Delhi District Court
Kulanand Poddar vs Hema on 24 December, 2025
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-002369-2017
Civil DJ No. 297/2017
1. Mr. Kulanand Poddar,
S/o Sh. Baidya Nath Poddar,
R/o T-108/A-1, Durga Mohalla,
Baljeet Nagar, New Delhi-11008.
2. Mr. Dular Poddar,
S/o Sh. Baidya Nath Poddar,
R/o T-108/A-1, Street No.21,
Baljeet Nagar, New Delhi-110008. ...Plaintiffs.
Versus
Ms. Hema,
W/o Sh. Om Prakash,
R/o I-11, Ground Floor,
West Patel Nagar,
New Delhi-110008. .....Defendant
SUIT FOR SPECIFIC PERFORMANCE
AND PERMANENT INJUNCTION.
DATE OF INSTITUTION : 17.03.2017
JUDGMENT RESERVED ON : 23.12.2025
JUDGMENT PRONOUNCED ON : 24.12.2025
Appearances:
Mr. Ujjawal Parti & Ms. Rinki Sharma, Ld. Counsels for the
Plaintiffs.
Mr. Awanish Srivastava & Ms. Ajita Singh, Ld. Counsels for the
Defendants.
Kulanand Poddar Vs. Hema Page No. 1 of 27
Civil DJ No. 297/2017
JUDGMENT
1. The Plaintiff has filed the present suit for specific performance of agreement to sell dated 01.03.2016 and permanent injunction with regard to suit property, i.e., second floor (without roof rights) in property No. T-690, Khasra No. 754/21/2, Village Khampur, Prem Nagar Road, Baljeet Nagar, New Delhi-110008.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief in the paras hereinbelow:
i. The Defendant is owner of suit property, i.e., second floor (without roof rights) in property No. T- 690, Khasra No. 754/21/2, Village Khampur, Prem Nagar Road, Baljeet Nagar, New Delhi-110008.
ii. The Plaintiffs are owners and already in possession of 50% share on ground floor of the property No. T- 690, Baljeet Nagar, Delhi and the Plaintiffs along with the husband of Defendant entered into collaboration agreement for construction of the aforesaid entire property upto third floor level with builder.
Kulanand Poddar Vs. Hema Page No. 2 of 27
Civil DJ No. 297/2017
iii. The Defendant and the Plaintiffs entered into an
Agreement to Sell dated 01.03.2016 with regard to the suit property. The agreed sale consideration amount was Rs.5,00,000/-. The Plaintiffs paid a sum of Rs.2,50,000/- in cash as part payment of the sale consideration, which the Defendant received and acknowledged in terms of the agreement to sell and a separate receipt. It was agreed that the balance amount of Rs.2,50,000/- would be paid by the Plaintiff to the Defendant on or before 31.01.2017.
iv. The Plaintiffs are/were always ready and willing to perform their part of the agreement to sell, however the Defendant did not come forward for execution of the sale deed. The Plaintiffs prepared two bank drafts/Demand drafts of the remaining balance amount of Rs.2,50,000/-, i.e., DD No.742583 dated 25.01.2017 for Rs.1,00,000/- and DD No.789284 dated 30.01.2017 for Rs.1,50,000/- in favour of the Defendant and requested the Defendant to accept the payment and execute the sale deed/ sale documents in respect of the suit property. However the Defendant did not accept the aforesaid payment/demand drafts and delayed the matter on one pretext or the other.
Kulanand Poddar Vs. Hema Page No. 3 of 27
Civil DJ No. 297/2017
v. The Defendant is not willing to receive the balance
amount of Rs. 2,50,000/- and execute the necessary documents in favour of the Plaintiffs for transfer of property in favour of the Plaintiff, as rate of the suit property has drastically increased. The Plaintiffs issued a legal notice dated 04.02.2017 to the Defendant, however the Defendant has neither complied with nor replied to the same, despite service. Thereafter the Plaintiff has filed the present suit.
