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2005 Supreme(Cal) 698
Calcutta High Court
KALYAN JYOTI SENGUPTA, J.
India Media Services Pvt. Ltd. - Appellant
Versus
Newsprint Trading and Sales Corporation - Respondents
G. A. No. 3035 of 2004, C. S. No. 486 of 2002 and E. C. No. 8 of 2005
Decided On : 21 November 2005
The registration of a compromise decree declaring the title of the property by the Civil Court is compulsory under Section 17 of the Registration Act 1908. The registration of such a decree in Bombay was not a lawful registration and had no competence under Section 29 read with Section 30 of the Registration Act in view of the Andhra Pradesh amendment by deleting sub-section (2) of Section 30 by and under Act 13 of 1966 with effect from 15th June, 1966.
Headnote:
EXECUTION OF DECREE - COMPLIANCE - TRANSFER OF PROPERTY - SALE DEED - REGISTRATION - ENCUMBRANCES - TITLE - COMPROMISE DECREE - REGISTRATION - JURISDICTION - BOMBAY REGISTRATION OFFICE - ANDHRA PRADESH AMENDMENT ACT - VALIDITY - SPECIFIC RELIEF ACT - TRANSFER OF PROPERTY ACT.
Fact of the Case:
The parties entered into an agreement for the sale of a property in Hyderabad for Rs. 21.10 crores. The agreement was subject to the condition that the vendor would transfer the property free from all encumbrances. At the time of the agreement, a suit for eviction against unauthorized occupants was pending in respect of a portion of the property. The agreement was subsequently assigned to the plaintiff. The plaintiff filed an execution application seeking a direction to the defendant to deposit a sum of Rs. 2,22,10,050/- with the Registrar High Court Original Side on account of stamp duty, registration fees and expenses incidental to registration. The plaintiff also sought a direction to the Registrar High Court Original Side to sign and execute the sale deed for the property on behalf of the plaintiff in terms of the order dated 17th March 2004. The defendant, in turn, filed an application seeking a direction upon the plaintiff to perform its part in terms of the order dated 17th March 2004 by making the sale deed ready on stamp paper and complete all legal formalities for registration within a period of eight weeks. The defendant also sought a direction to the plaintiff to bear and pay the registration fees and expenses incidental to registration.
Finding of the Court:
1. The objections raised by the plaintiff as to the compliance of the order dated 17th March 2004 are not tenable under the law. 2. The defendant had made full disclosure at the time of entering into the agreement and thereafter replied to the requisition to title put by the plaintiff. No further disclosure is necessary. 3. The pendency of the appeal against the dismissal of the suit is not an encumbrance on the property as a whole. 4. The compromise decree is compulsorily registerable under Section 17 of the Registration Act 1908. 5. The registration of the compromise decree in Bombay was not a lawful registration and had no competence under Section 29 read with Section 30 of the Registration Act in view of the Andhra Pradesh amendment by deleting sub-section (2) of Section 30 by and under Act 13 of 1966 with effect from 15th June, 1966.
Issues: 1. Whether the objections raised by the plaintiff as to the compliance of the order dated 17th March 2004 are tenable under the law? 2. Whether the defendant had made full disclosure at the time of entering into the agreement and thereafter replied to the requisition to title put by the plaintiff? 3. Whether the pendency of the appeal against the dismissal of the suit is an encumbrance on the property as a whole? 4. Whether the compromise decree is compulsorily registerable under Section 17 of the Registration Act 1908? 5. Whether the registration of the compromise decree in Bombay was a lawful registration?
