Reserved
Court No. - 9
Case :- CIVIL REVISION No. - 469 of 2014 Revisionist :- Ashok Kumar Kureel Opposite Party :- Anil Sonkar Kureel And 7 Others Counsel for Revisionist :- Vishnu Gupta,Qazi Vakil Ahmad,Rohit Verma,Saurabh Srivastava Counsel for Opposite Party :- Smt. Komal Khare,Amit Kumar Srivastava,Somesh Khare
Hon'ble Anjani Kumar Mishra,J.
Heard Shri Vishnu Gupta, counsel for the defendant revisionist and counsel for the opposite party.
The revision is directed against the order dated 08.08.2014 passed by the Additional Civil Judge (Senior Division), Kanpur Nagar, in Original Suit No.1901 of 2012, whereby an application, under Order 7 Rule 11 CPC, has been rejected by the trial Court.
The plaintiff opposite party no.1 filed a suit seeking an injunction restraining the defendants from executing a sale deed of House No.111/480 Brahma Nagar, Kanpur Nagar in favour of anyone except the plaintiff, in view of a contract to sell dated 22.12.2009 between them. A declaration was also sought that in view of this very same contract to sell, the defendant was bound to execute a proper document of sale in favour of the plaintiff.
It would be relevant to note that the alleged agreement to sell dated 22.12.2009 is admittedly an unregistered one.
The contention of counsel for the revisionist is that a suit based on an unregistered agreement to sell is barred by Section 41(e) of the Specific Relief Act because an injunction cannot be granted to prevent breach of a contract, which cannot be specifically enforced.
A contract to sell, in view of the provisions contained in Section 54 of the Transfer of Property Act, w.e.f. 01.01.1977 is necessarily to be by a registered document. The agreement to sell being admittedly an unregistered one, the same cannot be read in evidence in view of Section 33 of the Evidence Act.
Section 49 of the Indian Registration Act also provides that an agreement to sell is mandatorily registrable.
The suit was therefore not maintainable and the plaint was liable to be rejected in view of the provisions contained in Order 7 Rule 11 (a) and (d) CPC.
Refuting the submissions above, counsel for the opposite party has submitted that there was evidence to show that Rs.5 Lakhs out of a total sale consideration of Rs.55 Lakhs had been paid to the revisionist and therefore, the suit was clearly maintainable in view of the doctrine of part performance incorporated in Section 53-A of the Transfer of Property Act.
He has further contended that even if, specific performance of unregistered agreement is not possible, the suit cannot be thrown out and the plaint cannot be rejected because a decree for refund of the earnest money paid by the plaintiff can always be passed by the Court and therefore, the impugned order has rightly been passed.
He has placed reliance upon the decision in K.B. Saha & Sons Pvt. Ltd. Vs. Development Consultant Ltd., 2008 (8) SCC 564, especially paragraph 20 thereof submit that a document, which is compulsorily registerable but is not registered, is nevertheless, admissible in evidence, for collateral purposes.
In rejoinder, counsel for the revisionist has referred to Section 22(2) of the Specific Relief Act to submit that the relief for refund of earnest money is to be specifically prayed for in the suit and unless specifically claimed, the court cannot grant such a relief. The plaintiff has not specifically prayed for refund of any earnest money and therefore, the argument raised by counsel for the opposite party has no legs to stand.
Counsel for the revisionist has also placed reliance upon the following judgements -
1. Vijay Kumar Sharma Vs. Devesh Behari Saxena, AIR 2008 (ALD) 66, especially paragraphs 12 and 16 thereof.
2. Subhash Verma Vs. Narendra Kumar and others, 2012(6) AWC 5522, especially paragraphs 9,10,12,15,16 and 22 thereof.
3. K.B. Saha & Sons Pvt. Ltd. Vs. Development Consultant Ltd., 2008(8) SCC 564, especially paragraphs 17, 18 and 21 thereof and
4. Surendra Kumar Vs. Amarjeet Singh and others, 2004 (ALD) 335, especially paragraph 38 thereof.
I have considered the submissions made counsel for the parties and have perused the record.
The Court below has rejected the application under Order 7 Rule 11 CPC relying upon a judgement of the Apex Court in Kala Devi Vs. B.R. Sunderam and others, 2010 SAR(Civil) 437, holding that a document required to be registered, if unregistered can be admitted as evidence, in a suit for specific performance.
