Delhi District Court
Anil Kumar Garg Huf Through Its Karta ... vs Dolly Behl on 10 February, 2026
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE -02, WEST DISTRICT:
TIS HAZARI COURTS, DELHI.
Civ DJ no. 253/2022
DLWT010026862022
Anil Kumar Garg HUF
Through its Karta Anil Kumar Garg
S/o Late Sh. Brij Mohan Garg.
R/o A-3/2, Paschim Vihar,
New Delhi-110063.
....Plaintiff
Versus
Smt Dolly Behl
W/o Sh. Vinod Behl
R/o House no. 21,
Mohanganj, Badujayi,
Shahjahanpur,
Uttar Pradesh-242001.
. . . Defendant
Date of institution of the case : 23.03.2022
Date on which case reserved for judgment : 23.01.2026.
Date of pronouncement of Judgment : 10.02.2026
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 1 /53
SUIT FOR RECOVERY OF RS. 25,20,000/- .
JUDGMENT
(1) Vide this judgment, I shall decide, the present suit, filed by the plaintiff against the defendant for recovery of Rs. 25,20,000/-.
(2) As per plaint, the suit of the plaintiff, in nutshell, is that in the month of January/February, 2020, the defendant approached the plaintiff and claimed herself to be the owner of property bearing Flat no. 319 (single Storied), Block no. A, Madipur, Paschim Puri, New Delhi (hereinafter referred to as "the suit property").
(3) It is further averred that the suit property was allotted to Sh. Tek Chand by DDA in the year, 1972 vide registered perpetual lease deed dated 30.03.1979 and after the death of parents of defendant, the defendant inherited the suit property. It is further averred that at the time of allotment of the suit property, the father of the defendant had constructed one floor over the ground floor.
(4) It is further averred that after negotiation, the plaintiff and the defendant had entered into an agreement to sell dated 02.03.2020 for a total consideration amount of Rs. 84,50,000/-. It is further averred that earnest money of Rs. 2,50,000/- was paid by the plaintiff to the defendant, at the time of execution of abovesaid agreement to sell dated 02.03.2020. It is further averred that at the time of entering into said agreement to sell, Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 2 /53 the defendant had shown the title documents but the originals of Mutation Letter in favour of Sh. Tek chand, possession letter issued by DDA in respect of suit property and NOC for water and electricity connection issued by DDA have not been shown and upon asking the defendant for production of originals for verification, the defendant stated that the originals are at her residence at Shahajanpur, UP and she will show the originals at the time of conversion of the suit property from leasehold to freehold.
(5) It is further averred that as per terms and conditions of the above-said agreement to sell dated 02.03.2020, it was the obligation of the plaintiff to get the suit property converted from lease hold to free hold in favour of the defendant at his own costs and the remaining balance consideration amount of Rs. 82,00,000/- shall be payable by the plaintiff to the defendant on or before expiry of two months from the date of conversion of the suit property from lease hold to free hold and the defendant would hand over the vacant physical possession of the suit property along with original chain of title documents of the suit property and would execute sale deed in favour of the plaintiff or its nominee(s) upon receiving the said balance sale consideration amount of Rs. 82,00,000/-.
(6) It is further averred that as per said agreement to sell dated 02.03.2020, the defendant had to clear all the dues in respect of house tax, water and electricity bills related to the suit property till the execution of sale documents.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 3 /53 (7) It is further averred that as per clause 10 of the said agreement to sell, it was decided between the plaintiff and the defendant that if the defendant infringes any of the terms and conditions of the said agreement then the plaintiff would be entitled either to get the sale completed through court of law or to get refund of double the amount of earnest money and any other payments from the defendant.
(8) It is further averred that to get the suit property converted from lease hold to freehold, the plaintiff engaged one person, namely, Sh. Ramesh Mandal for which he charged Rs. 5,89,000/- and the plaintiff paid the same to him in two bank transfers dated 13.10.2020 and 22.11.2021.
(9) It is further averred that in the second week of January, 2021, the defendant without the consent of the plaintiff and without any prior notice to the plaintiff had demolished the first floor of the suit property to which the defendant informed the plaintiff that some top officials had directed to the defendant to demolish the first floor of the suit property so that the process of converting the property from lease hold to free hold will get completed smoothly.
(10) It is further averred that the defendant had also informed the plaintiff that she is also having correspondences with the officials of DDA through e-mails. It is further averred that the plaintiff had raised serious objections to this misconduct and act of breach of terms and conditions of the agreement to sell dated 02.03.2020. It is further averred that the plaintiff told the Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 4 /53 defendant that the agreement to sell dated 02.03.2020 was entered by him for the entire property which consisted of two floors and not just ground floor as also shown by the defendant to the plaintiff before entering into the agreement to sell.
(11) It is further averred that the plaintiff had also told the defendant that he has demolished the first floor of the suit property and changed the nature of the suit property and thereby, significantly diminished the value of the property, thus, committed breach of agreement to sell. It is further averred that defendant realized her mistake and assured the plaintiff that within two months from the date of suit property gets converted into free hold and before the execution of sale deed, the defendant will get the first floor constructed over the ground floor of the suit property and will hand over the physical possession of the suit property in its original form i.e. consisted of ground and first floor. It is further averred that the suit property was got converted from lease hold to free hold on 27.09.2021 and conveyance deed got registered by DDA in favour of defendant on 04.10.2021.
(12) It is further averred that on 27.09.2021 itself, at the time of execution of abovesaid conveyance deed, the plaintiff requested the defendant to get the construction work for the first floor of the suit property as promised by her and also told her that the plaintiff is ready and willing to perform his part of agreement to sell dated 02.03.2020 to which defendant told the plaintiff that the construction work will begin in January, 2022 as they can not get the construction work started before two months because of some personal difficulty and she will extend the due date of Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 5 /53 perform of the agreement by 25.02.2022 for which the plaintiff agreed. It is further averred that the defendant also requested for an advance prepayment of Rs 3,50,000/- out of the balance sale consideration amount and told the plaintiff that she needs this money to get construction work started and the said amount will be adjusted with balance sale consideration amount and accordingly, the plaintiff transferred Rs. 3,50,000/- by end of December, 2021. It is further averred that the plaintiff had already transferred Rs. 4,11,000/- in addition to the earnest money of Rs. 2,50,000/- making a total payment of Rs. 6,61,000/- to the defendant in the following manner:
Serial Date of Payment Amount
no.
1 02.03.2020 2,50,000/-
2 02.11.2020 50,000/-
3 25.10.2021 11,000/- (in account of son of
defendant/Sh. Chetan Behl)
4 20.11.2021 2,00,000/-
5 30.11.2021 1,00,000/-
6 22.12.2021 50,000/-
Total 6,61,000/-
(13) It is further averred that when no construction work was
started in the month of January, 2022, the plaintiff contacted the defendant on 01.02.2022 and requested her to immediately start and get the construction work completed for the first floor of the suit property and also told that the plaintiff will pay the entire balance sale consideration amount in one go and not in parts and thereafter the plaintiff shall pay the remaining balance sale consideration amount before the due date i.e. 25.02.2022 and Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 6 /53 finally, the defendant shall execute the sale documents in the joint name of Surender Singh and his wife Mrs. Kamal Duggal, nominee(s) of the plaintiff.
(14) It is further averred that on 02.02.2022, the defendant contacted the plaintiff and she agreed that she will receive the balance consideration amount in one go from the plaintiff. It is further averred that the defendant further intimated the plaintiff that she will execute the sale deed in favour of the plaintiff only and the defendant will not execute the sale document in favour of nominee(s) of the plaintiff and she did not respond to the request of the plaintiff regarding restoration of the suit property as assured by the defendant earlier and neither she gave any response regarding showing the original title documents as mentioned above to the plaintiff on 02.02.2022.
