1st Manipal Ranka National Moot Court Competition 2 (3)

1st MANIPAL RANKA NATIONAL MOOT COURT COMPETITION 2016

1st MANIPAL RANKA NATIONAL MOOT COURT COMPETITION, 2016 TEAM CODE M 128

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION NO……… OF 2016 [UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA]

JDC Ltd. Company...........................................................................Petitioner V. State of Rajasthan & others.............................................................Respondent

Memorial on the Behalf of Respondent

1 Memorial on Behalf of Respondent

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TABLE OF CONTENTS 1) Table of Contents.....................................................................................................................2 2) Abbreviations...........................................................................................................................3 3) Index of Authorities a) Case list.........................................................................................................................4 b) Books Referred.............................................................................................................5 C)

Dictionaries…………………………………………………………………………...6

d) Statutory Compilations……………………………………………………………......6 e) Internet Sites..................................................................................................................6 4) Statement of Jurisdiction.........................................................................................................7 5) Statement of Facts.................................................................................................. ..................8 6) Statement of Issues..................................................................................................................10 7) Summary of Arguments………………………………………………………………...........11 8) Argument Advanced.................................................................................................. .............16 9) Prayer.......................................................................................................................................27

LIST OF ABBREVIATIONS Ltd

limited 2 Memorial on Behalf of Respondent

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AIR

All India Report

Sec.

Section

GPA

General Power of Attorney

TPA

Transfer of Property Act,1882

&

and

CPC

Civil Procedure code, 1908

Rs.

Rupees

IT

Income Tax

SLP

Special Leave Petition

SC

Supreme Court

SCC

Supreme Court Cases

HC

High Court

FMV

Fair Market Value

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IN DEX OF AU T H OR IT IE S A. LIST OF CASES

1. Taherakhatoon (D) By Lrs. vs. Salambin Mohammad, (1999) 2 SCC 635, 2. Pritam Singh v. State of Haryana AIR 1977 SC 2005, 1977 CriLJ 1575, (1977) 4 SCC 56 3. Balvantrai Chimanlal Trivedi vs. M.N. Nagrashna and Others, AIR 1960 SC 1292 4. State of U.P. v. Samman Dass AIR 1972 SC 677 5. Claude Pinto v. M.V. Shankar Bhat and Anr. 1996 (2) Civil Court Cases 609 (Karnataka) (supra)6. Phuljhari Devi v. Mithai Lal, AIR 1971 All 494, K 7. Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others 1996(5)SCC 589 8. Keshavalal v. Lalbhai T. Mills Ltd., AIR 1958 SC 512 at page 517 9. Venkateswara Minerals v. Jugal Kishore, 1985 (2) Civil L.J.695, at 700 (Kant) 10. Raheja Universal Limited v. NRC Limited AIR 2012 SC 1440 11. P.Sampoornam and others v. L.T. Somasundaram and others AIR 2008 HC Madras 12. Crest Hotel Ltd. v. Assistant Superintendent of Stamps AIR 1994 Bom 228 13. State of Rajasthan v. Basant Nehata, VI (2005) SLT 609 = III (2005) CLT 283 (SC) = 2005 (12) SCC 77. 14. Nair Service Society v. Palat, 1966 Ker LT 644: (AIR 1966 Ker 311) 15. Jamna Bai v. Tulsi Ram (supra) 16. Kamla Shankar v. Rattan Lal and Ors. 1998 RRD 21 (supra) 17. Nihal Singh v. Singh Ram and Ors. 1989 (1) RLR 384 (supra) 18. Ganesh Shet v. Dr. C.S.G.K. Shetty and Ors. 1998 (2) Civil Court Cases 711 (SC) (supra)19. Durgadan v. Devidan RLW 1974 Raj. 296 (supra) 20. Meghmala v. G.Narsimha Reddy (2010) 8 SCC 383 21. Suraj Lamp & Industries Pvt. Ltd. V. State of Haryana , JT 2011 (12) SC 654 22. Narandas Karsondas v. S.A. Kamtam and Anr.(1977) 3 SCC 247, 23. Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 4 Memorial on Behalf of Respondent

