In the instant case, the defendant has not
denied the execution of the agreement to sell dated
07.05.2022 but has contended that the agreement to sell
was entered into under coercion. However, the defendant
had kept the money received under the agreement of Rs.10
lakh in her account for more than 5 months. Thus, prima
facie agreement cannot be said to be under coercion as
there is no steps taken by the defendant to return the
amount, rather the defendant has kept money in her
account and effect thereto is to be examined before the trial
court and thus no interference is called for at this stage, in
the order passed by the trial Court. {Para 31}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 25 OF 2023
Smt. Manisha w/o. Balkrushna Kode, Vs Shri. Madanlal s/o. Uttamchand Desarda,
CORAM : ARUN R. PEDNEKER, J.
Pronounced on : 02.08.2023
1] By the present Appeal from Order, the appellant
is challenging the order dated 24.01.2023 passed by the
Civil Judge Senior Division, Aurangabad in Special Civil Suit
No.1186 of 2022 in Exh.5 application, whereby the Civil
Judge Senior Division clamped injunction against the
present appellant – original defendant, directing the
defendant not to create third party interest in the suit
property during pendency of the Special Civil Suit No.1186
of 2022.
Facts giving rise to the filing the present Appeal from Order
can be briefly summarized as under:
2] The respondent – plaintiff is an agriculturist and
deals in real estate. The appellant – defendant is the lawful
owner and possessor of the land to the extent of 1 Hector
21 R. land out of Gat No.114/1 situated at village
Nakshatrawadi, Aurangabad. The appellant – defendant
entered and executed agreement to sell in favour of the
respondent – plaintiff on 17.06.2002. As the defendant
allegedly failed to perform her part of contract, the plaintiff
filed Regular Civil Suit No.113/2014 for specific
performance of contract and the said suit came to be
dismissed. Against the said dismissal, Regular Civil Appeal
No.287 of 2016 is filed and the same is still pending before
the Ad-hoc District Judge-2, Aurangabad.
3] It is the case of the plaintiff that during the
pendency of the said Appeal, the defendant and her
husband approached to the plaintiff and offered to
compromise the matter on payment of higher consideration
amount for the suit land and to settle the matter once for
all. The plaintiff considering his own old age and that of the
defendant too and with a view to settle the old litigation
agreed for the same. The defendant thereby entered into a
new agreement with plaintiff vide notary registered
agreement dated 07.05.2022 in presence of witnesses
including her husband, her then lawyers and grand-son of
the plaintiff for sale of the suit land.
4] It is further the case of the respondent –
plaintiff that in terms of the agreement, the plaintiff has
paid the defendant Rs.10,00,000/- vide cheque No.479446
drawn on Axis Bank on the very date of the agreement out
of the agreed total consideration amount of
Rs.1,11,00,000/- [One Crore and Eleven Lakh rupees only].
The total consideration amount was agreed to be fixed at
Rs.1,11,00,000/- for the total land of 3 Acre under the
agreement and the remaining consideration amount of
Rs.1,01,00,000/- was to be paid by the plaintiff at the time
of execution of the sale deed in favour of the plaintiff by the
defendant.
5] It is further the case of the plaintiff that the
initial payment of Rs.10,00,000/- was received and
acknowledged by the defendant and that the plaintiff was
required to pay the remaining amount within the period of
four months from the date of execution of the said
agreement. Thereafter, the plaintiff got prepared demand
drafts of the remaining consideration amount. Thereafter
the plaintiff and his grand son approached and contacted
the defendant many times, but the defendant tried to avoid
talking or meeting the plaintiff but assured the plaintiff to
execute the registered sale deed in his favour, but avoided
on several grounds to execute the sale deed. It is further the
case of the plaintiff that the plaintiff called upon the
defendant by issuing legal notice through his advocate on
07.10.2022 to remain present on the given date before Sub
Registrar Office and to perform her part of contract but the
defendant failed to comply the notice duly served on the
defendant so also the defendant did not reply to the said
notice. The plaintiff had also registered lis pendence of the
suit property vide deed No.1071/2014 dated 03.03.2014.
6] It is further the case of the plaintiff that the
defendant with malafide intention and to deceive the lawful
rights and interest of the plaintiff, transferred the odd
amount of Rs.11,00,000/- in the account of the plaintiff’s
daughter in law without his permission or consent. It is
further the case of the plaintiff that the amount of
consideration paid by the plaintiff was retained by the
defendant from 07.05.2022 to 13.10.2022 and that it
falsifies the claim of the defendant that she was made to
enter into the agreement to sell by exerting coercion. Thus,
the defendant was avoiding to perform her part of the
contract although the plaintiff was ready and willing to
perform his part of the contract. It is the case of the plaintiff
that the plaintiff is in possession of the suit property prior to
the present agreement and that the defendant was trying to
take possession of the property and that if the defendant
succeeds in her illegal activity, then the plaintiff will suffer
irreparable loss, which cannot be compensated in terms of
money.
7] Due to non execution of the sale deed, the
plaintiff was constrained to file Special Civil Suit No.1186 of
2022 for specific performance of the agreement to sell,
dated 07.05.2022. Along with the suit, application below
Exh. 5 is filed for interim relief of injunction against the
defendant not to create third party rights over the suit
property.
8] In the suit, the defendant appeared and filed its
reply and the defendant denied all averments and pleadings
of the plaint. It is the case of the defendant that the suit
filed along with the application for temporary injunction by
the plaintiff against the defendant is illegal, time barred and
filed on the basis of unregistered document and by
deceiving the defendant. The defendant further submitted
that the agreement itself was cancelled by the defendant
and as such no suit for specific performance of contract was
maintainable without seeking declaration that the
cancellation of the agreement at the instance of the
defendant is unlawful and not binding on the plaintiff.
9] It is the case of the defendant that unregistered
document does not create any right or interest in the
property. It is further the case of the defendant that the
plaintiff has not paid sufficient stamp duty as per the
valuation of the suit property, therefore, the agreement to
sell filed by the plaintiff is not admissible. It is further the
case of the defendant that the suit is filed by the plaintiff
through his power of attorney in respect of the suit property
in respect of which since beginning there is dispute going
on between the plaintiff and the defendant, the power of
attorney has no knowledge about the suit property.
10] By order dated 24.01.2023, the injunction is
granted in favour of the plaintiff, which is now challenged
in the present Appeal from order.
