Punjab-Haryana High Court
Chandgi Ram And Others vs M/S Benchmark Infotech Pvt. Ltd. And ... on 7 November, 2025
RSA-2918-2025 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2918-2025 (O&M)
Reserved on :-29.09.2025
Pronounced on :-07.11.2025
Chandgi Ram and Others
... Appellants
Versus
M/s Benchmark Infotech Pvt. Ltd. and Others
... Respondents
****
CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL
Argued by :-
Mr. Akshay Bhan, Senior Advocate along with
Mr. Santosh Sharma, Advocate,
Mr. Varun Sandhu, Advocate and
Mr. Ashutosh Dhankar, Advocate for the appellants.
Mr. Aashish Chopra, Senior Advocate, with
Ms. Rupa Pathania, Advocate,
Mr. Abhinav Kaushik, Advocate and
Ms. Nitika Sharma, Advocate,
for caveator/respondents No.1 and 2.
Mr. Amit Jhanji, Senior Advocate along with
Dr. Eliza Gupta, Advocate,
Mr. Anhad Batta, Advocate
for respondent No. 3.
****
VIRINDER AGGARWAL, J.
1. The appellants have preferred the present Regular Second
Appeal (here-in-after referred to as "RSA") under Section 41 of the Punjab
Courts Act, 1918, impugning the concurrent judgments and decrees passed
by the learned Courts below. By virtue of the impugned judgment and
decree dated 17.04.2025, the learned Additional District Judge, Gurugram,
while deciding the appeal preferred by the appellants/plaintiffs, has modified
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and to some extent reversed the judgment and decree dated 22.03.2024
rendered by the learned Civil Judge (Junior Division), Gurugram.
1.1. The gravamen of the present appeal is that the findings recorded
by both the learned Civil Judge (Junior Division) and the learned Additional
District Judge, Gurugram, are vitiated by errors of law and fact, being
premised upon a manifest misappreciation and misapplication of evidence
on record. It is further contended that such findings have resulted in
substantial injustice and grave prejudice to the appellants, thereby
necessitating the interference of this Court in exercise of its appellate
jurisdiction under the aforesaid statutory provision.
2. For the sake of clarity and convenience, the parties shall
hereinafter be referred to by their respective status as they stood before the
Learned Trial Court. The salient and material facts forming the foundation
of the present proceedings, which are essential for an informed adjudication
of the issues, are briefly narrated as follows:-
"In brief, the plaintiffs' case is that plaintiff No. 1 entered
into a Collaboration Development Agreement dated 09.12.2006
(here-in-after to be referred as "the 2006 Agreement") with
defendant No. 1 concerning agricultural land measuring 78
Kanals 5 Marlas (9.85 Acres), situated within the revenue estate
of Village Dhorka, Tehsil and District Gurugram (hereinafter to
be referred as "the suit land"). Under the said agreement,
defendant No. 1 paid a non-refundable security deposit of
₹10,00,000 and undertook to develop a Group Housing
Complex/Commercial Complex/ Cyper Park/IT Project at its
own cost after obtaining requisite sanctions and approvals from
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the competent authorities. Defendant no. 1 was obliged to
secure a Letter of Intent (for short 'LOI') from the Director
General, Town & Country Planning, Haryana, within 12 months
(extendable only with mutual written consent). Failure to obtain
the LOI within the stipulated period was to render the
agreement terminated, extinguishing all rights of defendant no.
1 in the suit land.
Clause 13 of the 2006 Agreement provided for allocation
of developed areas on a "good-out-of-good" and "bad-out-of-
bad" basis, proportionately between the parties. The defendant
was required to complete construction within 36 months of
receiving vacant possession, extendable by 24 months upon
payment of penalty, beyond which no further extension was
permissible. In case of default, the plaintiff was entitled to
terminate the contract and get the project completed through
another agency. Though the plaintiff executed an 'Irrevocable
General Power of Attorney and a Special Power of Attorney' in
favour of defendant No. 1, the latter failed to adhere to the
agreed terms and to obtain necessary approvals.
Subsequently, defendant no. 1 requested execution of a
fresh Collaboration Agreement, to which the plaintiff acceded,
resulting in the execution of a Collaboration Agreement dated
27.12.2013 (here-in-after to be referred as "the 2013
Agreement"), duly registered with the Sub-Registrar,
Gurugram (Vasika No. 22706). Under this arrangement,
defendant No. 1 agreed to pay a total sum of ₹2,46,25,000,
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inclusive of the earlier deposit of ₹10,00,000, comprising
₹50,00,000 as non-refundable security and ₹1,96,25,000 as
refundable security. Defendant No. 1 undertook to deliver the
plaintiffs' share within five years of obtaining the sanctioned
building plans, failing which it was liable to pay ₹10,00,000 per
month as penalty until offer of possession. Corresponding
General and Special Powers of Attorney (Vasika Nos. 1347 &
1348, dated 27.12.2013) were executed in defendant No. 1's
favour.