(15) It is further averred that the plaintiff received a legal notice dated 11.02.2022 on behalf of the defendant in which the defendant intimated the plaintiff that the plaintiff shall pay the remaining balance sale consideration amount to the defendant by 25.02.2022, failing which the earnest money along with the part payment made by the plaintiff to the defendant shall stand forfeited.
(16) It is further averred that before the plaintiff received the legal notice dated 11.02.2022 from the defendant, the plaintiff had already issued a final notice dated 13.02.2022 which is also annexed with the reply dated 15.02.2022 and thereby plaintiff intimated the defendant that she had committed breach of the Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 7 /53 agreement to sell dated 02.03.2020, got demolished the first floor of the suit property and after the objection of the plaintiff, the defendant assured to restore the suit property in its previous condition by reconstructing the first floor.
(17) It is further averred that plaintiff also intimated the defendant that she is committing breach of agreement to sell dated 02.03.2020 by refusing to execute the sale documents in favour of the nominee of the plaintiff as agreed by her in clause 4 of the terms and conditions of the agreement to sell.
(18) It is further averred that the plaintiff requested the defendant in the said reply that the plaintiff is ready and willing to perform his part of the agreement upon fulfilment of her part of obligations as decided under the said agreement which must be performed by her by 25.02.2022 failing which the defendant shall be liable to refund double the amount of the earnest money and other payments made by the plaintiff.
(19) It is further averred that the defendant replied to the final notice and she alleged that the plaintiff dismantled the first floor of the suit property and she had no knowledge about the same and further stated that the plaintiff dismantled the same to get the property converted from lease hold to free hold. It is further averred that it is simply not possible to enter into the suit property and get an entire floor demolished without having the physical possession of the suit property which was never handed over by the defendant to the plaintiff.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 8 /53 (20) It is further averred that vide rejoinder dated 18.02.2022 to the legal reply dated 17.02.2022, the plaintiff intimated the defendant that it is the defendant who got the first floor of the suit property dismantled, the physical possession of the suit property was never handed over by the defendant to the plaintiff. It is furhter averred that it is the son of the defendant, who even asked for the money from the plaintiff and then only plaintiff got to know that the defendant and her son got the first floor of the suit property dismantled. It is further averred that the plaintiff had also intimated the defendant that because the market value of the suit property has increased and because the defendant is turning dishonest, she is trying to avoid the process of sale and dishonestly wants to forfeit the money of plaintiff and has got the suit property converted from lease hold to free hold by cheating the plaintiff. It is further averred that the plaintiff intimated to the defendant that the defendant had refused to execute sale documents in favour of the plaintiff's nominee thereby causing breach of agreement to sell dated 02.03.2020 and still requested the defendant to adhere the terms and conditions of the agreement to sell and to get the sale completed by 25.02.2022, otherwise the defendant shall be liable to refund double of the total amount i.e. Rs. 25,2000/-.
(21) It is further averred that the plaintiff had issued one letter dated 25.02.2022 to the counsel for the defendant and intimated the defendant that the defendant has neither restored the property into its original position nor agreed to execute the sale documents in favour of the nominee of the plaintiff by 25.02.2022 and hence, the defendant was never ready and willing to perform her part of Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 9 /53 the obligations under the agreement to sell and has fraudulently took undue advantage of the plaintiff by using him to complete the process of conversion of the suit property from lease hold to free hold and when the property got finally converted into free hold, the market rate of the suit property got increased and the defendant turned dishonest and did not comply with the terms and condition of the agreement to sell by dated 25.02.2022 and further in the said letter dated 25.02.2022, the plaintiff demanded double the amount paid by the plaintiff in the form of earnest money of Rs. 2,50,000/-, part payment of Rs. 4,11,000/- in addition to earnest money and professional fees of Rs. 5,89,000/- plus miscellaneous expenses of Rs. 10,000/- i.e. total amount of Rs. 12,60,000/-.
(22) It is further averred that the defendant wanted to take undue advantage of the plaintiff to use his knowledge and experience for the conversion of the suit property from lease hold to free hold and had deliberately without any provocation or any notice from any government department had voluntarily changed the structure of the suit property by demolishing the first floor of it to make the agreement to sell unexecutable and also with the intention to cheat the plaintiff by extracting and forfeiting the money paid by the plaintiff for no fault of him rather the defendant has committed the breach.
CASE OF DEFENDANT AS PER HER WRITTEN
STATEMENT.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 10 /53
(23) It is contended by the defendant that instead of seeking
original/complete relief for specific performance of agreement to sell dated 02.03.2020, the plaintiff is seeking relief only for alternative relief for recovery of double amount by filing the present suit.
(24) It is further contended in the written statement that the plaintiff was never willing to purchase the suit property as he was unable to arrange the money or had intention to purchase the same and the plaintiff was not a bonafide purchaser as this is the only reason that on one pretext or to other, the plaintiff avoided the transaction even through the defendant has given more time till 25.02.2022, whereas the time had already been expired on 03.12.2021 to execute the sale deed in his name but he was unable to purchase the same.
(25) It is further contended that the defendant has a right to forfeit the money, if the transaction has not been completed due to fault of the plaintiff as he could not pay the balance amount within prescribed time period and even within extended period up to 25.02.2022. It is further contended that the defendant has sold out her property by executing a registered sale deed on 02.05.2022 in favour of other persons by bearing losses when the plaintiff not turn up for executing the sale deed in his favour or any other nominee even till the extended time 25.02.2022.
(26) It is further averred that the agreement to sell has been executed on 02.03.2020 and as per clause 3 of the agreement to sell, the balance amount had to be paid by the second Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 11 /53 party/plaintiff to the first party/defendant on or before the expiry of 02 months from the date of conversion of the property from lease hold to freehold by DDA.
(27) It is further contended that the plaintiff is a property dealer and builder, at the time of dealing with the defendant, the plaintiff has thoroughly checked and taken all the papers, not even this, he was agreed to convert the suit property from leasehld to freehold from the DDA, he himself taken all the decisions including dismantle the first floor of the property as required by the DDA in its original shape for freehold. According to message to the defendant, he has hired Mr. Sunny for that dismantle of first floor.
(28) It is further averred that the the date of conversion of property from lease hold to freehold by DDA is 04.10.2021 and the plaintiff has full knowledge about his conversion as he was one of the witness in the conversion deed.
(29) It is further averred that on 03.12.2021, as per clause 3 of the said agreement to sell, the end time was two months to pay the balance payment and executed the sale deed in favour of the plaintiff.
(30) It is further contended that no communication of any type/kind after expiring the time of making the payment has been recovered from the plaintiff. It is further contended that on 11.02.2022, the defendant had issued a legal notice to pay the balance payment and get executed the sale deed with further Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 12 /53 extended the time period up to 25.02.2022 as time has already expired on 03.12.2021.
(31) It is further contended that on 15.02.2022, first time after expiring the time period ie. 03.12.2021, the plaintiff sent a legal notice to the defendant with some baseless allegations.
(32) It is further contended that on 17.02.2022, the defendant gave reply of the said legal notice to the plaintiff and on 19.02.2022 & 26.02.2022, the plaintiff had given the reply of the further notice cum reply dated 17.02.2022 of the defendant.
(33) It is further contended that even till date of extended time i.e. 25.02.2022, the plaintiff had not taken any steps to pay the balance payment and get executed the sale deed in his favour.
(34) It is further contended that the plaintiff just wants to get the double money dishonestly from the defendant. It is furhter contended that the plaintiff has demanded double of the amount paid by him in the form of earnest money, part payment and professional fees by alleging that the defendant has neither restored the property into its original position nor agreed to execute the sale documents in favour of the nominee of the plaintiff by 03.12.2021 and till further extended time by the defendant up to 25.02.2022.
(35) It is further contended that the plaintiff had entered into an agreement dated 02.03.2020 with the defendant to purchase a Flat no. A-319 (single storied) in Block No. A, Madi Pur Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 13 /53 (Paschim Puri) New Delhi with total sale consideration Rs. 84,50,000/-. It is further averred that the said agreement was signed by the plaintiff and the defendant in the presence of witnesses.
