Devinder Singh vs Hari Singh
2017 Latest Caselaw 2030 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 125/2017

%                                                        26th April, 2017

DEVINDER SINGH                                              ..... Appellant
                          Through:       Mr. Ankur Bansal, Advocate
                                         with appellant in person.

                          versus

HARI SINGH                                               ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 15491/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RSA No. 125/2017 and C.M. Appl. No. 15490/2017 (for stay)

1. This Regular Second Appeal filed under Section 100 of

the Code of Civil Procedure, 1908 (CPC) impugns the concurrent

judgments of the courts below; of the Trial Court dated 5.2.2016 and

the First Appellate Court dated 10.2.2017; by which the suit for

specific performance filed by the respondent/plaintiff for the suit

property comprising of 42 sq. yards in plot no. 3221, Gali No. 1, Ranjit

Nagar, New Delhi, has been decreed.

2. The subject suit was filed by the respondent/plaintiff

seeking specific performance of the receipt-cum-agreement to sell

dated 22.1.2002. Total sale consideration as per the receipt-cum-

agreement to sell was Rs.1,50,000/-. The appellant/defendant received

under the receipt-cum-agreement to sell a sum of Rs.65,000/- in cash

and Rs.35,000/- by way of cheque. Balance consideration payable was

Rs.50,000/- and which was to be paid at the time of transfer of the title

in the suit property by the appellant/defendant in favour of the

respondent/plaintiff. As the appellant/defendant failed to execute the

title documents, consequently, the subject suit for specific performance

came to be filed.

3. The appellant/defendant denied execution of the receipt-

cum-agreement to sell dated 22.1.2002. Appellant/defendant claimed

that the amount of Rs.35,000/- received by cheque under the receipt-

cum-agreement to sell was in fact for return of loan which was given

by the appellant/defendant to the respondent/plaintiff. It was,

accordingly, prayed that the suit for specific performance be dismissed.

4. The courts below have, in my opinion, arrived at the

correct conclusions and findings for decreeing of the subject suit for

specific performance, and such valid conclusions drawn are as under:-

(i) The written statement shows that there is no specific denial by

the appellant/defendant of his signatures on the receipt-cum-agreement

to sell dated 22.1.2002 and the appellant/defendant only denied having

executed the documents. This aspect is to be taken with the fact that

the appellant/defendant was given an opportunity to furnish his

specimen signatures in his UCO Bank account so that the signatures

can be sent to the handwriting expert but the appellant/defendant failed

to give the specimen signatures. The appellant/defendant also failed to

avail the opportunity of getting a handwriting expert appointed to give

a report as regards the validity of the signatures appearing on the

receipt-cum-agreement to sell dated 22.1.2002, i.e the signatures were

not of the appellant/defendant.

(ii) Appellant/defendant claimed that he received the amount of

Rs.35,000/- by cheque under the agreement to sell, not as part

consideration, but in return of a loan which the appellant/defendant

pleaded was granted to the respondent/plaintiff, however,

appellant/defendant could lead absolutely no evidence whatsoever of

his giving allegedly a loan of Rs.35,000/- to the respondent/plaintiff

and which was allegedly repaid by a cheque which is referred to as part

consideration in the receipt-cum-agreement to sell dated 22.1.2002.

5. Before the first appellate court an issue was raised that the

receipt-cum-agreement to sell dated 22.1.2002 is not registered and

hence cannot be looked into by virtue of provision of Section 17(1)(a)

of the Registration Act, 1908, however, this contention is unsound,

inasmuch as, an unregistered agreement to sell cannot be looked into

only for seeking benefit of part performance under Section 53A of the

Transfer of Property Act, 1882 in view of Amendment of Section 53A

by Act 48 of 2001 with effect from 24.9.2001, however, an

unregistered agreement to sell can always be a basis for a suit for

specific performance in view of Section 49 of the Registration Act.

6. Learned counsel for the appellant/defendant relied upon a

judgment of a learned Single Judge of the Punjab and Haryana High

Court in the case of Gurbachan Singh Vs. Raghubir Singh, AIR 2010

P&H 77 to argue that an unregisterd agreement to sell cannot be a

basis for a suit for specific performance, however, with utmost respect

and humility to the learned Single Judge, I cannot agree with the ratio

of the judgment because the ratio of the judgment is against the direct

and categorical language of Section 49 of the Registration Act which

permits an unregistered agreement to sell for being looked into as a

basis in a suit seeking specific performance. An unregistered

agreement to sell cannot be used only if the same is sought to be used

as one for seeking benefit of Section 53A of the Transfer of Property

Act containing the doctrine of part performance, however, once, the

unregistered agreement to sell is not used for seeking benefit of the

doctrine of part performance under Section 53A of the Transfer of

Property Act, then by virtue of Section 49 of the Registration Act,

surely a suit for specific performance will lie on the basis of

unregistered agreement to sell.

7. Though, learned counsel for the appellant/defendant

sought to argue that the subject agreement to sell is not a contract in

the eyes of law, however, it is noticed that no such plea was raised in

the trial court, no such issue framed and no such decision given by any

of the two courts below, and therefore on a plea which is not raised a

substantial question of law cannot be said to arise under Section 100

CPC. In any case, there is no dispute as to the identification of the suit

property and the fact that receipt-cum-agreement to sell dated

22.1.2002 mentions the parties to a contract as also the entire sale

consideration besides the mode and manner of payment with the

balance payment liable to be made at the time of transfer of the title

documents, and hence is a contract as required by law.

8. No substantial question of law arises and therefore this

Regular Second Appeal is dismissed, leaving the parties to bear their

own costs.

APRIL 26, 2017                             VALMIKI J. MEHTA, J
AK