NAGINBHAI P DESAI Vs. TARABEN A SHETH

JUDGEMENT

(1.) THIS appeal was initially dismissed in limine by an order dated 15th March, 2002. In Civil Appeal No. 4926/02, the Honble Supreme Court set aside the order of dismissal of the appeal in limine and restored to the appeal to the original number directing it to be heard and decided after hearing both the parties. The virtual effect of the order of the Apex Court was that it stood admitted for final hearing. Accordingly, the record was called and the appeal was heard finally. The brief facts necessary for the decision of the appeal may be stated thus:

(2.) THE appellant (who was original defendant and referred to as such hereafter) was the owner of the immovable property bearing flat No. 2, situated on 4th floor of Parimal Co-operative Housing Society Limited, 22, Tilak Mandir Road, Vile Parle (East), Bombay 400 057, (for short the suit property" ). By an agreement to sell dated 1st September 1988, he agreed to sell the suit property to the respondents (who were the original plaintiffs and referred to such hereafter ). The original agreement is written in Gujarati language on a stamp paper of Rs. five and the true translation thereof is annexed to the plaint as Annexure "b". Under the agreement, the defendant agreed to sell the suit property to the plaintiffs for a sum of Rs. 9,11,000/- and paid an earnest of Rs. 1,50,000/ -. The balance of Rs. 7,11,000/- was to be paid on or before 31st December, 1988. A further sum of Rs. 50,000/- was paid on 1-9-1988 and the time for possession was extended upto 31st January, 1989 at the request of the defendants. The plaintiffs alleged that they were ready and willing to perform their part of the contract but the defendant declined to execute the sale deed and therefore, filed a suit for specific performance of the agreement. The trial Judge after recording of the evidence, by a judgment and order dated 28th February, 2001 decreed the suit. This judgment is challenged in this appeal.

(3.) MR. Seervai, learned Counsel for the appellant defendant canvassed only two points before us. Firstly, he contended that the agreement dated 1st September, 1988 was not properly stamped and was therefore not admissible in evidence under section 34 of the Bombay Stamp Act, 1958. Secondly, he contended that the agreement dated 1st September, 1988 amounted to a transfer of an interest in the property and therefore, required compulsory registration under section 17 of the Registration Act, 1908. As the document was not registered, the document was not admissible in evidence under section 49 of the Registration Act, 1908. Mr. Seervai further contended that the learned trial Judge erred in recording to and relying upon the said document which was not admissible in evidence and decreeing the suit.