(36) It is further contended that according to abovesaid agreement, the plaintiff had paid Rs. 2,50,000/- on the date execution of the agreement to sell as earnest money and balance amount had to be paid by the plaintiff to the defendant on or before expiry of two months from the date of conversion of the property from leasehold to freehold by the DDA. It is further contended that the entire responsibility to get the property converted from leasehold to freehold is on him at his own costs in favour of the defendant. It is further contended that the defendant had provided all the documents required by the plaintiff/DDA within time and fully cooperated with the plaintiff to get the conveyance deed from the DDA. It is further contended that on 04.10.2021, the plaintiff has got the conveyance deed from the DDA in favour of the defendant.
(37) It is further contended that apart from earnest money of Rs. 2,50,000/- on 02.03.2020, the plaintiff has paid the further amount to the defendant, which is as under:
a. Rs. 50,000/- on 02.11.2020.
b. Rs. 2,00,000/- on 20.11.2021.
c. Rs. 1,00,000/- on 30.11.2021.
d. Rs. 50,000/- on 22.12.2021.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 14 /53 (38) It is further contended that as per agreement to sell, the balance amount shall be paid by the plaintiff to the defendant on or before expiry of two months from the date of conversation of the property from leasehold to free hold by the DDA. It is further contended that the conveyance deed has been executed on 04.10.2021 and period of two months has already expired on 03.12.2021. However, the plaintiff has received the amount of Rs. 50,000/- on 22.12.2021 on the request that he will make the entire payment at the end of December, 2021. It is further averred that despite his request to make the entire balance payment until 31.12.2021, the plaintiff has failed to pay the same till 11.02.2022.
(39) It is further contended that despite failing to make the balance payment till 11.02.2022 by the plaintiff, the defendant sent a legal notice by described all and she gave further time till 25.02.2022 for making the payment of entire balance amount. It is further averred that the defendant further stated in the legal notice that failing which, the defendant will presume that the plaintiff is not to able to execute the sale deed in his favour and accordingly the entire amount paid by him shall stand forfeited by treating the said deal as cancelled and defendant will be free to make further agreement to sell with the another buyer.
(40) It is further contended that even after expiry of extended time i.e. 25.02.2022, the plaintiff had failed to make the balance payment. It is further contended that after receiving the said legal notice, the plaintiff sent a legal notice dated 13.02.2022 to the defendant and in this legal notice, he has alleged to produce the Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 15 /53 total chain of papers of the property, restore the original condition of the property and agree to transfer the property in his nominee's name.
(41) It is further contended that against the above legal notice dated 11.02.2022, the defendant has given the reply and informed that as per agreement to sell dated 02.03.2020, the entire responsibility to get the property converted from leasehold to freehold is on plaintiff at his own cost in favour of the defendant and for that purpose even without informing to defendant, the plaintiff has dismantled the first floor. It is further contended that the defendant has no knowledge about what is going in her property as she is not residing in Delhi. It is further contended that when the defendant has come through message by the plaintiff to know about the dismantle of the first floor and upon asking the plaintiff, he informed that without dismantling the first floor (only a small portion) and to restore the property in its original shape, the work of conversion from leasehold to freehold was not possible, however the plaintiff has further being informed that defendant has no concern with this property as he is going to purchase the same.
(42) It is further contended that after dismantle of the first floor and restore the suit property in original shape, the plaintiff has succeeded to get the freehold from the DDA. It is further contended that the entire process was done by the plaintiff before the DDA or any other Government authority for this conversion including the plaintiff was one of the witness in the conveyance deed. It is further contended that the plaintiff has forged some Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 16 /53 signatures of the defendant before the DDA and other authority to gain the benefits in his favour and to get the conversion without adopting the proper exercise and due process of law. It is further contended that after knowing all this with documentary proof and calling the records from the concerned department DDA, the defendant will lodge an FIR against the plaintiff against these forged and fabricated signatures of the defendant.
(43) It is further contended that as per earlier legal notice dated 11.02.2022, the defendant has provided all the documents required by DDA within time and fully cooperated with the plaintiff to get the conveyance deed from DDA including the documents as required by the plaintiff. It is further contended that the defendant has not yet got verified the documents i.e. original Mutation letter and Original possession letter from DDA. It is further contended that the defendant has full knowledge about the documents and without these relevant documents how would he get the conveyance deed from the DDA.
(44) It is further contended that just for avoiding to execute the sale deed in his favour on one pretext to other, the plaintiff is making the false submissions and facts. It is further contended that the plaintiff is a property dealer and builder and have the complete knowledge about all and without seeing the documents how would he enter into an agreement to sell and have completed the work of conversion from leasehold to freehold from DDA. It is further contended that the plaintiff was fully satisfied with the documents and after knowing all, he haf entered into an Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 17 /53 agreement to sell with the defendant to purchase the suit property and also succeeded to get the conveyance deed from the DDA.
REPLICATION FILED ON BEHALF OF THE PLAINTIFF (45) The plaintiff has also filed replication in which he has denied all the allegations of the defendant and has reiterated the contents of his plaint. It is further averred in the replication that the plaintiff would have opted for specific performance of agreement to sell, if the defendant had brought the suit property back into its original shape for which she was given ample opportunities and it was the sole reason for extending the date for performance of agreement to sell dated 02.03.2020. It is further averred that the defendant had shown only the photocopies of the chain documents of the suit property and had stated that she will produce the original documents at the time of conversion of the suit property from leasehold to freehold.
(46) It is further averred that original documents were never required by the DDA as the name of the defendant was already reflected as the lessee in the record of the DDA. It is further averred that if there had been any applicant of different name, then the DDA would have asked for production of copy of chain of title document. It is further averred that the plaintiff was always ready and willing to perform his part of agreement to sell dated 02.03.2020.
ISSUES Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 18 /53 (47) From the pleadings of the parties, following issues were framed on 29.04.2022 for adjudication:
1. Whether the plaintiff is entitled to seek recovery of Rs. 25,20,000/- from the defendant as prayed in the clause 'a' of the prayer clause? OPP.
2. Whether the plaintiff is entitled to pendente lite and future interest @ 18% p.a. on the amount claimed above? OPD.
3. Relief.
EVIDENCE OF PLAINTIFF.
(48) On 19.04.2023, the plaintiff/ Mr. Anil Kumar Garg examined himself as PW-1 and tendered his evidence by way of affidavit Ex PW-1/A, wherein he reiterated the contents of his plaint and relied upon the following documents:
1. Ex PW-1/1 (OSR): Copy of aadhar card of PW-1.
2. Ex PW-1/2: Original photographs of the suit property.
3. Mark A: copy of electricity bills showing that the suit property consists of two floor.
4. Ex PW-1/3: Original agreement to sell dated 02.03.2020.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 19 /53
5. Ex PW-1/4: Print out of the bank statement of account of the plaintiff and deponent for relevant period.
6. Ex PW-1/5: Original photographs showing the demolished structure of the suit property.
7. Mark B: Copy of conveyance deed dated 04.10.2021.
8. Ex PW-1/6: Printout of the bank account statement for the relevant period showing payments to defendant by the plaintiff.
9. Ex PW-1/7: Print out of the screenshot of the message sent by defendant to the plaintiff on 02.02.2022.
10. Ex PW-1/8: Legal notice dated 11.02.2022.
11. Ex PW-1/9 (colly): office copy of the final notice dated 13.02.2022 along with office copy of reply dated 15.02.2022.
12. Ex PW-1/10: Legal reply dated 17.02.2022.
13. Ex PW-1/11 (colly): office copy of rejoinder dated 18.02.2022 along with its postal receipt.
14. Ex PW-1/12 (colly): office copy of the letter dated 25.02.2022 along with its postal receipt.
15. Ex PW-1/13: certificate under Section 65B of Indian Evidence Act.
(49) PW-1 has been cross examined by Ld counsel for the defendant and on 04.06.2024, evidence on behalf of the plaintiff Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 20 /53 was closed by recording the statement of Ld counsel for plaintiff.
