Delhi District Court
Harsh Kumar vs Jitender Saini on 1 April, 2025
IN THE COURT OF DISTRICT JUDGE-02: NORTH ROHINI
COURTS COMPLEX: DELHI
CNR No. : DLNT01-006271-2021
CS DJ No. 444/2021
IN THE MATTER OF:-
HARSH KUMAR
S/O SH. SURENDER KUMAR
R/O KHASRA NO. 33/6/2
GALI NO. 15, SANJAY COLONY,
NARELA DIST. NORTH WEST
DELHI-110040
........Plaintiff
VERSUS
JITENDER SAINI
S/O SH. FATEH SINGH,
R/O HOUSE No. 99,
VILLAGE LAMPUR,
NARELA DIST. NORTH-WEST,
DELHI-110040.
.....Defendant
Date of institution : 07.09.2021
Date of Conclusion of Argument : 28.03.2025
Date of Judgment : 01.04.2025
SUIT FOR SPECIFIC PERFORMANCE,
POSSESSION, PERMANENT AND MANDATORY
INJUNCTION VIKRAM
BALI
Digitally signed
by VIKRAM BALI
Date: 2025.04.01
15:37:31 +0530
CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 1 of 17
JUDGMENT
1. Vide this judgment, this court shall decide the present suit, filed by the plaintiff for specific performance, possession, permanent and mandatory injunction.
PLAINTIFF CASE
2. As per facts borne out from the record, it is case of the plaintiff that he wanted to purchase Agricultural land admeasuring area 02 Bighas & 10 Biswas, out of Khasra no. 29/12 MIN (2-10) situated in the revenue estate of Village Lampur, Tehsil Alipur, District-North, Delhi-110040 (hereinafter referred to as suit property). An Agreement to Sell dated 24.12.2019 was entered into with the defendant. Total sale consideration was fixed at Rs. 33 lakhs. Rs. 3.30 lakhs were given to defendant as earnest money on 24.12.2019. The target date for execution of Sale Deed was fixed as 24.07.2020.
3. It is further the case of the plaintiff that Rs.7 lakhs were to be paid within two months after execution of Agreement to Sell. Remaining payment of Rs. 22.70 lakhs was to be paid on or before 24.07.2020. An amount of Rs. 7 lakhs were not received by the defendant deliberately. Defendant issued a legal notice dated 25.01.2020 denying the validity of Agreement to Sell dated 24.12.2019. A suit for permanent injunction VIKRAM BALI was filed bearing No. CS DJ No. 91/20. Plaint was rejected on Digitally signed by VIKRAM BALI Date: 2025.04.01 15:37:37 +0530 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 2 of 17 25.11.2020 as deficient court fees was not paid despite time granted. Thereafter, the present suit for specific performance, possession and for reliefs of injunction was filed.
4. Vide order dated 28.09.2022 the defence of the defendant was struck off as written statement was not filed despite repeated opportunities. Thereafter, an application u/s 151 CPC for setting aside the order dt. 28.09.2022, moved by the defendant, was dismissed vide order dt. 27.07.2023.
PLAINTIFF EVIDENCE Sr. No. Name of witness Documents exhibited
1. PW1 Sh. Harsh He tendered his evidence by way of Kumar affidavit Ex. PW 1/B. He relied upon the following documents:
1. Site plan as Ex. PW1/1.
2. Original Agreement to sell dated 24.12.2019 as Ex.PW1/2.
3. Original Receipt dated 24.12.2019 as Ex. PW 1/3.
4. Copy of complaint dated 05.01.2020 as Mark 1/4.
5. Legal notice dated 25.01.2020 as VIKRAM BALI Mark 1/5.Digitally signed by VIKRAM BALI Date: 2025.04.01 15:37:44 +0530
CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 3 of 17
6. Reply dated 03.02.2020 as Ex.P/W1/6.
7. Order dated 25.11.2020 as Ex.PW1/7.
8. Plaint as Ex. PW 1/A.
5. Plaintiff evidence was closed vide order dated 02.02.2024.
6. No defence evidence was led as vide order dated 28.09.2022 the defence of the defendant was struck off as written statement was not filed despite repeated opportunities. Thereafter, an application u/s 151 CPC for setting aside the order dt. 28.09.2022, moved on behalf of defendant, was dismissed vide order dt. 27.07.2023.