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24. Hardip Kaur vs Kailash & Anr. on 18 May, 2012 25. Sunil Kumar Jain v. Kishan AIR1995 SC 1891 26. Majidan v. illahi Bakhsh AIR 2008 NOC 1135 27. Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] 28. Sardamani Kandappan v. S. Rajalakshami and others (2011) 12 SCC 18 29. Citadel Fine Pharmaceutlcals v. Ramanlyam Real Estates Private Limited and others in (2011) 9 SCC 147 30. Satya Jain(D) Thr. LRS. & Ors. v. Anis ahmed rushdie (D) Tr.LRS. & Ors. (Civil Appeal No. 8653 of 2012 ETC.) 31. Abdul Khader Rawther v. P.K. Saru 32. Coromandel Indag Products Pvt. Ltd. v. Garuda Chit Trading Co. Pvt. Ltd. And another , (2011) 4 SCC (Civ.) 291, 297 i 33. Smt. Gopal Devi v. Smt. Kanta BHatia AIR 1994 Delhi 349,358 34. Dinaji and Ors. v. Daddi and Ors., AIR 1990 SC 1153, 35. Ambattur Clothing Co. Ltd v. Asstt. CIT [2010] 326 ITR 245 36. Jitendra Mohan Saxena v. ITO [2008] 305 ITR AT 62 37. Asstt. CIT v. Pravin V. Gandhi [2011] 38 (II) ITCL 311 38. Navneet Kumar Thakkar v. ITO [2008] 110 ITD 525 (SMC).

B. BOOKS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Dr.R.K. Sinha, Transfer of Property Act (Central Law Agency,Nehru Road,Allahabad 15th Edition,2014) Dr. Avtar Singh, The Transfer of Property Act (Universal Law Publications, New Delhi, India 4th edition,2014) Dr. G.P. Tripathi, The Transfer of Property Act ( Central Law Publications, Allahabad 17th Edition, 2011) S.N Shukla, The Transfer of Property Act (Allahabad Law Agency, Faridabad 28th Edition 2011) Akhileshwar Pathak, Specific Contracts (Lexis Nexis, Haryana India 1st Edition 2014) Atal Kumar, Taxation Law (Central Law Publications, Allahabad 2nd Edition 2014) Dr. S.R Myneni, Law Of Taxation (Allahabad Law Agency 3rd Edition 2010) Kailash Rai, Taxation Laws (Allahabad Law Agency 9th Edition 2007) Dr. Vinod K Singhania and Dr. Monika Singhania, Income Tax (Taxmann Publications 53rd Edition 2015) Dr. S.K Kapoor, Contract I and Specific Relief Act (Central Law Agency, Allahabad 13th Edition 2013) Dr. Avtar Singh, Contract I and Specific Relief Act(Eastern Book Company 10th Edition 2008) D.N Mathur, The Code Of Civil Procedure (Central Law Publications, Allahabad 3rd Edition 2015) Dr. Avtar Singh, The Code Of Civil Procedure (Central Law Publications, Allahabad 4th Edition 2015)

14. Shailender Malik, The Code Of Civil Procedure (Allahabad Law Agency Faridabad 27th Edition 2011) 5 Memorial on Behalf of Respondent

1st MANIPAL RANKA NATIONAL MOOT COURT COMPETITION 2016 C. DICTIONARIES 1. AIYAR, RAMANATHA P.: “THE LAW LEXICON”, WADHWA & COMPANY, 2ND EDN. NAGPUR (2002). 2. BLACK, HENRY CAMPBELL: ‘BLACKS LAW DICTIONARY’, 6TH EDN., CENTENNIAL ED. (1891-1991).

D. STATUTORY COMPILATIONS         

The Transfer of Property Act, 1882 Specific Relief Act, 1963 Contract Act, 1872 Civil Procedure Code, 1908 Income Tax Act, 1961 Indian Succession Act, 1925 Power of Attorney Act, 1882 Registration Act, 1908 Rajasthan Stamp Law (Adaptation) Act

E. INTERNET SITES 1. http://www.judis.nic.in 2. http://www.manupatra.com 3. http://www.scconline.com

6 Memorial on Behalf of Respondent

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7 Memorial on Behalf of Respondent

