M/s Swarup Builders & Ors. Vs. Sheikh Mohd. Sanghi & Ors.

Appeal: Criminal Appeals Nos. 856-57 of 1985.

Petitioner: M/s Swarup Builders & Ors.

Respondent: Sheikh Mohd. Sanghi & Ors.

Apeal: Criminal Appeals Nos. 856-57 of 1985.

Judges: A.P. SEN & V. BALAKRISHNA ERADI, JJ.

Date of Judgment: Feb 12, 1987

Mr. V.H. Tarkunde, Senior Advocate and Mr. H.K. Puri, Advocate for the Appellants.

Mr. V.N. Sanpule, Advocate for the Respondents.

MAHARASHTRA OWNERSHIP FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) ACT, 1963:

Sections 4, 5, 7, 10, 11 and 13 – Maintainability of a suit for specific performance – Requirements of Section 4 of the Act are mandatory and in the absence of a registered agreement, the plaintiff was not entitled to the relief sought – An agreement which is not duly registered under Section 4 cannot be made the foundation of criminal liability.

1. The Association of Commerce House Block Owners Ltd. v. Vishndas Samaldas, (1981) Bom. LR 339.

2. A.K. Velu v. K.S. Ramakrishna & Anr.

1. After hearing learned counsel for the appellants at considerable length, we are of the opinion that the reasoning of the learned Single Judge does not suffer from any infirmity and does not call for interference. The decision of the Division Bench of the High Court in The Association of Commerce House Block Owners Ltd. v. Vishndas Samaldas (1981) Bom. LR 339 is clearly distinguishable on facts and it is not necessary for us to go into its correctness. The High Court in that case was concerned with the question whether in view of Section 4 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 a suit for specific performance was maintainable. It was held that the requirements of Section 4 of the Act are mandatory and in the absence of a registered agreement, the plaintiff was not entitled to the relief sought. There was no occasion for the High Court to consider whether the promoters could not be held criminally liable for breach of the various provisions of the Act for want of a registered agreement. It cannot be doubted that the requirements of Section 4 of the Act are mandatory and its breach is a penal offence under’ Section 13, so also the breaches of sub-Sections 5, 7, 10 and 11. The unreported decision of Desai, J. in A.K. Velu v. K.S. Ramkrishna & Anr. (Crl. Appln. No.921/80 dated July 30, 1981) that an agreement which is not only registered under Section 4 of the Act cannot be made the foundation of criminal liability, in that such an agreement is ineffective and invalid for all purposes, including the liability for criminal prosecution, does not seem to be correct.
2. The result therefore is that the appeals fail and are dismissed. The respondents are permitted to withdraw the amount deposited by the appellants in this Court towards costs.
Appeal dismissed.