SWARNENDU DAS GUPTA Vs. SADHANA BANERJEE

JUDGEMENT

(1.) This Court has heard the learned advocates for the respective parties and has considered the relevant materials on record. The plaintiff/appellant filed a suit being Other Suit No:64 of 2006 renumbered as Other Suit No.54 of 2013 which was placed before the learned Joint Civil Judge, Senior Division at Port Blair. Such suit was filed against the defendant/respondent and the plaintiff in such suit prayed that a decree be passed under Specific Relief Act directing the defendant to execute the sale deed in respect of the suit property in terms of the agreement for sale dated 26.04.2006 entered in between the plaintiff and the defendant. The plaintiff/appellant also prayed for a decree directing the defendant/respondent not to disturb the possession of the plaintiff from the suit property. The defendant/respondent contested the said suit by filing the written statement.

(2.) The said suit ultimately came up for hearing and the learned Trial Court, after hearing the parties and considering the evidence on record, dismissed the said suit and directed the defendant to refund the earnest money of Rs.9,77,500/- to the plaintiff within a stipulated period of time and, in default, the plaintiff was given liberty to realise the same by a suitable proceeding in law. It appears from perusal of the said judgement and decree passed by the learned Trial Court that the learned Trial Court dismissed the said suit mainly on the ground that the agreement for sale which has been marked as Exhibit No.7 is not a registered instrument and therefore the plaintiff/appellant is debarred from getting any relief in the said suit. The learned Trial Court has recorded in its judgement that the plaintiff has performed a part performance by making payment of Rs.9,77,500/- out of a total consideration of Rs.11,50,000/- and the defendant has also made over the possession of the property in dispute to the plaintiff and thus, the defendant has also performed a part performance towards the sale agreement "within the view of Section 53A of the Transfer of Property Act".

(3.) However, challenging the said judgment and decree passed by the learned Trial Court, the plaintiff/appellant filed Other Appeal No.29 of 2013 which was placed before the learned District Judge, Andaman and Nicobar Islands. The learned District Judge by the impugned judgment and decree dated 24.10.2014 dismissed the said Other Appeal and affirmed the view of the learned Trial Court that since the said agreement for sale is not a registered instrument, the plaintiff/appellant is debarred from getting any relief by virtue of the agreement for sale dated 26.04.2006. The learned First Appellate Court was of the view that since the said agreement for sale is not a registered document as per the provisions of Section 17 (1A) of the Registration Act, 1908, the plaintiff is not entitled to get any decree. The learned First Appellate Court, however, came to a conclusion of fact that the plaintiff had paid Rs.10,00,000/- to the defendant/respondent out of a total consideration of Rs.11,50,000/-. Challenging the impugned judgments and decrees, the plaintiff/appellant has filed the present second appeal which was admitted by an Hon'ble Division Bench of this Court on 13.11.2014 and the following substantial questions of law were formulated by the said Court: