Andhra Pradesh High Court - Amravati

M/S.Rowfin Real Estate Private Limited vs M/S.Suvarna Bhoomi Marketing And ... on 11 September, 2024

APHC010638372022
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI              [3311]
                           (Special Original Jurisdiction)

         WEDNESDAY, THE ELEVENTH DAY OF SEPTEMBER
              TWO THOUSAND AND TWENTY FOUR

                                 PRESENT

         THE HONOURABLE MS JUSTICE B S BHANUMATHI

                   CIVIL REVISION PETITION NO: 2463/2022

Between:

M/s.Rowfin Real Estate Private Limited                ...PETITIONER

                                   AND

M/s Suvarna Bhoomi Marketing And Service India Pvt ...RESPONDENT
Ltd

Counsel for the Petitioner:

   Sri. SRICHARAN TELAPROLU

Counsel for the Respondent:

   Sri. P RAJESH BABU

The Court made the following:
                                       2
                                                                         BSB, J
                                                         C.R.P.No.2463 of 2022

           THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                Civil Revision Petition No.2463 of 2022
ORDER:

This revision petition is filed under Article 227 of the Constitution

of India against the order, dated 01.11.2022, rejecting the objection

raised by the revision petitioner/defendant for marking the agreement of

sale, dated 08.08.2012, in evidence on behalf of the plaintiff on the

ground that it is unregistered and insufficiently stamped.

2. The plaintiff filed the suit for recovery of an amount of

Rs.1,71,73,333/- from the defendant with subsequent interest @ 24%

per annum from the date of suit till the date of realization on the

principal amount of Rs.1,00,00,000/- and suit costs.

3. The case of the plaintiff is briefly as follows:

The defendant entered into an agreement of sale on 12.12.2011,

with the owners of the land by names, V.Seetarama Raju and Potluri

Vijaya Kumar in respect of Ac.112.58 cents in Sy.Nos.797/2, 798/2 and

405 of Kamavarapukota village and Mandal, West Godavari District, and

is in possession of the said property by virtue of the said agreement of

sale. On 08.08.2012, the defendant and the plaintiff entered into an

agreement of sale agreeing that the suit schedule property is in

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possession and enjoyment of the defendant in its own right as a

licensee of the original owners. The defendant agreed to provide that

the agricultural land is converted into non-agricultural land and the said

land should be developed in the laid out plots for residential purpose

and the said lay out has been tentatively approved vide Lr.

R.O.C.No.4209/2012/R, dated 11.06.2012, issued by the Director, Town

and Country Planning, Hyderabad. It is agreed by the defendant that

the plaintiff shall promote selling of plots in the layout DTLP

No.50/2012/R of DTCP, Hyderabad in the site admeasuring

approximately 3,20,000 square yards out of Ac.112.58 cents. As per

the agreement, the plaintiff has to sell 675 plots out of total plots of 736

in the lay out, at the rate of Rs.2,400/- per square yard within the fixed

period of six months from the date of agreement and in any case, if the

cost of the plot is increased during the period of six months, the

defendant is entitled to receive 66.66% on the cost of the plot and the

plaintiff is entitled to receive the remaining balance. In consideration of

the agreement of sale, dated 08.08.2012, the plaintiff paid the defendant

an amount of Rs.1,00,00,000/-under various cheques drawn on the Axis

Bank, Rajahmundry. The defendant passed payment vouchers, dated

09.08.2012. Hence, the agreement of sale was signed by both the

plaintiff and the defendant on 11.08.2012. The defendant promised that

it would furnish all the material papers regarding conversion of the

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agricultural land into non-agricultural land, layout residential plots plan

and final approved plan from the DTCP of Hyderabad, and also that the

land would be developed as plots consisting roads, parks, drainage

facility, overhead tank and electricity supply to enable the defendant to

sell the plots to the public. For that purpose, the plaintiff set up an office

at Eluru, immediately and from 12.08.2012, the marketing development

activities commenced. The plaintiff nearly spent Rs.2,00,00,000/-. But

the defendant did not furnish the documents required. As the defendant

did not develop the land as agreed in the sale agreement for the

purpose of selling the plots and did not furnish the documents required,

the efforts of the plaintiff were in vain and the public did not come

forward to purchase the plots. Meanwhile, contrary to the reciprocal

promises under the agreement of sale, the defendant started marketing

and selling the plots independently without information to the plaintiff.

The plaintiff came to know about the same and questioned the

defendant for which there has been no response from the defendant.

