Bombay High Court
Plot No.32 vs Age-Adult on 26 November, 2012
Bench: Mridula Bhatkar
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KJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.18 OF 2012
WITH
CIVIL APPLICATION NO.347 OF 2012
1 M/s.Harshal Developers Pvt.Ltd., )
A company registered under the )
Companies Act, 1956, having its )
registered office at : Janhavi, 40/22 )
Bhonde Colony, Erandawana, Pune-4 )
2 Mr.Rajesh haribhau Sachade
Age-52 years, Occupation :Business
)
)
R/o `Rajshil', Survey No.91/1 )
Plot No.32, B/1, Paud Road, Kothrud )
Pune-411 029. )....Appellants
V/s.
1 Mr.Manohar Gopal Bavdekar )
Age-74 years, Occupation: Business )
R/o. `Ashray', 452, Gokhale Road, )
Shivajinagar, Pune-411 016 )
2 Mrs.Shaila Pradumna Rajwade )
Age-Adult, Occupation: Housewife )
R/o. 528, Narayan Peth, Behind Modi )
Ganpati, Pune-411 030 )....Respondents
----
Mr.Girish Godbole i/by S.R.Ronghe for the appellants.
Mr.V.P.Vaze i/by City Legal for the respondent no.1.
----
CORAM : MRS.MRIDULA BHATKAR, J.
DATE : 26th NOVEMBER 2012.
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JUDGMENT :-
1 Plaintiffs are shop purchasers. Defendant is property
developers. Suit RCS No.1279 of 1992 was filed by the plaintiffs on
the basis of an unregistered agreement for sale in the court of Civil
Judge, Senior Division, seeking relief of specific performance and
possession so also give direction to the respondent to perform all
theWP10670 obligations under MOFA Act 1963 and direct the
respondent to admit agreement of sale in the office of Registrar. Suit
was decreed on 14.11.2006. Civil Appeal No.159 of 2009 filed by the
respondent was dismissed on 15.11.2005.
2 The appellant is a defendant no.1 Promotor & developer
who entered into an agreement of sale with respondents/plaintiffs on
31.8.1991 for sale of the shops in the building for total consideration
of Rs.2,94,000/-. Out of which Rs.2,50,000/- was paid on the date of
the execution. The agreement was entered into as per the provisions
of the Maharashtra Ownership Flats Act 1963 (Hereinafter called as
the said "Act"). The impugned agreement being unregistered, it was
presented for the registration to the Joint Sub-Registrar of
Assurances, Pune on 23.12.1991. The plaintiffs have also informed
the appellants/defendants to come and admit the execution.
However, the appellants did not turn up. Plaintiff thereafter issued a
legal notice to admit the execution of the said agreement. However,
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the appellants did not admit and did not respond. The defendant no.1
by way of defence contended that the money was accepted as a loan
and by way of security for repayment of loan, the defendant has
executed the impugned agreement in favour of the plaintiff so that
agreement is not binding under MOFA. Suit was filed initially before
the Civil Judge, Senior Division but after 4 years suit was transferred
to the court of Civil Judge, Junior Division. The trial court framed
issues about the execution of the valid agreement and specific
performance of the same. All the issues were decided in favour of
the plaintiff and suit was decreed. Appeal was preferred by the
defendant no.1 and the Manager of the firm. First appeal court
formulated the points in respect of the requirement of the conditions
of the specific performance and about the execution of the sale deed
and all the points were determined in favour of the respondent.
Hence, this Second Appeal.
3 At the time of hearing of the appeal at the stage of
admission it was agreed by both the parties that the substantial
questions of law may be framed and the appeal would be argued
finally on the next date to enable parties to deliberate on the issues in
detailed. The substantial questions of law on the submissions of the
learned Counsel for the appellants are framed as under :-
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(1) Whether a suit can lie under MOFA for specific
performance on the basis of unregistered agreement for
sale ?
(2) Whether to invoke the powers under the proviso -(2)
of sub- section 2 of Section 4 of the MOFA Act 1963, the
party demanding execution needs to give an application to
the registering officer ?
