,,,,
Mukta Gupta, J",,,,
1. By this suit, the plaintiff inter alia seeks a decree of specific performance of the agreement to sell dated 14t h July, 2016 which is in continuation of",,,,
agreement to sell dated 9t h July, 2012 in favour of the plaintiff and against the defendant and the direction to the defendant to execute and register",,,,
sale deed conveying the property No. 32, Paschimi Marg, Vasant Vihar, New Delhi-110057 (in short, the suit property) admeasuring 852 sq.yards in",,,,
favour of the plaintiff and to hand over the physical and vacant possession of the suit property, in the alternative, money decree for refund of ₹12.81",,,,
Crores along with the interest besides a decree of declaration and injunction and costs.,,,,
2. The claim of the plaintiff in the plaint is that the defendant is the owner of the suit property with entire built up portion with all rights, interest, lien",,,,
and title in the land beneath the same, fixtures and fittings etc. The defendant represented to the plaintiff that the plot was initially allotted to Shri",,,,
Onkar Nath Bajpai and Smt. Sharda Bajpai in whose favour a perpetual sub-lease dated 5th February, 1971 was registered on 31st March, 1971. The",,,,
said Shri Onkar Nath died on 8t h January, 1991 leaving behind his wife Smt. Sharda Bajpai, three sons and three daughters, who all acquired 1/14t h",,,,
share in the half undivided share of Shri Onkar Nath Bajpai. The property was converted from leasehold to freehold in the joint names of Smt. Sharda,,,,
Bajpai and other legal heirs by virtue of conveyance deed dated 2nd December, 2004.",,,,
3. Later, all the legal heirs of Shri Onkar Nath Bajpai transferred and conveyed the suit property to Shri Om Prakash Lalwani, Mrs. Madhu Lalwani,",,,,
Shri Kamal Lalwani and Shri Mahesh Lalwani, who later sold the suit property to Shri Lalit Modi vide the registered sale deed dated 10t h April, 2008",,,,
and handed over to him the vacant and peaceful possession of the suit property. The defendant had shown the chain of title documents to the plaintiff,,,,
at the time of the execution of the agreement to sell dated 9t h July, 2012 but provided only the photocopy of the sale deed dated 10th April, 2008. The",,,,
sale consideration of the suit property between the plaintiff and defendant was agreed at ₹18.50 Crores and at the relevant time, circle rate of",,,,
property was about ₹16 Crores. In the agreement to sell dated 9th July, 2012, the defendant admitted having received a sum of ₹3,35,00,000/- out of",,,,
which ₹41,00,000/- was paid in cash and the balance sale consideration of ₹15,15,00,000/- was to be paid on or before 31st December, 2014 or within",,,,
the extended period which may be mutually agreed to by parties after the completion of building and on obtaining requisite completion certificate from,,,,
the MCD/competent authorities. On receipt of the full and final payment, defendant was required to execute and get registered the sale deed and the",,,,
relevant documents. It was assured to the plaintiff that the suit property was free from all sort of encumbrances.,,,,
4. After execution of the agreement to sell dated 9th July, 2012, the plaintiff paid a further sum totaling to ₹10,81,00,000/- to the defendant upto 13th",,,,
July, 2016. Despite repeated requests and even after the expiry of period on 31st December, 2014 as stipulated in agreement dated 9t h July, 2012, the",,,,
defendant failed to execute the sale deed on one pretext or the other. In July 2016, when the parties again met, it was agreed that the earlier",,,,
agreement dated 9th July, 2012 be torn and destroyed due to personal, compelling and unavoidable circumstances as the defendant was not in a",,,,
position to execute the sale deed in respect of the suit property due to acute financial crises and family related issues. The defendant also requested,,,,
for further payments of ₹2 Crores out of balance sale consideration and a fresh agreement to sell was executed between the parties on 14t h July,",,,,
2016. Along with the agreement, receipt dated 14th July, 2016 was also executed wherein, the defendant acknowledged the receipt of total sum of ₹",,,,
12.81 Crores. In the second agreement to sell dated 14t h July, 2016, it was reiterated that the defendant had right, title, interest in the suit property",,,,
and the same was free from any encumbrance. The defendant had received a total sum of ₹10,81,00,000/- and further sum of ₹2 Crores in cash and",,,,
that the balance sale consideration of ₹5,69,00,000/- was to be received at time of the execution of the sale deed on or before 28th February, 2017",,,,
subject to necessary sanctions and approval when the physical vacant possession of the suit property along with the original documents in respect of,,,,
the said suit property were to be handed over to the plaintiff. Despite repeated meetings and requests, the defendant again failed to execute the sale",,,,
