Delhi District Court
Amit Khattar vs Rajiv Kumar on 31 January, 2025
IN THE COURT OF SH. SUMIT DALAL
DISTRICT JUDGE-04, SOUTH-WEST
DWARKA COURTS, NEW DELHI
CS 17377/16
CNR No.: DLSW01-005499-2016
In the matter of :
1. AMIT KHATTER
S/o Late Sh. K. B. Khatter
2. SMT. ANUPMA KHATTER
W/o Sh. Amit Khatter
Both Resident of :
WZ-609-A, Shiv Nagar Ext.,
Jail Road, New Delhi. ....Plaintiffs
Versus.
1. RAJIV KUMAR
S/o Sh. Krishan Chand
R/o VPO: Dhul Siras,
New Delhi.
2. MOHIT SAXENA
S/o Sh. A. K. Saxena
R/o Flat No. 1011,
Park Royal CGHS Ltd.
Plot No. 10-A, Sector-9,
Dwarka, New Delhi.
3. SATISH KUMAR CHOPRA
S/o Late Sh. Om Prakash
R/o A-99, Majlish Park,
Adarsh Nagar, Azadpur, Delhi-33. .....Defendants
CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 1 of 52 Digitally
signed by
SUMIT
SUMIT DALAL
DALAL Date:
2025.02.07
17:58:56
+0530
Date of institution of the suit : 20.09.2013
Final Arguments Heard on : 06.04.2024
Judgment Pronounced on : 31.07.2024
SUIT FOR SPECIFIC PERFORMANCE OF THE
AGREEMENT DATED 23.08.2010, 21.09. 2010 AND
PERMANENT INJUNCTION
JUDGMENT
1. This suit for specific performance and permanent injunction arises from a dispute over the sale of Flat No. 301, situated in the Guru Ram Dass Co-operative Group Housing Society Ltd., Plot No. 3-B, Sector-22, Dwarka, Phase-1, New Delhi (hereinafter referred to as "the suit property"). The Plaintiffs, Mr. Amit Khattar and Mrs. Anupama Khattar, a married couple, seek enforcement of two agreements to sell dated 23.08.2010 and 21.09.2010, allegedly executed with Defendant No. 1, Mr. Rajiv Kumar, and Defendant No. 3, Mr. Satish Kumar Chopra, respectively. Defendant No. 2, Mr. Mohit Saxena, is alleged to have had a prior agreement to sell in respect of the suit property with Defendant No. 3, which was subsequently assigned to Defendant No. 1. Defendant No. 4, Mr. Naresh Grover, acted as the property dealer facilitating the transaction between the Plaintiffs and the other defendants. The Plaintiffs claim to have paid Rs. 82 lakhs out of the total agreed sale consideration of Rs. 84,75,000 and assert their readiness and willingness to pay the remaining amount. The Defendants have contested the suit on various grounds, including allegations of fraud, the existence of prior agreements, and the non-receipt of full Digitally signed by CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 2 of 52 SUMIT SUMIT DALAL DALAL Date:
2025.02.07 17:59:16 +0530 consideration. This Court is now tasked with determining the validity of the agreements, the rights and obligations of each party, and ultimately, whether the Plaintiffs are entitled to specific performance of the contract and possession of the suit property.
PLAINTIFF'S CASE
2. The plaintiffs, Mr. Amit Khattar (Plaintiff No. 1) and Mrs. Anupama Khattar (Plaintiff No. 2), filed the present suit for specific performance of two agreements to sell, possession of the suit property, and other consequential reliefs in respect of the suit property. The detailed facts as pleaded in the plaint are as follows:
a. Plaintiffs' Background - The plaintiffs, husband and wife, are both professionals. Plaintiff No. 1 is an Assistant Secretary with The Sugar Technologists Association of India, and Plaintiff No. 2 is a school teacher with the Government of Delhi. Having sold their previous property in Gold Craft Society, Sector 11, Dwarka, New Delhi, in July 2010, they were actively seeking a new residential flat in the same area for their family.
b. Initiation of the Transaction - Through Defendant No. 4, Mr. Naresh Grover, a local property dealer, the plaintiffs got the proposal for a flat which was yet to be allotted, in the society Guru Ram Dass CGHS Ltd., Plot No. 3-B, Sector 22, Dwarka, Phase - 1, New Delhi - 110075. Defendant No. 4 introduced them to Defendant No. 1 who claimed to have the authority on behalf of Defendant No. 3 to sell the suit property.
CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 3 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 17:59:25 +0530 c. On 23.08.2010, the plaintiffs entered into an Agreement to Sell and Purchase in regard to the suit property with Defendant No. 1 (on behalf of Defendant No. 3) for a total sale consideration of ₹84,75,000/-. The plaintiffs paid an earnest money deposit of ₹11,00,000/- in cash to Defendant No. 1 on the same date. The agreement explicitly stated that the balance amount was to be paid in installments, and the final payment was to be made on or before 10.09.2010. Defendant No. 4 acted as a witness to the transaction. d. Subsequent Payments and Receipts - Following the execution of the agreement dated 23.08.2010, the plaintiffs made further payments to Defendant No. 1 as follows:
- ₹15,00,000/- on 01.09.2010, and
- ₹35,00,000/- on 10.09.2010.
e. The payments were made in cash, and receipts for the same were issued by Defendant No. 1. By 10.09.2010, the plaintiffs had paid a total of ₹61,00,000/- to Defendant No. 1 out of the agreed sale consideration of ₹84,75,000/-. The said payments were made in the presence of the Defendant No. 4.
f. Defendant No. 1 also handed over the original documents of the suit property like Share Certificate No. 153, 227 along with original receipts, issued by the Society in the name of Defendant No. 3 with assurance to get the original sale deed or transfer by way of registered legal documents of the suit CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 4 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 17:59:32 +0530 property in favour of the Plaintiffs through Defendant No. 3. g. Discovery of Ownership Issues - After making substantial payments, the plaintiffs pressed Defendant No. 1 to execute the sale deed. At this juncture, Defendant No. 1 disclosed to the Plaintiffs that he had also executed an agreement to sell dated 26.06.2010 with Defendant No. 2 in respect of the suit property.
h. Subsequently, the Plaintiffs met Defendant No. 2, in the second week of September 2010, who revealed that the Defendant No. 3 has entered into an agreement to sell dated
03.05.2010 with him in regard to suit property. In short, the Plaintiff found out that Defendant No. 3 executed an agreement to sell with Defendant No. 2 on 03.05.2010 and subsequently, Defendant No. 2 entered into an agreement to sell with Defendant No. 1 on 26.06.2010. The plaintiffs claim that these agreements were concealed by the defendant no. 1, leading to confusion and disputes regarding ownership.
i. Execution of a Second Agreement to Sell - To resolve the ownership dispute, the plaintiffs approached Defendant No. 3, the actual owner of the property. After negotiations, the plaintiffs entered into a fresh Agreement to Sell dated 21.09.2010 with Defendant No. 3. As part of this agreement, the plaintiffs paid an additional amount of ₹21,00,000/- to Defendant No. 3 by way of Cheque bearing no. 711976 dated 12.09.2010. Defendant No. 3 has already encashed the said amount on 28.09.2010. This agreement was supported CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 5 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 17:59:39 +0530 by various documents, including: General Power of Attorney, Special Power of Attorney, Affidavits, Possession letter, and Letters addressed to the society regarding the transfer of ownership. These documents were executed in favor of the plaintiffs. By this point, the plaintiffs had paid a total of ₹82,00,000/- out of the total agreed sale consideration of ₹84,75,000/- for the suit property - Rs. 61,00,000/- to the Defendant No. 1 and Rs. 21,00,000/- to Defendant No. 3.
j. Defendants' Non-Performance and Delay - Despite the plaintiffs fulfilling their financial obligations and being ready and willing to perform the remaining terms of the agreements, Defendant No. 3 failed to execute the sale deed and transfer ownership of the suit property. The plaintiffs allege that Defendant No. 3, with the collusion of other defendants, adopted delaying tactics and made additional monetary demands beyond the agreed consideration. k. The plaintiffs made a further payment of Rs. 50,000/- rupees, in cash through defendant no. 4 in respect of certain charges which were to be paid to the society after the allotment of the suit property in favour of defendant no. 3. The said amount was paid with the consent and knowledge of Defendant No. 1 and 3.
l. Even after that, the Defendant No. 3 kept delaying the execution of the sale deed in favour of the Plaintiff as agreement to sell dated 21.09.2010. After multiple meetings, it was agreed between the Plaintiffs and the Defendant No. 3 CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 6 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 17:59:45 +0530 that the Plaintiffs will make a payment of Rs. 3,00,000/- directly to the society towards the pending dues of the Defendant No. 3 in regard to the suit property. The Plaintiffs got the following prepared for payment of Rs. 3,00,000/- to the society on behalf of Defendant No. 3:
- Pay Order No. 005057 dated 10.05.2012 amounting to Rs. 2,25,000/- drawn at United Bank of India, branch Fateh Nagar, New Delhi
- Banker Cheque bearing no. 004657 dated 08.05.2012 amounting to Rs. 75,000/- from the HDFC Bank, Branch Okhla, New Delhi.
m.The Plaintiff didnt deposit the aforementioned amount of Rs.
