VINOD KUMAR Vs. AJIT SINGH

JUDGEMENT

(1.) Vide this order I propose to dispose of an application filed by the defendant under Order 7 Rule 11 CPC whereunder the defendant has sought rejection of plaint on the ground that the agreement to sell dated 05.08.2011, on the basis of which the suit for specific performance and injunction is filed, being not registered under Section 17 (1A) of the Registration Act, 1908 and also not being duly stamped as per Article 23A of Schedule 1A of The Indian Stamp (Delhi Amendment) Act, 2001, was not only not admissible, but was liable to be impounded under Section 33 of the Indian Stamp Act, 1899 (for short "ISTA")

(2.) The plaintiffs have filed this suit of specific performance and injunction against the defendant on the averments that they had agreed to purchase the suit premises from the defendant for a total sum of Rs.4.57 crore on 13.07.2011 when a sum of Rs.3.10 crore was paid as advance by plaintiff No. 1 to the defendant against receipt. Thereafter, a formal agreement to sell was entered on 05.08.2011, when on this day the balance consideration amount was also paid by cash as well as four cheques. On this day, the defendant executed not only agreement to sell, but other documents such as possession certificate, undertaking, registered General Power of Attorney and registered Will etc. as well. In addition to all these documents, the possession of the suit premises was also delivered by the defendant to the plaintiffs. As per the agreement, the sale deed was to be executed after the NOC was to be obtained by the defendant from the competent authority. It is also the plaintiffs' case that out of the four cheques, one cheque of Rs.20.00 lakh dated 05.08.2011 was agreed to be presented by the defendant at the time of registration of sale deed and not before that, but the defendant surreptitiously presented the same, which obviously got dishonoured. The plaintiffs' further case is that since the defendant has not executed the sale deed to transfer the title in the suit premises in their favour and has been avoiding, they seek relief of specific performance of the agreement dated 5th August, 2011. They have also sought the relief of injunction restraining the defendant from interfering in the possession of the suit premises.

(3.) The defendant while admitting that aforesaid documents were executed has averred that the agreement to sell has since been cancelled on 27.12.2011 and the money paid forfeited on account of the breach of the terms of the agreement by the plaintiffs. The other documents such as registered General Power of Attorney and Will are also stated to have been revoked by revocation deeds dated 14.12.2011. It is also defendant's case that the agreement to sell dated 05.08.2011 coupled with the possession of the suit premises was compulsorily registrable under Section 17 (1A) of the Registration Act, and in the absence of the same it could not be received in evidence in a suit of specific performance as per proviso to Section 49 of the Registration Act. It is the defendant's case that the agreement to sell was required to be stamped as per Article 23A of Schedule 1A of Indian Stamp (Delhi Amendment) Act, 2001 and as per this provision stamp duty equivalent to 90 per cent of the duty as conveyance was payable, and further that in the absence of the same this document was liable to be impounded under Section 33 of ISTA, and could not be looked into unless the stamp duty as also the penalty was paid thereon as per provision under Section 35 of ISTA.