SUBMISSIONS :
11] Heard Mr. Mahesh Deshmukh, Advocate for the
appellant – defendant. Mr. Deshmukh submits that it is the
case of the appellant – defendant that by specific legal
notice dated 10.10.2022, posted on 12.10.2022, which was
refused to accept by the plaintiff on 13.10.2022, the
defendant had cancelled agreement of sale dated
07.05.2022 and the plaintiff did not seek declaratory relief
challenging the said notice of cancellation of agreement, as
such, in the said suit there was no prayer for declaration of
legal notice dated 10.10.2022, cancelling agreement to sell
dated 07.05.2022, as void or bad in law. Consequently, the
suit is not maintainable without seeking relief of declaration
that the legal notice dated 10.10.2022 is void. The learned
counsel for the appellant – defendant has relied upon the
judgment in the case of I.S.Sikandar (Dead) By LRS. Vs.
K.Subramani and others reported in (2013) 15 SCC 27 and
in the case of Mohinder Kaur Vs. Sant Paul Singh reported
in [2019] 9 SCC 358.
12] It is the contention of the appellant – defendant
that the agreement is determinable in terms of the provision
of Section 14 of the Specific Relief Act and that due to the
contents of notice dated 10.10.2022, the agreement dated
07.05.2022 was cancelled for the reasons that the
agreement was under coercion and market value of the
property is more than 13 crores and that the agreement to
sell dated 07.05.2022 if continued, then it will entail a fine
by the Income Tax Department which would be double the
amount of consideration agreed to be paid. In view of the
contents of notice dated 10.10.2022, it is crystal clear that
the present case of the appellant falls within the ambit of
Section 14 (1) (b) (c) of the Specific Relief Act whereby
purported contract / agreement dated 07.05.2022 cannot
be specifically enforced, as such, the present appellant –
defendant is justified in cancelling / terminating the
agreement dated 07.05.2022 vide legal notice dated
10.10.2022.
13] It is the case of the appellant - defendant that
clause in the agreement to sell dated 07.05.2022 indicates
that Regular Civil Appeal No.287 of 2016 has to be
withdrawn by the appellant i.e. original defendant,
however, it is not possible for the appellant – original
defendant to withdraw the appeal as the appeal is filed by
the plaintiff and that the appellant in RCA No.287 of 2016
has not taken steps by taking recourse to Section 26 of the
Specific Relief Act to rectify the instrument and as such the
present appellant was entitled to terminate / cancel the
agreement dated 07.05.2022 as it cannot be enforced as per
Section 14 (1) (b) (c) of the Specific Relief Act.
14] It is the contention of the appellant – defendant
that during the course of arguments of the application
below Exh.5 in the suit, on 06.01.2023 the plaintiff filed an
application seeking production of document together with
list of documents, filed photocopy of purported agreement
to sell dated 13.09.2022 and the appellant – original
defendant had opposed the application for production of
documents. However, the trial Court relying on the
agreement to sell dated 13.09.2022 allowed the application
for production of documents by order dated 24.01.2023.
15] The appellant – defendant contends that the
amount of Rs.10 lac, which is transmitted in the account of
the appellant – defendant by cheque and the present
appellant defendant has returned the amount of Rs.10 lac
along with Rs.1 lac interest on the said amount in the
account of Smt. Namrata Desarada [daughter in law of the
present respondent] through RTGS on 13.10.2022. It is the
case of the appellant – defendant that the said amount was
utilized by the aforesaid person, namely, Smt.Namrata
Desarda, in whose account, the amount was transferred.
16] That, earlier purported agreement of sale dated
17.06.2002, on the basis of which, Regular Civil Suit
No.113 of 2014 seeking specific performance was filed by
the plaintiff after almost 12 years. While dismissing the said
suit, the trial Court has held that the plaintiff failed to prove
that he was ready and willing to perform his part of
contract. Against the said judgment and order, appeal is still
pending and that in the Appeal, the application seeking
production of document together with list of document,
photocopies of 3 demand draft dated 12.08.2022 as well 01
cheque were presented. It is further the case of the
appellant – defendant that the aforesaid three demand
drafts were cancelled by the plaintiff and those were raised
to make show about readiness and willingness and only
photocopies were presented and original were not produced
even before the appellate Court, as such, those demand
drafts cannot be considered for the purpose of consideration
of an application below Exh.5 in the present suit.
17] It is further contention of the appellant –
defendant that purported agreement dated 13.09.2022
between defendant and some other person regarding suit
property, purported photocopy of same was produced at the
time of hearing on application below Exh.5 on 06.01.2023.
There is no averment / pleading in plaint and / or in the
application below Exh.5, the same cannot be considered for
decision of an application below Exh.5.
18] It is the further contention of the appellant –
defendant that the suit is filed through General Power of
Attorney, who is grand-son of the plaintiff and 25 years old
is not conversant and is acquainted with the facts of the
case and there is no statement either in plaint or in
application below Exh.5 to the effect that the GPA knows
the facts of the case, as such, the suit as well as the
application below Exh.5 is not entertainable. As per section
17 (1-A) read with 17 (2) (v) of the Registration Act, 1908,
purported agreement to sell dated 07.05.2022
contemplating consideration of Rs.1,11,00,000/-, the said
purported agreement being compulsorily registerable and
the same being not registered as per the mandate, the same
cannot be read for consideration of an application under
Order 39 Rule 1 of the Civil Procedure Code, 1908, while
granting application in a suit for specific performance of
contract.
19] In terms of the Maharashtra Stamp Act under
Article 25 Schedule-1 and particularly explanation I thereto,
purported agreement dated 07.05.2022 is “Conveyance” as
such requires requisite stamp duty as leviable under the
Maharashtra Stamp Act, however, the same being not paid
as per the Schedule looking to purported agreement dated
07.05.2022, the said purported agreement dated
07.05.2022 cannot be considered even for collateral
purposes, particularly while deciding an application for
temporary injunction under order 39 Rule 1 of the CPC,
however, the same being considered and relied, the learned
trial Court has committed an error. In the case of M/s.
N.N.Global Mercantile Private Limited Vs. M/s. Indo Unique
Flame Ltd. & others reported in 2023 [6] SCALE 434
declares that an unstamped instrument cannot be taken
notice of for any purpose and it remains unenforceable. No
Public Officer nor Court nor Arbitrator, can permit any
person to ask them to act upon it or receive it as evidence.
In law such unstamped agreement is bereft of life and not
enforceable in law, cannot exist in law and would be void.