4. The plaintiff got issued a legal notice on 25.04.2013 to the

defendant for breach of terms of the agreement and demanded refund

of advance amount of Rs.1,00,00,000/- and also to pay

Rs.2,00,00,000/- towards expenses incurred. The defendant gave a

reply notice, dated 15.05.2013, with false allegations. The plaintiff got

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published on 08.09.2014 in 'Eeenadu' daily newspaper regarding the

sale agreement, dated 08.08.2012, for which the defendant issued a

reply notice on 13.09.2014 with untrue facts. In the reply notice, it is

mentioned by the defendant that by use of coercion and undue

influence against the Managing Director of the plaintiff, a letter of

undertaking, dated 06.04.2013, to pay another amount of

Rs.1,00,00,000/- was taken. The plaintiff never issued any letter in

favour of the defendant undertaking to pay additional amount of

Rs.1,00,00,000/-towards compensation for the loss and inconvenience

alleged in the reply notice, dated 15.05.20213, of the defendant.

Because of the conduct of the defendant's breach of the terms of the

agreement, dated 08.08.2012, the plaintiff relieved of all the obligations

under the said agreement. The plaintiff is entitled to reimburse the

expenditure of Rs.2,00,00,000/- incurred for the purpose of promotion of

the project and also refund of Rs.1,00,00,000/- paid as advance under

the said agreement together with interest claimed. Hence, the suit is

filed.

5. The defendant filed written statement opposing the suit and

contending that the defendant is not liable to pay suit amount to the

plaintiff. The agreement of sale, dated 08.08.2012, is cancelled and not

enforceable for the reason that it is merged with the subsequent

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compromise agreement, dated 06.04.2013 under the novation of the

contract. Even otherwise, there is no provision for payment of interest

on the security deposit amount paid by the plaintiff in the agreement,

dated 08.08.2012. There is no cause of action to file the suit. The suit

is liable to be dismissed.

6. The learned counsel for the revision petitioner/defendant

submitted that the trial Court erred in rejecting the objection for marking

the document, dated 08.08.2012, which clearly indicates delivery of

possession of the property under an agreement of sale.

7. On the other hand, the learned counsel for the respondent/plaintiff

submitted that the document though titled as agreement of sale and the

parties are referred as vendor and vendee, it is not in fact an agreement

of sale which requires registration or stamp duty. In this regard, he

stated that the agreement of sale or GPA is between the original owner

of the property and the revision petitioner/vendor under the agreement,

dated 08.08.2012, whereas the plaintiff who is the respondent herein

cannot enforce any specific performance of contract for sale against the

original owner of the property and moreover, the possession recorded in

the document, dated 08.08.2012, is only in the capacity as a licensee to

the party denoted as vendor, i.e., the revision petitioner/defendant and

thus, it cannot be treated in law as possession contemplated with regard

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to an agreement of sale with possession. He further submitted that the

suit is filed not for specific performance of any contract, but for recovery

of the amount paid under the agreement, dated 08.08.2012, and all

these facts would clearly show that the document does not require any

registration and stamp duty, and therefore, it can be rightly admitted in

evidence.

8. The learned counsel for the revision petitioner placed reliance on

the following decisions:

(i) S. Ziaulla and another Vs. M.H.Shafiulla Sahib1, wherein it was

held as follows:

"5. Inasmuch as there is a dispute regarding the stamp duty and penalty payable on the document in question, it is appropriate that the Collector adjudicates the said dispute. Accordingly, while setting aside the order under revision, the learned Senior Civil Judge, HIndupur is directed to refer the dispute for adjudication to the Collector regarding payment of stamp duty and penalty and resume the proceedings in the suit after the decision of the Collector."

(ii) Sri Tirumala Housing (P) Ltd. Rep. by its Managing Director

Vs. GPR Housing (P) Ltd., rep. by its M.D2, it was held in para No.7

as follows:

2013 (3) ALT 16 (S.B)

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7. In B. Ratnamala Vs. G.Rudramma [AIR 2000 AP 167], having regard to the law laid down by the Supreme Court in Veena Hasmukh Jain Vs. State of Maharasthra and others 3 , a Division Bench of this Court laid down as under:

'While considering the provisions of the Indian Stamp Act, it has to be borne in mind that the said Act being a fiscal statute, plain language of the section as per its natural meaning is the true guide. No inferences, analogies or any presumptions can have any place. As the incidence of duty is on the execution of the deed, regard must, therefore, be had only to the terms of the document. Thus the main question that falls for consideration is the interpretation of the expressions "followed by or evidencing delivery of possession". These expressions cannot be read in isolation and one has to find the true meaning by reading the entire Explanation and more so in conjunction with the earlier expression i.e., "agreement". Even if these two expressions are looked independently, it means an agreement to sell followed by delivery of possession and an agreement to sell evidencing delivery of possession. In the first case, i.e., "followed by delivery", possession cannot be disjuncted from the basic source i.e., agreement to sell. Therefore, the expression followed by delivery of possession should have a direct nexus to the Agreement and should be read in juxtaposition to the word 'agreement' and it cannot be independent or outside the agreement. Therefore, the delivery of possession should follow the agreement i.e., through the

2006 (5) ALT 532 (S.B)

