# Punarvesh Chandra Upadhyay v. Dr. Preeti Agrawal & Ors

- **Citation:** (2025) 11 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-12
- **Case number:** First Appeal No. 389 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/punarvesh-chandra-upadhyay-v-dr-preeti-agrawal-ors-52610
- **Pages:** 26

## Headnote

Mr. Manish Goyal. Sr. Adv., Mr. Archit
Mehrotra

Issue for Consideration
Matter pertains to whether the judgment and
decree passed by the Trial Court decreeing the
suit
for
specific
performance
are
legally
sustainable, particularly in view of the validity
and enforceability of the suit agreement dated
26.05.2010, the authority of the proforma
defendant to execute the said agreement under
the
general
power
of
attorney
dated
04.02.2004,
and
the
applicability
of
the
11 All. Punarvesh Chandra Upadhyay Vs. Dr. Preeti Agrawal & Ors.
103
provisions of the Registration Act, 1908, to a
power of attorney relating to immovable
property situate in the State of Uttar Pradesh.

Headnotes
Code of Civil Procedure, 1908 - s. 35-A, R.
4 O. XIII - Specific Relief Act, 1963 - ss.
34, 38 and 41 - Registration Act, 1908 -
ss. 17, 18, 28, 33 - Contract Act, 1872 - ss.
201, 202 - The plaintiff instituted a suit for
specific performance in respect of a
residential plot allotted by NOIDA to
defendant no.1, alleging that pursuant to
an agreement to sell dated 04.02.2004,
she paid substantial consideration directly
to NOIDA on the defendant's behalf,
obtained possession of the property, and
raised constructions thereon, and that a
registered general power of attorney
executed on the same date authorised
defendant no.3 to act for defendant no.1,
pursuant to which a registered agreement
to sell dated 26.05.2010 was executed in
her favour, the defendant denied the
execution and validity of the agreements,
alleged forgery and misuse of the power
of
attorney,
and
asserted
its
prior
cancellation,
while
NOIDA
contested
maintainability, the Trial Court decreed
the
suit
for
specific
performance,
whereupon the defendant preferred the
instant first appeal before the High Court
challenging the legality of the decree.

Held: From a perusal of the testimony, it is
evident that the defendant, after making an
initial struggle to come up with a false story
about him paying installments to NOIDA for the
grant of lease broke down in the end, after
floundering for answers and said unequivocally
that it was the plaintiff, who paid the entire sum
of money towards consideration for the lease in
the NOIDA's account, drawing it from her
savings bank account maintained with the Dena
Bank through instruments, which he has
described as cheques - The Trial Court after
looking into the receipts and copies of
instruments,
evidencing
transfer
of
lease
consideration/installments to NOIDA, besides
the statement of plaintiff's bank account and
that of defendant and their income tax returns,
has come to the categorical conclusion that it
was the plaintiff, who had paid the entire
consideration/ installment due to NOIDA on
account of lease granted in defendant's favour -
We affirm the said finding and hold that it is the
plaintiff who has paid the entire consideration
for the lease executed in favour of the
defendant by the NOIDA, crediting the money
directly into the NOIDA's account throu

## Text

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102 INDIAN LAW REPORTS ALLAHABAD SERIES

44.
In
view
of
the
aforesaid
discussion, this Court holds that the learned
Trial Court has drawn direct inference
merely based on the fact that there was
illicit relationship between the appellant
and Rajesh Kumar Mishra, therefore, they
conspired with each other and executed a
plan of killing Nandini and her son.
However, it is evident from the discussions
made hereinabove, that the learned Trial
Court while convicting appellant- Kamini
Verma for the offence punishable under
Section 120-B of the Indian Penal Code,
has not made any objective analysis of the
evidence on record referring to the
particular act of appellant Kamini Verma
indicating that she hatched a conspiracy
with the main accused- Rajesh Kumar
Mishra, as per the observations of Hon'ble
Apex Court in the aforesaid case of State of
Kerala
Versus
P.
Sugathan
and
another(Supra).

45. Further, there are no circumstances
established by the prosecution about the
involvement of appellant -Kamini Varma
in the crime. It is well settled that
suspicion, how so ever grave, cannot
replace the proof. Therefore, we are of the
opinion that, the learned trial Judge has
committed an error by drawing inference
that appellant-Kamini Verma was involved
in the present crime. No active role of
appellant- Kamini Verma in hatching
conspiracy for killing Nandini or the
Appellant having any common intention
with the co-accused Rajesh Kumar, has
been established by the prosecution beyond
all reasonable doubts and therefore, she is
certainly entitled for benefit of doubt.

46. As a sequel to the above, the
impugned Judgment cannot be sustained in
the eyes of law. Thus, the present Criminal
Appeal 855/2016 stands allowed and the
judgment and order dated 10.6.2016 passed
by the Additional Sessions Judge/Fast
Track Court No. 1, Balrampur in Sessions
Trial No. 34 of 2012 arising out of Crime
no. 553 of 2011 (State V/s Rajesh Kumar
Mishra and others), is hereby quashed and
set aside and the Appellant- Kamini Verma
is acquitted from the offence punishable
under Sections 302/34 of the Indian Penal
Code and Section 120B of the Indian Penal
Code. As a consequence, to the said
acquittal, the Appellant shall be set at
liberty forthwith, if not required in any
other case.

