Gujarat High Court
Taufik Idrishbhai Patel ... vs Nurabhai Alibhai Momin (Bhagat) on 12 February, 2021
Bench: Ashokkumar C. Joshi
C/AO/121/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 121 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/APPEAL FROM ORDER NO. 121 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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TAUFIK IDRISHBHAI PATEL (GHANCHI)
Versus
NURABHAI ALIBHAI MOMIN (BHAGAT)
=======================================
Appearance:
MR PRABHAV A MEHTA(2009) for the Appellant(s) No. 1
MR MANISH S SHAH(5859) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 12/02/2021
ORAL JUDGMENT
1. By way of this appeal from order under O.43 R.1(r) of the
Civil Procedure Code, 1908 (CPC), the appellant seeks to
challenge an order dated 26.02.2020, passed below application
exh. 5 in Special Civil Suit No. 34 of 2018 by the learned
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Additional Senior Civil Judge, Sanad by which, the learned trial
Judge was pleased to reject the said exh. 5 application for interim
injunction under O.39 R. 1 and 2 of the CPC.
2. Admit. Learned advocate Mr. Manish Shah waives service
for the respondent.
3. Facts in nutshell of the case of the appellant is that the
appellant is the original plaintiff in aforesaid Special Civil Suit No.
34 of 2018, which is filed for specific performance of an
agreement to sell (Banakhat) dated 09.10.2006 and to handover
the possession of the suit land by accepting the outstanding
consideration from the appellant - plaintiff. Alternatively, it is
prayed to direct the respondent - defendant to refund the part
payment of Rs.65 lakh made by the appellant - plaintiff with
interest @ 18% p.a. thereon as well as to pay difference amount
as per market value on the date on which the suit is finally
decided, in case if the Court comes to a conclusion that specific
performance of the agreement to sell in question cannot be
granted. It is also prayed to grant declaration and permanent
injunction directing the respondent - original not to sale, alienate
and/or transfer in any manner the suit property or create any
encumbrance thereon.
3.1 It is the case of the appellant - plaintiff in the suit that the
respondent - defendant had executed an agreement to sell in
favour of the plaintiff for the land bearing revenue survey Nos.
10/1 and 17/1 paiki 6565 sq. mtr. of land for a consideration of
Rs.90 lakh on 09.10.2006 in presence of some witnesses. It is
further the case of the appellant - plaintiff that out of total sale
consideration of Rs.90 lakh, the appellant - plaintiff has already
C/AO/121/2020 JUDGMENT
paid an amount of Rs.65 lakh in cash to the respondent -
defendant, which was accepted by the respondent - defendant.
It is further the case of the appellant - plaintiff that a stamp
paper for such an agreement to sell was also purchased by the
respondent - defendant, wherein, his status is reflected as seller.
That, it was agreed that the respondent - defendant shall divide
his share of land and after getting done necessary mutation entry
in 7/12 extracts as well as taking necessary permissions, and
after completing necessary formalities and fulfilling the
conditions of the agreement to sell, execute the sale deed in
favour of the present appellant within a period of three years
from getting the Title Clearance Certificate. However, since the
respondent - defendant did not act upon the said agreement to
sell, eventually, the appellant - plaintiff constrained to file the
suit in question with aforesaid prayers. In the said suit, the
appellant - plaintiff filed an application for interim injunction vide
exh. 5, which came to be rejected by impugned order and hence,
this appeal.
4. Heard, learned advocate Mr. Prabhav Mehta for the
appellant - plaintiff and learned advocate Mr. Manish Shah for the
respondent - defendant through video conference.