In view of the provisions of Section 2 (h) and 2 (j) of
Contract Act unstamped instrument cannot be a contract
and renders such contract ceases to be and are not
enforceable and are void.
20] Thus, the learned counsel for the appellant –
defendant submits that purported agreement to sell dated
07.05.2022 being typed on just Rs.100/- stamp paper for an
agreement for consideration of Rs.1,11,00,000/-, it is
crystal clear that the said agreement dated 07.05.2022 is
not executed on payment of sufficient and requisite stamp
duty as is required to be paid as per the Maharashtra Stamp
Act and accordingly, agreement is unenforceable and
receives no evidential value even for consideration of an
application for injunction under Order 39 Rule 1 of the CPC
in a civil suit for specific performance.
21] It is further the contention of the appellant
defendant that purported agreement dated 13.09.2022 is
for sale of the suit property and two names are mentioned
therein i.e. Nitin Ashok Pagariya and Amit Vinayakrao Borse
as vendee, however, in the bank statements produced by the
present appellant before the trial Court, there is no entry in
the name of the above referred 2 persons from whom the
present appellant has received any amount.
22] Per contra, Mr.Bhandari, the learned counsel for
the respondent – plaintiff submits as under :
The judgment in the case of I.S.Sikandar (Dead)
By LRS. Vs. K.Subramani and others reported in (2013) 15
SCC 27 is not applicable to the facts of the present case. The
notice of cancellation of agreement to sell was not served
on the respondent – plaintiff and that tracking report shows
that the envelop was sent to the address of the plaintiff and
it was returned back without being delivered / refused by
the plaintiff. The legal notice being not served upon the
plaintiff. There is no question of challenging the same. It is
further contended by the respondent – plaintiff that in
I.S.Sikandar [supra] the facts are entirely different and it
was at final stage of the suit, that the Court had come to the
conclusion that the agreement itself provided for
termination of the agreement by one of the parties in
particular contingencies. Contingency having occurred, the
party was entitled to terminate the agreement and
termination itself was undertaken by one of the parties to
the agreement. Such termination being not challenged the
Court came to the conclusion that the suit for specific
performance could not have been filed. However, in the
instant case, it is yet to be decided that whether there was
a notice of termination served upon the plaintiff and there is
no occasion to terminate the agreement of sale dated
07.05.2022. The plaintiff was ready and willing to perform
his part of the contract. The learned counsel for the
respondent – plaintiff relies upon the judgment of the
Punjab and Haryana High Court in the case of Brahm Dutt
Vs. Sarabjit Singh in RSA No.2943 of 2017 (O&M), decided
on 06.11.2017 and in the said judgment, case of
I.S.Sikandar [supra] has been explained.
23] The learned counsel for the respondent –
plaintiff contends that in view of Section 31 of the Specific
Relief Act, 1963, unilateral cancellation of instrument is not
legal and that the appellant has to seek appropriate
declaration from the Court. The learned counsel for the
respondent – plaintiff submits that in the instant case the
plaint does not admit any service of notice as was done in
the case of I.S.Sikandar [supra]. The suit is at preliminary
stage. Even the issues are not framed. The issue regarding
service of notice and effect can be considered at the stage of
trial.
24] As regards the submission of the appellantdefendant
that the agreement is not sufficiently stamped,
the respondent – plaintiff has relied upon the judgment in
the case of The State Financial Corporation and another Vs.
M/s. Jagdamba Oil Mills and another reported in AIR 2002
SC 834, and submits that stamp duty is not payable on the
instant agreement to sell.
25] The learned counsel for the respondent –
plaintiff also relies upon the judgment in the case of Wander
Ltd. and another Vs. Antox India P. Ltd. Reported in 1990
[Supp] SCC 727 submits that this Court should not interfere
with the discretionary order of the trial Court granting
injunction.
26] Having considered the rival submissions,
following points arise for consideration :
[i] Whether the suit for specific performance of
contract is maintainable in absence of the prayer to seek
declaration that legal notice dated 10.10.2022 issued by the
defendant to the plaintiff cancelling the agreement to sell
dated 07.05.2022 is illegal and bad in law, in view of the
judgment in the case of I.S.Sikandar (Dead) By LRS. Vs.
K.Subramani and others reported in (2013) 15 SCC 27.
a] In the case of I.S.Sikandar [supra], the Hon’ble
Supreme Court at para nos. 32, 32.1, 37 and 38 has held as
under :
32. After perusal of the impugned judgment of
the High Court and the questions of law framed
by Defendant 5 in this appeal, the following
points would arise for determination of this
Court:
32.1. (i) Whether the original suit filed by the
plaintiff seeking a decree for specific performance
against Defendants 1-4 in respect of the suit
schedule property without seeking the declaratory
relief with respect to termination of the
agreement of sale vide notice dated 28-3-1985,
rescinding the contract, is maintainable in law?
37. As could be seen from the prayer sought for
in the original suit, the plaintiff has not sought for
declaratory relief to declare the termination of
agreement of sale as bad in law. In the absence of
such prayer by the plaintiff the original suit filed
by him before the trial court for grant of decree
for specific performance in respect of the suit
schedule property on the basis of agreement of
sale and consequential relief of decree for
permanent injunction is not maintainable in law.
38. Therefore, we have to hold that the relief
sought for by the plaintiff for grant of decree for
specific performance of execution of sale deed in
respect of the suit schedule property in his favour
on the basis of non-existing agreement of sale is
wholly unsustainable in law. Accordingly, Point (i)
(see para 32.1) is answered in favour of
Defendant 5.
b] In the case of I.S.Sikandar [supra], the Hon’ble
Supreme Court at para nos. 40 and 41 has further held as
under :
40. This position of law is well settled by this
Court in the Constitution Bench judgment in
Chand Rani v. Kamal Rani, wherein this Court has
held that it is well-settled principle of law, that in
a case of sale of immovable property, time is not
the essence of the contract. However, if the
parties agreed to a specified time in the
agreement to perform their part of the contract,
then time is the essence of the contract and
parties shall adhere to the same.
41. To emphasise the fact that time is the
essence of the contract before the High Court, the
counsel for the fifth defendant has placed reliance
upon the judgment of this Court in Chand Rani
case, the relevant portions of which are extracted
below: (SCC pp. 525-28, paras 19-20 & 22)
"19. It is a well-accepted principle that in
the case of sale of immovable property, time is
never regarded as the essence of the contract. In
fact, there is a presumption against time being the
essence of the contract. This principle is not in
any way different from that obtainable in
England. Under the law of equity which governs
the rights of the parties in the case of specific
performance of contract to sell real estate, law
looks not at the letter but at the substance of the
agreement. It has to be ascertained whether
under the terms of the contract the parties named
a specific time within which completion was to
take place, really and in substance it was
intended that it should be completed within a
reasonable time. An intention to make time the
essence of the contract must be expressed in
unequivocal language.