AIR 1999 SC 807

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agreement. It takes in its sweep the recital in the agreement itself that delivery of possession is being handed over. It will also cover cases of delivery of possession contemporaneous with the execution of Agreement, even if there is no specific recital in the Agreement. In other words, the delivery of possession should be intimately and inextricably connected with the Agreement. And in the second type, i.e., agreements evidencing delivery of possession, if the document contains evidence of delivery of possession by a recital in that behalf, that is sufficient. Such delivery of possession can be prior to the date of agreement and need not be under the agreement. If the agreement records the fact that the possession was delivered earlier and such recital serves as evidence of delivery of possession, though prior to the Agreement, it falls under the second limb. Therefore, on a proper interpretation of the said expressions, it would follow that an agreement containing specific recital of delivery of possession or indicating delivery of possession even in the past is liable for stamp duty as a 'sale' under the said Explanation.

(iii) In Mandati Srinivas vs. Gatla Raji Reddy and Ors4, it was held

at para Nos.10, 11 & 13 as follows:

10. In Avinash Kumar Chauhan v. Vijay Krishna Mishra [2009 (2) ALT 19 (SC): AIR 2009 SC 1489], the Supreme Court referring to Sec. 35 of the Stamp Act, held as follows:

"The Parliament has, in S. 35 advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a

MANU/AP/2898/2014

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document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions.

The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The Court therefore, was empowered to pass an order in terms of S. 35. The plea that the document was admissible for collateral purpose would not be tenable. Thus, order directing impounding of said document was not liable to be interfered with.

11. In Omprakash v. Laxminarayan and others 2014 (1) ALD 83 (SC): 2014 (1) ALT 47.3 (DN SC), the Supreme Court held as under:

"Though the defendants dispute the fact of giving actual physical possession to the purchaser by the seller, for determination of the question of admissibility of a document, it is the recital therein which shall be decisive. Whether the possession in fact was given or not in terms of the agreement to sell is a question of fact which requires adjudication. But, at the time of considering the question of admissibility of document, it is the recital therein which shall govern the issue. It does not mean that the recital in the document shall be conclusive but for the purpose of, admissibility it is the terms and conditions incorporated therein which shall hold the field."

12. xx xx xxx

13. In the aforesaid judgment, the Supreme Court pointed that from a plain reading of Section 35 of the Stamp Act, it is

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evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty.

9. The averments in the agreement, dated 08.08.2012, relevant for

the purpose of this petition are:-

1. By virtue of the agreement, the vendees acquires the right to purchase free of all encumbrances and the vendors shall sell the land admeasuring approximately 3,20,000/- Sq.

yards out of the total extent of Ac.112.58 cents, as the vendor is offering to sell 675 plots in the layout, out of total plots of 736 earmarked in the Lay-out covered by Survey Nos.797/2,798/2 and 405 situated at Kamavarupukota village & Mandal, West Godavari District, Andhra Pradesh at the agreed price of Rs.2400/- per square yard for a fixed period of six months from the date of this agreement and for any event the cost of the plot has been increased during the period of six months the vendor is entitled to receive 66.66% of the cost of the plot and the vendee is entitled to receive the remaining balance. If in any case there is no price variation in selling of the plots by the Vendee within a period of next six months from the date of this agreement, the vendor is entitled for price revision which is to be reckoned at Rs.2,666/- per square yard.

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2. That in consideration of this agreement, the vendee has paid to the vendors a sum of Rs.1,00,000/- by way of cheque bearing No.631901, 631902, dated 11.08.2012, of Axis Bank, which sum the vendors hereby acknowledge as having received and the vendors has agreed to receive the balance amount as and when the vendees materialized the sale of the plots in the layout. The vendee's authorized representative shall render the account of sale of plots on daily basis to the vendor.

3. That it has been expressly agreed that the above advance amount of Rs.1,00,00,000/- shall be adjusted by way of sale of plots by the vendor upon attaining sales turn out of Rs.5,00,00,000/- made by the vendee.

7. That in consideration of payment of Rs.1,00,00,000/- paid by the vendees to the vendors in the aforesaid manner, during the period from the date till final liquidation and final sale of the land, the entire land shall be in the possession and control of the vendees in the capacity as a Licensee to the vendors.

8. That the Vendors have delivers vacant possession thereof to the Vendee to hold the same together with all water sources, privileges, easements, appurtenances, or by other things hidden in the earth belonging to or appurtenant thereto."

10. A perusal of the above contents of the agreement, dated

08.08.2012, in the light of the other conditions in the agreement, more

particularly, laying emphasis on conditions No.7 & 8, the argument

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advanced by the learned counsel for the respondent/plaintiff is justified.

The petitioner is given possession not in the capacity as a vendee, but it

is given as a licensee to the other party titled as vendor/revision

petitioner herein. As such, the objection raised by the revision petitioner

for marking of the document is not sustainable. Hence, there is no merit

in the revision petition.

11. Accordingly, the Civil Revision Petition is dismissed.

There shall be no order as to costs.