EVIDENCE OF DEFENDANT (50) On 28.11.2024, Sh. Chetan has examined himself as DW-1 and tendered his evidence by way of affidavit Ex. DW1/A and he reiterated the objections taken by him in his written statement. He relied upon the following documents:
Ex DW-1/1: SPA dated 20.09.2024.
MARK A: copy of mutation letter dated 11.03.2020. Mark B: Copy of electricity bill dated 20.03.2022. Thereafter, DW1 was cross examined by Ld counsel for plaintiff.
(51) On 20.08.2025, Sh. Bharat, Senior Secretariat Assistant, DDA has examined as DW-2 and he brought the original summoned record pertaining to the suit property bearing no. 319, Single Storey, Pocket-1, Paschim Puri, New Delhi, vide file no.
J/25(27)1972/HB. He has also brought the following documents:
Ex DW-2/1: challan vide no. 706857 dated 13.03.2020 of Rs. 200/- in regard to processing fee of lease hold to free hold.
Ex DW-2/2: An application for lease hold to free hold dated 17.03.2020 (running into 3 pages). Ex DW-2/3: site inspection report dated 19.08.2020 (running into 6 pages).
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 21 /53 Ex DW-2/4: Email sent by Sh. Chetan Behl dated 20.07.2020 (running into 4 pages).
Ex DW-2/5: a letter dated 09.11.2020 written by Deputy Director (LAB) Janta to the Chief Engineer, Dwarka Zone, DDA office.
Ex DW-2/6: a letter dated 30.12.2020 written by Director (H) to the chief engineer, Dwarka Zone.
Ex DW-2/7: Site inspection report vide diary dated 16.08.2021 (running into 6 pages).
Ex DW-2/8: A letter dated 13.07.2021 written by Ms. Dolly Behl to Assistant Director DDA (running into 2 pages).
Ex DW-2/9: Office notings of the DDA officers dated 25.09.2020.
Ex DW-2/10: A challan vide number 001589 dated 08.09.2021 pertaining to the dues of watch and ward charges, ground rent and service charges.
Ex DW-2/11: Affidavit dated 21.09.2021.
(52) Thereafter, DW-2 has been cross examined by Ld counsel for the plaintiff. On 20.08.2025, the evidence of the defendant stands closed by recording the statement of ld counsel for the defendant.
FINAL ARGUMENTS (53) I have heard final arguments from Ld counsels for the parties as well as have perused the entire case file and written submissions filed by Ld counsels for the parties.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 22 /53 SUBMISSIONS ON BEHALF OF THE PLAINTIFF.
(54) Ld counsel for the plaintiff has argued that without knowledge and consent of the plaintiff, the defendant got the first floor of the suit property demolished by citing the requirement of DDA for conversion of the suit property from lease hold to freehold but there was no such requirement of the DDA.
(55) Ld counsel for the plaintiff has further argued that when the plaintiff confronted the defendant about wrongfully demolishing the first floor, she stated that she believed that the plaintiff had to reconstruct the building after demolishing the entire structure and she gave assurance to the plaintiff that she would reconstruct the first floor of the suit property before execution of sale deed.
(56) Ld counsel for the plaintiff has further argued that due to delay in reconstruction of the first floor of the suit property, both parties mutually extended the date for execution of sale deed of the suit property till 25.02.2022. He further argued that despite extending the date of execution of sale deed to 25.02.2022, the defendant did not reconstruct the first floor of the suit property.
(57) Ld counsel for the plaintiff has further argued that the defendant has committed breach of agreement to sell by not reconstructing first floor of the suit property as the defendant had Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 23 /53 agreed to sell entire suit property consisting ground floor and first floor and has, thus, changed the nature of the suit property.
(58) Ld counsel for the plaintiff has further argued that as per clause 4 of agreement to sell, the defendant had agreed to execute the sale deed in favour of the plaintiff or his nominee but on 02.02.2022, the defendant refused to execute the the sale deed in favour of the nominee of the plaintiff and whats app message in this regard was also sent to the plaintiff.
(59) Ld counsel for the plaintiff has further argued that the defendant has failed to show the original allotment letter, NOC document issued by TPDDL and Delhi Jal Board in respect of suit property.
(60) Ld counsel for the plaintiff has further argued that vide written communication dated 13.02.2022, 15.02.2022 and 18.02.2022, the defendant was made aware about the breach of agreement committed by her and again requests were made to the defendant to restore the first floor of the suit property, to show original allotment letter and other documents and to execute sale deed in favour of the nominee of the plaintiff. The defendant was also made aware that in case, she fails to comply the abovesaid legal communications, then she will have to pay double of the earnest money, part payment and other charges to the plaintiff.
(61) Ld counsel for the plaintiff has further argued that the defendant has committed breach of agreement to sell, therefore, the plaintiff is entitled to recover double of the amount paid by Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 24 /53 the plaintiff to the defendant as well as the the amount spent by the plaintiff for getting converted the suit property from leasehold to freehold.
(62) Ld counsel for the plaintiff has further argued that conversion of property from leasehold to freehold is a complex process and for which, he took the assistance of property expert, Mr. Ramesh Mandal. He further argued that the plaintiff had paid Rs. 5,89,000/- to Mr. Ramesh Mandal for converting the suit property from leasehold to freehold and the suit property has been converted into freehold on 27.09.2021 and conveyance deed in favour of defendant has been executed on 04.10.2021.
(63) Ld counsel for the plaintiff has further argued that the defendant has not entered into the witness box, so, averments made by the defendant in her written statement have not been proved and due to said fact, the defendant has given her implied admission to the averments of the plaint and evidence led by the plaintiff.
(64) Ld counsel for the plaintiff has further argued that DW-1/Mr. Chetan Behl has no personal knowledge of the case, so, his evidence is not admissible being secondary evidence.
(65) Ld counsel for the plaintiff has further argued that the defendant had mala fide intention at the time of entering into agreement to sell and he wanted to usurp/grab bayana amount and part payment of the plaintiff and also wanted to use plaintiff Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 25 /53 as a tool to get suit property converted from leasehold to freehold without incurring any amount from her own pocket.
(66) Ld counsel for the plaintiff has further argued that the defendant has demolished the first floor of the suit property for the purpose of avoidance of the performance of agreement to sell and with said mala fide intention, she also did not show the original mutation/allotment letter and NOC letter issued by TPDDL and Delhi Jal Board and also later on, refused to execute the sale deed in favour of the nominee of the plaintiff.
(67) Ld counsel for the plaintiff has further argued that the defendant wanted to evade the stamp duty and capital gain tax and for the said purpose, he wanted to pay most of the portion of sale amount in cash but the plaintiff wanted to take the entire sale price through bank transfer.
(68) Ld counsel for the plaintiff has further argued that it is a general practice that 10% of the total sale price is treated as earnest money and which comes to Rs. 8,50,000/- approximately but admittedly, the defendant has received Rs. 2,50,000/- from the plaintiff for the reason that Rs. 6,00,000/- being the difference was verbally considered as the cost of conversion of the suit property from leasehold to freehold.
(69) Ld counsel for the plaintiff has further argued that NOC has nothing to do with the outstanding amount of electricity and water connection as NOC is a part of chain of title documents Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 26 /53 and without which, chain of title documents remains incomplete.
SUBMISSIONS ON BEHALF OF THE DEFENDANT.
(70) Ld counsel for the defendant argued that the plaintiff was never willing to purchase the suit property as he was unable to arrange the money and due to said reason, he has not sought relief of specific performance of agreement to sell and sought relief only for recovery of double amount by filing the present suit.
(71) Ld counsel for the defendant further argued that more time was given to the plaintiff for getting the sale deed executed till 25.02.2022, despite expiry of earlier time on 03.12.2021 but the plaintiff has failed to pay the balance amount and get the sale deed executed in his favour.
