IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2537 of 1998 Date of Decision: 17.5.2010 K.K.Adalakha. ....... Appellant through Shri Arun Jain, Senior Advocate with Shri Lokesh Sinhal, Shri Amit Jain and Shri Anupam Sharma, Advocates. Versus Amrish Sehgal. ....... Respondent through Shri Rajiv Atma Ram, Senior Advocate with Shri Nikhil K.Chopra, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The defendant is in appeal. He is aggrieved by the judgment and decree dated 1.6.1998 passed by the District Judge, Faridabad (hereinafter described as `the first appellate Court') whereby the judgment and decree dated 31.1.1996 of the Civil Judge (Senior Division), Faridabad (referred to hereinafter as `the trial Court') were set aside and the suit of the plaintiff-respondent for possession of house No.605 MIG situated in Sector 22, Faridabad (for short, `the suit property') was decreed on payment of Rs.50,000/-. The plaintiff had filed the suit by pleading that the suit property R.S.A.No.2537 of 1998 -2- .... was allotted to him by the Housing Board, Haryana vide letter dated 31.7.1974; that he had entered into an agreement on 12.11.1989 (which is on record as Exhibit P2) with the defendant-appellant to sell the suit property for a consideration of Rs.2,00,000/- (Rs.1,50,000/- costs and Rs.50,000/- expenses towards renovation, fixtures, fittings and furniture etc.); that it was specifically agreed between the parties that the expenses for registration of the conveyance deed from Housing Board, Haryana and subsequent registration of the sale deed would be borne by the defendant- appellant; that at the time of execution of the agreement, a sum of Rs.35,000/- was paid as earnest money by the appellant and the possession of the suit property was handed over to him; that further, a sum of Rs.20,000/- was paid to the respondent out of the total sale consideration; that the respondent had obtained `no due certificate' on 8.6.1990 from Housing Board, Haryana and informed the appellant vide letter dated 16.7.1990 about the same and asked him to pay Rs.8155/- as the expenses to be incurred on registration of the conveyance deed which he had agreed to pay; that the appellant had issued a cheque of Rs.50,000/-, but the same was dishonoured; that in order to expedite the transfer of the suit property, the respondent had spent Rs.8155/- from his own pocket and got the conveyance deed registered; that legal notice dated 31.10.1990 was served upon the appellant calling upon him to pay Rs.8155/- within ten days and it was made clear that in the eventuality of non-payment, the agreement to sell would stand cancelled; that the appellant failed to pay Rs.8155/- and consequently, according to the respondent, the agreement stood cancelled R.S.A.No.2537 of 1998 -3- .... and, therefore, he asked for possession of the suit property which had been taken over by the appellant. Upon notice, the appellant appeared and filed his written statement, which was subsequently amended on 26.4.1995 and contested the suit. It was averred that the agreement to sell in his favour was protected by the provisions of Section 53-A of the Transfer of Property Act,1882 (for short, `the Act') as he had already paid Rs.75000/- out of total sale price of Rs.1,50,000/-. The detailed the break-up of the amounts paid by him in paragraph 2 of the written statement. It was pleaded that he had been paying house tax, electricity and water charges qua the suit property and the respondent had removed fixtures, fittings, furniture etc. therefrom and consequently, he was not entitled to Rs.50,000/- which was agreed to be paid on that account. The parties went to trial on the following issues:- 1. Whether the plaintiff had entered into agreement of sale of the property detailed in para no.1 of the plaint for a total consideration of Rs.1,50,000/-?OPP 2. Whether the plaintiff had paid Rs.35,000/- as part payment?OPP 3. Whether the plaintiff is entitled to a decree for possession of the house on the grounds pleaded/OPP 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the plaintiff has no cause of action to file the R.S.A.No.2537 of 1998 -4- .... present suit?OPD 6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD 6A. Whether the possession of the plaintiff is protected by doctrine of part performance and Section 53-A of transfer oif Property Act, as alleged?OPD 7. Relief. After appraisal of the entire evidence on record, the trial Court dismissed the suit of the respondent. In appeal, the findings of the trial Court were reversed by the first appellate Court giving rise to the instant appeal. Learned counsel for the appellant contended that the first appellate Court has committed a patent illegality in not appreciating the facts and evidence in right perspective. It was further contended that at the time of execution of agreement to sell, a sum of Rs.35,000/- was paid as earnest money and it was stipulated therein that the balance sale consideration would be paid