The learned Counsel for the appellants challenged the validity of the
sale deed dated 31.8.1991 and the maintainability of the suit.
4 The challenge was given mainly on the ground that as the
impugned agreement is not registered as per the requirement of
Section 4 of the MOFA, the suit cannot be entertained under the
MOFA that the defendant should perform the statutory obligations
under the MOFA. The submissions of the learned Counsel are
entirely based on the ruling of the Bombay High Court in The
Association of Commerce House Block Owners Ltd., Vs. Vishndas
Samaldas reported in 1981 page-339. He submitted that an absolute
enactment of section 4 if not obeyed, the consequence would follow
that unregistered agreement of sale between the Promoter/developer
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and the purchaser is altogether void and no rights are created
between the parties. So such suit for specific performance under the
MOFA is not maintainable. The learned Counsel for the appellants
argued that in view of unregistered agreement of sale, the suit is not
maintainable under the MOFA before the Civil Judge, Junior Division,
therefore, prayers sought by the plaintiff for possession and to
discharge the obligations under MOFA Act are not tenable. He
argued that the suit was tried by Civil Judge Junior Division, who has
no pecuniary jurisdiction to try and entertain the matter and
moreover, no relief of conveyance is prayed so relief of possession
can not be granted in favour of the plaintiff. The learned Counsel
submitted that earlier no such objection in respect of the jurisdiction
of the court of the Junior division in the written statement was taken.
Subsequently, the respondent has filed application for amendment of
the written statement challenging the pecuniary jurisdiction of the
court of the Civil Judge, Junior Division. Under such circumstances,
he submitted that the substantial question of law is to be determined
in favour of the appellants.
5 Mr.Vaze in reply submitted that a suit for specific
performance based on an unregistered agreement is tenable under
the MOFA. He submitted that the appellants did not file written
statement raising any plea of maintainability of the suit for specific
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performance on unregistered agreement under MOFA. A say to
Exh.5 was adopted as a written statement by the appellants. He
submitted that agreement of sale dated 31.8.1991 at Exhibit-67 is
proved by the plaintiffs. He read over the oral evidence of the plaintiff
dated 13.1.2003. He pointed out that the plaintiff was not cross-
examined even after two years after recording his evidence and
finally on 24.8.2005 order of no cross-examination was passed. He
pointed out that in the agreement dated 31.8.1991 Exhibit-67
paragraph-22 of the said agreement is regarding the obligation to
admit the execution. He pointed out in the say of the defendant
nos.1 & 2 to the injunction application at Exhibit-5, defendant no.1
has admitted that he has received amount of Rs.2,75,000/- from the
plaintiff. However, it was contended that this amount was by way of
loan and the agreement entered into is a security towards repayment
of the loan amount. It was submitted that as it was a security for
repayment of loan and interest, it is not necessary to be registered. It
was further contended in the written statement that the agreement is
fabricated. The learned Counsel argued that in that say the
defendant no.1 has admitted that he has received a letter dated
23.12.1991 from the plaintiff to attend the office of Sub-Registrar,
Haveli and admit the execution of the agreement dated 31.8.1991.
The learned Counsel further submitted that the defendant neither
stepped into the witness box nor cross-examined the plaintiff to deny
7 SA18.12
the case of the plaintiff and to prove his case. Under such
circumstances, the courts below have rightly rejected the case of the
defendants and granted the relief of specific performance in favour of
the plaintiff.
6 The learned Counsel submitted that Section 4 is binding
on the builder/promoter/developer to execute written agreement and
not to accept more than 20% of the total consideration amount and
then to register the agreement of sale. In the present case the
agreement was prepared. Though it was not registered, it was really
meant to be under Section 4. The defendant no.1 issued separate
receipts of the payment made to him on the date of the execution of
the agreement of sale dated 28.3.1991. He submitted that though
payment of Rs.2,50,000/- was made out of total cost of Rs.2,94,000/-
initially a separate receipt of Rs.50,000/- was issued on that date
showing the receipt of less than 20% of the amount of the total cost
which comes to Rs.58,000/-. He submitted that this agreement can
be read in the evidence in the suit for specific performance. The
objections of the appellant that if a suit for specific performance
based on the contract is filed for declaration and possession then the
suit is undervalued and barred for pecuniary jurisdiction ; are not
correct. He replied that such objection by way of amendment of
written statement under order 6 Rule 17 of the Code of Civil
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Procedure was sought on 8.12.2010. However, the said application
was rejected by the first appeal Court and also by this Court in the
Writ Petition No.4291 of 2011 which was filed to challenge the said
order.