Thereafter, under pressure from defendant Nos. 1 and 2,
the plaintiff executed a Supplementary Agreement dated
28.03.2014 ("the Supplementary Agreement"), necessitated
by developments following the decision in CWP No. 19050 of
2012 by this Court on 23.01.2014. Based on the 2006, 2013,
and Supplementary Agreements, along with the GPA and SPA,
defendant No. 3 applied to the DGTCP-Haryana and obtained
License No. 103 of 2014 (LC-1257). Upon inspection of this
license, the plaintiff discovered that defendants Nos. 1 to 3 had
deceitfully procured the license for 7.85 acres only, wrongfully
excluding 2 acres of the suit land, thereby causing significant
loss to the plaintiffs.
Initially, the plaintiffs were informed that Floor Space
Index (FSI) in Sector 95, Gurugram had been exhausted, which
purportedly explained the exclusion. Later, however, it was
revealed that defendants Nos. 1 to 3 had collusively obtained
another License No. 153 of 2014 (LC-1257-D) dated 08.09.2014
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for an additional 5.88 acres, despite the entire land forming part
of the same sector where FSI was available at the time of the
earlier license. The plaintiffs further learned that the land
covered under License No. 153 had been independently
purchased by defendant no. 1, while defendant No. 3, a builder
of dubious reputation with multiple civil and criminal cases
pending against it, had misled the DGTCP-Haryana in obtaining
the said license.
Consequently, the plaintiff served a legal notice dated
17.09.2014 through counsel upon all defendants, including
DGTCP-Haryana, calling upon them to remedy the wrong. The
DGTCP, in its reply dated 06.05.2015, admitted that the
application for the 7.85-acre license had indeed been filed on
27.09.2010 and granted accordingly.
It was also averred that defendant No.1-M/s Benchmark
Infratech Pvt. Ltd. had earlier filed a suit for Declaration and
Permanent Injunction against the plaintiff, seeking enforcement
of the 2006 Agreement, Powers of Attorney, and MOU dated
19.01.2007. That suit was compromised and decreed on
14.01.2014. The plaintiffs now assert that the defendants, by
their deceitful acts and collusion, caused him grave financial
loss by wrongfully excluding 2 acres of his land from the
development license. Upon realizing this, the plaintiffs
demanded cancellation of all Collaboration Agreements,
Supplementary Agreement, and Powers of Attorney, but the
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defendants refused compelling the plaintiffs to institute the
present suit."
3. Upon issuance of notice, defendant No. 1 entered appearance
and filed its written statement raising several preliminary objections;
including that the suit was not maintainable, that the plaintiffs lacked locus
standi and a valid cause of action, and that the claim was barred by
limitation and vitiated by misjoinder of necessary parties. Defendant No. 1
further alleged that the plaintiffs had not approached the Court with clean
hands. It was averred that defendant No. 1, being a duly incorporated
company under the Companies Act, 1956 (and existing under the Companies
Act, 2013), had passed a Board Resolution dated 11.10.2017 authorizing
Mr.Sunil Wali to defend the present proceedings and to file a counterclaim.
The execution of the 2006 Agreement and receipt of ₹10,00,000 by the
plaintiff were admitted, along with the execution of the General and Special
Powers of Attorney in favour of the nominee of defendant No. 1. It was
pleaded that defendant No. 1 duly complied with its contractual obligations
under the 2006 Agreement, making substantial payments both to the
plaintiffs and to the statutory authorities towards license fees, scrutiny fees,
and related charges. However, the plaintiffs allegedly attempted to resile
from their commitments under the said agreement, compelling defendant no.
1 to institute a civil suit titled 'M/s Benchmark Infratech Pvt. Ltd. v.
Chandgi Ram & Ors.' before the Civil Judge (Junior Division), Gurugram,
seeking declaratory and injunctive reliefs.
3.1. During the pendency of that suit, the plaintiffs purportedly
made extraneous and unreasonable demands for additional monetary and
other benefits beyond the terms of the 2006 Agreement. In the interest of
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amicable settlement, defendant No. 1 acceded to these demands, resulting in
the execution of a fresh Collaboration Agreement dated 27.12.2013 along
with irrevocable GPA and SPA in its favour. Pursuant thereto, defendant No.
1 paid a total sum of ₹2,46,25,000 (inclusive of the earlier amount), and the
prior civil suit was compromised and decreed on 14.01.2014. Defendant
No. 1 contended that it has always been, and continues to remain, ready and
willing to perform its obligations under the 2013 Agreement. It asserted that
it expended crores of rupees towards scrutiny fees, license fees, External and
Internal Development Charges (EDC/IDC), and bank guarantees, as well as
for safeguarding the suit property. Consequently, License No. 103 of 2014
was granted by the Director General, Town & Country Planning, Haryana
(for short 'DGTCP').
3.2. The Supplementary Agreement dated 28.03.2014 was admitted,
under which both parties agreed to exclude the period between 23.01.2014
and the final decision in CWP No. 19050 of 2012 from the computation of
contractual timelines. Defendant no. 1 alleged that the plaintiffs, acting with
malice and intent to harass, issued a baseless legal notice dated 17.09.2014
demanding allocation of land corresponding to the entire 9.85 acres instead
of the 7.85 acres covered under the sanctioned license. These demands were
characterized as false, untenable, and beyond the contractual framework.
