(1.) Both the aforesaid applications were heard together as the points involved in both the matters are identical. Both these two applications owe their origin to the judgment and order dated 17th March, 2004. This order was passed on settlement being arrived at by and between the plaintiff on the one hand and the defendant Nos. 3 and 4 on the other. In view of the settlement and on the basis of suggestion given to the Court by both the parties this order was passed. In terms of this order the defendant No. 3 being the applicant of G. A. No. 3035 of 2004 was directed to transfer the property at Gagmohan Village, Lower Tank Bund Road, Hyderabad (hereinafter referred to as the said property) to the plaintiff in terms of the agreement dated 7th September, 2000 read with the agreement dated 12th September, 2002 for consideration of Rs. 21.10 crores. The plaintiff is directed to make ready at its own costs the stamp paper and complete all legal formalities required for registration within a period of eight weeks from the date of passing of the order.
(2.) The defendant No. 3 is directed to execute and register the sale deed with appropriate registration office at Hyderabad within a fortnight thereafter. The registration fees and expenses incidental to the registration shall be borne by the plaintiff. In default of defendant No. 3 executing and registering the said sale deed as aforesaid Registrar Original Side is directed to execute and register the said sale deed in the name and on behalf of the defendant No. 3. For the time being it is the complaint of the defendant No. 3 as stated in their application that in spite of doing all things necessary the plaintiff has not performed of its part in terms of the aforesaid order by not making sale deed ready on stamp paper and complete all legal formalities for registration within a period of eight weeks. The plaintiff in violation of the aforesaid direction did not bear and pay the registration fees and expenses incidental to registration. So, the plaintiff has prayed for direction upon the defendant to deposit a sum of Rs. 2,22,1050/- with the Registrar High Court Original Side on account of stamp duty, registration fees and expenses incidental to registration. Further direction that the Registrar High Court Original Side do sign and execute sale deed for the property on behalf of the plaintiff in terms of the said order dated 17th March 2004; direction upon the plaintiff to deposit a sum of Rs. 33.000/- to the petitioner on account of travelling and lodging expenses of the petitioner's representative for registration of the sale deed at Hyderabad; Injunction restraining the plaintiff from withdrawing any money from its bank account without leaving therein a balance of the sum of Rs. 2,22,10,050.13.
(3.) The plaintiff on the other hand has complained against the defendant No. 3 of non-performance in terms of the aforesaid judgment and order, contending that the defendant No.3 has failed to make out marketable title and further to make property free from all encumbrances in terms of the aforesaid judgment and order read with the agreement. It is alleged that the defendant No. 3 has not acquired marketable title of this property by reason of the fact that the compromise order and or decree dated 27th July, 1998 passed in suit being No. 1564 of 1997 in the learned Court of the 7th Junior Civil Judge, City Civil Court, Hyderabad, and further that the suit which was pending at the time of the passing of the aforesaid order for eviction of some of the occupants from a portion of this property admeasuring about 3950 sq. meters has been dismissed and an appeal has been preferred against such dismissal which is still pending. As such until and unless the aforesaid defect is cured the said property cannot be said to be free from all encumbrances. This has been detected after the aforesaid judgment and order dated 17th March of 2004 was passed. These points have also been taken in the affidavit in opposition of the plaintiff in the applications of the defendant No. 3. In this execution application the following reliefs have been asked for. (a) A Receiver be appointed to forthwith take actual possession of the property known as Rose Biscuit Property under T. S. No. 6/01/, 6/02 and 6/03 (A) 55 Gagmohan Village, Mahieerbad Taluk, M No. 1-2-528- 591, Lower Tank Bund Road, Hyderabad, measuring 48.44 acres with boundaries. (b) Receiver be directed to sell the aforesaid property by private treaty or by public auction with an option to the plaintiff/decree holder to bid for the aforesaid property with special confirmation by this Hon'ble Court. (c) The Receiver be directed to hand over sale proceeds to the plaintiff/decree holder in protanto satisfaction of the decree.
