The court upheld that an unregistered agreement for sale dated before the amendment to the Registration Act could still be enforced, and prior suits do not bar subsequent suits for specific performance where the causes of action differ.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.03.2024 CORAM THE HONOURABLE MR.JUSTICE P.B.BALAJI S.A.No.390 of 2017 Ambeeswaran ... Appellant/Respondent/Plaintiff Vs.

1.Dhanabakkiam

2.Venkatesh ... Respondents/Appellants/Defendants Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and decree in A.S.No.20 of 2016 on the file of the Principal District Court, Namakkal, dated 22.03.2017, reversing the well considered judgment and decree in O.S.No.310 of 2003 on the file of the Subordinate Court, Namakkal, dated

08.02.2016.

For Appellant : Mr.C.Jagadish For Respondents 1 & 2 :Mr.T.Dhanyakumar

JUDGMENT

The plaintiff is the appellant having suffered a reversal finding before the first appellate Court in a suit for specific performance of an agreement of sale dated 13.07.2001.

2. The parties are described as per the litigative status before the trial Court.

3. The material facts that are necessary for deciding the present second appeal are hereunder:

(i) The plaintiff entered into an unregistered agreement of sale with the husband of the first defendant and father of the second defendant on 13.07.2001 for sale/purchase of the suit property, for a total sale consideration of Rs.4,10,000/- and on the date of the agreement of sale, the plaintiff claims to have paid Rs.3,10,000/- and another Rs.50,000/- was paid by him on 13.10.2000 towards discharge of mortgage created over the suit property by the original owner, namely the husband of the first defendant and father of the 2^nd defendant, in-respect of which the first defendant has paid a sum of Rs.50,000/-. According to the plaintiff, the balance sale consideration was only a sum of Rs.50,000/- and claiming that he was always ready and willing to perform his part of the contract, he has filed a suit within time, since the agreement of sale provided for two years time to conclude the sale transaction.

(ii) The defendants denied the execution of the agreement of sale and also the factum of the discharge of mortgage by the plaintiff. The defendants also stated that the plaintiff was never ready and willing to perform his part of the contract and therefore sought for dismissal of the suit.

4. The trial Court, finding that the agreement of sale was true and binding on the defendants, decreed the suit. The defendants preferred an appeal in A.S.No.20 of 2016 before the Principal District Judge, Namakkal. The first appellate Court reversed the findings of the trial Court on primarily two grounds namely, i) The suit was barred in view of the provision under Order II Rule 2 of Code of Civil Procedure (herein after referred as 'CPC'), in view of the earlier suit in O.S.No.1 of 2003 filed by the plaintiff for permanent injunction and thereby, he had lost his right to seek specific performance to the agreement of sale, as no leave was obtained by him to file a suit for specific performance at the time of instituting the suit for permanent injunction.

ii) Secondly, the plaintiff having pleaded that he was put in possession in pursuance of the agreement with the deceased Thirumalai, the husband of the first defendant and father of the second defendant, the agreement of sale being unregistered, the plaintiff cannot seek enforcement of the same before the Court of law, in view of Section 17 of the Indian Registration Act as amended by the State of Tamil Nadu.

The first appellate Court, therefore dismissed the suit for specific performance, by allowing the appeal.

5. Aggrieved by the dismissal of the suit, the plaintiff is on second appeal. The second appeal has been admitted by this Court, on 08.11.2023 and the following two substantial questions of law have been framed:-

“(i) Whether the Lower Appellate Court is right in law in reversing the decree for specific performance on the ground that the agreement for sale dated 13.07.2001 marked as Exhibit A1 is not receivable in evidence in view of the amending Act 48 of 2001 introducing section 17(1-A) of the Registrati