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