An unregistered Agreement to Sell does not require registration for seeking specific performance, and specific performance can be granted for an oral Agreement to Sell of an immovable property.

VALMIKI J. MEHTA, J.

RFA No. 800/2016 and C.M. Appl. No. 37766/2016 (for stay)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 30.3.2016 by which the trial court has dismissed the suit for specific performance and possession filed by the appellant/plaintiff with respect to shop no. S-17, Buildcon Plaza, Plot No. 6, Pocket 5, Sector 12, Dwarka, Delhi (hereinafter referred to as the ‘suit property’). Trial court has dismissed the suit for specific performance essentially on two counts, with the first count being that the Agreement to Sell being oral was not registered and an unregistered agreement to sell cannot be a basis for a stay for specific performance and second count being that no specific performance can be granted of an oral agreement to sell.

2. The facts of the case are that appellant/plaintiff filed the subject suit pleading that he as the purchaser and the respondent/defendant company as the seller had entered into an Agreement to Sell the suit property with the total price being agreed at Rs.3,80,000/-. This Rs.3,80,000/- was to be paid in instalments as and when demanded by the respondent/defendant. Appellant/plaintiff paid a booking amount of Rs.5,100/- on 9.11.2003 and for which receipt no. 120 dated 9.11.2003 was given to the appellant/plaintiff. As per the demands raised by the respondent/defendant from time to time a further amount of Rs.2,66,000/- was deposited by the appellant/plaintiff with the respondent/defendant upto 21.11.2004. Out of the total amount payable, a sum of Rs.70% was already and the balance 30% was to be paid on receipt of possession and the signing of the necessary documents. Appellant/plaintiff further pleaded that on receiving a call from the respondent/defendant in February, 2006 another sum of Rs.1,15,000/- was paid by a cheque bearing no. 938812 dated 9.3.2006 of Syndicate Bank, Main Bijwasan Road, New Delhi. Thereafter, the respondent/defendant informed the plaintiff that the area of the shop had increased and along with other dues of transfer fees and documentation charges a sum of Rs.62,075/- was to be paid and for which the appellant/plaintiff issued a cheque bearing no. 938813 dated 24.3.2006 drawn on Syndicate Bank, Bijwasasn Road Branch, New Delhi, but neither the receipt was given for this cheque nor the cheque was en-cashed. Since inspite of repeated requests the respondent/defendant failed to transfer the suit property in the name of the appellant/plaintiff, and in fact claimed that the allotment was cancelled by a letter dated 20.5.2006, the subject suit for specific performance and possession was filed.

3. At the outset it may be noted that though the respondent/defendant filed the written statement and initially contested the suit, however, no evidence has been led by the respondent/defendant. Right of the respondent/defendant to lead evidence was closed as evidence was not led inspite of repeated opportunities. The order closing the right of the respondent/defendant to lead evidence was challenged in this Court as stated in para 8 of the impugned judgment, but that challenge was also not successful.

4. In the written statement the main defence of the respondent/defendant was that since the appellant/plaintiff failed to pay the amount in time therefore the allotment was cancelled by the respondent/defendant vide its Letter dated 20.5.2006.

5. The following issues were framed in the suit:-

“(1) Whether the suit of the plaintiff is not maintainable in its present form? .... OPD.

(2) Whether the suit of the plaintiff is barred by law of limitation? .... OPD.

(3) Whether the plaintiff is entitled to the decree of specific performance in respect of title of the suit property as prayed for .... OPP

(4) Whether the plaintiff is entitled to the decree of possession as prayed for? ...... OPP

(5) Relief.”

6. Appellant/plaintiff filed his affidavit by way of