3. The facts stated in the Written Statement:
3.1. The Defendant was duly served with the summons of the present suit and entered appearance. The Defendant has filed written statement and refuted the averments of the plaint. The relevant averments, made by the Defendant in her written statement and constituting her defence, are being summed up in brief in the paras hereinbelow:
i. The Plaintiff approached the Defendant to purchase the suit property on mutually agreed terms & conditions. Consequently, an agreement to sell was executed between the Defendant and the Plaintiff on 01.03.2016. The market value of the suit property at the time of execution of aforesaid agreement was Rs.15,00,000/-. The sale consideration of the suit property was to be discharged by the Plaintiff by Kulanand Poddar Vs. Hema Page No. 4 of 27 Civil DJ No. 297/2017 transfer of one shop (owned by the Plaintiff) in favour of the Defendant and by payment of Rs.500,000/- and Rs.2,50,000/- was payable in advance, whereas Rs.2,50,000/- was payable on or before 31.01.2017.
ii. The Plaintiff had not paid a single penny to the Defendant towards the purchase of the suit property. At the time of execution of the agreement, the Plaintiff got the signatures of the Defendant on the agreement along with the acknowledgment receipt without payment of the advance money. After the execution of agreement and acknowledgment slip by the Defendant, the Plaintiff with his ill motives took the leave of the Defendant to get the documents photocopied and thereafter fled away with the signed documents and did not return to make payment of advance amount. The Defendant made several calls and requested them to make payment of Rs.2,50,000/- and execute transfer of shop as agreed, but the Plaintiffs made excuses to make the payment on one pretext or the other.
iii. The Plaintiffs also tried to take forcible possession of the suit property, however, the Plaintiff was restrained by the Police. The Defendant subsequently issued a notice for canceling the agreement to sell as the Plaintiff had failed to fulfill Kulanand Poddar Vs. Hema Page No. 5 of 27 Civil DJ No. 297/2017 his part. The Plaintiff has subsequently sent a notice by making false and frivolous averments.
4. The facts stated in the Replication:
4.1 The Plaintiffs have filed the replication to the written statement, wherein the Plaintiffs has traversed the contents of same and has made the necessary denials, reiterating the averments of the plaint.
5. Issues:
5.1. On the basis of the pleadings of the parties, the following Issues were framed on 14.03.2018:
i. Whether the present suit is filed without any cause of action? OPD.
ii. Whether the Plaintiff is entitled for decree of specific performance of agreement to sell with respect to second floor of the property bearing no. T-690 out of Khasra no. 754/21/2, Village Khampur in the abadi of Prem Nagar road, Baljeet Nagar, New Delhi-110008? OPP iii. Whether the Plaintiff is entitled for decree of permanent injunction thereby restraining the defendants or any person acting on his behalf from Kulanand Poddar Vs. Hema Page No. 6 of 27 Civil DJ No. 297/2017 creating third party interest in the suit property as prayed? OPP iv. Relief.
6. The Plaintiff's Evidence:
6.1 The Plaintiffs have led their evidence. The Plaintiff No.1 has appeared as PW-1, being the sole witness in the case.
The Plaintiff No.1 has reiterated the averments of the plaint in his examination-in-chief. The Plaintiff No.1 has exhibited and relied upon the following documents in his examination- in-chief:
i. Exhibit PW-1/1: Copy of Site Plan.
ii. Exhibit PW-1/2: Copy of legal notice along with
postal receipt & courier receipt.
iii. Mark-A: Photocopy of Agreement to Sell &
Purchase.
iv. Mark-B: Photocopy of Receipt.
v. Mark-C(Colly): Photocopies of one Demand Draft
bearing No.742583 for a sum of Rs.1,00,000/-, dated 25.01.2017 & another Demand Draft bearing No.789284, dated 30.01.2017 for a sum of Rs.1,50,000/-.