4.1 The learned advocate for the appellant - plaintiff has
vehemently and fervently argued that in the present case, the
issue is in very narrow compass i.e. with regard to rejection of
interim injunction application, exh. 5 mainly on the ground of
non-registration of the agreement to sell, which has driven the
equity Court not to exercise discretion, which is unjust and not
proper and against the settled principles of law. It is submitted
that the learned trial Judge has erred in observing that
C/AO/121/2020 JUDGMENT
in view of alternate prayer to refund the amount of Rs.65 lakh
with interest, there is no need to grant interim injunction
application under O.39 R. 1 and 2 of the CPC, which is contrary to
the settled legal position as well as against the tenor of Section
21 of the Specific Relief Act, 1963.
4.2 The learned advocate for the appellant - plaintiff, with all
vehemence at his command, submitted that even an
unregistered agreement to sell is admissible in evidence and
specific performance thereof can be granted in view of sections
17 and 49 of the Registration Act, 1908 and only on that ground,
the appellant cannot be non-suited.
4.3 Another limb of argument of learned advocate Mr. Mehta
for the appellant - plaintiff is that the agreement to sell in
question was executed on 09.10.2006 between Nurabhai Alibhai
Momin (Bhagat), appellant - plaintiff and Taufik Idrishbhai Patel
(Ghanchi) - respondent - defendant. Inviting attention to a copy
of the same, he submitted that the contents of the same clearly
substantiate the case of the appellant - plaintiff. Further, he
drew the attention of the Court to the copies of 7/12 extracts of
the suit land.
4.4 Making above submissions, it is urged that the present
appeal may be allowed as prayed for.
4.5 In support of his submissions, the learned advocate for the
appellant - plaintiff has relied upon following decisions:
i) Kaushik Rajendra Thakore v. Allied Land Corpn.
and Others, 1987 (1) GLH (U.J.) 22, more particularly
Head Note 'B' thereof;
C/AO/121/2020 JUDGMENT
ii) Rajiv Maheshkumar Mehta v. Mahendrasinh
Madarsang Vaghela and 3, rendered by this Court in
Appeal from Order No. 120 of 2011 on 08.05.2012 and;
iii) Kirtiben Dhaneshkumar Shah v. Padmavati
Paradise, Proprietory Concern of Parashar Arvid and
1, rendered by this Court in Appeal from Order No. 170 of
2009 with Civil Application No. 5369 of 2009 on 13.07.2009.
5. Per contra, learned advocate Mr. Manish Shah, while heavily
opposing the present appeal, submitted that since the so-called
event which was taken place on 17.05.2016 but was never
objected by the appellant - plaintiff. Inviting attention to the Title
Clearance Certificate dated 17.05.2016 and report thereof which
was issued by M/s. Hiren Raval and Associates, Advocates,
learned advocate Mr. Shah for the respondent submitted that the
learned trial Court has rightly rejected the application, exh. 5.
Further, he placed reliance upon an affidavit filed by one
Laxmanbhai Nathabhai Mer, wherein, it is mentioned that the
agreement to sell in question was executed fraudulently by the
present appellant - plaintiff and therefore also, he submitted that
the learned trial Judge has committed no error, which requires
interference at the hands of this Court and accordingly, it is
urged that the present appeal, being devoid of any merits,
deserves to be dismissed.
6. In Re, the learned advocate for the appellant - plaintiff
submitted that the matter is required to be remanded back to the
trial Court concerned for a decision afresh on exh. 5 since there is
a mix question of law and fact and accordingly, it is requested to
set aside the impugned order.
7. Having heard the arguments advanced by the learned
advocates for the respective parties so also perusing the
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impugned order below exh. 5 dated 26.02.2020, it appears that
the learned trial Judge has arrived at a conclusion in paragraph 8
of the impugned order to the effect that since the so-called
agreement to sell is unregistered one and when the same is not
even notarized, prima facie, the same cannot be considered as a
legal and valid document vis-a-vis the fact that, there is
alternative prayer made by the plaintiff - appellant herein to
refund the amount of Rs.65 lakh with interest, no irreparable loss
would cause to the plaintiff - appellant and hence, the application
exh. 5 is not required to be entertained.