20. .… 4. … Section 55 of the Contract
Act which deals with the consequences of failure
to perform an executory contract at or before the
stipulated time provides by the first paragraph:
"55. Effect of failure to perform at
fixed time, in contract in which time is
essential. - When a party to a contract
promises to do a certain thing at or before a
specified time, or certain things at or before
specified times, and fails to do any such
thing at or before the specified time, the
contract, or so much of it as has not been
performed, becomes voidable at the option
of the promisee, if the intention of the
parties was that time should be of the
essence of the contract."
It is not merely because of specification of time at
or before which the thing to be done under the
contract is promised to be done and default in
compliance therewith, that the other party may
avoid the contract. Such an option arises only if it
is intended by the parties that time is of the
essence of the contract. Intention to make time of
the essence, if expressed in writing, must be in a
language which is unmistakable: it may also be
inferred from the nature of the property agreed to
be sold. conduct of the parties and the
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25.23AO
surrounding circumstances at or before the
contract. Specific performance of a contract will
ordinarily be granted. notwithstanding default in
carrying out the contract within the specified
period, if having regard to the express stipulations
of the parties, nature of the property and the
surrounding circumstances, it is not inequitable to
grant the relief. If the contract relates to sale of
immovable property, it would normally be
presumed that time was not of the essence of the
contract. Mere incorporation in the written
agreement of a clause imposing penalty in case of
default does not by itself evidence an intention to
make time of the essence. In Jamshed Khodaram
Irani v Burjorji Dhunjibhai the Judicial
Committee of the Privy Council observed that the
principle underlying Section 55 of the Contract
Act did not differ from those which obtained
under the law of England as regards contracts for
sale of land."
22. In Hind Construction Contractors case'
quoting Halsbury's Laws of England, this Court
observed at pp. 1154-55 as under: (SCC pp. 76-
77, paras 7-8)
7.... In the latest 4th Edn. of Halsbury's
Laws of England in regard to building and
engineering contracts the statement of law is to
be found in Vol.4, para 1179, which runs thus:
"1179. Where time is of the essence
of the contract. - The expression time is of
the essence means that a breach of the
condition as to the time for performance
will entitle the innocent party to consider
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the breach as a repudiation of the contract.
Exceptionally, the completion of the work
by a specified date may be a condition
precedent to the contractor's right to claim
payment. The parties may expressly provide
that time is of the essence of the contract
and where there is power to determine the
contract on a failure to complete by the
specified date, the stipulation as to time
will be fundamental. Other provisions of
the contract may, on the construction of the
contract, exclude an inference that the
completion of the works by a particular
date is fundamental; time is not of the
essence where a sum is payable for each
week that the work remains incomplete
after the date fixed, nor where the parties
contemplate a postponement of
completion.
Where time has not been made of
the essence of the contract or, by reason of
waiver, the time fixed has ceased to be
applicable, the employer may by notice fix
a reasonable time for the completion of the
work and dismiss the contractor on a
failure to complete by the date so fixed."
8. It will be clear from the aforesaid statement of
law that even where the parties have expressly
provided that time is of the essence of the
contract such a stipulation will have to be read
along with other provisions of the contract and
such other provisions may, on construction of the
contract, exclude the inference that the
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completion of the work by a particular date was
intended to be fundamental; for instance, if the
contract were to include clauses providing for
extension of time in certain contingencies or for
payment of fine or penalty for every day or week
the work undertaken remains unfinished on the
expiry of the time provided in the contract such
clauses would be construed as rendering
ineffective the express provision relating to the
time being of the essence of contract."
(emphasis in original)
c] In the case of I.S.Sikandar [supra], the Hon’ble
Supreme Court has held that normally in a contract for sale
of immovable property, time is never the essence of the
contract. However, in the case of I.S.Sikandar [supra], the
Court after examination of the contract had concluded that
time was the essence of the contract for completion of the
sale transaction.
d] In the case of I.S.Sikandar [supra], the Court
had also noted that on completion of time stipulated in the
agreement to sell, the agreement came to an end on
account of non compliance of certain required formalities by
the vendee and on non-payment of balance consideration,
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time being the essence of the contract and the vendor
having validly terminated the agreement. In the same
judgment, the Court had also noticed that in spite of non
compliance of the agreement within stipulated time by the
vendee, the vendor had granted further time for payment of
balance consideration and on failure to comply with the
same, the vendor had terminated the agreement to sell after
the completion of extended period.
e] In the case of I.S.Sikandar [supra] the
agreement to sell became voidable at the instance of vendor
on non-payment of balance consideration within the period
mentioned in the agreement and although vendor had
extended the period, the agreement was terminated after
completion of the extended period. The Court had also held
in the facts situation that the agreement did not exist on
account of it being terminated after the extended period.
Thus, in the judgment in the case of I.S.Sikandar [supra]
the Hon’ble Supreme Court has held that unless the
declaration is sought to the extent that the termination of
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the agreement was bad in law, the suit for specific
performance of contract was not maintainable.
f] Thus, the action of the defendant in the case of
I.S.Sikandar [supra] was within the realm of the Contract
Act as provided under Section 55 of the Contract Act which
provides that in case of the performance which was
required of the plaintiff within a stipulated time is not
performed by her then the contract becomes voidable at the
option of the defendant if the intention of the parties was
that time should be the essence of the contract and the
defendant was not required to perform his part of the
agreement. In the case of I. S. Sinkandar [supra] the
contract had come to an end and was not enforceable under
Section 14 of the Specific Relief Act.
g] In the instant case, it is to be noticed that the
bare reading of the agreement to sell dated 07.05.2022 of
the suit land would prima facie indicate that the time is not
the essence of the contract and that the agreement to sell
does not automatically come to an end after the stipulated
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time or on account of non compliance of the conditions
mentioned in the agreement to sell at the end of the period,
mentioned in the agreement.
h] Unilateral cancellation of agreement to sell by
one party is not permissible in law except where the
agreement is in it’s nature determinable and not enforceable
in terms of Section 14 of the Specific Relief Act. As such
cancellation cannot be raised as a defence in a suit for
specific performance. The bare perusal of the provisions of
the Specific Relief Act shows that once a party claims the
right of revocation or rescission of the agreement then such
a party is required to seek a declaration from the Court
regarding the validity of revocation or rescission as the case
may be, as required under Sections 27 and 31 of the
Specific Relief Act, or the party will have to demonstrate
that it has validly terminated the agreement under the
provisions of the Contract Act, if a suit for specific
performance of agreement is brought against the party.
