SHALINI Vs. SHANKAR NEELANTH IYER

JUDGEMENT

(1.) By this Civil Revision Application under section 115 of Civil Procedure Code, the original defendants challenges the order dated 26-9-2003, by which the Civil Judge, Senior Division, Nagpur has rejected their application at Exh. 35, for rejection of plaint in Special Civil Suit No. 733/1996. On the ground that, the provisions of section 269uc to section 269ul of Income tax Act, 1961 has not been complied with, though the value of the immovable property subjected to alleged agreement is more than Rs. 5 lacs. The facts in brief are, that, the present non-applicant filed Special Civil Suit No. 733/1996, for decree of specific performance, stating that there is oral agreement with late husband of applicant No. 1 and father of applicant Nos. 2 to 4. The said agreement is dated 29-10-1994, by which the deceased agreed to sell his house situated at plot No. 4, Gazetted Officers Colony, Civil Lines, Nagpur to the present non-applicant for a total consideration of Rs. 12 lacs, and at that time, he paid Rs. 15,000/- as earnest money and the balance amount was to be paid at the time of sale deed. The present revision applicants on 13-9-2003, moved an application under Order 7, Rule 1 l (d) of Civil Procedure Code, vide Exh. 35, for rejection of plaint, contending that the oral agreement of which specific performance is sought for, is void in the eye of law, and cannot be enforced. The said application was opposed by the original plaintiff, who pointed out that the provisions of Income Tax Act do not bar such suit and there is no question of rejecting the plaint. It appears that the parties filed their respective written notes of argument before the learned Trial Court, and on 26-9-2003, the trial Court rejected that application. The trial Court has considered the fact that, the said provisions have been removed from the statute by subsequent amendment and has also considered the case law i. e. 1998 (3) Mh. LJ. Pg. 35, Diwan Rahul Nanda vs. Nitish G. Kotak, and has found that the alleged defect can be removed/rectified within further period of 15 days, which the appropriate authority under Income Tax Act, could grant for that purpose, and thus there was possibility of making rectification in the present matter. It is in this view of the matter that, the learned Trial Court rejected that application.

(2.) In this Revision, Advocate A. S. Jaiswal, by placing reliance upon the judgment of Diwan Rahul Nanda vs. Nitish G. Kotak (supra) contended that as there was no written agreement, and as there is total bar by section 269ul of income Tax Act on registration of any document, if the value of the property to be transferred exceeds the prescribed value, unless a certificate from appropriate authority has been obtained, and as there is no scope of obtaining such certificate the present non-applicant/plaintiff cannot seek specific performance of such agreement. He has relied upon the observations made in paragraph No. 8 of this judgment, to support of his contention. He further states that perusal of the plaint, particularly paragraph No. 26, shows that the cause of action has accrued on 29-10-1994, and hence application for permission to obtain no objection certification ought to have been made within 15 days, as contemplated by section 269uc (3) (iii) , read with Rule 48 (L) of the Rules, and as that has not been done, the suit cannot be decreed and plaint ought to have been rejected. He contends that there is no question of Civil Court issuing such directions to the parties while passing decree in the suit, as the proceedings before the Income Tax Authorities are totally of different nature, and the legal heirs of the deceased will be put to risk of losing the property itself, at the rate arrived at by the Income Tax authorities. He further contends that the subsequent amendment to the provisions of Income Tax Act, have got no relevance insofar as the subject matter involved in the suit is concerned. He contends that the trial Court has erred in observing that, because of subsequent amendment, no such permission is necessary.

(3.) As against this, Advocate S. Y. Deopujari, appearing for the respondent/plaintiff, states that, the judgment of this Court in Diwan Rahul nanda vs. Nitish G. Kotak (supra) , is no longer good law, and he places reliance upon the judgment of Hon'ble Apex Court, reported in 2000 (5) SCC, Pg. 552 dfl Universal Ltd. vs. Appropriate Authority and another, to contend that even oral agreement for sale is legal and valid. He contends that there is no scope for making any application under Order 7, Rule 1 l (d) , in the facts and circumstances of the case. He further states that in plaint paragraph No. 26, it has been contended that the transfer was to be completed on or before 29-4-1996, and hence it was the date of intended transfer. He further states that the provisions of income Tax Act, were amended w. e. f. 1-8-1995, and ceiling of Rs. 5 lacs as value of immovable property imposed by section 269uc, was raised to Rs. 20 lacs, and as such by the intended date of transfer no permission or "no objection certificate" was required. He therefore, contend that, even on this ground said application ought to have been rejected.