7.1 In the case on hand, it is an undisputed fact that the so-
called agreement to sell is a non-registered document and as
referred to herein above, the learned trial Judge has rejected the
application exh. 5 on that count. In this regard, section 49 of the
Registration Act, 1908 is relevant, which speaks thus:
"49. Effect of non-registration of documents required to be
registered.--No document required by section 17 1[or by
any provision of the Transfer of Property Act, 1882 (4 of
1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting
such property or conferring such power, 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 (4 of 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 (3 of 1877) or as
evidence of any collateral transaction not required
to be effected by registered instrument.] "
emphasis supplied
C/AO/121/2020 JUDGMENT
7.2 A bare perusal of section 49 of the Registration Act reveals
that discretion is vested in the Court to receive an unregistered
document 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.
7.3 In this regard, it would be apt to refer the to decision of this
Court in Kaushik Rajendra Thakore (supra), as relied by the
learned advocate for the appellant, more particularly, Head Note
'B' of the same, which reads as under:
"(B) Registration Act, 1908 - S. 17 as amended by Gujarat
Act 7 of 1982 - S. 49 - As laid down in proviso to S. 49 of
the Act, the suit of the plaintiff would not fail on the ground
of compulsory registration introduced by amendment to S.
17 by Gujarat Act, 7 of 1982.
A new contention is advanced by the learned advocate for
the appellant that Section 17 of the Registration Act, 1908,
is amended by Gujarat Act 7 of 1982, which makes the
instruments which purport or operate to effect any contract
for transfer of immovable property compulsorily registrable
by adding Clause (aa) therein. The learned advocate for
the appellant submitted that in view of the amendment
introduced by Gujarat Act 7 of 1982, the amendment is
given retrospective effect by Section (1A) of the Gujarat Act
7 of 1982, the result of which is that the agreement to sell
in question (Exhibit 29) must be de-exhibited, with the
further result that it would be devoid of any legal effect and
the plaintiff would be de-barred from basing any cause of
action on such an agreement to sell. However, the answer
to this contention is found in Section 49 of the Registration
Act, 1908, which we reproduce below to appreciate its full
effect:
"49. No document required by section 17 (or by any
provision of the Transfer of Property Act, 1882 (4 of 1882)
to be registered shall--
C/AO/121/2020 JUDGMENT
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting
such property or conferring such power, unless it has been
registered:
[Provided that an unregistered document affecting
immovable property and required by this Act or the
Transfer of Property Act, 1982, 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,
1977 (3 of 1977) or as evidence of part performance of a
contract for the purposes of Section 53A of the Transfer of
Property Act, 1882, or as evidence of any collateral
transaction not required to be effected by registered
instrument.) "
The proviso to Section 49 of the Registration Act
makes it abundantly clear that the suit of the plaintiff would
not fail on the ground of compulsory registration introduced
by amendment to Section 17 by Gujarat Act 7 of 1982.
This contention was not originally raised in the trial
proceedings, but we permitted the learned advocate for the
appellant to argue on this contention, as it is purely a
question of law. We reject the same contention, however,
by relying on the proviso to Section 49 of the Registration
Act, 1908."
7.4 In the aforesaid case, this Court, by relying upon proviso to
section 49 of the Registration Act, rejected the contention of the
learned advocate for the appellant therein that by virtue of
Gujarat Act 7 of 1982, the instruments which purport or operate
to effect any contract for transfer of immovable property
compulsorily registrable by adding Clause (aa) therein.