47. There shall be no order as to cost.
----------
(2025) 11 ILRA 102
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal No. 389 of 2017

Punarvesh Chandra Upadhyay ...Appellant
Versus
Dr. Preeti Agrawal & Ors. ...Respondents

Counsel for the Appellant:
Mr. Pankaj Agarwal

Counsel for the Respondents:
Mr. Manish Goyal. Sr. Adv., Mr. Archit
Mehrotra

Issue for Consideration
Matter pertains to whether the judgment and
decree passed by the Trial Court decreeing the
suit
for
specific
performance
are
legally
sustainable, particularly in view of the validity
and enforceability of the suit agreement dated
26.05.2010, the authority of the proforma
defendant to execute the said agreement under
the
general
power
of
attorney
dated
04.02.2004,
and
the
applicability
of
the
11 All. Punarvesh Chandra Upadhyay Vs. Dr. Preeti Agrawal & Ors.
103
provisions of the Registration Act, 1908, to a
power of attorney relating to immovable
property situate in the State of Uttar Pradesh.

Headnotes
Code of Civil Procedure, 1908 - s. 35-A, R.
4 O. XIII - Specific Relief Act, 1963 - ss.
34, 38 and 41 - Registration Act, 1908 -
ss. 17, 18, 28, 33 - Contract Act, 1872 - ss.
201, 202 - The plaintiff instituted a suit for
specific performance in respect of a
residential plot allotted by NOIDA to
defendant no.1, alleging that pursuant to
an agreement to sell dated 04.02.2004,
she paid substantial consideration directly
to NOIDA on the defendant's behalf,
obtained possession of the property, and
raised constructions thereon, and that a
registered general power of attorney
executed on the same date authorised
defendant no.3 to act for defendant no.1,
pursuant to which a registered agreement
to sell dated 26.05.2010 was executed in
her favour, the defendant denied the
execution and validity of the agreements,
alleged forgery and misuse of the power
of
attorney,
and
asserted
its
prior
cancellation,
while
NOIDA
contested
maintainability, the Trial Court decreed
the
suit
for
specific
performance,
whereupon the defendant preferred the
instant first appeal before the High Court
challenging the legality of the decree.

Held: From a perusal of the testimony, it is
evident that the defendant, after making an
initial struggle to come up with a false story
about him paying installments to NOIDA for the
grant of lease broke down in the end, after
floundering for answers and said unequivocally
that it was the plaintiff, who paid the entire sum
of money towards consideration for the lease in
the NOIDA's account, drawing it from her
savings bank account maintained with the Dena
Bank through instruments, which he has
described as cheques - The Trial Court after
looking into the receipts and copies of
instruments,
evidencing
transfer
of
lease
consideration/installments to NOIDA, besides
the statement of plaintiff's bank account and
that of defendant and their income tax returns,
has come to the categorical conclusion that it
was the plaintiff, who had paid the entire
consideration/ installment due to NOIDA on
account of lease granted in defendant's favour -
We affirm the said finding and hold that it is the
plaintiff who has paid the entire consideration
for the lease executed in favour of the
defendant by the NOIDA, crediting the money
directly into the NOIDA's account through bank
instruments as per details to be shortly
indicated - Expenses incurred in execution of
lease, which would include the stamp duty and
registration charges, too have been borne by
plaintiff, though this lease deed has been
executed by the NOIDA in the defendant's
favour, their allottee - In the absence of any
documentary evidence to establish the plaintiff's
claim that she in fact got a map sanctioned to
raise constructions on the suit property,
constructed thereon and then secured a
completion certificate, it is difficult to accept her
case about the constructions, if any existing on
the suit property, belonging to the plaintiff - By
infallible documentary evidence, the lease deed
dated 25.02.2005 and the memo of possession
dated 10.03.2005, possession remains that of
the defendant - Since specific performance
cannot be granted in favour of the plaintiff, the
decree of the Trial Court to that extent is liable
to be set aside - However, as the plaintiff's
investment of ₹43,98,959/- towards securing
the lease deed in favour of defendant from
NOIDA
stands established,
the
defendant
cannot be allowed to retain the said amount, as
doing so would result in unjust enrichment
under a contract that is invalid in law. [Paras 63,
64, 69, 70] (E-13)

Case Law Cited
M.S. Ananthamurthy v. J. Manjula, 2025 SCC
OnLine SC 448; Jagat Narayan Thakur v.
Birendra Hati Baruah, (1992) 1 Gauhati Law
Reports 317; SP. Vairavan v. The Sub-Registrar,
Joint-I, the Sub-Registrar Office, Tenkasi and
others, W.A. (MD) No. 462 of 2025, decided
on 03.06.2025 - referred to

List of Acts
Code of Civil Procedure, 1908; Specific Relief
Act, 1963; Registration Act, 1908; Contract Act,
1872

