Paramjit Singh Khurana vs Davinder Singh & Ors.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 26 February, 2026
th
Pronounced on: 13 May, 2026
+ RFA 94/2024, CM APPL. 7128/2024, CM APPL. 50997/2024
PARAMJIT SINGH KHURANA
S/o S. Balinder Singh Khurana
R/o C-52, Naraina Vihar,
New Delhi-110028.
....Appellant
Through: Mr. Sanjay S. Chhabra and
Mr. Himanshu Sharma, Advocates
Versus
1. DAVINDER SINGH
S/o S. Santokh Singh
R/o C-130, Mansarovar Garden,
New Delhi-110015.
2. PARAMJIT KAUR
W/o Late Sh. Paramjit Singh
R/o C-130, Mansarovar Garden,
New Delhi-110015.
3. HARMEET SINGH
S/o Late Sh. Paramjit Singh
R/o 19, Stockwell Drive,
Mangots field, Bristol,
BS 16 IDW, England, U.K.
4. PREET KAUR
D/o Late Sh. Paramjit Singh,
R/o C-130, Mansarovar Garden,
New Delhi-110015.
5. GURPREET KAUR
Signature Not Verified
RFA 94/2024 Page 1 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
D/o Late Sh. Paramjit Singh
W/o S. Dalpreet Singh
R/o NA-52, Gali No.5,
Vishnu Garden, New Delhi.
.....Respondents
Through: Mr. Rajiv Bahl, Advocate for R-1
Mr. Bhagat Singh, Advocate for
Respondent no 2 to 5
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The present Regular First Appeal under Section 96 read with Order
XLI CPC has been filed against the Judgment dated 20.12.2023, whereby
the Suit of the Plaintiff for Specific Performance of Agreement to Sell dated
24.08.2004, Possession, Damages and Permanent Injunction, has been
dismissed under Order XII Rule 6 CPC.
2. The facts in brief are that the Plaintiff/Appellant had entered into an
Agreement to Sell dated 24.08.2004 with Defendant No. 1, Sh. Davinder
Singh, Predecessor-in-Interest of Defendant No. 2 to 5 in respect of the
entire Basement, Ground Floor and First Floor excluding the Second Floor
of property bearing No. A-91/1, Naraina Industrial Area, Phase I, New Delhi
admeasuring 400 sq. yds ( hereinafter referred to as “Suit Property” ) for a
total sale consideration of Rs. 95 lakhs. At the time of execution of the
Agreement, a sum of Rs. 25 lakhs was paid as earnest money to Defendant
No.1 and the balance sale consideration of Rs.70 lakhs was to be paid on or
before 31.01.2005.
Signature Not Verified
RFA 94/2024 Page 2 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
3. As per the Agreement and mutual understanding, Defendant No.1 had
agreed to hand over the vacant and peaceful possession of the entire First
Floor to the Plaintiff, in lieu of having received Rs.25 lakhs as earnest
money.
4. However, to the shock and surprise of the Plaintiff, after signing of
the Agreement, the Defendant No.1 started demanding another Rs.10 lakhs
for handing over possession of the First Floor. The Plaintiff was, thus,
compelled to further pay additional Rs.10 lakhs on the same day. This
additional demand/payment was also incorporated in the right side margin
of the original Agreement. This fact was confirmed by the Plaintiff, by
signing on the Agreement to Sell.
5. At the same time, possession of the entire First Floor was handed
over to the Plaintiff who kept certain articles like furniture, stationary and
other things inside the First Floor. The original Agreement was stated to not
be in possession of the Plaintiff as it was seized by the Police vide Seizure
Memo dated 26.08.2005 in FIR No.229/2005 under Section
420/467/468/471/120B IPC P.S. Naraina and is still in the custody of the
Investigating Agency. However, the photocopies of the original documents,
were placed on record.
6. The Plaintiff further asserted that as per Clause I of the Agreement to
Sell, Defendant No.1 and the Predecessor-in-Interest of Defendant No.2 to
5, agreed to get the mutation of the property effected in their name prior to
the execution of the sale deed in favour of the Plaintiff, at the expense of
Defendants, after which the Plaintiff was to pay the balance sale
consideration. The date of execution of the Sale Deed was fixed as
31.01.2005.
Signature Not Verified
RFA 94/2024 Page 3 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
7. The Plaintiff submitted that the Agreement could not be implemented
up to 31.01.2005, because the seller could not get the property mutated in
their name and the date for execution of the Agreement to Sell was further
extended up to 28.02.2005, on the request of the Defendants.
8. However, despite the lapse of this period, the sellers could not get the
property mutated in their name and requested for further extension which
was consented to, up to 31.03.2005, by the Plaintiff. These extensions were
endorsed on the original Agreement to Sell and were duly signed by
Defendant No.1 for himself and on behalf of co-owner Paramjit Singh; the
endorsement was also signed by the Plaintiff.
9. The Plaintiff claimed that he was always ready and willing to get the
execution of the Sale Deed in his name, on all the aforesaid dates .
However, when by 31.03.2005 the vendors could not get the mutation of the
Suit property in their name in DDA, the Plaintiff approached the Defendants
either to get an extension or to execute the Sale Deed of the Suit property,
after getting the property mutated. However, Defendant No.1 and the other
sellers neither executed any Sale Deed thereafter, nor did they seek further
extension, which reflected their malafide intention.
10. The Plaintiff apprehending mala fides on the part of the Defendants,
made a Complaint dated 01.04.2005 at Police Station Naraina, on
02.04.2005.
11. The Defendants, in furtherance of their foul play and malafide
intention, instead of getting the property mutated in their name, filed a Suit
for Damages of Rs.10 lakhs against the Plaintiff on 05.04.2005, wherein
it was revealed to the Plaintiff/Appellant that the Defendant had allegedly
given a Demand Notice dated 01.04.2005, even though no such Notice was
Signature Not Verified
RFA 94/2024 Page 4 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
served upon the Plaintiff. It was also revealed that the Defendants deposited
money for the purpose of stamp papers in the Treasury on 02.04.2005, i.e.
on Saturday and the Stamp Papers were collected from the Treasury on
04.04.2005 i.e. on Monday. The Suit was subsequently filed on 05.04.2005.
All these facts reflected the malafide intention of the Defendants.
12. The Suit for Damages filed by the Defendant was dismissed in
default twice and heavy costs were imposed upon the Defendants.
13. In the meantime, the Defendants also filed another Suit No.106/2005
on 11.04.2005 for Permanent Injunction . After getting the knowledge of
the aforesaid Suits and coming to know about the misrepresentation on the
part of the Defendants, the Plaintiff made a Complaint dated 11.05.2005 at
Police Station Naraina. He later filed his detailed Written Statement, in both
the Suits.
