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TMI Blog2021 (5) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act, 1973 (FERA), which is a mandatory requirement. Counsel submits that the fact that Mrs. Helen Wilson was a foreign national would appear from a letter dated 14th December, 1989, which has been referred to in the plaint and further that the fact that the Reserve Bank of India has not granted any permission to Mrs. Helen Wilson save and except permitting her to hold the property would also be evident from a letter dated 8th October, 1993 which is part of the application. Counsel relies on Section 31(1) of FERA to submit that transfer of immovable property of a foreign national without prior or general or special permission of the Reserve Bank of India would be unenforceable in law and relies on Asha John Divianathan vs. Vikram Molhotra; in Civil Appeal No.9546 of 2010 in this regard. Counsel relies on Mayawanti vs. Kaushalya Devi; (1990) 3 SCC 1 in support of the proposition that specific performance of a contract can only be in relation to existence of a valid and enforceable contract. It is also submitted that although FERA was subsequently repealed, the said Act was in operation at the relevant point of time and hence required mandatory compliance of Section 31(1) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce compelled to file a suit for specific performance for execution of the registered conveyance since admittedly no transfer of property has taken place. 5. I have considered the submissions of learned counsel appearing for the parties. To put the matter in perspective, the present suit has been filed by the plaintiff for specific performance of an agreement for sale dated 2nd January, 1989. The vendor, Helen Wilson, died during the pendency of the suit and her legal heirs, defendant nos.1 and 2, were substituted in place of the deceased Helen Wilson. The defendant nos. 2A and 2B are the legal representatives who were later substituted in place of the defendant no.2. The defendant no.3 claims to be the sole Executor of the Will of the deceased vendor Helen Wilson. Upon the demise of the original plaintiff on 22nd December, 2020, the legal heirs of the original plaintiff have also been substituted in his place and stead. 6. The present application has been filed by the defendant no.3 for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure, on the ground that the suit is barred by law; Order VII Rule 11(d). It is the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reiterated in Rambhau Namdeo Gajre where the Supreme Court held that in view of Section 54 of the TP Act, sale of property exceeding Rs. 100/- does not, by itself, create any interest in the property unless the property is registered by executing a Sale Deed. The stage at which permission from RBI is to be obtained under Section 31(1) of FERA would also be evident from "Form IP12" of the Forms prescribed by the RBI for application for permission under Section 31(1) to transfer or dispose of immovable property in India. This Court, therefore, agrees with the contention made on behalf of the plaintiff that general/special permission of RBI under Section 31(1) of FERA is required to be obtained before execution of the Sale Deed and registration of the same and not before entering into an agreement for sale. 10. In Vishwa Nath Sharma, a defence was taken by the vendor that the agreement for sale was void as prior permission of the concerned Officer had not been obtained in violation of a specific condition of the lease deed which provided that no transfer was permissible without prior permission of the Land and Development Officer. The Supreme Court, relying on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would remain an offence under FERA for the purpose of taking notice of the contravention for a period of two years from 1st June, 2000 when FEMA came into force. The FERA sun would thus statutorily - set - forever on 30th May, 2002. Section 51 of FERA, which is mentioned in Section 49(3) of FEMA, in relation to the Court taking cognizance of a contravention under Section 51, relates to the power of the Adjudicating Officer to judge whether any person has contravened any of the provisions of FERA other than those referred to in Section 50 of FERA. S.K. Sinha considered the effect of Section 49(3) of FEMA and held that to take cognizance of would mean "to take notice of judicially" and clarified that the expression "cognizance" indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence. The aforesaid decision assists the plaintiff/respondent in limiting the Court's power to take judicial notice of the contravention of Section 31(1) of FERA at the time of entering into the agreement for sale dated 2nd January, 1989. It is relevant to state that Section 6 of the General Clauses Act, 1897, - "Eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions for sale, was entitled to possession of the suit property. The facts of the decision makes it evident that the permission from RBI under Section 31 of FERA must be obtained after entering into an agreement for sale but before executing a registered conveyance as was done by the predecessors of the appellant in Asha John Divianathan. The registered gift deeds were declared void by the Supreme Court since they were executed for the purpose of transferring the property without the permission of RBI. In the facts of this case, the letter of 14th December, 1989 makes it clear that only the agreement for sale had been entered into which thus necessitated the plaintiff seeking specific performance of the agreement or in other words for the execution of the registered conveyance by the original defendant. The subject matter of challenge by the defendant no.3 for dismissal of the suit is the agreement for sale. Since the suit is for specific performance of the agreement, transfer of property had admittedly not taken place on the date of filing of the suit. Prayer (b) of the plaint makes the aforesaid position clear. By this prayer, the plaintiff has sought for a decree directing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dismissal of the suit under Order VII Rule 11(d) of The Code of Civil Procedure, 1908- "where the suit appears from the statement in the plaint to be barred by any law". The statement in the plaint has been made with reference to the letter dated 14th December, 1989 from the lawyers of the plaintiff to Helen Wilson which reveals that Helen Wilson was a foreign national and hence came within the statutory requirement of Section 31(1) of FERA. This letter also reveals that Helen Wilson may not have had the permission of the RBI or communicated such permission to the plaintiff as on 14th December, 1989 which would be corroborated by the letter of 8th October, 1993 of the RBI granting permission to Helen Wilson under Section 31(1) of FERA. The letter of 8th October, 1993 has been brought on record by the applicant defendant no.3 as a part of the application for dismissal of the suit. Order VII Rule 11(d) applies where the plaint, on the face of it, is barred by law and the contravention of the law must be clear and unambiguous from the plaint itself. A Court which is called upon to decide the issue cannot engage with the alleged statutory violation or the fact to be determined beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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