List of Keywords
Judgment
and
decree;
Suit
for
specific
performance of contract; Trial Court; Plaintiff;
104 INDIAN LAW REPORTS ALLAHABAD SERIES
Defendant / Proforma defendant; Agreement to
sell; Suit agreement; Sale consideration; Earnest
money / Advance; Registered agreement;
Unregistered agreement; General Power of
Attorney; Special Power of Attorney; Registered
instrument; Cancellation of power of attorney;
Validity of power of attorney; Authority to
execute; Disposition of immovable property;
Registration;
Sub-Registrar;
Territorial
jurisdiction; Section 28 of Registration Act;
Compulsory
registration;
Admissibility
in
evidence; Not receivable in evidence; Lease
deed; Possession; Consideration paid to NOIDA;
Maintainability of the suit; Decree for specific
performance; Enforceable agreement; Illegality;
Infirmity; Points for determination; Evidence on
record; Oral evidence; Documentary evidence;
Pleadings of parties; Alternative relief.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
389 of 2017

From
the
Judgment
and
Decree
dated
17.02.2017 passed by the Civil Judge (Senior
Division), Gautam Budh Nagar in Original Suit
No. 1020 of 2010

Appearances for Parties
Adv. for the Appellant:
Pankaj Agarwal

Advs. for the Respondents:
Manish Goyal (Senior Advocate), Mr. Archit
Mehrotra

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendant's first appeal,
arising
out
of
a
suit
for
specific
performance of contract.

2. Dr. Preeti Agrawal instituted
Original Suit No.1020 of 2010 in the Court
of the Civil Judge (Senior Division),
Gautam Budh Nagar against Punarvesh
Chandra Upadhyay, the appellant here, the
New
Okhla
Industrial
Development
Authority (for short, 'NOIDA') through its
Chief Executive Officer and Dr. Sunil
Sharma, Dr. Preeti Agrawal's husband,
principally seeking the relief of specific
performance of contract. Alternatively, a
relief
of
damages
to
the
tune
of
Rs.44,01,100/-, together with 18% annual
interest, was claimed against Upadhyay and
refund of the entire sum of money
deposited by Dr. Preeti Agrawal in the
office of the NOIDA. In addition, a
permanent
prohibitory
injunction
was
sought against Upadhyay to the effect that
he may be restrained from transferring the
suit property in favour of any third party
perpetually and desist from interfering with
Dr. Preeti Agrawal's possession therein, in
any manner whatsoever. In substance,
therefore, the suit is one for specific
performance with an alternative relief for
damages, the permanent injunction, being
no more than an aid to the principal relief
of specific performance.

3. Dr. Preeti Agrawal, who shall
hereinafter be called 'the plaintiff', came up
with a case in the plaint that Plot No.51,
Block-B, Sector 52, NOIDA, District
Gautam Budh Nagar, admeasuring 450
square meters, was allotted by the NOIDA
in favour of Punarvesh Chandra Upadhyay,
defendant No.1 to the suit (for short, 'the
defendant') on 19.01.2004. The above
mentioned plot of land, which is described
at the foot of the plaint with reference to its
plot number, block number, sector number
and its revenue district of location, shall be
called hereinafter 'the suit property'.

4. The defendant agreed to sell the suit
property in the plaintiff's favour for a total
sale consideration of Rs.30,55,500/- and, in
this regard, executed an agreement to sell
dated
04.02.2004. The defendant
on
04.02.2004, that is to say, the same date as
that of the agreement to sell, executed a
registered power of attorney in the
11 All. Punarvesh Chandra Upadhyay Vs. Dr. Preeti Agrawal & Ors.
105
plaintiff's favour relating to the suit
property. In addition, he also executed a
Will, favouring the plaintiff as the legatee,
entitled to inherit the suit property in the
event of his demise. The Will was executed
in the presence of witnesses. All these
transactions were done on the same date i.e.
04.02.2004. The plaintiff says that in
accordance with the terms of the agreement
to sell dated 04.02.2004, which shall be
called 'the agreement dated 04.02.2004' for
brevity, the plaintiff deposited and paid up
all
outstanding
monthly
installments
towards sale consideration of the suit
property due in favour of the NOIDA and
against the defendant. The plaintiff also
paid other charges that the NOIDA was
entitled to claim from the defendant, vis-avis the suit property.

5. It is averred in the plaint that in
accordance with the agreement dated
04.02.2004, the plaintiff deposited in the
office
of
the
NOIDA
a
sum
of
Rs.7,91,250/-, drawing it upon her Bank,
the Dena Bank, where she maintains
Account No.1476. The aforesaid money
was deposited with the NOIDA on
11.02.2004. The said sum of money was
due to the NOIDA on account of the
outstanding
monthly
installments.
In
addition, the plaintiff deposited in the
office of the NOIDA on 09.07.2004, a sum
of
Rs.3,40,200/-
through
pay
order,
purchased by her from the Dena Bank,
where she maintains Account No.1476. A
further sum of Rs.3,27,442.50 through pay
order was deposited on 14.01.2005 with the
NOIDA by the plaintiff, drawing the same
upon her Bank Account aforesaid. On the
same day i.e. 14.01.2005, the plaintiff
deposited a further sum of Rs.1,51,875/-
with the NOIDA through a bank draft
purchased from the Dena Bank, drawing it
upon her account. The last mentioned sum
was paid by the plaintiff, as she pleads, to
the NOIDA towards location charges of the
suit property. Again on 17.02.2005, the
plaintiff deposited with the NOIDA,
through bank draft, a sum of Rs.31,944/- on
account of lease rent payable for the suit
property.

