IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 435 OF 2007 Francis Mingal Koli & Anr. ...... ...... ...... Appellants V/s Kabuli Sadatullakhan Kabuli & Ors. ...... ...... ...... Respondents. Mr.P.G.Lad, Adv. For the appellants. Mr.A.Y.Sakhare, Sr. Counsel i/by Mr.A.C.Mahimkar, Adv. For the respondent No.1. CORAM: R.V. MORE, J. 1st OCTOBER, 2008. PC: Heard Mr.Lad, learned counsel for the appellant and Mr.Sakhare, Sr. Counsel, for respondent No.1. The appellants are the original plaintiffs. Respondents are the original defendants. The appellants filed special civil suit No.340 of 1992 for setting aside the execution proceedings No.19 of 1989 and for declaration that the attachment levied on the suit land in above execution proceeding and subsequent auction sale thereof is bad in law, inoperative and otherwise not binding upon the appellants and for possession of the suit land. Learned trial Judge by his judgment and decree dated 22.12.1995 after hearing both the sides dismissed the suit. The appellant preferred an appeal in the Court of District 1 Judge, Raigad at Alibag in Civil Appeal No.89 of 2000, however same was also dismissed by a judgment and order which is impugned in the present second appeal. Brief facts for the disposal of present second appeal are as follows: 2. The dispute between the parties is about the land bearing S.No.9 H.No.4 ad measuring 18.4 Aars and S.No.9, H.No.5 ad measuring 63.3 Aars of village Kon, Taluka Panvel, District Raigad (hereinafter referred to as the “suit land”). 3. There is no dispute between the parties about the following facts: i) Respondent No.2 was the owner of the suit land; ii) By an agreement for sale dated 16.1.84 respondent No.2 agreed to sell suit land to respondent No.1 and received earnest money; iii) Since respondent No.2 has not completed the transaction of sale of suit land with respondent No.1, respondent No.1 filed suit against respondent No.2 being Special Civil Suit No.51/86 on 10.8.86 for specific performance of agreement and in the alternate for refund of sum of Rs.31,000/- being purchase price together with compensation; iv) Respondent Nos.3 and 4 purchased the suit land from respondent No.2 by registered sale deed dated 27.1.86 for consideration of Rs.1,85,000/-; v) By another sale deed dated 17.9.89 respondent Nos. 3 & 4 sold the suit land to appellant for consideration of Rs.2,00,000/-; 2 vi) Consequent to sale deed dated 17.9.89 no mutation has taken place in favour of the appellant in respect of suit land; vii) Respondent No.1 in his evidence in Special Civil Suit No.51/86 stated that the suit land has already been sold by respondent No.2 to third party and therefore he is not claiming specific performance of the agreement in respect of suit land. However he claimed return of the earnest money with compensation. viii) Learned Civil Judge, S.D. has passed decree on 3.8.88 in respondent No.1' s suit against respondent No.2 for payment of Rs.72,000/- consisting of Rs.31,000/- towards earnest money and compensation. Statutory charge under section 55 (6)(b) of the Transfer of Property Act, 1882 was kept on the suit land. ix) Respondent No.1 thereafter filed execution proceedings on the basis of statutory charge on the suit land, the suit land was auctioned and respondent No.1, who happened to be the decree holder in that suit, purchased the suit land in auction by due process of law. Accordingly he was put in possession of the suit land in the month of January, 1991 under sale certificate obtained by him in said execution proceedings. 3. The appellant alleges that in the month of February, 1990 it was observed that a structure is erected on the suit land and the same is fenced by respondent No.1 and respondent No.1 represented to them that he has purchased the suit land in court auction and thereafter inquiry was made by the appellant and he came to know the facts as 3 stated herein above. The appellant thereafter was constrained to file the present civil suit viz. Special Civil Suit No.340/92 for the relief as stated above. The main contention of the appellant was that the suit land could not have been sold in auction for enforcement of charge without any notice to him and the respondent No.1 has committed fraud in obtaining decree against respondent No.2 and creating charge on the suit land. Both the contentions of the appellants are negatived by the trial Court and consequently their suit came to be dismissed. The appellant carried the appeal being Civil Appeal No.89/2000 before the District Judge, Raigad at Alibag. However same was also dismissed. 4. Mr.Lad, learned advocate appearing for the appellant made two fold submissions viz; (i) that the charge on the suit land created by the decree in Special Civil Suit No.51/86 could not have been enforced without notice to subsequent purchaser; and (ii) the respondent No.2 ought to have filed separate suit to enforce the charge. He relied upon the Division Bench judgment of this Court in the case of Raichand Gulabchand vs. Dattatraya Shankar Mote & Ors., AIR 1964 Bom. 1 and another judgment in the case of The Ahmedabad Municipal Corporation of City of Ahmedabad vs. Haji Abdul Gafur Haji Hussenbhai ; , AIR 1971 SC 1201 5. Per contra Mr.Sakhare, learned senior counsel appearing for respondents supported the impugned judgment and decree. He submitted that the charge put on the suit land by decree in Special 4 Civil Suit No.51/86 is statutory charge under section 55(6)(b) of the Transfer of Property Act and therefore this charge can be enforced without notice to the subsequent purchaser. He submitted that there is no need to file separate suit to enforce the charge and the same can be enforced in execution proceedings. To support his contention Mr.Sakhare relied upon an Apex Court judgment in the case of Delhi Development Authority vs Skipper Construction Co. (P) Ltd. & Ors. (2000) 10 SCC 130. 