(4.) At. first 1 consider whether the reliefs claimed in the tabular statement can be granted or not. In my view the prayers made in the execution application are sheer abuse of the process of the Court and such prayers are rejected outright as if the reliefs are granted the same will have the effect of nullifying of the order passed already by this Court on suggestion and if not on compromise dated 7th March, 2004. The order which is ought to be executed, speaks of sale of the property by the defendant No. 3 in favour of the plaintiff applicant, where as in this execution application fresh order of sale is asked for through the mode of appointment of the Receiver.
(5.) As such this execution application is dismissed with costs assessed at l00G.Ms.
(6.) Now the question is as to whether defendant No. 3 can get any relief in its application on the basis of aforesaid order or not. In other words whether plaintiff has got valid and lawful objection to the order being carried out.
(7.) Mr. D. Banerjee, learned senior Counsel appearing for the defendant No. 3 in support of his client as above submits that there has been a gross failure if not disregard to the order of this Court on part of the plaintiff by not making sale deed ready on stamp paper and complete all legal formalities for registration within a period of eight weeks. The plaintiff has not shown any interest to bear and pay registration fees and expenses incidental to registration. Defendant No. 3 was and still is ready and willing to do all things necessary. In view of non-performance in terms of the aforesaid decree his client is in a position to complete the deal.
(8.) He contends that although the order provides for remedial measure in case of default of the defendant No. 3 by asking the Registrar Original Side to execute and register necessary conveyance, where as there is no such remedial measure for failure on part of the plaintiff. On the other hand the plaintiff instead of complying with the direction given above by this Court, has been trying to delay and/or defeat if not frustrate the aforesaid order to be carried out. The plaintiff had made frivolous application for contempt alleging violation of order dated 17th March, 2004 against his client. Such contempt application has been dismissed and Appeal court has also affirmed the order of dismissal on appeal being preferred against the order of dismissal of contempt application.
(9.) He contends that the objection raised by the plaintiff as regard compliance of the order dated 17th March, 2004 is not at all tenable under the law. This order has become final and no appeal has been preferred. It will appear from the records, that by its act and conduct the plaintiff has accepted the said order. His client's obligation is to execute and register conveyance in terms of the agreement dated 7th March 2000 read with that of dated 12th June, 2002.
(10.) He contends both the agreements have to be read as a whole. In the agreement dated 7th September, 2000 and also subsequent agreement which was specifically made known to the plaintiff with an area of 3960 sq. meters of the said property was in possession of a trespasser and eviction suit was pending. No obligation is attached in the said agreement that his client will give vacant possession and the order does not say either. His client never agreed nor there has been any order by this Court that the vacant possession of the said property is to be given to the plaintiff on getting the trespasser vacated. Whatever objections and contentions now raised by the plaintiff have been and/or are deemed to have been raised at the time of dismissal of the aforesaid applications. After considering all the objections of this Court has passed order. He further contends that the execution of conveyance of the entire property was not at all depending upon obtaining vacant possession of the suit property.
(11.) His next contention as regard title to the property is that by the decree dated 27th July, 1998 there has been a declaration of title in favour of the defendant No. 3 and this decree was registered with registration office of Bombay in 1998. He contends that under Section 17(2)(vi) of the Registration Act, 1908 by way of exception this kind of decree is not required to be registered as being excepted category. This legal position has been settled by judgment of the Supreme Court reported in AIR 1996 SC 1293. Notwithstanding this legal position the said decree was registered in Mumbai. Under Section 13(2) the Registrar of Mumbai had power to register documents relating to properties situated anywhere in India. The said provision has been subsequently deleted. He contends the amendment of Registration Act in Andhra Pradesh could not take away power of the Registrar of Mumbai. However, his client is agreeable to ask Indian Express Newspapers Bombay to join as a party to this conveyance to confirm the transaction. This proposal was made by the plaintiff by its letter dated 22nd April, 2004 and this has also been accepted by the plaintiff.