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STATEMENT OF FACTS 1. Ramnath and his family members sold two and half acres of land of Jagatpura, Jaipur to JDC Ltd. Company by means of an agreement of sale, GPA and will executed on 01.08.2013 for Rs. 50 lacs as consideration. 2. Rs. 45 lacs paid and received possession under section 53-A of Transfer of Property Act, 1882. Due amount Rs. 5 Lacs payble before 02.01.2014 and it was offered on 10.01.2014 but not accepted by the seller. 3. The agreement is unregistered and unilateral but signed and executed by vendor. Petitioner sold a part of land measuring one acre to Shri Yadav for Rs. 40 Lacs on 15.10.2013 by verbal agreement. 4. Shri Yadav got in touch with Mr. Ramnath & his family and got a GPA in favour of Dharamvir Yadav on 16.10.2013 and sale agreement of two and half acres executed and registered and earlier GPA was cancelled illegally. Company filed suit for specific performance on 01.04.2014. 5. Plaintiff claimed that purchaser also liable to tax on differential value u/s. 56(2) (Vii) (b) (ii) of IT Act, 1961. 6. The respondent claims that although the part consideration has been paid, however the agreement being unilateral as only signed by the respondent and also being unregistered does not qualify for being called as a valid agreement and hence claim of appellant is unsustainable in law. He further claimed that appellant is thereby not entitled to any relief any suit id deserved to be dismissed with costs and damages. 7. The responded also enquired about stamp duty and the Registering Authority informed him FMV on the date of registration and not on the date of agreement will prevail. In the light of this, he claimed that the stamp therefore on Rs. 1.50 crore would be payable by the appellant. He further claimed that on account of Section 50C of IT Act, 1961 he would be required to pay capital gain tax on Rs. 1.50 crore against real sale consideration of Rs. 50 lacs. 8. Order of District Judge: The suit is dismissed and agreement of sale, GPA was cancelled and the plaintiff is entitled to refund for Rs. 45 Lacs on handing over possession to the owner and suit for specific performance also dismissed. If the Plaintiff succeeds, the differential stamp duty of the recorded value and fair market value on the actual date of registration would have to be paid by the plaintiff apart from the capital gain on differential amount. 9.

Order of the Rajasthan High Court: High Court that the appellant (Purchaser) not entitled to any relief as the agreement not registered. GPA has been cancelled. The appellant failed to pay the balance amount Rs. 5 lakhs is liable to return possession on the payment of Rs.45 Lakhs. Respondent owner is directed to pay within 15 days of this order and appellant is directed to handover vacant possession simultaneously. 8 Memorial on Behalf of Respondent

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10. The appellant-plaintiff has filed an appeal/SLP before the Hon’ble Supreme Court for its consideration.

STATEMENT OF ISSUES 9 Memorial on Behalf of Respondent

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1. WHETHER THE SPECIAL LEAVE PETITION IN THIS CASE IS SUSTAINABLE OR NOT?

2. WHETHER A SCOPE FOR GRANTING THE SPECIFIC PERFORMANCE ARISES OR NOT?

3. WHETHER THE AGREEMENT OF SALE, GENERAL POWER OF ATTORNEY AND THE WILL EXECUTED IN FAVOUR OF THE PLAINTIFF IS VALID OR NOT?

4. WHETHER RAMNATH AND HIS FAMILY MEMBERS HAD THE AUTHORITY TO EXECUTE SECOND POWER OF ATTORNEY IN FAVOUR OF MR.YADAV OR NOT?

5. WHETHER THE APPELLANT - PLAINTIFF WAS READY AND WILLING TO PAY THE REMAINING AMOUNT OF SALE CONSIDERATION AND REGISTER SALE DEED OR NOT?

6. WHETHER THE DELAY IN PAYMENT OF THE BALANCE AMOUNT MAKES IT A GROUND FOR ANNULLING THE TRANSFER OR NOT?

7. WHETHER THE STAMP DUTY REGISTERING AUTHORITY WAS CORRECT IN DEMANDING STAMP DUTY ON THE FAIR MARKET VALUE AS ON DATE OF REGISTRATION AND NOT ON DATE OF DATE OF SALE AGREEMENT OR NOT?

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SUMMARY OF ARGUMENTS 1. WHETHER THE SPECIAL LEAVE PETITION IN THIS CASE IS SUSTAINABLE OR NOT? That it is submitted in the Hon’ble Court that the trial court and the high court have not at all erred in invoking section 73 of evidence act and in reciting the sale agreement as invalid since it was unregistered and thereby no ground arises on making the appeal in this apex court.

