 25.01.2019 in the office of PW-3 Mr. Bhawesh Kumar. As per plaintiffs, the cash amount was given by both plaintiffs after arranging the sum from their friends and it was only that the cash was handed over by plaintiff no. 2.
However, during cross examination, PW-3 deposed that "Mr. CS DJ 1077/19 Page no. 23/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2025.05.31 16:29:41 +0530 Sumit /plaintiff no. 2 had arranged the sum of Rs. 16.50 lacs from his friends".
20.7 Further, plaintiff no. 2 has produced one statement during cross examination i.e. copy of cash book dated 25.01.2019 Ex.
PW-2/D1 and this cash book states that a payment of Rs. 7,10,000/- was credited to defendant. The cash book Ex. PW-2/D1 shows that on 23.01.2019 plaintiff no. 2 received Rs. 2,45,000/- in cash from Sh. Nitin Garg/PW-4 against the receipt and Rs. 2,40,000/- in cash from Sh. Arvind Aggarwal/PW-5 against the receipt but strangely both these receipts have not been produced before the Court and more strangely both PW-4 and PW-5 have deposed during cross examination that they have not received any receipt from the plaintiff no. 2 qua the friendly loan given by them to the plaintiff no. 2. Further, the cash book shows a sum of Rs. 7,10,000/- being paid to defendant on 25.01.2019 but the cash book is a self serving document and is not a conclusive proof of the cash payment to the defendant. 20.8 Considering the above mentioned discussion, it is clear that plaintiffs have failed to prove that they had paid Rs. 16.50 lacs by way of cash to defendant on 25.01.2019, though admittedly plaintiff no. 1 has paid Rs. 10 lacs by way of RTGS to the defendant on 25.01.2019. Therefore, plaintiffs cannot recover the amount which they have not paid to the defendant. 20.9. Plaintiffs have also sought compounded interest at the rate of 1% per annum from the date of execution of ATS till actual payment. The plaintiff no. 1 has been deprived of his rightful amount and therefore, plaintiff no. 1 is entitled for reasonable interest to compensate for the loss of money which plaintiffs CS DJ 1077/19 Page no. 24/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2025.05.31 KAUR 16:29:49 +0530 could have utilized for better prospective. Considering the nature of transactions between parties and facts and circumstances of the case, plaintiff no. 1 is held entitled for the simple interest at the rate of 7% per annum from filing of the suit till its realization.
21. Further, it is also important to note that in the present case, plaintiffs have adduced "Too perfect evidence" because plaintiffs have examined themselves as PWs and thereafter, plaintiffs have examined the witness to the ATS. Then they have examined six friends as PW-4 to PW-9 to prove that they have given friendly loans in cash to the plaintiffs. Then plaintiffs have also examined the brother of plaintiff no. 1, namely Sh. Rakesh Aggarwal as PW-16 to prove that he happened to be present at the office of plaintiff no. 1 when unknown person pretending to be AR of defendant came to office of plaintiff no. 1 to hand over him the cheque Ex. PW-1/4. Thereafter, plaintiffs have examined five witnesses I.e PW-11/Official of Union Bank of India, PW-12/official of Bank of Baroda, PW-13/Official of HDFC Bank, PW-14/Official of SMC Security and PW-15/Official of MIDAS/OBRIS Security, to prove the financial capacity of plaintiffs.
From the testimony of PWs, it seems that plaintiffs have tried to establish the prefect chain of events and plaintiffs' evidence seems too perfect to believable because complete perfection seems too good to be true, raising suspicions about how it was achieved. While a complete lack of contradictory evidence might seem strong, it can also raise questions about the truthfulness of the case. To error is human and therefore, a case without alternative interpretation or dissenting opinions indicates CS DJ 1077/19 Page no. 25/27 AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 Digitally signed PRABH by PRABH DEEP KAUR DEEP 2025.05.31 Date:
KAUR 16:29:53 +0530 towards manipulation or hiding the truth and seems unnatural. Therefore, in the present case also, the overwhelming evidence produced by the plaintiffs seems unnatural and raises the frown upon the credibility of plaintiffs' case and tilts the balance of probabilities in favour of defendant raising the assumption that the defence of defendant might be true. Therefore, on the scale of probabilities, the case of plaintiffs seems improbable while the defence of defendant seems probable.
22. Plaintiffs have relied upon following judgments:
"Om Prakash Gupta Vs. Ranbir B. Goyal" , Appeal (Civil) No. 5460 of 1999, decided on 18.01.2002;
"Samir Narain Bhojwani Vs. M/s Aurora Properties and Investments and Anr.", Civil Appeal No. 7079 of 2018;
"J. Ganapatha And Ors. Vs. M/s N. Selvarajalou Chetty Trust Rep. By its Trustees and Ors.", 2025 Livelaw (SC) 353; "Ganpatlal s/o Hiralal Bhavsar vs Ganga Bai & Ors "
I have gone through the judgments and judgments reiterate well settled legal proposition but they are not applicable to the facts in hand.
Accordingly, the issue no. 1 to 3 are disposed off and plaintiff no. 1 is held entitled for recovery of Rs. 10 lacs with simple interest @ 7% per annum from the filing of the suit till its realization.
Relief.
In view of aforesaid discussion, the suit of the plaintiffs is decreed in favour of plaintiff no. 1 against defendant for a sum of Rs.10 lacs along with simple interest @ 7% per annum from the date of filing of the suit till the date of realization. The suit of the plaintiffs for relief of Specific Performance and Injunction is dismissed.
CS DJ 1077/19 Page no. 26/27AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025 PRABH Digitally signed by PRABH DEEP KAUR DEEP Date:
KAUR 2025.05.31 16:29:58 +0530 Cost of the suit also awarded in favour of plaintiff no. 1. Decree sheet be prepared accordingly. All the pending interim applications stand dismissed being not pressed upon.
File be cosigned to record room after due compliance.
PRABH Digitally signed by
PRABH DEEP KAUR
DEEP Date: 2025.05.31
KAUR 16:30:02 +0530
Typed to the direct dictation and (Prabh Deep Kaur)
announced in the open court DJ-05/South East District
on this 30th day of May, 2025 Saket Courts, New Delhi.
CS DJ 1077/19 Page no. 27/27
AJAY AGGARWAL Vs. BINOD KUMAR VERMA Dated 30.05.2025