3,00,000/- as the Defendant No. 3 made a further demand of Rs. 30,00,000/-.
n. Thereafter, the Plaintiffs approached the Defendant No. 4 multiple times with a request for legal transfer of suit property but the Defendant No. 4 avoided the matter on pretext or another.
o. Faced with undue hardship, harassment, and non-cooperation from the defendants, the plaintiffs lodged multiple complaints with the police and issued legal notices:
- Complaint dated 13.02.2013,
- Complaint dated 25.06.2013.
p. Lastly, the Plaintiff sent a Legal notice dated 01.07.2013 to CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 7 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 17:59:52 +0530 Defendant No. 1, 3 and 4 to handover the physical vacant possession of the suit property. The legal notice was delivered to Defendant No. 1, 3 and 4 but the same was not replied by the Defendants.
q. Despite these efforts, the defendants did not comply or take corrective action, leaving the plaintiffs with no choice but to approach the Court for redressal.
r. The plaintiffs have sought the following reliefs from the Court:
- A decree for specific performance of the agreements to sell dated 23.08.2010 and 21.09.2010, directing the defendants to execute the sale deed and transfer possession of the suit property to the plaintiffs.
- A permanent injunction restraining the defendants from creating any third-party rights in the suit property.
- Any other relief deemed fit by the Court.
DEFENDANT NO. 1'S CASE
3. Defendant No. 1, Mr. Rajiv Kumar, a government employee with the Ministry of Home Affairs, has presented a multi-faceted defence in his written statement, primarily arguing that he is not liable to perform the agreement to sell dated 23.08.2010 with the Plaintiffs due to a subsequent agreement entered into between the Plaintiffs and Defendant No. 3. He also states that he was CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 8 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 17:59:59 +0530 authorized by Defendant No. 3 to enter into agreements on his behalf.
4. Key Admissions on behalf of Defendant No. 1:
a. Execution of Agreement: Defendant No. 1 unequivocally admits to executing the agreement to sell dated 23.08.2010 with the Plaintiffs for the suit property. b. Receipt of Rs. 61 Lacs: He acknowledges receiving a total sum of Rs. 61 lacs from the Plaintiffs in three installments: Rs. 11 lacs, Rs. 15 lacs, and Rs. 35 lacs on 23.08.2010, 01.09.2010, and 10.09.2010, respectively.
c. Handing Over Documents: He admits to handing over original documents related to the suit property, including share certificates and receipts issued by the society, to the Plaintiffs.
d. Prior Agreement with Defendant No. 2: He admits to having executed an agreement to sell dated 26.06.2010 with Defendant No. 2 for the same property.
5. Defendant No. 1's central defence is that the agreement dated 23.08.2010 with the Plaintiffs was superseded and effectively nullified by a subsequent agreement to sell entered into between the Plaintiffs and Defendant No. 3 in September 2010. He contends that this new agreement constituted a novation of the original contract, releasing him from any further obligations towards the Plaintiffs.
6. Defendant No. 1 asserts that the Rs. 61 lacs received from CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 9 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:11 +0530 the Plaintiffs was not merely part of the sale consideration, but rather compensation for his prior investment in the suit property and for relinquishing all his rights therein. He claims to have invested in the property by paying consideration to Defendant No.
3.
7. Defendant No. 1 claims that the Plaintiffs were fully aware of the status of the suit property and the existence of prior agreements, and that they willingly entered into a separate and independent agreement with Defendant No. 3.
8. Defendant No. 1 asserts that his prior agreement to sell dated 26.06.2010 with Defendant No. 2 was cancelled much before the Plaintiffs entered into the transaction.
9. Defendant No. 1 maintains that after the Plaintiffs entered into the agreement with Defendant No. 3, he had no further right, role, or liability concerning the suit property. Defendant No. 1 argues that the Plaintiffs have no valid cause of action against him, as their grievance, if any, lies solely against Defendant No. 3. He contends that the suit against him is misconceived and liable to be dismissed.
DEFENDANT NO. 2'S CASE
10. Defendant No. 2, Mr. Mohit Saxena, has presented a defence primarily based on the assertion that his prior involvement with the suit property was extinguished due to the cancellation of his agreements with Defendant No. 3 and, consequently, Defendant CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 10 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:16 +0530 No. 1. He distances himself from the Plaintiffs' claims by denying knowledge of their transactions with the other Defendants and asserting he had no dealings with the Plaintiffs whatsoever.
11. In his written statement, Defendant No. 2 made the following key admissions:
a. Agreement with Defendant No. 3: Defendant No. 2 admits to entering into an agreement to sell dated 03.05.2010 with Defendant No. 3 for the suit property. b. Agreement with Defendant No. 1: He also admits to a subsequent agreement to sell dated 26.06.2010 with Defendant No. 1 for the same property.
12. Defendant No. 2's central defence is that the agreement to sell dated 03.05.2010 with Defendant No. 3 did not materialize and was cancelled. He further contends that, as a consequence of this cancellation, his subsequent agreement with Defendant No. 1 dated 26.06.2010 also stands automatically cancelled.
13. Defendant No. 2 mentions filing a complaint against Defendant No. 3 at the Dwarka Police Station, alleging a lack of bonafide conduct in dealing with the property.
14. Defendant No. 2 made the following specific denials and contentions:
a. Denial of Knowledge: Defendant No. 2 consistently denies knowledge of the agreements and transactions between the Plaintiffs and the other Defendants, including the payment of CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 11 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:23 +0530 Rs. 82 lacs, the execution of various documents and the alleged meetings.
b. Denial of Dealings with Plaintiffs: He categorically denies having any financial or other dealings with the Plaintiffs. He specifically denies receiving any money from them or demanding any money from them.
c. Denial of Meeting on 12.09.2013: He denies the Plaintiffs' claim of a meeting on 12.09.2013 involving all parties, where Defendant No. 3 allegedly agreed to execute the sale deed.
d. Denial of Threats: He denies the allegation of threatening the Plaintiffs, as mentioned in the plaint. e. Prior Information to Plaintiffs: He asserts that he had clearly informed the Plaintiffs that he claims no right in the suit property due to the non-materialization of his agreements.
15. Defendant No. 3 made the following further arguments:
a. No Subsisting Rights: He maintains that he has no right, title, or interest in the suit property due to the cancellation of his agreements.
b. No Relief Sought Against Him: He highlights that the Plaintiffs have not sought any specific relief against him in their prayer clause.
c. Misconceived Suit: He contends that the suit against him is misconceived and liable to be dismissed.
DEFENDANT NO. 3'S CASE CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 12 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:30 +0530
16. Defendant No. 3, Mr. Satish Kumar Chopra, is the central figure in this dispute as the original member of the Guru Ram Dass Co-operative Group Housing Society Ltd. and the allottee of Flat No. 301 (the suit property). His defence is primarily built on denying any direct agreement or financial dealing with the Plaintiffs and alleging fraud on the part of Defendant No. 2, Mr. Mohit Saxena.
17. In his written statement, Defendant No. 3 made the following key admissions:
a. Membership and Allotment: He admits he is a member of the society (Membership No. 153) and was allotted the suit property.
b. Agreement with Defendant No. 2: He admits to entering into an agreement to sell dated 03.05.2010 with Defendant No. 2 for the suit property for a total sale consideration of Rs. 50,00,000.
c. Receipt of Partial Payment from Defendant No. 2: He acknowledges receiving a total of Rs. 42,00,000 from Defendant No. 2 towards the sale consideration, leaving a balance of Rs. 8,00,000.
