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