Delhi District Court
Ram Avtar Yadav vs Kamlesh Verma on 7 April, 2014
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IN THE COURT OF MS. POONAM CHAUDHARY, ADJ03, SAKET COURT,
NEW DELHI
CS No. 550/2013
Ram Avtar Yadav ........Plaintiff
Versus
Kamlesh Verma
......Defendant
Date: 07.04.2014
1. Vide this order I dispose of the application U/s 33 and 35 of the Indian
Stamp Act filed by the defendant. The averments made therein are that
plaintiff has filed the present suit for specific performance possession
and permanent injunction. It is further stated that the suit is based on
advance receipt cum agreement to sell and purchase dated 07.09.10.
2. It is further alleged that the said advance receipt, agreement to sell cum
purchase is not registered and is neither properly stamped. It is further
alleged as the said agreement is in respect of immovable property, it has
to be stamped as per the provisions of the Stamp Act.
3. It is further stated that it is the duty of the court to see whether the
document is sufficiently stamped and it is also statutory duty of the court
to impound the document U/s 33 of the Stamp Act and send the same to
the Collector of Stamp with the certificate stating the amount of duty
and penalty to the levied on the document.
4. It is further alleged that it is only after payment of the Stamp Duty and
penalty that the said documents can be acted upon, otherwise, it cannot
be considered for any purpose. It is also stated that the alleged document
is thus to be impounded.
5. It is further alleged that as per section 17 of the Registration Act
conveyance of immovable property of the value of more than 100 rupees
can only be by registered instrument. It is also stated that in view of the
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above facts and circumstances the said document be impounded and
send the same to the Collector of Stamp for payment of stamp duty and
penalty.
8. Reply has been filed by the plaintiff opposing the application taking
preliminary objections that defendant has concealed material facts. It is
further alleged the application is hit by provisions of section 17(2)(V) of
the Registration Act which provides that an agreement to sell does not
create any right title or interest in the property, rather it creates a right to
obtain another document which when executed will create such a right.
Thus, the sale deed when executed will create such a right as such the
agreement to sell is not required to be registered and the same is
receivable in evidence in a suit for specific performance. It is further
alleged that as no possession has been transferred as such the provisions
of section 17(1A) read with section 49 of the Registration Act are not
applicable. It is further stated that the application is nothing to an abuse
on the process of law.
9. On merits it was reiterated that the agreement does not require
registration. It was further submitted that in those agreements where a
person is seeking protection of his possession by Section 53A of the
Transfer of Property Act that it needs to be registered as provided U/s
17(1A) of the Registration Act. It was further averred that the application
is liable to be dismissed.
10. Ld. Counsel for plaintiff in support of his contentions placed reliance
upon AIR 2012 (Punjab and Haryana) 97 titled Sukhwinder Kaur v.
Amarjit Singh & Ors. Civil Revision No. 2626 of 2011 decided on
12.01.2012 wherein it has been held as under:
"Suit for specific performance Agreement to sell by itself does not
create any right, title to property It is sale deed which when executed will
create right, title and interest in property Hence, agreement to sell is not
required to be registered and same is admissible in evidence in suit for
specific performance. The agreement to sell is not required to be registered
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as it does not fall within the ambit of either S.53A of the T.P. Act or S.
17(1A) of the Act of 1908 and does not require any registration. Such
agreement to sell falls under the mischief of S.17(2)(v) of the Act of 1908. It
itself does not create, declare, assign, limit or extinguish any right, title or
interest in the property. Rather it creates a right to obtain another
document which will, when executed, create, declare, assign, limit or
extinguish. It is the sale deed which when executed will create right, title
and interest in the property. Hence, an agreement to sell is not required to
be registered and the same is receivable in evidence in a suit for specific
performance."
11. Ld. counsel for plaintiff has also placed reliance upon a judgment
of Hon'ble High Court of Delhi titled Vinod Kumar & Anr. vs. Ajit Singh in
CS(OS) 2661/2012 decided on 01.10.2013,wherein it has been held as
follows:
"In the instant case, the plaintiff has not sought relief based on part
performance under Section 53A of the Transfer of Property Act and that
being so, Section 17(1A) of the Registration Act, which was only meant for
the provisions of Section 53A of the Transfer of Property Act, was not
attracted and thus, the agreement did not require registration. Such an
agreement falls under the mischief of Section 17(2) (v) of the Registration
Act, and it itself does not create, declare, assign, limit or extinguish any
right, title or interest in the property. Rather as held in Sukhwinder Kaur
(supra) it creates a right to obtain another document which will, when
executed, create, declare, assign, limit or extinguish right, title or interest
in the property. Not only this, provisions of Section 49 of the Registration
Act make the position more clear. It envisages that an unregistered
document affecting immovable property and required by this Act and the
Transfer of Property Act to be registered may be received as evidence of a
contract in a suit for specific performance under Chapter II of Specific
Relief Act, 1877. As further held in Sukhwinder Kaur (supra), a conjoint
reading of Section 17(2)(v) and proviso of Section 49 of the Act leaves no
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room for doubt that agreement to sell property itself does not create any
right or title over the property. It is the sale deed, which when executed will
create such right in the property. Hence, an agreement to sell is not
required to be registered and the same is receivable in evidence in a suit for
specific performance under Chapter II of the Specific Relief Act, 1877."
