Madhya Pradesh High Court
Akshay Doogad vs Dr. Laxmanrao Dhole on 18 August, 2015
Bench: A. M. Khanwilkar, J. K. Maheshwari
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HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
First Appeal No.323/2014
Akshay Doogad ...... Appellant
Versus
State of M.P. and others ......Respondents
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CORAM:
Hon'ble Shri Justice A. M. Khanwilkar, Chief Justice
Hon'ble Shri Justice J. K. Maheshwari, Judge
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Whether approved for reporting: YES
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Shri Sanjay Kumar Verma, counsel for the appellant.
Shri Sanjay Kumar Malvia, counsel for the respondents.
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JUDGMENT (ORAL)
(18/8/2015) Per A.M. Khanwilkar, Chief Justice :
This first appeal takes exception to the judgment and decree passed by the 3rd Additional District Judge, Chhindwara in Civil Suit No.22-A/12. The said suit was filed by the appellant for relief of specific performance of agreement executed between the parties on 17.2.2010, in respect of property situated in Ward No.32, P.H. No.22, 2 B.No.177, R.N.M. Chhindwara-1. The suit was resisted by the respondents/defendants.
2. The trial Court framed issues relevant to the relief claimed in the suit. As regards the issue whether the suit agreement was executed between the parties, the same has been answered in favour of the appellant/plaintiff. Even the issue of readiness and willingness has been answered in favour of the plaintiff. The trial Court after analyzing the evidence on record has also noticed that the defendants have only questioned the value of the property in the entire cross examination and not the factum of execution of the agreement or about their commitment to transfer the property in favour of the plaintiff. Although, the trial Court in the impugned judgment answered all the issues in favour of the plaintiff, rejected the relief of specific performance on the sole ground that the agreement executed between the parties was unregistered document and as such it was inadmissible in evidence. The trial Court in support of that opinion has placed reliance on the decision of the learned Single Judge of this Court in the case of Narbada Prasad Agrawal Vs. Omprakash Bhavsar1 and on another decision in the case of 1 2009 (I) MPWN 29 3 Kailashchandra Vs. Dwarkadheesh and others2. As a result, the suit came to be dismissed with direction to the respondents/defendants to refund the earnest money amount received by them at the time of execution of the agreement along with interest @ 6% per annum thereon with costs of the suit. This decree is the subject matter of challenge in the present appeal.
3. After the notice of appeal was served on the Respondents/Defendants No.1 to 3, the respondents filed cross objection under Order 41 Rule 22 on 7.7.2014, bearing Document No.4697/2014. Notably, the cross objection is only about the quantum of costs and the direction to refund the earnest money amount with interest. No other ground has been taken in the cross objection, in particular, to question the finding of the trial Court on the other relevant issues such as factum of execution of agreement and on readiness and willingness to perform the obligation under the said agreement of the plaintiff.
4. Counsel for the appellant submits that the view taken by the trial Court is in the teeth of Supreme Court's decision in the case of 2 2013 (4) MPHT 432 4 S. Kaladevi Vs. V. R. Somasundaram and others 3. According to the appellant, this decision was pressed into service before the trial Court but the trial Court has failed to analyse the same, though directly on the point and in favour of the appellant. Further, as the cross objection has been filed by the defendant limited to the direction to refund the earnest money amount alongwith interest and costs of the suit, no other issue arises for consideration of this Court; and that if the appellant succeeds in questioning the erroneous view taken by the Trial Court, must succeed in getting complete relief as prayed in the suit - of decree of specific performance.
5. Counsel for the respondent in his argument did make an unsuccessful and feeble attempt to question the finding recorded by the trial Court on other issues, besides the grounds urged in the cross objection filed by the defendant.
6. Having considered the rival submissions, the moot question which arise for our reconsideration is, whether the opinion recorded by the trial Court that the suit agreement being unregistered document, relief of specific performance cannot be granted to the plaintiff, is correct? 3
2010 (3) MPLJ 500 5
7. We find force in the submission of the appellant that the only issue that needs to be decided in the appeal is about the correctness of the said finding and nothing more; as no cross objection has been filed by the Respondents/Defendants No.1 to 3 to question the correctness of the finding of fact recorded by the trial Court on other issues. Moreover because, the trial Court after thorough analysis of the evidence on record has rightly found as of fact that the suit agreement was executed between the parties. Even on the factum of readiness and willingness of the plaintiff to discharge his obligation under the suit agreement, has been rightly answered in favour of the plaintiff. We have no hesitation in affirming the said findings of the trial Court.