18. Defendant No. 3 vehemently denies the existence of any agreement, oral or written, with the Plaintiffs for the sale of the suit property. He distances himself completely from the Plaintiffs' claim by asserting that he has "never dealt with the Plaintiffs and/or ever known them."
CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 13 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:36 +0530
19. Defendant No. 3 specifically denies receiving any payment from the Plaintiffs, particularly the Rs. 21 lacs cheque (No. 711976 dated 12.09.2010) that forms a crucial part of the Plaintiffs' case. He claims that the bank document showing the credit of this amount to his account is "false and fabricated."
20. Defendant No. 3 alleges that Defendant No. 2, on various dates when he made payments, fraudulently obtained his signatures on certain documents, including blank papers. He claims he signed these documents in good faith, believing they were part of his deal with Defendant No. 2. He further states that he was not provided copies of these documents and is unaware of their contents. He specifically alleges that the agreement to sell dated 21.09.2010, which is the basis of the Plaintiffs' claim against him, was one such document fraudulently created by Defendant No. 2.
21. Defendant No. 3 cites Clause 7 of his agreement with Defendant No. 2, which allows him to forfeit the earnest money if the buyer defaults on payment. He implicitly argues that since Defendant No. 2 did not pay the full consideration, he was within his rights to deal with the property as he saw fit.
22. Defendant No. 3 made the following specific denials and contentions:
a. Denies knowledge of Agreement between Plaintiff and Defendant No. 1: He denies having any knowledge of the agreement to sell dated 23.08.2010 between the Plaintiffs and Defendant No. 1.
CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 14 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:44 +0530 b. Denies Meeting on 12.09.2010: He denies the Plaintiffs' claim that a meeting took place on 12.09.2010 involving all parties, where he allegedly agreed to execute the sale deed in the Plaintiffs' favor.
c. Denies Receiving Society Charges: He denies any knowledge of the Rs. 50,000 payment made by the Plaintiffs towards society charges through Defendant No. 4. d. Denies Receiving Legal Notice: He claims he never received the legal notice dated 01.07.2013 sent by the Plaintiffs. e. Denies Threats and Influence: He denies the allegations of threatening the Plaintiffs or claiming to have connections with the police or politicians.
f. Denies Authorizing Defendant No. 1 and 2: He denies ever issuing any Special or General Power of Attorney in favour of Defendant No. 1 or 2, authorizing them to execute any sale deed or agreement to sell in favour of third parties on his behalf.
23. Defendant No. 3 also argues as follows:
a. Lack of Clean Hands: He alleges that the Plaintiffs have not approached the court with "clean hands,". b. Title Remains with Him: He asserts that he did not transfer the title of the property to Defendant No. 2 as the full consideration was not received. He maintains that the title is still vested with him.
DEFENDANT NO. 4'S CASE CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 15 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:51 +0530
24. Defendant No. 4, Mr. Naresh Grover, a property dealer by profession, has presented a defence that seeks to minimize his role in the complex transaction surrounding the suit property while largely corroborating the Plaintiffs' version of events. He portrays himself as a mere facilitator who is being unnecessarily implicated in the dispute.
25. Key admissions made by the Defendant No. 4 in his written statement are as follows:
a. Facilitating the Transaction: He admits to introducing the Plaintiffs to the suit property and facilitating the initial agreement to sell dated 23.08.2010 between the Plaintiffs and Defendant No. 1.
b. Witness to Agreements: He admits to being a witness to both the agreement dated 23.08.2010 (between Plaintiffs and Defendant No. 1) and the agreement dated 21.09.2010 (between Plaintiffs and Defendant No. 3). c. Payments by Plaintiffs: He corroborates the Plaintiffs' claim of having paid a total of Rs. 82 lacs towards the sale consideration, including:
- Rs. 61 lacs to Defendant No. 1 (in installments of Rs.
11 lacs, Rs. 15 lacs, and Rs. 35 lacs).
- Rs. 21 lacs to Defendant No. 3.
d. Receipt of Rs. 50,000: He admits to receiving Rs. 50,000 in cash from the Plaintiffs towards society charges, which he CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 16 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:00:57 +0530 claims was paid with the knowledge and consent of Defendant Nos. 1 and 3.
e. Meetings Between Parties: He admits to the occurrence of several meetings between the parties, including the crucial meeting on 12.09.2010, where Defendant No. 3 allegedly agreed to execute the sale deed in favor of the Plaintiffs. f. Plaintiffs' Readiness and Willingness: He confirms that the Plaintiffs were always ready and willing to pay the balance consideration and perform their part of the contract. g. Defendant No. 3's Delaying Tactics: He states that Defendant No. 3 is responsible for delaying the execution of the sale deed and that he made further demands for money from the Plaintiffs.
26. Specific denials and other important contentions on behalf of the Defendant No. 4 are as follows:
a. Denial of Knowledge of Prior Agreements: He denies any knowledge of the prior agreements to sell executed between Defendant No. 1 and Defendant No. 2 (dated 26.06.2010) and between Defendant No. 2 and Defendant No. 3 (dated 03.05.2010).
b. Denial of Wrongdoing: He denies any wrongdoing on his part and asserts that he has acted in good faith as a property dealer.
c. Denial of Liability: He denies any liability towards the Plaintiffs or the other Defendants. d. Denial of Cause of Action: He argues that no cause of action CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 17 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:01:04 +0530 exists against him.
27. Apart from the aforementioned, the Defendant No. 4 also made the following submissions in his written statement:
a. Misjoinder of Parties: He contends that he is not a necessary or proper party to the suit and that his name should be deleted from the array of parties, as no relief has been sought against him.
b. Misuse of Process: He claims that the suit against him is a misuse of the process of law.
FACTS STATED IN THE REPLICATION
28. The plaintiff has filed replication to the written statements of Defendant No. 4, wherein the plaintiff has traversed the contents of the written statement of defendant nos. 4 and has made the necessary denials, reiterating the contents of the plaint.
PROCEEDINGS
29. Perusal of the Court file reveals that the case has been received from the Hon'ble High Court of Delhi, in terms of order dated 01.02.2016 and Ld. District & Sessions Judge, South-West, has assigned the matter to this court vide order dated 16.05.2016.
ISSUES
30. On completion of pleadings, issues were framed vide order dated 24.10.2017 which are as follows:
1. Whether the plaintiff had made payment of Rs. 82 lakhs out of Rs. 84, 75000/- i.e. agreed CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 18 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:01:11 +0530 amount for purchase of Flat No. 301, Plot No. 3-B, Guru Ram Dass CGHS Ltd., Sector-22, Dwarka, New Delhi? OPP
2. Whether the defendants had any right to sell the property in question to the plaintiff?
OPD
3. Whether the plaintiff is entitled to the decree of specific performance and possession, as claimed ? OPP
4. Relief.
31. Vide order dated 08.08.2018, the Defendants No. 1 and 2 were proceeded ex-parte.
THE PLAINTIFF'S EVIDENCE
32. The Plaintiff has led its evidence and has examined 2 witnesses in support of his case. The details of the Plaintiff's witnesses are as follows:
a. PW-1 : Amit Khatter, the Plaintiff himself b. PW-2 : D. K. Gupta, Branch Manager, Canara Bank, Azadpur, Delhi.
33. The Plaintiff himself appeared as PW-1 on 23.02.20218 and deposed in line with the plaint of the suit and tendered his evidence affidavit which is Ex. PW1/A and relied upon the following documents:
CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 19 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:01:19 +0530 SL.
Documents Exhibits
No
1. Original agreement to sell dated PW1/1
23.08.2010
2. Original receipts dated 23.08.2010 and PW1/2
10.09.2010
3. Original receipt dated 01.09.2010 PW1/3
4. The photocopy of share certificate No.153 Mark 'A'
5. The photocopy of share certificate No.227 Mark 'B'
6. The photocopy of payment receipt Mark 'C'
no.215
7. The photocopy of payment receipt Mark 'D'
No.1743
8. The photocopies of receipts No.273,421, Mark 'E'
(colly)
273, 662, 2399, 2400, 2404, 2402 and 2403 (The witness has mentioned documents Mark A to Mark E as exhibit P4 to Ex. P8 (colly) in his affidavit. The same are now de-exhibited for want of their originals)
9. The photocopy of agreement to sell dated PW1/9 26.06.2010 (This document has already been exhibited as Ex. P-4 at the time of admission/denial on 01.05.2014).
