Mrs. Renu Singh W O Navin Singh Vs Ms Allied Construction and Ors.

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10-sa-261-2023.doc

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Nikita

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.261 OF 2023

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WITH
INTERIM APPLICATION NO.3435 OF 2023

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IN

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SECOND APPEAL NO.261 OF 2023

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NIKITA KAILAS DARADE

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Digitally signed by NIKITA KAILAS DARADE Date: 2023.12.14 18:03:53 +0530

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Renu Navin Singh… Appellant
V/s.

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M/s. Allied Construction and Ors.… Respondents

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Mr. Sandesh Patil i/b Chintan Shah for the Appellant.

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CORAM :AMIT BORKAR, J.

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DATED:DECEMBER 14, 2023

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P.C.:

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1.The appellant is original defendant in Special Civil Suit
No.671 of 2022. The respondent No.1 filed the suit seeking relief
of declaration that the agreement dated 6th December 1996 and 4th
February 2000 executed in favour of appellant by plaintiff be
declared to be cancelled. Further declaration is sought that the
appellants have no right at the interest in the suit shop and
injunction restraining appellant from creating third party rights.
Decree for possession of suit premises is also sought.

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2.The appellant filed written statement contending that the
plaintiff executed agreement as per provisions of Maharashtra
Ownership Flats (Regulation of the Promotion of the Construction,
Sale, Management and Transfer) Act, 1963. Total agreed

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1

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10-sa-261-2023.doc

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consideration for suit shop was of Rs.20,05,000/-. Defendant paid
Rs.15,00,000/- by cheque. He denied that such cheque was
dishonoured. Balance consideration of Rs.3,30,000/- was not paid
as completion certificatewas not obtained by the plaintiff. Plaintiff
mischievously avoided to register document of agreement to sale
which is an offence under Section 13 of Maharashtra Ownership
Flats (Regulation of the Promotion of the Construction, Sale,
Management and Transfer) Act, 1963. In the additional written
statement, defendant raised defense that agreement executed in
her favour is valid and substantive.

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3.The Trial Court framed issues regarding payment of
consideration by defendant to the plaintiff. It also framed issue of
breach of agreement dated 6th December 1996 and supplementary
agreement and issues as to whether the plaintiff is entitled to get
possession. The Trial Court dismissed the suit holding that the
defendant failed to prove entire consideration paid to the plaintiff
as per agreement. The Trial Court held that possession of the
appellant cannot be on the ground that plaintiff has remedy to file
suit for recovery of unpaid purchase price of suit shop and
appellant deserves to be protected by virtue of agreement dated 6th
December 1996 and supplementary agreement dated 4th February
2000.

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4.The plaintiff filed appeal before the District Court. The
District Judge allowed the appeal holding that the agreement of
sale executed by plaintiff in favour of defendant (appellant) were
unregistered document. Defendant failed to pay total consideration
of Rs.20,00,000/- and the defendant is not entitled to claim

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2

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10-sa-261-2023.doc

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defense of part performance.

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5.I have heard learned advocate for the appellant. According
to him, the defendant is entitled to the benefit of agreement
entered into between the parties as per the provisions of
Maharashtra Ownership Flats (Regulation of the Promotion of the
Construction, Sale, Management and Transfer) Act, 1963. The
findings recorded by the Appellate Court that Rs.15,00,000/- was
not paid is perverse. According to him proper remedy is to file suit
for recovery of balance amount.

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6.I have considered submissions. On perusal of the plaint, it
appears that apart from claiming declaration that the agreement to
sale executed between the parties stands cancelled, plaintiff’s
claimed possession of property. Plaintiff’s ownership over the suit
shop was not in dispute, atleast on the date of execution of the
agreement to sale. Question, therefore, arises for consideration is
whether by virtue of agreement to sale and supplementary
agreement, title of the suit property passed in favour of defendant.
There is no recital in the agreement which confers ownership on
the defendant. The defendant, therefore, cannot claim ownership
over the suit shop. It is not in dispute that the agreement to sale in
question is unregistered. The defendant, therefore, cannot claim of
transfer of ownership passed on unregistered suit.

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7.There is no pleading in the written statement nor the Courts
below have framed issue regarding defendants protection under
Section 53 (A) of the Transfer of property Act, 1882.

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8. No other provision of statute or contract is brought to the

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3

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10-sa-261-2023.doc

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notice to suggest that defendant is entitled to protection of his
possession. Therefore, in absence of registered instrument
transferring ownership of suit shop, plaintiff being owner of the
property is entitled to a decree of possession. The Appellate Court
was, therefore, rightly decreed plaintiffs suit. No substantial
question of law arises for consideration.

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9. The second appeal stands dismissed. No costs.

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10. In view of dismissal of second appeal, the interim application
stands disposed of as infructuous.

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(AMIT BORKAR, J.)

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Mrs. Renu Singh W O Navin Singh v. Ms Allied Construction and Ors.

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Mrs. Renu Singh W O Navin Singh v. Ms Allied Construction and Ors.

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