14. The Plaintiff further stated that the Suit for Permanent Injunction
accompanied with an Application under Order XXXIX Rule 1 and 2 CPC,
was dismissed by the Civil Judge, vide a detailed Order, wherein it was
observed that the Defendant were not entitled to discretionary relief as they
could not get the mutation of the Suit Property effected in their names, prior
to entering into the transaction for sale of the Suit Property.
15. A Misc. Appeal was filed by the Defendants before the Court of
Senior Civil Judge, Delhi, but no Interim relief was granted in the said
Appeal.
16. The Plaintiff thereafter, enquired about the status of the mutation
proceedings in DDA, from where he came to know that the Defendants were
relying upon a Will of their father dated 12.04.2000. Subsequently, when the
Defendants applied for mutation in DDA, Surinder Kaur, their real Bhabhi ,
Signature Not Verified
RFA 94/2024 Page 5 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
widow of their brother, raised objections thereto and claimed that the Will
dated 12.04.2000, on the basis of which mutation was sought by the
Defendants, was a forged and fabricated document. She also disclosed that
her father-in-law Santokh Singh, had executed a registered Will dated
26.09.1998. However, on account of the objections raised by Smt. Surinder
Kaur, the Suit Property could not be mutated.
17. Upon learning of the aforesaid facts, the Plaintiff also intimated DDA
about the existence of the Agreement to Sell executed in his favour, on the
basis of the Will dated 12.04.2000.
18. In the meanwhile, the Defendants filed a Probate Case No.119/2005
in the Court of the District Judge, Delhi wherein Notice was issued to the
relatives of the Defendants for 05.08.2005. Upon learning about the
pendency of the said Petition, the Plaintiff, filed an Application seeking Stay
of the proceedings on 13.10.2005 and also applied for impleadment in the
Probate proceedings.
19. After hearing the Plaintiff, the learned District Judge restrained the
Defendants from alienating, parting with possession of, or creating any
third party interest, or disposing of the property in question.
20. In the meantime, FIR No.229/2005, P.S. Naraina, was registered by
EOW, Crime Branch, in which the original Will was handed over to the I.O
of EOW, while a photocopy thereof was retained on record. The I.O
thereafter, moved an Application before DDA for stopping the mutation of
the property in favour of the Defendants, on the ground that they were
relying upon a forged and fabricated Will. During this period, the original
Agreement to Sell was also seized by the I.O in FIR No.229/2005.
Signature Not Verified
RFA 94/2024 Page 6 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
21. The Will was thereafter, analysed by an Expert and it was found that
the same did not bear the signatures of the Executant, and was a forged and
fabricated document. Subsequently, another FIR No.701/2005 was
registered at Police Station Kirti Nagar on the Complaint of the nephew of
Defendant No.1. Disputes thus, arose between the parties and Defendant
No.1 was arrested and sent to Jail on 08.09.2006. However, he was
subsequently released vide Order dated 25.09.2006, subject to the condition
of depositing Rs.35 lakhs before the Court.
22. Thereafter, several Complaints were made at Police Station Naraina,
though no action was taken by the Police. The dispute between the parties
further escalated as the Defendants tried to restrain the Plaintiff from
entering the First Floor of the Suit Property. Consequently, proceedings
under Section 145 Cr.P.C were initiated before SDM, Kapashera. Written
Statement was filed and the parties were called to the Police Station. On the
Report of Police Station Naraina of apprehension of breach of peace, the
proceedings under Section 145 Cr.P.C were initiated and the property was
directed to be attached under Section 146 Cr.P.C by the SDM, Kapashera,
vide Order dated 01.12.2005. Accordingly, the property was sealed/seized
by the Police of P.S. Naraina and is lying sealed till date.
23. The Defendants approached the Sessions Court by filing a Revision
Petition, which was dismissed .
24. Thereafter, the Plaintiff filed an Application under Section 146
Cr.P.C to the SDM, for de-sealing of the entire First Floor. However, the
Defendants, filed a Petition in this Court and the proceedings before the
SDM were stayed and no further action has been taken.
Signature Not Verified
RFA 94/2024 Page 7 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
25. In the meanwhile, the Plaintiff came to know that Defendant No.1 had
amicably settled the dispute with his Bhabhi , Smt. Surinder Kaur and other
family members, who had filed objections in the Probate Case. An MOU
was prepared in writing. The criminal cases registered against the
Defendant on the Complaint of nephew, were quashed by the Court and the
objections filed by the nephew, Smt. Surinder Kaur as well as other family
members, were withdrawn. Consequently, there remained no objection to
the mutation of the property in the name of family members of the
Defendant.
26. The Plaintiff came to know about all these proceedings when the
DDA File was summoned in the Court of the learned ADJ on 10.10.2007, in
the Suit for Damages. He became aware about the Settlement of the
Defendant with the family members. Prior thereto, the Defendants had
realized that they had no evidence in support of their claim and
apprehending the dismissal of the Suit for damages, informed the Plaintiff
three days prior to the date fixed i.e. 10.10.2007 for evidence, that the matter
had been amicably settled.
27. Since the Plaintiff was interested in amicable settlement of the matter,
negotiations started between the parties and Defendant No.1 proposed that
his Bhabhi , Smt. Surinder Kaur, who has already compromised the matter
and signed the MOU, was interested in the quashing of FIR. It was also
disclosed by Defendant No.1 that his other family members had already
executed Relinquishment Deeds in his favour as they had no objection to
mutation being effected in favour of the Defendants.
28. Defendant No.1 also suggested that the Plaintiff should withdraw his
objections from DDA, but Plaintiff responded that he would co-operate with
Signature Not Verified
RFA 94/2024 Page 8 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
the Defendants in every manner, if a separate Compromise Deed is executed
to this effect and is duly signed by both the parties, subject to the Defendant
making a Statement before this Court regarding execution of the Sale Deed
immediately, subject to payment of balance amount of Rs.60 lakhs, after
mutation was effected in their favour. However, on 10.10.2007, the Plaintiff
waited in the Court of the learned ADJ till 02:00 P.M., but neither the
Defendants nor their Advocates appeared.
29. It is asserted that the Defendants have always been hostile and non-
cooperative and have acted with malafide intentions, by adopting different
tactics to delay the matter and let the limitation period expire for filing the
Suit for Specific Performance of Agreement to Sell dated 24.08.2004,
wherein the period for execution of the Sale Deed had been extended up to
31.03.2005.
30. A Legal Notice dated 22.10.2007 was served upon the Defendants, to
which they gave a Reply dated 30.10.2007.
31. The Plaintiff further asserted that on account of non-delivery of
possession of the entire Suit property up to 31.03.2005, the Plaintiff suffered
losses to the tune of Rs.2 lakhs per month, for which he is entitled to
damages/ mesne profits.
32. The Plaintiff thus, filed the present Suit for Specific Performance of
Agreement to Sell dated 24.08.2004, damages and mesne profits @ Rs.2
lakhs per month and Permanent Injunction restraining the Defendants
from creating third party rights in the Suit property.