As clearly stated in the facts , relying over them , it is submitted that since the agreement is a unilateral one since only the respondent has signed and therefore he has right to cancel the said agreement, and hence he has rightly cancelled it. So no question arises on raising appeal and wasting time of apex court.

That it is to bring to the notice of the court that the intended purchaser has not signed the agreement and it is not a bilateral agreement, it is only a unilateral agreement. So it is not enforceable by law.

2. WHETHER A SCOPE FOR GRANTING THE SPECIFIC PERFORMANCE ARISES OR NOT? That it is submitted that the respondent has no role and concern with regards to this issue since the entire possession with the appropriate evidence of being a registered land is with Mr. Yadav and which is properly executed and since the entire possession is with Mr. Yadav it creates no liability on the part of respondent Ramnath to be sued for specific performance.

That it submitted in the Hon’ble Court that the agreement referred to is not a valid agreement, since the plaintiff has not signed the same. As per Section 15(a) of the Specific Relief Act, parties to the agreement alone can enforce the agreement, since the plaintiff is not a party to the said agreement, the petition filed on the basis of agreement cannot be maintained.

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3. WHETHER THE AGREEMENT OF SALE, GENERAL POWER OF ATTORNEY AND THE WILL EXECUTED IN FAVOUR OF THE PLAINTIFF IS VALID OR NOT? Firstly with regards to agreement of sale it is contended that honourable court in a number of judgments after recognizing various provisions of law has held that a contract of sale at the most creates a fiduciary character of the personal obligation and is annexed to ownership but does not in any way amounts to an interest or easement therein. Therefore, transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TPA and will not confer any title nor transfer any interest in an immovable property. According to TPA, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

Secondly coming on to the validity and scope of Power of Attorney, a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do certain acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him. So, power of attorney does not convey ownership.

Thirdly, when it comes to scope of Will, it is contended that a Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter-vivo. A Will is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. So, even a Will cannot transfer title or ownership in an immovable property.

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Section 49 of Indian Evidence Act stipulates that no document required to be registered under Section 17 of the Transfer of Property Act shall be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.

4. WHETHER RAMNATH AND HIS FAMILY MEMBERS HAD THE AUTHORITY TO EXECUTE SECOND POWER OF ATTORNEY IN FAVOUR OF MR.YADAV OR NOT? That the terms of agreement are vague and uncertain and, therefore, it is not enforceable in view of Section 29 of the Contract Act. The contention of the respondent is submitted this way that the appellant has not been a signatory on the agreement and hence it is not certain as to the capacity or obligations arising as to the agreement thereby making the agreement uncertain and hence void.

Linking to this it is further contended that if the terms of the contract are uncertain no evidence can be admitted to remove the said vagueness or uncertainty in view of Section 93 of the Evidence Act. It is true that if any of the terms of the document is clearly uncertain and incapable of being made certain it may not be open to the parties to attempt to remove that vagueness or uncertainly by adducing other evidence.

That a proposed vendee could not protect his possession of an immovable property on the basis of an oral agreement. He conceded that written agreement was sine qua non for the applicability of the equitable doctrine of part performance enshrined in Section 53-A of the Act. That it is contended that the petitioner has made a false plea. He has misled the third party that is Mr. Yadav and had not informed him about the agreement being unregistered and unexecuted. And this way being an uninformed buyer or in other words he thereby became a purchaser in good faith without notice and thereby acted in that direction.

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5. WHETHER THE APPELLANT - PLAINTIFF WAS READY AND WILLING TO PAY THE REMAINING AMOUNT OF SALE CONSIDERATION AND REGISTER SALE DEED OR NOT? That as per the provisions of Specific Relief Act, 1963, Section 16(c) it is made clear that specific performance of contract cannot be enforced in favour of person who fails to aver and prove that he is not ready and willing to perform the remaining part of the contract. Where the person did not act promptly to pay the remaining amount of consideration within or till stipulated date , it turns out as if he is not ready and unwilling to pay the balance amount.

That it is kept for the submission that the appellant was not ready and also unwilling to pay the remaining amount of the consideration worth Rs. 5 lakhs and thereby putting a question as to performance on his part since it has elapsed the stipulated date as decided without giving any notice or prior intimation of the same. So there lies no evidence for showing his intention for performance of his part.

