Gujarat High Court
Chetna Nailesh Gandhi vs Jayshreeben Kalyanbhai Mashruwala on 20 January, 2025
NEUTRAL CITATION
C/AO/239/2024 JUDGMENT DATED: 20/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 239 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In
R/APPEAL FROM ORDER NO. 239 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
Yes
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CHETNA NAILESH GANDHI
Versus
JAYSHREEBEN KALYANBHAI MASHRUWALA & ANR.
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Appearance:
MR MANISH J PATEL(2131) for the Appellant(s) No. 1
MR VANDAN K BAXI(5863) for the Respondent(s) No. 2
NANAVATI & NANAVATI(1933) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 20/01/2025
ORAL JUDGMENT
1. Admit. Learned advocate Mr. Vandan K. Baxi for the respondents on caveat waives service of notice of admission of appeal.
2. Heard learned advocate Mr. Manish J. Patel for the appellant and learned senior counsel Mr. Sudhir Nanavaty with learned advocate Mr. Vandan K. Baxi for the respondents. With the consent of the learned advocates of the respective parties, Page 1 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined present appeal is taken up for final hearing forthwith.
3. The parties have been referred as per the original position in the suit. The short facts which are necessary to resolve the controversy involved in the appeal reads as under.
3.1. The appellant herein is original defendant and the respondents are original plaintiffs. The defendant is owner of suit property in question i.e. Sub Plot No.23 situate in the Scheme known as Shashwat Bungalows of Ambica Smruti Coop. Housing Society Ltd., Vibhag-I, Village : Bodakdev, Taluka : Ghatlodiya, District : Ahmedabad. She has entered into unregistered agreement to sale with plaintiffs on 14.04.2022 and supplementary agreement was also executed on 30.09.2023 for total sale consideration of Rs. 17,51,00,000/-. Out of total sale consideration, the plaintiffs have paid sum of Rs. 1,51,00,000/- on the date of execution of agreement to sale i.e. 14.04.2022. The possession of suit property is not parted with the plaintiffs.
3.2. It appears that the dispute has been started between the parties which resulted into cancellation of the aforesaid agreement to sale by the defendant vide its notice dated 17.12.2022. The plaintiffs appear to have replied the said notice on 04.01.2023.
3.3. So, in view of the aforesaid cancellation of agreement to sale by the defendant, the respondents herein have no other option but to file Special Civil Suit No. 33 of 2023 against the appellant- defendant for specific performance and permanent injunction as well as seeking declaration against wrong Page 2 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined cancellation of agreement to sale by the defendants thereby challenged such cancellation of agreement.
3.4. The injunction application was filed by the plaintiffs which was opposed by the defendant. After bi-parte hearing, the learned trial Court has allowed the injunction application filed by the plaintiffs below Exh.5 vide its judgment and order dated 28.08.2024. The trial court has directed the defendant to maintain status-quo in respect of the title and possession of the suit property till disposal of the suit.
4. Being aggrieved and dissatisfied with the impugned judgment and order dated 22.08.2024 passed by the 3 rd Additional Senior Civil Judge, Ahmedabad (Rural) at Navrangpura in Special Civil Suit No. 33 of 2023, the defendant has preferred this Appeal from Order under order 43 Rule 1 of the Code of Civil Procedure, 1908.
Submission of the learned advocate for the appellant- defendant.
5. Learned advocate Mr. Manish J. Patel for the appellant- defendant would submit that it is an undisputed fact that there is unregistered agreement to sale executed between the parties thereby the plaintiffs can not seek performance of such unregistered agreement to sale by filing suit. He would submit that the suit itself is not maintainable as the document which is sought to be performed by the defendant is unregistered agreement.
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5.1. He would further submit that in view of Section 17 of Registration Act, 1908, such agreement requires to be registered and if it is not registered, no relief in favour of the plaintiffs can be granted. To buttress his argument, he is relying upon the decision of Hon'ble Supreme Court of India in the case of 'Balram Singh Vs. Kelo Devi dated 23.09.2022 in Civil Appeal 6733 of 2022 reported in 2022 SCC Online 1283.
5.2. Learned advocate for the appellant would submit that as per the ratio laid down in the aforesaid decision, on the strength of unregistered agreement, the plaintiffs can not get principal relief seeking performance of the agreement, then question of granting injunction in favour of the plaintiffs would not arise.
5.3. He would submit that the learned trial Court has committed a gross error while granting injunction in favour of the plaintiffs by placing reliance upon an unregistered agreement to sale. He would further submit that when the suit itself is not maintainable on the strength of unregistered agreement, the trial Court could not have granted relief in favour of the plaintiffs.
5.4. So, by making the aforesaid submissions and placing reliance upon the judgment of Hon'ble Supreme Court of Indiain the case of Balram Singh (supra), he would request to this Court to allow the appeal and pray for quashing and setting aside the impugned judgement and order passed by the trial Court.
