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TMI Blog2012 (8) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... iled on 8th February, 2002, Provisional Liquidator was appointed and the final winding up order passed on 2nd August, 2005. 3. The appellant claims to have entered into an agreement dated 30th September, 2002 with the Company in liquidation for purchase of land ad-measuring 30,350 sq. ft. situated at Microware Tower, Hardoi Road, Lucknow, Uttar Pradesh, of the Company in liquidation. Co.Appl. No.732/2008 was filed by the appellant for direction to the Official Liquidator to release the said land and to execute Sale Deed in respect thereof in favour of the appellant; alternatively permission to file a suit for specific performance of the agreement to sell dated 30th September, 2002 against the Company in liquidation was sought. Co. Appl. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Uttar Pradesh, the agreement to sell was required to be compulsorily registered and is not so registered; (iii) that an unregistered agreement to sell cannot even be received as evidence of a contract in a suit for specific performance, as per amendment in State of Uttar Pradesh, to Section 49 of the Registration Act. 7. The senior counsel for the appellant however contends, firstly that what the appellant is seeking is a direction for execution of the Sale Deed and which can be executed even in the absence of an agreement to sell; it is only in the alternative that permission to sue for specific performance is sought. Secondly it is submitted that even if the agreement to sell, for the reason of being unregistered, cannot be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the agreement to sell being not registered it is entitled to give other evidence of such an agreement. Section 92 of the Evidence Act also excludes oral evidence of such agreement. 10. The Supreme Court in Bishwanath Prasad Singh v. Rejendra Prasad [2006] 4 SCC 432 reiterated that the rule contained in Section 91(supra) is a doctrine of substantive law, namely that in the case of a written contract all contemporaneous oral expressions of the thing are merged in the writing or displaced by the writing; what it does is to declare that certain kinds of facts are legally ineffective in the substantive law; this results in forbidding the fact to be proved at all. The Supreme Court in K.B. Saha & Sons (P.) Ltd. v. Development Consultant Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this Section, the Court has to take into consideration whether the Company is likely to be exposed to unnecessary litigation and cost. To the same effect is Industrial Credit & Investment Corpn. of India Ltd. v. Srinivas Agencies [1996] 8 SCL 55 SC) and when we apply the said principles, the conclusion is inescapable that no purpose will be served in granting leave/permission to the appellant to sue the Company in litigation for specific performance, when the appellant has no legal or valid agreement to sell recognizable in law in its favour. Granting such a leave/permission would merely put the Company in liquidation to unnecessary cost in defending such a suit and also delay the creditors of the Company in liquidation from the benefits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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