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2013 DIGILAW 156 (MP)

Arvind Kumar Jain v. Awnish Saxena

2013-02-05

A.K.SHRIVASTAVA, G.D.SAXENA

body2013
Judgment: A.K. Shrivastava, J. 1. Feeling aggrieved by the judgment and decree dated 30-3-2010 passed by learned Second Additional District Judge, Gwalior in Civil Suit No. 24-A/2009 dismissing the suit of plaintiff for specific performance of contract, the appellant has filed this First Appeal under section 96 of Civil Procedure Code, 1908. In brief the suit of plaintiff / appellant is that the property in question, which is a house, is owned by first defendant-Awanish Saxena. On 14-1-2009 the first defendant entered into an agreement with the plaintiff / appellant to get it sold in his favour. In the said document the second defendant, who is his wife, expressed her consent. In the document of agreement of sale it is stated that this property was bought by first defendant from Smt. Gyasobai. The consideration of Rs. 3,60,000/- (Rs. Three Lakh Sixty Thousand Only) was agreed to be paid by the plaintiff to the defendants and in advance a sum of Rs. 1,00,000/- (Rs. One Lakh Only) was paid on the date of execution of the document. It was further agreed between the parties that the sale-deed shall be executed within five months after paying the balance amount of consideration. Thereafter, on 20-4-2009 i.e. earlier to expiry of five months defendants made demand of Rs. 1,30,000/- (Rs. One Lakh Thirty Thousand Only) from the plaintiff / appellant, which he paid through cheque. The plaintiff repeatedly requested the defendants to get the sale-deed executed, but the same was not executed, but on 12-6-2009 another document of agreement of sale was executed between the parties. According to the plaintiff he was and is, always, ready and willing to perform his part of contract and in order to show his readiness and willingness he also sent notice by Registered AD post, but the defendants declined and avoided to get the sale deed executed. The possession of the house in question was also delivered in pursuance to the agreement of sale, but the defendants are mala fidely not executing the sale-deed, on the contrary they are trying to alienate the suit property to third person. The plaintiff is also paying the house tax of the house in question. Eventually, he filed the suit for specific performance of contract. 2. The defendants, despite they were served, did not remain present before the learned trial Court and, hence, they were proceeded ex parte. The plaintiff is also paying the house tax of the house in question. Eventually, he filed the suit for specific performance of contract. 2. The defendants, despite they were served, did not remain present before the learned trial Court and, hence, they were proceeded ex parte. Needless to say, since they were ex parte, they also did not file any written statement. 3. The plaintiff / appellant filed the document of agreement of sale dated 14-1-2009 (Ex. P/1) and also filed another agreement of sale dated 12-6-2009 (Ex. P/1-A). Apart from these two documents, plaintiff also filed material documents viz. copy of the draft of Registered AD notice (Ex. P/3) and the registered sale deed (Ex. P/5) dated 25-2-2002 executed by Smt. Gyasobai in favour of first defendant-Awanish Saxena. Certain documents of the Municipal Corporation, Gwalior indicating that the house tax is being paid by the plaintiff have also been filed. Apart from these documentary evidence, plaintiff examined himself as PW-1 and also examined attesting witness Mahesh Singh Rajput as PW-2. The learned trial Court dismissed the suit of plaintiff solely on the ground that because the possession has been delivered by the document (Ex. P/l-A) dated 12-6-2009, the said agreement of sale would amount to sale deed and because the document is not registered and is not on proper stamp duty, therefore, dismissed the suit. 4. In this manner this appeal has been filed by the plaintiff /appellant. 5. In her usual vehemence Sushri Shweta Bothra, learned counsel for appellant, by inviting our attention to section 54 of the Transfer of Property Act, 1882 (in short " the T.P. Act") has submitted that if the definition of sale as envisaged under section 54 of the said Act is considered in proper perspective, it would reveal that the document of agreement of sale is far away from the ambit and sweep of the document of sale and if that would be the position, the learned trial Court has erred in holding the document (Ex. P/l-A) dated 12-6-2009 to be a document of sale. It has been further propounded by her that if the Court was of the view that the document (Ex. P/l-A) dated 12-6-2009 to be a document of sale. It has been further propounded by her that if the Court was of the view that the document (Ex. P/l-A) was on deficit stamp duty, straightway the suit should not have been dismissed rather the document should have been impounded under sections 33 and 35 of the Indian Stamp Act, 1899 (for brevity "the Stamp Act") and should have been sent to the Collector (Stamp) to pass necessary orders including to pay the duty penalty etc. To bolster her submission learned counsel has placed reliance upon two decisions of Supreme Court, they are, Suraj Lamp and Industries Private Limited (2) Through Director v. State of Haryana and another, (2012) 1 SCC 656 and S. Kaladevi v. V.R. Somasundaram and ors., 2010(3) MPLJ (S.C.) 500 : AIR 2010 SC 1654 . She has also placed reliance upon the Division Bench decision of this Court in Munni Sharma (Smt.) and ors. v. Mahendra Singh and ors., 2010 (I) MPJR SN 9. 