7 The learned Counsel submitted that as per the ruling of
the Division Bench in The Association of commerce House Block
Owners Ltd., Vs. Vishndas Samaldas, earlier by virtue of section 4 it
was not possible for the party to demand specific performance on the
basis of unregistered agreement. However after the judgment of the
Division Bench, section 4A was enacted and added in MOFA. He
submitted that in the wording of section 4 the word is used as "Any
other Law". It means that it does not include MOFA and it refers to
laws other than MOFA. While enacting section 4A the Legislature did
not use the same terminology but has started with non-obstante
clause and used the term any law. Therefore, it includes the same
law for the time being in force. He submitted that thus, section 4A
takes care of not only the other laws but also all the provisions
included under the MOFA. He argued that therefore, section 4A
enables filing of suit for specific performance of contract based on
unregistered agreement between the Promoter/developer and the
flat purchaser under the MOFA and thus substantial question of law
no.1 is to be answered positive and against the appellant. In support
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of his submissions, he relied on following rulings :-
(1) Altaf Ismail Sheikh Vs. State of Maharashtra & Ors reported in
2005 ALL MR (Cri) 2403. (2) P.Virudhachalam & Ors Vs. The
Management of Lotus Mills reported in AIR 1998 SUPREME COURT
554. (3) S.Kaladevi Vs. V.R.Somasundaram & Ors.reported in
2010(3) ALL MR 477. 4) Union of India Vs. Ibrahim uddin &
Anr.reported in 2012(5) ALL MR 462. (5) Mt.Islam Fatima Vs. Syed
Tamiz Ali, reported in 1924 Allahabad 938, (6) Kalavakurti Venkata
Subbaiah Vs. Bala Gurappagari Guruvi Reddy reported in AIR 1999
SUPREME COURT 2958. (7) Gangaprashad & Ors. Vs.
Mt.Banaspati reported in AIR 1937 Nagpur 132 ; (8) Totaram
Krishna Patil Vs.Mt.Rahimat Bi and Ors reported in AIR 1937 Nagpur
227 ; (9) Abdul Kayum Vs. Damodhar Paikaji reported in AIR 1964
BOMBAY 46(V 51 C 7) and (10) Mansinh Vs. Jamnadas reported in
AIR 1964 BOMBAY 49.
8 For better understanding of the substantial questions of
law the relevant provisions of the MOFA and the Registration Act are
reproduced as follows :-
4. Promoter before accepting advance payment
or deposit to enter into agreement and agreement
to be registered- (1) Notwithstanding anything
contained in any other law, a promoter who intends to
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construct or constructs a block or building of flats, allor
some of which are to be taken or are taken on
ownership basis, shall, before he accepts any sum of
money as advance payment or deposit, which shall
not be more than 20 per cent of the sale price enter
into a written agreement for sale with each of such
persons who are to take or have taken such flats, and
the agreement shall be registered under the
[Registration Act, 1908(XVI of 1908)]; [and such
agreement shall be in the prescribed form] ;
[(1A) The agreement to be prescribed under sub-
section (1) shall contain inter alia the particulars as
specified in clause (a) and to such agreement there
shall be attached the copies of the documents
specified in clause (b)-
(a) particulars-..............
(b) copies of documents-.................