6. After all this consideration due to
the NOIDA on account of the proposed
lease of the suit property, favouring the
defendant were made good, the NOIDA
executed a registered lease deed in the
defendant's favour on 25.02.2005. The
NOIDA
then
proceeded
to
deliver
possession of the suit property to the
defendant on 10.03.2005. It is the plaintiff's
case that the entire expenses, including the
chargeable stamp duty towards execution
of
the
registered
lease
deed
dated
25.02.2005 in the defendant's favour by the
NOIDA, were borne by the plaintiff. The
plaintiff says that she drew a sum of
Rs.2,83,350/- from her Bank Account,
bearing Account No.1476, maintained with
the Dena Bank, which was utilized to buy
the requisite stamp paper for engrossing the
lease deed and she paid a further sum of
Rs.5,060/- on account of registration
charges. The total sum of money that the
plaintiff paid for execution of the lease
deed was a sum of Rs.3,14,685/-, which she
deposited by bank draft, favouring the
NOIDA in their office.

7. There was still a balance payable
towards consideration payable for the lease
by
the
defendant
and
the
plaintiff,
therefore, on 04.01.2006, through a bank
draft purchased from the Dena Bank, paid
the NOIDA a sum of Rs.3,01,927.50. The
next payment, that the plaintiff made
towards outstanding installments for the
lease, relating to the suit property, was a
sum of Rs.3,56,985/-, that she deposited
106 INDIAN LAW REPORTS ALLAHABAD SERIES
through bank draft purchased by the
plaintiff
from
the
Dena
Bank
on
22.03.2006, debiting it to her account,
maintained with the said Bank. The
aforesaid sum of money was paid to the
NOIDA. The next deposit of a sum of
money on account of consideration for the
lease was made by the plaintiff on
12.07.2006 through a demand draft worth
Rs.2,89,170/-, again issued by the Dena
Bank. The last of the outstandings for the
lease, executed in the defendant's favour,
was a sum of Rs.10,67,125/- that the
plaintiff paid on 26.07.2006, again through
a bank draft purchased from the Dena
Bank. After deposit of the said sum of
money, all dues towards consideration for
the lease stood liquidated.

8. The plaintiff says that in accordance
with the agreement dated 04.02.2004, she is
ever ready and willing to get a transfer deed
of the suit property executed in her favour by
the defendant. The plaintiff demanded of the
defendant, on a number of occasions, the
execution of a transfer deed in accordance
with the agreement dated 04.02.2004 in her
favour after fulfilling all necessary formalities
for the purpose, but the defendant warded off
his liability to execute the transfer deed. He
did no more than extend assurances. On
12.03.2005, the plaintiff was delivered
possession of the suit property by the
defendant, and, thereafter, the plaintiff, after
ensuring
fulfillment
of
the
necessary
formalities with the NOIDA and securing a
sanctioned plan, raised constructions. The
constructions that the plaintiff raised over the
suit property involved an expenditure of the
sum of Rs.7,00,000/-, which was paid out of
her Bank Account by the plaintiff, maintained
with the Dena Bank.

9. It was in the last week of the month
of April, 2010 that the plaintiff demanded
of the defendant that he do execute, in
terms of the agreement dated 04.02.2004, a
registered transfer deed in her favour,
conveying his rights in the suit property.
The defendant, however, evaded and
prevaricated in the matter of fulfilling his
obligations to execute the deed. The
plaintiff
sought
legal
advice,
and,
thereupon,
came
to
know
that
the
agreement dated 04.02.2004 in her favour
was an unregistered instrument, which does
not confer any right upon her, under the
law, to enforce her claim to the suit
property.
The
plaintiff,
therefore,
demanded of the defendant execution of a
registered agreement in her favour, which
again met with avoidance by the defendant.
The plaintiff then asked Dr. Sunil Sharma,
the plaintiff's husband and defendant No.3
to the suit (for short, 'the proforma
defendant'), who held a registered power of
attorney
dated
04.02.2004
from
the
defendant,
to
execute
a
registered
agreement
to
sell
in
her
favour,
covenanting to transfer the defendant's
rights in the suit property.

10. It is the plaintiff's case that the
registered power of attorney, in favour of
the proforma defendant, was submitted by
the plaintiff to the Sub-Registrar, SubDivision-IV, Seelampur, Delhi in the fourth
week of the month of May, 2010 for the
purpose of determining its validity. The
plaintiff then came to know that the
registered general power of attorney dated
04.02.2004 executed by the defendant in
favour of the proforma defendant was a
valid instrument and that the power had not
been cancelled. It was then that the
proforma
defendant,
acting
as
the
defendant's attorney, executed a registered
agreement to sell dated 26.05.2010 in the
plaintiff's favour, well within the terms of
his power, conferred by the registered
11 All. Punarvesh Chandra Upadhyay Vs. Dr. Preeti Agrawal & Ors.
107
power of attorney dated 04.02.2004. The
registered
agreement
to
sell
dated
26.05.2010 executed by the proforma
defendant
in
the
plaintiff's
favour,
covenanted to transfer on the defendant's
behalf, his rights in the suit property.