6. In this appeal also none has appeared on behalf of respondents / defendants though they have been served. 7. Having heard learned counsel for the appellant and after perusal of the record of the learned trial Court we are of the view that this appeal deserves to be allowed and the case is required to be remanded back to learned trial Court. 8. We find sufficient force in the submission of Sushri Bothra, learned counsel appearing for appellant, that the finding of learned trial Court holding the document (Ex. P/1-A) dated 12-6-2009 to be a sale is erroneous. Rightly she has placed reliance upon section 54 of the T.P. Act and we think it condign to reproduce the same in its entirety, which reads thus :-- "54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." Thus, we do not have any scintilla of doubt in our minds in holding that the document (Ex. P/l-A) dated 12-6-2009 is an agreement of sale and not a document of sale because it does not, of itself, create any interest in or charge on the disputed property. The learned trial Court has erroneously held the document of agreement of sale to be the document of sale. This point has been magnified by the Apex Court in the decision of Suraj Lamp and Industries (supra) and we would like to quote para 16 of the same, which reads thus :-- "16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam observed: (SCC pp. 254-55, paras 32-33 and 37) "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in section 54 of the Transfer of Property Act, (See Ram Baran Prasad v. Ram Mohit Hazra.) The fiduciary character of the personal obligation created by a contract for sale is recognized in section 3 of the Specific Relief Act, 1963, and in section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein. 33. In India, the word 'transfer' is defined with reference to the word 'convey'....... The word 'conveys' in section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership. 33. In India, the word 'transfer' is defined with reference to the word 'convey'....... The word 'conveys' in section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership. * * * 37.....that only on execution of conveyance, ownership passes from one party to another..." In this para scope of sections 32, 33 and 37 of the Stamp Act has also been taken into consideration. 9. In the same decision Their Lordships have also taken note of section 17 of the Indian Registration Act, 1908 and we would like to quote para 14 of the judgment, which reads thus :-- "14. Section 17 of the Registration Act, 1908 makes a deed of conveyance compulsorily registrable. We extract below the relevant portions of section 17 : "17. Documents of which registration is compulsory--(1) The following documents shall be registered, namely- * * * (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; * * * (1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws Amendment Act, 2001 and, if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53-A." Their Lordships by putting emphasis on section 17(1) have held that other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property shall be registered. Since by the document (Ex. P/1-A) the rights are not declared, assigned etc. as envisaged in section 17(1)(b) of the Registration Act, therefore, according to us, it does not require any registration. 10. Since by the document (Ex. P/1-A) the rights are not declared, assigned etc. as envisaged in section 17(1)(b) of the Registration Act, therefore, according to us, it does not require any registration. 10. At this juncture, we would like to go through the proviso to section 49 of the Indian Registration Act, which reads thus :-- "Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument." In this regard, another decision of Supreme Court S. Kaladevi (supra) has also rightly been relied upon by learned counsel for appellant. 11. In the present case, according to us, because the factum of delivery of possession of house in question is embodied in the document of agreement to sale (Ex. P/1-A) dated 12-6-2009, therefore, the learned trial Court should have exercised the jurisdiction under sections 33 and 35 of the Stamp Act and should have impounded the document. Accordingly, we hereby direct the learned trial Court to impound the document (Ex. P/1-A) dated 12-6-2009. The appellant shall deposit deficit stamp duty in the trial Court within a month from the date of receipt of copy of this order by the learned trial Court and the learned trial Court shall, thereafter, send the said document to the Collector (Stamp) for determining the penalty as per law. The learned trial Court is further directed to intimate the Collector (Stamp) to send the matter within a month, after hearing the plaintiff in respect to the assessment of the penalty, to its Court back. The learned trial Court is further directed to decide the suit on or before 30th September, 2013. Since the case is being remanded back to the learned trial Court, in terms of section 13 of the Court Fees Act, the Court fee may be refunded to the plaintiff / appellant. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree is hereby set aside and the case is remanded back to the learned trial Court to decide the case in terms of this order. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree is hereby set aside and the case is remanded back to the learned trial Court to decide the case in terms of this order. Since nobody is appearing on behalf of respondents / defendants, hence, the appellant/plaintiff shall bear his own costs.