Madhya Pradesh High Court
Kailash vs Bhagwatilal on 6 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:155
1 MP-4644-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 4644 of 2024
KAILASH
Versus
BHAGWATILAL AND OTHERS
Appearance:
Shri Rohit Sinnakar - Advocate for the petitioner.
Shri Utkarshkumar Rasendukumar Joshi, Advocate for the respondent No.1.
Shri Vishal Lashkari - Advocate for the respondent No.1.
Ms. Mehul Shukla appearing on behalf of Advocate General/ respondent No.2.
Reserved on : 05.11.2024
Pronounced on : 06.01.2025
ORDER
This petition under Article 227 of the Constitution of India has been preferred by the petitioner/plaintiff being aggrieved by order 15.07.2024 passed in MCA No.13/2023 by the District Judge, Badnawar, District Dhar whereby the order dated 29.08.2023 passed in RCSA/20/2023 by the Civil Judge, Junior Division, Badnawar has been set aside and his application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction has been rejected.
2. The plaintiff has instituted an action against defendant No.1 for specific performance of contract dated 01.11.2022. He has contented that on 01.11.2022 defendant No.1 had entered into an agreement to sale with him with respect to the suit lands for a total consideration of Rs.36,11,000/- upon Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 13:07:58 NEUTRAL CITATION NO. 2025:MPHC-IND:155 2 MP-4644-2024 receiving earnest money of Rs. 50,000/-. His son had also signed upon the same as consentor. Under the agreement defendant No.1 was enjoined to create a passage to the suit land which has not been done by him till date of filing of the suit. The plaintiff has always been ready and willing to perform his part of the contract but defendant No.1 is not doing so despite notice dated 20.11.2022 to him in that regard. Instead defendant No.1 is attempting to alienate the suit lands in favour of third persons.
3. Along with the plaint, the plaintiff also filed an application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction restraining defendant No.1 from alienating the suit lands in any manner. The defendant No.1 filed his reply to the application submitting that no agreement to sale was ever executed by him in favour of plaintiff nor he had received any amount by way of earnest money. The terms of the agreement as set up by plaintiff are totally false. Instead he has entered into an agreement to sale with respect to the suit lands in favour of one Manoj on 11.11.2022 and since no agreement itself has been executed in favor of plaintiff, he is not entitled for issuance of temporary injunction in his favour .
4. The trial Court allowed plaintiff's application for issuance of temporary injunction observing that he has produced the agreement to sale which has been signed upon by defendant No.1 and there is an averment therein as regards payment of earnest money. Plaintiff had also issued notice in that regard. Defendant No.1 is attempting to alienate the suit lands. The issue as to whether the agreement was executed by defendant No.1 in favour Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 13:07:58 NEUTRAL CITATION NO. 2025:MPHC-IND:155 3 MP-4644-2024 of plaintiff can only be decided on merits. In appeal by defendant No.1 the order has been set aside by the appellate Court by the impugned order observing that in the agreement executed by defendant No.1 subsequent to plaintiff's sale agreement the price of land has been shown to be much more than what is stated in plaintiff's agreement and that the order was passed by the trial Court by relying upon an unstamped sale agreement which cannot be sustained.
5. Leaned counsel for the plaintiff has submitted that the order passed by the appellate Court is wholly illegal. It had itself found prima facie case in favour of plaintiff yet finding that balance of convenience and irreparable injury is not in his favor, the order of Trial Court has been set aside. The actual value of the suit lands as on the date of agreement entered into between the parties is a matter of evidence could not be a ground for rejecting plaintiff's application. The agreement produced by plaintiff prima facie shows that defendant No.1 had signed upon the same and had received earnest money. The same cannot be disregarded only on the ground that the same is unstamped and is unregistered and particularly at the present stage while considering the application for insurance of temporary injunction. The conduct of defendant No.1 shows that the agreement was in fact entered into by him with plaintiff and for avoiding execution of the sale deed and to sell the suit lands to third person he has taken the false plea that the agreement was never executed. If the suit lands are sold during pendency of the suit it would create complications in the matter and would cause irreparable injury to the plaintiff.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 13:07:58NEUTRAL CITATION NO. 2025:MPHC-IND:155 4 MP-4644-2024
6. Per contra, learned counsel for defendant No.1 has submitted that the appellate Court has rightly refused to act upon the unstamped agreement to sale produced by plaintiff. The same is also unregistered. Since prima facie itself the document is inadmissible in evidence no temporary injunction on its basis can be granted. There is no possibility of plaintiff succeeding in this suit on the basis of unstamped and unregistered agreement to sale. The petition hence deserved to be dismissed. Reliance has been placed on the decision of the Apex Court in Avinash Kumar Chauhan vs. Vijay Krishna Mishra (2009) 2 SCC 532, of this Court in M.A. No. 4143 of 2024 (Milind Wadge vs. Ali Asgar Khamoshi) decided by order dated 07.08.2024 and W.P. No. 1368 of 2011 (Amit Dixit vs. Smt. Sandhya Singh and others) decided by order dated 18.09.2015.