Submission of the learned advocate for the respondents-
plaintiffs
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NEUTRAL CITATION
C/AO/239/2024 JUDGMENT DATED: 20/01/2025
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6. Per contra, learned senior counsel Mr. Sudhir Nanavaty with learned advocate Mr. Nandan Baxi for the respondents would submit that the argument of learned advocate for the appellant is misconceived at law and not in consonance with the provisions of law. He would further submit that it is settled legal position of law that the suit for specific performance of unregistered agreement to sale is maintainable and once the execution of unregistered agreement to sale is admitted and part performance i.e. part payment made by the plaintiffs to the defendant i.e. original owner of the suit property is not disputed, as a consequence, the trial Court needs to protect the interest of the plaintiffs thereby to grant injunction as prayed for. So, he would submit that no error has been committed by trial court while granting injunction in favour of the plaintiffs.
6.1. He would submit that the provisions of Section 17 of Registration Act, 1908 alone can not be seen while deciding the issue germen in the appeal as according to him, there is no reciprocal amendment carried out by the legislature in Section 49 of Registration Act, which entitled the Court to consider such unregistered agreement to sale while granting any reliefs as prayed in the suit in question.
6.2. He would further submit that the learned trial Court has at length discussed the argument so canvassed by the appellant and rejected it by placing reliance upon the decision of this Court passed in Appeal from Order No. 35 of 2021 passed by the learned Single Judge of this Court on 15.03.2022, which is referred and relied by the learned trial Court in Para-17 of its impugned judgement and order.
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6.3. He would further submit that as back as in the year 2010, the Hon'ble Supreme Court of Indiain its decision in the case of S. Kaladevi Vs. V.R. Somasundaram and others reported in (2010) 5 SCC 401 has clarified the position of law thereby it has been in clear terms held that the suit for specific performance is maintainable, even if the agreement to sale is unregistered.
6.4. He would also relied on the decision of the Hon'ble Supreme Court of Indiain the case of P. Ramasubbamma Vs. Vijayalakshmi and others reported 2022 (7) SCC 384, wherein also in a similar facts situation, the Hon'ble Supreme Court has entertained the plea of plaintiff.
6.6. Making the above aforesaid submissions, learned senior counsel Mr. Nanavaty would request this Court that there is no merit in the appeal and so called question of law raised by the appellant is not at all requires to be now examined in view of the series of pronouncement by the Hon'ble Apex Courts and this Hon'ble Court. Thus, he would request to this Court to dismiss the appeal and confirm the judgement and order passed by the trial Court.
7. No other and further submissions made by the respective learned advocates appearing for the parties.
Points of determination
(i) Whether the suit for specific performance is maintainable on the strength of the agreement to sale which Page 6 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined is unregistered one?
(ii) Whether in the facts and circumstances of the case, the trial Court has committed any error in granting injunction in favour of the plaintiffs when the performance of agreement to sale sought for on the strength of an unregistered agreement to sale?
ANALYSIS
8. The short controversy which arise and requires to be resolved as to whether the suit for specific performance would be maintainable in a case where agreement to sale whose performance sought for is unregistered one and consequently can injunction be granted in favour of the plaintiffs?
8.1 To appreciate the arguments canvassed by learned advocate Mr. Manish Patel for the defendant, I would first like to reproduce the relevant provision of law i.e. section 17 and 49 of Registration Act, 1908 (herein after reads as Act, 1908) reads as under :-
"17. Documents of which registration is compulsory.--
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;Page 7 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025
NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-
Page 8 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined (i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or Page 9 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined [(xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. [Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.
49. Effect of non-registration of documents required to be registered.-- No document required by section 17 [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.]"Page 10 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025
NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined 8.2. The harmonious reading of the aforesaid provisions would lead to only conclusion that despite there is an amendment in S. 17 in Act, 1908 thereby sub-section 1A has been incorporated in S.17 but no reciprocal amendment carried out in S. 49 of Act, 1908 then unregistered agreement to sale still may be received as evidence of a contract in a suit for specific performance. If it be so, how one can agitate that such suit for specific performance is not maintainable filed on strength of an unregistered agreement to sale. The law on the subject is very clear and considering proviso to Section 49 of Registration Act, there should not have been any cavil about maintainability of the suit for specific performance filed on the strength of unregistered agreement to sale.