at the time of registration of the sale deed and also that the registration charges would be paid by the appellant. He submitted that in view of this, the payment of registration charges was not a condition precedent for execution and registration of the conveyance deed/ sale deed and the agreement to sell could not have been cancelled on account of non-payment of Rs.8155/- as allegedly demanded by the respondent as payment of Rs.20,000/- and Rs.15,000/- had already been made by the appellant after the execution thereof. He further submitted R.S.A.No.2537 of 1998 -5- .... that in view of the fact that payment of a substantial amount had already been made to the respondent and possession of the suit property was handed over to the appellant pursuant to the agreement to sell, the transaction was protected by the provisions of Section 53-A of the Act. On the other hand, learned counsel for the respondent defended the impugned judgment and decree of the first appellate Court and contended that the appellant was required to pay the registration charges of conveyance deed as well as sale deed in view of Clause 3 of the agreement to sell and his failure to pay the amount as demanded by the respondent had invited cancellation of transaction. He further contended that Rs.50,000/- were paid by the appellant towards the fittings and fixtures and no amount was paid as earnest money towards the cost of the suit property and that the cheque of Rs.50,000/- given by him was dishonoured and, therefore, the violation of one of the conditions of the agreement to sell, i.e., non- payment of registration charges, which was integral and inherent part thereof, had disentitled him from craving any indulgence from the Court. He, thus, prayed for dismissal of the appeal. I have thoughtfully considered the rival contentions and have perused the impugned judgment, as also the record. Agreement to sell, Exhibit P2, is a brief document and the terms conditions thereof as contained in it are extracted below:- “1. that the First Party has received an amount of Rs.35,000/- (Rupees thirty five thousand only) from the Second Party under separate receipt. Balance Rs.1,65,000/- (Rupees one lac sixty R.S.A.No.2537 of 1998 -6- .... five thousand only) will be paid by the Second Party to the First Party at the time of registration of the house by the First Party in favour of the Second Party or his nominee. If the First Party backs out from this deal, the Second Party is entitled to get the registration of the house by the First Party in favour of the Second Party or his nominee through the Court of law. 2. That the First Party will clear dues towards Haryana Housing Board, bills of electricity, water and house tax till this date. 3. Registration expenses for execution of conveyance deed from Haryana Housing Board in favour of the First Party and subsequent registration by the First Party in favour of the Second Party or his nominee will be borne by the Second Party.” A perusal of Exhibit P2 further shows that the total sale consideration was fixed as Rs.2,00,000/- and as is clear from the above extracted conditions, a sum of Rs.35,000/- was paid at the time of execution of the agreement to sell and the balance amount of Rs.1,65,000/- was to be paid at the time of registration. It was also made clear that all dues will be cleared by the respondent and the registration expenses of the conveyance deed from Haryana Housing Board and subsequent registration of deed would be borne by the appellant. The terms are unambiguous, but if the material on record is to be seen, then the appellant had paid a total sum of Rs.75,000/- to the respondent, which was not even contemplated in the agreement. This only shows the eagerness of the appellant to get the sale R.S.A.No.2537 of 1998 -7- .... completed. The respondent has not been able to deny the factum of receiving this amount from the appellant. In paragraph 2 of the written statement, the appellant had pleaded as under:- “2. Para 2 of the plaint is not correct as stated. However, it is correct that plaintiff entered into an agreement of sale of house in suit in favour of defendant on 12.11.1989, out of which defendant has already paid Rs.20,000/- vide draft dated 28.10.90; Rs.15,000/- vide cheque dated 10.11.90; Rs.20,000/- vide cheque dated 15.1.91; Rs.20,000/- vide cheque in favour of Housing Board Haryana dated 2.5.90. Besides the above- mentioned payment of Rs.75,000/-, the defendant has already paid Rs.1890/- as house tax on behalf of plaintiff and Rs.914/- for water charges and Rs.735/- for electricity charges on behalf of plaintiff. In this manner, the defendant has paid a sum of Rs.78,539/- to the plaintiff in all, which the defendant is entitled to adjust out of the total sale price of the house in suit. However, it is made clear that plaintiff has already removed the fixtures, fittings and furniture etc. from the house in suit and, as such, defendant is also liable to pay the extra amount of