33. Defendant No.1 in his Written Statement, claimed that the Suit of the
Plaintiff, was liable to be rejected under Order VII Rule 11 CPC on account
of improper valuation of the relief claimed by the Plaintiff. The appropriate
Signature Not Verified
RFA 94/2024 Page 9 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
Court Fee had not been paid and no relief of Possession was sought, despite
being out of possession. It was claimed that the Plaintiff had not approached
the Court with clean hands and had concealed material facts from the Court.
34. The Suit was also asserted to be not maintainable under the Specific
Relief Act, as the Plaintiff did not have possession of any part of the Suit
Property and the Agreement to Sell dated 24.08.2004 had subsequently been
fraudulently varied and materially altered by the Plaintiff, without the
consent of the Defendants. It was further asserted that the term of the
Agreement had already expired and the Defendants had already terminated
the Agreement. It was thus, claimed that the Agreement to Sell was no
longer valid in the eyes of law and the Plaintiff had no right to file the Suit
for Specific Performance on the said Agreement to Sell.
35. The Defendants further asserted that the Plaintiff had never shown
readiness and willingness to perform his part of the Contract and had never
offered the balance payment to Defendant No.1. It was for the first time,
after more than 2½ years of termination of Agreement to Sell dated
24.08.2004, that the Plaintiff served the Legal Notice dated 22.10.2007 upon
the Defendants, which was duly replied.
36. It was claimed that the Plaintiff had fraudulently misrepresented that
he had paid Rs.10 lakhs for possession of the First Floor of the Suit
Property, which was completely false. Neither was the amount paid nor was
the possession of the First Floor ever handed to him. It was stated that the
essential terms of the Contract had been violated by the Plaintiff, while the
Defendant has performed his part of the Agreement.
37. The Defendant further claimed that the Plaintiff had acted
fraudulently in getting the Agreement to Sell executed and had wilfully
Signature Not Verified
RFA 94/2024 Page 10 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
acted contrary to the understanding and intent of the parties. It was asserted
that the transaction was sham and the Agreement to Sell was fictitious. Huge
losses had been suffered on account of the illegal acts of the Plaintiff and the
Defendants continued to suffer since the Suit Property was lying sealed and
the tools and equipment worth lakhs of Rupees belonging to the Defendants,
had been reduced to garbage.
38. The Defendant further asserted that the Plaintiff had similarly
purchased several other properties fraudulently and was owner of many
more properties, as detailed in the Written Statement. According to the
Defendant, the Plaintiff was well versed in property transactions and
documentation and had drafted the Agreement to Sell in a manner different
from what had been agreed between the parties and induced the Defendant
to sign the same. It was thus, asserted that the Agreement to Sell was
vitiated by fraud and was unenforceable in law.
39. The Plaintiff was never in possession of the First Floor of the Suit
Property. According to the Defendant, the Plaintiff had initially made false
Complaints to the Police and when no action was taken thereon, he filed a
Complaint before the Vigilance Department, Delhi Police with regard to
possession of the First Floor of the Suit Property.
40. The Vigilance Team thereafter, inspected the Suit Property and
recorded the statement of several persons including the neighbours.
Thereafter, detailed Investigation Report dated 25.05.2005 was submitted,
wherein it was found that the claim of the Plaintiff was false and he was not
in possession of the Suit property.
41. On merits, it was explained that Defendant No.1, his brother, who
was Predecessor-in-Interest of Defendant No.2 to 5, and their father, Shri
Signature Not Verified
RFA 94/2024 Page 11 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
Santokh Singh were three partners of M/s Asian Printing Machinery vide a
Perpetual Lease Deed. A Lease Deed dated 29.04.1973 was executed by
DDA in respect of the Suit Property in the name of the Firm, M/s Asian
Printing Machinery. Shri Santokh Singh expired on 08.12.2000 and he
bequeathed his share in the Firm equally to the answering Defendants and
his brother Late Shri Paramjit Singh, who thereby, became owners of the
leasehold rights of the aforesaid property.
42. In the year 2004, the Defendant was in need of money and, therefore,
decided to sell the Suit Property. The Agreement to Sell dated 24.08.2004
was thus, executed between the Defendants and the Plaintiff , but the
Defendant later found that it was drafted in a crafty manner, to which
objections were raised by the Defendant, including to the clause regarding
handing over of possession of the First Floor of the Suit premises .
43. It was further claimed that the Plaintiff had offered to make payment
of an additional amount of Rs.10 lakhs over and above the advance amount
of Rs.25 lakhs already paid. The Defendant, however, told the Plaintiff that
the possession of the First Floor would be given only after receiving Rs.10
lakhs. He also stated that a fresh Agreement would be executed. The
Plaintiff, however assured him that no separate Agreement was required and
that the original Agreement to Sell dated 24.08.2004 could itself be
amended. Accordingly, the sentence “ after taking a sum of Rs.10 lakhs
only ” was inserted in the Agreement to Sell.
44. The Defendant, without sensing the fraud, signed the said insertion in
the Agreement to Sell, believing that possession of the First Floor would be
handed over to the Plaintiff only upon payment of Rs.10 lakhs, in addition to
Signature Not Verified
RFA 94/2024 Page 12 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
Rs.25 lakhs. The Plaintiff, however, never made payment of Rs.10 lakhs
and, therefore, possession of the First Floor was never handed over to him.
45. The Defendant further claimed that the fraud was also evident from
the Agreement to Sell dated 24.08.2004 itself, wherein the total sale
consideration was mentioned as Rs.95 lakhs, out of which the Plaintiff had
paid Rs.25 lakhs as earnest money to Defendant No.1. The balance sale
consideration of Rs.70 lakhs was payable, on or before December, 2004.
46. It was further asserted that the recital in the Agreement to Sell
regarding the balance sale consideration clearly showed that no payment of
Rs.10 lakhs had been made to the Defendant, since in that eventuality, the
balance sale consideration would have been reflected as Rs.60 lakhs and not
Rs.70 lakhs.
47. The Defendant, being in need of money, conceded to the request of
the Plaintiff for extension of time. However, the Plaintiff failed to make
payment of the balance amount of Rs.70 lakhs. Left with no option, the
Defendant vide Notice dated 01.04.2005, terminated the Agreement to Sell
dated 24.08.2004 and called upon the Plaintiff to pay Rs.10 lakhs towards
the damages/losses. The Termination Letter was duly served through
registered post and UPC.
48. The Plaintiff, immediately after getting the knowledge about the
Termination Letter dated 01.04.2005, made a false Complaint in his own
writing, at P.S. Naraina alleging that the Defendant was trying to cheat him
of Rs.25 lakhs with malafide intention. Even in the said Complaint, the
Plaintiff stated that he had paid Rs.25 lakhs and nowhere claimed that he
had made payment of Rs.35 lakhs. Subsequently, he changed his stand and
claimed that he has paid Rs.35 lakhs, which is patently incorrect.