11. It is specifically pleaded by the
plaintiff that the covenants, that were
carried in the agreement dated 04.02.2004,
remained unchanged in the registered
agreement
to
sell
dated
26.05.2010
executed by the proforma defendant, as the
defendant's attorney. It is further pleaded
by the plaintiff that she is ever ready and
willing to get a transfer deed executed in
her favour in accordance with the terms of
the registered agreement to sell dated
26.05.2010 (for short, 'the suit agreement').

12. It is the plaintiff's case that she has
paid the entire consideration due for the
transfer of leasehold rights to the suit
property in her favour and that she is in
possession thereof. It is also pleaded that
the constructions standing on the suit
property have been raised and belong to the
plaintiff. She further says that relating to
the suit property, water tax etc. payable by
the defendant, has in fact been paid by the
plaintiff and that charges for the electricity
connection and its periodic bills installed
on the premises, located in the suit
property, are paid by the plaintiff.

13. It is the plaintiff's case that after
26.05.2010, she demanded of the defendant
execution of a registered transfer deed in
accordance with the agreement dated
04.02.2004 and the suit agreement, but the
defendant
avoided
discharging
his
obligations.
The
plaintiff
asked
the
proforma defendant to execute a registered
transfer deed in her favour on the strength
of the power of attorney held by him from
the defendant, whereupon, she came to
know that the registered power dated
04.02.2004, executed by the defendant in
the proforma defendant's favour, had been
illegally cancelled on 06.07.2010. This
shows, as the plaintiff says, a soiling of the
defendant's bona fides about the transaction
between parties. It was then evident that the
defendant was not at all willing to execute
a transfer deed in terms of the suit
agreement in the plaintiff's favour. It is
specifically pleaded in the plaint that the
proforma defendant is a formal party and
no relief has been claimed against him. It is
also the plaintiff's case that the defendant,
with his intentions now turned foul, is
proceeding to transfer the suit property in
favour of a third party and threatening to
interfere with the plaintiff's peaceful
possession therein, a right, which he does
not have under the law. It is on the said
cause of action that the plaintiff has
brought the present suit for specific
performance and permanent prohibitory
injunction.

14. Two written statements were filed,
one each on behalf of the defendant and the
NOIDA.

15. The defendant generally traversed
the plaint case, castigating it as one that
was false, baseless, concocted, sham and a
product of ingenious drafting to secure
unjust enrichment. The allotment of the suit
property by the NOIDA in the defendant's
favour was admitted, but it was averred that
the allotment of the suit property in the
defendant's favour by the NOIDA was
never challenged by the plaintiff. The
execution
of
the
agreement
dated
04.02.2004, covenanting a sale by the
defendant of the suit property in the
plaintiff's
favour,
was
denied.
The
execution of the registered special power of
108 INDIAN LAW REPORTS ALLAHABAD SERIES
attorney in the proforma defendant's
favour, and the Will in the plaintiff's
favour, was admitted, with a plea of
avoidance, to the effect that the power and
the testament were executed for the
purpose of enabling the plaintiff and the
proforma defendant to take care of the suit
property, during time, when the defendant
was seriously ill and unable to undertake
his daily routine. It is his case that
immediately upon regaining health, he
revoked the power of attorney as well as
the Will. The defendant says that the
plaintiff and the proforma defendant have
turned dishonest and in complete breach of
trust and faith reposed in them by the
defendant, are fraudulently attempting to
deny the defendant's title. The remittance of
a sum of Rs.1,20,000/- vide Cheque
No.492610
dated
27.01.2004
by
the
plaintiff, favouring the defendant, in terms
of the agreement dated 04.02.2004, has
been denied, as much as execution of the
agreement itself. The payment of a sum of
Rs.18,000/- in cash by the plaintiff to the
defendant has also been denied.

16. So far as the agreement dated
04.02.2004 is concerned, it is castigated by
the defendant as absolutely false and a
fabricated document, which has been
prepared by the plaintiff in collusion with
the proforma defendant for the purpose of
unlawfully depriving the defendant of his
lawful title to the suit property. The
agreement dated 04.02.2004 has been
condemned as a product of forgery, of
which the defendant was not aware earlier.
It is the defendant's case that the NOIDA
proceeded to execute a registered lease
deed dated 25.02.2005, in the defendant's
favour, after he had deposited all the
consideration and other charges, payable in
terms of the letter of allotment dated
19.01.2004. The defendant says that after
the NOIDA received and verified the
payment of all their dues towards sale
consideration etc. from the defendant, they
handed over possession of the suit property
to him. Allegations to the contrary in
paragraph No.9 of the plaint have been
denied.

17. The fact that the plaintiff had
deposited money payable for the stamp
duty leviable and registration charges from
her Bank Account has been denied. The
defendant has expressed utter ignorance as
to the reason that the plaintiff alleges a case
of deposit of the stamp duty charges and
other registration charges for transfer of the
suit property in the defendant's favour,
which is lawfully owned by the defendant
and also possessed by him. It is added by
the defendant, in aid of his plea, that the
agreement dated 04.02.2004 is the product
of forgery that the said agreement is an
unregistered document, and, if it had been
registered, the defendant would have
knowledge thereof.

18. The fact that the defendant made
any
representation
or
extended
any
assurance to the plaintiff that a transfer
deed would be executed in her favour, is
denied. It is pleaded that the defendant does
not want to alienate, transfer or sell the suit
property, lawfully owned and occupied by
him. It is next averred that the NOIDA
handed over possession to the defendant
after all formalities, prescribed under the
letter of allotment, had been undertaken
and the lease deed executed. The fact that
the plaintiff got a building plan sanctioned
to construct over the said property,
incurring an expenditure of Rs.7,00,000/-
in raising constructions, is also denied. It is
denied too for a fact that the plaintiff ever
approached the defendant for the execution
of a transfer deed, in accordance with the
11 All. Punarvesh Chandra Upadhyay Vs. Dr. Preeti Agrawal & Ors.
109
agreement dated 04.02.2004. The plaintiff
says that the defendant never approached
him for execution of any transfer deed nor
had any legal right to do so.

19. It is averred that, for a fact, the
proforma defendant, who is the plaintiff's
husband, had been authorized to act on the
defendant's behalf by virtue of the
registered power of attorney, whilst the
defendant was ill and unable to perform his
regular and day-to-day work. The power
was revoked as soon as the defendant
regained his health. The defendant reliably
learnt that the proforma defendant along
with the plaintiff had turned dishonest and
were trying to dispossess him, besides
denuding him of title. In this regard, the
defendant lodged a complaint with the
NOIDA bringing to their knowledge the
said fact, as also that any transfer of rights
in the plaintiff's favour, would be invalid
and illegal.

20. It is next pleaded that the plaintiff
in collusion with the proforma defendant,
her husband, who had been given the
power of attorney by the defendant to take
care of his property in his absence,
executed
the
suit
agreement
in
the
plaintiff's favour by misleading the SubRegistrar. The power of attorney had
already been cancelled in the office of the
Sub-Registrar,
NOIDA,
within
whose
jurisdiction, the suit property is located.
The suit agreement is, therefore, absolutely
void and illegal. The defendant says that he is
the lawful owner of the suit property, his title
having originated in a valid letter of allotment
issued by the NOIDA and acquired under a
registered lease deed by the NOIDA,
executed in his favour. It is denied that the
defendant is attempting to interfere with the
plaintiff's possession. Rather, the defendant,
being lawful owner of the suit property, the
plaintiff is not entitled to the relief of
perpetual injunction or the other reliefs that
she seeks. According to the defendant, the
suit was fit to be dismissed with heavy cost.

21. A written statement on behalf of the
NOIDA was filed on 21.04.2011, pleading a
general denial to the plaint case, mostly on
account of want of knowledge. However, the
contents of paragraph No.1 of the plaint were
admitted. In the additional pleas, it is averred
that the proforma defendant made an
application, seeking permission to transfer the
suit property on 05.07.2010, supporting it
with the agreement dated 04.02.2004 (a
notarized document) and a photostat copy of
the suit agreement. The NOIDA say that the
suit is barred by limitation. It is their case that
the suit is not maintainable against the
NOIDA. It is averred that the suit, as framed,
is not maintainable and the plaintiff has no
locus standi to bring the suit. It is also averred
that the plaintiff has not sought any relief
against the NOIDA, and, therefore, so far as
the NOIDA goes, it is a case of misjoinder.
The NOIDA also plead that no prima facie
case is disclosed in the plaintiff's favour nor
is it a case where the balance of convenience
lies in the plaintiff's favour. It is for the said
reason that the plaintiff's suit against the
NOIDA is not maintainable and ought be
dismissed. The suit is said to be barred by
Sections 34, 38 and 41 of the Specific Relief
Act, 1963 and one that is fit to be dismissed
under Section 35-A CPC with special costs in
the sum of Rs.5000/-.

22. On the pleadings of parties, the
Trial Court framed the following issues
(translated into English from Hindi):

"(1) Whether defendant No.3
executed an agreement on 26.05.2010 in
favour of the plaintiff, covenanting to sell
the property in dispute?
110 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Whether the plaintiff paid in
earnest to defendant No.1 a sum of money?

(3) Whether the plaintiff has been
ever ready and willing to get a sale deed
executed in terms of the agreement to sell
dated 26.05.2010?

(4) Whether the suit is barred by
Sections 34, 38 and 41 of the Specific Relief
Act?

(5)
Whether
the
suit
is
undervalued? And, the court fee paid is
insufficient?

(6) Whether the plaintiff has a
cause of action to sue?

(7) Whether the plaintiff is
entitled to get a sale deed executed in her
favour, relating to the property in dispute,
on the basis of her pleaded case in the
plaint?

(8) Whether the plaintiff is
entitled to any other relief, if there is one
that can be granted?"