Rs.50,000/- for fittings etc. as stated in this para of the plaint. In this manner the total sale price of the house in suit remains Rs.1,50,000/- out of which defendant has already paid Rs.78,539/- as mentioned above.” Replication which was filed to the same contained no denial to R.S.A.No.2537 of 1998 -8- .... the above. Rather, an evasive stand was taken by the respondent that house tax etc. had to be paid by the appellant because he was occupying the suit property. The corresponding paragraph of the replication is also reproduced below:- “2. In reply to para no.2 of the written statement it is submitted that the defendant has not paid any house tax, water and electricity charges on behalf of the plaintiff. If at all he had paid said dues then he had paid the same for himself because he is occupying the house and enjoying water & electricity facilities. However, such payments cannot be adjusted against the consideration amount towards the house in question. It is wrong and denied that the plaintiff has removed the fixtures, fittings and furniture etc. from house in question. This prank of the defendant is an axiom of his malafides. The house in question was handed over to the defendant with fixtures, fittings and furniture etc. and thereafter there was no occasion for the plaintiff to remove the fixtures, fittings and furniture etc. as alleged. The contents of para two of the plaint are reaffirmed and reasserted to be correct.” There is, thus, no denial to the fact that the appellant had paid the aforesaid amount. In this view of the matter, even if specifically the amount of Rs.8155/- was not paid by the appellant to the respondent on demand, it cannot be said that the respondent would have a right to defeat the claim of the appellant when he had received more consideration. It R.S.A.No.2537 of 1998 -9- .... could have been understood if the remaining amont had not been paid, then he was entitled to wriggle out from the agreement. But, this contingency would have arisen at the time of the registration, which stage never reached. The respondent having received more amount could easily have satisfied the demand of the authorities of Haryana Housing Board for registration of the conveyance deed and would have been entitled to raise a demand for remaining amount which the appellant had agreed pursuant to agreement at the time of registration with the necessary adjustment. In any eventuality, there is no dispute that the appellant was put in possession of the suit property and he had paid Rs.75,000/- out of total sale consideration of Rs.2,00,000/-. The sale is, therefore, protected by the provisions of Section 53-A of the Act, which is extracted below:- “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 (“the contract, though required to be R.S.A.No.2537 of 1998 -10- .... registered, has not been registered, or,” - omitted with effect from 24.9.2001) 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.” A perusal of the above extracted provisions of law leaves no doubt that the transaction involved in this case was covered by the same. During the course of proceedings, this Court had directed the appellant to deposit Rs.2,00,000/- in the Court which amount was deposited and was withdrawn by the respondent. The Court is, therefore, of the considered opinion that the agreement to sell having been performed partly and substantially, the respondent was not within his right to wriggle out of the same by insisting upon the payment of registration charges when he had received sufficient amount to have meet the requirement of the same. The question of law which arises for consideration of this Court is as to “whether in the given set of facts and circumstances, was the instant transaction was protected by the provisions of Section 53-A of the R.S.A.No.2537 of 1998 -11- .... Transfer of Property Act,1882 or not?” For the aforesaid reasons when the appellant had been put in possession and substantial part of the sale consideration had been paid to the respondent, I am of the opinion that the agreement to sell, Exhibit P2, had been partly performed by the parties and, therefore, it could not be negated by the respondent by falling back on the frivolous plea of not having received the amount of Rs.8155/- on account of registration charges as he was sufficiently possessed of more amount than contemplated in the agreement, the question of law is answered to say that the instant transaction was protected by the provisions of Section 53-A of the Act. The appeal is, accordingly, accepted and the impugned judgment and decree passed by the first appellate Court are set aside. The respondent having received Rs.2,00,000/- and also a sum of Rs.75,000/- prior to the coming to the Court, I am of the opinion that the appellant shall not pay any further amount and the respondent shall get the sale deed registered qua the suit property in favour of the former, i.e., the appellant at the earliest. May 17,2010 ( Mahesh Grover ) “SCM” Judge