Signature Not Verified
RFA 94/2024 Page 13 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
49. The Plaintiff also chose not to reply to the Termination Letter dated
01.04.2005, because he knew that after termination of the Agreement to
Sell, he had no right in the Suit Property, since he had failed to perform his
part of the Contract. The Plaintiff thereafter, filed a Complaint before the
Vigilance Department of Police, which conducted an investigation and
found that the Plaintiff was not in possession of the First Floor.
50. The Plaintiff, in order to grab the Suit Property without paying the
sale consideration, created hindrances in the way of the Defendants and
started harassing them by making false Complaints. Furthermore, the
insertion of the Mutation Clause was also malafide , as it is a well known
fact that mutation of a property is not possible within a short period of three
months.
51. The Plaintiff also initiated proceedings before the SDM, who
erroneously sealed the property which continued to remain in the exclusive
possession of the Defendant. The proceedings before the SDM were
subsequently quashed by this Court, vide Order dated 28.04.2008. The
Defendant suffered huge losses on account of the illegal acts of the Plaintiff.
52. The Defendant also filed a Suit for Injunction against the Plaintiff,
though the Application for Interim Injunction was unfortunately dismissed.
Thereafter, an Appeal was filed which is pending adjudication.
53. The Defendant has also filed a Suit for damages against the Plaintiff.
54. The Plaintiff, for the first time in October, 2007 sent a Notice dated
22.10.2007 to the Defendant, which was duly replied to by the Defendant. It
was thus, submitted that the Suit of the Plaintiff was liable to be dismissed.
55. The Defendant No. 2 to 5 in their Written Statement, took similar
defence as Defendant No.1 and claimed that the Plaintiff had acted
Signature Not Verified
RFA 94/2024 Page 14 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
fraudulently in getting the Agreement to Sell executed and in varying its
terms. It was asserted that the Plaintiff had altered the Agreement to Sell
without the consent of the father of the answering Defendants. All the
averments made in the Plaint were denied and it was prayed that the Suit be
dismissed.
56. While the Suit was pending at the stage of Plaintiff’s evidence, an
Application under Order VII Rule 11 CPC was filed by Defendant No.1 on
28.01.2017. It was asserted that since the Agreement to Sell stood
terminated, the Suit of the Plaintiff was not maintainable and bad in law
since no declaration for challenging the cancellation/termination of the
Agreement to Sell, had been sought in the Plaint despite sufficient Notice.
Reliance was placed on I.S. Sikander (Dead) by Lrs and Ors. vs. K.
Subramani & Ors . (2013) 15 SCC 27.
57. It was further claimed that the Plaintiff had sufficient Notice of the
Termination Letter, as the same had been filed by Defendant No.1 in the
Suit for Permanent Injunction, wherein the Defendant herein, had
categorically pleaded termination of the Agreement to Sell dated
24.08.2004, vide Notice dated 01.04.2005.
58. The Defendant also relied upon the proceedings before the SDM
dated 07.12.2005, wherein it was again recorded that the Agreement to Sell
stood terminated on 01.04.2005. A prayer was, therefore, made that the Suit
be rejected.
59. Defendant No.2 and 3 supported the Application under Order VII
Rule 11 CPC and further urged that powers under Order XII Rule 6 CPC be
exercised by taking cognizance of the admissions made by the Plaintiff
Signature Not Verified
RFA 94/2024 Page 15 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
before the SDM as well as in other litigations, and prayed that the Suit be
dismissed.
60. The Defendant No.2 and 3 further relied upon Dharampal Satyapal
Ltd. vs. Sanmati Trading and Investment Ltd. and Anr . 239 (2017) DLT 350,
wherein I.S. Sikander (Dead) by LRs. & Ors . (supra) had been followed.
61. No formal Reply was filed by the Plaintiff , though written
submissions came to be filed on his behalf. It was claimed that since the
issues had already been framed and none had been treated as a preliminary
issue, the matter ought to be tried on merits. It was further submitted that
the Judgment of I.S. Sikander (Dead) by LRs. & Ors. (supra), was
distinguishable, on facts.
62. The learned District Judge considered the rival contentions of the
parties and though the Application under Order VII Rule 11 CPC was
dismissed, the Suit of the Plaintiff was dismissed under Order XII Rule 6
CPC.
63. Aggrieved by the dismissal of the Suit, the Plaintiff has filed the
present Regular First Appeal under Section 96 read with Order XLI CPC.
64. The grounds of challenge are that the impugned Judgment suffers
from illegality, perversity and is not tenable in law being based upon
conjectures and surmises.
65. It is a settled principle that a Judgment on admission under Order XII
Rule 6 CPC can only be passed where the admission is clear, unambiguous
and unconditional. The alleged statement relied upon by the learned Trial
Court, being part of collateral proceedings and not proved in accordance
with law, could not be treated as a binding admission. The same, at best,
Signature Not Verified
RFA 94/2024 Page 16 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
raised a triable issue requiring evidence and could not have formed the basis
for non-suiting the Plaintiff at the threshold.
66. The learned Trial Court has suo motu invoked the provisions of Order
XII Rule 6 CPC and dismissed the Suit. It has relied upon an unsworn,
unattested and unauthenticated statement of the Appellant, alleged to have
been given to the Police authorities in DD No.23A, under Sections 107/150
Cr.P.C. The said alleged statement is yet to be tested during trial and proved in
accordance with law. It could not have been construed as an unequivocal and
unambiguous admission of the Appellant. The statement has been erroneously
relied upon by the learned District Judge in conjunction with the decision of
the Apex Court in I.S. Sikander (supra), to dismiss the Suit of the Appellant.
67. The learned Trial Court overlooked one of the issues framed by it on
20.03.2013, which reads as under:
th
“5. Whether the Agreement to Sell dated 24 August, 2004
st
was cancelled or terminated on 1 April, 2005? OPD”
68. The reliance placed by the learned Trial Court on I.S. Sikander
(supra) is fundamentally misplaced. In the said case, the termination of the
Agreement was not a disputed question requiring a trial, and the property
had already been transferred in favour of a third party. In contrast, in the
present case, the very factum and validity of termination are seriously
disputed and is a subject matter of framed issues. Therefore, the ratio of the
said judgment is inapplicable, to the facts of the present case.
69. The learned Trial Court despite observing that a conclusive finding
regarding termination of the Agreement to Sell cannot be arrived at, held
that since the termination of the Agreement to Sell dated 24.08.2004 vide
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Legal Notice dated 01.04.2005 had not been challenged by the Plaintiff, and
the Suit was liable to be dismissed.
70. It is submitted that the High Court of Punjab and Haryana in the case
of Gurbachan Singh v. Bodh Raj & Anr., RSA No. 7605/2018, observed
that the judgment of I.S. Sikander (supra) decided on its peculiar facts and
the observations made therein that a Suit for Specific Performance without
seeking declaration in regard to termination of Agreement to Sell was not
maintainable, did not lay down the ratio decidendi; each case has to be
considered on its own merits and a relief for Specific Performance cannot be
granted, unless the relief of Declaration with regard to subsequent Sale
Deed, has been sought in the Suit.