The trial Court has further gone on to hold that the factum of the unregistered agreement to sell and payment of earnest money had been categorically denied in the written statement. But there was evidence to show that the payment had been made in the form of a certificate by the Bank showing payment of a cheque of Rs.4,50,000/- to the defendant. Therefore, the burden will be on the plaintiff to prove such payment. It therefore, opined that in view of the decision of the Apex Court noticed above, the application under Order 7 Rule 11 CPC is liable to be rejected.
It is no doubt true and has been consistently held by the Courts that a document, which is compulsorily registerable but has not been registered can be admitted in evidence and is liable to be considered for collateral purpose.
The question therefore, which arises for consideration in this revision, is whether a suit claiming an injunction and declaration, as noticed above, on the basis of an unregistered agreement to sell is a collateral purpose or not.
There is no dispute that with effect from 01.01.1977, a contract for sale can only be through a registered document as provided by Section 54 of the Transfer of Property Act. It is also the settled legal position that an unregistered agreement to sell cannot be specifically enforced.
The plaintiff has claimed an injunction restraining the defendants from transferring the property, which is subject matter of the unregistered agreement to sell, in favour of anyone else except the plaintiff. This relief, in my considered opinion, cannot be granted in view of Section 41(e) of the Specific Relief Act 1963.
"41. Injunction when refused - An injunction cannot be granted -
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person fro instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
Since an unregistered agreement to sell cannot be specifically enforced therefore, it necessarily follows that even an injunction cannot be granted, relying upon it.
The first relief in the suit is, therefore, clearly barred by Section 41(e) of the Specific Relief Act.
The second relief is one for declaration that the defendants are bound to execute a sale deed in favour of the plaintiff in view of unregistered agreement to sell dated 22.12.2009.
In my considered opinion, although, the relief has been worded as a declaratory relief, it is in essence claiming specific performance of an unregistered agreement to sell. Section 35 of the Indian Stamp Act provides that an instrument which is not duly stamped is inadmissible in evidence.
Even the declaratory relief and the manner in which, it has been framed in the plaint, necessarily requires examination of the conditions of this unregistered agreement, which has already noticed above is not admissible in evidence as it is necessarily required to be registered.
Besides, a Division Bench of this Court in Aziz Uddin Vs. Laxmi Devi and others, 2014(4) ADJ 667 has held as follows -
" The law is well settled that the dexterity of the drafts-man by camouflaging the real cause of action in a plaint cannot defeat the right of the defendant to get the suit dismissed on the ground of limitation."
The principle extracted above would apply where such dexterity has been resorted to for camouflaging the actual relief being claimed in a suit.
The only other point, which survives for consideration is to the submissions of counsel for the opposite party that an unregistered agreement could be looked into as evidence for a collateral purpose.
In this regard, it would be appropriate to refer to the decision of the Apex Court in K.B. Saha & Sons Pvt. Ltd.(supra). In paragraph 20 of this judgement, the Apex Court has extracted from an earlier decision in Rana Vidya Bhushan Singh Vs. Ratiram above :
" A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property."
In paragraph 21 of the same judgement, it has been held as follows -
" A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
It has also been held that if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use such a document for the purpose of proving an important clause in it would not be using it for a collateral purpose. It is thus, clear that the argument raised by counsel for the revisionist has no merit.
It has also argued by counsel for the opposite party that the suit was maintainable, in view of Section 53-A, which incorporates the doctrine of part performance.
For the doctrine of part performance being attracted, it is necessarily required that the transferee has, in part performance in the contract, taken possession of the property or any part thereof. In view of this legal requirement, I have carefully perused the plaint and I do not find that the plaintiff has alleged that he is in possession over the property to which, the unregistered agreement to sell, pertains. Therefore, the contention that the suit is maintainable in view of doctrine of part performance also cannot be accepted.
In view of the foregoing discussion, this Court finds that the plaint of the plaintiff respondent is liable to be rejected under Order 7 Rule 11(a) and (d) of the Civil Procedure Code, and in failing to do so, the Court below has erred manifestly.
The revision is therefore, allowed. The impugned order is set aside and the plaint of Original Suit No.1901 of 2012 is hereby, rejected.
Order Date :- 12.9.2018 RKM Digitally signed by ANJANI KUMAR MISHRA Date: 2018.09.12 12:09:16 IST Reason: Document Owner Location: High Court of Judicature at Allahabad