8.3. To better understand the issue, it is apt to rely upon the decision of the Hon'ble Supreme Court of India in a case of Bharat Aluminium Co and others v/s Kaiser Aluminium Technical Service and Ors. reported in (2012) 9 SCC 552 wherein held in para-173 to 176 (relevant portion) read as under:-
"173. The Civil Courts in India, by virtue of Section 9 of the Code of Civil Procedure, 1908 (for short the 'CPC'), have the jurisdiction to try all suits of a civil nature, excepting suits which are either expressly or impliedly barred. Fundamental to the maintainability of a civil suit is the existence of a cause of action in favour of the plaintiff. This is evident from the various provisions contained in the CPC. However, it would be appropriate to notice that Order VII Rule 1 gives the list of the particulars which have to be mandatorily included in the plaint. Order VII Rule 1(e) mandates the plaintiff to state the facts constituting the Page 11 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined cause of action and when it arose. Order VII Rule 11(a) provides the plaint shall be rejected where it does not disclose a cause of action. A cause of action is the bundle of facts which are required to be proved for obtaining relief prayed for in the suit. The suit of the plaintiff has to be framed in accordance with Order II. Order II Rule 1 provides that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. The aforesaid rule is required to be read along with Rule 2 which provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. The aforesaid provisions read together would lead to the firm conclusion that the existence of cause of action is a sine qua non for the maintainability of a civil suit.
175. .............The suit would be maintainable only on the existence of a cause of action, which would entitle the plaintiff for the substantive relief claimed in the suit. The interim injunction itself must be a part of the substantive relief to which the plaintiff's cause of action entitled him................
176. ..........An interim relief can be granted only in aid or, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding"
Emphasized supplied.
8.4. Thus, in view of aforesaid clear pronouncement of law by Hon'ble Supreme Court of India in a case of BALCO (supra), the Page 12 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined suit would be maintainable only on the existence of a cause of action, thereby it would entitle the plaintiff for the substantive relief claimed in the suit. By virtue of proviso to S. 49 of Act, 1908, when unregistered agreement to sale is admissible in evidence in a suit for specific performance of such agreement then for the alleged breach of such agreement by transferor (seller) give a cause to transferee (purchaser) to file suit and such suit would definitely for all purposes maintainable.
8.5. Nonetheless, controversy about non-maintainability of suit in question is raised by the learned advocate for the appellant by placing reliance upon the decision of the Hon'ble Supreme Court of India in the case of Balram Singh (supra). According to the learned advocate of appellant, the observation made by the Hon'ble Supreme Court of India clearly suggests and held that if the agreement to sale is unregistered one, no relief of specific performance of such agreement to sale can be granted and the plaintiffs will not succeed in the suit seeking performance of unregistered agreement to sale.
8.6. After closely reading of the decision of the Hon'ble Supreme Court of India in the case of Balram Singh (supra), the impression which has been so carried by the learned advocate of appellant is not only misconceived notions but not even remotely suggesting that such suit could not be maintainable.
8.7. The facts before the Hon'ble Supreme Court of India in the case of Balram Singh (supra) that the plaintiffs have filed suit for permanent injunction on the strength of an unregistered agreement without seeking any relief of performance. Whereas, Page 13 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined the defendant has filed a counter claim seeking possession of the suit property. The matter went up to the Highest Court and in the aforesaid background facts and the prayer made in the suit/ counter claim, the following observations have been made by the Hon'ble Supreme Court of India in para-5 & 6, which reads as under :-
"5. We have heard the learned counsel for the respective parties at length.
At the outset, it is required to be noted that the original plaintiff instituted a suit praying for a decree of permanent injunction only, which was claimed on the basis of the agreement to sell dated 23.03.1996. However, it is required to be noted that the agreement to sell dated 23.03.1996 was an unregistered document/agreement to sell on ten rupees stamp paper. Therefore, as such, such an unregistered document/agreement to sell shall not be admissible in evidence.
6. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance."
Emphasized supplied.
8.8. So, in view of aforesaid decision, in a case where suit is filed only seeking an injunction without further seeking a performance of contract of unregistered agreement to sale than naturally proviso to S. 49 of Act, 1908 may not come into play. Thus, in view of the aforesaid facts and issue before the Hon'ble Apex Court, it has been answered accordingly.
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8.9. There was no such issue in the case of Balram Singh (supra) about the maintainability of the suit for seeking specific performance on the strength of unregistered agreement to sale as raised by the defendant. If it be so, it would be misplaced to rely upon such decision by the appellant. It is well settled law that ratio of decision of Honourable Supreme Court of India would be binding and not what can be gathered from any observation made by it as the observations made in a judgment are not binding unless they are directly related to the main questions being considered.
8.10. At this stage, it is profitable to read and rely upon the decision of Hon'ble Supreme Court of India in the case of R. Hemalatha Vs. Kashthuri reported in (2023) 10 SCC 725 wherein it has been so held as under :-
"17..........The short question posed for the consideration of this Court is effect of Section 17(1)(g) of the Registration Act applicable to the State of Tamil Nadu by which Section 17(1)(g) of the Registration Act has been inserted and instruments of agreement relating to sale of immovable property of the value of Rs.100/- and upwards is made compulsorily registrable and whether such unregistered agreement relating to sale of immovable property can be received in evidence in a suit for specific performance?