6. WHETHER THE DELAY IN PAYMENT OF THE BALANCE AMOUNT MAKES IT A GROUND FOR ANNULLING THE TRANSFER OR NOT?

That it is submitted in the hon’ble court that with regards to the case time has been made the essence of the contract since it was already stipulated that the appellant was bound to pay the entire sale consideration of the land on 2.1.2014 . However, the appellant without any notice for the same delayed in paying off the remaining consideration amount and offered it on 10.1.2014 which was but of course rejected by the respondent.

Since the appellant delayed the payment for completing the transaction even when the date has been made particular for the fulfilment of the same , this clearly and aptly laid the ground for annulling the agreement and hence cancelled the same on a valid ground.

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7. WHETHER THE STAMP DUTY REGISTERING AUTHORITY WAS CORRECT IN DEMANDING STAMP DUTY ON THE FAIR MARKET VALUE AS ON DATE OF REGISTRATION AND NOT ON DATE OF DATE OF SALE AGREEMENT OR NOT? Section 27 of the Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on `Conveyance'.

It is further submitted that the plaintiff has clearly no intention to get the sale deed executed and duly registered as per the due process of law. This statement is strongly evident from the facts as respondent being the vendor fulfilled his part by getting his signature done over the agreement. However, the appellant agreed just verbally of which cannot be relied upon. And hence this clearly purports appellant's mens rea.

ARGUMENTS ADVANCED 15 Memorial on Behalf of Respondent

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In the case of Taherakhatoon (D) By Lrs. vs. Salambin Mohammad, (1999) 2 SCC 635,it was held that It is now well settled that though special leave is granted, the discretionary power which vested in the Court at the stage of the special leave petition continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heard on merits in the appeal. This principle is applicable to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject matter. It was so laid down by a Constitution

Bench of five learned Judges of this Court in Pritam Singh v. State of Haryana AIR 1977 SC 2005, 1977 CriLJ 1575, (1977) 4 SCC 56 In that case, it was argued for the appellant that once special leave was granted and the

matter was registered as an appeal, the case should be disposed of on merits on all points and that the discretionary power available at the stage of grant of special leave was not available when the appeal was being heard on merits.

In the case of Balvantrai Chimanlal Trivedi vs. M.N. Nagrashna and Others, AIR 1960 SC 1292, the Constitution Bench of this Court, while considering the jurisdiction of this Court under Article 136, has held: "....It is necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this Court could have dismissed the appellant's application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case. In the circumstances we are of opinion that this Court was not bound to decide the question of jurisdiction on the facts and circumstances of this case when it had come to the conclusion in dealing with an appeal under Article 136 of the Constitution that there was no failure of justice. The review application therefore fails and is hereby dismissed with costs."

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In the case of State of U.P. v. Samman Dass AIR 1972 SC 677, it was held by the apex court with respect to special leave petition under article 136 that only where the grounds or views taken by the high court is manifestly fallacious and untenable, in that case only this article can be invoked.

The plea that a particular contract is void for uncertainty under Section 29 of the Contract Act is a question of law and if the terms of the contract are vague and uncertain the contract itself would be void and unenforceable under Section 29 of the Contract Act and that will go into the root of the matter and, therefore, it is a plea that could be raised even at the appellate stage.

In the case of Claude Pinto v. M.V. Shankar Bhat and Anr. 1996 (2) Civil Court Cases 609 (Karnataka) (supra)- The Karnataka High Court finding is that the plaintiff not approached with clean hands held him not entitled to the equitable relief of specific performance. It has been exemplified by authorities in Phuljhari Devi v. Mithai Lal, AIR 1971 All 494, K case also.

In the case of Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others 1996(5)SCC 589, the apex court in this case has been of the view that it is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief , must come to the court with clean hands. In other words party who makes false allegations does not come with clean hands is not entitled to the equitable relief.

In the case of Keshavalal v. Lalbhai T. Mills Ltd., AIR 1958 SC 512 at page 517, As per Section 63 of the Indian Contract Act, the promisee may extend the time specified for the performance of contract, which cannot be an unilateral extension on his part alone as per decision Venkateswara Minerals v. Jugal Kishore, 1985 (2) Civil L.J.695, at 700 (Kant).