deed on or before 28th February, 2017 and this time, he took the plea that his wife and family were not agreeable to the proposed sale and he was not",,,,
able to retrieve the original title deed within the short period. To show his bona-fides, the plaintiff prepared a demand draft bearing DD No. 848568",,,,
issued in the name of the defendant by Corporation Bank, Hauz Khas Branch, New Delhi for a sum of ₹5,69,00,000/-, calling upon the defendant to",,,,
fulfill his obligations under the agreement to sell dated 14t h July, 2016, also informing him about the issuance of the demand draft in the name of the",,,,
defendant. On 27t h February, 2017, the plaintiff even sent a photograph of the draft bearing No. 848568 showing his readiness and willingness to",,,,
perform the agreement to sell, however, the defendant failed to fulfill his obligations.",,,,
5. In the written statement filed, the defendant has taken the plea that the present suit seeking specific performance of the agreement to sell dated 9t h",,,,
July, 2012 was barred by limitation and the defendant never made any representation to the plaintiff nor there was any negotiation between the two of",,,,
them for sale and purchase of the suit property. It is the case of the defendant that he used to take loans from the plaintiff in the usual course of,,,,
business and at times, the plaintiff used to take signatures of the defendant on blank papers and that the alleged agreements to sell dated 9th July, 2012",,,,
and 14t h July, 2016 appeared to be an act of fabrication of such papers which were got signed in blank.",,,,
6. On the pleadings of the parties, the following issues were settled:",,,,
“(i) Whether the parties executed an agreement to sell dated 09.07.2012 and thereafter, a second agreement to sell dated 14.07.2016 for the",,,,
property No. 32, Paschimi Marg, Vasant Vihar, New Delh110057? OPP",,,,
(ii) Whether the plaintiff has been ready and willing to perform his part of the agreement dated 14.7.2016? OPP,,,,
(iii) Whether the present suit is barred by limitation? OPD,,,,
(iv) Whether the plaintiff has paid a sum of Rs.12.81 crores as advance to the defendant? OPP,,,,
(v) Whether the plaintiff is entitled to a decree of specific performance of the agreement to sell dated 14.07.2016? OPP,,,,
(vi) Reliefâ€,,,,
7. In support of his case, the plaintiff examined four witnesses i.e. himself as PW-1, Sh. A.P.Gupta, a witness to the agreement to sell dated 9t h July,",,,,
2012 as PW-2, Sh. Purshottam Keshwani, a witness to the agreement to sell dated 14th July, 2016 as PW-3 and Sh. Anup Garg, a witness to the",,,,
payment of ₹41 lakhs in cash as PW-4. The plaintiff also summoned four other witnesses namely Sh. Anil Kumar Yadav, PW-5 to prove the sale",,,,
deed dated 10th April, 2008 in favour of the defendant, Ms.Vatsala Rai, Advocate/Local Commissioner as PW-6 to prove her record, Sh. Narender",,,,
Kumar Mehta, Chief Manager, SBI Branch, New Friends Colony, New Delhi as PW-7 to prove the various payments and Ms. Nivedita as PW-8 to",,,,
prove the issuance of the demand draft for a sum of ₹5,69,00,000/- in the name of the defendant on 27th February, 2017.",,,,
8. Plaintiff tendered his evidence by way of an affidavit vide Ex. PW-1/A. Certified copy of sale deed dated 10t h April 2008 with respect to the suit,,,,
property in favour of defendant was proved as Ex. PW-1/1. True copy of the agreement to sell dated 9th July 2012 executed between the parties was,,,,
Cheque No.,Date,Amount (₹),From,To
814707,14.05.2015,"50,00,000/-",Mr. Kapil Garg,Lalit Modi
030791,12.06.2015,"5,00,000/-",Mr. Kapil Garg,Lalit Modi
030809,08.07.2015,"90,00,000/-",Mr. Kapil Garg,Lalit Modi
030757,05.08.2015,"1,50,00,000/-",Mr. Kapil Garg,Lalit Modi
294619,22.09.2015,"40,00,000/-",Mr. Kapil Garg,Lalit Modi
the defendant since he insisted that he cannot enter into two agreements to sell in respect to the suit property and as a result, the said agreement was",,,,
destroyed. Mr. Purshottam Keshwani affirmed these facts. Thus the depositions given by the plaintiff, PW-2 and PW-4 prove that the agreement",,,,
dated 9th July 2012, exhibited as Ex- PW 1/9 was duly executed and torn by the defendant.",,,,
18.5 Defendant does not deny his signatures on the two agreements to sell but takes the plea that he was made to sign on blank documents for which,,,,
he took no action till date. However, the testimonies of plaintiff, PW-2, PW-3 and PW-4 prove the two agreements to sell dated 9t h July, 2012 and",,,,
14t h July, 2016 having been executed between the plaintiff and defendant and duly witnessed. Thus issue No.1 is decided in favour of the plaintiff and",,,,
against the defendant.,,,,
19. Issue No.(ii) : Whether the plaintiff has been ready and willing to perform his part of the agreement dated 14.7.2016? OPP,,,,
19.1 Plaintiff has proved having paid Rs. 12.81 Crores to the defendant out of the total sale consideration Rs. 18.50 Crores which is more than 50% of,,,,