71. The Division Bench of this Court in Kushal Infraproject Industries
India Ltd. v. Dalel Singh & Anr. 2019 (176) DRJ 111, considered a similar
plea raised by the Defendant relying upon the judgment of I.S. Sikander
(supra). It was held that the process of adjudication would involve an
adjudication of the legality and validity of the Notices issued by the
Defendants. The Notices including the termination Notices, are premised on
the allegation that the Plaintiff has breached the Agreement. If it is found
that the Plaintiff has breached the Agreement, then the Notices would be
held to be valid and legal and no decree for Specific Performance would be
liable to be granted. However, if it is held that the Defendants were in
breach, the termination would be bad in law; the forfeiture would not be
valid and the decree of Specific Performance would then be considered,
depending upon the evidence adduced and other factors. The validity of the
termination is closely intertwined with the determination of breach. Under
such circumstances, the illegality or validity of termination would be an
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inherent aspect to be considered in granting relief of Specific Performance.
The said issues are inalienable i.e. Agreement-breach-termination-Suit for
Specific Performance, and each of them is intricately linked to the other.
72. Further reliance is placed on Prof. Mahabir Educational cultural &
Welfare Society v. Girdhari Lal Dhara ; RFA 371/2019, Radhey Sham v.
Varsha Yadav ; RFA 734/2016, Gurbachan Singh (Now Deceased) through
his Legal Heir and Others v. Bodh Raj and Another ; RSA No.7605/2018.
Further, the High Court of Punjab and Haryana in Brahm Dutt v. Sarabjit
Singh ; RSA No.2943/2017, had observed that there cannot be unilateral
cancellation of Agreement to Sell, by one party. Such cancellation cannot be
raised as a defence in a Suit for Specific Performance. It was held that such
a plea of cancellation/termination raised by the Defendant, can just be
ignored by the Court and the Plaintiff need not challenge such an alleged
cancellation. It was held that if such unilateral cancellation of non-
determinable Agreement is permitted as a defence, then virtually every Suit
for Specific Performance, can be frustrated by the Defendant.
73. It is submitted that no objection was raised by the Respondent in the
Written Statement regarding the maintainability of the Suit and no relief was
sought for declaring the alleged termination of Agreement to Sell, as bad in
law.
74. It has been overlooked that issues had been framed on 20.03.2013,
wherein one issue was regarding the termination of the Agreement to Sell.
The learned District Judge, therefore, could not jump to the conclusion that
there was an alleged termination of the Agreement to Sell, which ought to
have been challenged by the Appellant. The impugned Order has resulted in
an anomaly wherein the Appellant after prosecuting the Suit for the last 17
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years, is left remediless and his claim for damages, compensation, refund
of earnest money also stands negated/dismissed, causing immense hardship
to the Appellant.
75. Hence, a prayer is made that the impugned judgment be set aside and
the Suit be remanded back to be tried on merits.
76. Written Submissions have been filed on behalf of the Appellant ,
on similar lines.
77. The Respondents No. 2 to 5 in their Written Submissions have stated
that Agreement to Sell is determinable in nature. Clause 2 of the
Agreement to Sell dated 24.08.2004 provided that it shall automatically
come to an end, if it is not performed by the agreed date, i.e., 31.03.2005.
Therefore, the Agreement to Sell automatically stood determined on
31.03.2005 itself. Moreover, on the very next date of its automatic
determination, i.e., 01.04.2005, the Agreement to Sell was expressly
terminated by issuing a termination Notice. The Agreement to Sell was,
therefore, non-existent.
78. The Appellant was well aware of the termination of the Agreement to
Sell. Even a Notice dated 01.04.2005 was duly served upon the Appellant,
which had repeatedly been admitted to have been received by the Appellant.
The termination of Agreement to Sell was expressly pleaded in judicial
proceedings and subsequent correspondence.
79. Despite being aware of the termination of the Agreement to Sell, the
Appellant had chosen not to challenge the impugned termination, despite it
being a sine qua non . The existence and subsistence of an Agreement to
Sell, was a condition precedent for seeking Specific Performance of an
Agreement to Sell. In the absence of any relief of declaration qua
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termination, Suit for Specific Performance is not maintainable in the eyes of
law. Reliance is placed on I.S. Sikandder v. K. Subramani & Ors. 2013 (15)
SCC 27, Sangita Sinha v. Shawana Bhardwaj , AIR 2025 SC 1806.
80. It is further contended that the decision of Annamalai v. Vasanthi
2025 INSC 1267 relied upon by the Appellant, is not applicable to the facts
in the present case. In the said case, there was no plea of maintainability of
the Suit taken in the Written Statement, no issues were ever framed, and no
arguments were addressed before the learned Trial Court. The issue of
maintainability was raised for the first time, before the Supreme Court.
81. Furthermore, there was no Clause in the Agreement to Sell which
empowered the vendor to terminate the Agreement to Sell and it could not
have been so terminated.
82. While in the present case, there was a specific objection taken in the
Written Statement in express words; the issues have been framed
specifically in this regard and the Agreement to Sell itself expired with the
efflux of time. There was no extension post 31.03.2005 and it stood
determined and was also specifically terminated vide Notice dated
01.04.2005.
83. The judgment of Annamalai (supra) and Sangita Sinha (supra),
reiterated the decision in I.S. Sikander (supra), clarifying that a relief of
declaration was mandatory.
84. In response to the contention of the Appellant that the learned District
Judge, despite having dismissed the Application under Order VII Rule 11
CPC, had suo motu exercised jurisdiction under Order XII Rule 6 CPC
without affording an opportunity to the Appellant, the Respondents
submitted that Written Submissions had been filed by the Appellant before
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the learned District Judge, which confirmed that he had participated in the
proceedings and had also advanced arguments under Order XII Rule 6 CPC.
It was thus, submitted that there was no question of any opportunity not
having been afforded to him.
85. The Order XII Rule 6 CPC itself mandates and empowers the Court to
suo moto invoke the jurisdiction for passing a judgment on admissions in
Rajiv Ghosh v. Satya Narayan , 2025 SCC Online SC 751, Supreme Court
looking into object behind legislative amendment in Order XII Rule 6 CPC,
held that the judgment on admissions can be s uo moto passed by the Courts.
86. In Ashwin Lal v. Aruna Lal , 2010: DHC: 6051, it was held that the
scope and ambit of Order XII Rule 6 CPC was wide and can be entertained
even after framing of issues and at any stage of the Suit.
87. Furthermore, in Vijaya Mayne v. Satya Bhushan , 2007 (142) DLT 483
(DB), it was reiterated that the scope of Order XII Rule 6 CPC is very wide.