10. The receipt dated 26.06.2010 Mark 'F' (This document has been mentioned as Ex. P10 in the affidavit of this witness. The same is now de-exhibited for want of original)
11. The agreement to sell, Receipt, GPA, Two PW1/11 SPAS, Three Affidavits, Five Letters to the CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 20 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:01:28 +0530 Secretary, Indemnity Bond, Will, Possession Letter, Specimen Signatures with photographs all dated 21.09.2010
12. The certified copy of the statement of PW1/12 account of plaintiff's bank account. (Objected to by Id. Counsel for defendant as the said document does not bear the signatures or name of the Authority who had certified it)
13. Copies of the drafts No.005057 dated Mark 'G' 10.5.2012 and 004657 dated 10.05.2012 & 'H' (These documents have been mentioned as Ex. P-12 and P13 in the affidavit. The same are now de- exhibited for want of originals).
14. Office copy of complaint dated 02.09.2012 PW1/14 made to the SHO
15. Office copy of complaint dated 13.02.2013 PW1/15 made to ACP
16. The copy of complaint dated 25.06.2013. Mark 'I' (This document has been mentioned as Ex. P-16 in the affidavit. The same is now de-exhibited for want of original)
17. The office copy of the legal notice dated PW1/17 01.07.2013
18. Track result of India Post dated Mark 'J' 18.07.2013 (This document has been mentioned as Ex. P-18 in the affidavit. The same is now de-exhibited for want of original).
19. The photocopies of agreement to sell dated Mark 'K' 3.05.2010, Receipt, cheques, notice dated 16.09.2013, share certificates and receipts. (These documents have been mentioned as Ex. P-19 and Ex.P-26 in the affidavit of this witness. However, the same are now CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 21 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:01:38 +0530 de-exhibited for want of originals).
34. PW-2, Sh. D.K. Gupta, Branch Manager, Canara Bank, Azadpur, Delhi deposed as a summoned witness on 12.07.2018. In the examination in chief, PW-2 deposed as follows:
" I have brought the summoned record i.e. original account opening form pertaining to account No. 2006101003688 of Mr. Satish Kumar Chopra and statement of account for the period from 01.07.2010 to 31.10.2010. The copy of account opening form is Ex. PW2/1 (Original seen and returned) and attested copy of statement of account is Ex. PW2/2 bearing my signatures at point A in both the documents. It Is correct that the aforesaid account is in the name of Mr. Satish Kumar Chopra R/o A-145, Majlis Park, Delhi-110 033. As per the record the bank account was opened on 01.01.1987 vide account No.3688. As per the statement of account Ex. PW2/2 brought by me today, there is an entry of cheque bearing no.000000711976 amounting to Rs. 21 lacs showing the clearance in the account of Satish Kumar Chopra on 28.09.2010. The statement of account has been duly verified and correct as per the bank record."
35. PW-2 was cross examined on behalf of Defendant No. 3 on 08.08.2018 and was discharged.
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36. Thereafter, PW-1 (Amit Khattar) was cross examined on behalf of defendant no. 3 on 31.01.2019 and 05.03.2020. On 05.03.2020, the Plaintiff brought on record the following documents which were Exhibited as Ex. PW1/27 (Colly):
a. Original agreement to sell dated 06.08.2010 executed between Sh Satish Kumar Chopra (defendant no.3) and Sh. Rajeev Kumar (defendant no.1), b. GPA dated 06.08.2010 executed between Sh Satish Kumar Chopra (defendant no.3) and Sh. Rajeev Kumar (defendant no.1), c. Will dated 06.08.2010 executed by Sh. Satish Kumar Chopra (defendant no.3) in favour of Sh. Rajeev Kumar (defendant no.1), d. Receipt dated 06.08.2010 for sum of Rs.21 lacs (Rs.21,00,000/-) from Sh Rajeev Kumar (Defendant No. 1) under the terms and condition of the agreement to sell dated 06.08.2010, e. Possession letter dated 06.08.2010 in favour of Rajeev Kumar (Defendant No. 1) under the terms and condition of the agreement to sell dated 06.08.2010, f. Indemnity bond dated 06.08.2010 executed between Sh Satish Kumar Chopra (defendant no.3) and Sh. Rajeev Kumar (defendant no.1) under the terms and conditions of agreement to sell dated 06.08.2010, CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 23 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:01:53 +0530 g. Special Power of attorney executed by Sh Satish Kumar Chopra in favour of Rajeev Kumar dated 06.08.2010, h. Agreement to appoint an Arbitrator dated 06.08.2010 executed between Sh Satish Kumar Chopra (defendant no.3) and Sh. Rajeev Kumar (defendant no.1), i. Affidavit dated 06.08.2010 of Satish Kumar Chopra (Defendant No. 3) deposing that Sh Satish Kumar Chopra has received full and final consideration. j. Affidavit dated 06.08.2010 of Sh Satish Kumar Chopra (Defendant No. 3) deposing that Sh Satish Kumar Chopra holds the valid membership of the society of the Guru Ram Dass Co-operative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153, in the said affidavit Sh Satish Kumar Chopra deposes that he has appointed Sh Rajiv Kumar (defendant no.1) as his attorney in respect of the flat to be allotted against the said membership, k. Affidavit dated 06.08.2010 of Satish Kumar Chopra (Defendant No. 3) deposing that he has nominated Sh Rajeev Kumar as his nominee in respect of the aforesaid membership/flat to be allotted vide his membership no. 153, l. Letter to secretary of the Guru Ram Dass Cooperative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153 by Sh Satish Kumar Chopra (Defendant No. 3) appointing Sh Rajeev Kumar (Defendant No. 1) as nominee and requesting his name to be entered as his nominee in the society records, CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 24 of 52 Digitally signed by SUMIT SUMIT Date:
DALAL DALAL 2025.02.07 18:02:02 +0530 m.Letter to secretary of the Guru Ram Dass Co-operative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153 by Sh Satish Kumar Chopra giving his no objection if the aforesaid membership/flat is transferred in the name of Sh Rajeev Kumar (Defendant No. 1).
n. Letter to secretary of the Guru Ram Dass Co-operative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153 by Sh Satish Kumar Chopra (Defendant No. 3) giving his resignation from the membership of the society, o. Resignation letter of Sh Satish Kumar Chopra (Defendant No. 3) to the secretary of the Guru Ram Dass Cooperative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka, p. Request letter of Sh Satish Kumar Chopra (Defendant No. 3) to the secretary of Guru Ram Dass Co-operative Group Housing Society situated at plot o.3-B, Sector-22, Dwarka q. Specimen signatures of Sh Satish Kumar Chopra (Defendant No. 3)
37. Multiple opportunities were given to Defendant No. 3 to conclude the cross examination of PW-1 and ultimately vide order dated 28.03.2022, the right of the Defendant No. 3 to cross examine PW-1 was closed and PW-1 was discharged.
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38. Thereafter, Defendant No. 3 filed an application seeking recalling and modification of the earlier order dated 28.03.2022 whereby the right to cross examine PW-1 was closed.
39. Vide order dated 19.07.2022, the application was allowed and opportunity was given to Defendant No. 3 to cross examine PW-1 on the next date of hearing. Vide the same order, the Court directed Defendant No. 3 to appear in person on the next date of hearing and to also apprise the Court about his residential address.
40. On the next date of hearing i.e. 11.10.2022, PW-1 was present for cross examination but the Defendant No. 3 did not appear as directed vide order 19.07.2022 and even his Counsel withdrew his vakalatnama on the ground that Defendant No. 3 has not given any instructions to appear when intimation was sent by the Ld. Counsel to the Defendant No. 3 seeking instructions to continue.
Resultantly, the Ld. Predecessor vide order dated 11.10.2022, again closed the right of Defendant No. 3 to cross examine PW-1, PW-1 was discharged and PE was closed. The matter was listed for Defendant's Evidence.
41. On the next date of hearing i.e. 23.11.2022, there was no appearance on behalf of the Defendant No. 3 for Defendant's Evidence and resultantly, after waiting sufficiently, Defendant's Evidence was closed.
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2025.02.07 18:02:14 +0530 ISSUE NO. 1: Whether the plaintiff had made payment of Rs. 82 lakhs out of Rs. 84,75,000/- i.e. agreed amount for purchase of Flat No. 301, Plot No. 3-B, Guru Ram Dass CGHS Ltd., Sector-22, Dwarka, New Delhi? OPP
42. The onus of proving this issue lies squarely on the Plaintiffs (OPP). They are required to demonstrate, on a preponderance of probabilities, that they paid Rs. 82 lakhs to the Defendants as part of the sale consideration for the suit property. This involves not only establishing the fact of payment but also demonstrating that the payments were made towards the specific transaction in question, and not for any other purpose.