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i] Thus, in the instant case it is premature to rely
upon the judgment in the case of I.S.Sikandar [supra] as the
findings will have to be rendered in the final judgment
whether the time was essence of the contract and that the
contract was not enforceable in terms of Section 14 of the
Specific Relief Act and the defendant has validly terminated
the contract under the relevant provisions of the Contract
Act. Thus, at this stage the law laid down in the case of
I.S.Sikandar [supra] cannot be relied upon.
j] The principle laid down in the case of
I.S.Sikandar [supra] cannot be relied upon also for the
reason that the termination of the agreement will have to be
proved and prima facie notices issued of termination of
agreement were not served on the defendant. The issuance
of the notice will have to be proved by the plaintiff and the
legal effect of the notice being not accepted by the
defendant. So also effect of termination whether the
plaintiff is legally bound by the same will have to be
considered at the final stage. Thus, the judgment relied
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upon in the case of I.S.Sikandar [supra] is not applicable to
the facts of the present case.
[ii] Now dealing with the second submission of the
appellant that the agreement to sell dated 07.05.2022
amounts to conveyance and that it is accessible to stamp
duty under the Maharashtra Stamp Act under Article 25
Schedule-I read with Explanation No.1 thereto, and in
absence of payment of stamp duty, the document cannot be
used for any purpose unless stamp duty is paid thereon in
terms of the provisions of the Stamp Act.
a] The Constitution Bench judgment in the case of
M/s. N.N.Global Mercantile Private Limited Vs. M/s. Indo
Unique Flame Ltd. & others reported in 2023 [6] SCALE
434 has held at para 74 as under :
74. The aforesaid statement appears apposite
in the context of an instrument which is
unstamped or insufficiently stamped. This is for
the reason that on the one hand as long as it is
not stamped or is insufficiently stamped, it is
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both liable to be impounded under Section 33
of the Stamp Act and it cannot be used as
evidence or registered. This is apart from the
unambiguous bar against ‘acting upon’ such an
instrument. On the other hand, if after such an
instrument is impounded and duty and penalty
is paid and a certificate is endorsed upon it
within the meaning of Section 42 (2) signals
that the instrument regains life, the bar in
Section 35 of the Stamp Act is removed
permanently. Equally, under Section 36 in the
case of an instrument (not secondary evidence
of the instrument) which is allowed to be let in
evidence without objection, then it would
qualify as evidence founding a right. But this is
an exception to the rule which is found in
Section 35 of the Stamp Act. Thus, an
unstamped or insufficiently stamped instrument
represents a case of an agreement which not
being enforceable, in the sense that the
sanctions in law through a civil action is
impermissible, is in the said sense, invalid. It is
not invalid or void in the sense of it being still
born or null and void in the sense that life
cannot be poured into it. We may sum up. An
agreement which is unstamped or insufficiently
stamped is not enforceable, as long as it
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remains in the said condition. Such an
instrument would be void as being not
enforceable [See Section 2 (g) of the Contract
Act]. It would not in the said sense exist in law.
It can be “validated” by only the process
contemplated in Section 33 and other
provisions of the Stamp Act. We find the
expression ‘validation’ used in the decision of
this Court in Hariom Agrawal v. Prakash Chand
Malviya which we shall refer to in greater detail
later. This necessarily means that the court
would not view it as enforceable, and therefore,
existing in law. In the sense explained, it would
not be found as ‘not void’ and therefore ‘not
invalid’. Thus, in the context of the Act, the
Stamp Act and the Contract Act, we are of the
view that the opinion of this Court in SMS Tea
Estates (supra), in this regard as reiterated in
Garware (supra) and approved in Vidya Drolia
(supra) is correct.
b] In the law laid down in the above case of
M/s.N.N.Global Mercantile Private Limited [supra] is that
the document on which the stamp duty is payable is not
paid fully, the document cannot be used for any purpose
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25.23AO
unless the same is impounded and the stamp duty is paid on
it. The document would be void for any purpose unless life
is instilled into the document by paying the stamp duty as
may be payable in compliance of Stamp Act.
c] In the instant case, we have to examine whether
the stamp duty is payable on the above agreement to sell
dated 07.05.2022 in terms of Article 25 Schedule-I read
with Explanation No.1 of the Maharashtra Stamp Act which
reads as under:
Description of Instrument Proper Stamp Duty
25. CONVEYANCE (not being a
transfer charged or exempted
under Article 59) -
On the [true market value]
of the property which is the
subject matter of the
Conveyance, -
[(a) if relating to movable
property
3 per cent, of the market value of
the property;]
[(b) if relating to immovable
property situated, -
(i) within the limits of any
Municipal Corporation or any
Cantonment area annexed to it or
any urban area not mentioned in
sub-clause (ii).
5 per cent, of the market value of
the property.
(ii) within the limits of any
Municipal Council or Nagar
[5 per cent,] of the market value of
the property.
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Panchayat or Cantonment area
annexed to it, or any rural area
within the limits of the Mumbai
Metropolitan Region Development
Authority, or the Influence Areas as
per the annual statement of rates
published under the Bombay Stamp
[Determination of True Market
Value of Property] Rules, 1995.
(iii) within the limits of any
Grampanchayat area or any such
area not mentioned in sub-clause
(ii).
[4 per cent,] of the market value of
the property.
(c) if relating to both movable
and immovable property.
The same duty as is payable under
clauses (a) and (b).