the total amount. The willingness of the plaintiff to perform his part of the agreement is also proved by Ex. PW-1/6 that is the letter dated 27th,,,,
February 2017, which the plaintiff sent to the defendant alongwith a photograph of the demand draft for a sum of ₹5,69,00,000/- on the same date",,,,
bearing DD No. 848568 issued by Corporation Bank, Hauz Khas, New Delhi. The demand draft was proved as Ex. PW-8/1 by the testimony of PW-",,,,
8. The plaintiff sent letter dated 27t h February 2017 along with a draft Sale Deed dated 28t h February 2017 and a copy of Ex.PW-1/6 respectively to,,,,
the defendant. The receipt of the aforementioned letter was duly admitted by the defendant during his cross-examination. During his cross-,,,,
examination, when DW-1 was asked whether the plaintiff had the capacity to pay ₹5.69 Crore from 2016 till today, he answered that the plaintiff had",,,,
the financial capacity to meet any financial liability. Thus, it is proved that the plaintiff was always ready and willing to perform his obligations.",,,,
Therefore, issue No.(ii) is also decided in favour of the plaintiff and against the defendant.",,,,
20. Issue No.(iii) Whether the present suit is barred by limitation? OPD,,,,
20.1 Defendant has taken the plea that suit is barred by limitation. By present suit, the plaintiff seeks specific performance of not only the agreement",,,,
to sell dated 9th July, 2012 but also dated 14t h July, 2016 and the present suit has been instituted on 3rd March, 2017, thus within the period of",,,,
limitation. No substantial argument has been advanced by the defendant to show that the suit is barred by limitation. Hence, this issue is also decided",,,,
in favour of the plaintiff and against the defendant.,,,,
21. Issue No. (iv) : Whether the plaintiff has paid a sum of ₹12.81 crores as advance to the defendant? OPP,,,,
21.1 It is the case of the plaintiff that he has already paid a sum of ₹12.81 Crore, out which a sum of ₹9.44 Crore has already been admitted by the",,,,
defendant. Payment of ₹12.81 Crore has been received by the Defendant which has been acknowledged by him in the payment receipt attached with,,,,
the agreement to sell dated 14th July 2016. These documents have been proven by PW-1 who has withstood the test of cross-examination.,,,,
21.2 Learned counsel for the defendant contended that the case of the plaintiff was that the transfer of amount was in relation to the sale of the suit,,,,
property. However, the plaintiff failed to prove the same. The defendant took the plea that the amount was transferred to him but the same was not in",,,,
relation to sale of the suit property as it was not transferred by the plaintiff but by the brother of the plaintiff, Mr. Kapil Garg. The payments were in",,,,
usual course of business carried out between the defendant and Mr. Kapil Garg. The same was proved by PW-7 that is Mr. Narender Kumar Mehta,",,,,
Chief Manager, SBI Branch, Surya Plaza, New Friends Colony, New Delhi as he brought documents on record to that effect which show that the",,,,
transfer was made by Mr. Kapil Garg and not the plaintiff. The relation between the defendant and Mr. Kapil Garg was proved in the cross-,,,,
examination of DW-1 wherein he stated that he had no friendly relations with the plaintiff but had friendly relations with his brother, Mr. Kapil Garg",,,,
and it was through him that he came to know the plaintiff. The plaintiff failed to bring the original copies of the agreement on record and thus took the,,,,
frivolous plea that the same had been torn and destroyed.,,,,
21.3 During his cross-examination, PW-1 revealed that he arranged for ₹5.49 Crore on his own while the remaining payments he borrowed money as",,,,
a loan from his brother Mr. Kapil Garg and from M/s. Diya Properties Pvt. Ltd. During his cross-examination the defendant admitted that he received,,,,
the payments in question through RTGS/cheque. Defendant however failed to prove his defence that the money so transferred to his account from,,,,
that Mr.Kapil Garg was in respect of which business which onus was on the defendant as he had set up the said plea. Hence it was proved that the,,,,
payments of a sum of ₹9.44 Crores were made by the plaintiff to the defendant. During his deposition, the plaintiff stated that the amount of",,,,
₹2,94,00,000/- was paid in cash since the defendant insisted on payment through cash only. The plaintiff proved the said transaction through his",,,,
testimony and that of Mr. Purshottam Keshwani. Ms. Nivedita Upreti, Asst. Manager, Corporation Bank, Hauz Khas, New Delhi (PW-8) proved the",,,,
withdrawal of ₹2 Crore from the bank during the relevant period. It is pertinent to note that the payments made by the plaintiff to the defendant have,,,,
been admitted by the defendant during the course of his cross-examination. Thus, it was established that the cash withdrawn by the plaintiff was given",,,,
to the defendant at the time of signing the agreement to sell dated 14th July 2016.,,,,