(72) Ld counsel for the defendant further argued that the defendant has right to forfeit the amount of the plaintiff as the defendant has failed to perform his part of agreement to sell.
(73) Ld counsel for the defendant further argued that after awaiting the plaintiff for a long time to pay the balance sale price, the defendant sold the property to third person vide sale deed dated 02.05.2022.
(74) Ld counsel for the defendant further argued that the plaintiff is a property dealer and builder and has thoroughly Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 27 /53 checked all the papers of the property and also agreed to get it converted from leasehold to freehold.
(75) Ld counsel for the defendant further argued that it is the plaintiff, who himself, had taken the decision to dismantle the first floor of the suit property as required by the DDA for the purpose of converting the suit property from leasehold to freehold and he had hired Mr. Sunny for dismantling the first floor.
(76) Ld counsel for the defendant further argued that the plaintiff neither willing nor ever ready to purchase the suit property and due to said reason, the suit for specific performance of agreement to sell has not been filed.
(77) Ld counsel for the defendant further argued that the plaintiff never sent any letter or legal notice to the defendant by alleging any of his grievance. He further argued that the defendant gave legal notice dated 11.02.2022 to the plaintiff and extended the time of plaintiff to pay the balance amount till 25.02.2022 and thereafter, the plaintiff gave reply to the said legal notice by first time raising greivance that the defendant is not showing documents of the suit property, NOC of water Bill, electricity and house tax.
(78) Ld counsel for the defendant further argued that no dues of any Government/Municipal Tax etc., were pending against the suit property and the NOC had been shown to the DDA Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 28 /53 Department before getting convert the suit property from leasehold to freehold.
(79) Ld counsel for the defendant further argued that the plaintiff has failed to produce in his evidence as well as in his pleadings about his financial capacity and having sufficient money to purchase the suit property.
(80) Ld counsel for the defendant further argued that the plaintiff has also failed to produce his nominee as a witness to prove his financial capacity to purchase the suit property.
(81) Ld counsel for the defendant further argued that the plaintiff has not file any proof/authority letter that he is the karta of the HUF and entitled to file the present suit.
(82) Ld counsel for the defendant further argued that the defendant has not dismantled the first floor of the suit property. He further argued that the defendant was not residing in Delhi and had given the keys of the suit property to the plaintiff because plaintiff being a builder wanted to show the suit property to someone for the purpose of selling or constructing it up to fourth floor and thereafter, planing to sell out the individual floor to different purchasers. He further argued that the plaintiff wanted to show the suit property to Junior Engineer, DDA for carrying out inspection in order to convert the suit property from leasehold to freehold.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 29 /53 (83) Ld counsel for the defendant further argued that as per first report of JE of DDA, there was no illegal construction upon the suit property but the son of the defendant had already sent photographs of the suit property via e-mail to the officer of DDA and due to said fact, the Deputy Director of DDA made remarks regarding unauthorized construction upon the suit property. Thereafter, the plaintiff got dismantled unauthorizedly constructed first floor upon the suit property in order to clear said objections of the DDA.
(84) Ld counsel for the defendant further argued that due to illegally constructed first floor in the suit property, DDA was not ready to convert the suit property from leasehold to freehold and due to said reason, the plaintiff got dismantled the first floor of the suit property and got converted the suit property from leasehold to freehold.
(85) Ld counsel for the defendant further argued that the defendant had never refused to execute the sale deed in favour of the nominee of the plaintiff and whats app message relied upon the plaintiff is false and neither sent by the defendant nor her husband. Moreover, husband of the defendant was the owner of the suit property and has no concern for sending the said message.
ISSUE-WISE FINDINGS.
Findings on Issue no. 1 Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 30 /53 Issue no. 1. Whether the plaintiff is entitled to seek recovery of Rs. 25,20,000/- from the defendant as prayed in the clause 'a' of the prayer clause? OPP.
(86) The onus to prove issue no. 1 is upon the plaintiff. In order to prove the said issue, the plaintiff has examined only one witness i.e. plaintiff himself.
(87) The present case has been filed by the plaintiff against the defendant for the recovery of Rs. 25,20,000/-. In the present case, the plaintiff is seeking recovery of the double amount of the amount paid by the plaintiff to the defendant as well as the amount spent by the plaintiff for getting the suit property converted from lease hold to freehold and the details of payments made by the plaintiff are as under:
Serial Date of Payment Amount
no.
1 02.03.2020 2,50,000/- (earnest money)
2 02.11.2020 50,000/-
3 25.10.2021 11,000/- (in account of son of
defendant/Sh. Chetan Behl)
4 20.11.2021 2,00,000/-
5 30.11.2021 1,00,000/-
6 22.12.2021 50,000/-
7. 13.10.2020 and 22.11.2021 589000/- paid by defendant in two
installments to Sh. Ramesh Mandal
regarding charges of conversion of
suit property to freehold.
8. 10,000/- (expenses of conversion
charges)
Total 12,60,000/-
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 31 /53
(88) The plaintiff has alleged that he paid amount of Rs.
6,61,000/- to the defendant as sale consideration amount and spent amount of Rs. 5,99,000/- for the conversion of suit property from leasehold to freehold. The plaintiff has alleged that he is entitled to receive double amount of the abovesaid paid as well as spent amount of Rs. 12,60,000/- as defendant has breached the terms of agreement to sell dated 02.03.2020.
(89) Agreement to sell dated 02.03.2020 Ex PW-1/3 and its terms and condition have been admitted by both the parties of the suit.
(90) The first ground taken by the plaintiff for claiming breach of terms of agreement to sell by the defendant is that the defendant has malafidely got the first floor of the suit property dismantled without his knowledge and consent for the purpose of avoiding the execution of sale deed of suit property.
(91) The plaintiff/PW-1 has deposed in his examination in chief by way of affidavit that in the second week of January, 2021, the defendant without the consent of the plaintiff and without any prior notice to the plaintiff had demolished the first floor of the suit property and when the plaintiff got to know about the same, he confronted the defendant, to which the defendant informed the plaintiff that some top officials had directed to the defendant to demolish the first floor of the suit property so that the process of converting the property from lease hold to free hold will get completed smoothly.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 32 /53 (92) The plaintiff/PW-1 has deposed in his examination in chief by way of affidavit that the defendant had also informed the plaintiff that she is also having correspondences with the officials of DDA through e-mails and the plaintiff had raised serious objections to this misconduct and act of breach of terms and conditions of the agreement to sell dated 02.03.2020. The plaintiff has further deposed that he told the defendant that the agreement to sell dated 02.03.2020 was entered by him for the entire property, which consisted of two floors and not just ground floor as also shown by the defendant to the plaintiff before entering into the agreement to sell.
(93) The plaintiff/PW-1 has deposed in his examination in chief by way of affidavit that he has also told the defendant that he has demolished the first floor of the suit property and changed the nature of the suit property and thereby, significantly diminished the value of the property, thus, committed breach of agreement to sell.
(94) The defendant has contended that the first floor of the suit property was got demolished by the plaintiff himself as the construction of the first floor was unauthorized and it was got demolished by the plaintiff, in order to remove the objections of the DDA for conversion of suit property from leasehold to freehold.
(95) It is admitted case of the plaintiff that he got converted the suit property from leasehold to freehold through Sh. Ramesh Mandal. During cross examination, plaintiff/PW-1 deposed that Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 33 /53 during the process of conversion with the DDA, he has submitted the relevant documents in the DDA office through Sh. Ramesh Mandal. The plaintiff further deposed that Mr. Ramesh Mandal did not know the defendant and there was no direct dealing between Mr. Ramesh Mandal and the defendant.
(96) During cross examination, the plaintiff further deposed that he has submitted the photographs of the suit property at the time of inspection of the suit property by DDA officials and the said inspection was carried out by the officers of the DDA in the month of June, 2020.
