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Hardeodas Agarwalla Trust Vs. Vijay Singh Choraria - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 2186 of 1995
Judge
Reported in(1997)2CALLT272(HC),[1998]232ITR812(Cal)
ActsIncome-tax Act, 1961 - Section 269UC
AppellantHardeodas Agarwalla Trust
RespondentVijay Singh Choraria
Appellant AdvocateDinabandhu Das and ;A. Bansal, Advs.
Respondent AdvocateS.P. Roychoudhury, ;M.K. Singh and ;D.M. Chowdhury, Advs.
Excerpt:
- .....the petitioner after appearance has filed the written statement, inter alia, alleging that the suit as filed by the plaintiff is not maintainable inasmuch as the other members of the trust have not been impleaded in the suit. it has been further stated that the suit is otherwise not maintainable under section 269uc of the income-tax act or sub-section (3) of section 269ub and sub-section (2) of section 269ul of the income-tax act. but the court after having spurned those contentions, the petitioner has filed the instant revision.4. mr. das, the learned advocate appearing for the petitioner, has critically placed the order by submitting that the learned trial court significantly failed to take into consideration the provisions of section 269uc, sub-section (3) of section 269ub and.....
Judgment:

Basudev Panigrahi, J.

1. Defendant No. 1 in Title Suit No. 3 of 1990 pending in the court of the Assistant District Judge, 4th Court, Alipore, has called in question the propriety of Order No. 76 dated August 2, 1995, rejecting the prayer of the revision petitioner filed under Order 7, rule 11 of the Civil Procedure Code, 1908.

2. The opposite party plaintiff has filed the suit against the present petitioner who is defendant No. 1 in the trial court for specific performance of the contract in respect of the suit properties, on the ground that defendant No. 1, which is a trust, had executed a deed of agreement on or about August 12, 1989, whereby it had agreed to execute the registered sale deed on receiving full consideration amount under the agreement. The earnest money of Rs. 2 lakhs was said to have been advanced. But, when the defendant, Hardeodas Agarwalla Trust, failed to perform its part of the contract, a suit for specific performance of the contract was brought against it.

3. The petitioner after appearance has filed the written statement, inter alia, alleging that the suit as filed by the plaintiff is not maintainable inasmuch as the other members of the trust have not been impleaded in the suit. It has been further stated that the suit is otherwise not maintainable under Section 269UC of the Income-tax Act or Sub-section (3) of Section 269UB and Sub-section (2) of Section 269UL of the Income-tax Act. But the court after having spurned those contentions, the petitioner has filed the instant revision.

4. Mr. Das, the learned advocate appearing for the petitioner, has critically placed the order by submitting that the learned trial court significantly failed to take into consideration the provisions of Section 269UC, Sub-section (3) of Section 269UB and Sub-section (2) of Section 269UL of the Income-tax Act. It has been further contended that before the filing of the suit it was the duty of the plaintiff to obtain the necessary certificate from the Income-tax Department. Failure to secure the requisitecertificate from the income-tax authority would non-suit the plaintiff and consequently the plaint should have been rejected.

5. The defendant has taken an inexorable plea that the plaint does not reveal any cause of action, as such, it should also have been rejected by the trial court. But the trial court, unfortunately, could not appreciate the contention of the petitioner and mechanically turned down the prayer of the trust.

6. The learned lawyer appearing for the opposite party Mr. Singh has submitted that there is no merit in the application filed by the defendant under Order 7, rule 11 of the Civil Procedure Code, 1908, since the execution of the agreement has been admitted by the trust, and, therefore, it was their duty to obtain necessary permission from the Income-tax Department for executing the deed of conveyance. Thus, it is not legitimate to advance such plea that for the absence of the requisite permission from the authority, the suit is not maintainable. When the trust is itself a defaulting party, it has been strongly contended that the plaint, in fact, disclosed a cause of action and as such there is no merit in the application for throwing the plaint out at the threshold.

7. It is indisputedly true that a plaint without any cause of action, cannot be maintained by the plaintiff and, accordingly, it should be rejected, There could be no quarrel over this position. From the submission of the parties, it appears that when the defendant trust failed to discharge its obligation as per the agreement dated August 12, 1989, for the grant of Sub-lease of the premises No. 239, the suit was filed for specific performance of the contract. It further appears that defendant No, 2 in the suit has not yet filed the written statement. Defendant No. 2 is the managing trustee of defendant No. 1 trust. The plaintiff's grievance is that due to failure by defendant No. 2 for executing the deed in terms of the agreement dated August 12, 1989, the necessary cause of action has accrued for filing the present suit. The cause of action means the circumstances forming vindication of the right or the immediate occasion for the actions. The cause of action can otherwise be stated as a bundle of facts which gives rise to the plaintiff claiming a remedy for the inaction or wrong done by the adversary. Since the plaintiffs had complained of the conspicuous silence/inaction of the defendants in doing their part of the contract which resulted in severe pecuniary loss and other inconvenience and, therefore, he filed the present suit. Thus, from the above fact, it cannot be said that there is no cause of action for filing the suit at the moment. On reading the whole of the plaint, it emerges that the cause of action is implicit in the pleadings that due to non-performance of the contract by the defendants, the plaintiffs has asked in the suit for appropriate remedy. It is strange to note that the defendants have not yet filed their written statement disputing the agreement.

8. The cause of action has no relation to the defence which is set up by the defendant. I refer entirely to the grounds set forth in the plaint as the cause of action or, in other words, upon the media which the plaintiff asks the court to arrive at the conclusion in his favour. Keeping the aforesaid principle in mind if the submissions of the opposite party plaintiff are examined it can indubitably be held that there has been cause of action to vindicate his right.