(12.) Mr. A. K. Mitra learned senior Counsel submits that registration of execution of the conveyance could not arid cannot be completed in terms of the aforesaid order, because of failure of the defendant No. 3 in not making the property free from all encumbrances for the following reasons : (i) the defendant No. 3 had claimed title on the basis of compromise decree dated 27th July 1998 between Express Publications (Madurai) Ltd. and Indian Express Newspaper (Bombay) Ltd. in suit being No. 1564 of 1997 passed by the learned Court of the 7th Junior Civil Judge, City Civil Court, Hyderabad. According to it the said compromise decree needed registration under Section 17(2) (vi) of the Registration Act. 1908. The said decree had been registered in the Bombay Register of Assurance but the same has to be registered in the sub registry within whose sub- district the property situate vide Section 29(2) of the Registration Act. He contends further irt view of the Andhra Pradesh Amendment to the Registration Act the registration in Bombay has no legal effect at all because the Registrar Presidency town in Mumbai did not enjoy power to receive and register conveyance. Under such circumstances it is clear that the defendant No. 3 had no title to the property. (ii) The defendant No. 3 had no title over 3960 sq. meters of Hyderabad property over which there were occupants and a suit filed by the defendant No. 3 being OS 579 of 1999 in the Court of Additional Judge City Civil Court Hyderabad had been dismissed on 31st March, 2004 on the ground that these occupants were declared to have acquired right on the strength of adverse possession. It is true the factum of pendency of the suit was mentioned in the agreement dated 7th September, 2000 in its recital portion but in the habendum part of the agreement it has been stated that the defendant No. 3 would transfer the property free from all encumbrances. It is settled position of law that the habendum part of the agreement will take precedence over the recital.
(13.) Thus according to him there is breach of warranty of title under Section 55 of the Transfer of Property Act. Moreover, he submits that in view of provisions of Sections 17 to 21 of the Specific Relief Act and further Order 21, Rule 32 of the Code of Civil Procedure the direction can be issued by this Court to release the property in favour of the plaintiff to the extent, which is available without any encumbrance.
(14.) I have heard respective contentions of the learned Counsels of the parties, and 1 have gone through the statements and averments made in the respective applications. It appears to me the contentions of the parties involved in this matter relate to execution, satisfaction of the decree and order passed on 17th March, 2004 on suggestion and consent of the parties. It appears to me further that the order passed is very clear in terms, and there cannot be any ambigutty whatsoever for implementation of the same. The relevant portion of the order and decree are set out hereunder : "And it is ordered and decreed that the defendant No. 3. Express Publication (Madurai) Ltd. do transfer the said property at Gagnanmohan Village, Lower Tank Bund Road, Hyderabad, fully described in the Schedule-C herein written to the plaintiff in terms of the said agreement dated 7th day of September, 2000 read with agreement 12th day of June, 2002 for consideration of Rs. 21 crores 10 lakhs only. And it is further ordered and decreed that plaintiff shall make ready the sale deed between it and the defendant No. 3, Express Publication (Madurai) Ltd. on stamp paper at its own costs and complete all legal formalities required for registration within a period of 8 weeks from the date hereof and the said sale deed ought to be specifically performed and carried out into execution and the same is ordered and decreed accordingly. And it is further ordered and decreed that the defendant No. 3 Express Publication (Madurai) Ltd. do execute and register the sale deed with the appropriate registration office at Hyderabad within a fortnight thereafter. It is further ordered and decreed that the plaintiff shall pay and bear the registration fees, and expenses incidental to the registration and in default of executing the said sale deed by the defendant No. 3, Express Publication (Madurai) Ltd. as aforesaid. It is further ordered and decreed that the learned Registrar Original Side shall execute and register the said sale deed in the name of and on behalf of the defendant No. 3 Express Publication (Madurai) Ltd."
(15.) It is thus clear that unless there is compliance of direction by the plaintiff by making the sale deed ready on the stamp paper at its own costs and further by completing all legal formalities required for registration within a period of 8 weeks from the date of passing of the order, the defendant No. 3 cannot perform its part by executing and registering document. In the decree there is no provision for the alternative method to be taken by the defendant No. 3 in case of failure of the plaintiff. But then the aforesaid direction contained in the decree cannot be said to be an infructuous one and the same can be enforced on proper execution application. Admittedly there has been no appeal against the aforesaid order by either of the parties rather the plaintiff had accepted the said Order, by making application for contempt unsuccessfully previously, complaining deliberate violation of the same by the defendant No. 3. It is an admitted position the plaintiff has not carried out the aforesaid direction by making the sale deed ready. The plea for non-performance on part of the plaintiff is that the defendant No. 3 has failed to make out marketable title as the compromise decree dated 27th July 1998 between Express Publication (Madurai) Ltd. Indian Express Newspaper (Bombay) Ltd. in suit No. 1564 of 1997 has not been registered in accordance with law, as such the defendant No. 3 has acquired no title to the property. According to Mr. Mitra the learned Counsel appearing for the plaintiff the Registration in Bombay registry is not the lawful registration as by virtue of State Amendment of Andhra Pradesh being Act No. 13 of 1966 the Registrar at Bombay has no power to register the said compromise decree under Section 30(2) of the Registration Act, 1908. Further objection as regard title of the defendant No. 3 is that the suit which is pending at the time of the passing of the said order in the appropriate Civil Court at Hyderabad involving the said property has been dismissed.
