The admissibility of unregistered documents affecting immovable property in a suit for specific performance under the Registration Act and the interpretation of Sections 33 and 35 of the Stamp Act in the context of admissibility of documents for collateral purposes.

Nutan D. Sardessai, J.

Heard Shri Iftikhar Agha, learned Advocate for the appellant and Shri M.M. Shaikh, learned Advocate for the respondents No. 1 and 2.

2. Admit. Shri Shaikh, learned Advocate waives notice on behalf of the respondents No. 1 and 2.

3. This appeal takes an exception to the order dated 16.4.2016 passed by the learned Senior Civil Judge, Panaji whereby he dismissed the application for temporary injunction filed by the plaintiffs who are in appeal against the respondents being the original defendants.

4. Shri I. Agha, learned Advocate for the appellants came to be heard who submitted at the outset that the property in question was put to auction on 3.1.2012 in the Inventory Proceedings whereby the respondents were declared as the highest bidder and the property came to be allotted to them who had to pay owelty money to the other family members. A Memorandum of Understanding dated 21.5.2011 came to be executed between the respondents and one Khalil Ahmed whereby it was agreed to sell 3050 sq.mts. to Khalil for the consideration of Rs. 2,50,000,00/-. The said Memorandum of Understanding however came to be cancelled by the Deed of Development dated 27.1.2012. A Declaration was executed on 23.5.2011 between the said Khalil and the respondents to the effect that the Memorandum of Understanding was only for the collateral purposes. A Declaration dated 27.1.2012 came to be executed between the appellants, the respondents and Khalil Ahmed pursuant to which the Memorandum of Understanding stood cancelled and Khalil was paid an amount of Rs. 1,00,000,00/- by the appellants. A Development Agreement was executed between the appellants and the defendants on 28.3.2012 and an additional sum of Rs. 1,75,000,00/- was paid by the appellants to the respondents and thereafter a Power of Attorney came to be executed by the respondents in favour of the appellants on 27.4.2012. The appellants had obtained all the permissions for the development starting from 25.3.2013 onwards and on 11.12.2013 a notice came to be issued to the respondents calling upon them to execute an Addendum Agreement in discharge of their obligations. The respondents however repudiated the averments contained in the notice by their reply dated 23.3.2013 and finally the suit came to be filed in April 2014 for the reliefs of the declaration, specific performance, damages, injunction and consequential reliefs.

5. Shri I. Agha, learned Advocate for the appellants invited attention to the Memorandum of Understanding, the Declaration-Cum-Affidavit dated 23.5.2011, the Deed of Declaration, the Development Agreement apart from the pleadings in the plaint and the written statement and submitted that the impugned order as passed by the learned Senior Civil Judge called for an interference and there was no reason for the trial Court to refuse the documents produced by the appellants which it ought to have accepted at face value. It was not open for the respondents to challenge any of the documents relied upon by the appellants. There was no basis for the learned trial Court to invoke Section 17 of the Registration Act, 1908 and to reject the Development Agreement when the Registration Act was a complete Code in itself. The learned trial Court had to read Section 49 along with Section 17 and the proviso thereto and in which event the trial Court would have come to a finding in favour of the appellants. He relied in S. Kaladevi v. V.R. Somasundaram and others, (2010) 5 SCC 401 to buttress his contention that the trial Court had ignored Section 49 and the proviso thereto while invoking Section 17 of the said Act to reject their documents.

6. Shri I. Igha placed reliance in Smt. Hirarabai P. Kamat and another v. Shri Yeshwant B. Sakhalkar and another, 2003 (1) Goa L.T. 352 in support of his case. The trial Court had failed to consider the equities and that the appellants had paid a substantial amount of Rs. 1,75,00,000/- to the respondents. The aspect of the respondents re