Payments to Defendant No. 1 (Rs. 61 lacs):
43. The Plaintiff's case rests on the assertion of having paid ₹61 lakhs to Defendant No. 1 and ₹21 lakhs to Defendant No. 3. For the payment of ₹61 lakhs to Defendant No. 1, the Plaintiff has adduced three original receipts (Ex. PW1/2 and Ex. PW1/3), which constitute primary evidence. These receipts document payments of ₹11 lakhs (23.08.2010), ₹15 lakhs (01.09.2010), and ₹35 lakhs (10.09.2010), cumulatively amounting to ₹61 lakhs. The receipts dated 23.08.2010 and 10.09.2010 are consolidated in Ex. PW1/2, while the receipt dated 01.09.2010 is marked as Ex. PW1/3.
44. Defendant No. 1, as the executant of the receipts, explicitly admitted the authenticity of Ex. PW1/2 and Ex. PW1/3 during the admission/denial process on 01.05.2014. Under Section 58 of the Indian Evidence Act, facts admitted by a party need no further CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 27 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:02:19 +0530 proof. This admission conclusively validates the execution and genuineness of the receipts.
45. Defendant No. 1, in his written statement, unequivocally accepts receiving ₹61 lakhs from the Plaintiff. This acknowledgment corroborates the Plaintiff's documentary evidence and establishes the factum of payment.
46. While Defendant No. 1 admits receiving the amount, he contests its purpose, alleging it was for his "investment" in the property and relinquishment of rights. However, his defence suffers from fatal infirmities:
a. Burden of Proof: Once the Plaintiff proves payment through primary evidence (receipts) and admissions, the burden shifts to Defendant No. 1 to substantiate his alternative explanation. He must adduce cogent evidence to establish his "investment" claim.
b. Failure to Discharge Burden: Defendant No. 1 has provided no documentary evidence to support his assertion. For instance:
- There is no proof of his alleged "investment" in the property, such as bank statements, agreements, or correspondence.
- No evidence demonstrates that the ₹61 lakhs were transferred to Defendant No. 3 or utilised for relinquishing rights.CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 28 of 52
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- The absence of a written agreement outlining the terms of such an "investment" or its linkage to the sale transaction (Ex. PW1/1) further weakens his defence. c. Ex-Parte Proceedings: Defendant No. 1's failure to participate in proceedings after being set ex-parte deprives his defence of credibility. His claim, unsupported by evidence, appears to be a tactical ploy to evade obligations under the agreement to sell (Ex. PW1/1).
47. The combined effect of the original receipts (Ex. PW1/2 and PW1/3) and Defendant No. 1's admissions (both during admission/denial of documents and in his written statement) conclusively proves the payment of ₹61 lakhs by the Plaintiff. In the absence of any credible rebuttal or evidence to substantiate the "investment" theory, the Court must draw a reasonable inference under Section 114 of the Indian Evidence Act. The natural conclusion, aligning with the terms of the agreement to sell (Ex.
PW1/1), is that the ₹61 lakhs constituted payment towards the sale consideration. Defendant No. 1's unsubstantiated defence cannot override the evidentiary weight of admitted documents and the Plaintiff's prima facie case.
48. Thus, the Plaintiff's claim regarding the payment of ₹61 lakhs to Defendant No. 1 stands firmly established on the basis of admitted facts, primary evidence, and the failure of Defendant No. 1 to discharge his burden of proof.
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49. The Plaintiffs assert payment of ₹21 lakhs to Defendant No. 3, relying on the following evidence:
a. Agreement to Sell (Ex. PW1/11): This document, dated 21.09.2010, contains an explicit acknowledgment of payment of ₹21 lakhs to Defendant No. 3 through cheque no.
711976 dated 12.09.2010. As a contemporaneous written record, it carries presumptive value under Section 114 of the Indian Evidence Act, 1872. In the absence of any rebuttal evidence from Defendant No. 3, this Court finds that the Agreement to Sell dated 21.09.2010 (Ex. PW1/11) stands duly proved through the testimony of PW-1, as stated in his affidavit (Ex. PW1/A). Furthermore, PW-1 has produced the original Agreement to Sell (Ex. PW1/11), and no material contradiction or inconsistency has emerged during his cross-examination that would cast doubt on its execution. Consequently, the Court finds no reason to disbelieve the authenticity of the said agreement. b. Testimony of PW-1 (Plaintiff No. 1): In his affidavit (Ex.
PW1/A), PW-1 reiterated the payment, aligning his oral testimony with the documentary evidence. Consistency between pleadings and testimony strengthens credibility. c. Corroboration by PW-2 (Bank Official): PW-2, an independent witness from Canara Bank, confirmed that cheque no. 711976 for ₹21 lakhs was credited to Defendant No. 3's account on 28.09.2010. This third-party testimony is CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 30 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:02:38 +0530 unbiased and corroborates the Plaintiffs' claim. The cross examination of PW-2 has remained unrebutted. d. Bank Statement (Ex. PW1/12): The certified copy of the Plaintiffs' bank statement shows a debit entry corresponding to cheque no. 711976. This creates a chain of evidence linking the payment to Defendant No. 3.
50. Defendant No. 3 disputes receipt of the payment, alleging fraud in procuring the agreement (Ex. PW1/11). However, his defence is legally untenable for the following reasons:
a. Failure to Discharge Burden of Proof: The burden lies on Defendant No. 3 to substantiate his allegations of fraud. Mere denial, without specific particulars or evidence, is insufficient. He provided:
- No evidence of fraud: The Defendant No. 3 has presented no evidence of fraud.
- No challenge to the cheque transaction: Despite the bank's confirmation (via PW-2) and the Plaintiffs' bank statement (Ex. PW1/12), Defendant No. 3 did not dispute the cheque's encashment in his account.
- No rebuttal of the agreement (Ex. PW1/11): He failed to produce evidence to counter the authenticity of the receipt or agreement.
b. Ex-Parte Proceedings: Defendant No. 3 chose not to lead any evidence. His absence deprives his defence of credibility and permits the Court to draw an adverse inference under Section CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 31 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:02:43 +0530 114 of the Evidence Act, which presumes that withheld evidence would have been unfavorable to him.
51. The Plaintiffs' claim of paying ₹21 lakhs to Defendant No. 3 is substantiated by:
a. Primary documentary evidence (Ex. PW1/11 and Ex.
PW1/12), b. Uncontested testimony of PW-2 (bank official), c. The presumption of truth attached to unchallenged evidence of PW-1.
52. Defendant No. 3's defence, resting solely on a vague allegation of fraud, is devoid of merit. Fraud, being a serious charge, requires strict proof (Section 17 of the Indian Contract Act, 1872). His failure to adduce evidence, coupled with his ex-parte status, renders his denial a bare assertion incapable of rebutting the Plaintiffs' robust evidentiary foundation.
53. Thus, the preponderance of evidence conclusively establishes the payment of ₹21 lakhs to Defendant No. 3. The Court must uphold the Plaintiffs' claim, as Defendant No. 3's unsubstantiated allegations cannot override the cogent proof presented.
Payment for Society Charges (Rs. 50,000):
54. The Plaintiffs claim to have paid Rs. 50,000 in cash through Defendant No. 4 for society charges to Guru Ram Dass Society.
Defendant No. 4 admits to the same in his written statement.
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55. There is no documentary evidence to support this payment, such as a receipt from Defendant No. 4 or the society.
56. While the lack of documentation is a weakness, Defendant No. 4's admission lends credibility to the Plaintiffs' claim.
57. Furthermore, this payment, even if not directly towards the sale consideration, demonstrates the Plaintiffs' commitment to acquiring the property and incurring expenses related to it. It is a payment made towards the smooth transfer of the suit property in favour of the Plaintiffs.
Conclusion on Issue No. 1:
58. After a thorough examination of the evidence, including the oral testimonies, the documentary evidence, the admissions of Defendant No. 1, and considering the lack of substantiation from the Defendants for their claims, I find that the Plaintiffs have successfully proven, on a preponderance of probabilities, that they made a payment of Rs. 82 lakhs (Rs. 61 lakhs to Defendant No. 1 and Rs. 21 lakhs to Defendant No. 3) towards the purchase of the suit property. The payment of Rs. 50,000 for society charges, though not strictly part of the sale consideration, is also considered proven and relevant to the overall transaction.