(I) the certificate by an Attorney-at-Law or
Advocate under clause (a) of sub-section (2) of section
[(2) Any agreement for sale entered into under sub-
section (1) shall be presented, by the promoter or by
any other person competent to do so under section 32
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of the Registration Act, 1908 (16 of 1908) at the proper
registration office for registration, within the time
allowed under section 23 to 26 (both inclusive) of the
said Act and execution thereof shall be admitted
before the registering officer by the person executing
the document or his representative, assign or agent as
laid down in sections 34 and 35 of the said Act also
within the time aforesaid:
Provided that .................,
Provided further that, on presenting a
document for registration as aforesaid if the person
executing such document or his representative, assign
or agent does not appear before the registering officer
and admit the execution of the document, the
registering officer shall cause a summons to be issued
under section 36 of the Registration Act requiring the
executant to appear at the registration office, either in
person or by duly authorised agent, at a time fixed in
the summons. If the executant fails to appear in
compliance with the summons, the execution of the
document shall be deemed to be admitted by him and
the registering officer may proceed to register the
document accordingly. If the executant appears
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before the registering officer as required by the
summons but denies execution of the document, the
registering officer shall, after giving him a reasonable
opportunity of being heard, if satisfied that the
document has been executed by him, proceed to
register the document accordingly.]
4A Effect of non-registration of agreement
required to be registered under section 4- Where
any agreement for sale entered into under sub-section
(1) of section4, whether entered into before or after the
commencement of the Maharashtra Ownership Flats
(Regulation of the promotion and construction, sale,
management and transfer) (Amendment and
Validating Provisions) Act, 1983 (Mah. V of 1984.)
remains unregistered for any reason, then
notwithstanding anything contained in any law for the
time being in force, or in any judgment, decree or
order of any Court, it may be received as evidence of
a contract in a suit for specific performance under
Chapter II of the Specific Relief Act, 1963 (XLVII of
1963) or as evidence of part performance of a contract
for the purposes of section 53A of the transfer of
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Property Act 1882 (IV of 1982) or as evidence of any
collateral transaction not required to be effected by
registered instrument."
The execution of the unregistered agreement of sale dated 31.8.1991
is not disputed. The appellants did not file written statement but
adopted his say given to application for interim injunction as written
statement. The respondent/plaintiff was not cross-examined and
appellant did not step into witness box and did not adduce any oral
evidence. Thus the plaintiff has discharged his burden to prove his
case. The case of the defendants that the impugned agreement was
a security towards the repayment of the loan and the plaintiff has
paid an amount of Rs.2,78,000/- to him towards loan and the
agreement was executed towards the security of repayment of the
loan was rightly rejected by the courts below. Thus on facts, the
appellant has no case. However this being a Second Appeal the
substantial questions of law are dealt herewith.
9 Section 4 of MOFA Act is a mandatory section. Within the
purport of section 4 following three things are expected to be
performed by the parties.
(a) There shall be written agreement in respect of sale or
purchase of property ;
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(b) The promoter should not accept 20% of the amount of the
flat before entering into an agreement ;
(c) The said agreement should be registered.
10 If the agreement is not registered, it loses its value as
agreement under Section 4 of the MOFA Act. If agreement is
registered then it can be given effect under MOFA Act including
imposing the liabilities/obligations mentioned under the Act. In the
judgment of House of Commerce of Blocks Vs. Vishnadas &
Samaldas & Ors. reported in 1981 BLR, it is held that if an
agreement executed under Section 4 is not registered then the
agreement is void and if agreement is void then no agreement exists
between the parties and therefore, the flat owner cannot file any suit
on the basis of such agreement. In the year 1981 when this matter
was decided, there was no provision available to meet the situation if
an agreement is unregistered. MOFA Act is enacted with an object
to curtail the mal-practices of the builders and promoters and to
protect the interest of the flat purchasers. However, in the absence
of any such provision and section 4 being mandatory demanding
registration of the document, no remedy was available to the flat
owner if an agreement is not registered. There are number of
instances of promoters not registering the agreement for sale.