POINT OF DETERMINATION
7. This court is required to determine the following point:-
"Whether the plaintiff is entitled to specific performance of Agreement to Sell dt. 24.12.2019 and consequential relief of permanent injunction as prayed for?"
ARGUMENTS BY COUNSEL FOR THE PLAINTIFF
8. Counsel for the plaintiff has argued that Agreement to Sell dated VIKRAM 24.12.2019 Ex. PW1/2 has been duly proved by the plaintiff. An BALI Digitally signed by VIKRAM BALI CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 4 of 17 Date: 2025.04.01 15:37:49 +0530 amount of Rs.33 lakhs was total consideration for purchase of suit property. An amount of Rs. 3.30 lakhs were paid as is clear from receipt Ex. PW1/3.
9. It is argued by counsel for plaintiff that police complaint dated 05.01.2020 Ex.PW1/4 was given by the plaintiff. Vide Ex. PW 1/5 legal notice dated 25.01.2020 was given by defendant.
10. A plea of loan was taken and Agreement to Sell was denied in the same. Reply to the same was given by the plaintiff on 03.02.2020 vide Ex.PW1/6.
11. It is further argued by counsel for the plaintiff that there is no need for the plaintiff to prove actual availability of funds as on target date i.e. 24.07.2020 (reliance is placed upon case titled as P. Daivasigamani Vs. S. Sambandan, decided by Hon'ble Supreme Court of India on 12.10.2022 in civil appeal no. 9006/2011).
12. Per contra, counsel for the defendant to this submission states that though defence was struck off on 28.09.2022, he can still show inherent inconsistency in the case of the plaintiff.
13. Counsel for the plaintiff has submitted that though receipt of Rs.3.30 lakhs vide Ex.PW1/3 was obtained but Rs.2 lakhs were given in cash and cheque of Rs.1.30 lakhs was given. This fact is mentioned in reply dt.03.01.2020 to legal notice Ex.PW1/6. Counsel for the plaintiff VIKRAM submits that cheque of Rs.1.30 lakhs has not been encashed by the BALI Digitally signed CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 5 of 17 by VIKRAM BALI Date: 2025.04.01 15:37:55 +0530 defendant (which fact is mentioned in para 5 of reply dt.03.01.2020 to legal notice Ex.PW1/6).
ARGUMENTS BY COUNSEL FOR THE DEFENDANT
14. It is argued by counsel for defendant that defendant is illiterate person. He had merely taken a loan, which is clear from Ex.PW 1/5 legal notice dated 25.01.2020 sent on behalf of defendant to plaintiff. Para 2 is relied upon. Further vide para 8 of the legal notice the alleged Agreement to Sell has been terminated.
15. It is argued by counsel for the defendant that the earlier suit (Ex. PW1/7 was filed on 11.02.2020) even before the target date of 24.07.2020,so present suit is not maintainable. Per contra, counsel for the plaintiff to this submission states that the said suit was only for permanent injunction, so that no third party interest is created in the suit property.
16. It is argued by counsel for the defendant that attesting witness to Agreement to Sell dt. 24.12.2019 Ex.PW1/2 namely Sh. Rishu Samrat and Sh. Satender Saini were not examined, so Agreement to Sell was not proved as per law.
17. It is further argued by counsel for the defendant that Agreement to VIKRAM Sell dt. 24.12.2019 Ex.PW1/2 at serial No. 2 provides for payment of BALI Digitally signed by VIKRAM BALI Date: 2025.04.01 15:38:01 +0530 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 6 of 17 double the earnest money, so specific performance should not be granted.
FINDINGS:
18. Court has carefully heard rival submission and perused the case record with assistance of counsel for the parties. Following findings are returned after careful considerations of submissions raised.
