Romi Garg vs Lalit Modi
2020 Latest Caselaw 1828 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Reserved on: September 16, 2019
                                        Decided on: May 14th, 2020

+                          CS(OS) 109/2017

ROMI GARG                                                        ..... Plaintiff
                    Represented by:     Mr. B.B. Gupta, Sr. Adv. with Ms.
                                        Nandani Sahni, Adv.
                           versus

LALIT MODI                                                   ..... Defendant
                    Represented by:     Mr. Ashutosh Gupta, Mr. Gaurav
                                        Rana, Advs.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By this suit, the plaintiff inter alia seeks a decree of specific performance of the agreement to sell dated 14th July, 2016 which is in continuation of agreement to sell dated 9th 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 8th January, 1991 leaving behind his wife Smt. Sharda Bajpai, three sons and three daughters, who all acquired 1/14th 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 10th 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 9 th 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 9 th 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 9th 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 14th 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 14th 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 14th July, 2016, also informing him about the issuance of the demand draft in the name of the defendant. On 27th 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 9th 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 14th 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) Relief"

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 9th 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 10th 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 exhibited as Ex.PW1/9 with the consent of learned counsels for the parties. The witnesses also stated that each page of the agreement to sell bore his signatures as well as that of the defendant. The original agreement to sell dated 14th July 2016 along with the original receipt of the same date executed and duly signed by the parties was proved as Ex. PW-1/2 and Ex. PW-1/3 respectively. Extension letter dated 12th December 2014 executed between the parties was proved as Ex. PW-1/4. Letters dated 20th February 2017 calling upon the defendant to perform his obligations under the agreement to sell and 27th February 2017 informing the defendant about the issuance of demand draft in his name were proved as Ex. PW-1/5 and Ex. PW-1/6 respectively. True copy of demand draft dated 27th February 2017 of ₹5,69,00,000/- in favour of the defendant was proved as Ex. PW-1/7. In his cross-examination, he stated that the agreement to sell dated 9th July 2012 was not registered since the parties had mutually agreed that it was not necessary. The stamp papers were to be purchased by the defendant and therefore he had no knowledge as to where they were purchased from. The agreement was executed at the office of the Plaintiff at E-257, G.K. Part II, New Delhi. He identified his signatures on the agreement and confirmed the same. On further cross-examination, he clarified that the price of the suit property was mutually agreed between the parties despite prevailing circle rates. There was no black money involved in the present transaction and that the value of the property in the year 2012 was ₹18.50 Crore. He was unaware of the present value of the suit property. He further stated that ₹ 2,94,00,000/- was paid to the defendant, Mr. Modi in cash and the same has been accepted by him in the agreement. Payment of ₹41,00,000/- has also

been admitted by the Plaintiff in the agreement. He was unaware that cash transactions of such large amounts are barred by law. He had paid the said amounts in cash since payment was requested to be made through this mode. Both the aforesaid amounts were paid to the defendant between 2010 and 2012. He stated that Mr.Anup Garg was his brother and Mr. A.P. Gupta his close friend since 2007. He further stated that construction of the suit property was nearly complete in the year 2012 and during the said period, work was being carried out on the first floor and only the finishing work remained on the other floors. He made a payment of ₹10,81,00,000/- through cash and cheques and the same is reflected in his ITR statement and the original receipts of the said transaction were destroyed when the new agreement to sell dated 14th July, 2016 was executed between the parties. The original agreement to sell dated 9th July 2012 was destroyed at the time of execution of the new agreement as the Defendant did not wish to enter into two agreements pertaining to the suit property. He arranged most of the payments himself and part payments were arranged from his family and friends. He paid a sum of ₹5.46 Crore himself and borrowed ₹6.85 Crore from his brother, Mr. Kapil Garg. He also borrowed a sum of ₹50,00,000/- from M/s. Diya Properties Pvt. Ltd. which was owned by his friend's wife. He further clarified that he wrote a letter on 20th February 2017 to the defendant with respect to grant of extension of time. He agreed to the extension of time as he was blackmailed to do so by family members of Mr.Modi. He stated that he would not be able to assess the current market value of the suit property as its ownership is presently disputed; however, he assessed the value of the property in 2012 at ₹18.50 Crore. He further stated that he was requested to purchase the stamp paper but the defendant never