The PW-1 was cross-examined by Ld. Counsel for the Defendant and the cross-examination of the PW-1 is being Kulanand Poddar Vs. Hema Page No. 7 of 27 Civil DJ No. 297/2017 reproduced hereinbelow:
"I have been running the grocery shop for the last 10- 12 years, situated at T-690, Prem Nagar Road Near Barat Ghar, Baljit Nagar, New Delhi-110008. I have studied upto 6th standard. I do not know how to read & write English language. My native place is Darbanga (Bihar). I have been residing in Delhi since 1989. We are three brothers in the family and one of three passed away. My younger brother namely Sh. Dular Chand is running the shop which is adjacent to me. I am not residing in the joint family. I along with my brother namely Sh. Dular Chand & Sh. Brij Mohan has not filed any forged case bearing CC No. 22/2015 against Hema & Om Prakash.
Q-1. Is it correct that you and your brother took the money to settled and withdraw the stay case bearing CC No. 22/2015?
A. I have not filed any case.
I do not remember when the agreement to sell has been executed and payment terms were Rs.5 lakhs in total. (Vol.) I have paid Rs.2,50,000/-. The agreement to sell was executed for the purchase of two bedroom floor, but I do not remember the exact measurement of that floor. Q-2. Is it correct that the valuation of property was Rs.15 lakhs in the year 2016.
A. When I executed the agreement to sell, the valuation of property was not that much but valuation of the property was raised later.
The agreement to sell was executed for the second floor (without roof right) of that building. It is correct that the agreement to sell has been executed and I was required to pay Rs.2,50,000/- at the time of execution of agreement to sell and Rs.2,50,000/- was required to pay on or before 31.01.2017. (Vol.) I was ready to make the balance payment before date decided. The agreement to sell was drafted at Karam Pura Near Milan Cinema, Delhi but I did not read the said agreement to sell and signed. It is correct that Mark-A is not notarized documents. I had paid Kulanand Poddar Vs. Hema Page No. 8 of 27 Civil DJ No. 297/2017 Rs.2,50,000/- in the form of cash. It is wrong to suggest that after execution of documents, I took the original document for the notarization and fled away from the spot without making any payment of Rs.2,50,000/-. I do not file income-tax return. I did not withdraw the amount of Rs.2,50,000/- from my bank account. The aforesaid amount of Rs.2,50,000/- was available with me as my savings. My daily income is about Rs.500 to Rs.600/-. I have not disclosed the aforesaid amount of Rs.2,50,000/- to any government record. (Vol.) I have sold the jewellery and some amount I have saved from my income.
Q-3. When, where & for how much amount you have sold the jewellery as stated herein above?
A. I have not sold any jewellery.
I am not aware about any police complaint registered against me or my brother on 02.01.2017. I have not received any legal notice dated 04.01.2017, issued by the Defendant. I went to the Defendant's shop to hand over the balance amount of Rs.2,50,000/- in the form of Demand Draft but I do not remember the exact date. It is wrong to suggest that the Defendant has not received any single penny. It is wrong to suggest that the Defendant is not liable to pay any money and to hand over the possession of the suit property. It is wrong to suggest that I have filed the present suit with ulterior motive and causing unnecessary harassment to the Defendant. I do not remember as to where I have signed Ex. PW-1/A. "
The PW-1 was discharged upon conclusion of his cross examination.
7. The Defendant's Evidence:
7.1 The Defendant has led her evidence and has examined herself as a sole witness in support of her case. The Kulanand Poddar Vs. Hema Page No. 9 of 27 Civil DJ No. 297/2017 Defendant has reiterated the averments of the written statement in her examination-in-chief. The Defendant has exhibited and relied upon the following documents in her examination-in-chief:
i. Exhibit DW-1/1: Copy of legal notice along with courier receipt.
ii. Exhibit DW-1/2: Copy of reply to legal notice. iii. Mark-A: Photocopy of Police Complaint to SHO, PS Patel Nagar.
iv. Mark-B: Photocopy of Collaboration Agreement.