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In the case of Raheja Universal Limited v. NRC Limited AIR 2012 SC 1440, it has been held that the provisions as stated under section 53A does not create the title of the transferee in the property in question but gives him a very limited right , that too, subject to the satisfaction of the conditions as stated in Section 53A of the act itself.

Section 39 of Indian Contract Act, 1872 provides that when a party to a contract has refused to perform or disabled himself from performing his promise in its entirety the promisee may put an end to the contract unless he had signified by words or conduct his acquiescence in its continuance.

In a case of P.Sampoornam and others v. L.T. Somasundaram and others AIR 2008 Madras the decision passed by the court reads as follows-'' The relief of specific performance is a a discretionary relief and the courts have to exercise their jurisdiction on sound and reasonable reasons. Even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed at all, the discretionary relief should not be granted.

In the case of Crest Hotel Ltd. v. Assistant Superintendent of Stamps AIR 1994 Bom 228, '' A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself create any interest in or charge on such property. An agreement for sale is merely a document creating a right to obtain another document of sale on fulfillment of terms and conditions specified therein. On the strength of such an agreement a buyer does not become the owner of the property. The ownership remains with the seller. ''

A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney

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does not have the effect of transferring title to the grantee. In the same case State of Rajasthan v. Basant Nehata, VI (2005) SLT 609 = III (2005) CLT 283 (SC) = 2005 (12) SCC 77.

The decision reported in Nair Service Society v. Palat, 1966 Ker LT 644: (AIR 1966 Ker 311) and contended that the terms of the contract are vague and uncertain and the same cannot be enforced and the contract must be free from doubt, vagueness and ambiguity so as to leave nothing to conjecture or to be supplied by the Court.

7 Under section 17 (1)(a) of Registration Act, 1908, The documents containing contracts to transfer for consideration, any immovable property for the purpose of sec. 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 purpose of the said section 53A. In the present case, in view of the above mentioned law, this agreement is not admissible in evidence.

As per section 35 of Rajasthan Stamp Law (Adaptation ) Act, 1952, Instruments not duly stamped inadmissible in evidence etc.- No arguments chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties. Authority to receive evidence, or shall be acted upon , registered or authenticated by any such person or any public officer unless such document is duly stamped.

it would also be relevant to consider the concerned Section 49 of the Registration Act, 1908. Section 49 of the Registration Act is reproduced hereinbelow:

49. Effect of non-registration of documents required to be registered.-No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall(a) affect any immovable property comprised therein, or

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(b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), 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 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument. We then have the Rajasthan Stamp Law (Adaptation)(Amendment) Act, 1989 (Act No. 27 of 1989), which has amended Second Schedule to Rajasthan Act No. 7 of 1952. The amending provision reads as under: Amendment of the Second Schedule, Rajasthan Act No. 7 of 1952.-At the end of the last entry "Exemptions" in Article 23 of the Second Schedule appended to the Rajasthan Stamp Law, the following shall be added, namely: Explanation.-For the purpose of this article, an agreement to sell an immovable property or an irrevocable power of attorney shall, in case of transfer of the possession of such property before, at the time or after the execution of such agreement or power of attorney, be deemed to be a conveyance and the stamp duty thereon shall be chargeable accordingly. Provided that the provisions of Section 47-A shall be applicable mutates mutandis to such agreement or power of attorney as are applicable to a conveyance: Provided further that the stamp duty already paid on such agreement or power of attorney shall, at the time of the execution of conveyance in pursuance of such agreement or power of attorney subsequently, be adjusted towards the total amount of duty chargeable on the conveyance.

In the case of Jamna Bai v. Tulsi Ram (supra), this Court has clearly held that the document, which was required to be registered under the provisions of the Registration Act, was not adequately stamped and

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registered, and therefore the document could not be received in evidence, as it was not admissible even for collateral purposes.

In the case of 1998 RRD 21 Kamla Shankar v. Rattan Lal and Ors. (supra)-The Board of Revenue while considering the provisions of Tenancy Act particularly Sections 53 and 88, in the circumstances held that when the Trial Court refused to allow the document to be tendered in evidence for the reason that it was an unregistered and unstamped family settlement in evidence and a revision petition filed was dismissed holding that the Trial Court had rightly rejected the request of the plaintiff to take this document in evidence as the document was a family settlement and it creates rights in immovable property, then under Section 17 of the Indian Registration Act and in view of the law laid down in Kale's case, the Trial Court committed no illegality in rejecting the prayer to take the document in evidence.

