Bombay High Court
Tulsidas Hiralal Mistry And Anr vs Kailash Punavasi Yadav And Anr on 18 April, 2022
Author: N. J. Jamadar
Bench: N. J. Jamadar
14-wp-3285-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3285 OF 2021
Tulsidas Hiralal Mistry and Another ...Petitioners
vs.
Kailash Punavasi Yadav and Another ...Respondents
Dr. Abhinav Chandrachud a/w. Mr. Sameer Mhatre, for the
Petitioners.
Mr. Vinod Pandey i/b. Mr. S.V. Pandey, for Respondent No. 1.
Mr. A.R. Patil, APP for the State.
CORAM : N. J. JAMADAR, J.
DATE : APRIL 18, 2022 P.C.:
1. Heard Dr. Chandrachud, learned counsel for the petitioners and Mr. Pandey, learned counsel for respondent No. 1.
2. The challenge in this petition is to an order dated 28 th August, 2020 passed by the learned Additional Session Judge, Borivali Division, Mumbai in Criminal Revision Application No. 153 of 2011 whereby the Additional Session Judge allowed the revision by setting aside the order dated 9th August, 2021 passed by the learned Metropolitan Magistrate, 43rd Court, Borivali, Mumbai declining to admit in evidence and exhibit the Memorandum of Understanding (MOU) dated 14th November, 2014 executed between M/s. Naina Builders and Developers and M/s. Shivraj Developers and ordered that the said MOU and list of tenants be exhibited.
3. The petitioners have filed complaint against the respondent Vishal Parekar, P.A. ...1 14-wp-3285-2021.doc No. 1 for the offence punishable under section 138 of Negotiable Instrument Act, 1881. During the course of the examination of Kailash Yadav (DW.1) the aforesaid MOU was introduced. The petitioners objected to the exhibition of the said document. The learned Magistrate declined to exhibit the MOU as it is not a registered instrument and properly proved.
4. The respondent No. 1/accused assailed the said order in Revision No. 153 of 2011. By the impugned order the learned Sessions Judge was persuaded to allow the revision as the learned Sessions Judge was of the view that the MOU was an integral part of the transaction between the parties. Thus, the learned Magistrate, in the opinion of the learned Sessions Judge, could not have refused to exhibit the said MOU.
5. Dr. Chandrachud, learned counsel for the petitioners advanced a two pronged submission. One, the order passed by the learned Magistrate being of interlocutory nature, could not have been revised in exercise of revisional jurisdiction. Two, the document being unregistered could have have been, even otherwise, received in evidence.
6. I have perused the impugned order passed by the learned Additional Sessions Judge as well as the order passed by the learned Magistrate.
Vishal Parekar, P.A. ...2
14-wp-3285-2021.doc
7. From the perusal of the material on record, it becomes evident that the parties have repeatedly referred to the said MOU. It is not the case that the said MOU came as a bolt from the blue. The learned Sessions Judge recorded that a substantial part of cross examination of the witnesses was directed towards eliciting answers with regard to the said MOU.
8. The submission on behalf of the petitioners that the MOU, was required to be compulsorily registered and thus the said document, for want of registration, could not have been exhibited is required to be appreciated in the light of the provisions contained in section 49 of the Registration Act, 1908. The proviso to section 49 makes it clear that an unregistered document affecting immovable property may be received as evidence of any collateral transaction not required to be effected by registered instrument. The bar under section 49 is therefore of a definite nature. There is no embargo against acting upon an unregistered instrument for all intent and purpose.
9. This position is made clear by the Supreme Court in the case of Garware Wall Ropes Limited vs. Coastal Marine Constructions and Engineering Limited1 albeit in the context of the provisions contained in section 11 of the Arbitration and Conciliation Act, 1996, in the following words:
1 (2019) 9 Supreme Court Cases 209.
Vishal Parekar, P.A. ...3
14-wp-3285-2021.doc
"19....... ..........It is important to remember that the Indian Stamp Act applies to the agreement or conveyance as a whole. Therefore, it is not possible to bifurcate the arbitration clause contained in such agreement or conveyance so as to give it an independent existence, as has been contended for by the respondent. The independent existence that could be given for certain limited purposes, on a harmonious reading of the Registration Act, 1908 and the 1996 Act has been referred to by Raveendran, J. in SMS Tea Estates, (2011) 14 SCC 66 when it comes to an unregistered agreement or conveyance. However, the Indian Stamp Act, containing no such provision as is contained in Section 49 of the Registration Act, 1908, has been held by the said judgment to apply to the agreement or conveyance as a whole, which would include the arbitration clause contained therein."
10. Moreover, it is trite law that mere exhibition of a document is not proof of the document.
11. It would, therefore, be in the fitness of the things to dispose of this petition keeping open the liberty to the petitioners/ complainant to raise the contention that MOU is affected by the provisions contained in section 49 of the Registration Act and cannot be received as evidence of the transaction in question, and the said contention to be decided by the learned Magistrate at the final decision of the complaint.
12. Ordered accordingly.
13. The petition stands disposed.
(N. J. JAMADAR, J.)
Vishal Parekar, P.A. ...4