- (1.) THIS is an appeal of the plaintiff/appellant from the judgment and order dated 17th May, 2008 passed by concerned Civil Judge (Senior Division), Gautam Budh Nagar. By making this appeal the plaintiff/appellant contended before this Court that the appellant has instituted a suit for specific performance and injunction before the Court below on the basis of Memorandum of Understanding (hereinafter called as M. O. U.) to purchase the immovable properties of the defendant/respondent company at least in a sum of Rs. 9. 0 crore or so. By this time they have paid about Rs. 3. 0 crore and odd. Therefore, they are supposed to get an order of injunction to prevent the apprehension of alienation of property to a third party. On a specific query of this Court on this point, it has been contended by Mr. H. Upadhyay, learned counsel appearing in favour of the plaintiff/appellant that the apprehension is apparent from the paragraph 11 of the written statement already filed by the defendant/respondent in the Court below. However, at the time of refusal of grant of interim order the Court below held as follows : "prime facie case.-The plaintiff has stated that the plaintiff and defendant entered into a M. O. U. for the sale of disputed plot No. 34-C, Greater noida to the plaintiff, on which basis plaintiff gave Rs. 3,20,74,752/- as an advance and the remaining amount was to be paid at the time of sale but the defendant is now not ready to sell the plot. In this way the basis of the present suit is M. O. U. dated 27. 3. 2007 the photocopy whereof is available on record as paper No. 10-C from perusal of which it is evident that if there is an agreement between the parties, there must be terms and conditions of that agreement and at pages 1 and 2 of M. O. U. it is categorically recorded that after fulfillment of terms and conditions of M. O. U. agreement to sale shall be executed between the parties. It is evident that agreement to sale has not been executed between the parties. In para 3 to page 5 of the M. O. U. executed between the parties it is further evident that after completing all the sale proceedings the possession of property in question shall be given to the plaintiff which makes clear that the plaintiff is not even holding possession on the property in question. In these circumstances plaintiff has not made out prima facie case. Balance of convenience.-Mere executing M. O. U. between the parties has no legal sanctity because agreement to sale has not been executed between the parties, as on date. M. O. U. is also not registered. Mere payment of amount does not confer right to plaintiff nor the plaintiff occurs right on the property in question. Even plaintiff's possession is not on the property in question. In these circumstances, balance of convenience is not in favour of plaintiff. Irreparable loss.-As has been drawn conclusion at above that there is neither any agreement to sale nor a M. O. U. executed between the parties. Only making partial payment to the defendant by the plaintiff does not confer him (plaintiff) right on the property in question. M. O. U. is not registered. According to M. O. U. , the plaintiff does not have even possession on the property in question. In these circumstances, if temporary injunction is not passed in favour of plaintiff, he (plaintiff) will not suffer from irreparable loss. As has been drawn conclusion at above that the plaintiff has not made prima facie case, even the balance of convenience is not in favour of plaintiff. If temporary injunction is not passed in favour of plaintiff, he (plaintiff) will not suffer from irreparable loss. In these circumstances the plaintiff is not entitled to get temporary injunction. Accordingly, application 6-C is liable to be rejected. " (Emphasis supplied)
(2.) THE question arose before this Court is that whether the M. O. U. can be construed as agreement for sale and whether any document towards the agreement for sale would be compulsorily registrable or not.
(3.) ACCORDING to Mr. Upadhyay, learned Counsel appearing for the appellant section 17 (2) (v) of the Registration Act, 1908 speaks as follows : "any document other than the documents specified in sub-section (1-A)other than contract for sale not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit of extinguish any such right, title or interest. " however, according to us, provision of sub-section (1-A) under section 17 can not be avoided. Sub-section (1-A) is as follows : "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 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration (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. " section 53-A of the Transfer of Property Act, 1882 is quoted hereunder: "part performance.-Where any person contract to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty : and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the. time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. ";