TaxTMI 
TaxTMI 
2012 (11) TMI 916
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....institution was I.C.I.C.I. Bank Ltd. Now, this Act empowers such a lender to transfer or assign their rights in, the property of the borrower, mortgaged or pledged with them or given to them otherwise as security for the loan, in favour of purchasers. I.C.I.C.I. Bank Ltd. had such a right over the properties mentioned in Schedule I to Annexure 'A' of the plaint, belonging to the third defendant. The properties included immovable properties at plot no. A/606, TTC Industrial Area, MIDC, New Mumbai, Maharashtra. It appears that this bank had the right to sell those properties. I.C.I.C.I. Bank Ltd. assigned their rights in the above property in favour of the first defendant. The first defendant allegedly entered into an agreement with the plaintiff, on 13th February, 2007, for sale of those properties in their favour for a consideration of Rs. 7.50 crores. The statute also gave them this power. According to this agreement this defendant was required to issue a sale certificate in favour of the plaintiff. The plaintiff thought that it had performed its obligations under the agreement, that the first defendant was obliged to issue the sale certificate and that they were wilfully....
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.... be required to be passed by the Court to prevent creation of third party interest and for protection of the property which is subjudice. Mr. Chatterjee further submitted that the first defendant acted in terms of the said agreement as would appear from their statement in paragraph 12 of the Affidavit-in- Opposition. Paragraph 12 is inserted later on, in this judgment. When the cheque for Rs.9.5 crores was sent to this defendant by the plaintiff by their letter dated 16th February, 2007, the first defendant made no protest to the effect that there was no concluded contract. He showed me Clause 9 (ix) and Clause 4 of the agreement being the forum selection clause. He also argued that in the Order VII Rule 11 application the first defendant had relied on these clauses to argue before the Court that it had no jurisdiction to entertain the suit. Rules of Estoppel and those relating to approbation and reprobation at the same time prevent the first defendant from urging that there was no concluded contract. Defendant No. 1: Mr. Jishnu Saha learned advocate, on behalf of the first defendant made the following submissions: a) There was no concluded contract between ....
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.... value or not or to an innocent purchaser or not were absolutely necessary. c) I was also shown Section 13 (6) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 to submit that the transfer in their favour tantamounted to transfer by the original owner, being the third defendant and any further transfer would also have the same effect. No injunction or any other relief was being claimed against the third defendant but it was claimed against the fourth defendant which was not permissible in law. DISCUSSION AND CONCLUSIONS: Certain common law equitable principles of great vintage and enormous value have been grafted into our law. They, inter alia, find place in various statutes. The principles to be applied in this case arise from the issue: whether the fourth defendant, which claims to be an innocent purchaser without notice and for value, of the property can be protected in the litigation for specific performance of the agreement for sale of the same property between the owner of the property, being the first defendant and the prior intending purchaser being the plaintiff? The principles of equity are t....
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....dency of a suit or proceeding referred to in sub-section (1) shall contain the following particulars, namely: (a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question; (b) the description of the immovable property, the right to which is in question; (c) the court in which the suit or proceeding is pending; (d) the nature and title of the suit or proceeding; and (e) the date on which the suit or proceeding was instituted. (emphasis supplied) " Section 52 of the Transfer of Property Act, 1882 as amended by the Bombay Amendment Act of 1939 has application with regard to properties situated in the State of Maharashtra. (See the case of Anand Nivas Private Ltd. vs. Anandji Kalyanji's Pedhi and others reported in AIR 1965 SC 414) Section 19(b) of the Specific Relief Act, 1963 or the Indian Trusts Act, 1882, both being Central statutes have not been amended. The position as a result of this, is that there may be atleast three types of situations with regard to an agreement for sale of an immovable property. The first is when the agreement for sale was entered into before institution of....
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....prima facie case? b) the fourth defendant is not an innocent transferee, and not somebody without notice of the alleged agreement between the plaintiff and the first defendant? First the prima facie case. Mr. Jishnu Saha, learned Advocate for the first defendant argued that there was no concluded contract between them and the plaintiff. He referred to an expression in the agreement at page 35 of the petition that it was intended to be a "term sheet". He referred to Black's Law Dictionary for the meaning of the word "term sheet". Black's Law Dictionary describes term sheet as information provided in a document or a letter of intent. He interpreted term sheet to be equivalent to "subject to contract clause" in a transaction between the parties. He cited the case of Alpenstow Ltd and another vs. Regalian Properties plc reported in AIR 1985 (2) ALL . ER 545 page 551(d-j) to argue that the alleged agreement of 13th February, 2007 was just a "term sheet" or certain terms "subject to contract" and could not be a concluded contact between the parties. He also referred to the last paragraph of the first page of the alleged agreement mentioned above to strengthen his argument that ther....
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....haser was necessary. However, I find as shown to me by Mr. Chatterjee that in paragraph 4 (a) of the Affidavit-in-Opposition of the fourth defendant that they have only stated they were a bona fide purchaser. In my opinion a person is deemed to know the law. And in this case, the affidavit is of a limited company. Omission to state that they purchased the property without notice, while stating that they purchased the property as a bona fide purchaser tend to prima facie show that they had notice of the transaction between the plaintiff and the first defendant. Mr. Saha has raised two further issues regarding non-payment of stamp duty on the alleged agreement of 13th February, 2007. I am of the further opinion that the plaintiff has prima facie been able to make out the existence of the agreement for sale of 13th February, 2007. But the existence and purport of the agreement have to be more fully brought out at the trial of the suit. It is true that the agreement is unstamped but it is also true that an unstamped agreement can be impounded by the Court, thereafter stamped and tendered in evidence. All these may or may not happen at the trial of the suit. Furthermor....