Defendant no. 1 refused to comply, leading the plaintiffs, allegedly
motivated by greed and an intent to extort unlawful gains, to file the present
frivolous and vexatious suit. During the pendency of the proceedings, the
plaintiffs purportedly approached defendant no. 1 with a proposal to settle
the dispute, expressing an urgent need for liquidity and offering to sell their
entire rights, title, and interest in the 9.85-acres suit land for a consolidated
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sale consideration of ₹17,73,00,000. Defendant no. 1 agreed, and the
plaintiffs consented to refund the earlier sum of ₹2,46,25,000 (received
under the 2013 Agreement) instead of adjusting it against the sale price.
Accordingly, a sale deed dated 08.09.2015 was executed, acknowledging
that defendant no. 1 was already in actual physical possession of the
property.
3.3. The entire sale consideration of ₹17.73 crores was paid through
five cheques of ₹3,00,00,000 each (Nos. 217701-217705 dated 07.09.2015)
and one cheque of ₹2,55,27,000, No. 217708 dated 08.09.2015), all drawn
on Axis Bank, Gurugram. The cheques were duly encashed by the plaintiff,
with ₹17,73,000 deducted as TDS. In addition, the plaintiff executed a
possession letter, Special Powers of Attorney, deed of declaration-cum-
undertaking-cum-indemnity bond, and a full and final payment receipt in
favour of defendant No. 1. Defendant No. 1 further asserted that, upon
execution of the sale deed dated 08.09.2015, the plaintiffs agreed to have it
registered and to withdraw the present suit. However, the plaintiffs allegedly
began evading his commitments by failing to appear before the Sub-
Registrar, Gurugram, despite repeated assurances. Later, citing ill health, the
plaintiff requested defendant No. 1 to proceed with registration through the
registered GPA already in existence, promising to withdraw the suit post-
recovery. Acting thereon, defendant No. 1 initiated the registration process,
but before completion, the plaintiff and his associates allegedly created a
scene and issued threats at the Sub-Registrar's office on 06.10.2015, thereby
obstructing registration.
3.4. It was further pleaded that defendant no. 1 had already
discharged the entire sale consideration and paid the requisite stamp duty
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and registration expenses. Despite this, the plaintiff continued to evade his
obligations, prompting defendant No. 1 to issue a legal notice dated
08.10.2015 through counsel, to which the plaintiff furnished a vague and
evasive reply dated 19.10.2015. Defendant No. 1 contended that it had
expended substantial sums and efforts in obtaining licenses and
conceptualizing the project, while the plaintiffs were misusing the judicial
process to unjustly enrich themselves. Consequently, defendant No. 1 sought
dismissal of the suit and filed a counterclaim for specific performance of the
sale contract dated 08.09.2015 and recovery of ₹2,46,25,000 (refundable
under the 2013 Agreement), along with pendente lite interest at 18% per
annum. Defendant No. 1 further denied that it had breached the terms of the
2006 Agreement or failed to adhere to its conditions. It maintained that it
was the plaintiff who had attempted to renege on his contractual obligations
and raise unlawful demands. The earlier civil suit titled as 'M/s Benchmark
Infratech Pvt. Ltd. v. Chandgi Ram & Ors.' was admitted to have been filed
due to such conduct, and its compromise decree dated 14.01.2014 was relied
upon. Defendant no. 1 accepted the execution of the 2013 Agreement, GPA,
and SPA dated 27.12.2013 but denied any coercion in executing the
Supplementary Agreement dated 28.03.2014, asserting that the same was
voluntarily entered into due to the interim stay imposed by this Court in
CWP No. 19050 of 2012.
3.5. The obtaining of License No. 103 of 2014 was admitted;
however, it was emphatically denied that any deceit was practiced upon the
plaintiff or that the exclusion of 2 acres caused him loss. It was contended
that the license was validly issued for 7.85 acres strictly in accordance with
the 2013 Agreement read with the Supplementary Agreement. The plaintiff's
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allegations regarding License No. 153 of 2014 were described as baseless,
speculative, and driven by mala fides. Defendant No. 1 also refuted
assertions regarding any pending criminal proceedings against defendant
No. 3 or any alleged misrepresentation before the DGTCP-Haryana.
Defendant No. 1 further submitted that defendant No. 2 had been
unnecessarily impleaded, as he had no personal role or interest in the
transaction. It was contended that no question of cancellation of the
Collaboration Agreements, Supplementary Agreement, or related Powers of
Attorney could arise in light of the subsequent sale deed dated 08.09.2015
executed by the plaintiff in its favour. All remaining averments of the plaint
were specifically denied, and dismissal of the suit was prayed for, along with
decree of the counterclaim and costs in favour of defendant No. 1.
"COUNTER-CLAIM FILED BY DEFENDANT/RESPONDENT NO.1"
4. In addition to filing its written statement, defendant No. 1 also
instituted a counter-claim, asserting that Plaintiff No. 1, being the absolute
owner of the suit property measuring 78 Kanals and 16 Marlas situated in
the revenue estate of Dhorka, Tehsil and District Gurugram, Haryana, had
executed the 2006 Agreement along with irrevocable GPA, SPA, and
ancillary documents in favour of Defendant No. 1, pursuant to which a sum
of ₹10,00,000/- was paid to the plaintiff. Defendant No. 1 duly performed its
obligations under the said agreement, having made substantial payments to
the plaintiff and to statutory authorities towards license fees, scrutiny
charges, and other expenditures. However, the plaintiff attempted to renege
on the contractual terms, compelling Defendant No. 1 to file a civil suit titled
"M/s Benchmark Infotech Pvt. Ltd. v. Chandgi Ram & Ors." in 2010 for
declaration and permanent injunction. During the pendency of that suit, the
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plaintiff acknowledged his default and entered into a compromise, leading to
the execution of a fresh the 2013 Agreement, duly registered along with
irrevocable GPA and SPA in favour of Defendant No. 1 and its nominees.