[(d) ***]
[(da) if relating to the order of
the High Court under Section 394
of the Companies Act, 1956 or the
order of the National Company
Law Tribunal under sections 230 to
234 of the Companies Act, 2013 or
confirmation issued by the Central
Government under sub-section (3)
of section 233 of the Companies
Act, 2013 in respect of the
amalgamation, merger, demerger,
arrangement or reconstruction of
companies (including subsidiaries
of parent company) or order of the
Reserve Bank of India under
section 44A of the Banking
Regulation Act, 1949 in respect of
amalgamation or reconstruction of
Banking Companies [and every
order made by the Board for
Industrial and Financial
Reconstruction under section 18 or
19 of the Sick Industrial
Companies (Special Provisions)
Act, 1985, in respect of sanction of
Scheme specified therein or every
order made by the National
Company Law Tribunal under
section 31 of the Insolvency and
10 per cent, of the aggregate of the
market value of the shares issued or
allotted in exchange or otherwise
and the amount of consideration
paid for such amalgamation :
Provided that, the amount of
duty, chargeable under this clause
shall not exceed, -
(i) an amount equal to [5 per
cent,] of the true market value of
the immovable property located
within the State of Maharashtra of
the transferor company; or
(ii) an amount equal to 0.7 per
cent, of the aggregate of the market
value of the shares issued or
allotted in exchange or otherwise
and the amount of consideration
paid, for such amalgamation,
whichever is higher :
Provided further that, in case
of reconstruction or demerger the
duty chargeable shall not exceed, -
(i) an amount equal to [5 per
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Bankruptcy Code, 2016, in respect
of approval of resolution plan.]]
cent,] of the true market value of
the immovable property located
within the State of Maharashtra
transferred by the Demerging
Company to the Resulting
Company; or
(ii) an amount equal to 0.7 per
centum of the aggregate of the
market value of the shares issued or
allotted to the Resulting Company
and the amount of consideration
paid for such demerger, whichever
is higher.]
Exemption
Assignment of copyright under
the Copyright Act, 1957 (IXV of
1957).
[Explanation I.] - For the
purposes of this article, where in
the case of agreement to sell an
immovable property, the
possession of any immovable
property is transferred [or
agreed to be transferred] to the
purchaser before the execution,
or at the time of execution, or
after the execution of, such
agreement [***] then such
agreement to sell shall be deemed
to be a conveyance and stamp
duty thereon shall be leviable
accordingly:
Provided that, the provisions
of section 32A shall apply mutatis
mutandis to such agreement which
is deemed to be a conveyance as
aforesaid, as they apply to a
conveyance under that section :
Provided further that, where
subsequently a conveyance is
executed in pursuance of such
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25.23AO
agreement of sale, the stamp duty,
if any, already paid and recovered
on the agreement of sale which is
deemed to be a conveyance, shall
be adjusted towards the total duty
leviable on the conveyance.]
[Provided also that where
proper stamp duty is paid on a
registered agreement to sell an
immovable property, treating it as a
deemed conveyance and
subsequently a conveyance deed is
executed without any modification
then such a conveyance shall be
treated as other instrument under
section 4 and the duty of the one
hundred rupees shall be charged.]
d] The relevant portion of the agreement to sell
dated 07.05.2022 relating to transfer of possession of the
suit land reads as under :
असे कक, ललहून घेणार मदनलाल देसरडा यांनी संपूणर रकम
1,01,00,000 (अकरी एक कोटी एक लाख रपये)
कदलयानंतर ललहून देणार मनीषा बाळकृ षण कोदे खटला क.
आर.सी.एस. २८७/२०१६ हा खटला कोटारतून काढून
घेतील व खरदे ीखत करन देतील, तसेच सदरील
कमळकतीचा ताबा तयाच कदवशी ललहून घेणार यांना देतील.
e] The true translation of the aforesaid portion of
the agreement to sell dated 07.05.2022 reads as under:
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25.23AO
That, Manisha Balkrishna Kode, the vendor
shall withdraw the R.C.S.No. 287/2016 after
receiving the payment of the entire amount of
Rs.1,01,00,000/- [Rs.One crore and one lakh
only] from Madanlal Desarda, the vendee, and
shall execute the sale-deed so also possession of
the property will be given on the same day.
f] On the bare reading of the aforesaid agreement
to sell, in order to attract the above article 25 and more
particularly the explanation thereto and to ascertain
whether stamp duty is required to be paid on the document,
it is necessary that under the agreement to sell, the
purchaser has to be put in possession of the immovable
property before the agreement or at the time of agreement
or at a subsequent date. However, possession of the
property has to be transferred or agreed to be transferred by
the vendor to the purchaser in pursuance of the agreement
to sell. If the possession of the immovable property is
already with the purchaser, then the possession of the
immovable property should be continued to be held by the
purchaser under the agreement to sell.
g] Above relevant portion quoted from the
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25.23AO
agreement to sell dated 07.05.2022 would indicate that the
possession of suit land is not parted in pursuance of the
agreement to sell but it is stipulated in the said agreement
to sell that on payment of balance amount of
Rs.1,01,00,000/-, the sale deed would be executed and the
purchaser would be put in possession of the property on the
same date. Thus, prima facie possession of land is not given
in pursuance to the agreement to sell but would be given
under the sale deed which would be executed on payment
of balance consideration.
h] I am of the view that the above article is not
applicable to the present document and the transaction
under the agreement to sell dated 07/5/2022 is not a
‘conveyance’ as stipulated within the said article and thus
stamp duty is not payable in terms of Article 25 of the
Maharashtra Stamp Act on the above agreement to sell. As
such, the law laid down in the case of M/s. N.N.Global
Mercantile Private Limited Vs. M/s. Indo Unique Flame
Ltd. & others [supra] is not applicable to the facts of the
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25.23AO
instant case.
i] It is also held in the cases of Balasaheb
Sahebrao Jadhav Vs. Hanumant Bhaurao Deshmukh
reported in 1995 (1) Mh.L.J. 473 and Pitamber Kanhayalal
Khattar & another Vs. Sadanand Harishchandra Honawar
reported in 2007 (1) Mh.L.J. 816 that the stamp duty is
applicable under Article 25 of the Maharashtra Stamp Act
only in cases where the property is handed over to the
purchaser in pursuance of the agreement to sell.
[iii] Now coming to the next submission of the
appellant that agreement to sell dated 07.05.2022 ought to
have been compulsorily registered under the provisions of
Section 17 (1-A) and 17 (2) (v) of the Indian Registration
Act. Relevant part of Section 17 of the Indian Registration
Act reads as under :
17. Documents of which registration is
compulsory. – (1) the following documents shall
be registered, if the property to which they
relate is situate in a district in which, and if they
have been executed on or after the date on
which, Act XVI of 1864, or the Indian
Registration Act, 1866, or the Indian
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Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or
comes into force, namely :-
(a) ...
(b) other non-testamentary instruments
which purport or operate to create, declare,
assign, limit or extinguish, whether in present
or in future, any right, title or interest, whether
vested or contingent, of the value of one
hundred rupees and upwards, to or in
immovable property;
(c) …
(d) …
(e) ...