19. The following dates in tabular form explain the essential facts in chronological order:
Date Event 24.12.2019 It is case of the plaintiff that he wanted to purchase
Agricultural land admeasuring area 02 Bighas & 10 Biswas, out of Khasra no. 29/12 MIN (2-10) situated in the revenue estate of Village Lampur, Tehsil Alipur, District-North, Delhi-110040 (hereinafter referred to as suit property). An agreement to sell dated 24.12.2019 was entered into with the defendant. Total sale consideration was fixed at Rs. 33 lakhs. Rs. 3.30 lakhs were given to defendant as earnest money on 24.12.2019.
25.01.2020 Defendants issued a legal notice dated 25.01.2020 VIKRAM BALI denying the validity of agreement to sell dated Digitally signed by VIKRAM BALI Date:
2025.04.01 15:38:07 +0530 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 7 of 17 24.12.2019.
24.02.2020 It is further the case of the plaintiff that Rs. 7 lakhs were to be paid within two months after execution of agreement to sell. Rs. 7 lakhs were not received by the defendant deliberately.
24.07.2020 Remaining payment of Rs. 22.70 lakhs was to be paid on or before 24.07.2020. The target date for execution of sale deed was fixed as 24.07.2020.
25.11.2020 A suit for permanent injunction was filed bearing no. CS DJ No. 91/20. Plaint was rejected on 25.11.2020 as deficient court fees was not paid despite time granted.
07.09.2021 Thereafter, the present suit for specific performance, possession and for reliefs of injunction was filed.
28.09.2022 Vide order dated 28.09.2022, the defence of the defendant was struck off as written statement was not filed despite repeated opportunities.
20. Perusal of file shows that Agreement to Sell dated 24.12.2019 Ex.PW1/2 has been duly proved by the plaintiff as PW-1 Harsh Kumar. VIKRAM BALI The same mentions an amount of Rs.33 lakhs as total consideration for Digitally signed by VIKRAM BALI Date: 2025.04.01 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 8 of 17 15:38:13 +0530 purchase of suit property. An amount of Rs. 3.30 lakhs were paid as per receipt Ex. PW1/3. However, counsel for plaintiff has fairly submitted during course of the arguments that cheque of Rs.1.30 lakhs was not encashed by the defendant and only Rs.2 lakhs were received by the defendant.
21. Perusal of record shows that police complaint dated 05.01.2020 Ex.PW 1/4 was given by the plaintiff. Vide Ex. PW 1/5 legal notice dated 25.01.2020 was given by defendant. The same shows that a plea of loan was taken. Agreement to Sell was denied in the same. Reply to the same was given by the plaintiff on 03.02.2020 vide Ex.PW1/6.
22. It is rightly argued by counsel for the plaintiff that there is no need for the plaintiff to prove actual availability of funds as on target date i.e. 24.07.2020 (reliance is rightly placed upon case titled as P. Daivasigamani Vs. S. Sambandan, decided by Hon'ble Supreme Court of India on 12.10.2022 in civil appeal no. 9006/2011). Explanation (i) to Section 16 (c) of the Specific Relief Act, 1963 is as under:
"......
Explanation : for the purpose of clause (c), -
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court...' VIKRAM BALI Digitally signed by VIKRAM BALI Date: 2025.04.01 15:38:20 +0530 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 9 of 17
23. Defendant vide Ex. PW 1/5 legal notice dated 25.01.2020 denied Agreement to Sell. So plaintiff could not tender seven lakh and remaining amount to defendant. Plaintiff has rightly taken legal recourse as per law. Further having entered into an agreement to sell dated 24.12.2019 Ex. PW1/2, the defendant could not unilaterally cancell it by legal notice Ex. PW 1/5.
24. There is no dispute qua submissions on behalf of defendant that though defence was struck off on 28.09.2022, he can still show inherent inconsistency in the case of the plaintiff. In fact Hon'ble Supreme Court of India in case titled as Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350 explained the law with regard to burden of proof of plaintiff in case where written statement is not filed. The observations of the Hon'ble Apex court may be reproduced herewith as follows:-
"...Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order 8 Rule 10 CPC is attracted and the court acts thereunder, the necessity of proof by the plaintiff company of his case to the satisfaction of the court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff company is not very heavy. A prima VIKRAM facie proof of the relevant facts constituting the cause of BALI action would suffice and the court would grant the plaintiff Digitally signed by VIKRAM BALI Date:
2025.04.01 15:38:25 +0530 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 10 of 17 company such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule
5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the "points for determination"
and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence."