The DW-1 was cross-examined by Ld. Counsel for the Plaintiffs and the cross-examination of the DW-1 is being reproduced hereinbelow:
"I am a graduate. I am a house wife. I am the owner of the suit property, i.e., T-690, Second Floor, Baljeet Nagar, New Delhi. The Plaintiff was running a shop at the ground floor of property, i.e., T-690, Second Floor, Baljeet Nagar, New Delhi, when we entered into negotiation with regard to the transaction in question. I have entered into the agreement to sell dated 01.03.2016 with the Plaintiff with regard to the suit property. The agreed sale consideration of the suit property was Rs.5,00,000/-. It is wrong to suggest that the Plaintiff paid an amount of Rs.2,50,000/ to me at the time of execution of agreement to sell in question. It is wrong to suggest that the balance amount of Rs.2,50,000/- was agreed to be paid on 31.01.2017. A legal notice dated 04.02.2017 was sent to the Plaintiff on my behalf. I do not recollect as to whether that reply dated 21.02.2017 was also sent to the Plaintiff on my behalf. It is correct that the sale Kulanand Poddar Vs. Hema Page No. 10 of 27 Civil DJ No. 297/2017 consideration of the suit property is mentioned as Rs.15,00,000/- in the legal notices sent on my behalf. I do not recollect whether it also mentioned in the legal notices sent on my behalf that the Plaintiff would transfer the shop in my favour. I do not recollect whether the factum of sale consideration of suit property being Rs.15,00,000/- and the transfer of the shop by the Plaintiff are not mentioned in the agreement to sell dated 01.03.2016. It is correct that I and the Plaintiff did not agree for the sale consideration being Rs.15,00,000/- and there was also no agreement with regard to the transfer of shop by the Plaintiff. It is wrong to suggest that the sale consideration was Rs.5,00,000/- and the Plaintiff paid an amount of Rs.2,50,000/- on the date of execution of the agreement to sell dated 01.03.2016. It is wrong to suggest that on 25.01.2017, the Plaintiff has approached me to accept a demand draft of Rs.2,50,000/-. I have received a legal notice dated 04.02.2017. I do not remember the date when I received the aforesaid notice. It is correct that the notice on my behalf was sent subsequent to the aforesaid notice. It is correct that the contentions and averments made by me in the notice and reply sent on my behalf are correct. I do not remember as to when did I meet the Plaintiff last with regard to the transaction in question. It is wrong to suggest that I have become dishonest and I intended to grab the amount of Rs.2,50,000/- paid by the Plaintiff and therefore did not come forward to execution of sale deed. It is wrong to suggest that I am deposing falsely."
The DW-1 was discharged upon conclusion of her cross examination.
8. Submissions of the Parties.
8.1. Ld. Counsel for the Plaintiff submits that the Defendant does Kulanand Poddar Vs. Hema Page No. 11 of 27 Civil DJ No. 297/2017 not dispute the execution of the agreement to sell dated 01.03.2016. It is submitted that the Defendant has stated the parties to have agreed for transfer of one shop in addition to Rs.5,00,000/- towards the sale consideration of the suit property. It is submitted that the Defendant has admitted in the cross-examination the agreed sale consideration to be only of Rs.5,00,000/- and there being no condition about transfer of the shop. It is submitted that the contentions of the Plaintiff running away with the documents are completely incredible as no action was taken by the Defendant. It is submitted that the conduct of the Plaintiff is evident from the factum of the demand drafts dated 25.01.2017 and 30.01.2027 being prepared for the balance payment. It is submitted that the original of the agreement to sell and receipt dated 01.03.2016 were in the custody of the Defendant and she had intentionally not produced the same.
8.2. Ld. Counsel for the Defendant has submitted that the Plaintiff has failed to prove the agreement to sell dated 01.03.2016 as well as the receipt dated 01.03.2016. It is submitted that the original of the aforesaid documents were not produced by the Plaintiff nor it was explained in pleadings or evidence as to where the aforesaid originals were. It is submitted that there is no explanation as to non- production of originals of Mark-C. It is stated that the contentions raised in the final arguments about the Defendant being in custody of the originals of Mark-A and Mark-B are an afterthought and false. It is submitted that no Kulanand Poddar Vs. Hema Page No. 12 of 27 Civil DJ No. 297/2017 payment was made by the Plaintiff and therefore, the Plaintiff has failed to prove the readiness and willingness for grant of decree for specific performance.