12. Whereas the Ld. Counsel for defendant placed reliance upon a
judgment of Hon'ble Supreme Court passed in Civil Appeal No. 5820 of
2011 in case titled M/s. SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari Tea
Co. Pvt. Ltd. decided on 20.07.2011 wherein it was held as under:
"The respondents contended that the unregistered lease deed dated
21.12.2006 for thirty years was invalid, unenforceable and not binding upon parties, having regard to section 107 of Transfer of Property Act 1882 (TP Act for short) and section 17 and section 49 of the Registration Act, 1908 (Registration Act for short) that the said lease deed was also not duly stamped and was therefore invalid, unenforceable and not binding, having regard to section 35 4 of Indian Stamp Act, 1899; that clause 35 providing for arbitration, being part of the said lease deed, was also invalid and unenforceable."
"lease deed was compulsorily registrable under section 17 of the Registration Act and section 106 of the TP Act; and as the lease deed was not registered, no term in the said lease deed could be relied upon for any purpose and therefore clause 35 could not be relied upon for seeking reference to arbitration. The High Court also held that the arbitration agreement contained in clause 35 could not be termed as a collateral transaction, and therefore, the proviso to section 49 of the Registration Act would not assist the appellant."
13. However, I am of the view that the judgment relied upon by Ld. Counsel for defendant is distinguishable as it relates to a dispute between the parties with regard to lease deed. It was held that the court should before admitting any document into evidence or acting on such a 5 document, examine whether the document is duly stamped and whether it is an instrument which is compulsorily registrable. Thus, the controversy was regarding an unregistered lease agreement which contained in arbitration clause and the instrument was also not duly stamped, but in the present case the dispute is regarding an unregistered advance receipt cum agreement to sell and purchase.
14.The plaintiff has filed the present suit for specific performance possession and permanent injunction alleging that plaintiff had entered into an advance receipt cum agreement to sell purchase dated 07.09.10 with the defendant to purchase flat no.D9/A/1, on Ground Floor in khasra no. 300, Vishwakarma Colony, Pul Prahaladpur, New Delhi, hereinafter referred to a suit property for a total consideration of Rs. 10,00,000/. It is further alleged that defendant represented himself to the the owner of the suit property. It was further alleged defendant took advance amount of Rs.3,00,000/ at the time of the execution of the agreement and assured to get the sale deed and other documents executed for transfer of title to the suit property. It was further alleged that defendant had agreed to deliver the vacant and peaceful possession of the suit property to plaintiff at the time of execution of sale deed.
15. It was further alleged that plaintiff kept requesting the defendant to take the balance amount and execute the sale deed but the defendant avoided to do so with malafide intention. It was further alleged that plaintiff has always been ready and willing to perform his part of the contract but defendant miserably failed to perform his part of the contract. Thus, plaintiff was constrained to file the present suit.
16. Defendant filed the WS contesting the suit and taking preliminary objection that there was no cause of action. The court did not have pecuniary jurisdiction to try this suit. On merits it was denied that plaintiff had entered into an advance receipt cum agreement to sell and purchase dated 07.09.10 that the defendant for purchase of the suit property. It was alleged that husband of defendant required loan of Rs.
63,00,000/, the plaintiff offered the loan and got the advance receipt cum agreement to sell and purchase executed by defendant as collateral security for the loan advanced to husband of defendant. It was denied that as per the terms of agreement defendant had received Rs. 3,00,000/ as advance at the time of execution of agreement to sell. It was also denied that defendant had agreed to deliver vacant and peaceful possession of the suit property to the plaintiff at the time of registration of the sale deed. It was also denied that plaintiff has always been ready and willing to perform his part of the contract and the defendant has failed to perform his part of the agreement with malafide intention.
17. Ld. counsel for plaintiff has contended that agreement to sell is not compulsory U/s 17(1A) of the Registration Act and does not come within the proviso to section 49 of the Registration Act and the provisions of section 53A of the Transfer of Property Act were not attracted. It was further attended by Ld. counsel for plaintiff that agreement to sell by itself does not create right title or interest in the immovable property but it creates right to obtain another document which when executed would create right in the immovable property and that it is the sale deed which executed would create right in the suit property. Thus, I am of the view that the agreement to sell does not require to be registered and the same is receivable in evidence in a suit for specific performance. Moreover, it is the case of the plaintiff that he has been ready and willing to perform his part of contract but defendant has miserably failed to perform his part of contract, thus, provision of Article 23 A of the Stamp Act were not attracted. It is only in case where the agreement to sell is to be considered as sale deed / conveyance deed that article 23 A with its explanation would be applicable. The advance receipt cum agreement to sell being on stamp paper of Rs.10 was deficient by Rs.40 and as per section 35 proviso A of the Stamp Act, the same would be admissible in evidence of payment of penalty equivalent to 10 times of the deficient 7 stamp duty i.e. Rs.440/ payable by plaintiff for admissibility of the same in evidence. The application is accordingly, dismissed. List for DE on 28.05.2014.
(POONAM CHAUDHARY) ADJ03 (SOUTH), SAKET COURT NEW DELHI/07.04.2014 8 CS No. 550/2013 Ram Avtar Yadav Vs. Kamlesh Verma 07.04.2014 Present: Counsels for parties.
Vide separate order dictated and announced, the application moved by defendant under section 33 & 35 of the Indian Stamp Act, stands dismissed. List now for DE on 28.05.2014.
(POONAM CHAUDHARY) ADJ03 (SOUTH), SAKET COURT NEW DELHI/07.04.2014