Bombay High Court
Sau. Saroj W/O Tulsi Sugandh And ... vs Harish S/O Ishwardas Amesar And ... on 26 July, 2017
Bench: P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3979 OF 2017.
PETITIONERS: 1. Sau.Saroj w/o Tulsi Sugandh,
aged 51 years, Occu: Housewife, R/o
House No.736/84/B, Plot No.655/3,
Chhapru Nagar Colony No.3, Nagpur.
2. Shri Tulsi s/o Parasram Sugandh,
aged 52 years, Occu: Business, R/o
House No.736/84/B, Plot No.655/2,
Chhapru Nagar Colony No.3, Nagpur.
: VERSUS :
RESPONDENTS: 1. Harish Ishwardas Amesar,
aged 53 years, Occu: Business,
R/o Chapru Lok No.3, Ambedkar
Chowk, Chhapru Nagar, Nagpur.
2. Chhapru Nagar Co-op.Housing Society
Ltd. Nagpur, through its Secretary,
Jamnadas s/o Bishandas Dua,
aged 55 years, Occu: Business, R/o
Chhapru Nagar, Nagpur.
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Mr.N.B.Bargat, Advocate for the petitioners.
Mr.H.D.Dangre, Advocate for respondent no.1.
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CORAM: P.N.DESHMUKH, J.
DATED: 26th JULY, 2017.
ORAL JUDGMENT:
1. Rule, Rule made returnable forthwith. Learned counsel for
respondent no.1 makes a statement that he does not want to file
affidavit-in-reply. Thus, by consent of learned counsel of both the
sides, heard finally.
2. Challenge in this petition is to order dated 15th April, 2017
passed in Special Civil Suit No.383 of 2015 by which
petitioners/plaintiffs', (hereinafter referred to as 'petitioners')
application for sending agreement of sale for impounding came to be
rejected. Above application was filed in a suit filed by petitioners for
Specific Performance of Contract along with other consequential reliefs
against the respondents/defendants (hereinafter referred to as
'respondents') and had filed agreement of sale dated 27 th July, 2013,
contending that as possession of the suit property with the petitioners
has been acknowledged by respondent no.1 by said agreement, in order
to avoid any technical problems, it is necessary to refer the Agreement
of Sale to the Collector of Stamp with directions to impound said
document by imposing necessary stamp duty thereon and to resend it
back to the learned trial Court. Learned counsel for the petitioners
submitted that with this prayer, there was no reason of any prejudice
that could have been caused to respondents, however, by impugned
order the learned trial Court rejected the application and has therefore,
prayed that order dated 15th April, 2017 be quashed and set aside with
directions to the learned trial Court to refer the agreement of sale dated
27th July, 2013 to the Collector of Stamps for impounding the same.
3. As against this, learned counsel for respondent submitted
that there is no necessity for impounding of said document and that
application is filed, only for the purpose of prolonging the suit which
has reached to its fag end wherein, admittedly, arguments of both sides
are concluded and is now fixed for delivering judgment. It is also
submitted that the agreement which is prayed to be sent for
impounding is duly proved and is exhibited by adopting recourse
available under law, thus it is prayed that petition be dismissed.
4. Perusal of agreement dated 27th July, 2013 reveals that same
is executed on stamp paper valued for Rs.500/-. It is the case of
petitioners that based on this agreement, respondents have
acknowledged their possession of the suit property and as such, it is
necessary to refer the documents to the Collector of Stamp for
impounding the same, however, prayer made as aforesaid does not
appear to be convincing as from the contents of this document
respondents do not appear to have acknowledged possession of suit
property as part performance of contract within the ambit of Section
53-A of the Transfer of Property Act and thus, submissions advanced on
behalf of petitioners, as above, do not appear to be convincing, in as
much as from the contents of said agreement it is found that parties
thereto have agreed that petitioners will have to pay rent of suit
property to the respondents till the sale-deed is executed. From the
recitals as aforesaid, it is therefore clear that though petitioners are in
possession of suit property even after the date of execution of said
agreement of sale, they are in possession of suit property in their
capacity as tenants.
5. Having considered facts as aforesaid, thus, petitioners'
possession of the suit property by no stretch of imagination can said to
be in pursuance to part performance of agreement to sale.
6. In that view of the matter, there appears no reason to
interfere with the impugned order. Petition is, therefore, dismissed
with no orders as to costs.
7. Needless to say that learned trial Court shall not get
influenced with the observations as aforesaid and shall independently
consider the suit on its merits.
JUDGE
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