High Court · 2024

Legal Reasoning

(1) SA-184.2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD SECOND APPEAL NO. 184 OF 2024WITH CIVIL APPLICATION NO. 5273 OF 2024Tukaram Chhabu KotkarAppellant Versus1.Chandrakant Pandurang Gattani(deceased) through LRs1-A.Sandhya Chandrakant Gattani1-B.Rohan Chandrakant GattaniRespondentsWITHWITH REVIEW APPLICATION NO. 189 OF 2024IN CIVIL APPLICATION NO. 5272 OF 2024Chandrakant Pandurang Gattani and anotherApplicantsVersusTukaram Chhabu KotkarRespondent...Mr. Amol K. Gawali, Advocate for the appellant and for respondent in Review Petition.Mr. S.S. Bora, Advocate for respondent Nos.1-A and 1-B and for petitioners in Review Petition....CORAM :SANDIPKUMAR C. MORE, J.Dated :3 OCTOBER 2024.ORDER :1.Heard rival submissions on admission.2.The appellant i.e. the original defendant in SpecialCivil Suit No.170/2016 has challenged judgment and decree (2) SA-184.2024.odtdated 20.12.2019 passed in the said suit by the learned CivilJudge, Senior Division, Ahmednagar i.e. the learned trialCourt. The appellant/defendant has also challenged thejudgment and decree dated 06.03.2023 passed by the learnedDistrict Judge-1, Ahmednagar i.e. the learned first appellateCourt in Regular Civil Appeal No. 120/2020 filed against theaforesaid judgment and decree of the learned trial Court. Thelearned trial Court under the impugned judgment and decreedated 20.12.2019, has granted specific performance in favourof the original respondent/plaintiff Chandrakant PandurangGattani on the basis of agreement of sale dated 01.06.2015executed by the present appellant/defendant. The learnedfirst appellate Court, by confirming the said decree, hasdismissed Regular Civil Appeal filed thereon. As such, thepresent Second Appeal is against concurrent findings of boththe Courts below.3.Brief facts are as under :According to the plaintiff, the appellant/defendantexecuted an agreement of sale in respect of the suit land i.e.Gut No.42/2/1 to the extent of 40 R area falling to his sharesituated at Nepti, Taluka and District Ahmednagar for theconsideration of Rs. 7,00,000/- as he was in need of money, (3) SA-184.2024.odton 01.06.2015. On the date of the said agreement to sale, theplaintiff paid amount of Rs. 60,000/- in cash and an amountof Rs. 65,000/- through three cheques to the appellant. Thesaid cheques were encashed by the appellant and as such theappellant received the amount of Rs. 1,25,000/- as an earnestmoney towards the agreement of sale dated 01.06.2015 fromthe original plaintiff. The sale deed of the suit land was to beexecuted in the 11th month after execution of agreement ofsale. However, since the appellant avoided to execute the saledeed, letter and notice were issued to him by the plaintiff.Despite receipt of the same, the appellant did not execute thesale deed. Hence, the aforesaid suit was filed.4.The appellant/defendant resisted the suit on theground that he did not execute any agreement to sale dated01.06.2015 in favaour of the plaintiff. One Nanda Zol was inneed of amount of Rs. 25,000/- in the month of June 2015.She demanded the said amount from plaintiff who was MoneyLender. But the plaintiff told her that the said transactionwould require two witnesses and stamp paper. Therefore, thedefendant stood witness to the said transaction as he wasacquainted with Nanda. Thus, he claimed that he only signedthe stamp paper as witness to the transaction between (4) SA-184.2024.odtplaintiff and Nanda Zol. According to defendant, the plaintiffmisused that stamp paper and prepared concocted story ofthe alleged agreement of sale. 5.The learned trial Court, after conducting the trial,decreed the suit of specific performance filed by plaintiff anddirected the appellant to execute the sale deed of the suitproperty by accepting remaining amount of consideration.The appellant had also challenged the said decree before thelearned first appellate Court, but the learned first appellateCourt dismissed the appeal and confirmed the decree passedby the learned trial Court. Hence, this Second Appeal.6.Learned Counsel for the appellant / defendantsubmits that both the learned Courts below have definitelyerred in granting specific performance in favour of the originalplaintiff contrary to the evidence laid by the parties. He hasraised the following substantial questions of law :(i)Plaintiff has failed to prove execution of allegedagreement to sale.