7.5 Yet in another decision in Rajiv Maheshkumar Mehta
(supra), as relied by the learned advocate for the appellant, this
Court has, in the similar set of facts and circumstances to that of
the present one, relying on the aforesaid decision of this Court in
Kaushik Rajendra Thakore v. Allied Land Corpn. and
C/AO/121/2020 JUDGMENT
Others, 1987 (1) GLH (U.J.) 22 vis-a-vis other decisions, has
observed in paragraph 10 of the same as under:
"10. In the above view of the matter, this Court is of
the opinion that the trial Court erred in dismissing
the temporary injunction application filed by the
plaintiff. The trial Court appears to have arbitrarily
exercised its discretionary powers in refusing to
grant temporary injunction as prayed by the plaintiff
in his application and it can safely be said that the
discriminatory order passed by the trial Court is
perverse in nature, which warrant interference by
this Court."
emphasis supplied
7.6 In another decision relied by the learned advocate for the
appellant, again relying on the aforesaid decision of this Court in
Kaushik Rajendra Thakore (supra), this Court has held that
the learned trial Court has committed an error in refusing the
injunction as prayed for.
7.7 Thus, pursuant to the facts and circumstances of the case
on hand vis-a-vis on perusal of the aforesaid settled legal position
it is abundantly clear that registration of document is not sine
qua non for receiving the same as evidence of a contract in a
suit for specific performance under Chapter II of the Specific
Relief Act, 1977 (3 of 1977) or as evidence of part performance of
a contract for the purposes of Section 53A of the Transfer of
Property Act, 1882, or as evidence of any collateral transaction
not required to be effected by registered instrument. So far as
the Title Clearance Certificate as well as the affidavit of
Laxmanbhai Nathabhai Mer suggesting the agreement to sell to
be a fraudulent one are concerned, the same is a question of trial
and at this stage, this Court needs not to go into it. The fact
C/AO/121/2020 JUDGMENT
remains that the application exh. 5 is rejected on the ground of
non-registration of the said agreement to sell, which, in view of
the discussion made in the preceding paragraphs of this
judgment, appears to arbitrary, perverse, unjust and against the
settled principles of law.
7.8 The trial Court concerned has also observed that in view of
alternative prayer in suit, temporary injunction (application exh.
5) is not required to be granted. In this regard, if section 29 of
the Specific Performance Act, 1963 is seen, it goes to say that, a
plaintiff instituting a suit for the specific performance of a
contract in writing may pray in the alternative that, if the contract
cannot be specifically enforced, it may be rescinded and
delivered up to be cancelled; and the court, if it refuses to
enforce the contract specifically, may direct it to be rescinded
and delivered up accordingly. Thus, by virtue of this provision, a
plaintiff can very well make alternative prayer in a suit for
specific performance, however, for such a prayer, temporary
injunction is not barred under the law in a fit case. Further,
under the provisions of section 21 of the Specific Relief Act, in a
suit for specific performance of a contract, the plaintiff may also
claim compensation for its breach, either in addition to, or in
substitution of, such performance. Accordingly, considering the
facts and circumstances of the case on hand vis-a-vis the settled
legal position, in the opinion of this Court, present appeal merits
favourable consideration.
8. For the aforesaid discussion and observations, present
appeal succeeds and is accordingly, allowed. The impugned
order dated 26.02.2020, passed below application exh. 5 in
Special Civil Suit No. 34 of 2018 by the learned Additional Senior
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Civil Judge, Sanad by which, the learned trial Judge was pleased
to reject the said exh. 5 application for interim injunction under
O.39 R. 1 and 2 of the CPC, is hereby set aside.
8.1 The learned advocate for the appellant has requested that
the matter may be remanded back to the trial Court concerned
for a decision afresh on the application exh. 5. However, in the
backdrop as aforesaid, this Court is of the considered opinion that
ends of justice would meet if the suit is expedited, to be decided
in a time-bound schedule and till then, the parties be directed to
maintain status quo qua the suit property, more particularly, for
effective adjudication of the grievance between the parties.
8.2 Accordingly, the trial Court concerned is directed to make
all endeavour to decide the suit in question as early as possible,
preferably within a period of 12 months from the date of receipt
of writ of this order, on its own merits, in accordance with law.
Till then, the parties to the suit are directed to maintain status
quo qua the suit property.
9. In view of the main appeal is allowed as aforesaid, civil
application therein does not survive and the same stands
disposed of accordingly.
[ A. C. Joshi, J. ]
hiren