(97) The plaintiff has denied the suggestion that the suit property was demolished on the objections raised by the DDA officials for the purpose of conversion of suit property from leasehold to freehold as the original shape approved of the suit property is upto single storey. Plaintiff further denied that the suit property was dismantled by him.
(98) Plaintiff further deposed that he visited the DDA at the time of execution of conveyance deed of the suit property. He further deposed that in the month of March, 2020, he applied through Mr. Ramesh Mandal with DDA for the purpose of conveyance deed/freehold of the suit property.
(99) DW-2/Sh. Bharat, Senior Secretariat Assistant, DDA has produced the original records regarding the process of conversion of suit property to freehold and he exhibited various challans, application, inspection reports, office noting of DDA officials, Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 34 /53 letter written by Deputy Director and e-mail sent by Sh. Chetan Behl as Ex DW-2/1 to Ex DW-2/11.
(100) As per print out of e-mail Ex DW-2/4, son of the defendant Sh. Chetan Behl wrote e-mail to the official of DDA on 20.07.2020. Photographs were also sent with e-mail by the son of the plaintiff. The relevant paras of the said email are as under:
"5. The house is in vulnerable condition and becoming weak and fragile. Especially after yesterday's rains, our neighbors informed us today morning that water has clogged on the roof, and they could see huge cracks in the walls. We are fearing it may collapse, causing loss to people living nearby. Pictures attached for your ready reference."
" 6. The buyer of our house wants to reconstruct it after demolishing it but can't take any action right now because we are expecting an officer/engineer from DDA to first visit our property and give a go ahead and approve the construction work. The freehold process is also pending because the site visit has to be completed by your engineer."
(101) As per site inspection report dated 19.08.2020 Ex DW-2/3, the inspection of suit property was conducted by officials of DDA on 13.08.2020 and there was no unauthorized construction upon the suit property.
(102) Vide letter dated 09.11.2020 Ex DW-2/5, the Deputy Director (LAB) Janta wrote to the Chief Engineer, (Dwarka Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 35 /53 Zone), DDA about unauthorized construction upon the suit property and the relevant para of the said letter has been reproduced as under :
"Kindly find enclosed the site inspection report dated 13.08.2020 provided by A.E.(QRT)WD-7 in respect of above subjected flat and a copy of email sent by the son of applicant alongwith the photographs which look contradictory as the photographs sent by the son of the applicant shows unauthorized construction over the flat whereas A.E(QRT) has mentioned 'NIL' in the column of unauthorized construction."
"It is requested that the concern Assistant Engineer (QRT)WD-7 may kindly be directed to provide a factual site inspection report of above state flat with photographs".
(103) Thereafter again, inspection of suit property was conducted DDA officials on 20.04.2021, 07.06.2021 and 02.08.2021 and site inspection report is Ex DW-2/7. As per the inspection report, there is no unauthorized construction upon the suit property. The photographs of suit property are also attached with report. As per photographs, Ist Floor of the suit property has been demolished.
(104) The defendant had also written letter dated 13.07.2021 Ex DW-2/8 to Assistant Director, DDA for giving intimation regarding demolition of the unauthorized construction upon the suit property and request the Assistant collector to freehold the suit property. The defendant had also attached photographs of suit property with the said letter.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 36 /53 (105) In the office notings of DDA Ex DW-2/9 regarding approval of application of defendant for converting the suit property from leasehold to freehold, objection has been raised regarding unauthorized construction upon suit property vide noting dated 25.09.2020 and relevant paras of the said noting are as under:
"5. The SIP was issued and inspection was conducted through the field staff, AE/QRT dtd 13.08.2020 (pg 116/C). No unauthorized construction/encroachment on Govt./public land, as reported by the AE/QRT and the present status of the flat is 'residential'."
" 6. One Shri Chetan Bhagat s/o Smt. Dolly Bahl has sent an e-mail addressed to Hon'ble VC, DDA on 02.07.2020 (p.g. 110/C) stating that the flat u/r is in vulnerable condition. He requested for visit of concerned site engineer for approval of demolition so that the buyer of their ruined house start reconstruction process without hassle. Mail of Shri Chetan is self-explanatory (pg. 110/C)."
" In view of the position explained above, as per report of AE/QRT the flat u/r is in possession of Smt. Dolly Behl and NIL report of unauthorized construction as well as public encroachment. But in the email of Sh. Chean at Page no. 110 has enclosed the photographs of the building which clearly shows unauthorized construction as DDA has allotted single storeyed flat. There is contradiction in the report of A.E.(QRT) and the photographs enclosed by the applicant at page 109/Cr."
(106) From the abovesaid facts, it is evident that the plaintiff had managed to get the site inspection report from DDA to the fact Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 37 /53 that there is no unauthorized construction upon the site property but when this report was put before Deputy Director/DDA for approval, the earlier mail along with photographs of suit property sent to DDA officials by the son of the defendant, was in the knowledge of Deputy Director/DDA and he came to the conclusion that wrong inspection report has been submitted by mentioning that there is no unauthorized construction upon the suit property whereas as per photographs sent by e-mail by the son of the defendant, there was unauthorized construction over the suit property and he wrote letter dated 09.11.2020 to Chief Engineer, DDA to direct the Assistant Engineer to provide a factual site inspection report of the suit property along with photographs. Due to abovesaid objection of the Deputy Director of DDA, the Assistant Engineer raised objections regarding unauthorizedly constructed first floor upon the suit property and insisted for dismantling the said floor.
(107) After dismantling of the said floor, again inspection was carried out by the DDA officials and second inspection report was given regarding not finding any unauthorized construction over the suit property, vide inspection report Ex DW-2/7 and thereafter, application of the defendant for conversion of suit property was allowed.
(108) The plaintiff is residing at 1.5 Km away from the suit property. It was the plaintiff, who had taken the responsibility of converting the suit property to freehold and engaged Mr. Ramesh Mandal for the said purpose and was looking after the entire process of conversion of suit property and was getting Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 38 /53 conducted the inspection of suit property. As per evidence of plaintiff, Mr. Ramesh Mandal did not know the defendant and there was no direct dealing between them. It is the plaintiff, who has submitted the documents and photographs of suit property in DDA office. In view of the abovesaid facts, it is not believable that the plaintiff did not know the objection raised by the Deputy Director of DDA regarding unauthorized construction upon the suit property and regarding dismantling of first floor being unauthorized construction for removal of the objection of DDA for converting the suit property to freehold. The plaintiff is in construction work, so, it is also improbable that he did not know about unauthorized construction of first floor in the suit property.
(109) The contention raised by the plaintiff that the defendant demolished the first floor malafidely in order to avoid execution of sale deed has been proved false contention and stands rejected.
(110) The contention of the plaintiff that the first floor of the suit property was demolished without knowledge and consent, has also proved wrong contention as it is not probable that the objection raised by the DDA was not within the knowledge of the plaintiff as the plaintiff himself was looking after the entire process of getting converted the suit property to freehold and got converted the suit property to freehold. The plaintiff was also residing nearby the suit property.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 39 /53 (111) If the plaintiff had any objection for dismantling the first floor of suit property then he would not have got converted the suit property to freehold and would not have become witness in the conveyance deed rather he would leave the conversion process in between and would not become witness in the conveyance deed executed on 04.10.2021, whereas as per examination in chief of plaintiff, he came to know about the dismantling of the first floor in the second week of January, 2021.
(112) During cross examination, plaintiff has admitted that he had not written any letter or issued any legal notice to the defendant in regard to objection against dismantling of first floor of the suit property.
(113) In view of the abovesaid fact, it is proved that the first floor of the suit property has not been dismantled due to any mala fide intention of the defendant for avoidance of execution of sale deed in favour of the plaintiff rather it was dismantle for removing the objection of the DDA for converting the suit property to freehold.
(114) The next contention of the plaintiff is that the defendant had agreed to re-construct the first floor upon the suit property but he, intentionally, did not re-construct the first floor upon the suit property, despite giving legal notice to him.
