R. S. A. No. 2056 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2056 of 2011 (O&M) Date of Decision : May 10, 2011 Mool Chand Mundhra .... Appellant Vs. Smt. Indu Bala .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. D. Bansal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5742-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 62 days in re-filing the appeal is condoned. Main Appeal : Defendant-appellant Mool Chand Mundhra having lost in both the courts below has filed the instant second appeal. Respondent-plaintiff Indu Bala filed suit for specific performance of agreement to sell dated 10.08.2002 alleging that the R. S. A. No. 2056 of 2011 (O&M) 2 defendant agreed to sell the suit property to the plaintiff for Rs.8,00,000/- and received Rs.7,00,000/- as earnest money and executed the aforesaid agreement. Possession of the suit property was also handed over to the plaintiff. Sale deed was to be executed up to 09.02.2003. Accordingly, the plaintiff remained present in the office of Sub Registrar on 09.02.2003 for getting the sale deed executed in terms of the agreement, but the defendant did not turn up. The plaintiff approached the defendant for execution of the sale deed in terms of the agreement, but the defendant expressed inability to clear the bank loan, which had been taken by him against the suit property. Time was accordingly extended up to 01.07.2005, but again the defendant expressed inability to clear the bank loan and to execute the sale deed. Notice dated 18.07.2005 sent by the plaintiff to the defendant to execute the sale deed in terms of the agreement also remained futile. The plaintiff always remained ready and willing to perform her part of the contract, but the defendant committed breach thereof, necessitating the filing of the instant suit. The defendant broadly denied the plaint allegations. The defendant denied having executed any agreement or having received earnest money of Rs.7,00,000/-. It was pleaded that agreement was got prepared along with receipt, but amount was not paid by the plaintiff to the defendant and accordingly, the defendant cancelled the agreement. Consequently, the agreement cannot be enforced specifically. It was also pleaded that R. S. A. No. 2056 of 2011 (O&M) 3 defendant had rented out the suit property to the plaintiff through her husband. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Faridabad, vide judgment and decree dated 07.06.2010, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned District Judge, Faridabad, vide judgment and decree dated 02.11.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff herself appeared in the witness box as PW-1 and examined Ramesh Kathuria as PW-2 – attesting witness of the agreement and Advocate Deva Nand as PW-3, who drafted the said agreement. All of them have stated broadly according to the plaintiff's version. On the other hand, the defendant himself appeared as DW-1 and stated according to his own version. He also examined Advocate Daya Nand as DW-2, who has stated that he had not drafted the aforesaid agreement. However, it was not plaintiff's case that agreement was drafted by Advocate Daya Nand. On the other hand, it was pleaded that the agreement was drafted by Advocate Deva Nand (PW-3). Defendant also examined three other witnesses, who broadly supported the defendant's case. Execution of the impugned agreement by the defendant has been proved by the plaintiff by leading cogent evidence. The plaintiff, R. S. A. No. 2056 of 2011 (O&M) 4 besides herself appearing as her own witness, also examined one attesting witness of the agreement. The plaintiff has also examined the Advocate, who had drafted the agreement. Their statements are sufficient to prove due execution of the agreement. There is recital of payment of Rs.7,00,000/-in the agreement by the plaintiff to the defendant as earnest money. There is also separate receipt for the same, which has also been proved by plaintiff and her witnesses. On the top of it, the defendant has admitted his signatures on the agreement as well as on the receipt. In these circumstances, the onus shifted to the defendant to establish that the agreement and receipt were not executed by him or that the earnest money was not paid to him by the plaintiff. The defendant has miserably failed to do so. The defendant alleged that since the earnest money was not paid to him, he cancelled the agreement. However, there is nothing on record to depict that the defendant ever cancelled the agreement. Moreover, plea of cancellation of the agreement taken by the defendant pre-supposes the execution of agreement by him. The defendant denied having executed the agreement. Thus, the defendant has taken contradictory stand. The defendant did not serve any notice on the plaintiff that he had cancelled the agreement. Moreover, if earnest money had not been paid to the defendant and his signatures had been obtained on the agreement as well as on the receipt regarding said payment, the defendant would have raised hue and cry and would have initiated civil and criminal proceedings against the R. S. A. No. 2056 of 2011 (O&M) 5 plaintiff. However, the defendant remained silent for almost three years after the execution of the agreement and receipt till the filing of the suit by the plaintiff. In addition to the aforesaid, plaintiff is admittedly in possession of the suit property. It would also corroborate the plaintiff's version that possession of the suit property was delivered to her in terms of the agreement. However, the defendant, in order to escape from the situation, took a plea that he had rented out the suit property to the plaintiff through her husband. The defendant, however, miserably failed to substantiate the said plea. There is no document in this regard. No notice was ever served by the defendant on the plaintiff regarding alleged tenancy. It is thus crystal clear that the said plea has been taken only to avoid the performance of the impugned agreement, under which possession has been delivered to the plaintiff. Learned counsel for the appellant vehemently contended that possession of the suit property was delivered to the plaintiff under the agreement, and therefore, the agreement required compulsory registration in terms of Section 17 (1-A) of the Registration Act, 1908 (in short – the Act), but the agreement is unregistered, and therefore, the suit on its basis is not tenable. Reliance in support of this contention has been placed on judgment of this Court in the case of Gurbachan Singh vs. Raghubir Singh reported as AIR 2010 Punjab and Haryana 77. R. S. A. No. 2056 of 2011 (O&M) 6 I have carefully considered the aforesaid contention, but find myself unable to accept the same. Section 17 (1-A) of the Act is reproduced hereunder :- “[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 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.]” A bare perusal of the aforesaid provision makes it manifestly clear that such an unregistered agreement, vide which possession has been delivered, shall have no effect for the purpose of Section 53-A of the Transfer of Property Act (in short – the T. P. Act). In other words, such an unregistered agreement cannot be used to take benefit of Section 53-A of the T. P. Act. However, Section 17 (1-A) of the Act does not make such an unregistered agreement completely null and void. This provision does not R. S. A. No. 2056 of 2011 (O&M) 7 prohibit user of such an agreement for any purpose except for the purpose of Section 53-A of the T. P. Act. Consequently, suit on the basis of such an unregistered agreement for specific purpose thereof is certainly maintainable, although such an agreement cannot be used as defence in terms of Section 53-A of the T. P. Act. Judgment in the case of Gurbachan Singh (supra) is completely distinguishable on facts. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiff is fully justified by the evidence on record. Defendant-appellant has taken contradictory and untenable stand. The same has been rightly discarded. Concurrent finding recorded by the courts below is not based on misreading or misappreciation of evidence nor it is shown to be illegal or perverse in any manner so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. May 10, 2011 ( L. N. MITTAL ) monika JUDGE