In the case of 1989 (1) RLR 384 Nihal Singh v. Singh Ram and Ors. (supra)-This Court held that an unstamped and unregistered document required under law to be stamped and registered cannot be admitted in evidence even for collateral purposes.

In the case Ganesh Shet v. Dr. C.S.G.K. Shetty and Ors. 1998 (2) Civil Court Cases 711 (SC) (supra)-was the case in which variance was between the contract pleaded and contract proved and the Hon'ble Supreme Court held that relief on the basis of contract proved but not pleaded cannot be permitted as that would amount to giving effect to a contract which was not the agreement between the parties according to plaintiff.

In the case of RLW 1974 Raj. 296 (Durgadan v. Devidan)(supra)-In this case, this Court while considering the provisions of Section 54 of the Transfer of Property Act, in relation to a document, held that the document of sale on the basis of language, which was not registered as such did not amount to sale but only a contract for sale, therefore, plaintiff was not entitled to bring the suit for specific performance.

21 Memorial on Behalf of Respondent

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In the case of Meghmala v. G.Narsimha Reddy (2010) 8 SCC 383 it has been held that an agreement to sell does not create any right or title in favor of intending buyer.

In the ruling of the apex court in Suraj Lamp & Industries Pvt. Ltd. V. State of Haryana , JT 2011 (12) SC 654 -"Transfer of immovable property by way of sale can only be by a sale deed which is duly stamped and registered as required by law ;in the absence of which no right, title , interest in any immovable property can be transferred.'Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property.

The Apex Court in Narandas Karsondas v. S.A. Kamtam and Anr.(1977) 3 SCC 247, observed, A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. ( Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR)

Delhi High Court in the casse of Hardip Kaur vs Kailash & Anr. on 18 May, 2012We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.

Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. It has been rightly considered by this Court in R.C. Chandiok & Anr. vs. Chuni Lal Sabharwal & Ors., (1970) 3 SCC 140 that "readiness and willingness" cannot be treated as a straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is

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non- compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties.

In case of Sunil Kumar Jain v. Kishan AIR1995 SC 1891 it has been held by the apex court that the doctrine of part performance is applicable only to those documents which are duly completed otherwise as such properly stamped . So, under section53A of the T.P.Act the possession cannot be defended on the ground of existence of a contract for sale.

In the case of Majidan v. illahi Bakhsh AIR 2008 NOC 1135 , it was held that mere an agreement to sell does not have the eefect of conveying and therefore it does not operate as a transfer of property . The execution of an agreement of sale does not effectvtransfer of property from one person to another . Similarly, delivery of possession accompanied by an agrement of sale does not amount to transfer of an interest in the property.

In the case of Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."

As per section 55 of the contract act, when a party to a contract promises to do a certain thing at or before a specified time , or certain things at or before the specified time , and fails to do any such thing at or before

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the specified time , th econtract , 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 the essence of the contract.

As per Section 51 of contract act - when a contract consisits of reciprocal promises to be simultaneously performed no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.

In the case of Sardamani Kandappan v. S. Rajalakshami and others (2011) 12 SCC 18 have tried to address this question by calling upon the courts to revisit the principles laid down by the court in earlier decisions on same issue and oberved that as a general preposition of law time is not essence of contract unless the parties to the contract intend to make time an essential condition for the performance of the contract.

In the case of Citadel Fine Pharmaceutlcals v. Ramanlyam Real Estates Private Limited and others in (2011) 9 SCC 147 where the apex court conclusively held on the issue of time as essence of contract. The court observed that as settled position of law in case specific performance of contract relating to immovable properties, time is not normally considered an essence of contract but this is not absolute preposition of law and is subject to several exceptions. This court relying upon ratios laid down in its other decisions observed that time as essence of contract can be inferred from nature of properties or terms of agreement and held that in view of express terms of agreement time was intended to the essence of contract.