(115) The Plaintiff has deposed in his examination in chief that the defendant told him that the construction work will begin in Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 40 /53 January, 2022 as he cannot get the construction work start before two months due to some personal difficulty and he extended due date for performance of agreement by 25.02.2022. Plaintiff further deposed that the defendant also requested for an advance pre-payment of Rs. 3,50,000/- as he needed the said money for getting the construction start and the plaintiff transferred amount of Rs. 3,50,000/- by the end of December, 2021.
(116) There is no document on record that the defendant had agreed to reconstruct the first floor of the suit property before execution of sale deed. No witness has been examined by the plaintiff, in whose presence, the defendant had agreed in this regard. It is also admitted fact of the plaintiff that he did not send any written letter or legal notice to the defendant for raising his objection to the dismantling of first floor. There is no evidence on record except the verbal uncorroborated testimony of the plaintiff that the defendant had agreed to reconstruct the first floor of the suit property and due to said reason extended the date for performance of agreement to sell till 25.02.2022. The plaintiff has also admitted during cross examination that his time was expired in the month of December, 2021 to make the balance payment of the total sale consideration.
(117) The plaintiff is in construction work and he can easily get construct the first floor upon the suit property and can deduct the amount of expenses incurred for construction of first floor instead of advancing the amount of Rs. 3,50,000/- to the plaintiff for construction of first floor and can also construct the first floor as per his needs and requirement. As a prudent person, the Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 41 /53 plaintiff could also ask the defendant to pay damages for demolition of first floor. The abovesaid contention of the plaintiff that the defendant agreed to re-construct the first floor has not been proved and it is also not probable as per conduct of ordinary prudent person. The construction of first floor without permission of DDA would also be an unauthorized construction.
(118) The next contention of the plaintiff is that the defendant did not show him original allotment letter, original NOC issued by TPDDL and Delhi Jal Board.
(119) During cross examination, following question was put to the plaintiff and he replied the same as under;
Q What document did you ask from the defendant for the purpose of conversion of suit property from leasehold to freehold?
Ans Her Id proof, copy of lease deed, electricity bill, I think initially these were documents. Thereafter, copy of mutation, letter of possession, NOC for electric and water connection and at the final stage, her photographs and her personal presence for her signatures.
(120) It is not the case of the plaintiff that any of the electricity or water dues of the suit property was pending. Moreover, if there was any due of electricity or water bill was pending, then the plaintiff has the remedy to deduct the same from the balance sale price. No evidence has come on record that any of the abovesaid dues were pending on the suit property.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 42 /53 (121) As per letter of DDA Ex DW-2/2, following documents have been submitted with the application of converting the suit property to freehold.
1. Affidavit.
2. Indemnity bond.
3. Undertaking
4. Photographs with specimen sign.
5. Copy of electric bill.
6. Copy of confirmation of allot.
7. UOD.
8. Check-list along with enclosure.
9. Copy of conversion challan.
10. Copy of mutation/transfer/inclusion letter.
(122) These documents were submitted by the plaintiff as he was looking after the entire process of conversion of suit property. From the abovesaid letter, it is evident that the copy of electric bill, copy of confirmation of allotment and copy of mutation/transfer/inclusion letter have been submitted. The conveyance deed of the suit property has also executed in favour of the defendant. There is no evidence on record that there was any defect in the ownership of the defendant over the suit property.
(123) In view of the abovesaid facts, this court does not find any force and justification in the abovesaid contention of the plaintiff for not performing his part of agreement to sell Ex PW1/3 by paying balance sale consideration amount to the defendant.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 43 /53 (124) The next contention taken by the plaintiff is that the defendant had refused to execute sale deed in favour of nominee of the plaintiff and the same is in violation of terms of agreement to sell.
(125) The defendant has contention that she never refused to execute sale deed in favour of the nominee of the plaintiff.
(126) The burden is upon the plaintiff to prove that the defendant had refused to execute sale deed in favour of his nominee and for proving the said fact, the plaintiff has relied upon screenshot of the message sent by the defendant to the plaintiff and print out of the said massage is Ex PW-1/7.
(127) In the plaint, the plaintiff has averred that on 02.02.2022, the defendant contacted the plaintiff and she agreed that she will receive the balance consideration amount in one go from the plaintiff. The plaintiff further averred that the defendant further intimated the plaintiff that she will execute the sale deed in favour of the plaintiff only and the defendant will not execute the sale document in favour of nominee(s) of the plaintiff and she did not respond to the request of the plaintiff regarding restoration of the suit property as assured by the defendant earlier and neither she gave any response regarding showing the original title documents as mentioned above to the plaintiff on 02.02.2022.
(128) During cross-examination, the plaintiff deposed that when he requested the husband of the defendant/ Mr. Behl on 30.01.2022 to get the property registered in the name of his Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 44 /53 nominee and requested him to get the property in original state at early date, Mr. Behl, simply, refused to do so on whats app.
(129) The screenshot of whats app message relied upon by the plaintiff is alleged to be sent by husband of the defendant and not by the defendant. No date has been mentioned by the plaintiff, when the defendant herself refused to execute sale deed in favour of the nominee of the plaintiff.
(130) The defendant has denied the sending of whats app message by her husband to the plaintiff. The plaintiff has not produced his mobile phone in the court during his testimony to show from which mobile number whats app message was sent to him. The plaintiff has also not shown the whats app message received on phone by producing his phone in the court.
(131) In the screenshot of whats app message, the mobile number of sender is not reflecting. Only one photo with name Bhel 319 is reflecting. But from this screenshot, it cannot be deciphered as to from which mobile number, the whats app message Ex PW-1/7 has been sent and to whom it has been sent. In certificate filed under Section 65B of Indian Evidence Act, Ex PW-1/13, the plaintiff has not mentioned the mobile number from which the said whats app number has been sent and the mobile number, on which, the whats app message has been received. The certificate regarding print out of whats app message is not as per Section 65B of Indian Evidence Act. Reliance is placed upon judgment of Hon'ble Supreme Court given in a case titled Arjun Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 45 /53 Panditrao Khotkar V. Kailash Kushanrao Gorantyal And Ors, AIR 2020, Supreme Court 4908.
(132) The screenshot of whats app message Ex PW-1/7, without valid certificate issued under section 65B of Evidence Act is inadmissible in evidence and cannot be relied upon.
(133) In view of abovesaid facts, it is held that the plaintiff has failed to prove that the defendant refused to execute sale deed in favour of nominee of the plaintiff.
(134) In view of the abovesaid facts, it is held that the plaintiff has also failed to prove his readiness and willingness to perform his part of agreement to sell by tendering balance sale consideration amount to the defendant.
(135) As per clause 10 of agreement to sell, Ex PW-1/3, the plaintiff can seek recovery of double of amount of earnest money and any of the payments, in case, the defendant infringes any condition of agreement to sell.
(136) As per clause 10 of agreement to sell Ex PW-1/3, the plaintiff is not entitle to receive double amount of the expenses incurred by him for conversion of suit property. The plaintiff has unfairly sought relief of recovery of double amount of the alleged expenses of Rs. 5,99,000/- alleged to be incurred by the plaintiff for conversion of suit property to freehold.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 46 /53 (137) The plaintiff has failed to prove any infringement of terms of condition of agreement to sell by the defendant, so, the plaintiff is not entitled to receive double amount of the earnest money and other payment made by him to the defendant.
(138) Now, the next question to be decided is that how much amount, the plaintiff is entitled to recover from the defendant, in the present case.
(139) The defendant has contended that the plaintiff has breached the terms of agreement to sell and the defendant was never ready and willing to perform his part of agreement to sell and never tendered balance sale consideration amount to the defendant, so, the defendant is entitled to forfeit the earnest money of defendant, as per clause 10 of agreement to sell Ex PW-1/3.
