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2015 DIGILAW 11 (CAL)

Swarnendu Das Gupta v. Sadhana Banerjee

2015-01-09

TAPAN KUMAR DUTT

body2015
Judgment Tapan Kumar Dutt, J. This Court has heard the learned advocates for the respective parties and has considered the relevant materials on record. The plaintiff/appellant filed a suit being Other Suit No.64 of 2006 renumbered as Other Suit No.54 of 2013 which was placed before the learned Joint Civil Judge, Senior Division at Port Blair. Such suit was filed against the defendant/respondent and the plaintiff in such suit prayed that a decree be passed under Specific Relief Act directing the defendant to execute the sale deed in respect of the suit property in terms of the agreement for sale dated 26.04.2006 entered in between the plaintiff and the defendant. The plaintiff/appellant also prayed for a decree directing the defendant/respondent not to disturb the possession of the plaintiff from the suit property. The defendant/respondent contested the said suit by filing the written statement. The said suit ultimately came up for hearing and the learned Trial Court, after hearing the parties and considering the evidence on record, dismissed the said suit and directed the defendant to refund the earnest money of Rs.9,77,500/- to the plaintiff within a stipulated period of time and, in default, the plaintiff was given liberty to realise the same by a suitable proceeding in law. It appears from perusal of the said judgment and decree passed by the learned Trial Court that the learned Trial Court dismissed the said suit mainly on the ground that the agreement for sale which has been marked as Exhibit No.7 is not a registered instrument and therefore the plaintiff/appellant is debarred from getting any relief in the said suit. The learned Trial Court has recorded in its judgment that the plaintiff has performed a part performance by making payment of Rs.9,77,500/- out of a total consideration of Rs.11,50,000/- and the defendant has also made over the possession of the property in dispute to the plaintiff and thus, the defendant has also performed a part performance towards the sale agreement “within the view of Section 53A of the Transfer of Property Act”. However, challenging the said judgment and decree passed by the learned Trial Court, the plaintiff/appellant filed Other Appeal No.29 of 2013 which was placed before the learned District Judge, Andaman and Nicobar Islands. However, challenging the said judgment and decree passed by the learned Trial Court, the plaintiff/appellant filed Other Appeal No.29 of 2013 which was placed before the learned District Judge, Andaman and Nicobar Islands. The learned District Judge by the impugned judgment and decree dated 24.10.2014 dismissed the said Other Appeal and affirmed the view of the learned Trial Court that since the said agreement for sale is not a registered instrument, the plaintiff/appellant is debarred from getting any relief by virtue of the agreement for sale dated 26.04.2006. The learned First Appellate Court was of the view that since the said agreement for sale is not a registered document as per the provisions of Section 17 (1A) of the Registration Act, 1908, the plaintiff is not entitled to get any decree. The learned First Appellate Court, however, came to a conclusion of fact that the plaintiff had paid Rs.10,00,000/- to the defendant/respondent out of a total consideration of Rs.11,50,000/-. Challenging the impugned judgments and decrees, the plaintiff/appellant has filed the present second appeal which was admitted by an Hon’ble Division Bench of this Court on 13.11.2014 and the following substantial questions of law were formulated by the said Court: “(i) Whether an unregistered sale agreement can be specifically enforced under the provisions of Specific Relief Act, 1963? (ii) Whether the sale agreement of which specific performance is sought under the provisions of Specific Relief Act, 1963 is required to be registered under section 17(1)(a) of the Registration Act, 1908?” These are the two points on which the appeal was required to be heard and the learned advocates for the respective parties have made their respective submissions. The learned advocate for the plaintiff/appellant submitted that in view of the provisions of law which she has cited it will appear that the agreement for sale being exhibited no.7 was not at all required to be registered under the law and there was no bar at all in decreeing the said suit on the basis of such unregistered agreement for sale. The said learned advocate submitted that the learned Courts below erroneously brought the present suit within the scope of Section 53A of the Transfer of Property Act when the suit was filed for a decree under the Specific Relief Act. The said learned advocate submitted that the learned Courts below erroneously brought the present suit within the scope of Section 53A of the Transfer of Property Act when the suit was filed for a decree under the Specific Relief Act. The said learned advocate cited Section 54 of the Transfer of