9. In this case a triable issue has been raised by the plaintiff as to the enforcement of the agreement said to have been executed by the defendants.

10. Mr. Das, learned counsel appearing for the petitioner, has strongly urged that the suit is otherwise not maintainable on account of statutory bar under Section 269UC read with rule 48L of the Income-tax Act. To appreciate his contention I hereby quote the aforementioned provisions of the Act.

'269UC. (1) Notwithstanding anything contained in the Transfer of Property Act, 1882 (4 of 1882), or in any other law for the time being in force, no transfer of any immovable property and of such value exceeding five lakh rupees as may be prescribed, shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property (hereinafter referred to as the transferor) and the person to whom it is proposed to be transferred (hereinafter referred to as the transferee) in accordance with the provisions of Sub-section (2) at least four months before the intended date of transfer.

(2) The agreement referred to in Sub-section (1) shall be reduced to writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties.

(3) Every statement referred to in Sub-section (2) shall,-

(i) be in the prescribed form;

(ii) set forth such particulars as may be prescribed ; and

(iii) be verified in the prescribed manner,

and shall be furnished to the appropriate authority in such manner and within such time as may be prescribed, by each of the parties to such transaction or by any of the parties to such transaction acting on behalf of himself and on behalf of the other parties.

269UL. (1) Notwithstanding anything contained in any other law for the time being in force, no registering officer appointed under the Registration Act, 1908 (16 of 1908), shall register any document which purports to transfer immovable property exceeding the value prescribed under Section 269UC unless a certificate from the appropriate authoritythat it has no objection to the transfer of such property for an amount equal to the apparent consideration therefor as stated in the agreement for transfer of the immovable property in respect of which it has received a statement under Sub-section (3) of Section 269UC, is furnished, along with such document.

(2) Notwithstanding anything contained in any other law for the time being in force, no person shall do anything or omit to do anything which will have the effect of transfer of any immovable property unless the appropriate authority certifies that it has no objection to the transfer of such property for an amount equal to the apparent consideration therefor as stated in the agreement for transfer of the immovable property in respect of which it has received a statement under Sub-section (3) of Section 269UC.

(3) In a case where the appropriate authority does not make an order under Sub-section (1) of Section 269UD for the purchase by the Central Government of an immovable property, or where the order made under Sub-section (1) of Section 269UD stands abrogated under subsection (1) of Section 269UH, the appropriate authority shall issue a certificate of no objection referred to in Sub-section (1) or, as the case may be, Sub-section (2) and deliver copies thereof to the transferor and the transferee.

48L. (1) The statement required to be furnished to the appropriate authority under Sub-section (3) of Section 269UC shall be in Form No. 37-1 and shall be signed and verified in the manner indicated therein by each of the parties to the transfer referred to in Sub-section (1) of that section or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties.

(2) The statement in Form No. 37-1 shall be furnished, in duplicate, to the appropriate authority :--

(a) before the 30th day of October, 1987, in a case where the agreement for transfer is entered into before the coming into force of Chapter XXC in the areas comprised in the 'Bangalore Metropolitan Region', and 'Ahmedabad Urban Development Area' and the areas comprised in the city of Ahmedabad, as referred to in the notification of the Government of India in the Department of Revenue No. S.O. 835(E), dated 21-9-1987 ;

(b) before the expiry of 15 days from the date on which the provisions of Chapter XXC come into force in any areas, other than the areas referred to in Clause (a), where the agreement for transfer is entered into before such date; and

(c) before the expiry of 15 days from the date on which the agreement for transfer is entered into, in cases not covered by Clauses (a) and (b).'

11. On a careful reading of the provisions of Section 269UC it appears that it is the duty of either the transferor or transferee in the case of any intending transfer to inform the authorities four months before such transfer. In this case, if at all the defendants have entered into a contract with the plaintiff for the lease of the property it was also the duty of the defendants to inform about the proposed transfer. The defendants being one of the defaulting parties to furnish information to the authorities should not be permitted to raise the objection that the plaintiff's suit shall be non-suited pursuant to Section 269UC. It is revealed from the provisions of Section 269UL that the registering authority would refuse to register the document under which the property is sought to be transferred in the absence of a certificate by the appropriate authority. Therefore, this can only be attracted when any of the parties to the agreement tenders the document for registration. Since the written statement has not yet been filed either admitting or disputing the agreement purported to have been executed by the defendants, it would be too early to suggest that the aforementioned provision would debar the plaintiff from filing the suit against the defendants.

12. In the suit since several other prayers have been made, it cannot be argued that the plaint would be rejected for want of proper certificate under the provisions of the Income-tax Act. The court will be also obliged to find out as to on whose failure the permission could not be obtained. Even prior to the decree, it is open to any of the parties to obtain the necessary permission from the authority, since the transfer is yet to be made.

13. Therefore, from the totality of the facts and circumstances of the case and on a careful consideration of the submissions made by learned counsel appearing for the parties, I feel that the learned trial court did not commit any jurisdictional or factual error in rejecting the application under Order 7, rule 11 of the Civil Procedure Code, 1908. Accordingly, I do not find any merit in the revisional application and the same is dismissed but in the circumstances without costs.

14. Heard the learned advocate for the petitioner for prayer of stay of operation of the order. I do not find any merit in such submission. Accordingly, the petitioner's prayer of stay of operation of the order is hereby rejected.


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