8. The plaintiff has been non-suited only on the ground that the suit agreement being unregistered document was inadmissible in evidence and, therefore, decree of specific performance on the basis of such agreement cannot be granted. This view taken by the Trial Court is in the teeth of the exposition of the Supreme Court in the case of S. Kaladevi (supra). This very contention has been negatived by the Supreme Court in Paragraph Nos.11, 12 and 16 of the said decision, in particular, which read thus:- 6
"11. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.
12. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited1, (2008) 8 SCC 564 this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:-
"......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal 7 Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it......"
This Court then culled out the following principles:-
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
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16. The argument of learned counsel for the respondents with regard to Section 3(b) of 1963 Act is noted to be rejected. We fail to understand how the said provision helps the respondents as the said provision provides that nothing in 1963 Act shall be deemed to affect the operation of 1908 Act, on documents. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather court acts in consonance with proviso appended to Section 49 of 1908 Act."
9. The Supreme Court has opined that when an unregistered document is tendered in evidence, not as evidence of a completed sale, but as proof of an agreement of sale, the deed can be received in evidence making an an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the Act of 1908. The Court went to observe that admission of an unregistered sale deed by the Court in such cases would be in consonance with the proviso appended to Section 49 of the Act of 1908. Considering this decision, the view taken by the trial Court on the issue under consideration will have to be overturned. The reason why the trial Court has not adverted to this Supreme Court decision has remained unexplained. We need not dilate on that matter as we have no hesitation in accepting the argument of the appellant that the sole basis on 9 which the relief claimed by the appellant in the suit for specific performance has been rejected cannot be countenanced.
10. We, accordingly, reverse the said opinion of the trial Court and as a necessary corollary decree the suit in its entirety by granting relief of specific performance to the appellant as prayed.
11. The next question is whether the respondents/ defendants can be permitted to question the finding of fact recorded by the trial Court on other issues. As aforesaid, the respondent has filed cross objection limited to challenge to the direction issued by the trial Court to refund the earnest money amount along with interest and costs of the suit and nothing more. In absence of challenge to the said findings, it is not necessary for us to examine the matter any further. In any case, the finding of fact recorded by the trial Court on the said two crucial issues, is founded on cogent evidence as analyzed by the trial Court including the defendants having questioned the agreement only on the quantum mentioned therein and not on any other count. Accordingly, those findings will have to be affirmed and it will have to be held 10 that those issues have been correctly answered by the trial Court.
12. As regards the grounds urged in the cross-objection, the same do not survive for consideration in view of the opinion already expressed hitherto. The question of correctness of the direction given by the trial Court to refund the earnest money amount along with interest and costs of the suit would have arisen, if the findings of the trial Court on the issue under consideration was to be confirmed. As indicated earlier, the suit deserves to be decreed in its entirety by granting relief of specific performance as claimed by the appellant/plaintiff.
ORDER
13. Accordingly, the impugned judgment and decree passed by the trial Court is quashed and set aside. Instead, the suit bearing No. 22-A/2012 filed by the appellant is decreed and the relief of specific performance, as prayed, is granted on condition that the appellant/plaintiff shall deposit the balance/outstanding agreement amount, if already not deposited, alongwith interest on such amount at the rate of 12% per annum (which is commensurate with the Nationalized Bank lending rate) from the date of the suit to the date of the decree and in addition further interest at the 11 rate of 6% per annum from the date of the decree to the date of payment. The amount already paid by the appellant pursuant to the impugned decree, will have to be given adjustment in the final decretal amount to be paid by the appellant. The cross-objection is also disposed of on the above terms. No order as to costs. Parties to bear their own costs of the proceedings.
(A. M. Khanwilkar) (J. K. Maheshwari)
Chief Justice Judge
Anchal