25. Further, the Hon'ble Apex Court in Maya Devi Vs. Lalta Parsad (2015) 5 SCC 588, while dealing with the said issue, observed as follows:
"The absence of the Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of the Plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha vs Tata Engineering and Locomotive VIKRAM BALI Company Limited, (2013) 4 SCC 396, will be sufficient. The Digitally signed by VIKRAM BALI Date: CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 11 of 17 2025.04.01 15:38:32 +0530 failure to file a Written Statement, thereby bringing Order VIII Rule 10 of the CPC into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII Rule 10 CPC and on the invocation of Order IX of the CPC, the Court is nevertheless duty- bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted...."
26. Perusal of record shows that though though receipt of Rs.3.30 lakhs vide Ex.PW1/3 was obtained but Rs.2 lakhs were given in cash and cheque of Rs.1.30 lakhs was given, which fact is mentioned in reply dt.03.01.2020 to legal notice Ex.PW1/6. Counsel for the plaintiff had fairly submitted that cheque of Rs.1.30 lakhs has not been encashed by the defendant (which fact is mentioned in para 5 of reply dt.03.01.2020 to legal notice Ex.PW1/6).
FINDING ON ARGUMENTS RAISED BY COUNSEL FOR THE DEFENDANT
27. The submission on behalf of defendant that defendant is illiterate person. He had merely taken a loan which is clear from Ex.PW 1/5 legal notice dated 25.01.2020 sent on behalf of defendant to plaintiff. (para 2 of which is relied upon). Further vide para 8 of the legal notice the alleged Agreement to Sell has been terminated, so, the suit of the VIKRAM plaintiff deserves to be dismissed, is without merits. These submissions BALI Digitally signed by VIKRAM BALI CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 12 of 17 Date: 2025.04.01 15:38:36 +0530 are rejected. As already noted above, no written statement was filed. No cross-examination of PW1 was done by the defendants. In case titled as Iqbal Basith And Others (S) v. N. Subbalakshmi And Others (S), 2020 INSC 696 it was held that:
"Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."
28. Plaintiff had no opportunity to cross-examine defendant. Case of plaintiff has gone unrebutted, unchallenged and there is nothing to disbelieve deposition of plaintiff PW-1.
29. The submission on behalf of defendant that earlier suit (Ex. PW1/7 was filed on 11.02.2020) even before the target date of 24.07.2020, so the present suit is not maintainable, is without merits. The said suit was only for permanent injunction, same was rejected for non deposit of court fees. Further, order 7 rule 13 C.P.C. provides that rejection of plaint on any of the ground herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
30. The submission on behalf of defendant that the attesting witness VIKRAM to Agreement to Sell dt. 24.12.2019 Ex.PW1/2 namely Sh. Rishu Samrat BALI Digitally signed by VIKRAM BALI Date: 2025.04.01 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 13 of 17 15:38:42 +0530 and Sh. Satender Saini were not examined, so Agreement to Sell was not proved as per law, is without merits. This submission is rejected. Section 68 of the Evidence Act, 1872 provides that if document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for proving its execution. An agreement to Sell is not a document required in law to be attested. The Agreement to Sell Ex.PW1/2 dt. 24.12.2019 has been proved on record by the plaintiff. No cross-examination was done. No Defence Evidence was led.
31. The further submission on behalf of defendant that Agreement to Sell dt. 24.12.2019 Ex.PW1/2 at serial No. 2 provides for payment of double the earnest money, so specific performance should not be granted, is without merits. This submission is rejected. Section 23 of the Specific Relief Act provides that liquidation of damages is not a bar to specific performance. This court is satisfied that sum was named in the Agreement to Sell dt. 24.12.2019 only to secure performance of the contract.
APPLICABILITY OF 2018 AMENDMENTS IN SPECIFIC RELIEF ACT,1963 TO PRESENT CASE
32. In case titled as Katta Sujatha Reddy v. Siddamsetty Infra Projects Pvt. Ltd. Hon'ble Supreme Court of India on 25.08.2022, ruled that the VIKRAM BALI 2018 amendments to the Specific Relief Act (SRA) of 1963 are Digitally signed by VIKRAM BALI Date:
2025.04.01 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 14 of 17 15:38:46 +0530 prospective and cannot apply to transactions that took place before October 1, 2018.
