Delhi High Court
Vijay Kumar Gupta & Anr vs Vinod Aggarwal & Ors on 18 February, 2020
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 18.02.2020
+ RSA 29/2020
VIJAY KUMAR GUPTA & ANR ..... Appellants
Through Mr.Shafiq Khan, Mr.Tariq
Muneer and Ms.Mekhala
Srivastava, Advs.
versus
VINOD AGGARWAL & ORS ..... Respondents
Through Nemo
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
CM No.6517/2020 (Exemption)
Allowed, subject to all just exceptions.
RSA 29/2020 & CM Nos.6518-19/2020
1. This appeal has been filed challenging the judgment and order
dated 19.09.2019 passed by the learned Additional District Judge-03,
South-West, Dwarka Court, New Delhi in Regular Civil Appeal
No.54669/2016, titled Vijay Kumar Gupta & Anr. v. Vinod Aggarwal
& Ors.
2. By the Impugned Judgement and Order, the learned Appellate
Court was pleased to dismiss the appeal filed by the appellants herein
RSA No.29/2020 Page 1
against the judgement and order dated 14.12.2015 passed by the
learned Civil Judge, South-West, Dwarka Court, New Delhi in Civil
Suit No.93/2011, titled Vijay Kumar Gupta & Anr. v. Vinod
Aggarwal & Ors., by which the learned Trial Court was pleased to
dismiss the suit filed by the appellants herein.
3. In the suit filed by the appellants, the appellants had inter-alia
challenged the Sale Deed dated 24.11.2006 executed by the appellant
no.2 in favour of the respondent nos.1 and 2, as having been obtained
by exercising fraud on the said plaintiffs. It was further asserted that
the suit property was in fact owned by the appellants/plaintiffs
together having been purchased by a Sale Deed dated 29.09.2006.
4. The learned Trial Court by its judgement and order dated
14.12.2015, dismissed the suit holding the same to be barred by the
limitation. The learned Trail Court has observed as under:
"12. I have heard the submissions made on behalf of
parties and have also perused the record. A bare
perusal of the plaint show that plaintiffs have alleged
that they have come to know about the existence of sale
deed in question only on 28.12.2010 when Sh. Rajiv
Aggarwal has shown the aforesaid sale deed to the
plaintiffs. However, during his cross examination dated
12.08.2015 he was found taking contradictory stands in
this regard. In the first instance, he has deposed that
impugned sale deed was not available with Sh. Rajiv
Aggarwal and Sh. Sushil Gahlot on that day. However,
subsequently, he changed his stand and deposed that
sale deed executed by him in favour of defendants was
produced by them on that day. Thereafter, it was
deposed by him that they have not informed him in the
police station that defendant nos.1 & 2 have further sold
the suit property to anyone else on the basis of
RSA No.29/2020 Page 2
impugned sale deed. It is highly improbable as to why a
person will show a sale deed executed by plaintiff no.2
in favour of defendant nos.1 & 2, to the plaintiffs when
he is not claiming any title through defendant nos.1 and
2. Thus, there was no occasion for Sh. Rajiv Aggarwal
to show impugned sale deed executed by plaintiff no.2 in
favour of defendant nos.1 and 2 inasmuch as they have
not informed plaintiffs that defendant nos.1 and 2 have
further sold the suit property to anyone else including to
him on the basis of impugned sale deed. The entire plea
of plaintiffs regarding acquiring knowledge of existence
of impugned sale deed on 28.12.2010 is accordingly an
afterthought and seems to have been falsely taken by
plaintiffs merely to make out a ground to bring their suit
within limitation.
xxx
14. In the present case, plaintiff no.2 has not even
denied the execution of sale deed and that he has
appeared before the Sub-Registrar for registration of the
same. His only explanation is that the defendants have
got signatures of plaintiff no.2 on the sale deed under
the pretext that defendant no.2 was signing the sale deed
as a witness.
15.The deposition of PW1 in para 15 of his affidavit in
this regard is beyond pleadings inasmuch as there is not
even a single whisper about the aforesaid fact in the
entire plaint of plaintiffs. Even otherwise, plaintiff no.2
is admittedly not only a graduate but also a businessman
and but for wilful abstention from enquiry or search
which he ought to have been made, he would have
known that the document he was signing was a sale deed
and he was signing the same as a vendor. As has
already been observed that plaintiffs have failed to
prove that they had come to know about the existence of
sale deed on 28.12.2010 as alleged by them and thus it
can safely be inferred that they had been aware of
RSA No.29/2020 Page 3
existence of sale deed since the date of its execution and
registration."
