CS(OS) 624/2011 Page 1 of 14

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 30.10.2015

Pronounced on: 23.12.2015

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CS(OS) 624/2011

AMIT KHERA

..... Plaintiff

Through:

Mr. S.N.Choudhri with

Ms. Shruti Choudhri, Advs.

versus

ASHWANI KUMAR GUPTA & ANR

..... Defendants

Through:

Mr. Rakesh Kapur, Adv. for D-1 & 2.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

IA Nos. 17769/2011 & 17832/2011

1. The learned counsel for the applicant submits that the suit is not

maintainable because (i) no cause of action arose in Delhi; (ii) the suit

property is situated outside the territory of Delhi; (iii) there are a number of

triable issues such as the signatures of defendant Nos.1 & 2 on the

Agreement to Sell executed on 17.01.2008 is denied by the said defendants;

(iv) the defendants have not taken any money as mentioned in the alleged

Agreement to Sell; (v) the Agreement to Sell has not been executed on

proper stamp paper; (vi) the Agreement to Sell has not been attested or

registered before any authority hence it lacks authenticity in the eyes of law

and cannot be relied upon and accepted in evidence; (vii) the said document

is forged and fabricated and inadmissible in evidence, therefore, the suit

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should be rejected, and (viii) the plaintiff would have to establish

admissibility of the documents, which in turn would require leading of

evidence, hence the leave to defend should be allowed.

2. The learned counsel for the applicant further submits that, no case is

made out for grant of a decree under Order XXXVII of the CPC as the plaint

is contradictory in parts: the Agreement to Sell, which forms the basis of this

suit, cannot be relied upon because it was allegedly witnessed on 16.01.2008

although it was executed on 17.1.2008; that there can be no witness to a

document or an act unless the document has been executed in the presence

of the witness, therefore, the attestation of the signature of the witness on the

Agreement to Sell is itself contradictory; the veracity of documents would

need to be established in trial. Furthermore, he submits that the Agreement

to Sell mentions two sellers, i.e. defendant Nos.1 & 2, whereas the plaintiff

has recognised only defendant No.1 as the owner of the property; that the

documents which have been filed by the plaintiff show that the NOIDA

Authority records the ownership of the property in the name of three

companies, viz., (a) Two Brothers, (b) Two Brothers Polymers Private

Limited and Two Brothers Filaments Private Limited. He submits that

therefore, the Agreement to Sell could not have been entered into by private

parties unless it is recorded that they have due authority on behalf of those

entities whose names are mutated or recognised by NOIDA Authority to be

the owners of the said properties. He further submits that neither the plaint

nor any document show as to how the amount of Rs.60 lacs was paid to the

defendants; that the document filed as ‘Receipt’ purporting to evidence

receipt of monies by the defendants too is doubtful because it does not bear

a Revenue Stamp; that according to the documents filed by the plaintiff the

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suit property was already mortgaged with the NOIDA Authority, hence, it

could not have been dealt with in the manner clarified by the plaintiff and

that the necessary parties such as the NOIDA Authority has not been

impleaded although the documents of the said Authority are sought to be

relied upon.

3. In reply the learned counsel for the plaintiff submits that the suit seeks

refund of the monies paid to the defendants and