JUDGMENT

Mukta Gupta, J. - By this suit, the plaintiff inter alia seeks a decree of specific performance of the agreement to sell dated 14th July, 2016 which is in continuation of agreement to sell dated 9th July, 2012 in favour of the plaintiff and against the defendant and the direction to the defendant to execute and register sale deed conveying the property No. 32, Paschimi Marg, Vasant Vihar, New Delhi-110057 (in short, the suit property) admeasuring 852 sq.yards in favour of the plaintiff and to hand over the physical and vacant possession of the suit property, in the alternative, money decree for refund of Rs.12.81 Crores along with the interest besides a decree of declaration and injunction and costs.

2. The claim of the plaintiff in the plaint is that the defendant is the owner of the suit property with entire built up portion with all rights, interest, lien and title in the land beneath the same, fixtures and fittings etc. The defendant represented to the plaintiff that the plot was initially allotted to Shri Onkar Nath Bajpai and Smt. Sharda Bajpai in whose favour a perpetual sub-lease dated 5th February, 1971 was registered on 31st March, 1971. The said Shri Onkar Nath died on 8th January, 1991 leaving behind his wife Smt. Sharda Bajpai, three sons and three daughters, who all acquired 1/14th share in the half undivided share of Shri Onkar Nath Bajpai. The property was converted from leasehold to freehold in the joint names of Smt. Sharda Bajpai and other legal heirs by virtue of conveyance deed dated 2nd December, 2004.

3. Later, all the legal heirs of Shri Onkar Nath Bajpai transferred and conveyed the suit property to Shri Om Prakash Lalwani, Mrs. Madhu Lalwani, Shri Kamal Lalwani and Shri Mahesh Lalwani, who later sold the suit property to Shri Lalit Modi vide the registered sale deed dated 10th April, 2008 and handed over to him the vacant and peaceful possession of the suit property. The defendant had shown the chain of title documents to the plaintiff at the time of the execution of the agreement to sell dated 9th July, 2012 but provided only the photocopy of the sale deed dated 10th April, 2008. The sale consideration of the suit property between the plaintiff and defendant was agreed at Rs.18.50 Crores and at the relevant time, circle rate of property was about Rs.16 Crores. In the agreement to sell dated 9th July,2012, the defendant admitted having received a sum of Rs.3,35,00,000/- out of which Rs.41,00,000/- was paid in cash and the balance sale consideration of Rs.15,15,00,000/- was to be paid on or before 31st December, 2014 or within the extended period which may be mutually agreed to by parties after the completion of building and on obtaining requisite completion certificate from the MCD/competent authorities. On receipt of the full and final payment, defendant was required to execute and get registered the sale deed and the relevant documents. It was assured to the plaintiff that the suit property was free from all sort of encumbrances.

4. After execution of the agreement to sell dated 9th July, 2012, the plaintiff paid a further sum totaling to Rs.10,81,00,000/- to the defendant upto 13th July, 2016. Despite repeated requests and even after the expiry of period on 31st December, 2014 as stipulated in agreement dated 9th July, 2012, the defendant failed to execute the sale deed on one pretext or the other. In July 2016, when the parties again met, it was agreed that the earlier agreement dated 9th July, 2012 be torn and destroyed due to personal, compelling and unavoidable circumstances as the defendant was not in a position to execute the sale deed in respect of the suit property due to acute financial crises and family related issues. The defendant also requested for further payments of Rs.2 Crores out of balance sale consideration and a fresh agreement to sell was executed between the parties on 14th July, 2016. Along with the agreement, receipt dated 14th July, 2016 was also executed wherein, t