informed him as to when the stamp paper had to be purchased. In the month of February in 2017, he was informed by the wife of the defendant, Mrs.Rajul Modi that the defendant has gone underground and is untraceable. PW-1 also stated that he was informed by some brokers, one of whom was Mr. G.S. Shukla that the defendant was trying to sell the suit property through them. He stated that the address of the Defendant in Dubai was given to him by the defendants' family where he met the defendant a number of times in person.

9. A.P. Gupta, PW-2, tendered his evidence by way of an affidavit vide Ex. PW-2/A. In his cross-examination, he stated that although he had not gone through the agreement himself, however, he was apprised of its contents and terms by the plaintiff. He specified that on 9th July, 2012 when he reached the workplace of the plaintiff, Mr. Kapil Garg was not present there at the time. PW-2 stated that he shares a family relationship with Mr. Anup Garg and that both witnesses to the agreement had signed the document in the presence of each other. He had no knowledge from where the money had been arranged by the plaintiff and is certain that he has not discussed the agreement or any of its contents with the family members of the plaintiff. He also stated that he does not have any knowledge of the form in which ₹ 2.94 Crore was paid to the Defendant and was not a witness to such payment being made. He clarified that the agreement to sell was executed at the office of the Plaintiff. According to him, the plaintiff entered into the present agreement since the agreement signed in 2012 had become old and the defendant did not want to sign two agreements for the same property. He further stated that the agreement dated 9th July 2012 was torn in

his presence by Mr. Modi as extension of time was granted several times and thus by mutual consent, the second agreement was entered into. He also stated that he was a witness to the execution of the receipt.

10. Purshottam Keshwani, PW-3, tendered his evidence by way of an affidavit vide Ex. PW-3/A. In his cross-examination, he stated that he has known the plaintiff in the capacity of a friend since 2011-2012. He stated that on the day of signing of the agreement, the plaintiff, the defendant and two other witnesses were present but Mr. Kapil Garg was not present. He also stated that he does not recall the contents of the agreement dated 14th July 2016. A sum of ₹2 crores was given to the defendant in the presence of PW-3 however, he does not have any knowledge of the source of the said amount. He further stated that he became aware of the erstwhile 2012 agreement only on 14th July 2016 i.e. the date of signing of the new agreement and was unaware of the reasons for which it was entered into. He also stated that the agreement dated 9th July 2012 was torn in his presence by Mr. Modi with the mutual consent of both parties.

11. Anup Garg, PW-4, tendered his evidence by way of an affidavit vide Ex. PW-4/A. In his cross-examination, he stated that the agreement to sell dated 9th July 2012 was signed at the office of the Plaintiff. He clarified that the said agreement was not a Builder-Buyer Agreement. He stated that he was not aware of all the terms and conditions of the agreement but he knew that the suit property was agreed to be purchased and a sum of ₹41 Lacs was paid to the defendant in his presence. He is not aware of the payment of ₹2.94 Crore to the defendant and was not a witness to the said transaction. He stated that he knows Mr. A.P Gupta as a family friend. He also stated

that an amount of ₹10.81 Crore was agreed to be paid to the Defendant by way of cash/cheque/RTGS and other transfers. Although the agreement to sell dated 9th July 2012 was not torn in the presence of PW-4, however, he was apprised of the same after the filing of the present suit.

12. Sh. Anil Kumar Yadav, PW-5 brought on record and proved the sale deed dated 10th April, 2008 in favour of the defendant.

13. Vatsala Rai, PW-6, stated that she had filed her report along with the annexures on 23rd March, 2017. In her cross-examination, she stated that on the day when she inspected the property, she found that construction had taken place on the ground floor, first floor and half of the second floor. Essentially, according to PW-6, construction had taken place on the entire plot. She also stated that she met Sonia and Rajul Modi who claimed to be the family members of the defendant. She did not find any other person at the time who claimed himself to be the owner of the suit property.

