Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 12 February, 2026
th
Pronounced on: 17 April, 2026
+ RFA 396/2024, CM APPL. 35245/2024
1. AKHILESH GUPTA
S/o Sh. Ram Kishan
R/o 3418, Gali Bajrang Bali,
Bazar Sita Ram, Delhi.
2. SMT. VIJAY GUPTA
W/o Sh. Ram Kishan
R/o 3418, Gali Bajrang Bali,
Bazar Sita Ram, Delhi. .....Appellants
Through: Mr. Yugansh Mittal, Advocate.
versus
1. RAJWANS VADEHRA
S/o Late Sh. Kewal Vadehra
R/o 91, Engineers Enclave,
Pitampura, Delhi. .....Respondent
Through: Mr. Sidharth Chaudhary & Mr. Rinku
Yadav, Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. Regular First Appeal under Section 96 of CPC has been preferred by
the Appellants i.e., Akhilesh Gupta and Smt. Vijay Gupta against
Judgment and Decree dated 15.05.2024 passed by learned DJ-07, Delhi,
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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whereby the Suit of the Plaintiff / Respondent has been decreed and the Sale
Deed dated 07.10.2016, has been declared as null and void.
2. Plaintiff / Respondent had filed Suit bearing No. CS DJ 621274/2016
for Declaration, Recovery of Possession and Permanent Injunction .
3. The facts in brief , as stated in the Plaint, are that Plaintiff /
Respondent was the registered owner of the Suit Property, i.e. one shop on
Ground Floor, bearing Municipal No.3451, Ward No.9, Gali Bajrang Bali,
Chawri Bazar, Hauz Qazi, Delhi-11000 , (hereinafter referred to as the ‘Suit
Property’) . He agreed to sell the Property to the Defendants / Appellants for
a total Sale Consideration of Rs.7,25,000/-. Defendants tendered two
cheques for a total amount of Rs.7,25,000/-, (one cheque for Rs.4,00,000/-
and other for Rs.3,25,000/-) at the time of Registration of Sale Deed, in their
favour.
4. Since the Defendants and Plaintiffs were known to each other for
more than 25 years, being neighbours, the Sale Deed was drawn by the
Plaintiff and the payment of consideration amount of the Suit Property by
the Defendants, was duly recorded. However, at the time of Registration of
Sale Deed, Defendants expressed their inability to deliver the cheques but
requested him to get the Sale Deed registered in their favour.
5. The Defendants assured that even though the cheques were not
received, they would in due course of time, hand over the cheques to the
Plaintiff. The Defendants further assured that after receiving the Registered
Sale Deed from the Office of Sub-Registrar, they would hand over the
original Sale Deed to the Plaintiff and shall take it back only after making
payment of the consideration amount.
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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6. Since the parties were maintaining cordial relationship since long, the
Plaintiff had no reason to apprehend any mischief from the Defendants.
Accordingly, the Sale Deed was registered in the Office of Sub-Registrar on
07.10.2016, even though the cheques for the consideration amount were not
received by the Plaintiff. Therefore, the Plaintiff did not hand over the
possession of the Suit Property and retained the same with him, till the
consideration amount was paid to him.
7. The Defendants / Appellants received the registered Sale Deed from
the Office of Sub-Registrar; however, they failed to deliver the cheques
towards the consideration amount. Therefore, they handed over the original
Registered Sale Deed to the Plaintiff with the assurance that they would
soon hand over the cheques towards the sale consideration amount and take
back the Registered Sale Deed. However, despite their assurances, the
Defendants failed to deliver the cheques to the Plaintiff.
8. To the utter shock and dismay of the Plaintiff, he received the
communication dated 14.12.2016 from the Defendants, wherein they alleged
that the Plaintiff had not encashed the two cheques of Rs.4,00,000/- and
Rs.3,25,000/- respectively, which had allegedly been given to him as the
sale consideration for the sale of Suit Property.
9. The Plaintiff immediately contacted the Defendants and enquired as
to when they had delivered the two cheques to the Plaintiff and if they had
delivered the cheques, why did not they take back the Sale Deed from the
Plaintiff, but the Defendants gave an evasive reply.
10. On 22.12.2016, the Plaintiff visited the Suit Property, but was
shocked to see that the Defendants had forcibly taken the possession of the
Suit Property and had put their own locks on the shutter, by removing the
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DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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locks of the Plaintiff. The Plaintiff immediately made a Complaint dated
22.12.2016 to P.S. Hauz Qazi, but the Police refused to intervene in the
matter.