88. It is submitted that there is no merit in the present Appeal and the
same is liable to be dismissed.
Submissions heard and record perused.
89. Essentially, the controversy in the present Appeal is whether the Suit
for Specific Performance could have been dismissed under Order XII Rule 6
CPC, on the ground that the Plaintiff had not sought a declaration
challenging the termination Notice dated 01.04.2005, when the validity
and legal effect of such termination itself was a disputed issue between the
parties.
90. The Plaintiff/Appellant had instituted the Suit in December 2007/
January 2008 seeking Specific Performance of the Agreement to Sell dated
24.08.2004, in respect of the Suit Property, along with consequential reliefs
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of possession, damages and Permanent Injunction. As per the Agreement to
Sell, the total sale consideration payable was Rs.95 lakhs, out of which,
Rs.25 lakhs was admittedly paid at the time of entering into the Agreement.
The date for execution of the Sale Deed, initially fixed as 31.01.2005, was
subsequently extended up to 31.03.2005.
91. The case set up by the Plaintiff/Appellant was that the parties had
agreed that possession of the First Floor of the Suit Property would be
handed over to him. According to the Plaintiff, the Defendants thereafter
demanded an additional amount of Rs.10 lakhs for handing over possession,
which was paid by him and an endorsement to this effect was recorded on
the original Agreement to Sell. It was further asserted that he had always
been ready and willing to perform his obligations under the Agreement.
92. The Defendants/Respondents contested the Suit and asserted that the
Agreement to Sell dated 24.08.2004 had been fraudulently varied and
materially altered without their consent. It was denied that possession of any
portion of the Suit Property had ever been handed over to the Plaintiff. The
Defendants further claimed that the Plaintiff had failed to perform his
obligations under the Agreement and had never tendered the balance sale
consideration. It was further claimed that the Plaintiff had never shown his
readiness and willingness to perform his part of the contract, and he never
offered the balance amount in 2.5 years since the termination of the
Agreement to Sell, even the Legal Notice dated 22.10.2007, was sent for the
first time after a long delay of 2.5 years.
93. The principal defence raised by the Defendants/Respondents was that
the Agreement to Sell had expired by efflux of time on 31.03.2005 and, in
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any event, stood specifically terminated vide Legal Notice dated
01.04.2005, which was duly served upon the Plaintiff/Appellant .
94. The Defendants/Respondents further relied upon the alleged
knowledge of the Plaintiff/Appellant regarding termination of the
Agreement to Sell, as reflected in DD No.23A dated 23.07.2005 under
Sections 107/150 Cr.P.C., the Report dated 25.05.2005 of DCP/Vigilance,
as well as in subsequent litigations inter se the parties, i.e., the Suit for
Permanent Injunction, Specific Performance and damages , wherein there was
a mention of Notice of termination.
95. The only contention at this stage was that since the Agreement to Sell
stood terminated w.e.f. 01.04.2005, no Agreement to Sell survived thereafter
and, consequently, the Suit for Specific Performance, in the absence of any
declaratory relief challenging such termination, was not maintainable.
96. It is not in dispute that the Plaintiff/Appellant had knowledge of the
termination of the Agreement to Sell vide Notice dated 01.04.2005, and the
said fact came to be reflected in several subsequent proceedings inter se the
parties. The real question, however, is: whether such unilateral termination
of the Agreement to Sell by the Defendants/Respondents was, by itself,
sufficient to render the Agreement to Sell extinct and incapable of
enforcement.
97. It is significant to note that the Suit was filed way back in the year
2007 and, after completion of pleadings, the learned Trial Court framed
issues on 20.03.2013. The issues framed included, inter alia , the following:
“1. Whether the Plaintiff is entitled to a decree of
specific performance as prayed for? OPP
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2. Whether the Plaintiff is entitled to a decree of
possession as prayed for? OPP
3. Whether the Plaintiff is entitled to a decree of damages
of Rs.2 Lakhs per month from the date of filing of the suit
till possession of the suit property is handed over? OPP
4. Whether the Plaintiff is entitled to a decree of
permanent injunction whereby restraining the
Defendants from creating third party interest in the suit
property? OPP
th
5. Whether the Agreement to Sell dated 24 August,
st
2004 was cancelled or terminated on 1 April, 2005?
OPD
6. Whether there was no cause of action to file the
present suit against Defendant Nos. 2, 4 and 5? OPD
7. Whether the Plaintiff was always ready and willing to
perform his part of the obligations under the Agreement
th
to Sell dated 24 August, 2004? OPP
8. Relief.”
98. The aforesaid issues clearly demonstrate that the questions regarding
the validity of termination of the Agreement to Sell and the readiness and
willingness of the Plaintiff/Appellant were treated by the learned Trial
Court, as disputed questions requiring adjudication upon evidence. The
parties had already proceeded to trial and the matter was at the stage of
evidence.
99. It was at this advanced stage of the proceedings that Defendant No.1
moved an Application under Order VII Rule 11 CPC contending that the
Suit was not maintainable in the absence of a declaratory relief challenging
the termination of the Agreement to Sell, while placing reliance on the
judgment of the Supreme Court in I.S. Sikander (supra).
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I. Whether the Agreement to Sell was terminated by the Notice dated
01.04.2005:
100. The first aspect which emerges is that the termination of the
Agreement to Sell dated 24.08.2004 was a unilateral act on the part of the
Defendants/Respondents. It is a subject matter of evidence whether there
existed valid grounds for termination and whether the Notice dated
01.04.2005 constituted a lawful and effective termination of the Agreement
to Sell. These were issues which necessarily required adjudication upon
appreciation of evidence and could not have been determined summarily at
the threshold.
101. In a Suit for Specific Performance, the Court is required to examine,
inter alia , the enforceability of the Agreement to Sell, the readiness and
willingness of the Plaintiff to perform and honor his obligations thereunder,
and the question as to which of the parties had committed default/breach in
performing their respective obligations. Not only this, the Court is also
required to consider whether time was intended to be of the essence of the
Agreement and whether the Agreement to Sell had, in fact, stood terminated
merely by efflux of time w.e.f. 31.03.2005.
102. These questions are intrinsically interconnected and ordinarily cannot
be determined without a full-fledged trial. It has been consistently held in a
catena of judgments that the terms of the Agreement and the intention of the
parties are required to be examined to ascertain whether time was intended
to be of the essence in the Agreement to Sell .
103. It is a settled principle that, traditionally, in contracts relating to sale
of immovable property, time is ordinarily not regarded as being of the
essence unless such intention is evident from the terms of the contract and
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the surrounding circumstances . The Constitution Bench of the Supreme
Court in Chand Rani v. Kamal Rani , (1993) 1 SCC 519 observed that:
“…it is clear that in the case of sale of immovable property
there is no presumption as to time being the essence of the
contract. Even if it is not of the essence of the contract, the
Court may infer that it is to be performed in a reasonable
time from the following conditions: (1) the express terms of
the contract; (2) the nature of the property; and (3) the
surrounding circumstances, for example, the object of
making the contract.”