33. Present suit is for specific performance of Agreement dated 24.12.2019. Provisions of 2018 amendment to the Specific Relief Act apply to present case as the transaction (Agreement dated 24.12.2019) is after coming into force of 2018 amendments.
EFFECT OF 2018 AMENDMENTS IN SPECIFIC RELIEF ACT,1963 TO FACTS OF PRESENT CASE
34. The Specific Relief (Amendment) Act, 2018, has changed the nature of specific relief from an equitable, discretionary remedy to a statutory remedy. It has made specific performance of a contract a general rule rather than an exception. The amending Act has eliminated the discretion of the courts by entirely substituting Section 10 and Section 20 of the Act. The amended Section 10 stipulates that specific performance of contract shall be enforceable subject to provisions of Section 11(2), 14 and Section 16. The specific relief is now a regular statutory remedy under amended scheme of the Act,subject to exceptions.
35. Plaintiff as PW-1 duly proved agreement to sell dated 24.12.2019 i.e. Ex.PW1/2. In view of Specific Relief (Amendment) Act, 2018 VIKRAM BALI plaintiff is found entitled for specific performance of agreement to sell Digitally signed by VIKRAM BALI Date: 2025.04.01 15:38:52 +0530 CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 15 of 17 dated 24.12.2019 i.e. Ex.PW1/2, subject to balance payment of Rs 31 lakh within 60 days to defendant.
36. To protect the suit property from any alienation, transfer, mortgage or creation of any third party interest in its title, it is required that the defendant or his agents etc be directed not to create any third party interest in the the suit property except plaintiff or his nominee.
37. To sum up, plaintiff has duly proved Agreement to Sell dt. 24.12.2019 Ex.PW1/2. No written statement was filed and no cross examination of PW-1 Harsh Kumar was done. No defence evidence was lead. An adverse inference is liable to be drawn against defendant for not entering witness box and not filing written statement to prove defence. Resultantly, plaint stands proved and the prayers therein, are worthy of being granted.
38. The point of determination as to whether the plaintiff is entitled to specific performance of Agreement to Sell dt. 24.12.219 and consequential relief of permanent injunction as prayed for? is decided in favour of the plaintiff.
RELIEF
39. In view of the findings on the above point of determination, the suit of the plaintiff is decreed with costs. It is ordered that :
a). Plaintiff is entitled to specific performance of Agreement to Sell dated 24.12.2019 i.e. Ex.PW1/2. The defendant is directed to execute VIKRAM BALI Digitally signed by VIKRAM BALI CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 16 of 17 Date: 2025.04.01 15:38:56 +0530 the Sale Deed and hand over possession of the suit property i.e. Agricultural land admeasuring area 02 Bighas & 10 Biswas, out of Khasra no. 29/12 MIN (2-10) situated in the revenue estate of Village Lampur, Tehsil Alipur, District-North, Delhi-110040 marked red as per site plan Ex PW 1/1 within 60 days of this order, subject to payment of remaining consideration amount (Rs.31,00,000/-) by plaintiff to defendant or by deposit in the court, if defendant refuses to accept the amount of Rs. 31,00,000/-. In case the plaintiff fails to pay the remaining consideration amount of Rs.31,00,000/- within within 60 days of this order, the suit of the plaintiff shall be deemed to be dismissed.
B. The defendant, his agents, assignees, representatives etc. are restrained from creating any third party interest in suit land except in favour of plaintiff or his nominee.
40. Decree sheet be prepared accordingly, subject to payment of balance court fees, if any. File be consigned to record room after necessary compliance. VIKRAM Digitally signed by VIKRAM BALI BALI Date: 2025.04.01 15:39:03 +0530 Announced in the open Court today (Vikram Bali) i.e. on 01st day of April 2025 District Judge-02, North, (Order contains 17 pages) Rohini Court Complex, Delhi CS DJ No. 444/2021 Harsh Kumar Vs. Jitender Saini Page No. 17 of 17