23. Thus, as per the proviso to Section 49, an unregistered document affecting the immovable property and required by the Registration Act to be registered may be received as evidence of a Page 15 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined 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 document.
25. At this stage, it is required to be noted that the proviso to Section 49 came to be inserted vide Act No.21 of 1929 and thereafter, Section 17(1A) came to be inserted by Act No. 48 of 2001 with effect from 24.09.2001 by which the documents containing contracts to transfer or consideration any immovable property for the purpose of Section 53 of the Transfer of Properties Act is made compulsorily to be registered if they have been executed on or after 2001 and if such documents are not registered on or after such commencement, then there shall have no effect for the purposes of said Section 53A. So, the exception to the proviso to Section 49 is provided under Section 17(1A) of the Registration Act. Otherwise, the proviso to Section 49 with respect to the documents other than referred to in Section 17(1A) shall be applicable.
26. Under the circumstances, as per the proviso to Section 49 of the Registration Act, an unregistered document affecting immovable property and required by the Registration Act or 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 the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument, however, subject to Section 17(1- A) of the Registration Act. It is not the case on behalf of either of the parties that the document/agreement to sell in question Page 16 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined would fall under the category of document as per Section 17(1-A) of the Registration Act. Therefore, in the facts and circumstances of the case, the High Court has rightly observed and held relying upon the proviso to Section 49 of the Registration Act that the unregistered document in question, namely, unregistered agreement to sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section
49."
Emphasized supplied.
8.11. If one examined the ratio of the decision in the case of R. Hemalatha (supra), the controversy which was germane before the Hon'ble Supreme Court of India was precisely about admissibility of the unregistered agreement to sale in a suit for specific performance. In the case of R. Hemalatha (supra), the Apex Court has reiterated the law on the issue and in clear terms held that if the suit is for the specific performance of unregistered agreement to sale, such unregistered document is admissible in evidence. Once the document is held to be admissible in evidence, automatically suit would be maintainable if its performance is sought for in the suit where terms of such agreement (document) is alleged to have been breached by the defendant.
8.12. As such, in view of the aforesaid subsequent decision of the Hon'ble Supreme Court of India in the case of R. Hemalatha (supra), this Court would not like to and need not have to examine the argument of the appellant but to resolve the Page 17 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined controversy forever and to explain the position of law stand as on date, I have to make the aforesaid observations on the issue germane in the appeal.
8.13. The upshot of the aforesaid observation, discussion and considering the ratio of Hon'ble Supreme Court of India in its decision in the case of R. Hemalatha (supra), I am of the view that the suit for specific performance in relation to unregistered agreement to sale is maintainable.
9. As such, no other submissions made by the learned advocate Mr. Patel for the appellant touching the factual aspects of the case, then I need not trouble myself to go into such aspect, albeit, it is remained undisputed that part performance is already performed by the plaintiffs by paying Rs.1,51,00,000/- to the defendant and execution of above referred unregistered agreement to sale is not disputed by the defendant. The plaintiffs have shown their readiness and willingness to perform their part of the contract. If it be so, I am of the view that there is no error committed by the trial Court while granting injunction in favour of the plaintiffs as prayed for in a suit filed by plaintiffs on strength of unregistered agreement to sale.
10. Its required to be noted that the trial Court has already framed the issues on the day of allowing impugned application as plaintiffs and defendant, both are senior citizens. It is expected from the parties to co-operate with the trial Court whereby the suit can be expedited and may be adjudicated within reasonable time. It is also made clear that the trial shall examine suit on its own merit as per evidence coming forth on the record of the suit Page 18 of 19 Uploaded by SALIM(HC01108) on Thu Jan 30 2025 Downloaded on : Sat Feb 01 02:39:30 IST 2025 NEUTRAL CITATION C/AO/239/2024 JUDGMENT DATED: 20/01/2025 undefined without being influenced by observations made either in the impugned order or this judgement.
CONCLUSION
11. With the aforesaid observations, reasons and findings, I am of the view that suit for specific performance of an unregistered agreement to sale is maintainable when its breach has been complained by the plaintiff.
11.1. Further, there is no error committed by the trial Court while granting injunction in favour of the plaintiff.
11.2. There is no interference required of this Court while exercising its appellate jurisdiction under Order 43 rule-1 of the Code of Civil Procedure, 1908 as there is no fault found in the impugned judgement and order.
12. Thus, there is no merits in the appeal, which requires to be dismissed. The Appeal from Order is dismissed. No order as to costs.
13. Civil Application is also disposed of.
Sd/-
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