1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.3958/2008. Office notes, office Memoranda of Coram, Appearances, Court s’ Orders or directions and Court’s or Judge’s Order Registrar s Orders.. ’ CORAM : K.U. CHANDIWAL, J. DATED : 23rd JUNE, 2009 --- P.C.:- 1) Heard learned Counsel for the appellant. 2) The matter is decided at admission stage. In view of the nature of controversy, Record and proceedings need not be called. Respondent in spite of service, having appeared through counsel, is absent. 3) The parties are referred by their original status as plaintiff and defendant for convenience. 4) The plaintiff moved for suit for specific performance of contract, based on agreement of sale dated 22.12.2003 for an amount of Rs.2,10,000/- and according to him, the defendant has received earnest of Rs.70,000/- in presence of notary 2 and witnesses. The plaintiff asserts, on 28.1.2004 the defendant handed over possession of the suit property and executed receipt in presence of notary and also received balance amount of Rs.1,40,000 through two cheques. Thus, total consideration of Rs.2,10,000/- was paid by the plaintiff. 5) The learned Judge, based on the denial of execution of the document assessed the evidence and it was ultimately in the evidence and even in the later part of pleading the defendant has accepted, he has received an amount of Rs. 70,000/- from the plaintiff. According to him, the amount covered by two cheques though were given by the plaintiff to him, however, after encashment, he has reimbursed the same to the plaintiff and consequently, the defendant asserts that at the most his responsibility was to pay Rs.70,000/- to the plaintiff. The defendant disputed about the competence to execute the agreement of sale or that he has any time delivered possession of the property. 6) The learned Judge, based on 3 the evidence, found that the ownership of the defendant to the suit property itself is not established. The agreement of sale refers to receipt of earnest and also possession to be handed over subsequently. The learned Judge found, though there is possession receipt, however, it cannot be acted upon as the plaintiff has, at three places in the cross-examination, accepted having received the possession on agreement of sale. Ultimately, the learned Judge observed, there was no handing over of possession by the defendant to the plaintiff in the capacity of plaintif’s purchasing the property. 7) The Court, on assessment, of the evidence, found that it was the defendant, who has committed breach of the contract. However, since there was no title to the defendant for the suit property, the learned Judge did not decree the suit for specific performance of contract and decreed it for Rs. 2,10,000/-, with interest at 10% pa. 8) The counsel for the appellant says though the defendant has admitted execution of the 4 document at Exhibits-41 and 42, i.e. Agreement and possession receipt, however, the defendant has only received Rs.70,000/-. The learned Judge could not read the document in evidence as it was not properly stamped. In order to substantiate his contention, learned Counsel has placed reliance to the judgment of the Hon’ble Supreme Court in the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra ( 2009 (1) Supreme 58, dated 17.12.2008). The plaintiff in the said case filed a suit for recovery based on unregistered sale deed. There was an order of impounding the document, as it required payment of stamp duty applicable to the Deed of Conveyance and since there was deficiency in the payment of stamp duty, the court was empowered to pass appropriate orders in terms of Section 35 of the Indian Stamps Act. The Hon’ble Lordships observed, though there is no prohibition under Section 45 of the Registration Act to receive an unregistered document in evidence for collateral purposes. However, in the said case, the document could not have been accepted in evidence 5 as it was not duly stamped. The Court also did not comply requirement in terms of Section 35 of impounding the document and collecting the deficit. Consequently, the document lost its importance. 9) Now reverting to the facts in abridged form, there is no case of the parties of sale deed. It is a case based on agreement of sale. Even if the plaintiff accepted that he has received possession on agreement of sale, the document Exh. 42, rebels to the same and mere assertion of the plaintiff in the cross-examination by itself will not tantamount that there was possession, and consequently the document at Exh. 41 required requisite stamp duty. 10) The other objection that the amount though was received under two cheques by the defendant is reimbursed by him to the plaintiff is not substantiated by any cogent, acceptable evidence. There was no reason for the defendant to have accepted the cheques and subsequently to have somersault. PW. 1 and PW2 spelt details of cheques, 6 which is indeed referred in Exh.42. 11) The findings recorded by the learned Judge that the defendant was not owner of the property, cannot be said to be perverse. The defendant consciously having defective title in relation to the suit property, entered into the sale and received earnest and also balance sale consideration. The findings of the learned Judge in the situation, based on assessment of the attesting witness and another witness, PW 2 – Younus, cannot be said to be perverse. The application of interest also is in tune with the prevailing rates of the commercial banks. 12) In the above set of facts, I do not see that there is any lacuna in the order under challenge. The order does not require any interference. The appeal lacks merit, it is dismissed. No costs. (K.U. CHANDIWAL) JUDGE agp/bdv/fa3958.08