5. The learned Appellate Court has affirmed the finding of the
learned Trial Court by the Impugned Judgement and Order dated
19.09.2019, observing as under:
"14. It is apt to note that issue No. (ii) and (vi) have
been decided against plaintiffs after detailed discussion
and Ld. Trial Court has observed that vague allegations
of fraud upon plaintiff No.2 was averred in the plaint
without stating particulars of alleged fraud as per the
requirement of Order VI Rule 4 CPC and plaintiff No.2
in para 15 of his affidavit Ex.PW-1/A has stated for the
first time that his signatures were obtained upon sale
deed dated 24.11.2006 under the pretext that he was
signing the document as witness.
xxx
16. It is also significant to note that plaintiffs (appellants
herein) have averred that suit property is a disputed
property as various sale deeds have been executed in
respect of the property including sale deed executed by
Sh. Rajiv Agganwal in favour of Sh.Pawan Aggarwal
and another sale deed executed in favour of Sh. Sushil
Gahlot.
17. Plaintiffs' contention that plaintiff No.2 had gone to
the office of Sub-Registrar and signed the documents as
witness without any intention to execute sale deed in
favour of defendants (raised for the first time in para 15
of affidavit Ex.PW-1/A) for alleging fraud has failed to
convince Ld. Trial Court who has observed that such
averment in the affidavit is beyond pleadings and
plaintiffs having failed to produce original sale deed
dated 29.09.2006 or place certified copy thereof have
failed to discharge the onus to prove that impugned sale
RSA No.29/2020 Page 4
deed was executed in favour of defendant by playing
fraud upon plaintiff No.2.
18. It is apt to note that no complaint has been filed
against defendants before any authority and plaintiff
No.2 having signed each page of sale deed dated
24.11.2006 as vendor cannot feign ignorance about
execution of sale deed by claiming that he had signed
the document which was registered in the office of Sub-
Registrar as witness for claiming that he had no
knowledge of existence of impugned sale deed till
28.12.2010 when Sh. Rajiv Aggarwal allegedly came to
the property along with sale deed executed in favour of
Shri Vinod Aggarwal and Shri Ratan Aggarwal."
6. The learned counsel for the appellants submits that alongwith
the appeal, the appellants had filed an application under Order XLI
Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to
as 'CPC') seeking to bring on record the certified copy of the Sale
Deed dated 29.09.2006, the learned Appellate Court, however, without
deciding the said application proceeded to dismiss the appeal filed by
the appellants. He submits that this would be a procedural
impropriety.
7. I have considered the submissions made by the learned counsel
for the appellants, however, find no merit in the same.
8. Having perused the application under Order XLI Rule 27 CPC
filed by the appellants, I find that there was no reason given by the
appellants for not having produced the certified copy of the above
stated Sale Deed before the learned Trial Court. Be that as it may, the
suit has been dismissed on the ground of limitation. For the purposes
of determination of the same, the date of execution of the Sale Deed
RSA No.29/2020 Page 5
dated 24.11.2006 was of no relevance. Both the learned Trial Court as
also the learned Appellate Court found the said issue against the
appellants holding that the appellant no.2 having admitted of going to
the office of the Registrar of Documents and executing the documents,
his plea of lack of knowledge of contents of the said document, could
not be believed. In that view, the production of the Sale Deed dated
29.09.2006 would have lost all its significance. It must be remembered
that the Suit has been filed by plaintiff no. 2, who executed the Sale
Deed dated 24.11.2006 claiming himself to be the General Power of
Attorney of the person who, even the plaintiffs allege, was the original
owner.
9. The learned counsel for the appellants further submits that the
sale consideration mentioned in the Sale Deed dated 29.09.2006 is of
Rs.16,80,000/- as against only Rs.70,000/- mentioned in the Impugned
Sale Deed dated 24.11.2006. It again, in my opinion, would be
irrelevant as the suit has been dismissed on the ground of limitation,
having disbelieved the story of the appellants that the appellant no.2
was not aware of the contents of the document that he had executed.
In any case, inadequacy of consideration cannot be the ground for
challenging the contract.
10. The learned counsel for the appellants further submits that from
the cross examination of the respondent no.1, it was evident that the
respondent no.1 was aware of the execution of the Sale Deed dated
29.09.2006 in favour of the appellants. Having perused the entire
cross examination, I do not find any merit in the said submission.
RSA No.29/2020 Page 6
11. I may herein note that the present appeal has been filed with the
delay of 37 days in filing. Though, prima facie I find sufficient reason
having been made out for condoning the delay, for the reasons stated
hereinabove, I find no merits in the appeal.
12. In view of the above, the appeal is dismissed. There shall be no
order as to cost.
NAVIN CHAWLA, J
FEBRUARY 18, 2020/Arya
RSA No.29/2020 Page 7