9. Conclusions on Issues and reasons for such conclusions:
9.1. Issue No. 1: Whether the present suit is filed without any cause of action? OPD.
9.1.1. The onus to prove the Issue No.1 is placed upon the Defendant. The Plaintiff has filed the present suit for specific performance of the agreement to sell dated 01.03.2016. The Plaintiff has stated that the agreed sale consideration was Rs.5,00,000/- and he had paid Rs.2,50,000/- in advance and was ready and willing to make payment of the remaining amount.
9.1.2. The Defendant does not dispute that an agreement to sell was executed between the parties on 01.03.2016, however it is stated that the Plaintiff has agreed to pay Rs.5,00,000/- and also agreed to transfer his shop to the Defendant. It is stated that the Plaintiff did not make any payment to the Defendant and the Defendant was ready and willing to fulfill her part.
9.1.3. The Defendant has admitted in cross-examination that the sale consideration was Rs.5,00,000/- and conditions about the transfer of shop was not mentioned in the agreement to sell, however the Defendant has stated that the Plaintiff has Kulanand Poddar Vs. Hema Page No. 13 of 27 Civil DJ No. 297/2017 not paid any amount towards the agreement to sell in question. This Court is of the view that the Plaintiff has a cause of action to institute the suit for specific performance as the Defendant did not dispute the execution of the agreement to sell, but disputed the terms of the same and readiness/ willingness of the Plaintiff. Whether the Plaintiff is entitled to the specific performance, that's a different matter, however in so far as the cause of action is concerned, the Plaintiff has a cause of action for institution of the present suit. The Issue No.1 is decided in favour of the Plaintiff and against the Defendant.
9.2. Issue No. 2: Whether the Plaintiff is entitled for
decree of specific performance of
agreement to sell with respect to second floor of the property bearing no. T-690 out of Khasra no. 754/21/2, Village Khampur in the abadi of Prem Nagar road, Baljeet Nagar, NewDelhi110008?
OPP.
9.2.1. The onus to prove the Issue No.1 is upon the Plaintiff. The Plaintiff has filed the present suit for principal prayer of specific performance of the agreement to sell dated 01.03.2016. It is case of the Plaintiff that the Plaintiff and the Defendant entered into an agreement to sell dated 01.03.2016 with regard to the suit property. It is stated that total agreed sale consideration was Rs.5,00,000/- and the Kulanand Poddar Vs. Hema Page No. 14 of 27 Civil DJ No. 297/2017 Plaintiff paid an amount of Rs.2,50,000/- at the time of execution of the agreement to sell dated 01.03.2016 and balance sale consideration of Rs.2,50,000/- was agreed to be paid on or before 31.01.2017. It is stated that the Plaintiff tendered the amount of Rs.2,50,000/- to the Defendant, in terms of two demand drafts dated 25.01.2017 and 30.01.2017, however the Defendant did not accept the same. It is stated that the Plaintiff issued legal notice dated 04.02.2017 and subsequently filed the present suit.
9.2.2. The description and identity of the suit property is not disputed. The Defendant has stated in the written statement that the parties have entered into an agreement to sell with regard to the suit property on 01.03.2016. It is stated that value of the suit property was Rs.15,00,000/- and the Plaintiff agreed to pay an amount of Rs.5,00,000 and also agreed to transfer his shop to the Defendant. It is stated that the Plaintiff did not make any advance payment to the Defendant at the time of execution of the agreement to sell and fled away with the documents, on the pretext of getting the same photocopied. It is stated the Defendant had requested the Plaintiff several times to make the payment and to transfer the shop, however the Plaintiff did not come forward for the same.