(ii)There was no readiness and willingness on the part ofthe plaintiff to perform his part, but both the learnedCourts held otherwise. (5) SA-184.2024.odt(iii)Both the learned Courts below wrongly interpretedletter dated 20.08.2015 by reading it in evidence andthat too in absence of pleading.(iv)The evidence on record did not show capacity ofplaintiff to purchase the suit property.Learned Counsel for the appellant / defendant alsorelied on the following judgments :(i)N.P. Thirugnanam vs Dr. R. Jagan Mohan Rao & ors(1995) 5 SCC 115(ii)Jagjit Singh vs Amarjit Singh, (2018) 9 SCC 805(iii)J.P. Builders & anr vs A. Ramadas Rao and anr(2011) 1 SCC 429(iv)Vijay Kumar & ors vs Om Parkash, (2019) 17 SCC 4297.On the contrary, learned Counsel for therespondents/original plaintiff vehemently argued that boththe learned Courts below have concurred in holding that theplaintiff established the case of execution of agreement to saleon the basis of cogent evidence and readiness and willingnessof the plaintiff was very much there as he had sent letter aswell as notice asking for performance of defendant as per theagreement of sale, which were refused by the defendant. Hepointed out that defendant/appellant could not establish hisdefence by adducing reliable and satisfactory evidence. Onthe contrary, he gave vital admission in his cross-examination (6) SA-184.2024.odtsuggesting that he had avoided his part to comply theconditions of agreement of sale which was executed by him.Further, it was submitted that even the witness Nanda Zolexamined on behalf of the appellant/defendant, gave vitaladmission and thereby admitted that she had purchasedstamp paper for drafting agreement of sale by the appellant /defendant. Thus, the learned Counsel for the plaintiffsubmits that the substantial questions of law raised by theappellant/defendant are already answered by both thelearned Courts below on the basis of trustworthy evidence,and therefore, the Second Appeal needs to be dismissed atadmission stage only.8.So far as first two substantial questions of law areconcerned, both the learned Courts below have discussed theevidence on record in proper perspective and observed thatplaintiff established execution of agreement of sale dated01.06.2015. He also examined the employee of AhmednagarMerchant Co-operative Bank to prove that the appellant /defendant had received part consideration of the suit landthrough cheques mentioned in the suit. Moreover, plaintiffhas also brought on record letter (Exh.21) and notice (Article-A) asking for specific performance on contract as per the (7) SA-184.2024.odtagreement of sale (Exh.20). It is extremely important to notethat the appellant/defendant in his cross-examination hasclearly admitted that he did not reply either the letter ornotice. Such admission clearly indicates that he was inreceipt of letter (Exh.21) and notice (Article-A). It is alsoevident that the acknowledgment receipts at Exhs.22 and 23indicated that the aforesaid letter as well as notice werereceived by the appellant/defendant and therefore, in thelight of admission on the part of the appellant that hereceived the aforesaid documents,the execution of agreementof sale as well as readiness of plaintiff to perform his part,have been established since the defendant did not reply eitherthe letter or notice.9.So far as the exhibition of letter dated 20.08.2015at Exh.21 is concerned, the learned Counsel for the appellantvehemently submitted that it was wrongly exhibited withoutany pleading to that effect. However, the reference of issuanceof letter is already given in the plaint in para-5. Moreover, theappellant/defendant has also admitted that he received theletter as well as notice. On going through the cross –examination of defendant/appellant he could have answeredthat he did not receive the notice as well as letter, but he (8) SA-184.2024.odtplainly stated that he did not reply that letter or noticemeaning thereby he had already received the same. Not onlythis, but it is extremely important to note that he in thecross-examination, had stated that he was ready to executethe sale deed as per the conditions mentioned in agreement ofsale at Exh.20. Though