6. Having heard the learned counsel for respective parties and having gone through the impugned judgment and order along with case law referred by the learned counsel I find no merit in this appeal. As stated above there is no dispute that respondent No.2-original owner of the suit land agreed to sale suit land to respondent No.1 by an agreement dated 16.1.84 and respondent No.1 in view of failure of respondent No.2 to execute the sale deed filed Special Civil Suit No.51/86, which was decreed and charge under section 55(6) (b) was kept on the suit land. Section 55 (6) (b) of the Transfer of Property Act deals with rights and liabilities of buyer and seller. Sub- section (6) of second 55 deals with entitlement of the buyer. Clause (b) of sub-section (6) of section 55 reads thus: “55(6)(b). unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any 5 purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its recission.” Plain reading of the aforesaid provision make it crystal clear that the charge mentioned under this section was available to buyer as against seller and all persons claiming under him whether or not the purchaser under the seller had notice of the charge. The Division Bench of this Court in the case of Raichand Gulabchand vs. Dattatraya Shankar Mote & Ors., (supra) considered the issue of notice of charge under section 55(6)(b) to subsequent purchaser and held that the charge under section 55(6)(b) for the unpaid purchaser money or the earnest money comes into existence from the moment the buyer pays part of purchase money or earnest money towards the same transaction and this charge is not lost except on account of buyer's own subsequent default. It was further held that it is available to the buyer not only against the seller but also against the purchaser from the seller irrespective of question whether the purchaser under the seller had or had not notice of the charge. The Apex Court also considered the said issue of charge under section 55(6)(b) in the case of Delhi Development Authority vs Skipper Construction Co. (P) Ltd. & Ors. (supra) and in para 29 of its judgment the Apex Court 6 observed as follows: “29. These points depend upon the effect of the provisions in sub-section (6) of section 55 of the Transfer of Property Act. That section starts with the words: “In the absence of a contract to the contrary”, and reads thus (insofar as it is material for our purpose): “55.(6)(b) The buyer is entitled ---- (a) *** *** *** (b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its recission.” (emphasis supplied) It is plain from the above provision that, in the absence of a contract to the contrary, the buyer will have a charge on the seller's interest in the property which is the subject-matter of the sale agreement insofar as the purchase money and interest on such amount are concerned, unless the buyer has improperly declined to accept delivery. The charge is available against the 7 seller and all persons claiming under him. This charge in favour of the buyer is the converse o the seller' s charge under section 55(4)(b). The buyer' s charge under this section is a statutory charge and differs from a contractual charge which a buyer may be entitled to claim under a separate contract. No charge is available unless the agreement is genuine. As pointed out in Mulla' s Commentary on Transfer of Property Act, 8th Edn. (p.411), the charge on the property under section 55(6)(b) is enforceable not only against the seller but against all persons claiming under him. Before the amending Act of 1929 the words “with notice of payment” occurred after the words “all the persons claiming under him”. These words were omitted as they allowed a transferee without notice to escape. After the amendment of 1929, notice to the purchaser has now become irrelevant.” Aforesaid observations of the Apex Court and the ratio laid down by our Bombay High Court makes it abundantly clear that the appellant who is the subsequent purchaser is not entitled to notice of statutory charge under section 55(6)(b). In view of this settled position, in my view, the first submission of Mr.Lad has no merit. 7. Now, let me consider the judgments relied upon by Mr.Lad to substantiate his submission. So far as the Division Bench judgment in the case of Raichand Gulabchand vs. Dattatraya Shankar Mote & Ors., (supra) is concerned the same has no application in the facts 8 and circumstances of the present case. The Division Bench in the said case was considering the provisions of section 100 of the Transfer of Property Act. The Division Bench was not considering the charge under section 55(6)(b). By the amended Act 20 of 1929 the words “with notice of the payment” are omitted from section 55(6)(b). In view of the express omission of these words later part of section 100 cannot be made applicable to the statutory charge under section 55(6) (b). In that view of the matter, this decision has no application to the present case. 8. Reliance placed by Mr.Lad on the ratio of judgment of the Apex Court in the case of The Ahmedabad Municipal Corporation of City of Ahmedabad vs. Haji Abdul Gafur Haji Hussenbhai (supra) is also misconceived. The Apex Court in this judgment has considered the provisions of section 141 of Bombay Provincial Municipal Corporation Act and held that the municipality cannot by virtue of section 141 enforce its charge against the property in the hands of transferee for consideration without notice. The provisions of section 141 of the Bombay Provincial Municipal Corporation Act and the provisions of section 55(6)(b) are not paramateria. Therefore this judgment also is of no avail to Mr.Lad to substantiate his contention. 9. Next submission of Mr.Lad that separate suit ought to have been filed to enforce the charge is also devoid of any substance. Statutory charge under section 55(6)(b) was placed on the suit land covering part of refund of earnest money and decree to that effect was passed 9 in favour of respondent No.1 and against respondent No.2. Respondent No.1 is entitled to execute the decree taking recourse to the provisions of Order 21 of the Code of Civil Procedure. There is no dispute that suit land was sold in auction in execution proceedings initiated at the instance of respondent No.1 in proper procedure laid down in Order 21 of Code of Civil Procedure. Learned advocate for the appellant could not point out any error apparent in the procedure adopted for auction of the suit land on which the statutory charge was placed. In my view, there is nothing to compel respondent No.1 to file separate suit to enforce the statutory charge under section 55(6) (b) of the Transfer of Property Act. Both the lower Courts below have considered all the aspects and dismissed the appellant' s suit. I do not find any reason to interfere in the impugned judgment and order. In the result, there being no merit in the Second Appeal, same stands dismissed with no order as to costs. 21.10.08 (R.V. MORE, J.) 10