21.4 Merely because the plaintiff made payments after taking loan from Kapil Garg or from someone else, does not prove that no payment was made",,,,
to the defendant. Defendant having admitted the receipt of amount of ₹9.44 Crores, also the plaintiff having proved the cash payments as also the",,,,
receipts of the entire payment, it is proved by the plaintiff that a sum of ₹12.81 crores as part sale consideration was handed over to the defendant.",,,,
Hence, issue No.(iv) is also decided in favour of the plaintiff and against the defendant.",,,,
22. Issue No.(v) : Whether the plaintiff is entitled to a decree of specific performance of the agreement to sell dated 14th July, 2016? OPP",,,,
22.1 Learned counsel for the plaintiff relies upon the decision of Delhi High Court in Raj Kumar Sharma v. Pushpa Jaggi and Ors.,,,,
(MANU/DE/2934/2005),,,,
22.2 Learned counsel for the defendant stated that the settled position of law is that under Section 20 of The Specific Relief Act, 1963 the court has",,,,
the discretion to award specific performance of an agreement but the same should be guided by judicial principles. The Court has to bear in mind the,,,,
conduct of the parties and other circumstances before awarding such discretion. The Court therefore has to take into account the rise in value of the,,,,
property before awarding any other relief. It has been held by the Apex Court that there has been a galloping increase in the prices of immovable,,,,
property and the courts are bound to take notice of the galloping prices. In the present case, the suit property is worth more than ₹80 Crore and the",,,,
plaintiff wants to grab the same through the alleged documents and hence the relief of specific performance be not granted. It is further pleaded that,,,,
the defendant had already entered into an agreement to sell with Ms.Sonia Modi, who appeared as DW-2, in respect of the second floor of the suit",,,,
property on 29th July, 2010 and hence both the agreements to sell between the plaintiff and the defendant are void ab initio.",,,,
22.3 As stated by the defendant No.2, only an agreement to sell was entered into and no sale deed was executed between the defendant and his",,,,
daughter. Further, the purported agreement to sell dated 29t h July, 2010 between the defendant and his daughter has also not been proved. This plea",,,,
was also not taken in the written statement and has been taken for the first time in the evidence by way of affidavit filed by the defendant and hence,,,,
was beyond the pleadings and could not be considered. Moreover, the daughter of the defendant was aged 18 years at the time of alleged transfer of",,,,
₹7.50 crores. She claimed that she had started earning after the age of 18 years. There is no material on record to show how she earned the amount,,,,
within a short period. Be that as it may, mere transfer of ₹7.5 crores from the account of the daughter of defendant in 2010 would not prove even by",,,,
preponderance of probability that an agreement to sell in respect of the second floor of the suit property had been entered into between the defendant,,,,
and his daughter.,,,,
22.4 The plaintiff having proved the two agreements to sell dated 9t h July, 2012 and 14t h July, 2016 coupled with proving having paid to the",,,,
defendant a total sale consideration of ₹12,81 crores out of ₹18.50 crores and also showing his readiness and willingness to perform his part of the",,,,
obligation by preparing demand draft in the name of defendant for a sum of ₹5.69 crores on 27t h February, 2017, and the plaintiff having paid nearly",,,,
2/3rd of the payment, the plaintiff is entitled to a decree of specific performance against the defendant. Consequently, this issue is also decided in",,,,
favour of the plaintiff and against the defendant.,,,,
23. Issue No. (vi) Relief,,,,
23.1. In view of the discussion aforesaid the suit is decreed in favour of the plaintiff and against the defendant directing a decree of specific,,,,
performance of the agreement to sell dated 14t h July, 2016 executed between the plaintiff and the defendant. The plaintiff would deposit a sum of",,,,
₹5,69,00,000/-alongwith interest @ 8% per annum from 27t h February, 2017 till the date of deposit which will be made in this Court within eight",,,,
weeks, whereafter the defendant would execute a sale deed in respect of the suit property in favour of the plaintiff within four weeks thereafter and",,,,
in case the defendant fails to execute the sale deed in favour of the plaintiff within four weeks of the deposit of the amount, an officer of this court",,,,
would execute the sale deed in favour of the plaintiff. The defendant is also directed to hand over vacant and peaceful possession of the suit property,,,,
to the plaintiff within four weeks of the execution of the sale deed in favour of the plaintiff.,,,,
24. A cost of ₹50,000/- is allowed in favour of the plaintiff and against the defendant.",,,,
