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2007 Supreme(All) 2787
[2007(10) ADJ 148 (DB)]
ALLAHABAD HIGH COURT
BEFORE : YATINDRA SINGH AND VIJAY KUMAR VERMA, JJ.
VIJAY KUMAR SHARMA ........Appellant
Versus
DEVESH BEHARI SAXENA ........Respondent
(First Appeal No. 240 of 1998, decided on 16th November, 2007)
Counsel :
S.N. Verma, Sarad Malviya and Yashwant Verma for the Appellant; T.P. Singh and Sidharth Singh for the Respondents.
Headnote:Transfer of Property Act, 1882—Section 54—Agreement to sell—Unregistered document—Specific performance of contract—Registration of document—Suit for mandatory injunction—(i) Whether suit for mandatory injunction for direction to get agreement to sell dt. 22.1.1993 registered, was maintainable—(ii) Whether agreement to sell, dt. 22.1.1993 being unregistered document, was not legally enforceable, and decree for specific performance of contract, cannot be passed—And (iii) Whether comprehensive suit to get agreement to sell, dt. 22.1.1993 registered and then its specific performance to get sale-deed executed and registered, was legally maintainable—Held, (i) suit for mandatory injunction for direction to defendants to get agreement in question registered, was not legally maintainable—And, hence, decree passed in that regard by Court below was not in accordance with law—Thus, that point was decided accordingly in favour of defendant-appellant—(ii) Agreement, dt. 22.1.1993, being an unregistered document, was inadmissible in evidence—And it could be taken into consideration for passing a decree for its specific performance in favour of plaintiffs—Hence, unregistered document of contract for sell in respect of immoveable property, cannot be enforced under Specific Relief Act—Therefore, decree for specific performance of agreement to sell, dated 22.1.1993, passed by Courts below was wholly illegal, and cannot be sustained—Hence, point was decided accordingly in favour of appellants-defendants and against respondents-plaintiffs—(iii) Comprehensive suit instituted by plaintiffs for mandatory injunction for directing defendants to get agreement to sell, dt. 22.1.1993 registered first, and thereafter to execute registered sale-deed in favour of plaintiffs, was not legally maintainable—Hence, that point also was decided against plaintiffs-respondents—Hence, impugned decree for mandatory injunction, directing defendant to get agreement to sell, dt. 22.1.1993 registered and thereafter, its specific performance for getting sale-deed executed and registered as well as delivery of possession, cannot be sustained—Thus, impugned judgment and decree, so far as they relate to mandatory injunction, for directing defendants to get agreement to sell, dt. 22.1.1993 registered, and thereafter, its specific performance was set aside—And suit was decreed for refund of earnest money of Rs. 7,00,000/- with interest @ 12% p.a. from 22.1.1993 till recovery. [Specific Relief Act, 1963—Section 16] [Paras 5, 8, 10, 12, 14, 15, 16 to 18]
Hon’ble Vijay Kumar Verma, J.—Challenge in this appeal is to the judgement and decree dated 18.4.1998, passed by 3rd Additional Civil Judge (Senior Division) Ghaziabad, in O.S. No. 436 of 1995 (Devesh Behari Saxena v. Vijay Kumar Sharma), whereby the suit has been decreed for mandatory injunction directing the defendant to get the agreement to sell dated 22.1.1993 registered before registering authority within one month and then to execute sale deed in favour of the plaintiff in terms of this agreement after receiving balance sale consideration of Rs. 13,21,000/- (Rupees Thirteen lac Twenty One Thousand only) and hand over possession of the disputed plot to the plaintiff after getting the sale deed registered.
It is further held in the impugned decree that if due to pendency of appeal in Honble Supreme Court or non-availability of no objection certificate from the competent authority, specific performance of the said agreement becomes impossible, then the plaintiff would be entitled to get back his earnest money of Rs. 7,00,000/- (Rupees seven lac) from defendant with interest @ 18% per annum from 22.1.1993 to 14.4.1995 and thereafter @ 6% per annum from 15.4.1995.
FACTS
2. The plaintiff-respondent instituted O. S. No. 436 of 1995 in the Court of Civil Judge (Senior Division) Ghaziabad, for specific performance of the agreement for sale dated 22.1.1993 and possession over the disputed plot. It was also prayed that if due to any legal requirement, registration of the agreement is considered necessary, then the same be got registered first and, thereafter, transfer deed be got executed and registered in favour of the plaintiff. In the alternative, relief for decree of refund of earnest money of Rs. 7,00,000/- and recovery of Rs. 13,21,000/- as damages with interest @ 18% per annum was also claimed.
Shorn of unnecessary details, the case of the plaintiff, in brief, is that the defendant agreed to sell his plot No. 133 (Block A) area 465 Sq. Mtrs., situate in Sector 15-A, NOIDA, Pargana & Tehsil Dadri, District Ghaziabad for consideration of Rs. 20,21,000/- and after receiving Rs. 7,00,000/- in part payment through cheque No. 857877 of Canara Bank, Green Park Extension, New Delhi as earnest money, executed an agreement to sell on 22.1.1993. The balance sale consideration was agreed to be paid at the time of execution/registration of transfer deed, which was to be executed by 2.4.1993 after obtaining all necessary permissions from NOIDA and concerned departments. It is alleged that in terms of the said agreement both the parties submitted form No. 37-1 for getting permission from Income Tax Department under Section 269 UC (2) and (3) of Income Tax Act, 1961 and defendant also submitted form No. 34A under Section 230A of Income Tax Act, but permission was not granted by the Income Tax Department and order for purchase of the disputed property by Central Government was passed on 24.3.1993. That order was challenged by the plaintiff in High Court in Writ Petition No. 619 of 1993, which was dismissed on 15.4.1993 on the ground that purchaser has no right to get permission from Income Tax Department for purchasing the property. Thereafter, the defendant filed Writ Petition No. 669 of 1993, which was allowed on 20.9.1994 and order dated 24.3.1993 of Income Tax Department was quashed. It is further alleged that after decision of the aforesaid writ petition, the defendant neither informed the plaintiff about clearance certificate from Income Tax Department and no objection certificate etc., nor he executed transfer deed in favour of the plaintiff, due to which the plaintiff got a notice served on the defendant on 24.1.1995, but inspite of that notice, the defendant did not execute the transfer deed of the disputed property in favour of the plaintiff in terms of the agreement to sell dated 22.1.1993, whereas the plaintiff was always ready and willing to get the transfer deed executed after making payment of the balance sale considera