104. In K.S. Vidyanadam v. Vairavan , (1997) 3 SCC 1, the Supreme Court
observed that while Courts in India had earlier consistently held that time is
not of the essence in Agreements relating to immovable properties, the
Court cannot remain oblivious to the reality of constant rise in urban
property prices. It was thus, observed that the rigour of the traditional rule
requires to be relaxed, if not modified, particularly in cases concerning
urban immovable properties.
105. The aforesaid principle was further elaborated in Saradamani
Kandappan v. S. Rajalakshmi , (2011) 12 SCC 18, wherein the Supreme
Court, while referring to Chand Rani , reiterated that ordinarily time is not
treated as the essence in contracts relating to immovable property. Earlier
rule proceeded on the assumption that property values were stable and that
delay in performance would not materially prejudice the vendor. However,
in view of galloping inflation and steep increase in prices of immovable
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properties, the time period prescribed by the parties for performance cannot
be treated as insignificant. Thus, it was cautioned that where the parties have
prescribed a time period for payment or completion, the same cannot be
ignored, and Courts must apply greater scrutiny while examining the
readiness and willingness of the purchaser.
106. In Ferrodous Estates (P) Ltd. v. P. Gopirathnam, 2020 SCC OnLine
SC 825, the Supreme Court, after referring to the aforesaid principles,
reiterated that while exercising discretion in suits for Specific Performance,
the Court must keep in mind the time period prescribed by the parties for
taking steps or completing the transaction, and such time stipulations cannot
be ignored altogether.
107. Thus, though time may not automatically be treated as the essence in
every Agreement to Sell relating to immovable property, the stipulated time-
lines, conduct of the parties, delay, readiness and willingness, and
surrounding circumstances are relevant factors which must be examined.
108. In other words, the mere expiry of the stipulated period or issuance of
a termination notice does not automatically render an Agreement to Sell
non-existent. The Court is required to examine all relevant circumstances
before determining whether the contract stood validly terminated and
whether the discretionary relief of Specific Performance ought to be granted.
109. It is equally well settled that the power under Order XII Rule 6 CPC,
though wide, can be exercised only where the admission is clear,
unequivocal and unconditional. Where the very validity of termination of
the contract, the readiness and willingness of the parties, and the subsistence
of contractual obligations are themselves disputed questions requiring
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evidence, the Court cannot non-suit a party by treating contested assertions
as conclusive admissions.
110. In the present case, the learned District Judge fell in error in
presuming that the Agreement to Sell stood conclusively terminated either
by efflux of time on 31.03.2005 or by issuance of the Notice dated
01.04.2005, despite the fact that the legality and validity of such termination
were disputed issues, pending adjudication.
II. Whether the Declaration for challenging the Termination Notice is
Mandatory in a Suit for Specific Performance:
111. The second aspect which requires consideration is whether, in the
absence of a declaratory relief challenging the termination Notice dated
01.04.2005, the Suit for Specific Performance was not maintainable, as
contended on behalf of the Respondents.
112. In support of the aforesaid contention, reliance has been placed by the
Respondents on the decision of the Supreme Court in I.S. Sikander (supra).
113. In I.S. Sikander (supra), the Agreement to Sell dated 25.12.1983 was
entered into between the parties, under which part-consideration was paid
and time to get the Sale Deed executed was specified as five months, after
obtaining necessary permission from the Competent Authority, such as
Urban Land Ceiling Authority and Income-Tax Department. It was further
agreed that if there was any delay in obtaining necessary permission from
the above authorities and the payment of layout charges, the time of due
performance of Agreement to Sell shall be extended by two months. The
Sellers had given Legal Notice dated 06.03.1985 calling upon the Buyer to
pay balance sale consideration and to get the sale deed executed. While the
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date for execution of Sale Deed was extended once, despite which the buyer
failed to comply with the terms of the Agreement to Sell. In the meanwhile,
the property was sold to the third party and sale deed executed in his favour.
114. In the aforesaid factual background, the Supreme Court held that once
the Agreement to Sell stood terminated and the Plaintiff had failed to seek
any declaration challenging such termination, a Suit for Specific
Performance founded upon a non-existent Agreement could not be
maintained. It was observed that despite due notice and repeated extension
of time granted by the Sellers, the Buyers had failed to demonstrate
readiness and willingness to perform their obligations under the Agreement
to Sell, which ultimately led to the valid termination thereof. Consequently,
the Supreme Court held that in the absence of a specific prayer assailing the
termination, the relief of specific performance was wholly unsustainable.
The Apex Court observed as under:
“36. Since the plaintiff did not perform his part of
contract within the extended period in the legal notice
referred to supra, the agreement of sale was terminated
as per notice dated 28-3-1985 and thus, there is
termination of the agreement of sale between the plaintiff
and defendants 1-4 w.e.f. 10-4-1985.
37. As could be seen from the prayers sought for in the
original suit, the plaintiff has not sought for declaratory
relief to declare the termination of agreement of sale as
bad in law. In the absence of such prayer by the plaintiff
the original suit filed by him before the trial court for
grant of decree for specific performance in respect of the
suit scheduled property on the basis of agreement of sale
and consequential relief of decree for permanent
injunction is not maintainable in law.
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38. Therefore, we have to hold that the relief sought for
by the plaintiff for the grant of decree for specific
performance of execution of sale deed in respect of the
suit scheduled property in his favor on the basis of non-
existing agreement of sale is wholly unsustainable in
law. ”
115. The Supreme Court in the case of A. Kanthamani vs. Nasreen Ahmed ,
(2017) 4 SCC 654, while considering the decision in I. S. Sikandar ( supra ),
clarified that the said decision turned on its own facts and could not be
construed as laying down an inflexible rule regarding maintainability of
every Suit for Specific Performance where the Agreement to Sell is alleged
to have been terminated. In this regard, it was observed as under:
“ 30.3. Third, it is a well settled principle of law that the
plea regarding the maintainability of suit is required to
be raised in the first instance in the pleading (written
statement) then only such plea can be adjudicated by the
trial court on its merits as a preliminary issue under
Order 14 Rule 2 CPC. Once the finding is rendered on
the plea, the same can be examined by the first or/ and
second appellate court. It is only in appropriate cases,
where the court prima facie finds by mere perusal of
plaint allegations that the suit is barred by any express
provision of law or is not legally maintainable due to any
legal provision; a judicial notice can be taken to avoid
abuse of judicial process in prosecuting such suit. Such
is, however, not the case here.