(16.) Thus the objections are sought to be advanced as regard executability and acceptability of the aforesaid decree.
(17.) So far as the first point is concerned I find that there was some debate as to whether the compromise decree declaring the title of the property by the Civil Court was required to be registered under Section 29(2) of the Registration Act or not, if required, then whether registration in Bombay registry is sufficient compliance of the Registration Act or not. Both the learned Counsels had advanced argument in their own way on this subject. It appears from Section 17(2) clause 6 of Registration Act an exception has been curved out so far the decree or order of a Court is concerned, except a decree or order expressed to be made on a compromise, and compromising immovable property other than that which is the subject-matter of the suit or proceeding, from compulsory registration. The aforesaid relevant portion of that Section is quoted hereunder : "Nothing in clauses (b) and (c) of sub-section (1) applies to - .........(vi) any decree or order of a Court (except a decree or order) express to be made on a compromise and compromising immovable property other than that which is the subject-matter of the suit or proceeding".
(18.) It appears from the said compromise decree that a declaratory suit was filed in relation to the same very property and on compromise the decree of declaration has been granted. According to me all decrees and orders of a Court do not enjoy the exception made in sub-section (2) of the said Act after clause (vi) is amended. The compromise decree involving an immovable property which is not the subject-matter of the suit can be brought within the purview of the exceptional provision under sub-section (2) of clause 6.
(19.) The decision cited by Mr. Banerjee namely, AIR 1996 SC 1293 has made the position clear in paragraph 9 while following and accepting the earlier decision of the same Court (in case of Bhoop Singh v. Ram Singh Major, (1995) 5 SCC 709 : AIR 1996 SC 196 has held in paragraph 9 as follows : "It would be seen that if the decree were not embodied the terms of the compromise as was the position in other cases, the benefits in terms of the compromise cannot be derived even a suit were to be dismissed because of the compromise in question. If the property dealt with by the decree is not the subject-matter of the suit or proceeding then clause (vi) of sub-section (2) would not operate because of the amendment of this clause by Act 21 of 1929, which is as it is written in the aforesaid decision of the Privy Council. According to which the original clause would have been attributed even it was or were to encompass the absurdity and litigated."
(20.) Therefore, in my view this particular compromise decree is compulsorily register able under Section 17 of the Registration Act 1908. Mr. Banerjee's clients had indeed admitted to get the document registered. In my view registration in Bombay at that relevant point of time was not lawful registration and registration done by Bombay office had no competence under Section 29 read with Section 30 of the Registration Act in view of Andhra Pradesh amendment by deleting sub-section (2) of Section 30 by and under Act 13 of 1966 with effect from 15th June, 1966. Mr. Mitra is right in saying that State Amendment by virtue of Article 254(2) of the Constitution of India will prevail over the Central Act in case of any repugnancy in respect of the subject falls within concurrent list. Undisputedly subject of registration falls within the concurrent list. Therefore, according to me registration in Bombay consequently the said consent decree do not have any transferability character of this property.
(21.) From the records I find the parties have agreed that the said Indian Express Newspapers (Bombay) Ltd. will also join in the proposed conveyance to be executed by the said Company will also execute and register the document in terms of the decree passed by this Court. In view of this situation I do not think there can be any difficulty in this regard.