Property Act and it will appear from the said provisions of law that a contract for sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties but it does not, of itself, create any interest in or charge on such property. The said learned advocate cited the provisions of Section 17 of the Registration Act, 1908 and thereafter cited Section 17(1A) of the said Act in support of her contention that it is only the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act shall have to be registered and if such documents are not registered as stipulated in the said Section then in that event such documents shall have no effect for the purposes of the said Section 53A. The said learned advocate submitted that it was not necessary for any of the Courts below to consider the said exhibit no.7 for the purpose of Section 53A at all. The said learned advocate cited section 17(2)(v) wherefrom it appears that nothing in clauses (b) and (c) of sub-section (1) of Section 17 applies to any document other than the documents specified in sub-section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. The said learned advocate citing the above provisions of law submitted that since the unregistered agreement for sale did not by itself create any right, title and/or interest in favour of the plaintiff/appellant, it was not at all necessary for the said document to be registered. The said learned advocate citing the above provisions of law submitted that since the unregistered agreement for sale did not by itself create any right, title and/or interest in favour of the plaintiff/appellant, it was not at all necessary for the said document to be registered. The said learned advocate further submitted that a perusal of Section 49 of the Registration Act, 1908, particularly, the proviso thereof, would clearly show that an unregistered document affecting immovable property and required 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. The said learned advocate submitted that there is no dispute with regard to the fact that the defendant/respondent has in fact handed over the possession of the suit property to the plaintiff/appellant and according to the plaintiff/appellant, the plaintiff/appellant has already paid Rs.10,00,000/- out of Rs.11,50,000/- to the defendant/respondent. The learned advocate for the plaintiff/appellant submitted that both the learned courts below were in error in denying relief to the plaintiff/appellant only on the basis that the agreement for sale was not a registered document. The learned advocate appearing on behalf of the defendant/respondent submitted that a perusal of the plaint would show that there has been a part performance of contract and therefore the learned courts below were quite right in dismissing the said suit on the basis that the agreement for sale was an unregistered one. The said learned advocate referred to the paragraphs 6 and 16 of the plaint in support of his contention that the suit is based on Section 53A of the Transfer of Property Act. The said learned advocate submitted that a perusal of Section 17(1)(b) of the Registration Act, 1908 would show that the said exhibit no.7 was compulsorily required to be registered and even if it is an agreement for sale it creates right, title and interest in the property in favour of the plaintiff. The said learned advocate submitted that Section 53A and Section 54 of the Transfer of Property Act should be read together. Thus, according to the said learned advocate, the suit was rightly dismissed by the learned Trial Court and the learned First Appellate Court was also quite right in affirming the view of the learned Trial Court. The said learned advocate submitted that Section 53A and Section 54 of the Transfer of Property Act should be read together. Thus, according to the said learned advocate, the suit was rightly dismissed by the learned Trial Court and the learned First Appellate Court was also quite right in affirming the view of the learned Trial Court. Both the learned advocates for the respective parties cited the judgment reported in 2012(1) SCC 656 (Suraj Lamp and Industries Private Limited vs. State of Haryana and another). The learned advocate for the plaintiff/appellant submitted by citing the said decision of the reported case that it will be clear from a perusal of the said reported case that the agreement for sale does not create any right, title and/or interest in favour of the purchaser of the immovable property. It will appear from a perusal of the said reported case that it has been observed by the Hon’ble Court that Section 53A of the Transfer of Property Act is a protection provided to the proposed transferee and is a shield only against the transferor and it disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement and it has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. The said Hon’ble Court was pleased to observe that in absence of deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. The Hon’ble Court was further pleased to observe that any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Section 