Under the said agreement, Defendant No. 1 paid an additional sum of
₹2,46,25,000/- to the plaintiff and subsequently obtained License No. 103 of
2014 for 7.85 acres of the suit land. The Supplementary Agreement was
thereafter executed to exclude the period affected by CWP No. 19050 of
2012 for the purpose of obtaining the Letter of Intent from the DGTCP.
Despite this, the plaintiff again adopted coercive tactics by issuing a baseless
legal notice dated 17.09.2014, prompting the filing of the present suit.
4.1. Defendant No. 1 contended that it has fully performed and
continues to remain ready and willing to perform all obligations under the
2013 Agreement and the Supplementary Agreement, having incurred crores
of rupees towards scrutiny fees, license fees, EDC, IDC, and bank
guarantees. The plaintiff, on the other hand, is alleged to have made frivolous
and extortionary demands with mala fide intent to extract unlawful monetary
benefits. During the pendency of the suit, the plaintiffs proposed an
amicable settlement, expressing a desire for immediate liquidity. Upon
consultation with his family, the plaintiff offered to sell all his rights, title,
and interest in the suit property measuring 9.85 acres to Defendant No. 1 for
a total consideration of ₹17,73,00,000/-. Defendant No. 1 accepted the
proposal, agreeing to bear all expenses related to stamp duty, registration,
and incidental charges. It was further agreed that the previously paid sum of
₹2,46,25,000/- under the 2013 Agreement would be refunded by the plaintiff
to Defendant No. 1 at the time of execution and registration of the sale deed,
rather than being adjusted in the sale consideration. Consequently, a sale
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deed dated 08.09.2015 was drawn, wherein the plaintiff acknowledged
Defendant No. 1's possession of the suit land and receipt of the entire sale
consideration of ₹17,73,00,000/- through cheques Nos. 217701-217705
(₹3,00,00,000/- each) dated 07.09.2015 and cheque No. 217708
(₹2,55,27,000/-) dated 08.09.2015, all drawn on Axis Bank, Gurugram.
These cheques were duly encashed, and ₹17,73,000/- was deducted as TDS.
The plaintiff also executed possession letters, SPAs, a deed of declaration-
cum-undertaking-cum-indemnity bond, and a full and final payment receipt
acknowledging receipt of the entire sale consideration and confirming
transfer of possession. The plaintiff agreed to have the sale deed registered
personally or through his attorney and to withdraw the pending suit.
4.2. However, despite amicable settlement, the plaintiff subsequently
avoided registration of the sale deed and failed to appear before the Sub-
Registrar, Gurugram, despite repeated requests. On the pretext of illness, the
plaintiff requested Defendant No. 1 to complete registration through the
registered GPA already executed in its favour, assuring withdrawal of the suit
thereafter. Acting upon this assurance, Defendant No. 1 initiated steps to
register the sale deed; however, on 06.10.2015, the plaintiff, in connivance
with associates, created a commotion at the Sub-Registrar's office,
preventing completion of registration. Defendant No. 1 contended that the
entire sale consideration and applicable stamp duty have already been paid
and that the plaintiff's conduct constitutes a deliberate breach and abuse of
judicial process. Having received full consideration, the plaintiff stands
bound by the sale deed dated 08.09.2015 and related documents. The
transaction is specifically enforceable, and all ownership rights now vest
exclusively with Defendant No. 1. The plaintiff's failure to complete
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registration, despite due consideration and performance by Defendant No. 1,
is mala fide and intended to harass. Defendant No. 1 remains ready and
willing to fulfill all obligations and bear all expenses for registration.
4.3. A legal notice dated 08.10.2015 was issued by Defendant No. 1
calling upon the plaintiff to complete registration of the sale deed and refund
₹2,46,25,000/-, but the plaintiff failed to comply, necessitating the present
counter-claim. It was further pleaded that the plaintiff had also applied for
allotment of residential units in the Group Housing Colony developed by
Defendant No. 1 in Sector 95, Gurugram, for which allotment letters dated
08.09.2015 were issued. Defendant No. 1 reiterated its readiness to transfer
said units and emphasized that the plaintiff, having received the full sale
consideration of ₹17,73,00,000/-, is legally bound to complete registration of
the sale deed and refund ₹2,46,25,000/-. It was alleged that the plaintiff, with
mala fide intent, seeks to create third-party rights in the property.
Accordingly, Defendant No. 1 prayed for a decree of specific performance of
the sale contract dated 08.09.2015, along with recovery of ₹2,46,25,000/-
and interest thereon.
"REPLY FILED BY THE PLAINTIFFS/APPELLANTS TO COUNTER-CLAIM"
5. The plaintiffs filed a detailed reply to the counter-claim, raising
preliminary objections as to its maintainability, estoppel, and mala fides on
the part of defendant No.1, asserting that the counter-claim was instituted
solely to cause wrongful loss to the plaintiffs. It was reiterated that the
plaintiffs continue to be the lawful owner in possession of the suit property.