23. The plaintiff examined herself, to
wit, Preeti Agrawal, PW-1, Ravindra
Kumar, PW-2 and Subodh, PW-3. The
following
documentary
evidence
was
produced in support of the plaintiff's case:

Sl.
No
.
Description of
Document
Date of
document
Pape
r No.
1.
Allotment
Letter
19.01.200
4
9-ग
2.
Original
Agreement to
sell
04.02.200
4
10-ग
3.
Original
General Power
04.02.200
4
11-ग
of Attorney
4.
Original
Registration
Form 2

12-ग
5.
Original Special
Power of
Attorney
04.02.200
4
13-ग
6.
Original
Deposit
Receipts

14-ग
7.
Original Lease
Deed
25.02.200
5
15-ग
8.
Copy of the
Possession
Letter
10.03.200
5
16-ग
9.
Original
Agreement to
Sell
26.05.201
0
17-ग
10.
Copy of the
Ledger Account

18-ग
11.
Carbon Copy of
the Water Tax,
Electricity
Receipts etc.
20.05.201
0
19-ग
12.
Copy of the
Income Tax
Return of Dr.
Preeti Agrawal

49-ग
13.
Copy of the
Reference
Letter issued by
the Bank to Dr.
Sunil Sharma.
22.06.201
6
125ग
14.
Attested and
verified copy of
the demand
draft amounting
Rs.1,20,000/-
29.09.200
3
126ग
15.
Attested and
verified copy of
the
acknowledgmen
t receiving the
demand draft
29.09.200
3
127ग
11 All. Punarvesh Chandra Upadhyay Vs. Dr. Preeti Agrawal & Ors.
111
16.
Copy of the
reply to the RTI
Application
15.11.201
6
130ग

24. The defendant examined himself,
to wit, Punarvesh Chandra Upadhyay, DW1, Veena Sharma, DW-2 and Vijendra
Singh
Rana,
DW-3.
The
defendant
produced documentary evidence in support
of his case as well, which is summarized
below:

Sl.
No
.
Description of
Document
Date of
document
Pape
r No.
1.
Copy of the
cancellation
deed of General
Power of
Attorney
(G.P.A.) and the
order passed by
the SubRegistrar,
Seelampur
17.10.200
8
 &

25.10.200
8
62-ग
2.
Copy of the
application
under the RTI
Act and the
replies thereto.
28.09.201
0,
19.10.201
0,
12.10.201
0
63-ग
3.
Copy of the
notice issued by
Punarvesh
Chandra
Upadhyay
through
Advocate
17.10.200
8
64-ग
4.
Copy of the
news article

65-ग
5.
Copy of the
applications
given by
Punarvesh
Chandra

66-ग
Upadhyay to the
NOIDA,
Possession
Order,
Possession
Certificate
6.
Copy of the
Lease Deed
25.02.200
5
67-ग
7.
Copy of the
passbook of
Punarvesh
Chandra
Upadhyay

68-ग
8.
Copy of the
application for
loss of records
and the FIR got
registered by
Punarvesh
Chandra
Upadhyay
regarding loss
of documents

69-ग
9.
Copy of Receipt
Book (A) of
cancellation of
the G.P.A., the
S.P.A. and the
Will
17.10.200
8
73-क
10.
Copy of the
cancellation
order of the
G.P.A., the
S.P.A. and the
Will passed by
the SubRegistrar-IV,
Seelampur,
Delhi
25.10.200
8
74-क
11.
Original
Cancellation
Deed of the
registered
G.P.A.
30.09.200
8
75-क
12.
Original

76-क
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Cancellation
Deed of the
registered
S.P.A.
13.
Original
Cancellation
Deed of the
registered Will
07.10.200
8
77-क
14.
Copy of the
notice issued by
Punarvesh
Chandra
Upadhyay
through
Advocate
17.10.200
8
78-क
15.
Copy of the
courier receipt
17.10.200
8
79-क
16.
Original News
Article
04.05.201
0
80-क
17.
Original receipt
of RTI
28.09.201
0
81-क
18.
The applications
given by
Punarvesh
Chandra
Upadhyay under
the RTI Act

82-क
to
85-क
19.
Carbon Copy of
the application
given by
Punarvesh
Chandra
Upadhyay to the
NOIDA
06.07.201
0
86-क
20.
Copy of the
applications
given by
Punarvesh
Chandra
Upadhyay to the
NOIDA

87-क
to
89-क
21.
Acknowledgme
nt of letters by
the NOIDA
30.06.201
0
90-क
22.
Copy of the
application
given by
Punarvesh
Chandra
Upadhyay at
P.S. New Ashok
Nagar, Delhi
30.06.200
9
91-क
23.
Original
Passbook of
Punarvesh
Chandra
Upadhyay

92-क
24.
Carbon Copy of
the FIR lodged
by Punarvesh
Chandra
Upadhyay

93-क
25.
Copy of the
G.O. issued by
the Divisional
Commissioner,
I.G.R., Delhi

133ग

25. Issues Nos.1, 2 and 3 were decided
together by the learned Trial Judge,
answering each of them in the affirmative.
Issue No.4 was answered in the negative.
Issue
No.5
is
about
valuation
and
sufficiency of the court fees, which was
decided earlier by the learned Trial Judge
vide order dated 18.07.2013 and made part
of the judgment impugned. Issue No.6 was
again answered in the affirmative. Issues
Nos.7 and 8 were decided together, holding
in favour of the plaintiff to the effect that
she was entitled to secure execution of a
transfer deed from the defendant in terms
of the suit agreement.