However on the background of the judgment of the Division Bench of
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the Bombay High Court in The Association of Commerce House
Block Owners Ltd., Vs. Vishndas Samaldas (supra) a flat purchaser
was in fact remedyless. To meet this lacuna and to meet the
injustice caused to genuine buyers section 4A of the MOFA was
enacted in 1984. Section 4A acknowledged the privity of contract
between the promoter and the flat purchaser created by unregistered
agreement of sale and it stated that the said document to be
accepted as an evidence in a suit for specific purpose or a suit of part
performance under Section 53A of the Contract Act. Thus, under
Section 4 of the MOFA said unregistered agreement of sale being a
void document, cannot be recognized and suit cannot be filed for the
liabilities and obligations under MOFA due to the mandatory
requirement of the registration. However in view of section 4A of the
Act the document did not become non-est or valueless. It does
carry a character and value of the regular agreement of sale for
immovable property. There is no specific requirement of the
registration for agreement of sale of immovable property. Therefore,
a suit for specific performance or performance of a contract can be
instituted on the basis of an un-registered agreement of sale. Sub-
section 2 of section 4 has two provisos : first proviso is in respect of
an unregistered agreement which has taken place before the
commencement of the MOFA Act and how that unregistered
document can be registered. Proviso-2 lays down a procedure how
16 SA18.12
unregistered agreement of sale can be registered by presenting it
before the office of Registrar by following the procedure under the
proviso and so also under the Registration Act.
11 Section 49 of the Registration Act, 1908 and its proviso
are to be read while interpreting section 4A of the MOFA . Section
49 of the Registration Act reads as under :-
"49 Effect of non-registration of documents required
to be registered- No document required by section 17 [or
by any provision of the Transfer of Property Act, 1882,] to
be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
© be received as evidence of any transaction affecting
such property or unless it has been registered ;
Provided that an unregistered document
affecting immovable property and required by this Act, or
the Transfer of Property Act, 1882 to be registered may
be received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act,
1877 or as evidence of any collateral transaction not
required to be effected by registered instrument.]
17 SA18.12
Proviso of Section 49 and section 4A are drafted on the similar lines.
As per Section 49 of the Registration Act, unregistered agreement in
respect of immovable property cannot be read in the evidence and no
effect can be given on the basis of such unregistered agreement. In
the year 1929 proviso was added in section 49 of the Registration
Act, 1908. The proviso enabled a party to file a suit for specific
performance under the Specific Relief Act based on unregistered
agreement of immovable property demanding other party to come
forward and execute and register the agreement. Thus the proviso
removed the hurdle in respect of admissibility of such unregistered
document of immovable property. Section 4A being the enabling
section sings the same tune.
12 In order to determine the maintainability of the suit for
specific performance based on unregistered agreement of sale under
MOFA, the submissions made by the learned Counsel for the
respondents on the point of interpretation of Sections 4 & 4A are
required to be taken into account. Sections 4 & 4A have non
obstant clauses. Section 4 opens with the terminology as follows:-
"notwithstanding anything contained in any other law."
(emphasis placed)
Thus despite of any other law inconsistent with the MOFA, the
18 SA18.12
mandate of section 4 operates. This necessarily refers to other Acts
especially Registration Act. Section 4A was enacted in the year
1984 with the specific purpose to provide remedy in the case of any
unregistered agreement of sale entered into under sub-section 1 of
Section 4 which remained to be registered. It states "notwithstanding
anything contained "in any law for the time being in force ". Use of
term in "any" law indicates that despite of inconsistent provision in
any law, time being in force section 4A operates. Use of word `any'
includes the provisions of not only of the other laws but also the
provision of the MOFA itself. For the purpose of interpretation, I rely
on the following rulings :-
(1) In the judgment of the Bombay High Court the case of Altaf
Ismail Sheikh Vs. State of Maharashtra & Ors reported in 2005 ALL
MR (Cri) 2403 the Division Bench has considered the application
and purpose of non-obstante clause. It was held that non-obstante
clause is a legislative devise which is usually employed to give over-
riding effect to certain provisions over some contrary provision, which
may be found either in the same enactment or in some other
enactment. (2) In P.Virudhachalam & Ors Vs. The Management of
Lotus Mills reported in AIR 1998 SUPREME COURT 554. the
Supreme Court has dealt with the term "any other law", In any part of
the Act or any other law it is to be understood as exclusion of the law
in which the said term is mentioned.
19 SA18.12
13 Thus the submissions of the learned Counsel for the
respondents that Section 4A has over-riding effect over section 4 of
the MOFA are correct and convincing. Thus a suit for specific
performance based on an unregistered agreement of sale under
MOFA is maintainable. However, the suit is filed only as per the
provisions of section 4A of the MOFA. Such unregistered agreement
of sale is not invalid but can be very much used in the evidence and
specific performance on the basis of said document can be
demanded within the purport of section 4A of the Act.
14 One more point of the competency of the Civil Court
jurisdiction when its jurisdiction is challenged on pecuniary ground
needs to be addressed. Civil Judge Jr.Division and Senior division
have inherent jurisdiction to try and decide the civil dispute. So
hierarchy created on the basis of pecuniary jurisdiction is technical.
By order dated 19.7.2011 this court held that in view of sub-section 2
of section 21 of Code of Civil Procedure, the appellants could not
have been permitted to raise the objection on the ground of
pecuniary jurisdiction in appeal as the said objection was not raised
during the pendency of the trial of the suit. The appellants did not
challenge the said order further. Thus issue of pecuniary jurisdiction
concluded by this court has attained finality. Therefore, at this stage,
20 SA18.12
the appellant is barred from raising the same issue of pecuniary
jurisdiction. Thus the first substantial question of law is answered in
affirmative.
15 2nd substantial question of law :-
While dealing with the 2nd substantial question of law the
provisions of Registration Act of 1908 are required to be referred and
compared with certain points. Proviso-2 of Sub-section 4 of MOFA
lays down the procedure in respect of presentation of unregistered
agreement of sale for registration. In the present case though the
respondent presented the agreement of sale for registration a
summons was not issued by the registering officer and therefore,
document was not executed and remained to be registered. The
learned Counsel for the appellants submits that under proviso-2 the
person who presented the agreement for registration should make an
application to the registering officer for issuance of summons or
notice to the person who is required for the registration and on his
failure to come and admit the same that agreement of sale remains
unregistered. The learned Counsel submits that registering officer
has powers under proviso-2 of section 2 of section-4 of MOFA but
those powers cannot be used unless party moves application to the
Registrar. Mere presentation is not sufficient to take out summons.
In the present matter the plaintiffs have though submitted the
21 SA18.12
agreement for registration before the registering officer did not move
the application for summons or notice under proviso-2 of sub-section
4 of section 2 of MOFA Act. He argued that if the provisions
available in the Statute are not availed of by the party then the
parties must blame themselves for their non action.
16 The learned Counsel Mr.Vaze for the respondent
submitted that as per section 17 of the Registration Act, registration
is compulsory in respect of documents in certain transactions.
Section 4 of MOFA is enacted on the same lines of section 17 of the
Registration Act. Proviso of section 4A is borrowed from proviso of
section 49 of the Registration Act to enable the party to use an
unregistered document for the purpose of suit as an evidence for
specific performance or for collateral transaction. He submitted that
when unregistered document is presented then Section 36 of the
Registration Act is required to be followed by the registering officer.
He further submitted that it is not necessary for the party to make
separate application to the registering officer but registering officer
has to issue a summons of his own.
17 On the point of procedure of the registration contemplated
under proviso-2 of sub-section 2 of section 4 of the MOFA Act, the
document has to be presented before the Registrar for registration
22 SA18.12
under Section 32 of the Registration Act. Thereafter if the other party
appears then under Section 34 the Registrar has to take steps. The
inquiry before the Registering officer is to be conducted under
Section 34 of the Registration Act of 1908. Section 36 of the Act and
proviso-2 of Section 4 of MOFA if read together may appear similar
but if fact are distinguishable. Registration Act does not speak of
what would be the result if on service the person fails to appear.
What would be the legal position of an unregistered agreement
which is presented for the registration. Registration is an act of
making the entry in the office record to create a record. So making
the entry or giving the number to a document of an individual or a
body corporate on compliance of the formalities is registration.