While admitting the execution of the GPA, SPA, and other related documents
in favour of the counter-claimant, as well as the Collaboration Agreement
authorizing development of the land for a Group Housing/Residential
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Complex and receipt of ₹10,00,000/-, the plaintiff categorically denied that
the counter-claimant had duly performed its obligations under the said
agreement. The filing of Civil Suit titled as 'M/s Benchmark Infotech Pvt.
Ltd. v. Chandgi Ram & Ors.', in September 2010, and its subsequent
disposal on 04.01.2014 upon compromise, was not disputed. The
Collaboration Agreement dated 27.12.2013, execution of GPA and SPA, and
receipt of ₹2,46,25,000/- (inclusive of ₹10,00,000/- earlier received) were
also admitted. However, it was specifically denied that the defendant No.1
applied for a licence including 7.85 acres of the suit land or that it expended
substantial sums toward obtaining the same. The Supplementary Agreement
dated 28.03.2014 was acknowledged, but all other averments regarding
compliance, expenditure, and readiness and willingness on part of defendant
no.1 were denied.
5.1. It was asserted that the plaintiffs remained ready and willing to
perform his obligations, and that defendant No.1 was not entitled to claim
any interest on the principal amount, since its own illegal acts had rendered
the plaintiff's land unutilized for over twelve years. The plaintiff denied
having ever expressed disinterest in long-term collaboration or having
offered to sell his entire 9.85 acres for ₹17.73 crores. Plaintiffs further denied
the alleged agreement to refund or adjust ₹2,46,25,000/-, the alleged receipt
of ₹17.73 crores via cheques dated 07.09.2015 and 08.09.2015, and the
execution of possession letters, SPAs, indemnities, or receipts acknowledging
full payment. The plaintiff contended that defendant no.1's exclusion of 2
acres from the 9.85 acres covered by the Collaboration Agreement caused
him wrongful loss, compelling him to institute the present suit.
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5.2. It was further averred that during pendency of the suit, a
proposal for amicable settlement was initiated, whereby defendant No.1
agreed to compensate the plaintiff for the unlicensed 2 acres through
proportionate allocation in the constructed towers. Being an illiterate villager,
the plaintiff, relying on defendant's assurances, initially consented; however,
upon discovering that only inferior units near the EWS blocks were allotted
to him, contrary to the agreed pro-rata allocation across all towers, he
rejected the arrangement and returned the entire sale consideration of
₹17,73,00,000/-. The plaintiffs contended that the alleged sale deed dated
08.09.2015, executed merely at circle rate, is neither binding nor capable of
transferring any right, title, or interest to defendant no.1. He reiterated that
the entire consideration had been refunded by account payee cheques duly
encashed by the defendant. The plaintiff also asserted that documents such as
GPA, SPA, and affidavits in favour of defendant no.1 stood cancelled
contemporaneously with execution of the sale deed. It was alleged that
defendant no.1 had deceitfully opened an account in the plaintiff's name at
Axis Bank, Sector-46, Gurugram, and deposited the impugned cheques
therein. All allegations of unconditional execution, avoidance of registration,
or misconduct at the Sub-Registrar's office were emphatically denied. The
plaintiff maintained that defendant No.1 fabricated false evidence and
deliberately avoided settling the matter despite repeated offers to refund
₹2,46,25,000/-.
5.3. The plaintiffs further denied having applied for allotment of any
apartments in the Group Housing Colony being developed by defendant No.1
in Sector-95, Gurugram, or having received any allotment letters dated
08.09.2015. He characterized the alleged narrative concerning group housing
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allotments as false, concocted, and fabricated. The plaintiffs denied ever
having consciously executed a valid sale deed dated 08.09.2015 for
₹17,73,00,000/- or having received the alleged consideration.
5.4. The plaintiffs further denied any obligation to refund
₹2,46,25,000/- or any entitlement of defendant no.1 to a decree for specific
performance or recovery thereof with interest. The plaintiffs asserted that the
counter-claim is devoid of cause of action and is liable to be dismissed in
toto.
6. Subsequently, the counter-claimant filed a replication to the
reply of the counter-claim, wherein the assertions made in the reply were
specifically traversed and denied, while the statements, averments, and
claims set forth in the counter-claim were reaffirmed, reiterated, and relied
upon in toto.
6.1. Upon a comprehensive consideration of the pleadings of the
parties and the material placed on record, the Learned Trial Court, vide order
dated 13.08.2021, was pleased to settle and frame the following issues for
determination of the lis between the parties:-
1. Whether the plaintiff is entitled to decree for declaration with
consequential relief of permanent injunction as alleged on the grounds
taken in the plaint as prayed for? OPP
2. Whether the suit is not maintainable in the present form? OPD
3. Whether the plaintiff is estopped from filing the present suit by his
own acts and conduct? OPD
4. Whether the plaintiff has no locus standi and cause of action to file the
present suit? OPD
5. Whether the plaintiff has suppressed the true and material facts and
not come to the Court with clean hands? OPD
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6. Whether the suit has not been properly valued for the purposes of
court fee and jurisdiction? OPD
7. Whether the suit is bad for mon-joinder and mis-joinder for necessary
parties? OPD
8. Relief
Vide order dated 19.02.2024 following additional issues were framed:-
8. Whether the suit is under valued for the purpose of court fee and
jurisdiction?OPD
(It appears that, due to an inadvertent clerical error, the issue was
erroneously numbered as Issue No.8, in the judgment rendered by
the learned Trial Court.)