9.2.3. The Plaintiff No.1 is examined as the sole witness in the matter to prove the averments of the plaint. The original agreement to sell and receipt dated 01.03.2016 have neither Kulanand Poddar Vs. Hema Page No. 15 of 27 Civil DJ No. 297/2017 been filed on record nor have been produced subsequently. The Plaintiffs have placed their reliance on the copies of the aforesaid documents, which are marked as Mark-A and Mark-B in examination in chief of PW-1. Further, the Plaintiff has also placed reliance upon the photocopies of two demand drafts as Mark-C (colly). No reason has been mentioned either in the plaint or in the examination in chief as to why the original of Mark-A, Mark-B or Mark-C (colly) have not been produced. The Mark-A, Mark-B and Mark-C (colly) are copies and therefore, would not automatically be taken as proof of their contents, unless the same are admitted by the Defendant. The Defendant has disputed the aforesaid copies.
9.2.4. Ld. Counsel for the Plaintiffs has submitted that the original of Mark-A and Mark-B were in custody of the Defendant and therefore, the same could not be produced. Nothing has been mentioned in the plaint, replication or examination in chief of the PW-1 about the original of Mark-A and Mark-B to be in custody of the Defendant. It has been stated on 17.10.2023 by the Ld. Counsel for the Plaintiff that the Plaintiff would file an application for secondary evidence, however the factum of the originals of Mark-A and Mark-B being in custody of Defendant was not stated.
9.2.5. Section 61 of the Indian Evidence Act, 1872 provides that the contents of the documents may be proved either by primary or secondary evidence. Section 64 of the Indian Kulanand Poddar Vs. Hema Page No. 16 of 27 Civil DJ No. 297/2017 Evidence Act, 1872 mandates the proof of documents through primary evidence except in the cases mentioned thereafter. Section 65 of the Act of 1872 further prescribes the circumstances/conditions, when the documents can also be proved by secondary evidence in the absence of primary evidence. Section 65 of the Indian Evidence Act, 1872 is being reproduced hereinbelow:
"65. Cases in which secondary evidence relating to document may be given.
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within Kulanand Poddar Vs. Hema Page No. 17 of 27 Civil DJ No. 297/2017 the meaning of section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
Thus, a party seeking to produce the secondary evidence is obligated to prove the foundational facts or pre-conditions of Section 65 of the Act, as enumerated hereinabove. Besides Section 65 of the Act, the aforesaid proposition can be traced to the judgment of the Hon'ble Supreme Court passed in, "H. Siddiqui (Dead) by L.Rs. Vs. A. Ramalingam:
(2016)16SCC483)." The relevant observations of the Hon'ble Court in the aforementioned judgment are being reproduced hereinbelow:
"10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence.
Kulanand Poddar Vs. Hema Page No. 18 of 27 Civil DJ No. 297/2017 However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide:
The Roman Catholilc Mission and Anr. v. The State of Madras and Anr. MANU/SC/0253/1966 : AIR 1966 SC 1457; State of Rajasthan and Ors. v. Khemraj and Ors. MANU/SC/0857/2000 : AIR 2000 SC 1759; Life Insurance Corporation of India and Anr. v. Ram Pal Singh Bisen MANU/SC/0170/2010 : (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu and Anr. MANU/SC/0721/2010 : (2010) 9 SCC 712."
9.2.6. The aforesaid proposition has further been reiterated by the Hon'ble Supreme Court in, "Rakesh Mohindra Vs. Anita Beri and Ors.: (2016)16SCC483", and relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the Kulanand Poddar Vs. Hema Page No. 19 of 27 Civil DJ No. 297/2017 non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted."
"22. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.
23. In the case of M. Chandra v. M. Thangamuthu MANU/SC/0721/2010 : (2010) 9 SCC 712, this Court considered the requirement of Section 65 of the Evidence Act and held as under:
47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged Kulanand Poddar Vs. Hema Page No. 20 of 27 Civil DJ No. 297/2017 copy is in fact a true copy of the original.
It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."
Therefore, the Plaintiff, in order to prove the agreement to sell and receipt dated 01.03.2016 as well as the demand drafts by secondary evidence, has to first establish the pre-condition of the Original not being available in the manner/reasons mentioned in Section 65. The existence of conditions under Section 65 of the Act could be proved simultaneously during the trial and if the aforesaid condition(s) is not proved, the secondary evidence led by the party would not become admissible.