30.4. Fourth, the decision relied on by the learned
counsel for the appellant in I.S. Sikandar turns on the
facts involved therein and is thus distinguishable. ”
116. Thereafter, the Apex Court in the case of R. Kandasamy (since dead)
and Others vs. T.R.K. Sarawathy and Another , (2025) 3 SCC 513, while
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considering both I.S. Sikander (supra) and A. Kanthamani (supra), explained
that where an Agreement to Sell is alleged to have been terminated, the
subsistence and enforceability of such Agreement constitutes a foundational
jurisdictional fact for grant of the relief of Specific Performance. It was
observed that ordinarily, where the vendor has unilaterally cancelled the
Agreement, the purchaser ought to seek a declaration that such termination
is bad and not binding. However, the Supreme Court simultaneously
clarified that merely because no specific issue regarding maintainability
had been framed by the Trial Court, the higher Court is not precluded from
examining whether the foundational facts necessary for grant of relief
existed, provided no new pleadings or evidence are required. At the same
time, it was reiterated that the question whether the Suit is maintainable in
the absence of declaratory relief would necessarily depend upon the facts of
each case and the nature of dispute regarding termination.
117. The aforesaid Judgments were again considered by the Supreme
Court in the case of Annamalai vs. Vasanthi and Others , SLP (C) Nos.
26848-26849/2018 decided on 29.10.2025, wherein it was observed that a
declaratory relief would be required when a doubt or a cloud is cast upon the
right of the Plaintiff and the grant of consequential relief to the Plaintiff is
dependent upon removal of such doubt or cloud. However, whether such
doubt or cloud exists would depend on the facts of each case. It was further
observed that where the Agreement does not give any party a right to
terminate the contract unilaterally, or where such right has been waived, a
unilateral termination may itself amount to breach of the contract. In such a
situation, the aggrieved party may continue to treat the Agreement as
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subsisting and maintain a Suit for Specific Performance without necessarily
seeking a declaration that the termination is invalid.
118. A similar view was taken by this Court in Kushal Infraproject
Industries India Ltd. v. Dalel Singh & Anr. , 2019 (176) DRJ 111, wherein it
was observed that the issues relating to the Agreement, breach, termination
and the Suit for Specific Performance are intricately linked and that the
legality or validity of the termination is inbuilt in the relief of Specific
Performance itself. Consequently, it was held that the Suit could not be held
to be not maintainable at the threshold merely because a separate declaratory
relief challenging the termination had not been sought.
119. Thus, the requirement of seeking a declaratory relief challenging
termination cannot be applied as an inflexible rule divorced from the factual
matrix of each case. Where the validity of termination itself is seriously
disputed and forms part of the issues requiring adjudication, the Plaintiff
cannot be non-suited at the threshold merely for want of a formal
declaratory relief.
120. Reliance was also placed by the Respondents on Sangita Sinha v.
Bhawana Bhardwaj & Ors. , 2025 INSC 450, wherein the Supreme Court
held that where an Agreement to Sell had already been cancelled prior to
institution of the Suit and the purchaser had neither sought a declaratory
relief challenging such cancellation nor demonstrated continuous readiness
and willingness, the Suit for Specific Performance was not maintainable. In
the said case, the purchaser had admittedly received the cancellation letter
and had also encashed the demand drafts returned by the seller, which was
treated by the Supreme Court as acceptance of repudiation and indicative of
lack of willingness to perform the contract.
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121. The facts of the present case, however, stand on a different footing.
Here, the Plaintiff/Appellant has neither accepted refund of the
consideration amount nor acted in a manner amounting to acceptance of
repudiation of the Agreement to Sell. On the contrary, the
Plaintiff/Appellant has consistently disputed the legality and validity of the
alleged termination and has continuously asserted his rights under the
Agreement to Sell through various proceedings. Therefore, the ratio in
Sangita Sinha (supra) is distinguishable, since in the present case, the
validity of termination itself remains a disputed question requiring
adjudication, upon evidence.
122. In the present case as soon as, the time fixed under the Agreement
expired, on the very next day Sellers gave a Notice of Termination of
Agreement dated 01.04.2005 purporting to terminate the Agreement to Sell,
alleging that the Plaintiff/Appellant had failed to pay the balance sale
consideration and had also failed to pay the alleged additional amount of
Rs.10 lakhs.
123. The Plaintiff/Appellant, however, has categorically denied having
committed any breach of the Agreement and has consistently maintained
that he was always ready and willing to perform his obligations thereunder.
124. In this regard, it is also significant to note that specific issues had
already been framed by the learned Trial Court on 20.03.2013 with respect
to the alleged termination/cancellation of the Agreement to Sell and the
readiness and willingness of the Plaintiff/Appellant to perform his
obligations thereunder. The question of Readiness and Willingness and
validity of the alleged termination, are seriously disputed questions which
necessarily require adjudication upon evidence. The matter had progressed
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to the stage of evidence, the learned District Judge could not have
proceeded on the assumption that the termination stood conclusively
established.
125. If upon appreciation of evidence, it is found that the Plaintiff had
committed breach of the Agreement and that the Notice of Termination is
held to be valid, then automatically the relief of Specific Performance would
necessarily be denied to him. Conversely, if it is established that the
Defendants/Respondents were not justified in terminating the Agreement
and that the Plaintiff/Appellant was ready and willing to perform his
obligations, the Plaintiff/Appellant would be entitled to consideration of his
claim for Specific Performance on merits. These disputed questions
necessarily required adjudication upon evidence and could not have been
conclusively determined in proceedings under Order XII Rule 6 CPC.
126. Therefore, as explained in the cases of A. Kanthamani (supra) and R.
Kandasamy (supra), the Suit cannot be dismissed at the outset, merely
because the declaratory relief was not sought.
127. The reliance placed by the learned District Judge on I.S. Sikander
(supra) was misplaced, inasmuch as the facts of the present case are
materially distinguishable. In the present case, the validity of termination
itself is disputed and forms the subject matter of framed issues requiring
adjudication upon evidence. The said decision, therefore, could not have
been applied mechanically to non-suit the Plaintiff/Appellant.
128. The learned District Judge further overlooked that apart from the
relief of Specific Performance, the Plaintiff/Appellant had also sought
consequential reliefs including possession, damages and Permanent
Injunction. The Plaintiff/Appellant could not have been completely non-
Signature Not Verified
RFA 94/2024 Page 35 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42
suited in a Suit filed in the year December 2007 / January 2008, at the time
when evidence was being led by the parties, without adjudication of the
disputed questions arising between the parties.
Conclusion:
129. The impugned judgment under Order XII Rule 6 CPC dated
20.12.2023 is, accordingly, set aside and the matter is remanded to the
learned Trial Court for continuation of the trial from the stage at which the
Suit was dismissed.
130. The parties are directed to appear before the learned District Judge,
Patiala House Courts, New Delhi on 28.05.2026.
131. The pending Applications are disposed of, accordingly.
(NEENA BANSAL KRISHNA)
JUDGE
MAY 13, 2026
va/ N
Signature Not Verified
RFA 94/2024 Page 36 of 36
Signed By:VIKAS
ARORA
Signing Date:13.05.2026
17:37:42