9. Whether the plaintiff has concealed the material facts? OPD
10. Whether the plaintiff agreed to sell his land measuring 9.85 acres to
defendant no. 1 for sale consideration of 17,73,00,000/- and also
executed sale deed dated 08.09.2015?OPD
11. Whether the defendant no. 1 is entitled to specific performance by way
of counter-claim?OPD
12. Relief.
7. The parties were afforded ample opportunity to adduce
evidence in support of their respective claims and defenses. Upon the
conclusion of evidence and after hearing learned counsel at length, the
learned Civil Judge (Junior Division), Gurugram dismissed the suit filed by
the appellants/plaintiffs and decreed counter-claim filed by
claimant/defendant No.1 and observed that "in view of the foregoing, the
counter-claim of Defendant No.1/counter-claimant is allowed with costs,
and the plaintiff's suit is dismissed. Defendant No.1/counter-claimant shall
receive ₹17,73,00,000 with 9% interest p.a. from the date of sale deed
(Ex.D7) until registration. The plaintiff is directed to execute the sale deed
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in favour of Defendant No.1 within 30 days and refund ₹2,46,25,000 with
9% interest p.a. from 27.12.2013 until realization." Aggrieved by this
judgment and decree, an appeal was filed before the learned Additional
District Judge, Gurugram, which was also dismissed by modifying the
learned Trial Court's judgment and accepted the counter-claim of
defendant/respondent No.1 observing that "The impugned judgment dated
22.03.2024 is modified as follows:-
(A) Plaintiff's suit is dismissed with costs.
(B) Counter-claim of Defendant No.1 is allowed, declaring
the Collaboration Agreement dated 27.12.2013,
Supplementary Agreement dated 28.03.2014, GPA
(Vasika No.1347), SPA (Vasika No.1348), and
possession letter valid, subsisting, and binding on the
plaintiff.
(C) Plaintiff shall execute the Collaboration Agreement
within three months, failing which Defendant No.1 may
approach the Court for enforcement.
The counter-claim is decreed, appeal is partly allowed,
parties shall bear their own costs."
8. The appellants have preferred the present appeal, assailing the
judgments and decrees rendered by the learned Courts below, which has
been duly admitted for hearing. Notice was served on the respondent, who
appeared through their counsel, and the records and proceedings of the lower
Courts were requisitioned for this Court's thorough scrutiny and
adjudication.
9. I have heard the learned counsel for both parties and have
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considered their submissions in light of the pleadings, evidence on record,
and the findings of the Courts below. The records have been carefully
scrutinized to assess the rival contentions and to determine 'whether the
impugned judgment and decree exhibit any legal infirmity, error of law, or
manifest perversity that would justify interference by this Court in the
present appeal'?
10. With regard to the scope of a second appeal, it is now a well-
settled proposition of law that, in Punjab and Haryana, second appeals are to
be treated as appeals under Section 41 of the Punjab Courts Act, 1918, and
not under Section 100 of the Code of Civil Procedure. In this context,
reliance may be placed on the judgment of the Supreme Court in
Pankajakshi (Dead) through LRs and Others v. Chandrika and Others,
(2016) 6 SCC 157, followed by Kirodi (since deceased) through LR v.
Ram Parkash and Others, (2019) 11 SCC 317, and Satender and Others
v. Saroj and Others, 2022 (12) Scale 92. In view of the legal position
established by these decisions, no substantial question of law arises that
necessitates framing in the present appeal.
11. Learned counsel for the appellants argued that during the
pendency of the first appeal, an application for adducing additional evidence
was duly filed before the learned First Appellate Court; however, the said
application was neither adjudicated upon nor decided concurrently with the
appeal. This omission, it was urged, has caused grave prejudice to the
appellants, as the proposed evidence was material to the determination of
respondent No. 1's readiness and willingness to perform the Collaboration
Agreement dated 2013. It is a settled proposition that where such an
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application remains undecided, the matter warrants remand for fresh
consideration along with the appeal.
11.1. Counsel further submitted that both courts below failed to
appreciate that the respondents, having approached the court with mala fide
intent and having suppressed material facts regarding sale consideration,
were disentitled to the equitable relief of specific performance. The
Collaboration Agreements of 2006 and 2013 were vague, lacking clarity
regarding the scope of construction and development obligations, rendering
them incapable of precise enforcement. The respondents' repeated
expressions of unwillingness to perform further disentitled them to such
relief.
11.2. It was also contended that the First Appellate Court erred in
decreeing specific performance of the Collaboration Agreement of 2013 and
the Supplementary Agreement of 2014, both of which stood superseded by
the subsequent Agreement dated 08.09.2015--rightly held to be
unenforceable owing to suppression of material facts. Moreover, the
appellants' suit was maintainable even without claiming possession, as the
relief of permanent injunction was already sought, and the law does not
mandate cumulative pursuit of all consequential remedies. Lastly, the
finding that the GPA and SPA executed by the appellants in favour of the
respondents were irrevocable under Section 202 of the Indian Contract Act,
1872, is manifestly erroneous and contrary to the settled legal position.