11. The Plaintiff claimed that the sale of the Suit Property had never been
crystallised under the Sale Deed dated 07.10.2016, as it was without any
consideration.
12. Hence, the Plaintiff filed the Suit for declaring him as the owner of
the Suit Property and to declare the Sale Deed dated 07.10.2016 as null and
void. He also sought Recovery of Possession and Permanent Injunction for
restraining the Defendants from creating third party rights.
13. The Defendants in their Written Statement took a preliminary
objection that the present Suit was counterblast to the Defendants refusal to
be a witness for the Plaintiff in the Suit bearing No. CM(M) No.1020/2016
titled as „ Harish Kumar vs. Rajwans Wadhera’ , which is pending in this
Court. This Suit was filed against the illegal and unauthorised construction
in Property No.3451, Gali Bajrang Bali, Chawri Bazar, Delhi . The upper
portions of the Property in question had been booked by MCD, on the
Complaint of Shri Harish Kumar. The Plaintiff was insisting that the
Defendants must support him in order to demolish the aforesaid case and on
their refusal, the Plaintiff seemed to have woven a web to implicate the
Defendants in the false and frivolous litigation.
14. It was claimed that the Plaintiff had no locus standi to file the Suit,
after having sold the Suit Property to the Defendants against valuable
consideration.
15. On merits , it was admitted that the Plaintiff was the erstwhile owner
of the Suit Property, but it was claimed that he had sold the Suit Property to
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
12:18:04
the Defendants vide Registered Sale deed dated 07.10.2016, for which two
cheques of Rs.7,25,000/- had been duly tendered as sale consideration.
16. The Plaintiff had delivered the vacant physical possession of the Suit
Property at the time of execution of the Sale Deed and since then Defendants
are in possession of the Suit Property.
17. It is claimed that the two cheques totalling to Rs.7,25,000/- had been
handed over to the Plaintiff prior to the execution of the Sale Deed, which
was acknowledged by the Plaintiff before the Sub-Register. Despite the
receipt of the cheques, the Plaintiff did not present the same for encashment,
for the reasons best known to him. It was only when going through the Bank
Statement that the Defendants realised that the two cheques given by him to
the Plaintiff had not been presented for encashment, he immediately called
upon the Plaintiff and gave a written reminder dated 14.12.2016 to the
Plaintiff, intimating him to encash the cheques given by them, in view of the
Sale of Suit Property.
18. It was admitted that the parties were known to each other for the last
25 years being the neighbours, but the other averments made in the Plaint
were denied. It was submitted that Defendants are the owners of the Suit
Property by virtue of the Sale Deed dated 07.10.2016 and the Suit of the
Plaintiff was liable to be dismissed.
19. The Plaintiff in the Replication reaffirmed the assertions, as made in
the Plaint and denied the allegations made in the Written Statement.
20. The Issues on the pleadings were framed on 24.07.2017 as under:
“ (1) Whether the suit of the plaintiff is not
maintainable in view of the preliminary objection
no.2 of the written statement? OPD.
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DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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(2)Whether the plaintiff has not properly valued
the suit for the purpose of court fees and
jurisdiction? OPD
(3)Whether the plaintiff is entitled for the decree
of declaration, as prayed for? OPP
(4)Whether the plaintiff is entitled for the decree
of possession, as prayed for? OPP
(5)Whether the plaintiff is entitled for the decree
of permanent injunction, as prayed for? OPP. ”
21. The Plaintiff examined himself as PW-1 and tendered his evidence by
way of Affidavit Ex. PW-1/A and proved the documents Ex.PW-1/1 to 4.
22. Defendants examined Defendant No.1 Sh. Akhilesh Gupta, as DW-1
and supported the defence as taken in the Written Statement.
23. Learned District Judge held that the Suit was maintainable and that
the Suit had been valued properly for the purpose of Court Fee, which was
duly annexed with the Plaint. The two issues in regard to Court Fees and
maintainability, were decided against the Appellants / Defendants.
24. It was held that the reminder Letter of the Defendants dated
14.12.2016 reflected that he took a step in the right direction to remind the
Plaintiff to get the cheques encashed, were allegedly given to him. Though
the Plaintiff asserted that he had not received any cheques, the factum of
delivery of cheques had not been proved by the Defendants, though it was
mentioned in the same deed. Even if it was presumed that the cheques were
given by the Defendants to the Plaintiff, Plaintiff‟s stand was confirmed that
the cheques were not encashed and that the original Sale Deed was in
possession of the Plaintiff.
