The admissibility of unregistered agreements for specific performance under Section 49 of the Registration Act.

VALMIKI J. MEHTA, J.

C.M. Appl. No. 15491/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RSA No. 125/2017 and C.M. Appl. No. 15490/2017 (for stay)

1. This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the concurrent judgments of the courts below; of the Trial Court dated 5.2.2016 and the First Appellate Court dated 10.2.2017; by which the suit for specific performance filed by the respondent/plaintiff for the suit property comprising of 42 sq. yards in plot no. 3221, Gali No. 1, Ranjit Nagar, New Delhi, has been decreed.

2. The subject suit was filed by the respondent/plaintiff seeking specific performance of the receipt-cum-agreement to sell dated 22.1.2002. Total sale consideration as per the receipt-cum-agreement to sell was Rs.1,50,000/-. The appellant/defendant received under the receipt-cum-agreement to sell a sum of Rs.65,000/- in cash and Rs.35,000/- by way of cheque. Balance consideration payable was Rs.50,000/- and which was to be paid at the time of transfer of the title in the suit property by the appellant/defendant in favour of the respondent/plaintiff. As the appellant/defendant failed to execute the title documents, consequently, the subject suit for specific performance came to be filed.

3. The appellant/defendant denied execution of the receipt-cum-agreement to sell dated 22.1.2002. Appellant/defendant claimed that the amount of Rs.35,000/- received by cheque under the receipt-cum-agreement to sell was in fact for return of loan which was given by the appellant/defendant to the respondent/plaintiff. It was, accordingly, prayed that the suit for specific performance be dismissed.

4. The courts below have, in my opinion, arrived at the correct conclusions and findings for decreeing of the subject suit for specific performance, and such valid conclusions drawn are as under:-

(i) The written statement shows that there is no specific denial by the appellant/defendant of his signatures on the receipt-cum-agreement to sell dated 22.1.2002 and the appellant/defendant only denied having executed the documents. This aspect is to be taken with the fact that the appellant/defendant was given an opportunity to furnish his specimen signatures in his UCO Bank account so that the signatures can be sent to the handwriting expert but the appellant/defendant failed to give the specimen signatures. The appellant/defendant also failed to avail the opportunity of getting a handwriting expert appointed to give a report as regards the validity of the signatures appearing on the receipt-cum-agreement to sell dated 22.1.2002, i.e. the signatures were not of the appellant/defendant.

(ii) Appellant/defendant claimed that he received the amount of Rs.35,000/- by cheque under the agreement to sell, not as part consideration, but in return of a loan which the appellant/defendant pleaded was granted to the respondent/plaintiff, however, appellant/defendant could lead absolutely no evidence whatsoever of his giving allegedly a loan of Rs.35,000/- to the respondent/plaintiff and which was allegedly repaid by a cheque which is referred to as part consideration in the receipt-cum-agreement to sell dated 22.1.2002.

5. Before the first appellate court an issue was raised that the receipt-cum-agreement to sell dated 22.1.2002 is not registered and hence cannot be looked into by virtue of provision of Section 17(1)(a) of the Registration Act, 1908, however, this contention is unsound, inasmuch as, an unregistered agreement to sell cannot be looked into only for seeking benefit of part performance under Section 53A of the Transfer of Property Act, 1882 in view of Amendment of Section 53A by Act 48 of 2001 with effect from 24.9.2001, however, an unregistered agreement to sell can always be a basis for a suit for specific performance in view of Section 49 of the Registration Act.

6. Learned counsel for the appellant/defendant relied upon a judgment of a