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High Court of Judicature at Bombay
MRIDULA BHATKAR, J.
Harshal Developers Pvt. Ltd. & Another
Versus
Manohar Gopal Bavdekar & Another
Second Appeal No.18 of 2012 With Civil Application No.347 of 2012
Decided on : 26-11-2012
Objection regarding pecuniary jurisdiction never raised during trial of suit, cannot be raised in appeal. - One more point of the competency of the Civil Court jurisdiction when its jurisdiction is challenged on pecuniary ground needs to be addressed. Civil Judge Junior Division and Senior Division have inherent jurisdiction to try and decide the civil dispute. So hierarchy created on the basis of pecuniary jurisdiction is technical. By order dated 19.7.2011 the Court held that in view of sub-section (2) of Section 21 of Code of Civil Procedure, the appellants could not have been permitted to raise the objection on the ground of pecuniary jurisdiction in appeal as the said objection was not raised during the pendency of the trial of the suit. The appellants did not challenge the said order further. Thus issue of pecuniary jurisdiction concluded by this Court has attained finality. Therefore, at this stage, the appellant is barred from raising the same issue of pecuniary jurisdiction. Thus the first substantial question of law is answers in affirmative.
Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 4 and 4-A - Registration Act, 1908, Sections 17, 36 and 49 - Suit specific performance.
In an unregistered agreement of sale, prayers demanding registration of document and possession are maintainable. - The appellant that unless there is a prayer of conveyance, a prayer of possession is not tenable, cannot be accepted. On the basis of registered agreement of sale possession can be demanded for the conveyance of the co-operative society, however many times it is a matter of tripartite agreement. A land owner if is a 3rd person who subsequently comes in the picture at the time of conveyance, the possession is always handed over on the basis of registered agreement of sale. Therefore, in the suit for specific performance based on unregistered agreement of sale the prayers demanding registration of the document an possession are maintainable.
Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 4 and 4-A - Registration Act, 1908, Sections 17, 36 and 49 - Unregistered agreement.
When document is presented for registration and other party remained absentee then Registering Officer duty sound to issue summons. - In view of deeming provision under Section 4(2) proviso 2 of MOFA registering officer to issue summons when document is presented and other party remained absent. Registering officer should not wait for written application of other party. Registrar cannot remain passive while performing his duty which is contemplated under proviso.
Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 4 and 4-A - Registration Act, 1908, Section 49 - Unregistered agreement of sale.
Suit for specific performance of contract, on basis of unregistered agreement of sale of immovable property is maintainable. - That Section 4-A has over-riding effect over Section 4 of the MOFA are correct and convincing. Thus a suit for specific performance based on an unregistered agreement of sale under MOFA is maintainable. However, the suit is filed only as per the provisions of Section 4-A of the MOFA. Such unregistered agreement of sale is not invalid but can be very much used in the evidence and specific performance on the basir of said document can be demanded within the purport of Section 4-A of the Act.
Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 4 and 4-A - Registration Act, 1908, Section 49 - Unregistered document.
Suit for specific performance of contract can be filed on basis of unregistered agreement of ale of immovable property. - Proviso 1 of Section 4 (2) is in respect of unregistered agreement which has taken place before commencement of MOFA Act and how that unregistered document can be registered. Proviso 2 lays down procedure how unregistere d agreement of sale can be registered by presenting it before office of registrar by following procedure under proviso and under Registration Act.
Proviso added to Section 49 of Registration Act enabled party to file suit for specific performance under Specific Relief Act based on unregistered agreement of immovable property demanding other party to come forward and execute and register agreement. Thus it removed hurdle in respect of admissibility of such unregistered document of immovable property. Section 4-A being enabling section sings same tune.
1 Plaintiffs are shop purchasers. Defendant is property developers. Suit RCS No.1279 of 1992 was filed by the plaintiffs on the basis of an unregistered agreement for sale in the court of Civil Judge, Senior Division, seeking relief of specific performance and possession so also give direction to the respondent to perform all theWP10670 obligations under MOFA Act 1963 and direct the respondent to admit agreement of sale in the office of Registrar. Suit was decreed on 14.11.2006. Civil Appeal No.159 of 2009 filed by the respondent was dismissed on 15.11.2005.
2 The appellant is a defendant no.1 Promotor & developer who entered into an agreement of sale with respondents/plaintiffs on 31.8.1991 for sale of the shops in the building for total consideration of Rs.2,94,000/-. Out of which Rs.2,50,000/-was paid on the date of the execution. The agreement was entered into as per the provisions of the Maharashtra Ownership Flats Act 1963 (Hereinafter called as the said “Act”). The impugned agreement being unregistered, it was presented for the registration to the Joint Sub-Registrar of Assurances, Pune on 23.12.1991. The plaintiffs have also informed the appellants/defendants to come and admit the execution. However, the appellants did not turn up. Plaintiff thereafter issued a legal notice to admit the execution of the said agreement. However, the appellants did not admit and did not respond. The defendant no.1 by way of defence contended that the money was accepted as a loan and by way of security for repayment of loan, the defendant has executed the impugned agreement in favour of the plaintiff so that agreement is not binding under MOFA. Suit was filed initially before the Civil Judge, Senior Division but after 4 years suit was transferred to the court of Civil Judge, Junior Division. The trial court framed issues about the execution of the valid agreement and specific performance of the same. All the issues were decided in favour of the plaintiff and suit was decreed. Appeal was preferred by the defendant no.1 and the Manager of the firm. First appeal court formulated the points in respect of the requirement of the conditions of the specific performance and about the execution of the sale deed and all the points were determined in favour of the respondent. Hence, this Second Appeal.
3 At the time of hearing of the appeal at the stage of admission it was agreed by both the parties that the substantial questions of law may be framed and the appeal would be argued finally on the next date to enable parties to deliberate on the issues in detailed. The substantial questions of law on the submissions of the learned Counsel for the appellants are framed as under:-
(1) Whether a suit can lie under MOFA for specific performance on the basis of unregistered agreement for sale?
(2) Whether to invoke the powers under the proviso -(2) of sub-section 2 of Section 4 of the MOFA Act 1963, the party demanding execution needs to give an application to the registering officer?
The learned Counsel for the appellants challenged the validity of the sale deed dated 31.8.1991 and the maintainability of the suit.
4 The challenge was given mainly on the ground that as the impugned agreement is not registered as per the requirement of Section 4 of the MOFA, the suit cannot be entertained under the MOFA that the defendant should perform the statutory obligations under the MOFA. The submissions of the learned Counsel are entirely based on the ruling of the Bombay High Court in The Association of Commerce House Block Owners Ltd., Vs. Vishndas Samaldas reported in 1981 page-339. He submitted that an absolute enactment of section 4 if not obeyed, the consequence would follow that unregistered agreement of sale between the Promoter/developer and the purchaser is altogether void and no rights are created between the parties. So such suit for specific performance under the MOFA is not maintainable. The learned Counsel for the appellants argued that in view
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