Vijay Kumar vs Ravinder Singh Sukla and Another

Deepak Gupta, J.—By means of this petition, the Petitioner has challenged the order dated 22nd June, 2011 passed by the learned Additional District Judge (II), Kangra at Dharamshala, whereby he rejected the appeal filed by the present Petitioner (hereinafter referred to as ''the Plaintiff'') and confirmed the order of the learned Civil Judge (Senior Division), Kangra at Dharamshala, dated 03.04.2008, rejecting the application filed by the Plaintiff for grant of interim injunction.

The facts, stated in a nut shell, are that the Plaintiff filed a suit that Defendant No. 1, Ravinder Singh Sukla, entered into an agreement with him on 1st September, 2003, whereby he agreed to sell the suit property, which comprised of two plots measuring 596.25 sq. mts. and 615.25 sq. mts. On the second plot, there exists a single storeyed house with tin roof. The Defendant had agreed to sell the entire property to him for a sum of Rs. 5,00,000/- (Rupees Five Lacs only) on 1st September, 2003. A sum of Rupees One Lac was paid at the time of agreement, a sum of Two Lacs on 11.12.2004 and another sum of Rupees One Lac on 22.9.2005, i.e. total Four Lacs out of the sole consideration of Rupees Five Lacs was paid. He, therefore, prayed for specific performance of the Contract.

According to him, he was willing to perform his part of the contract, but he had come to know that Defendant No. 1 had mortgaged the land in question to Defendant No. 2, Punjab National Bank. He, no doubt, in the plaint prayed that the said mortgage was null and void, but did not, in the prayer clause, seek any declaration to the effect that the mortgage is null and void and will not effect the rights of the Plaintiff.

Defendant No. 1 did not contest the suit and filed a written statement virtually admitting the case of the Plaintiff. The stand of the Bank was that this is a collusive litigation between the Plaintiff and Defendant No. 1 in order to defeat the rights of the Bank under different provisions of law.

For the just decision of this case, it would be pertinent to refer to Section 17(1-A) of the Registration Act and Section 53-A of the Transfer of Property Act. Section 17 of the Registration Act, as amended by Act 48 of 2001, now contains Sub-section (1-A), which reads as follows:

Documents of which registration is compulsory. -xx xx xx xx (1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 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.

Section 53-A of the Transfer of Property Act reads as under:

53-A. Part performance. -Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:

and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

Thus, a document, whereby interest in property is sought to be transferred is accompanied by delivery of possession, requires registration and will have no effect on the rights of the Plaintiff without registration.

It may be true that this is a point not considered by both the Courts below, but this is a legal issue. Therefore, prima facie, I am of the opinion that the agreement could not be enforced without registration.

Another aspect is that the agreement is not executed on non-judicial stamp paper. It is on a plain piece of paper and there is the possibility that such a contract may have been ante dated to avoid the liability of the Bank. Lastly, it is, indeed, surprising that this property, which was allegedly agreed to be sold for Rupees Five Lacs in 2003 was mortgaged for a sum of Rupees Eighty Lacs in 2005. At this stage, this Court cannot decide what is the value of the mortgage, but it cannot be believed that in two years, the prices could have shot up by such a huge amount. Banks normally carry out title verification and valuation before accepting a mortgaged property and it is, indeed, difficult to believe that this property measuring more than 1200 sq. mts. in the heart of Dharamshala town could be sold for five lacs even in the year 2003.

The worry of the Petitioner is that if later, the suit is decided in his favour, how his interest will be protected. The Transfer of Property Act takes care of such cases because principle of lis pendens would apply to such a case and if he succeeds, he can get his property back without any difficulty. It is also made clear that when the property is sold, it shall be clearly mentioned that the suit in question is pending.

For the aforesaid reasons, I find no merit in the petition, which is accordingly rejected. No order as to costs.