9.2.7. Further no permission is required to lead secondary evidence in terms of law enunciated by the Hon'ble High Court of Delhi in, "Prem Chandra Jain and Ors. Vs. Sri Ram and Ors.: (2009)ILR7Delhi605." It has been also held in the aforementioned judgment by the Hon'ble High Court that a party seeking to lead secondary evidence has to prove simultaneously the preconditions for entitlement to lead secondary evidence as well as the secondary evidence, during the course of the trial and such secondary evidence would become admissible only when the pre-conditions of Section 65 of the Act are proved by the party. The aforesaid proposition has also been reiterated by the Hon'ble High Kulanand Poddar Vs. Hema Page No. 21 of 27 Civil DJ No. 297/2017 Court of Delhi in, "Satyam Kumar Sah and Ors. Vs. Narcotic Control Bureau: 2019:DHC:2473".
9.2.8. Therefore, in view of the above-discussed position of the law, the Plaintiff has to first prove that the original of agreement to sell and receipt dated 01.03.2016, i.e., Mark-A and Mark-B, were not available and were/are in possession of the Defendant and the Plaintiff in order to rely upon the copies has also to first give notice for production of the originals of Mark-A and Mark-B, in terms of Section 65 (a) and Section 66 of the Indian Evidence, Act, 1872 and if the same are not produced by the Defendant, the Plaintiff could rely upon the copies of the documents, i.e., on Mark-A and Mark-B. 9.2.9. The Plaintiff in his evidence does not even utter a word about the original not being available or as to why the originals were not available. The submissions about the originals of Mark-A and Mark-B being custody of the Defendant are made in final arguments for the first time. The Plaintiff does not state the aforesaid facts in his evidence and the Defendant was also not suggested/confronted with the same in her cross-examination. No notice for production was given to the Defendant. Ideally the original of the agreement to sell or receipt would be kept by the person, who makes the payment, however the same is not an absolute rule of law and is more in the nature of prudent practice that a person making the payment in cash would secure the consequence Kulanand Poddar Vs. Hema Page No. 22 of 27 Civil DJ No. 297/2017 of such payment by obtaining a receipt or by keeping the original. No reason has been assigned as to why the Defendant would be given the custody of the aforesaid documents. Even if the custody of the originals was granted to the Defendant, the same should have been mentioned in the plaint or at least brought out in the evidence. A notice for production of the aforesaid originals should have been given to the Defendant and thereafter the Plaintiff could have relied upon the copies for proving the documents by secondary evidence. Moreover, in so far as the Mark-C (colly) is concerned, the originals of the same should be with the Plaintiff and no reason has been spelled out as to why the original demand drafts could not be produced.
9.2.10. Therefore, the Plaintiff has failed to lay down the foundation for secondary evidence by proving the existence of the conditions mentioned in Section 65 of the Indian Evidence Act, 1872 and the proof of agreement to sell and receipt dated 01.03.2016 in terms of Mark-A and Mark-B by secondary evidence cannot be accepted. Thus the agreement to sell and receipt dated 01.03.2016 are not proved by the Plaintiff. Similarly, the proof of Mark-C (colly) can also not be accepted and the aforesaid demand drafts are also not proved by the Plaintiff.
9.2.11. The Plaintiff has stated that he has paid Rs.2,50,000/- as advance and has tendered two demand drafts for the remaining payment of Rs.2,50,000/-. The Defendant has Kulanand Poddar Vs. Hema Page No. 23 of 27 Civil DJ No. 297/2017 denied that the Plaintiff has paid Rs.2,50,000/- at the time of execution of the agreement to sell on 01.03.2016. Ld. Counsel for the Plaintiff has stated that the Defendant states the Plaintiff to have fled away with the originals on 01.03.2016 with making the payment. It is submitted that the Defendant has not filed any complaint against the Plaintiff and did not take any action, which reflects that the Defendant must have received the amount. Ld. Counsel for the Plaintiff submits that the Defendant has made false averments in the written statement and admitted in cross- examination that the sale consideration was only Rs.5,00,000/- and no shop was agreed to be made part of sale consideration of the suit property. The Defendant has evidently not taken any action against the Plaintiff for running away with the agreement and the Defendant admits in the cross-examination that the sale consideration was only Rs.5,00,000/-. However, the Defendant has denied that she had received Rs.2,50,000/- from the Plaintiff in cash as advance payment towards the agreement.