26. Upon the aforesaid findings, the
suit was decreed for specific performance
of contract in terms that the proforma
defendant was ordered to execute a sale
deed in the plaintiff's favour and get it
11 All. Punarvesh Chandra Upadhyay Vs. Dr. Preeti Agrawal & Ors.
113
registered, as covenanted under the suit
agreement, within three months of the date
of the impugned judgment and decree upon
the plaintiff supplying the necessaries for
the stamp duty leviable. It was also ordered
that
upon
default
by
the
proforma
defendant, it would be open to the plaintiff
to secure execution and registration of the
sale deed through process of Court.

27. Aggrieved, this appeal from the
original decree has been preferred by the
defendant.

28. Heard Mr. Pankaj Agarwal,
learned Counsel for the defendant and Mr.
Manish Goyal, learned Senior Advocate,
assisted by Mr. Archit Mehrotra, learned
Counsel appearing on behalf of the
plaintiff.

29. The points of determination that
arise in this appeal were formulated by the
Court on 01.09.2021 and of these, point of
determination No.2 was corrected for a
clerical error vide order dated 23.03.2022.

30. The learned Counsel for the
parties made their submissions on the
points for determination extensively,
taking us through all relevant evidence
that
has
bearing.
The
points
for
determination read:

"(1) Whether the suit-agreement
dated
26.05.2010
was
executed
by
defendant no. 3 in favour of the plaintiff?

(2)
Whether
advance/earnest
towards sale consideration was paid by the
plaintiff to defendant no. 1?

(3) Whether the plaintiff has been
ever ready and willing to perform her part
of the suit agreement?

(4) Whether the general power of
attorney dated 04.02.2004 executed by
defendant no. 1 in favour of defendant no. 3
would be valid for the purpose of
disposition of property situate in Uttar
Pradesh?

(5) Whether the plaintiff is
entitled to specific performance on the
basis of the plaint allegations and the
evidence led in support thereof?

(6) Whether registered power of
attorney
dated
04.02.2004
has
been
cancelled by defendant no. 1?"

31. So far as the first point of
determination is concerned, we think that it
can
be
decided
on
the
defendant's
admission in his pleadings. This point of
determination is to be understood for what
it is, without adding facts in issue or
relevant facts, that are in substance not the
subject matter of this point. All that this
point says, is if the suit agreement was
executed by the proforma defendant in the
plaintiff's favour. It is not necessary for us
to say that by the suit agreement, we mean
the agreement dated 26.05.2010 that the
proforma
defendant
executed
in
the
plaintiff's favour. The only fact in issue that
this point is concerned with is if the suit
agreement was for a fact executed in favour
of the plaintiff by the proforma defendant.
It is not concerned with other facts,
relevant or in issue if the proforma
defendant, on the date he executed the suit
agreement, had a subsisting power of
attorney in his favour, enabling him to
execute the said agreement; or he was
otherwise disabled from executing that
agreement; or still more, if there was any
mala fide or inequity, vitiating the
proforma defendant's act in executing the
suit agreement. In paragraph No.18 of the
114 INDIAN LAW REPORTS ALLAHABAD SERIES
plaint, it is averred (translated into English
from Hindi):

"18. That thereafter defendant
No.3, on behalf of defendant No.1, acting
as his attorney in accordance with the
terms of the registered power of attorney
dated 04.02.2004, executed a registered
agreement
dated
26.05.2010
in
the
plaintiff's favour."

32. The defendant answered paragraph
No.18 of the plaint in the written statement
vide paragraph No.17 as follows:

"17.
That
the
contents
of
paragraph 18 of the plaint are denied. It is
submitted that the plaintiff in collusion with
her husband who had been given the power
of attorney by the answering defendant to
take care of the property in his absence
have executed the alleged agreement dated
26.05.2010 by misleading the sub -
registrar. The said attorney had already
been cancelled at the office of sub -
registrar, Noida within whose jurisdiction
the property is situated. It is submitted that
any such agreement allegedly entered and
executed between the parties is absolutely
void and illegal."

33. As already remarked, it is not the
subject matter of inquiry so far as this point
of determination is concerned, whether the
suit agreement was executed by the
proforma defendant, misleading the SubRegistrar, or that the power of attorney was
given to the plaintiff's husband (the
proforma defendant) by the defendant to
take care of his property in his absence, a
right which he misused. It is also not the
issue here at all, if the power of attorney
had already been cancelled in the office of
the Sub-Registrar, NOIDA, within whose
jurisdiction the suit property is located. It is
also
not
the
subject
matter
of
determination, so far as the point under
consideration is involved, if the suit
agreement, on account of cancellation of
the power granted to the proforma
defendant by the defendant, as the latter
says, renders the suit agreement executed
between parties void and illegal. These
could be matters to be determined under a
different point. Suffice it to say that for a
fact, it is admitted to the defendant that the
suit agreement was executed by the
proforma defendant in the plaintiff's favour
and that is all that is to it, so far as the
present point is concerned. This point,
more or less, has the same scope and
content as Issue No.1, which the Trial
Court, upon consideration of pleadings and
evidence, has answered in the affirmative,
that is to say in the plaintiff's favour. The
factum of execution of the suit agreement
being admitted to the defendant, there is no
reason for this Court to take a different
view of the matter. Accordingly, point of
determination No.1 is answered in the
affirmative and the finding of the Trial
Judge on Issue No.1 a fortiori affirmed.

34.