12. Conversely, learned counsel for the respondents/defendants
contended that no remand is warranted solely on account of the undecided
application for additional evidence, particularly in view of the principles
enunciated in Prabhu Dayal v. Hardevi (1994(1) PLR 398), Sohan Singh
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v. Gurmej Singh (2002(4) RCR (Civil) 703), Bhag Singh v. Chinmoy
Tapoovan Trust Yol Camp (CR-4453-2018, decided on 01.08.2018), and
Sukhdev Singh v. Lajwanti (2018 SCC OnLine P&H 7278), which hold
that remand is not the rule in every circumstance. It was argued that the
impugned findings suffer from neither perversity nor legal infirmity. The
irrevocability of the GPA and SPA executed by the appellants, as upheld by
the courts below by virtue of Section 202 of the Indian Contract Act
considering the substantial investment made by the respondents and the
development licence obtained was asserted to be legally unassailable. It was
further submitted that the agreement dated 08.09.2015 did not novate or
supersede the earlier Collaboration Agreements of 2006 and 2013 or the
Supplementary Agreement of 2014. Therefore, the concurrent findings being
lawful and well-reasoned call for no interference.
13. Upon a meticulous examination of the record, it is evident from
the interim order dated 29.07.2024, passed by the learned Additional District
Judge, Gurugram, that the appellants had filed an application under Order 41
Rule 27 CPC seeking leave to adduce additional evidence. A copy thereof
was duly supplied to the respondents, and the matter was adjourned to
10.10.2024 for filing a reply and for consideration of the said application. It
is an admitted position that the application remained undecided. Learned
counsel for the appellants contended that serious prejudice has been caused,
as the proposed additional evidence was crucial to establish the respondents'
lack of readiness and willingness to perform the collaboration agreements.
Hence, it was urged that the matter be remanded to the learned First
Appellate Court for adjudication on merits along with the pending
application. Reliance was placed on the judgment of the Hon'ble Supreme
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Court in Jatinder Singh & Another v. Mehar Singh & Others, (2009) 17
SCC 465, particularly paragraph 4 thereof, which is reproduced as under:-
4. While deciding the second appeal, however, the High Court had
failed to take notice of the application under Order 41 Rule 27 of
the Code of Civil Procedure and decide whether additional evidence
could be permitted to be admitted into evidence. In our view, when
an application for acceptance of additional evidence under Order
41 Rule 27 of the Code of Civil Procedure was filed by the
appellants, it was the duty of the High Court to deal with the same
on merits. That being the admitted position, we have no other
alternative but to set aside the judgment of the High Court and
remit the appeal back to it for a decision afresh in the second
appeal along with the application for acceptance of additional
evidence in accordance with law."
13.1 He further placed reliance on the dictum of the Hon'ble
Supreme Court in North Eastern Railway Administration, Gorakhpur v.
Bhagwan Dass (Dead) by LRs, (2008) 8 SCC 511, wherein the Court, in
analogous circumstances, held that when an application under Order 41 Rule
27 CPC remains undecided, the proper course is to remand the matter to the
appellate court for adjudication of the appeal along with such application.
Reference was made to paragraph 21 of the judgment, wherein the Hon'ble
Apex Court reiterated that non-consideration of an application for additional
evidence vitiates the appellate proceedings, relevant extract of the judgment
is as under:-
"21. In the result, the appeal is allowed and the judgment and orders
dated 17-7-2002 and 14-6-2005 are set aside. The matter is remitted
back to the High Court, which shall, after hearing the parties, take a
fresh decision on the applications preferred by the appellant under
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Order 41 Rule 27 and Order 6 Rule 17 CPC and thereafter form its
opinion afresh on the merits of the second appeal. We may clarify
that we have not expressed any final opinion on the merits of the
second appeal as well as the applications, which shall be considered
and disposed of by the High Court on their own merit in accordance
with law."
14. The authorities cited by learned counsel for the respondents,
namely Prabhu Dayal v. Hardevi (1994(1) PLR 398), Bhag Singh v.
Chinmoy Tapoovan Trust Yol Camp (CR-4453-2018, decided on
01.08.2018), and Sukhdev Singh v. Lajwanti (2018 SCC OnLine P&H
7278), pertain to rent petitions. It is well-settled that strict procedural
provisions of the CPC are not applicable to proceedings before Rent
Authorities, which are governed by the specific statutory framework of the
Rent Acts. Similarly, Sohan Singh v. Gurmej Singh 2002(4) RCR (Civil)
703) is based upon order of this Court in Prabhu Dayal's case (supra)
which was regarding a rent petition. In contrast, the authorities relied upon
by the appellants' counsel relate to ordinary civil proceedings. Further, in
Satish Chand Surana v. Raj Kumar Meshram, 2022(1) RCR(Civil) 598,
the Hon'ble Supreme Court reaffirmed that where an application for
additional evidence remains undecided by the appellate court, the proper
course is to remand the matter for adjudication along with the appeal, as held
in paragraph 11 of the judgment, which is as under:-
"In the result, the appeal succeeds and is accordingly allowed in part.
The judgment of the High Court impugned herein is set aside. The matter
is remitted back to the High Court for fresh disposal in accordance with
law and in view of the observations made above"
14.1. In para No.7 to 10, Hon'ble Apex Court has held as under:-
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"(7) Learned counsel for the appellant-plaintiff submits that the High
Court has dismissed the first appeal of the plaintiff without
deciding the application filed by him under Order XLI Rule 27 of
the CPC, seeking permission to adduce the additional evidence.