In the case of SATYA JAIN (D) THR. LRS. & ORS. v. ANIS AHMED RUSHDIE (D) TR.LRS. & ORS. (Civil Appeal No. 8653 of 2012 ETC.) Held that due to efflux of time and escalation of price of property, seller is entitled to additional compensation ie. a price higher than what was stipulated in the agreement.

In the case of abdul Khader Rawther v. P.K. Saru Bai it was held that when the plaintiff files the suit for specific performance of the contract of reconveyance but has not averred that he is ready and willing to perform his part of the contract, he will not be entitled to obtain the decree of specific performance.

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In the case of Coromandel Indag Products Pvt. Ltd. v. Garuda Chit Trading Co. Pvt. Ltd. And another , (2011) 4 SCC (Civ.) 291, 297 it was held that the requirement of Sec. 16 (c) is that the plaintiff must aver and prove that he is ready and willing to perform his part of the contract is mandatory.

In AIR 1991 SC955, it was held that it is to be noted that for obtaining the decree of specific performance under Section 16 of SRA, 1963 it is necessary to prove that there is a valid and enforceable contract between the parties . In the absence of proof of valid and enforceable contract the decree of specific performance can not be obtained.

In the case of Smt. Gopal Devi v. Smt. Kanta BHatia AIR 1994 Delhi 349,358 it was held that it is not sufficient to make only such averment he will have to prove that throughout he has been ready and willing to perform his part of the contract.

In the case of Dinaji and Ors. v. Daddi and Ors., AIR 1990 SC 1153, the Apex Curt held that non registration of a document which is required to be registered under Section 17(1)(b) of the Registration Act will not avail to create, declare, assign, limit or extinguish any right, title or interest in or to the immovable property comprised in the document.

The notable judgement of the Madras High Court in the case of Ambattur Clothing Co. Ltd v. Asstt. CIT [2010] 326 ITR 245 which stated that the assessee having not availed of the opportunity provided under sub-sections (2) and (3) of section 50C to object to the value adopted by the stamp valuation authorities, the Assessing Officer was justified in treating the value adopted by registration authorities as the deemed sale consideration received by the assessee as a result of the transfer.

The tribunal Lucknow bench in the case of Jitendra Mohan Saxena v. ITO [2008] 305 ITR AT 62 wherein held that “Fair market value of the property arrived at by stamp valuation authorities being higher than the

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sales consideration transferred by the assessee and fair market value reported by DVO on reference being higher than the one adopted by the stamp valuation authorities, the Assessing Officer wasjustified in applying provisions of sec 50C and taking the value adopted by the stamp valuation authorities as full value of consideration for computing the capital gain, provisions of sec 50C are mandatory.

The tribunal in the case of Asstt. CIT v. Pravin V. Gandhi [2011] 38 (II) ITCL 311 (Mum ‘C’-Trib) where in held that – it is not in dispute that the property in question was transferred by an agreement not registered with the registering authorities. The Assessing Officer while invoking the provisions of sec 50C had taken the value of the property on the basis of the letter given by the sub registrar wherein he had mentioned that

as on the date of agreement the value of open plot was Rs. 8000 per sq. yard. However, according to the provisions of sec 50C where the consideration received are accrued as a result of transfer by the assessee of a capital asset being land or building or both, is less than the value adopted or assessed by any authority of a state government. For the purpose of payment of stamp duty in respect of such transfer the value adopted or assessed shall, for the purpose sec 48, be deemed to be the full value of consideration received or accruing as a result of such transfer. Section 50C is applicable only on registration of sale deed and not otherwise. For the same proposition the DR also relied on the order of Tribunal Jodhpur Bench in the case of Navneet Kumar Thakkar v. ITO [2008] 110 ITD 525 (SMC).

PRAYER FOR RELIEF 26 Memorial on Behalf of Respondent

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Therefore, in light of the issues raised arguments advanced and authority cited, it is humbly prayed to this Hon'ble Court; it be pleased to hold adjudge and declare 1. To sustain the order of the Honourable High Court 2. To not to grant the relief of specific performance to the appellant.

Thereby, allow the appeal of the respondents in above term and pass any further order or orders in the circumstances of the present case with cost which this Hon'ble court may deem fit in the light of equity, justice and good conscience for which the counsel may forever pray. Respectfully submitted Counsel for Respondents

27 Memorial on Behalf of Respondent