59. Therefore, Issue No. 1 is decided in the affirmative and in favor of the Plaintiffs.
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2025.02.07 18:02:56 +0530 ISSUE NO. 2 - (Whether Defendant No. 1 and Defendant No. 2 had no right to sell the suit property to the Plaintiff? ... OPD3.)
- REFRAMED
60. Vide order dated 24.10.2017, the learned Predecessor framed the issues, including Issue No. 2, which was originally framed as:
"Whether the Defendants had any right to sell the property in question to the Plaintiff? ... OPD."
61. Upon perusal of the pleadings of the parties, this Court is of the view that the said issue was framed based on the objections raised by Defendant No. 3 in paragraph 9 of the 'Preliminary Submissions' of his written statement, wherein he asserted that Defendant No. 1 (Mr. Rajiv Kumar) and Defendant No. 2 (Mohit Saxena) had no right, title, or authority to enter into any agreement to sell with the Plaintiff in respect of the suit property. The relevant portion of Defendant No. 3's written statement reads as follows:
"It is further submitted that Defendant No. 1 (Mr. Rajiv Kumar) has no right, title over the suit property and has no right to enter into any agreement to sell with the Plaintiffs herein. It is also submitted that Defendant No. 2 (Mohit Saxena) has also no right, title over the suit property and has no right to enter into an Agreement to Sell with Mr. Rajiv Kumar (Defendant No. 1) in respect of the above-said property."
62. From the above, it is evident that the issue should have been framed more precisely to reflect the specific objection raised by CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 34 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:03:04 +0530 Defendant No. 3. The original issue, as framed, placed the onus on all Defendants, which was erroneous. The burden to prove that Defendant No. 1 and Defendant No. 2 had no right to sell the suit property should have been placed upon Defendant No. 3, who has raised this contention.
Accordingly, this Court finds it appropriate to reframe Issue No. 2 as follows:
"Whether Defendant No. 1 and Defendant No. 2 had no right to sell the suit property to the Plaintiff? ... OPD3."
63. For the said reframing of issue, reliance is placed on Order XIV Rule 5 which provides the power to the court to amend the issues or frame additional issues before passing a decree.
64. Now, coming to the adjudication of Issue No. 2. The contentions of Defendant No. 3 in regard to this Issue are as follows:
a. Preliminary Submission in Written Statement: Defendant No. 3 contends that neither Defendant No. 1 nor Defendant No. 2 held any valid right, title, or interest in the suit property so as to convey it to the plaintiff. b. Ownership and Membership Claims: Defendant No. 3 avers that he alone is the original allottee of the cooperative housing society (membership no. 153) and that no lawful CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 35 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:03:09 +0530 transfer of ownership or membership rights had taken place in favor of Defendant No. 1 or Defendant No. 2. c. Invalidity of Agreements: Defendant No. 3 states that any agreement executed by Defendant No. 1 and/or Defendant No. 2, purporting to sell or further negotiate the suit property, was illegal and void, as these defendants had no authority to transfer property rights that did not vest in them.
65. Beyond the assertion in paragraph 9 of his Preliminary Submissions, Defendant No. 3 has not led substantive oral or documentary evidence to negate the possibility that Defendant No. 1 derived authority from him or that Defendant No. 2 had any claim of chain of title. While Defendant No. 3 repeatedly alleges fraud or misuse of documents, no specific proof (e.g., expert opinion on forgery, registered disclaimers, or society communications) was placed on record to substantiate the claim that any authorization given to Defendant No. 1 was non est or obtained illegally.
66. In the cross examination dated 31.01.2019 of the PW-1, the Plaintiff, by the Ld. Counsel for Defendant No. 3, a specific question was put in relation to the authority of Defendant No. 1. The said question and its answer is reproduced below:
"As per the agreement to sell dated 23.08.2010, it is clearly mentioned that Rajiv Kumar (D-1) is entering into the agreement with Mr. Amit Khattar on behalf of Satish Kumar CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 36 of 52 Digitally signed by SUMIT SUMIT Date:
DALAL DALAL 2025.02.07 18:03:16 +0530 Chopra (D-3). Did you enquire to find out whether any attorney was given to Rajiv Kumar by Satish Kumar Chopra in this regard?
Satish Kumar Chopra (D-3) and Rajiv Kumar (D-1) had executed an agreement to sell in which vide para no. 8 Mr. Rajiv Kumar was authorised by Satish Kumar Chopra to execute agreement to sell in respect to the flat in question on his behalf."
PW-1's response indicated the existence of an agreement between Defendant No. 1 and Defendant No. 3 authorizing the former to act on the latter's behalf. Ld. Counsel for the plaintiff sought time to produce the said agreement.
67. Subsequently, on 05.03.2020, PW-1 was recalled for further cross-examination. At this stage, PW-1 produced a set of original documents, collectively exhibited as Ex. PW1/27 (Colly). These documents include:
a. Original agreement to sell dated 06.08.2010 executed between Sh Satish Kumar Chopra(defendant no.3) and Sh. Rajeev Kumar (defendant no.1), b. GPA dated 06.08.2010 executed between Sh Satish Kumar Chopra (defendant no.3) and Sh. Rajeev Kumar (defendant no.1), c. Will dated 06.08.2010 executed by Sh. Satish Kumar Chopra (defendant no.3) in favour of Sh. Rajeev Kumar (defendant no.1), CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 37 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:03:22 +0530 d. Receipt dated 06.08.2010 for sum of Rs.21 lacs (Rs.21,00,000/-) from Sh Rajeev Kumar (Defendant No. 1) under the terms and condition of the agreement to sell dated 06.08.2010, e. Possession letter dated 06.08.2010 in favour of Rajeev Kumar (Defendant No. 1) under the terms and condition of the agreement to sell dated 06.08.2010, f. Indemnity bond dated 06.08.2010 executed between Sh Satish Kumar Chopra (defendant no.3) and Sh. Rajeev Kumar (defendant no.1) under the terms and conditions of agreement to sell dated 06.08.2010, g. Special Power of attorney executed by Sh Satish Kumar Chopra in favour of Rajeev Kumar dated 06.08.2010, h. Agreement to appoint an Arbitrator dated 06.08.2010 executed between Sh Satish Kumar Chopra (defendant no.3) and Sh. Rajeev Kumar (defendant no.1), i. Affidavit dated 06.08.2010 of Satish Kumar Chopra (Defendant No. 3) deposing that Sh Satish Kumar Chopra has received full and final consideration.
j. Affidavit dated 06.08.2010 of Sh Satish Kumar Chopra (Defendant No. 3) deposing that Sh Satish Kumar Chopra holds the valid membership of the society of the Guru Ram Dass Co-operative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153, in the said affidavit Sh Satish Kumar Chopra deposes that he has appointed Sh Rajiv Kumar (defendant no.1) as his 38 of 52 Digitally CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page signed by SUMIT SUMIT Date:
DALAL DALAL 2025.02.07 18:03:29 +0530 attorney in respect of the flat to be allotted against the said membership, k. Affidavit dated 06.08.2010 of Satish Kumar Chopra (Defendant No. 3) deposing that he has nominated Sh Rajeev Kumar as his nominee in respect of the aforesaid membership/flat to be allotted vide his membership no. 153, l. Letter to secretary of the Guru Ram Dass Cooperative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153 by Sh Satish Kumar Chopra (Defendant No. 3) appointing Sh Rajeev Kumar (Defendant No. 1) as nominee and requesting his name to be entered as his nominee in the society records, m.Letter to secretary of the Guru Ram Dass Co-operative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153 by Sh Satish Kumar Chopra giving his no objection if the aforesaid membership/flat is transferred in the name of Sh Rajeev Kumar (Defendant No. 1).
n. Letter to secretary of the Guru Ram Dass Co-operative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka against his membership no. 153 by Sh Satish Kumar Chopra (Defendant No. 3) giving his resignation from the membership of the society, o. Resignation letter of Sh Satish Kumar Chopra (Defendant No. 3) to the secretary of the Guru Ram Dass Cooperative Group Housing Society situated at plot no.3-B, Sector-22, Dwarka, CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 39 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:03:34 +0530 p. Request letter of Sh Satish Kumar Chopra (Defendant No. 3) to the secretary of Guru Ram Dass Co-operative Group Housing Society situated at plot o.3-B, Sector-22, Dwarka q. Specimen signatures of Sh Satish Kumar Chopra (Defendant No. 3)
68. Critically, despite being afforded multiple opportunities, Defendant No. 3 did not further cross-examine PW-1 after the production of Ex. PW1/27 (Colly). His right to cross-examine was subsequently closed. This failure to challenge the authenticity or validity of these documents, after they were brought on record, is highly significant. While Defendant No. 3, in his written statement, alleged fraud by Defendant No. 2 and denied authorizing Defendant No. 1, he offered no evidence whatsoever to support these claims. He chose not to contest the documents at the evidentiary stage.