(22.) As far as the second objection of plaintiff is concerned regarding the dismissal of the suit pending at the time of the passing of the decree involving a portion of the said property is concerned, I think this cannot be a valid objection. At the time of the entering into the said agreement which is sought to be enforced in terms of the agreement dated 12th June 2000 it was made specifically clear that a suit for eviction against unauthorized occupants had been pending. Keeping in view of the fact of pendency of the defendant No. 1 being the asslgner of the agreement expressly accepted and agreed to take the property for discharge of the debt. In clause B of the recital of the agreement dated 7th September, 2000 it was made specifically clear that the vendor has filed a suit for possession against M/s. Kalavathi Bai and 44 others who are in unlawful occupation of an area measuring about 3960 sq.m. in the said property. The said suit being O. S. No. 594 of 1993 is pending in the Court of II Additional Judge City Civil Court Hyderabad, save and except the said M/s. Kalavathi and 44 others who are . in occupation of the said areas of 3960 sq.m. the entire property in exclusive use, occupation and possession of vendor.
(23.) The contention of Mr. Mitra is that the aforesaid statement in the recital is of no value and the same is subjected to habendum clause being clause 2 of an agreement dated 7th September, 2000 that vendor shall sell the said property free from all encumbrances for a price of Rs. 21.10 crores. This contention in my view does not have much force, as the document has to be read as a whole.
(24.) In clause (e) of the recital it is recorded that purchaser (original defendant No. 1 now the plaintiff) duly understood the representation and statement made therein regarding pendency of the suit. In my view upon full understanding the price of the said property was fixed at Rs. 21.113 crores, taking into possibility of the suit being dismissed. I think had there been no suit pending the price of the said property would have been much higher, original defendant No. 1 being the predecessor-in-interest of the plaintiff having accepted the risk of pendency of the suit and having had agreed unequivocally to buy up the property at the aforesaid price the plaintiff being the successor in interest as being assignee cannot turn round and contend otherwise. The plaintiff is simply estopped from taking different stand on the plea of dismissal of the suit. It is an admitted position that an appeal has been preferred against the aforesaid decree of dismissal of the suit. Appeal under the law is a continuation of the suit, so position is not changed. Moreover nobody can say whether the decree passed by the learned first Court would be a final one, or not.
(25.) Accordingly I hold that while accepting the argument of Mr. Banerjee that pendency of the appeal is not an encumbrance of the property as a whole. I am unable to understand how Section 55 of the Tran
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sfer of Property Act or for that matter Sections 17 and 21 of the Specific Relief Act are applicable in this case. The defendant No. 3 had made full disclosure at the time of entering into agreement and thereafter replied to the requisition to title put by the plaintiff. No further disclosure in my view is necessary. In any event it would have been open for the plaintiff to conduct further enquiries and searches relating to the title of this property, and no further defect has been detected. (26.) I hold further that subject to joining the aforesaid Indian Express Newspaper (Bombay) to the conveyance there shall not be any difficulty nor impediment for carrying out the decree and order passed by this Court. (27.) Now the question is how this order is required to be implemented. The defendant No. 3 has not taken out any application for execution of the decree. The prayer made in their application have already been granted by the decree itself previously in substance. So I do not find any further direction is required to be given specifically on this application. I observe there has been no lawful justification on the part of the plaintiff for not carrying out the order in view of the decree passed in the title suit, in terms of the compromise of the decree. (28.) I, therefore, make it clear that in the event the plaintiff does not carry out the earlier order of this judgment and decree passed by this Court it would be open for Mr. Banerjee's client to take out an execution application asking for a specific mode in which assistance of the Court would be required. (29.) Prayer (a) made on the application of the defendant No. 3 cannot be granted, as there is no decree for this purpose. If such order is passed then that amounts to rewriting and/or modifying the decree passed by this Court, which is not permissible under the law. (30.) As far as the prayer (b) is concerned the same relief has already been granted by the decree itself, however without specifying the amount. The said portion of the decree can be executed by a lawful mode on a proper execution application not in this application. (31.) Thus, observing as aforesaid the application of the defendant No. 3 is disposed of. It appears the time limit granted by the decree has already expired. In the event the plaintiff has not carried out the decretal obligation, Mr. Banerjee's clients would be at liberty to take out an execution application for enforcement of the decretal obligation of Mr. Mitra's clients. There will be no order as to costs. Order accordingly.