7. I have heard the learned counsel for the parties and have perused the record.
8. The document which has been produced by plaintiff before the Trial Court being an agreement to sale was required to be duly stamped and registered. The same is however neither stamped nor registered and is instead written on a plane piece of paper. Nothing has been brought on record by the plaintiff to suggest that any proceeding has been instituted by him for impounding of the said document. As has been held by the Apex Court in Avinash Kumar Chauhan (Supra) a document which is required to be duly stamped and registered if is deficiently stamped and is unregistered, then the same is inadmissible in evidence for any purpose whatsoever.
9. In Amit Dixit (supra) this Court held that payment of stamp duty is Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 13:07:58 NEUTRAL CITATION NO. 2025:MPHC-IND:155 5 MP-4644-2024 condition precedent for considering prayer for injunction also. Unless duty is paid on an instrument it shall not be admitted in evidence for any purpose including collateral purpose. The very basis for establishing right i.e. agreement to sell cannot be considered unless it is duly stamped. It was held as under:
"12. This point is no more res integra. AIR 2003 Karnataka 241 (K.B. Jayaram & another Vs. Navineethamma & Ors), Justice Tirath S. Thakur (as His Lordship then was), opined that no instrument chargeable with duty shall be admitted in evidence "for any purpose" by any person or even by consent of parties. In para 4 of said judgment, it is held that the court below should first insist upon payment of stamp duty and penalty on the agreement to sale before it. Thereafter, only prayer for injunction could have been considered. The order of court below was disapproved where it has issued injunction subject to payment of stamp duty and penalty. Thus, payment of stamp duty is condition precedent for considering the prayer for injunction also. This Court in 2009 (1) MPLJ 176 (Narbada Prasad Agrawal Vs. Tarun Bhawasar ), opined that unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose including collateral purpose. The Apex Court in (2009) 2 SCC 532 (Avinash Kumar Chauhan Vs. Vijay Krishna Mishra), opined as under:-
"25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes."
13. In the light of aforesaid, it is clear that the very basis for establishing right i.e. agreement to sell cannot be considered, unless it is duly stamped. The courts below have not committed any error in rejecting the injunction application because the document was not stamped. In view of this Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 13:07:58 NEUTRAL CITATION NO. 2025:MPHC-IND:155 6 MP-4644-2024 conclusion, it is not necessary to deal with other points raised by the parties. ..................."
10. Further in Milind Baghade (Supra) this Court considered the question whether on the basis of unregistered and unstamped agreement prayer for issuing temporary injunction can be considered and held that the same cannot be done. It was held as under :
"13. In the light of the law laid down by the Hon'ble Apex court and High courts, it is clear that very basis for establishing the right for example agreement to sale cannot be considered unless it is duly stamped. It is also noteworthy that agreement to sale between both the parties for the suit property which is cost of huge amount of Rs.2,39,00,000/-, the respondent/plaintiff had allegedly paid only Rs. 5,00,000/. Admittedly the possession of suit property was never delivered to respondent and in the entire agreement, there is no recital regarding delivery of possession.".
11. In the present case also the agreement to sale executed between the parties is for a total consideration of Rs.36,11,000/-. The agreement is neither stamped nor is registered though was required to be so and is written on a plain piece of paper. The plaintiff has also alleged to have paid an amount of Rs.50,000/- only to defendant No.1 by way of earnest money which is an extremely paltry amount. It has also not been averred that possession of the suit land was delivered to plaintiff and in the agreement to sale also there is no recital as regards delivery of possession.
12. Thus in view of the aforesaid discussion, I am of the considered opinion that the appellate Court has not committed any error of law in setting aside the order passed by the trial Court and in rejecting plaintiff's Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 13:07:58 NEUTRAL CITATION NO. 2025:MPHC-IND:155 7 MP-4644-2024 application for issuance of temporary injunction. The petition is found to be devoid of any merits and is hereby dismissed.
(PRANAY VERMA) JUDGE jyoti Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 13:07:58