the learned Counsel for the appellantargued that considering the entire cross-examination thisadmission can be treated as stray admission, but this is notthe only admission on the part of the appellant/defendant.10.It is important to note that theappellant/defendant could not establish his defence that hesigned the agreement of sale (Exh.20) only as a witness to thetransaction between plaintiff and Nanda Zol. Moreover, thereare also material contradictions between the evidence ofappellant/defendant and his witness Nanda Zol. According tothe appellant, Nanda Zol was in need of an amount of Rs.25,000/-, but at the same time Nanda Zol has stated that sheobtained amount of Rs.20,000/- from the plaintiff. Further, itis extremely important to note that Nanda Zol i.e. the ownwitness of defendant has clearly admitted in her cross-examination that she had purchased stamp paper used inExh.20 for executing the agreement by defendant only. (9) SA-184.2024.odtTherefore, considering all these aspects, it is clearly evidentthat the defendant has not come with clean hands and fromhis admissions in the cross-examination and in the light ofthe evidence adduced by original plaintiff, it appears that thedefendant/appellant has suppressed material facts on record.This is also observed by the learned first appellate Court.11.Lastly, the learned Counsel for the appellant /defendant submitted that both the learned Courts below havenot uttered a single word in respect of financial capacity ofthe plaintiff to complete transaction and therefore, thewillingness which includes the financial capacity of theplaintiff, could not be established. He has relied on theobservation of the Hon’ble Apex Court in the aforesaid cases(supra). Sum and substance of the aforesaid judgments isthat for readiness and willingness of the purchaser to performhis part of contract the Court has to examine the capacity ofthe purchaser to pay the amount of sell consideration.However, on going through the aforesaid judgments, it isclearly evident that the aforesaid observation had come onrecord when the plaintiff, despite direction of the Court, failedto deposit the money. In the present matter, no such orderwas there compelling the plaintiff to deposit the balance (10) SA-184.2024.odtamount of consideration from any of the Courts below. Onthe contrary, it has been brought on record that as soon asthe direction for paying balance amount of consideration isissued to the plaintiff by the learned trial court, he depositedthe same without any delay. Moreover, immediately he hadalso issued notice as well as letter mentioning that he wasready with his money. It is extremely important to note thatdespite receipt of said letter and notice, defendant did notreply the same to falsify the contention of plaintiff. Therefore,it cannot be said that there was no willingness on the part ofthe plaintiff as claimed by the appellant. Therefore,considering the facts of this matter, the aforesaid observationof the Hon’ble Apex Court, is not helpful to the appellant.12.Thus, by considering the findings given by boththe learned Courts below and the evidence on record, it hasbeen established on the basis of reliable and trustworthyevidence that the defendant had executed agreement of salein respect of the suit property by accepting partconsideration. The plaintiff also proved his readiness andwillingness to get the sale deed executed. The avoidance ofdefendant / appellant for execution of sale deed has alsobrought on record. Further, it is most important to note that (11) SA-184.2024.odtthe defendant could not establish his defence by adducingreliable and trustworthy evidence. On the contrary, thedefendant and his own witness Nanda gave some vitaladmissions in their cross-examination supporting theplaintiff’s case. Therefore, all the aforesaid substantialquestions of law appear to be answered successfully in favourof the plaintiff on the basis of cogent evidence. Therefore, nosubstance is found in the present appeal and the SecondAppeal stands dismissed at admission stage alongwithpending Civil Application. The Review Application filed by theplaintiff/respondents for setting aside delay condonationorder in filing the present appeal, also stands disposed ofbeing infructuous.(SANDIPKUMAR C. MORE, J.)VD_Dhirde