Learned Counsel further submits that the appellant has a good
case on merits.
(8) It is well-settled that, ordinarily, the Appellate Court should not
travel beyond the record of the lower court. Section 107 of the
CPC carves out an exception to this general rule, enabling the
Appellate Court to take additional evidence subject to the
conditions prescribed in Order 41 Rule 27 of the CPC. Thus,
grant or refusal of the opportunity for production of additional
evidence at the appellate stage is within the discretion of the
appellate court. Dismissal of the main appeal without deciding the
application for additional evidence would result in miscarriage of
justice. The First Appellate court, being the last court of facts and
evidence, should permit the production of additional evidence
where the explanation furnished by the party is satisfactory and
the documents in question are vital to establish the case.
(9) It is also necessary to observe here that the application for
permission to file additional evidence should contain the list of
documents giving full particulars thereof and copies sought to be
filed as additional evidence should be served on the other side.
However, the High Court cannot completely ignore the
application filed by the appellant and pronounce the judgment. If
the appellant makes out a case for allowing the application, the
material produced along with the application has to be considered
at the time of final disposal of the appeal in accordance with law.
(10) In the instant appeal, it is clear that the High Court has proceeded
to dismiss the appeal without considering the application filed by
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the appellant-plaintiff. In our view, the High Court has to consider
the matter afresh in the light of the observations made above."
14.2. This Court, in Ashok Kumar vs. Surinder Kumar, (2005) 140
PLR 138, has also remanded the appeal where application for additional
evidence remained undecided, para No.7 to 9 are reproduced here-in-under:-
"7. As referred to above, the defendant-appellant had filed an
application under Order 41 Rule 27 CPC for production of
additional evidence during the pen- dency of the appeal. Notice in
the said application was given to the other side, who had filed the
reply and the case was fixed for arguments in the main appeal as
also on the application for additional evidence. However, without
deciding the application for additional evidence, learned Additional
District Judge, proceeded to dismiss the appeal filed by the
defendant-appellant. Under these circumstances, in my opinion, the
decision of the appeal without deciding the ap- plication for
additional evidence has resulted in miscarriage of justice. In my
opinion, it was the duty of the lower appellate Court to have
decided the application for additional evidence and could not have
decided the appeal without deciding the aforesaid application for
additional evidence.
8. Learned counsel for the plaintiff-respondent submitted before me
that even if the learned Additional District Judge had failed to
decide the application for additional evidence, no case was made
out for remanding the case to the lower appellate Court for
decision of the appeal afresh. Reliance was placed on Sohan Singh
v. Gurmej Singh, 2002 (4) RCR (Civil) 703 (P&H): 2002 (3) The
Punjab Law Reporter 329. However, I find no force in this
submission of the learned counsel for the plaintiff-respondent. In
the reported case the Regular Second Appeal was of the year 1982
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which was decided by this Court on 16.8.2002 This Court after
considering the application for additional evidence, which was
moved before the lower appellate Court, found that there was no
merit in the application filed by the plaintiffs-appellants for leading
additional evidence and that no prejudice was caused to them by
not deciding their application for additional evidence by the first
appellate Court. Furthermore, while declining to remand the case it
was observed that remanding a case for retrial is a serious matter
and such order can be passed in exceptional circumstances where
there had been no real trial or complete and effective adjudication
of the matter and that remand is not meant for providing fresh
opportunity to a party. However, in the present case the position is
entirely different. The defendant-appellant is not seeking remand of
the case for re-trial. On the other hand, the case has to be sent to
the lower appellate Court for deciding the appeal afresh in
accordance with law and while deciding the appeal the lower
appellate Court is required to decide, the application for additional
evidence moved by the defendant-appellant. So far as the merits of
the application for additional evidence are concerned, in my
opinion, it would not be appropriate for this Court to make any
observation in this regard at this stage and it would be for the
lower appellate Court to decide the application for additional
evidence in accordance with law.
9. For the reasons recorded above, present appeal is allowed,
judgment and decree dated 5.2.2002, passed by the Additional
District Judge are set aside and the case is remanded back to the
learned Additional District Judge for deciding the appeal afresh in
accordance with law. It is made clear that before deciding the
appeal, the lower appellate Court shall also consider and decide
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the application for additional evidence, moved by the defendant-
appellant, in accordance with law."
14.3. In view of the foregoing, it is evident that the application filed
by the appellants seeking permission to adduce additional evidence was not
adjudicated by the learned First Appellate Court alongside the appeal on
merits. Consequently, the appellants' appeal is meritorious and is hereby
allowed. The impugned judgment of the learned Additional District Judge is
set aside, and the matter is remitted to the learned First Appellate Court for
fresh adjudication of the appeal along with the application for additional
evidence, in accordance with law, preferably within 'three months' from
the date of receipt of a certified copy of this order.
15. In view of the final adjudication of the main proceedings, all
pending miscellaneous applications, if any, connected with the said case are
also disposed of by virtue of this order. Such disposal shall be deemed to
include all ancillary or incidental applications filed in the course of the main
litigation, without the need for separate or further orders in respect thereof.
( VIRINDER AGGARWAL)
07.11.2025 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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