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TMI Blog2025 (1) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that as Benami Property. Out of the total sale consideration of Rs.471.54 Lakhs for all the impugned properties only Rs.173.00 Lakhs was paid by the 8 alleged Benamidars. The interested party M/s ICON Constructions has also maintained that none of the Benamidars acquired any rights, interest and title to the impugned properties. Therefore M/s ICON Constructions continue to remain owner and in possession of the impugned properties. M/s ICON Constructions maintained that they had rented the commercial units to tenants for which they received the rental income. In view of this, the applicability of Section 2 (9) (A) is doubtful as neither the impugned properties were transferred to the alleged Benamidars nor the impugned properties were held by the alleged Benamidars. Even if we accept that there were cash infusions into the bank accounts of the alleged Benamidars, there is no evidence on record as to show that such infusions were made by the Beneficial Owner. Thus we find that neither the properties which have been provisionally attached are Benami nor the transactions which have occurred with respect to the impugned properties are Benami. We are therefore unable to interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld give evidence for the source of cash deposits in their respective bank accounts which were utilized to give advance for the purchase of property from M/s ICON Constructions. The IO concluded on examination of the materials/document on record, that consideration for properties were provided by Shri Rachakonda in form of cash which was later deposited into the respective bank accounts of the alleged Benamidars and routed to the vendor as consideration. Accordingly, agreements were entered between them for purchasing the properties in the name of these Benamidars for immediate or future benefits of the Beneficial Owner (BO). Moreover, some of the Benamidars, namely Smt. Sudha Rani, B Krishna Kumari, B. Ashwinipriya, B. Gouthami Priyanka and B. Sree Hari Babu are distant relatives of Sh. Rachakonda. Subsequent conduct of Shri. Rachakonda such as collecting rent and enjoying the property corroborated that there was motive of the BO in getting the properties in the name of the Benamidars. 4. Ld. Counsel for the Appellant further submitted that the term 'Benami Transaction' is defined under Section 2 (9) of PBPTA, which provides that where a property is transferred to, or is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.5 in the Ground Floor admeasuring 1011 sq. ft. of built-up area with 2 car parking along with an undivided share of 43 sq. yards, out of total extent of 2608 sq. yards, bearing H.N.1-7-392 to 394, in the building named as CVK PARK SQUARE situated at Sarojini Devi Road, Secunderabad B. Sree Hari Babu Rs.20, 50,000 (Out of the total Sale Consideration of Rs. 70, 77, 000). 6. Commercial Unit bearing Shop No.4 in the First-Floor admeasuring 945 sq. ft. of built-up area with 2 car parking along with an undivided share of 37 sq. yards, out of total extent of 2608 sq. yards, bearing H.N.1-7-392 to 394, in the building named as CVK PARK SQUARE situated at Sarojini Devi Road, Secunderabad. B. V. Ashwini Priya Rs.26,50,000 (Out of the total Sale Consideration of Rs.47, 25, 000). 7. Commercial Unit bearing Shop No.4 in the First-Floor admeasuring 945 sq. ft. of built-up area with 2 car parking along with an undivided share of 37 sq. yards, out of total extent of 2608 sq. yards, bearing H.N.1-7-392 to 394, in the building named as CVK PARK SQUARE situated at Sarojini Devi Road, Secunderabad. B. V. Gauthami Priyanka Rs.26,50,000 (Out of the total Sale Consideration of Rs.47, 25, 000). 8. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. Moreover, PBPTA is not applicable to this case as the agreement of sale for the purchase of the impugned properties was executed on 27.10.2016 with all future benefits accruing to them only upon completion of construction and transfer of title. The agreements to sale were not finally executed and converted in the form of sale, till date. Since the amended PBPTA came into force only from 1st November 2016, hence, there is no scope for retrospective application of the punitive law. Ld. Counsels also contended that the Benamidars Respondents directly entered in an Agreement of Sale with M/s ICON Constructions to purchase the properties for which they paid the requisite considerations from their own sources through proper and valid banking channels. Ld. Counsel for Shri Rachakonda, the BO, submitted that the alleged Benamidars entered into direct agreement to sale with M/s ICON Constructions to purchase the impugned properties for an agreed consideration and separate agreements have been signed by each of the parties involved therein. The Ld. Counsels for the Benamidars submitted that the Benamidars arranged for the amounts through their own sources and paid the same directly to M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale. A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property It is therefore obvious that the contract of Agreement to Sale does not bestow any interest in or charge of such property. Ld. Adjudicating Authority has therefore correctly held that the impugned properties had not yet been transferred from M/s ICON Constructions to the alleged Benamidars. 11. We find that in several judgments the Hon ble Supreme Court has held that an Agreement to Sale does not create an interest or charge in favor of the proposed vendee in the suit property. In the Judgment dated 25.08.2004 the Hon ble Supreme Court in the matter of Rambhau Namdeo Gajre versus Narayan Bapuji Dhotra (dead) through LRS. [(2004) 8 SCC 614] stated the aforementioned in the following paragraphs:- 13. The agreement to sell does not create an interest of the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant State when it seeks to enforce the provisions of the Act against the tenure-holder, proposed transferor of these lands. (emphasis supplied) There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part-performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfilment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. The appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operties. Therefore M/s ICON Constructions continue to remain owner and in possession of the impugned properties. M/s ICON Constructions maintained that they had rented the commercial units to tenants for which they received the rental income. In view of this, the applicability of Section 2 (9) (A) is doubtful as neither the impugned properties were transferred to the alleged Benamidars nor the impugned properties were held by the alleged Benamidars. 15. Even if we accept that there were cash infusions into the bank accounts of the alleged Benamidars, there is no evidence on record as to show that such infusions were made by the Beneficial Owner. In this regard the following has been the finding of the Ld. Adjudicating Authority: - The Ld. IO invokes Section 2(9) but fails miserably to show what and how any consideration has been paid/provided by the alleged beneficial owner used for the purpose of acquiring the impugned property. No nexus with D- 9[alleged BO] has been established for the payment of advances made by the Defendant (D-1 to D-8)[alleged Benamidars] directly to the builder (D-10) [Interested party] pursuant to the Agreement to Sale. The onus of proving unequivocally a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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