Ratio Decidendi: 1. The order dated 17th March 2004 is very clear in terms and there cannot be any ambiguity whatsoever for implementation of the same. 2. The defendant had made full disclosure at the time of entering into the agreement and thereafter replied to the requisition to title put by the plaintiff. No further disclosure is necessary. 3. The pendency of the appeal against the dismissal of the suit is not an encumbrance on the property as a whole. 4. The compromise decree is compulsorily registerable under Section 17 of the Registration Act 1908. 5. The registration of the compromise decree in Bombay was not a lawful registration and had no competence under Section 29 read with Section 30 of the Registration Act in view of the Andhra Pradesh amendment by deleting sub-section (2) of Section 30 by and under Act 13 of 1966 with effect from 15th June, 1966.
Final Decision: 1. The application of the defendant No. 3 is disposed of. 2. In the event the plaintiff has not carried out the decretal obligation, Mr. Banerjees clients would be at liberty to take out an execution application for enforcement of the decretal obligation of Mr. Mitras clients.
ORDER :- Both the aforesaid applications were heard together as the points involved in both the matters are identical. Both these two applications owe their origin to the judgement and order dated 17th March, 2004. This order was passed on settlement being arrived at by and between the plaintiff on the one hand and the defendant Nos. 3 and 4 on the other. In view of the settlement and on the basis of suggestion given to the Court by both the parties this order was passed. In terms of this order the defendant No. 3 being the applicant of G. A. No. 3035 of 2004 was directed to transfer the property at Gagmohan Village, Lower Tank Bund Road, Hyderabad (hereinafter referred to as the said property) to the plaintiff in terms of the agreement dated 7th September, 2000 read with the agreement dated 12th September, 2002 for consideration of Rs. 21.10 crores. The plaintiff is directed to make ready at its own costs the stamp paper and complete all legal formalities required for registration within a period of eight weeks from the date of passing of the order.
2. The defendant No. 3 is directed to execute and register the sale deed with appropriate registration office at Hyderabad within a fortnight thereafter. The registration fees and expenses incidental to the registration shall be borne by the plaintiff. In default of defendant No. 3 executing and registering the said sale deed as aforesaid Registrar Original Side is directed to execute and register the said sale deed in the name and on behalf of the defendant No. 3. For the time being it is the complaint of the defendant No. 3 as stated in their application that in spite of doing all things necessary the plaintiff has not performed of its part in terms of the aforesaid order by not making sale deed ready on stamp paper and complete all legal formalities for registration within a period of eight weeks. The plaintiff in violation of the aforesaid direction did not bear and pay the registration fees and expenses incidental to registration. So, the plaintiff has prayed for direction upon the defendant to deposit a sum of Rs. 2,22,1050/- with the Registrar High Court Original Side on account of stamp duty, registration fees and expenses incidental to registration. Further direction that the Registrar High Court Original Side do sign and execute sale deed for the property on behalf of the plaintiff in terms of the said order dated 17th March 2004; direction upon the plaintiff to deposit a sum of Rs. 33,000/- to the petitioner on account of travelling and lodging expenses of the petitioners representative for registration of the sale deed at Hyderabad; Injunction restraining the plaintiff from withdrawing any money from its bank account without leaving therein a balance of the sum of Rs. 2,22,10,050.13.
3. The plaintiff on the other hand has complained against the defendant No. 3 of non-performance in terms of the aforesaid judgement and order, contending that the defendant No.3 has failed to make out marketable title and further to make property free from all encumbrances in terms of the aforesaid judgement and order read with the agreement. It is alleged that the defendant No. 3 has not acquired marketable title of this property by reason of the fact that the compromise order and or decree dated 27th July, 1998 passed in suit being No. 1564 of 1997 in the learned Court of the 7th Junior Civil Judge, City Civil Court, Hyderabad, and further that the suit which was pending at the time of the passing of the aforesaid order for eviction of some of the occupants from a portion of this property admeasuring about 3950 sq. meters has been dismissed and an appeal has been preferred against such dismissal which is still pending. As such until and unless the aforesaid defect is cured the said property cannot be said to be free from all encumbrances. This has been detected after the aforesaid judgement and order dated 17th March of 2004 was passed. These points have also been taken in the af