69. This Court, therefore, finds that the documents comprising Ex. PW1/27 (Colly), produced in original, have been duly proved by the Plaintiffs through the testimony of PW-1. Defendant No. 3, despite having the opportunity, failed to rebut the presumption of their genuineness or to establish his claim of fraud.
70. It is undisputed that Defendant No. 3 was the original member and allottee of the suit property. However, the crux of his objection in paragraph 9 is not about his own ownership but the denial of any legally recognized authority in Defendant No. 1 or Defendant No. 2.
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71. The plaintiffs introduced evidence Ex. PW1/27 (Colly) showing that Defendant No. 3 apparently empowered Defendant No. 1 with powers of attorney and related documents dated 06.08.2010, which predate the plaintiffs' agreement dated 23.08.2010 (Ex. PW1/1). Ex. PW1/27 (Colly) has been held by this Court to be duly proved vide para 73 of this judgment.
Therefore, it is established that Defendant No. 1 was authorized by Defendant No. 3 to enter into the agreement to sell with the Plaintiffs on 23.08.2010 and Defendant No. 1 was not wholly without right or authority to contract with the plaintiff.
72. Now, coming to Defendant No. 2. The record indicates that Defendant No. 2 also had an agreement with Defendant No. 3 at some point, though the validity or completion of that transaction is disputed. Even so, it was incumbent upon Defendant No. 3 to show that Defendant No. 2's claim or involvement was entirely without any foundation. Defendant No. 3, however, offers no corroborative evidence--through society records or other formal documents--to prove conclusively that Defendant No. 2 had no permissible link to the property.
73. In light of the foregoing analysis, Defendant No. 3 has failed to discharge the onus placed upon him by the reframed Issue No. 2. He has not provided any credible evidence to establish that Defendant No. 1 and Defendant No. 2 had no right to sell the suit property to the Plaintiffs. On the contrary, the Plaintiffs, through the production of Ex. PW1/27 (Colly) and the testimony of PW-1, have established, on a preponderance of probabilities, that CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 41 of 52 Digitally signed by SUMIT SUMIT DALAL Date:
DALAL 2025.02.07 18:03:46 +0530 Defendant No. 1 possessed the requisite authority, derived from Defendant No. 3, to enter into the agreement to sell dated 23.08.2010 (Ex. PW1/1). While Defendant No. 3's initial ownership is undisputed, his subsequent actions, as evidenced by Ex. PW1/27 (Colly), conferred authority upon Defendant No. 1.
Defendant No. 3's allegations of fraud against Defendant No. 2, remain unsubstantiated, particularly in light of his ex-parte status and failure to lead any evidence. The claim of Defendant No. 2 that he had no subsisting right or interest over the suit property as his agreement with Defendant No. 1 stood cancelled, is inconsequential, since Defendant No. 1 has been held to be authorized by Defendant No. 3 to enter into agreements on his behalf.
74. Therefore, Reframed Issue No. 2 is decided in the negative and against Defendant No. 3. It is held that Defendant No. 3 has failed to prove that Defendant No. 1 and Defendant No. 2 lacked the right to sell the suit property to the Plaintiffs. The evidence, in fact, supports the finding that Defendant No. 1, by virtue of the authority granted to him by Defendant No. 3 vide documents in Ex. PW1/27 (Colly), had the right to enter into the agreement to sell dated 23.08.2010 with the Plaintiffs.
ISSUE NO. 3: WHETHER THE PLAINTIFF IS ENTITLED TO THE DECREE OF SPECIFIC PERFORMANCE AND POSSESSION, AS CLAIMED? OPP Digitally signed by SUMIT SUMIT 42 of 52 DALAL CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page DALAL Date:
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75. The onus of proving this issue lies on the Plaintiffs (OPP). To succeed in their claim for specific performance, the Plaintiffs must establish, on a preponderance of probabilities, the following:
a. The existence of a valid and enforceable contract: This involves demonstrating that a legally binding agreement for the sale of the suit property existed between the Plaintiffs and a party having the right to sell. b. Performance or Readiness and Willingness to Perform: The Plaintiffs must show they have either performed their obligations under the contract or have been, and continue to be, ready and willing to perform their remaining obligations. c. Inadequacy of Damages: They must demonstrate that monetary damages would not be an adequate remedy for the breach of contract.
d. No Equitable Bars: The Court must be satisfied that there are no equitable reasons (such as hardship to the defendant, unfairness, or unclean hands on the part of the plaintiffs) that would justify refusing specific performance.
Valid and Enforceable Contract:
Agreement with Defendant No. 1 (Ex. PW1/1):
76. The Plaintiffs initially entered into an agreement to sell dated 23.08.2010 (Ex. PW1/1) with Defendant No. 1. This Court, in adjudicating the reframed Issue No. 2, has already held that Defendant No. 1, by virtue of the authority granted to him by Defendant No. 3 through the documents in Ex. PW1/27 (Colly), Digitally
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2025.02.07 18:04:14 +0530 possessed the legal right to enter into this agreement with the Plaintiffs. The agreement itself, produced in original, sets out the essential terms of the contract, including the identification of the parties, the description of the suit property, the sale consideration, and the payment schedule. Therefore, Ex. PW1/1, prima facie, constitutes a valid and enforceable contract.
Agreement with Defendant No. 3 (Ex. PW1/11):
77. Subsequently, the Plaintiffs entered into a direct agreement to sell with Defendant No. 3 on 21.09.2010 (Ex. PW1/11). This agreement further strengthens the Plaintiffs' claim, as it directly involves the original allottee of the property. Defendant No. 3's contention that this agreement was obtained through fraud has been found to be unsubstantiated. He did not lead any evidence to prove this claim, and his bare denial is insufficient to rebut the presumption of validity attached to a written agreement, especially one accompanied by a receipt for a substantial payment (Rs. 21 lakhs). This Court, in absence of any rebuttal evidence on behalf of the Defendant No. 3, is of the view that the agreement to sell (Ex.
PW1/11) is duly proved by the testimony of PW-1 by his affidavit (Ex. PW1/A). Moreover, PW-1 has produced the said Agreement to Sell (Ex. PW1/11) in original. Nothing contrary has been brought in the cross examination of PW-1 to doubt the execution of this agreement.
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78. Therefore, the Plaintiffs have established the existence of valid and enforceable agreements to sell concerning the suit property.
Readiness and Willingness:
79. Section 16(c) of the Specific Relief Act, 1963, requires the plaintiff to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. This readiness and willingness must be continuous, from the date of the contract to the date of the hearing.
80. The Plaintiffs' readiness and willingness are demonstrated by the following:
a. Substantial Payment: The Plaintiffs have paid Rs. 82 lakhs out of the total sale consideration of Rs. 84,75,000. This Court, in adjudicating Issue No. 1, has already held this payment to be proven. This represents over 96% of the agreed price, a clear indication of substantial performance and commitment to the contract.
b. PW-1's Testimony: PW-1, in his affidavit (Ex. PW1/A) and during his examination-in-chief, explicitly stated the Plaintiffs' readiness and willingness to pay the balance amount of Rs. 2,75,000/- (Rs. 2,25,000 as the remaining sale consideration and Rs. 50,000 paid for society charges). c. Attempted Payment of Society Dues: The Plaintiffs' preparation of demand drafts totaling Rs. 3 lakhs (Mark G & CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 45 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:04:28 +0530 H), intended for payment of society dues on behalf of Defendant No. 3, further reinforces their willingness to fulfill their obligations, even going beyond the strict terms of the agreement. These drafts coupled with PW-1's testimony, is indicative of intent.
d. Legal Notice (Ex. PW1/17): The Plaintiffs served a legal notice dated 01.07.2013 on the Defendants, demanding specific performance of the contract. This formal demand demonstrates their continued willingness to complete the transaction.
e. Defendant No. 4's Admission: Defendant No. 4, in his written statement, admitted to the Plaintiffs' readiness and willingness to pay the remaining amount. f. Absence of Contradictory Evidence: The Defendants, particularly Defendant No. 3, have not presented any evidence to suggest that the Plaintiffs were unwilling or unable to pay the balance consideration. Their ex-parte status further weakens any potential challenge to the Plaintiffs' readiness and willingness.
