The main legal point established in the judgment is the distinction between an agreement of sale and a sale deed, as well as the procedures to be followed in case of a deficit stamp duty.

A.K. Shrivastava, J.

1. Feeling aggrieved by the judgment and decree dated 30-3-2010 passed by learned Second Additional District Judge, Gwalior in Civil Suit No. 24-A/2009 dismissing the suit of plaintiff for specific performance of contract, the appellant has filed this First Appeal under section 96 of Civil Procedure Code, 1908. In brief the suit of plaintiff / appellant is that the property in question, which is a house, is owned by first defendant-Awanish Saxena. On 14-1-2009 the first defendant entered into an agreement with the plaintiff / appellant to get it sold in his favour. In the said document the second defendant, who is his wife, expressed her consent. In the document of agreement of sale it is stated that this property was bought by first defendant from Smt. Gyasobai. The consideration of Rs. 3,60,000/- (Rs. Three Lakh Sixty Thousand Only) was agreed to be paid by the plaintiff to the defendants and in advance a sum of Rs. 1,00,000/- (Rs. One Lakh Only) was paid on the date of execution of the document. It was further agreed between the parties that the sale-deed shall be executed within five months after paying the balance amount of consideration. Thereafter, on 20-4-2009 i.e. earlier to expiry of five months defendants made demand of Rs. 1,30,000/- (Rs. One Lakh Thirty Thousand Only) from the plaintiff / appellant, which he paid through cheque. The plaintiff repeatedly requested the defendants to get the sale-deed executed, but the same was not executed, but on 12-6-2009 another document of agreement of sale was executed between the parties. According to the plaintiff he was and is, always, ready and willing to perform his part of contract and in order to show his readiness and willingness he also sent notice by Registered AD post, but the defendants declined and avoided to get the sale deed executed. The possession of the house in question was also delivered in pursuance to the agreement of sale, but the defendants are mala fidely not executing the sale-deed, on the contrary they are trying to alienate the suit property to third person. The plaintiff is also paying the house tax of the house in question. Eventually, he filed the suit for specific performance of contract.

2. The defendants, despite they were served, did not remain present before the learned trial Court and, hence, they were proceeded ex parte. Needless to say, since they were ex parte, they also did not file any written statement.

3. The plaintiff / appellant filed the document of agreement of sale dated 14-1-2009 (Ex. P/1) and also filed another agreement of sale dated 12-6-2009 (Ex. P/1-A). Apart from these two documents, plaintiff also filed material documents viz. copy of the draft of Registered AD notice (Ex. P/3) and the registered sale deed (Ex. P/5) dated 25-2-2002 executed by Smt. Gyasobai in favour of first defendant-Awanish Saxena. Certain documents of the Municipal Corporation, Gwalior indicating that the house tax is being paid by the plaintiff have also been filed. Apart from these documentary evidence, plaintiff examined himself as PW-1 and also examined attesting witness Mahesh Singh Rajput as PW-2. The learned trial Court dismissed the suit of plaintiff solely on the ground that because the possession has been delivered by the document (Ex. P/l-A) dated 12-6-2009, the said agreement of sale would amount to sale deed and because the document is not registered and is not on proper stamp duty, therefore, dismissed the suit.

4. In this manner this appeal has been filed by the plaintiff /appellant.

5. In her usual vehemence Sushri Shweta Bothra, learned counsel for appellant, by inviting our attention to section 54 of the Transfer of Property Act, 1882 (in short " the T.P. Act") has submitted that if the definition of sale as envisaged under section 54 of the said Act is considered in proper perspective, it would reveal that the document of agreement of sale is far away from the ambit and sweep of the document of sale and if t