9.2.12. Mere no action being taken by the Defendant against the Plaintiff would not by itself prove that the Plaintiff has made payment of Rs.2,50,000/-. The aforesaid fact has to be established in the affirmative by the Plaintiff. The Plaintiff No.1 was cross-examined on the aforesaid aspect. He states that he had paid the amount in cash and the same was available with him from his saving. He further states that he has not withdrawn the amount from any bank account. He Kulanand Poddar Vs. Hema Page No. 24 of 27 Civil DJ No. 297/2017 states that he sold jewellary and some amount was paid from his saving. Subsequently when he was asked to provide the details of sale of jewellary, he states that he did not sell any jewellery. Therefore, in terms of the evidence on record, there is nothing to infer about the payment of Rs.2,50,000/- in cash by the Plaintiff. When the Plaintiff could have prepared draft for the second payment, the first payment could also have been made through the account or through the documents. The documents showing the payment, i.e., agreement to sell and receipt dated 01.03.2016, have not been proved. Further, even the demand drafts dated 25.01.2017 and 30.01.2017 are not proved. The original demand drafts have not been produced and no reason for non-production of originals is assigned. The Plaintiff could have summoned the official bank records for proving the aforesaid demand drafts, however no attempts were made to summon the aforesaid record. The contentions about payment are oral, which has been denied by the Defendant. There is nothing on record to conclude about the payment and therefore, the Plaintiff does not prove that he has made payment of the earnest money/advance of Rs.2,50,000/- to the Defendant. The Plaintiff further does not prove that he had tendered the balance payment of Rs.2,50,000/- in terms of the demand drafts.
9.2.13. In terms Section 16 (c) of the Specific Relief Act, 1963, in order to seek specific performance, the Plaintiff has to prove that he has performed or has always been ready and willing Kulanand Poddar Vs. Hema Page No. 25 of 27 Civil DJ No. 297/2017 to perform the essential terms of the contract. It has been held by the Hon'ble Supreme Court of India in "R. Shama Naik Vs. G. Srinivasiah: 2024 INSC 927" that the readiness means financial capability whereas the willingness refers to the conduct of the Plaintiff and both the requirements should be fulfilled before a decree for specific performance is granted in favour of a Plaintiff. The Plaintiff has failed to prove that he has paid Rs.2,50,000/- in cash to the Defendant towards advance payment. The Plaintiff has further failed to prove that he had tendered the balance amount of Rs.2,50,000/- to the Defendant by 31.01.2017. Accordingly, the Plaintiff is not entitled for a decree of specific performance. The Issue No.2 is accordingly decided against the Plaintiff and in favour of the Defendant.
9.3. Issue No.3: Whether the Plaintiff is entitled for decree of permanent injunction thereby restraining the defendants or any person acting on his behalf from creating third party interest in the suit property as prayed? OPP 9.3.1. The Issue No.3 is dependant upon and is consequential to the Issue No.2. Since the Issue No.2 has been decided against the Plaintiff, therefore, the Plaintiff is not entitled to any decree for permanent injunction. The Issue No.3 is accordingly decided against the Plaintiff and in favour of the Defendant.
Kulanand Poddar Vs. Hema Page No. 26 of 27 Civil DJ No. 297/2017
10. Final Decision/Relief:
10.1. The suit of the Plaintiff is dismissed. The decree sheet be drawn up accordingly. The files be consigned to record room after due compliance.Digitally signed
by ANIL ANIL CHANDHEL CHANDHEL Date: 2025.12.24 14:48:37 +0530 Announced in the open Court (ANIL CHANDHEL) today on 24th of December, 2025 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI 24.12.2025 Kulanand Poddar Vs. Hema Page No. 27 of 27 Civil DJ No. 297/2017