[(1-A) The documents containing
contracts to transfer for consideration, any
immovable property for the purpose of section
53-A of the Transfer of Property Act, 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 53-
A.]
(2) Nothing in clauses (b) and (c) of subsection
(1) applies to -
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(v) [any document other than the documents
specified in sub-section (1-A)] not itself
creating, declaring, assigning, limiting or
extinguishing any right, title or interest of the
value of one hundred rupees and upwards to or
in immovable property, but merely creating a
right to obtain another document which will,
when executed, create, declare, assign, limit or
extinguish any such right, title or interest; or
a] The law on the subject i.e. when the document
becomes compulsorily registerable under Section 17 of the
Indian Registration Act is discussed by the Hon’ble Supreme
Court in the following case :
b] The Hon’ble Supreme Court in the case of
Tehmi P. Sidhwa and others V. Shib Bannerjee and sons Pvt.
Ltd. & another reported in AIR 1974 SC 1912 at para no.5
held as under :
5. It would be noticed that the award itself
does not purport or operate to create, declare,
assign, limit or extinguish, whether in present
or in future any right, title or interest, whether
vested or contingent, of the value of one
hundred rupees and upwards in respect of the
immoveable property, as contemplated under
Section 17 (1) (b) of the Registration Act. It
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25.23AO
merely creates a right to obtain another
document which will, when executed, create,
declare, assign, limit or extinguish any such
right, title or interest. The award directs Shib
Banerjee and Sons Private Ltd. to execute such
documents as may be necessary for declaring
the one-fourth share of the appellants in the
said property and also to execute such
documents as may be necessary for transferring
the said property and the lease from the Delhi
Improvement Trust to the Joint names of
themselves and the appellants. It, therefore,
squarely falls under Section 17 (2) (v) of the
Registration Act.
c] In the case of K. Arumuga Velaiah Vs. P. R.
Ramasamy and another reported in (2022) 3 SCC 757 at
para no.45 has held as under:
45. ………… The test in such a case is
whether the document itself creates an interest
in a specific immovable property or merely
creates a right to obtain another document of
title. If a document does not by itself create a
right or interest in immovable property, but
merely creates a right to obtain another
document, which will, when executed create a
right in the person claiming relief, the former
document does not require registration and is
accordingly admissible in evidence vide
Rajangam Ayyar v. Rajangam Ayyar.
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d] In the instant case, perusal of agreement to sell
would indicate that it only gives right in favour of the party
to get sale deed executed of the immovable property, on
payment of balance consideration and thus in terms of the
law laid down in the case of Tehmi P. Sidhwa [supra] and K.
Arumuga Velaiah [supra] the document i.e. the agreement
to sell merely creates a right to obtain another document of
title. Since the agreement to sell does not by itself create a
right or interest in immovable property, but merely creates a
right to obtain another document, which will, when
executed creates a right in the person claiming relief, the
agreement to sell does not require registration and is
accordingly admissible in evidence and will be covered with
the scope of Section 17(2)(v).
[iv] Coming to the next submission of the appellant
with respect to the amended Section 17 (1) (1-A) of the
Registration Act.
a] The amended provisions of Section 17 (1-A)
came to be inserted by Act No.48 of 2001 with effect from
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24.09.2001 by which the documents containing contracts to
transfer for consideration any immovable property for the
purpose of Section 53-A of the Transfer of Property Act shall
be registered.
b] For applicability of Section 53A of the Transfer
of Property Act, 1882, the property has to be put in
possession of the transferee in part performance of the
contract and if the transferee is already in possession of the
property, the transferee should continue to hold the
property in part performance of the contract, and should
have done some act in furtherance of the contract.
c] The Hon’ble Supreme Court in the case of
R.Hemalatha Vs. Kashthuri [Civil Appeal No.2535/2023 @
SLP © No.14884/2002, decided on April 10, 2023]
reported in 2023 LiveLaw (SC) 304 at para nos.12 and 13
held as under :
12. At this stage, it is required to be noted
that the proviso to Section 49 came to be
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25.23AO
inserted vide Act No. 21 of 1929 and thereafter,
Section 17 (1A) came to be inserted by Act No.
48 of 2001 with effect from 24.09.2001 by
which the documents containing contracts to
transfer or consideration any immovable
property for the purpose of Section 53 of the
Transfer of Properties Act is made compulsorily
to be registered if they have been executed on
or after 2001 and if such documents are not
registered on or after such commencement,
then there shall have no effect for the purposes
of said Section 53A. So, the exception to the
proviso to Section 49 is provided under Section
17 (1A) of the Registration Act. Otherwise, the
proviso to Section 49 with respect to the
documents other than referred to in Section 17
(1A) shall be applicable.
13. Under the circumstances, as per proviso
to Section 49 of the Registration Act, an
unregistered document affecting immovable
property and required by Registration Act or the
Transfer of Property Act to be registered, may
be received as evidence of a contract in a suit
for specific performance under chapter-II of the
Specific Relief Act, 1877, or as evidence of any
collateral transaction not required to be effected
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by registered instrument, however, subject to
Section 17 (1A) of the Registration Act. It is not
the case on behalf of either of the parties that
the document / Agreement to Sell in question
would fall under the category of document as
per Section 17 (1A) of the Registration Act.
Therefore, in the facts and circumstances of the
case, the High Court has rightly observed and
held relying upon proviso to Section 49 of the
Registration Act that the unregistered document
in question namely unregistered Agreement to
Sell in question shall be admissible in evidence
in a suit for specific performance and the
proviso is exception to the first part of Section
49.
d] Thus, the Hon’ble Supreme Court in the case of
R.Hemalatha Vs. Kashthuri [supra] has held that the
amended Section 17 (1A) of the Registration Act makes the
document containing a contract to transfer for consideration
any immovable property for the purpose of Section 53A of
the Transfer of Property Act compulsory to be registered. If
the document is executed on or after 2001 and if such
document is not registered then the document shall be of no
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25.23AO
effect for the purpose of said Section 53A of the Transfer of
Property Act. Thus, exception to the proviso to Section 49 is
provided under Section 17 (1A) of the Registration Act.
However, in the instant case possession of the
immovable property / suit land is not transferred to the
purchaser under the agreement to sell and thus the
agreement to sell is also not compulsorily registerable under
the amended provision of Section 17 (1) (1-A) of the Indian
Registration Act.