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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25. The Defendants had taken a plea that original Sale Deed was
misplaced by Amit Gupta, brother of Defendant No.1, but this was not
proved, as Amit Gupta had not been examined. It was thus observed that, the
fact that the original Sale Deed was in the possession of the Plaintiff, further
corroborated his stand that the Sale Consideration had not been paid. Thus,
it was held that that as per Section 25 of Indian Contract Act, 1872 any
Agreement without consideration, is void. The Sale Deed dated 07.10.2016
was declared null and void.
26. The Suit of Plaintiff for Possession and Injunction was also decreed in
favour of the plaintiff .
27. Aggrieved by the said Judgement, present Appeal has been filed
by the Appellants / Defendants.
28. The grounds of challenge are that Sale Deed dated 07.10.2016
Ex.PW-1/2 in respect of the Suit Property, was duly registered. Learned
District Judge has declared the Sale Deed to be null and void, on the sole
ground that the sale consideration had not been paid by the Appellants,
which is contrary to Sections 91 and 92 Indian Evidence Act, 1872 . The
recitals in the written document takes precedence over any oral contrary
covenants, that may be pleaded by the Respondent.
29. In fact, it was admitted that the two cheques given to the Respondent
had not been encashed, but the Appellants claimed that immediately upon
discovering from their bank passbook, that the cheques had not been
encashed, they sent a Letter dated 14.12.2016 Ex. DW-1/3 requesting the
Respondent to encash the two cheques. Though this Notice was duly served,
but the Plaintiff failed to give any reply.
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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30. It is asserted that the Sale Deed dated 07.10.2016 was duly registered
in the Office of Sub-Register, in respect of the Suit Property, which is an
admitted fact by the Plaintiff / Respondent himself.
31. The Defendants have further claimed that even if in arguendo, the
Plaintiff / Respondent‟s claim is accepted and believed, it is contrary to the
observations made by the Apex Court in the case of Dahiben vs. Arvindbhai
Kalyanji Bhanusali, (2020) 16 SCC 366 , wherein similar facts were
considered and it was held that, non-payment of the entire sale
consideration, even if accepted to be not paid, cannot be a ground for
cancellation of the Sale Deed. The appropriate remedy in law for the
Plaintiff would be for recovery of balance consideration and not for
cancellation of the registered Sale Deed.
32. Furthermore, not only was the Sale Deed registered, but even the
vacant possession of the Suit Property was delivered to the Defendants, as
was mentioned in the Sale Deed. The Plaintiff had raised a false and
frivolous plea.
33. The Defendants, on the very first day of appearance in the Court, had
offered to give fresh cheques without prejudice to his right, but the same
was denied by the Plaintiff. The cheques had not been deposited malafidely,
in the Bank by the Respondent / Plaintiff in order to raise a false, baseless,
frivolous and contrary to law plea.
34. Reference was made to Kalu Ram vs. Sita Ram, 1980 RLR (Note) 44 ,
wherein this Court had observed that where the Defendant does not refute
the charges and remains silent by ignoring to Reply the Notice, the silence
reflects that he had nothing to deny and was a fit case for raising an adverse
presumption.
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DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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35. The Plaintiff herein, despite having been served with the Legal
Notice, failed to give any reply.
36. A reference is also made to MP Mathur vs. DTC, AIR 2007 SC 414 ,
wherein the Apex Court had held that the remedy under Section 34 of
Specific Relief Act was discretionary. The Court, while exercising such
discretion must consider the nature of obligation in respect of which
performance is sought, circumstances under which the decision came to be
made, conduct of the parties and effect of the Court granting the Decree. The
Court has to look at the contract and ascertain whether there exists an
element of mutuality in the contract. If there is absence of mutuality, the
Court shall not exercise discretion in favour of the Plaintiff.
37. It is thus, asserted that the impugned Judgement and Decree dated
15.05.2024 passed by the learned District Judge, is liable to be set aside.
38. The Respondent/Plaintiff in his Written Submissions reiterated that
no sale consideration was paid and that the Sale Deed has been rightly
cancelled by learned District Judge.
39. A prayer was made that the Appeal may be dismissed.
Submissions heard and record perused.
40. It is an admitted case of the parties that the Plaintiff, who was the
owner of the Suit Property, executed a Registered Sale Deed in favour of the
Defendants / Appellants. It is not in dispute that in the Sale Deed itself, it
was mentioned that the sale consideration had been paid by the Appellants
through two cheques of Rs.4,00,000/- bearing cheque No. 159787 , dated
06.10.2016 drawn on Yes Bank, Chawri Bazar, Delhi and Rs.3,25,000/-
bearing cheque No. 113409 dated 6.10.2016 drawn on Central Bank of
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SHARMA
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India, Chandni Chowk, Delhi and the vacant possession of the Suit Premises
has been handed over to the Defendants.
41. The sole ground, on which the Respondent sought the cancellation of
the Sale Deed, was that though there was a mention of two cheques in the
Sale Deed, but they were never paid to the Respondent.
42. The case of the Appellants, on the other hand was that the Cheques
for sale consideration were duly handed over at the time of registration of
Sale Deed, but on checking their Passbook, when they found that the two
cheques had not been encashed, they wrote a Letter dated 14.12.2016 to the
Plaintiff, who despite service of the Legal Notice failed to give any
response.
43. Therefore, it is not in dispute that sale consideration of Rs.7,25,000/-,
which had been tendered by way of two cheques, had not been encashed and
the Plaintiff did not receive the sale consideration.
44. The sole question for determination is, whether non-payment /
non-receipt of sale consideration is a circumstance which can lead to
avoidance / cancellation of the Sale Deed.
45. This controversy is well settled by the Judgement of the Apex Court
in the case of Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 16 SCC
366, wherein similar facts, as in hand, came up for consideration. A
reference was made to Section 54 of the Transfer of Property Act, 1882 ,
which provided that sale is a transfer of ownership in exchange of a price
paid or promised or part-paid and part-promised. It was held that this
definition of sale indicates that there must be transfer of ownership from one
person to another that is transfer of all rights and interest in the Property,
which were possessed by the transferor to the transferee. The transferor
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SHARMA
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cannot retain any right, title or interest in the Property or else it would not be
a sale.
46. In Vidyadhar vs. Manikrao and Anr., (1999) 3 SCC 573, the Apex
Court held that the words “ price paid or promised or part-paid and part-
promised” in S.54 TPA i ndicates that actual payment of whole of the price at
the time of execution of Sale Deed is not a sine qua non for completion of
the sale. Even if the whole of the price is not paid, but the document is
executed and thereafter registered, the sale would be complete and the title
would pass on to the transferee under the transaction. Non-payment of part
of sale price would not affect the validity of the sale.
47. It is therefore, abundantly clear when there is a deficit or non-payment
of sale consideration, the appropriate remedy with the Plaintiff was to seek
recovery of the sale consideration and not seek avoidance of the Sale Deed.
48. In this context, it may also be relevant to refer to the covenants in the
Sale Deed, wherein it was recorded that the sale consideration was tendered
through two cheques and the possession was handed over to the Defendants
by the Plaintiffs.
49. Sections 91 and 92 of Indian Evidence Act, 1872 clearly provide
that when there are written covenants in a document, any oral evidence to
the contrary, is inadmissible.
50. Learned District Judge had made a reference to Section 25 of Indian
Contract Act,1872 to observe that it was an Agreement without the
consideration and was therefore, void. This is an erroneous finding, since it
was not an Agreement without consideration. In fact, the parties had agreed
to the sale consideration of Rs.7,25,000/-, which according to the
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SHARMA
Signing Date:20.04.2026
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Defendants had been tendered, but according to the Plaintiff no sale
consideration was paid.
51. In the circumstances, it cannot be said that it was an Agreement
without any consideration or void under Section 25 of Indian Contract
Act,1872.
52. The other contention raised by the Plaintiff in support of their case
that no cheques were handed over, was that because no sale consideration
was paid, the original Sale Deed was not handed over by the Defendants to
the Plaintiff. However, it has already been held that the sale consideration
had not been realised by the Plaintiff.
53. Therefore, whether the Sale Deed was lost or kept in possession by
the Plaintiff is of little consequence in the light of the Judgement of the
Apex Court in case of Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020)
16 SCC 366 that the mere non-payment of sale consideration cannot be a
ground for cancellation of Sale Deed.
54. In view of the aforesaid, impugned Judgement and Decree dated
15.05.2024 passed by learned District Judge, cancelling the Sale Deed
dated 07.10.2016 and Decree of Possession, is hereby set aside and the
Suit of the Plaintiff stands dismissed .
55. However, considering that the sale consideration of Rs.7,25,000/- has
not been received by the Plaintiff till date, and the Sale Deed is of
07.10.2016 and the Suit has been filed on 23.12.2016, it is directed that the
Defendants / Appellants shall pay / deposit the amount of Rs.7,25,000/-
along with interest @ 12% per annum from the date of Sale Deed, till the
amount is fully paid to the Plaintiff.
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DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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56. Appeal is allowed and all pending Applications, if any, also stand
disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 17, 2026/ R
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Signature Not Verified
DigitallySigned By:RITA
SHARMA
Signing Date:20.04.2026
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