2005 Supreme(Bom) 1077

IN THE HIGH COURT OF BOMBAY
SUJATA SANZGIRY
Versus
ANKUSH R. NAIK
Decided on : AUGUST 18, 2005

Headnote:Civil Procedure Code, 1908 - Order XXI, Rule 97 Agreement for sale of flat Respondent No. 1 failed to honour agreement inspite of award of Arbitrator Objection filed by respondent No. 1 that he is not in possession Respondent No. 2 claimed the possession by paying consideration of Rs. 2,80,000/to respondent No. 1 Occupancy certificate obtained from Municipal Council Resistance of execution decree Executing Court allowed application of respondent No. 2 Appellant decre e holder filed first appeal against order of executing Court Respondent No. 1 did not appear Respondent No. 2 held to be bona fide purchaser by executing Court Case of respondent No. 2 based on Section 19(2) of Specific Relief Act Question whethe r respondent is "transferee in value" "Transferee" Defined An agreement for sale by itself does not create any right or title "Title" Defined Section 3 of T.P. Act cannot be imported to Specific Relief Act of Section 19 Under Specific Relief Title "Title" means complete title Protection of possession under Section 53-A of T.P. Act cannot be accepted by respondent No. 2 Independent title can only resist the decree holder over the proper Purchase contemplated under clause (b) of Section 19 must satisfy 4 conditions Full value of purchase not paid by respondent No. 2 Respondent No. 2 cannot be held to be transferee He is only subsequent contractee Appeal allowed.

       Specific Relief Act, 1963 - Section 19(b) - Civil Procedure Code, Order XXI, Rule 97 - The expression ’title’ and ’transferee’ - The word ’title’ means completed title and the word ’transferee’ means the purchaser who has acquired complete title in accordance with law and not the contractee. - A person in whose favour a conveyance or the document of title has not been executed would not be covered by the expression ’transferee’ within the meaning of clause (b) of Section 19. The expression ’title’ used in clause (b) is referable to the complete legal title. An agreement for sale subsequent to the original contract shall be out of purview of the expression ’title’ in Section 19(b). The context in which the word ’title’ has been used in Section 19(b) is entirely different from the context in which the word ’title’ has been used in Explanation II to Section 3 of the Transfer of Property Act. Therefore, the exception carved out in Section 19(b) in the case of a bona fide purchaser with valuable consideration without notice of earlier contract, has to be strictly construed and the word ’transferee’ being part of exception clause has to be construed strictly and cannot be given wider meaning. The appellant is a decree-holder in whose favour the decree for specific performance of the contract in respect of the said flat has been passed against respondent No. 1. He has levied execution of the said decree. Respondent No. 2 can successfully resist the execution of the decree only if he is able to establish his independent title over the property. Respondent No. 2 has not acquired any title nor is he a transferee within the meaning of clause (b) of Section 19. He cannot resist the decree passed in favour of the appellant on the ground that he was put in possession by respondent No. 1 under the Agreement for Sale dated 16.10.1990. As a matter of fact, the agreement dated 16.10.1990 in favour of the respondent No. 2 is of no legal value as it is subsequent to the contract that respondent No. 1 had entered into with the appellant and in respect of which a decree for specific performance has been passed in favour of the appellant. The respondent No. 2 cannot be held to be ’transferee". He is only subsequent contractee. He has also not paid full value. He is not covered by the exception carved out in Section 19(b). The appeal is allowed. The impugned judgment and order dated 9.10.1997 is set aside. Application under Order XXI, Rule 97, Civil Procedure Code filed by the respondent No. 2 dismissed.

       Specific Relief Act, 1963 - Section 19(b) - The purchase contemplated under clause (b) of Section 19 - Four conditions must be satisfied i.e. (1) that the transfer is for value; (2) that the payment of full value has been made; (3) that the purchase was done in good faith; and (4) that the purchase, including payment of money was without the notice of the original contract.