[v] Coming to the next submission raised by the
appellant that there is impossibility in performance of the
part of the agreement to sell and unless the agreement is
rectified by following process as available under the Specific
Relief Act, the defendant is entitled to resile from the said
agreement.
a] Clause of the agreement to sell dated
07.05.2022 indicates that on receipt of payment of
Rs.1,01,00,000/-, the appellant – defendant would
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withdraw the Regular Civil Suit No.287 of 2016 and
registration of the sale deed would be done on the same
date and possession will also been given on the same date.
b] Apparent error in the clause of the said
agreement is that Regular Civil Suit No.287 of 2016 is filed
by the plaintiff and that it is the plaintiff, who would be
making the payment of Rs.1,01,00,000/- to the defendant
and relevant clause in the agreement to sell would indicate
that it is the defendant, who would withdraw Regular Civil
Suit No.287 of 2016, as such, it is impossible to comply
with the above term of the agreement and it cannot be
executed.
c] Bare reading of the agreement would indicate
that on payment of balance consideration, sale deed would
be executed and possession of the suit land would be given
to the plaintiff / vendor. The concern of the plaintiff /
vendor is that there should not be any surviving litigation of
the suit land thereafter. Thus, the obvious interpretation of
the above clause would mean that the plaintiff will
withdraw the suit and the defendant would unconditionally
allow the plaintiff to withdraw the suit. However, even if
there is error in drafting the above clause, the clause is not
such that it would frustrate the contract or make the
defendant liable for action and that the agreement cannot
be frustrated on account of minor error in the agreement,
which would not fasten any liability on the defendant.
d] The aspect of withdrawing the suit cannot be
held against the defendant apparently because appeal is
filed by the plaintiff, so also the payment would be done by
the plaintiff himself towards balance consideration. Thus it
is not possible for defendant to withdraw the appeal and the
same will have to be done by the plaintiff without any
objection by the defendant. Error of such nature cannot
frustrated the entire agreement to sell. The intention of the
parties is that the person making the payment does not wish
to have Regular Civil Appeal continue and as such Regular
Civil Appeal will have to be withdrawn as on the date of
balance payment being made and defendant would not
contest the same before the appellate Court at the stage of
withdrawal in any manner.
[vi] Now dealing with the next submission of the
plaintiff that agreement to sell dated 13.09.2022 produced
during the course of hearing of Exh.5 application that the
defendant is attempting to sell the suit property to a third
person and the said fact could not have been relied upon by
the trial Court to clamp injunction on the defendant.
However, even before this Court the defendant is not
submitting that the defendant would not create third party
interest in the property.
27] Thus, the trial Court was well within its
jurisdiction to pass order of injunction as apprehension of
the plaintiff that the appellant / defendant is likely to create
third party interest is not ill-founded.
28] All other submission raised by the appellant is
not germane to the decision of Exh.5 application and has to
be considered at final stage of the suit.
29] In the case of Wander Ltd. and another Vs.
Antox India P. Ltd. reported in 1990 [Supp] SCC 727, the
Hon’ble Supreme Court has considered the jurisdiction of
the appellate court in interfering with the discretion
exercised by the trial court in granting or refusing
injunction and has held as under :
13. On a consideration of the matter, we are
afraid, the appellate bench fell into error on two
important propositions. The first is a
misdirection in regard to the very scope and
nature of the appeals before it and the
limitations on the powers of the appellate court
to substitute its own discretion in an appeal
preferred against a discretionary order. The
second pertains to the infirmities in the
ratiocination as to the quality of Antox’s alleged
user of the trademark on which the passing-off
action is founded. We shall deal with these two
separately.
14. The appeals before the Division Bench
were against the exercise of discretion by the
Single Judge. In such appeals, the appellate
court will not interfere with the exercise of
discretion of the court of first instance and
substitute its own discretion except where the
discretion has been shown to have been
exercised arbitrarily, or capriciously or
perversely or where the court had ignored the
settled principles of law regulating grant or
refusal of interlocutory injunctions. An appeal
against exercise of discretion is said to be an
appeal on principle. Appellate court will not
reassess the material and seek to reach a
conclusion different from the one reached by
the court below if the one reached by that court
was reasonably possible on the material. The
appellate court would normally not be justified
in interfering with the exercise of discretion
under appeal solely on the ground that if it had
considered the matter at the trial stage it would
have come to a contrary conclusion. If the
discretion has been exercised by the trial court
reasonably and in a judicial manner the fact
that the appellate court would have taken a
different view may not justify interference with
the trial court’s exercise of direction. After
referring to these principles Gajendragadkar, J.
in Printers (Mysore) Private Ltd. V. Pothan
Joseph :
“….These principles are well established,
but as has been observed by Viscount
Simon in Charles Osenton & Co. v.
Jhanaton. ‘….the law as to the reversal by
a court of appeal of an order made by a
judge below in the exercise of his
discretion is well established, and any
difficulty that arises is due only to the
application of well settled principles in an
individual case.”.
The appellate judgment does not seem to defer
to this principle.
30] The discretion exercised by the trial Court in
granting injunction is a discretionary remedy and the
appellate Court would not ordinarily interfere with the
discretion exercised by the trial Court. Interference in the
discretion exercised by the trial Court would be only, if it is
perverse or that discretion should not be exercised at all on
the material produced.
31] In the instant case, the defendant has not
denied the execution of the agreement to sell dated
07.05.2022 but has contended that the agreement to sell
was entered into under coercion. However, the defendant
had kept the money received under the agreement of Rs.10
lakh in her account for more than 5 months. Thus, prima
facie agreement cannot be said to be under coercion as
there is no steps taken by the defendant to return the
amount, rather the defendant has kept money in her
account and effect thereto is to be examined before the trial
court and thus no interference is called for at this stage, in
the order passed by the trial Court.
32] The plaintiff in the course of submission had
submitted that she is ready and willing to deposit the entire
amount if so directed by this Court. Since the defendant has
not responded to the same, it is open for the defendant to
move an appropriate application to seek direction to deposit
the consideration amount before the trial Court.
33] In the fact situation, the trial Court is directed
to decide the suit as expeditiously as possible and in any
event within a period of one year from the date of receipt of
the order of this Court. Parties to cooperate with Court and
not seek adjournments in the matter. The trial Court to
decide the suit on its own merits without being influenced
by any observations of this Court.
34] In view of above, the Appeal from Order is
disposed of accordingly.
35] In view of disposal of the Appeal from Order,
pending Civil Application does not survive and the same
stands disposed of.
[ARUN R. PEDNEKER]
JUDGE
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