JUDGMENT :

N. Seshasayee, J.

1.1. The Plaintiff in O.S. No. 29 of 2017 has come forward with the present Appeal. The Suit is laid for Specific Performance of an unregistered Agreement of Sale dated 14.6.2015, and as per the Plaint the total consideration payable is Rs. 13,72,500 against which, the Plaintiff has paid an advance of Rs. 50,000. In the Written Statement the execution of the unregistered Sale Agreement is not disputed, but its non-performance is sought to be justified on grounds that are not germane to the ongoing Appeal.

1.2. The Trial Court dismissed the Suit on a preliminary issue that the Suit Agreement was not registered as per Section 17(1)(f) of the Registration Act. This Appeal is preferred against it.

2. Points for consideration:

Whether the non-registration of Suit Agreement bars the institution of the Suit?

3. The learned Counsel for the Appellant submitted:

• As per Registration (Tamil Nadu Amendment) Act, 2012, Section (1) (f) to (i) were introduced to Section 17 of the Registration Act, 1908. This Act came into effect on 1.12.2012. While Section 17(1)(g) requires that any Agreement for Sale of an immovable property above the value of Rs. 100 must be registered, the same is saved vide Proviso to Section 49. This Proviso was not amended alongside the Amendment introducing Section 17(1)(g). Again an unregistered Agreement is saved under Section 10 of the Indian Contract Act, 1872 too.

• The learned Counsel submitted that at any rate this matter should not be heard preliminarily to non-suit the Plaintiff and relied on the Judgment in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar and ors., 2018 (7) SCC 639. Reliance was also made on the Judgment of the Andhra High Court in R. Suresh Babu v. G. Rajalingam & 2 others, 2017 ALT 668.

4. Per contra the learned Counsel for the Respondents argued that the Suit is laid to enforce an Agreement of Sale of a value over Rs. 100 for an Injunction against alienation and for Mandatory Injunction. There is no alternative prayer in terms of Section 22 of the Specific Relief Act. Secondly, Section 49 of the Registration Act does not go repugnant to Section 17(1)(g), as the Proviso thereof, only enables the use of an unregistered document for collateral purposes. Thirdly, it is not every Agreement amounts to a Contract but only an Agreement enforceable in law as defined as Contract under Section 2(h) of the Contract Act and the Act proceeds to state under Section 2(g) that an Agreement not enforceable by law is void. And Section 10 of the Contract Act is consistent with this basic definition and the second part to it does not carve out any exception to any document required to be registered in law. As per the Judgment of the Hon'ble Supreme Court in KB. Saha and Sons Private Limited v. Development Consultant Limited, 2008 (5) CTC 260 (SC) : 2008 (8) SCC 564, the collateral transaction, which may be proved by an unregistered document must be an independent transaction not relating to anything as per the terms of under the unregistered document.

5. The Suit is for Specific Performance and the cause of action for the Suit is founded on an Agreement of Sale dated 14.6.2015. As outlined earlier the execution of this Agreement is not in dispute. It is also not in dispute that this Agreement of Sale, which is required to be registered as per Section 17(1)(g) of the Registration Act, was not so registered. Since the cause of action is founded on this Agreement, and since the same is not registered, the Trial Court took up the maintainability of the Suit as a Preliminary Issue and dismissed the Suit. Has the approach of the Trial Court is a course not approved in the Code of Civil Procedure?

6. Under Order 14, Rule 2(2)(b), C.P.C., where a Suit is barred by any law for the time being in force, the Court can take up the issue as a Preliminary Issue. On the face of the Registration Act, there is no bar for instituting a Suit for Specific Performance. Even Section 49 bars receiving an unregiste