Proviso of sub-section 2 of section 4 of the MOFA Act lays down a
procedure to meet a situation if an agreement remained
unregistered. Under such circumstances, the agreement if at all is
presented under Section 32 under the Registration Act and after
notice the other party who is required for the registration does not
turn up for executing the agreement, then the inquiry under Section
34 cannot be conducted. Part-7 of the Registration Act of 1908 is of
enforcing the appearance of executant and the witnesses. Section
36 of the Registration Act reads as under :-
"36. Procedure where appearance of executant or
witness is desired- If any person presenting any
23 SA18.12
document for registration or claiming under any
document, which is capable of being so presented,
desires the appearance of any person whose presence
or testimony is necessary for the registration of such
document, the registering officer may, in his discretion,
call upon such officer or Court as the [State
Government] directs in this behalf to issue a summons
requiring him to appear at the registration office, either
in person or by duly authorized agent, as in the
summons may be mentioned, and at a time named
therein.
18 Under Section 36 the registering officer may in his
discretion call upon such officer or Court thereafter on this behalf
may issue summons to that person for appearance. However, no
such discretion is left to the registration officer under proviso 2 of
Section 4 of the Act. This is a special provision which is not only
consistent with the Registration Act but with a force of mandate
takes a provision further and lays down a solution to a situation if
party fails to admit the execution.
By statutory provision power to issue summons vests with
the registering officer. Question is whether that authority is required
to suo-moto invoke its power or it is to be used only on the
24 SA18.12
application made by the party. The provisions of proviso-2 are to be
analyzed. Section 36 of the Registration Act states that if a person
presenting the document desires the appearance of any person, then
registering officer may in his discretion take steps. However, proviso
2 simply says that if the agreement is presented and other party is
not present, then the registering officer shall issue notice. Mere
presentation of the instrument for registration may not be enough to
issue summons by invoking powers in other circumstances but the
proviso is enacted and worded in such a way that it is obligatory on
the part of the registering officer to take steps. The presentation of
that instrument for registration itself is to be construed that the party
has asked the other person to execute the document. Therefore it is
the duty of the registering officer to verify whether other party is
present or not and if other party is not present then the presentation
itself is sufficient for registering officer to proceed and take the step
of sending summons/notice to the other party.
19 Proviso 2 of sub-section 2 of Section 4 of the MOFA
states that if the executant fails to appear in compliance with the
summons then execution of the document shall be deemed to be
admitted by him and the registering officer may proceed to register
the document accordingly. Thus proviso is a deeming provision but
only for the purpose of admitting the execution. On failure of the
25 SA18.12
appearance of the other party such deeming terminology is not
provided for the registration but only at execution. In view of
deeming provision laid down in proviso of section 4 it is a duty of the
registering officer to issue summons when the document is
presented and other party remained absent. He should not wait for
written application of the other party. Registrar cannot remain
passive while performing his duty which is contemplated under
proviso of section 4 of the MOFA. Thus 2 nd substantial question of
law is also decided in affirmative.
20 Submissions of the learned Counsel for the appellant
that unless there is a prayer of conveyance, a prayer of possession is
not tenable, cannot be accepted. On the basis of registered
agreement of sale possession can be demanded for the conveyance
of the co-operative society, however many times it is a matter of
tripartite agreement. A land owner if is a 3 rd person who
subsequently comes in the picture at the time of conveyance, the
possession is always handed over on the basis of registered
agreement of sale. Therefore, in the suit for specific performance
based on unregistered agreement of sale the prayers demanding
registration of the document and possession are maintainable.
21 It is advisable for the Controller of Stamp & Registration
26 SA18.12
Authority to give directions to all the Registrars and Sub-Registrars in
State of Maharashtra to maintain separate registers for the
compliance under proviso 4 of sub-section 2 of section 4 of MOFA.
22 Hence, appeal is dismissed.
23 In view of dismissal of the Appeal, Civil Application is also
disposed of.
ig (JUDGE)
24 Learned Counsel for the appellants prays that the order of
this court be stayed for a period of four weeks. Learned Counsel for
the respondent no.1 opposes the said prayer. He submits that the
respondents have taken out execution proceedings in the year 2006
in RCS No.1279 of 1992 and they are waiting for the fruits of the
decree since then. He submits that the respondent no.1 is now 80
years of old.
25 Considering the submissions made by both the parties,
and in view of the findings given by this Court, I am not inclined to
stay this order. Prayer of stay is rejected.
(JUDGE)
27 SA18.12
ig (JUDGE)