14. Narendra Kumar Mehta, PW-7, brought with him 6 original cheques in favor of the defendant. The originals of the said cheques along with credit entries were seen and returned. The particulars of the said cheques are as under:

   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 aforesaid transfers were accompanied by a Debit Slip dated 26th August 2015 for ₹ 50,00,000/- by Mr. Kapil Garg in favor of Mr. Lalit Modi through RTGS. In his cross examination, he stated that at the time when the transaction took place, he was not the Manager of the bank and has deposed only on the basis of the relevant record available with the bank.

15. The defendant examined himself as DW1 and his daughter Sonia Modi as DW2.

16. Defendant tendered his evidence by way of an affidavit being Ex. DW-1/A. In his cross examination, the defendant stated that he conducts business in the real estate sector. He denied the suggestion that there were major contradictions or variations in his Written Statement. He had no friendly relations with the Plaintiff but he was a friend of his brother that is Mr. Kapil Garg and it is through him that the parties to the present suit came to know each other. He further stated that he was the owner of the suit property and has remained in exclusive possession of the suit property since the execution of the sale deed dated 10th April 2008. He stated that it was incorrect to suggest that the Plaintiff had approached him in June 2012 to sell the suit property vide agreement dated 9th July 2012. He had signed the extension letter dated 12th December 2014 but he had not signed the document as an extension letter. He also stated that no amount was fixed between the parties as sale consideration for the suit property and that he did not sign any agreement under which the sale consideration was fixed to be ₹18.50 Crore out of which ₹3.35 Crore was acknowledged to be received by

him from the Plaintiff. He further denied the suggestion that the plaintiff offered him balance amount of sale consideration to complete the sale process by executing the sale deed in favor of plaintiff qua the suit property. He also stated that he was unaware of the circle rates for the suit property in the year 2012. DW-1 also denied the suggestion that the plaintiff had paid an amount of ₹ 2,94,00,000/- to him. He stated that he had received letters dated 20th February 2017 and 28th February 2017 which were written by the plaintiff and the same were sent to him by his family along with the specimen of the sale deed dated 28th February 2017 as he was in Dubai at that point in time. He denied the suggestion that he had signed the agreement dated 14th July 2016 in the presence of the plaintiff and two attesting witnesses. He further stated that he has received payments through cheque and RTGS transfer only. He had given the original title deeds to M/s. BDR Builders and Developers Pvt. Ltd. as a security in respect of the loan taken by him from them. He further stated that he was compelled to hand over the original title deeds by M/s. BDR Builders and Developers Pvt. Ltd and was made to sign blank cheques and papers including the stamp papers at the time of taking the alleged loan from M/s. BDR Builders and Developers Pvt.Ltd. Despite raising objections, they continued to pressurize him. He stated that the plaintiff had met him in Dubai in 2016-17 but no conversation with respect to the suit property took place between the two parties. He further stated that he was forced to leave India on account of the pressure created by M/s. BDR Builders and Developers Pvt. Ltd. He also stated that he was informed about the visit of the Local Commissioner to the suit property. He stated that he was not willing to execute the sale deed in favor of the plaintiff for the suit property.

17. Affidavit by way of evidence was tendered by Ms. Sonia Modi vide Ex. DW-2/A and her bank statement was proved as Ex. DW-2/1. During the course of her cross-examination she admitted that she has not filed the unregistered agreement dated 29th July 2010. She was also not aware whether her father has filed the same or not. The main source of her income was through investments such as in Mutual Funds. She earned ₹7.5 Crore through her investments to pay the sale consideration for the alleged agreement to sell dated 29th July 2010. She stated that she was unaware of the facts and circumstances of the present suit and did not have any knowledge about the execution of the agreement to sell dated 9th July 2012 qua the suit property. She was also not aware of any new agreement to sell entered into between the parties for sale of the suit property. DW-2 stated that she had no knowledge of payment of ₹12.81 Crore to her father. She informed the Income Tax Authorities regarding execution of the agreement to sell dated 29th July 2010 between the parties but she does not recall when the same was done. She further stated that she resides on the second floor of the suit property and has never claimed any legal rights in the same. She recalled the visit of the Local Commissioner to the suit property but she does not recall whether she claimed any legal rights in the suit property at that time. She further denied the suggestion that the plaintiff had never taken or misused alleged blank signed papers with signatures of Mr. Modi to create forged agreements.

