2011 Supreme(Bom) 15

In the High Court of Bombay at Nagpur
R.K. DESHPANDE
Amol & Others
Versus
Deorao & Others
Writ Petition Nos. 113 of 2010, 1691 of 2010 & Civil Revision Application No.76 of 2009
Decided on : 06-01-2011

Headnote:Specific Relief Act, 1963 - Sections 15(b) and 20-Decree for specific performance of contract-Locus standi-Representative-in-interest, viz assignee may obtain a decree for specific performance of contract-Assignee being representative-in-interest as defined in Section 15(b) of Act entitled to seek enforcement of a decree. AIR 2004 SC 348-Relied on.-Under Section 15(b) of the Specific Relief Act, the specific performance of a contract may be obtained by the representative-in-interest or the principal, of any party thereto. The Apex Court has in its judgment in Shyam Singh v. Daryao Singh (dead) by Lrs. and others, reported in AIR 2004 SC 348, has held that the expression "any party thereto" or "their representative-in-interest" includes transferees and assignees from contracting party in whose favour a right exists. It has been held that the implied prohibition against assignment of a transfer of a right cannot be inferred unless words or expression in the document clearly indicate such prohibition. In the document, which deed at Exhibit 178, there is no such prohibition and, therefore, the assignee being representative-in-interest, as defined in Section 15(b) of the Specific Relief Act, is entitled to seek the enforcement of a decree under Order XXI, Rule 16 of the Civil Procedure Code. Hence, the respondent Hifzul Kabir has right to seek the enforcement of contract by filing the execution proceedings.

       Specific Relief Act, 1963 - Section 20-Transfer of Property Act, 1882, Sections 3 and 130-Decree for specific performance of contract-Can be characterised as transfer of an actionable claim-No consideration required to be shown to transfer/assignment of a decree of specific performance of contract which is an actionable claim.-A deed of assignment is a contract between the parties. Take a case where an unregistered deed of assignment of a decree for specific performance of contract for sale is executed upon certain terms and conditions. The assignor subsequently detracts from the terms of such deed either by filing separate proceedings for execution of such decree or by opposing the claim of the assignee to get such decree executed in his favour on the basis of such deed. In such situation, the only remedy available to the assignee is to ask for specific performance of the deed of assignment and such a claim is enforceable by filing a suit, in terms of the proviso to Section 49 of the Registration Act against the assignor, even though the deed of assignment is not registered. Thus, a deed of assignment of a decree for specific performance of contract, merely gives a cause of action to a claim for specific performance of contract of assignment and nothing more. The deed at Exhibit 178 conforms to all such requirements and hence it can be characterised as the transfer of an actionable claim and the absence of evidence regarding to consideration cannot be a ground to hold that the deed of conveyance is not enforceable. The argument of the counsels appearing for the petitioners and the applicants that the deed of conveyance is liable to be declared as void for want of consideration, is, therefore, rejected and it is held that no consideration is required to be shown to transfer/assignment of a decree for specific performance of contract, which is an actionable claim.

       Transfer of Property Act, 1882 - Section 54-Specific Relief Act, 1963, Section 20-Registration Act, 1908, Section 17(1)(b)-Decree for specific performance of contract-Neither extinguishes right, title or interest in immovable property nor creates right, title or interest in immovable property-It not compulsorily registrable under Section 17(1)(b) of Act.-The decision is on clause (vi) of Section 17(2) of the Registration Act, which deals with any decree or order of a Court, which is exempted from registration under clause (b) and (c) of Section 17(1) of the said Act. It has been held that the exception engrafted therein is meant to cover that decree or order expressed to be made on compromise, which declares the pre-existing right and does not by itself create new right title or interest in praesenti in immovable property of the value exceeding one hundred rupees. The Executing Court has recorded the finding that Hifzul Kabir was one of the plaintiff and was having pre-existing right in the decree. Assuming this finding to be correct, the exemption under clause (vi) of Section 17(2) of the said Act apply. Be that as it may a decree for specific performance of contract as has already been held, neither extinguishes right, title or interest in the immovable property nor creates right, title or interest in immovable property and hence it is not compulsorily registrable under clauses (b) and (c) of Section 17(1) of the said Act.