(140) During cross-examination, DW-1 deposed that "it is correct that the suit property was consisted of two floor (ground floor and first floor) at the time of entering into the agreement to sell by the defendant with the plaintiff and it was the intention of both the parties to sell and purchase of said two floors".
(141) The defendant is alleging the first floor was dismantled by the plaintiff but the plaintiff is alleging that the first floor was dismantled by the defendant. As per agreement to sell, the possession of suit property had to be given to the plaintiff at the time of execution of sale deed. The defendant is alleging that the keys of suit property were with the plaintiff. The DW-1 has Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 47 /53 admitted that he has nowhere mentioned about handing over the keys of suit property to the plaintiff in his affidavit Ex DW-1/1.
(142) The defendant has not led any evidence to prove that the keys of the suit property were with the plaintiff. Moreover, this contention is also not believable, when possession of suit property had to be given, at the time of payment of balance sale consideration amount i.e. Rs. 77,89,000/- then why the defendant would hand over the keys of the suit property to the plaintiff. Both inspection reports of the suit property have been prepared in the presence of the defendant and this fact also shows that the defendant was in possession of the suit property. The defendant has also not mentioned the date, when keys of the suit property were handed over to the plaintiff and when the same were returned to her by the plaintiff.
(143) There is no evidence on record that the first floor of the suit property was got dismantled by the plaintiff. When the possession of the suit property is with the defendant. It is only the defendant, who can dismantle the first floor of the suit property.
(144) Be that as it may be, the fact is that at the time of conversion of suit property to freehold, the first floor of the suit property had already been demolished, so, the defendant could not execute the sale deed of first floor of the suit property in favour of the plaintiff and could not deliver its possession to the plaintiff. So, it was not possible for the defendant to fully perform her part of agreement to sell.
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 48 /53 (145) When the defendant was not in position to fully perform her part of agreement to sell, she is not entitled to forfeit the earnest money of the plaintiff.
(146) The defendant has admitted that he received an amount of Rs. 6,50,000/- (including earnest of Rs. 2,50,000/-) from the plaintiff.
(147) The plaintiff is alleging that he paid Rs. 6,61,000/- to the defendant. The plaintiff is alleging that he paid Rs. 11000/- in the bank account of son of the defendant, namely, Mr. Chetan Behl. As per bank statement Ex PW-1/4, an amount of Rs. 11000/- has been transferred in the bank account of Mr. Chetan Behl S/o Sh. Deshmukh. The defendant had not denied the said payment, during the cross examination of the plaintiff.
(148) The plaintiff is also seeking recovery of amount of Rs. 5,89,000/- paid to Mr. Ramesh Mandal as charges for converting the suit property to freehold.' (149) As per clause-I of agreement to sell Ex PW-1/3, the plaintiff undertook the responsibility to get converted suit property to freehold as its own cost. As per clause-II of Ex PW-1/3, the plaintiff was entitled to recover the said cost from the defendant, if by virtue of any fault in the ownership papers of the defendant, there are any objection from DDA for converting the suit property to freehold. But, in the present case, there is no defects in the ownership papers of the defendant and no objection regarding fault of ownership of defendant over the suit property, Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 49 /53 ever raised by the DDA and conveyance deed also executed in favour of the defendant by DDA.
(150) The plaintiff has relied upon receipt Ex PW-1/D-1, alleged to be issued by Mr. Ramesh Mandal regarding charging an amount of Rs. 5,89,000/- from the plaintiff for conversion of suit property to freehold. The plaintiff has not examine Mr. Ramesh Mandal as a witness for the reason best known to him. The plaintiff has failed to prove that this receipt was issued by Mr. Ramesh Mandal and bears his signatures.
(151) The plaintiff has relied her bank statement for proving that he paid an amount of Rs. 5,89,000/- to Mr. Ramesh Mandal. From the bank statement, it cannot be proved that the said amount was paid by the plaintiff to Mr. Ramesh Mandal as conversion charges for converting the suit property to free hold. This payment may be of any other dealing between the plaintiff and Sh. Ramesh Mandal. In view of the above said facts, it is held that the plaintiff has failed to prove that he made payment of Rs. 5,89,000/- to Mr. Ramesh Mandal regarding his charges for converting the suit property from leasehold to freehold.
(152) During cross examination, the plaintiff has deposed that the fee of conversion from leasehold to freehold in DDA is approximately Rs. 20,000/-. When the fee is Rs 20,000/- then why and for what work such huge amount of Rs. 5,89,000/- was paid by the plaintiff to Mr. Ramesh Mandal and this fact can be explained and justified only by Mr. Ramesh Mandal. The plaintiff has withheld this important witness, without any just reason, for Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 50 /53 proving payment of Rs. 5,89,000/- made to him as charges for converting the suit property to freehold. So, adverse inference is also drawn against the plaintiff.
(153) As per Ex DW-2/10, an amount of Rs. 2200/- and as per Ex DW-2/1, an amount of Rs. 200/- have been deposited with DDA regarding conversion charges.
(154) This court does not find any merit in the submission of ld counsel for the plaintiff that the evidence of DW-1 cannot be read in evidence. It is settled law that the power of attorney holder can depose regarding the facts, which are in his personal knowledge, so, the evidence of DW-1 regarding the facts, which are in the personal knowledge of DW-1 is admissible and reliable.
(155) This court does not find any force in the contention of the defendant that the plaintiff has failed to prove that he is karta of Anil Kumar Garg HUF as the agreement to sell has been entered by the defendant with the plaintiff being karta of Anil Kumar Garg HUF. The agreement to sell is also signed by the plaintiff as karta of Anil Kumar Garg HUF and payments to the defendant have also been made by the plaintiff.
(156) As per Ex DW-2/10, an amount of Rs. 2200/- and as per Ex DW-2/1, an amount of Rs. 200/- have been deposited with DDA regarding conversion charges. Since sale deed of suit property has not been executed by the defendant in favour of the plaintiff and the defendant has got the benefits of the hard-work of the plaintiff for conversion of suit property to freehold, the Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 51 /53 plaintiff is entitled to recover conversion fee of Rs. 2400/- from the defendant.
(157) In view of the foregoing facts and discussions, it is held that the plaintiff is entitled to recover an amount of Rs. 6,61,000/- along with conversion fee of Rs. 2400/- from the defendant. Accordingly, the issue no. 1 is partly decided in favour of the plaintiff.
Findings on issue no. 2 Issue no.2:Whether the plaintiff is entitled to pendente lite and future interest @ 18% p.a. on the amount claimed above? OPD.
(158) Section 34 of CPC is reproduced as under:
" Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent. per annum as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit :
[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
Explanation I.--In this Sub-section, "nationalised bank"
means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 52 /53 Explanation II.-- For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.].
(2) Where such a decree is silent with respect to the payment of further interest [on such principal sum] from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.
(159) In view of the Section 34 of CPC, the plaintiff is not entitled to receive interest @ 18% per annum. Considering the nature of transaction between the parties, the plaintiff is held entitled to receive interest @ 9% per annum on the amount of Rs. 6,63,400/- w.e.f. filing the present suit till the realization of the said amount. Accordingly, the issue no. 2 is partly decided in favour of the plaintiff.
RELIEF:
(160) In view of the foregoing findings on the above-said issue no. 1 and 2, the suit of the plaintiff stands partly decreed without cost and the plaintiff is held entitled to recover an amount of Rs.
6,63,400/- from the defendant along with interest @ 9% per annum w.e.f. filing of the present suit till realization of the said amount.
(161) Decree-sheet be prepared accordingly.
(162) File be consigned to record room after due compliance.
SHIV Digitally signed by SHIV
KUMAR
KUMAR Date: 2026.02.10 16:36:30
+0530
Announced in open Court (SHIV KUMAR)
today on 10.02.2026 DJ-02, West Distt.Tis Hazari
courts Delhi
Civ DJ no.253/22 Anil Kumar Garg Vs Dolly Behl page no. 53 /53