81. Based on the cumulative weight of this evidence, the Plaintiffs have convincingly demonstrated their continuous readiness and willingness to perform their part of the contract.
Inadequacy of Damages:
82. It is a settled principle of law that contracts for the sale of immovable property are typically considered appropriate for CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 46 of 52 Digitally signed by SUMIT SUMIT Date:
DALAL DALAL 2025.02.07 18:04:34 +0530 specific performance. Land is deemed a unique asset, and monetary damages are often considered an inadequate substitute for the specific property contracted for.
83. The Plaintiffs' stated purpose for acquiring the suit property was to establish a residence for their family. This personal and specific use reinforces the inadequacy of monetary damages. They would be deprived of the specific flat they chose in a specific location, which is not readily replaceable by a mere monetary award.
84. Therefore, it is clear that monetary damages would not be an adequate remedy for the Plaintiffs in this case.
Equitable Considerations:
85. The Plaintiffs have, throughout the transaction, acted in a manner consistent with their desire to complete the purchase. They made substantial payments, attempted to resolve the emerging complications, and ultimately resorted to legal action to enforce their rights. There is no evidence of any inequitable conduct on their part.
86. The conduct of Defendant No. 1 and, particularly, Defendant No. 3, raises serious concerns. Defendant No. 1's "investment" claim is unsupported, and the documents in Ex. PW1/27 (Colly) indicate he was authorized to deal with the property. Defendant No. 3's denial of receiving Rs. 21 lacs is contradicted by compelling evidence, and his allegation of fraud is unsubstantiated. Their CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 47 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:04:40 +0530 failure to participate in the proceedings further casts doubt on their positions.
87. No evidence has been presented by any of the Defendants to demonstrate that granting specific performance would cause them undue hardship. Defendant No. 3, as the original allottee, would receive the agreed-upon sale consideration (with a minor balance remaining). On the other hand, denying specific performance would cause significant hardship to the Plaintiffs, who have paid the vast majority of the purchase price and are seeking a specific home for their family.
Section 12 of the Specific Relief Act:
88. Even if the Court were to find, arguendo, that the agreement with Defendant No. 1 (Ex. PW1/1) was somehow flawed due to a perceived lack of complete authority at the time of its execution, the subsequent agreement with Defendant No. 3 (Ex. PW1/11) directly addresses this. The Plaintiffs have substantially performed their obligations by paying over 96% of the total consideration. Section 12 of the Specific Relief Act allows for specific performance of a part of a contract where the unperformed part is small. Given the substantial payment and the Plaintiffs' readiness to pay the balance, Section 12 would support granting specific performance, even if there were minor deficiencies in the initial agreement.
89. After a thorough and comprehensive analysis of the evidence, the applicable legal principles, and the conduct of the parties, I find CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 48 of 52 Digitally signed by SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:04:47 +0530 that the Plaintiffs have successfully established their entitlement to a decree of specific performance and possession of the suit property. They have proven the existence of valid and enforceable agreements to sell, their continuous readiness and willingness to perform their obligations, and the inadequacy of monetary damages as a remedy. The Defendants have failed to present any credible defence or to demonstrate any equitable reason why specific performance should be denied. The equities of the case overwhelmingly favour the Plaintiffs.
90. Therefore, Issue No. 3 is decided in the affirmative and in favor of the Plaintiffs.
FINAL CONCLUSION
91. In view of the foregoing discussions and findings on all three issues, this Court concludes as under:
a. Issue No. 1 has been decided in favor of the Plaintiffs, who have established payment of ₹82,00,000/- (Rupees Eighty-Two Lakhs) out of the total consideration of ₹84,75,000/- (Rupees Eighty-Four Lakhs Seventy-Five Thousand). The Plaintiffs have also demonstrated their readiness and willingness to pay any remaining balance. b. Issue No. 2 (reframed) has been decided against Defendant No. 3, it being held that Defendant No. 1 and Defendant No. 2 did possess, or at least derived from Defendant No. 3, sufficient authority to sell or negotiate the suit property.
Digitally 49 of 52 SUMIT signed by Amit Khatter Vs. Rajit Kumar & Ors. SUMIT DALAL CS No. 17377/16 Page Date:
DALAL 2025.02.07 18:04:54 +0530 Defendant No. 3 failed to prove his allegation that Defendant Nos. 1 and 2 lacked any lawful right or title. c. Issue No. 3 has been decided in favor of the Plaintiffs, entitling them to a decree of specific performance of the agreements dated 23.08.2010 (Ex. PW1/1) and 21.09.2010 (Ex. PW1/11), along with possession of the suit property, subject to payment of the balance consideration and completion of relevant formalities. d. The evidence on record thus comprehensively supports the Plaintiffs' claim that they made substantial payments toward the purchase of the suit property, and were consistently ready and willing to complete the sale. The Defendants' defenses, being unsubstantiated, do not outweigh the Plaintiffs' established contractual and equitable rights. Accordingly, the suit deserves to be decreed for specific performance and possession.
RELIEF GRANTED AND DIRECTIONS Decree of Specific Performance
92. It is hereby decreed that the Plaintiffs are entitled to specific performance of the agreements to sell dated 23.08.2010 (Ex.
PW1/1) and 21.09.2010 (Ex. PW1/11).
93. Defendant No. 3 (and Defendant No. 1, if necessary for execution of documents) shall execute all requisite sale deeds or conveyance deeds in favor of the Plaintiffs within three months from the date of this judgment, upon the Plaintiffs tendering the 50 of 52 Digitally Amit Khatter Vs. Rajit Kumar & Ors. signed by CS No. 17377/16 Page SUMIT SUMIT DALAL DALAL Date:
2025.02.07 18:05:00 +0530 balance sale consideration of ₹2,75,000/- (₹2,25,000 + ₹50,000 for society charges) to Defendant No. 3 and fulfilling the necessary formalities required by the Guru Ram Dass CGHS Ltd. or any other authority.
Delivery of Possession
94. The Defendants, particularly Defendant No. 3, shall place the Plaintiffs in vacant and peaceful possession of the suit property, i.e., Flat No. 301, Guru Ram Dass CGHS Ltd., Plot No. 3-B, Sector-22, Dwarka, Phase-1, New Delhi, at the time of execution/registration of the sale deed(s).
Permanent Injunction
95. The Defendants, their representatives, agents, or any persons acting through them, are permanently restrained from alienating, transferring, or creating any third-party interest in the suit property, or otherwise interfering with the Plaintiffs' rights therein, in a manner that would frustrate the decree granted herein.
Costs
96. Given the circumstances in which the Plaintiffs have been compelled to litigate, costs of the suit are awarded in favor of the Plaintiffs and against Defendant No. 3.
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97. Let a Decree Sheet be prepared accordingly. The suit is hereby disposed of in the aforesaid terms. File be consigned to record room after due compliances.
Pronounced in the open Court on 31.01.2025 but digitally signed and uploaded on 07.02.20251 Digitally signed by SUMIT SUMIT Date:
DALAL DALAL 2025.02.07 (SUMIT DALAL)18:05:16 +0530 District Judge-04 (SW) Dwarka Courts, New Delhi 1 The delay in digitally signing and uploading the judgment dated 31.01.2025 occurred due to the following reasons:
a. 31.01.2025: Proofreading of the judgment was required but could not be completed due to a heavy board.
b. 01.02.2025: The undersigned was on half-day leave in the afternoon session, leaving insufficient time for proofreading and signing. c. 02.02.2025: Sunday (Court Holiday). d. 03.02.2025: The board was exceptionally heavy, with 52 matters listed, including 12 land acquisition cases, which required substantial time, leaving no opportunity for proofreading and signing. e. 04.02.2025: The undersigned was nominated for training at the Delhi Judicial Academy.
f. 05.02.2025: The courts were closed due to the Delhi State Assembly Elections.
g. 06.02.2025: The undersigned was again nominated for training at the Delhi Judicial Academy.
Accordingly, the judgment was digitally signed and uploaded on 07.02.2025 after completing the necessary formalities.CS No. 17377/16 Amit Khatter Vs. Rajit Kumar & Ors. Page 52 of 52