54 and 55 of the Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of the Transfer of Property Act). The learned advocate appearing for the defendant/respondent also cited the said reported case and submitted that the said reported case supports the contention made on behalf of the defendant/respondent. The learned advocate appearing for the defendant/respondent also cited the said reported case and submitted that the said reported case supports the contention made on behalf of the defendant/respondent. Having heard the learned advocates for the respective parties and having considered the materials on record, this Court is of the view, particularly in view of the provisions of law as cited at Bar, that the submissions made by the learned advocate for the appellant has substance and the submissions made by the learned advocate for defendant/respondent cannot be accepted. It appears from a reading of the aforesaid provisions of law, as already discussed above, that a document which happens to be an agreement for sale does not by itself confer any right, title and/or interest in favour of the proposed transferee and it is only a document by which the parties entered into an agreement to create a further document which is called a deed of conveyance. There cannot be any dispute that such deed of conveyance is required to be compulsorily registered if the value of the immovable property is more than Rs.100/- but since the agreement for sale does not create any such right, title and/or interest, there is no such provision in law which mandates that the said agreement for sale will also have to be registered excepting in cases where Section 17 (1A) of the Registration Act, 1908 applies. The provisions of the Registration Act, as already discussed above, would also clearly indicate that an agreement for sale is not required to be compulsorily registered. It is difficult to appreciate the stand taken by both the learned courts below while applying Section 53A of the Transfer of Property Act. It may be noted that, Section 53A of the Transfer of Property Act stipulates that when a transferee has, in part performance of contract, taken possession of the property or any part thereof or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of contract and the transferee has performed or is willing to perform his part of the contract then in that event the transferor is debarred from enforcing against the transferee any right in respect of such property. Such provision of law has been discussed by the Hon’ble Supreme Court in the decision cited above. Such provision of law has been discussed by the Hon’ble Supreme Court in the decision cited above. This Court is of the view that the learned courts below made a mistake in applying the provisions of Section 53A of the Transfer of Property Act and making it the basis of denying relief to the plaintiff/appellant. In view of the discussion made above, this Court allows the present second appeal by setting aside the impugned judgments and decrees passed by the learned courts below and by decreeing the said suit being Other Suit No.54 of 2006 renumbered as Other Suit No: 54 of 2013 which was placed before the learned Trial Court being the learned Civil Judge Senior Division at Port Blair to the extent indicated below. The plaintiff/appellant, accordingly, gets a decree of specific performance of contract against the defendant/respondent in respect of the suit property in terms of the agreement for sale dated 26.04.2006 being exhibit no.7 and the defendant/respondent is directed to execute an appropriate sale deed in favour of the plaintiff/appellant in respect of the suit property and in terms of the said agreement for sale dated 26.04.2006 within thirty days from the date of payment of the unpaid balance amount by plaintiff/appellant to the defendant/respondent in terms of the said agreement for sale dated 26.04.2006. The plaintiff/appellant shall make payment of the balance unpaid amount in terms of the said agreement for sale dated 26.04.2006 to the defendant/respondent within thirty days from this date. In default of the defendant/respondent executing an appropriate sale deed in favour of the plaintiff/appellant even after the plaintiff/appellant makes payment in terms of this order, the plaintiff/appellant will be entitled to put the decree into execution against the defendant/respondent in accordance with law. There will be no order as to costs. Urgent certified xerox copy of this judgment and decree and/or order, if applied for, be given to the parties as expeditiously as possible upon compliance of necessary formalities. Later: After the aforesaid judgment is delivered, the learned advocate for the defendant/respondent prays that the operation of the aforesaid judgment and decree be stayed for a period of six weeks. The learned advocate for the plaintiff/appellant opposes such prayer. However, considering the submissions made by the learned advocates for the respective parties, there shall be a stay of operation of the aforesaid judgment and decree for a period of six weeks.