18. Issue No.(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 Delhi-110057?OPP

18.1 Learned counsel for the plaintiff contended that the agreement to sell dated 9th July 2012 and 14th July 2016 were executed between the parties to the suit. The erstwhile 2012 agreement was executed by the defendant in the presence of two attesting witnesses namely Mr. Anup Garg and Mr. A.P. Gupta and the agreement dated 14th July 2016 was executed in the presence of Mr. A.P Gupta and Mr. Purshottam Keshwani.

18.2 Learned counsel for the defendant contended that the aforementioned agreements were never executed between the parties to the present suit as the second floor of the suit property was sold to Ms. Sonia Modi who is the daughter of the defendant vide agreement to sell dated 29th July 2010 for a consideration of ₹7.15 Crore. The said amount was paid by Ms. Modi to the defendant through six cheques drawn in his favour from Union Bank of India. The Bank Account Statement of Ms. Modi was placed on record as DW-2/1 which shows that sale consideration was paid from the account of Ms. Modi to the defendant. DW-2 also established that possession of the second floor of the suit property was handed over to her by the defendant. In light of the above, it becomes clear that the defendant could not have entered into an agreement to sell in respect of the entire suit property. Since the plaintiff had not made Ms. Modi a party to the present suit, the same is liable to be dismissed on the ground of non-joinder of necessary party. The alleged agreement to sell dated 14th July 2016 cannot be specifically performed as it was allegedly executed in continuation of the previous alleged agreement to sell dated 9th July 2012. The agreement to sell dated 9th July 2012 was torn and no original copy of the same is available with the plaintiff. The plaintiff

was also not able to prove that the agreement to sell dated 9th July 2012 was executed by the defendant.

18.3 The genuineness of the agreement to sell dated 9th July 2012, copy whereof is exhibited as Ex.PW-1/9 was affirmed by Anup Garg (PW-4) who stated during the course of his examination-in-chief and cross-examination that the aforementioned agreement was first signed by the defendant, then the plaintiff followed by the two attesting witnesses. The agreement to sell dated 9th July, 2012 was also affirmed by Mr.A.P.Gupta (PW-2) who was present when the agreement was executed. Moreover, copy of the agreement to sell dated 9th July, 2012 has been duly proved and exhibited after both the learned counsels permitted its exhibition. The execution of the agreement to sell dated 14th July 2016 has also been established by the testimony of Mr. Romi Garg (PW-1), Mr. Purshottam Keshwani (PW-3) and Mr.A.P.Gupta (PW-2) who all stated during the course of their examination-in-chief and cross-examination that the agreement was first signed by the defendant and then the plaintiff followed by the two attesting witnesses.

18.4 The defendant has been unable to disprove the testimonies of the plaintiff's witnesses and the fact that the agreement to sell dated 9th July 2012 was destroyed/torn by the defendant has been proven by the statements of the plaintiff and Mr.Purshottam Keshwani. Plaintiff had expressly clarified at the stage of his deposition that it was he who gave the agreement to the defendant to destroy the same and this was done with the mutual consent of both parties to the agreement. The plaintiff also explained the reason for destruction of the said agreement to sell to be at the instance of

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 9th July, 2012 and 14th 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 27th February 2017 along with a draft Sale Deed dated 28th 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 14th 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 29th 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 9th July, 2012 and 14th 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 27th 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 14th 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 27th 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.

(MUKTA GUPTA) JUDGE MAY 14, 2020 akb/sk