Senior Advocate, along with Shri Sanjay S.Dudhane, Advocate, instructed by Shri v. R. Dhorde
Case Details
2025:BHC-AUG:8045 sa-339 of 2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 339 OF 2024Anil Chhabildas Chaudhari,Age : 52 years, Occu. : Business,R/o. New Area Ward, Bhusawal… APPELLANT VERSUSSau. Mamata Sudhakar Sananse,Age : 42 years, Occu. : Household,R/o. 13, Sadguru Housing Society,National Highway No. 6,Behind Pooja Complex, Bhusawal … RESPONDENTS Shri R. N. Dhorde, Senior Advocate, along with Shri Sanjay S.Dudhane, Advocate, instructed by Shri V. R. Dhorde, Advocate forthe AppellantShri Rajendra Deshmukh, Senior Advocate instructed by ShriPraveen B. Gamot, Advocate for Respondent.CORAM:ROHIT W. JOSHI, J.DATE:05th MARCH, 2025J U D G M E N T :1.The present second appeal is filed against judgment anddecree dated 08.08.2022 passed by the learned Civil Judge SeniorDivision, Bhusaval in Special Civil Suit No. 24 of 2020 andjudgment and decree dated 24.11.2023 passed by the learnedDistrict Judge -3, Bhusawal in Regular Civil Appeal No. 42 of 2022.The appellant in the appeal is the original defendant against whomdecree for specific performance of contract is passed in the civilsuit. Simultaneously, the counter claim of the defendant seekingdeclaration that the agreement in question was a false and1 of 26
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sa-339 of 2024.odtfabricated document, was also rejected. As stated above, the appealpreferred by defendant is to be dismissed by the learned AppellateCourt.2.The present respondent had filed suit for specificperformance of contract with respect to Shop Block Nos. G-14, G-15, G-16 and G-19 ad-measuring 102.07 sq.mtrs. situated at SurveyNo. 147/01/01 in final plot No. 3-A/02 at Bhusaval. It is the case ofthe plaintiff that the defendant was in need of money for contestingelection and in order to augment funds, he wanted to sell the suitshops immediately. According to the plaintiff, the defendantcontacted one Tanaji Shantaram Patil, a property dealer, who was afriend of husband of the plaintiff. She claims that the said TanajiPatil came with a proposal for purchase of the suit shops andaccordingly, a meeting of plaintiff, her husband, Tanaji Patil and thedefendant was held wherein the plaintiff agreed to purchase thesuit shops for a total consideration of Rs. 60,70,000/-. The totalsale consideration of Rs. 60,70,000/- came to be paid to thedefendant on 19.10.2019 by online transfer under two transactionsof Rs. 30,35,000/- each. The plaintiff claims that he had paid stampduty of Rs. 3,64,200/- on the draft of the said deed, which wasprepared by one Mr. B. G. Chavan, stamp vendor. The plaintiff alsocontends that the sale deed came to be executed by her and the2 of 26 sa-339 of 2024.odtdefendant by putting their signatures and thumb impression. Thehusband of the plaintiff and broker Tanaji signed the sale deed asattesting witnesses and the sale deed was lodged for registrationwith the Sub-Registrar on 30.10.2019 along with registration fee ofRs. 31,400/-. The contention of the plaintiff is that despite havingreceived the entire sale consideration and also having executed thesale deed as aforesaid, the defendant avoided to visit the office ofSub-Registrar for completing the formalities regarding registrationof sale deed. The plaintiff has alleged that the defendant gaveevasive replies whenever inquiries were made with respect toregistration of sale deed. The plaintiff issued a letter dated07.02.2020 calling upon the defendant to complete the formalitiesregarding registration of sale deed and to deliver physicalpossession of the suit shops. The plaintiff has stated that Sub-Registrar has also issued two communications to the defendant on13.02.2020 and 09.06.2020, calling him to complete theregistration formalities, however, the defendant did not do theneedful. In the circumstances, the plaintiff filed suit for specificperformance of contract. The prayer in the suit is for directions tothe defendants to complete the formalities regarding registration ofthe sale deed executed by the defendant in favour of the plaintiffand for delivery of possession of the suit shops.3 of 26 sa-339 of 2024.odt3.The defendant filed written statement and counter claim inthe matter vide Exhibit 13 on 28.07.2020. The defendant has comeup with a case that he was in need of money during the electionperiod for his personal and household expenses. He claims that thebroker Tanaji Patil and husband of the plaintiff had friendlyrelations with him and when the broker Tanaji Patil came to knowabout financial need of the defendant, he made an offer to thedefendant to give him hand loan. He states that in suchcircumstances, taking unfair advantage of the fact that thedefendant was busy with elections, the broker, Tanaji Patil obtainedhis signature and thumb impression on a blank paper. He hasdenied that he had entered into any agreement with plaintiff withrespect to the suit shops. He claims that on receiving letter dated07.02.2020 from the plaintiff, he realized that the plaintiff, herhusband, Tanaji Patil-Broker and some unknown persons hadpracticed fraud on him and misused the paper bearing hissignature and thumb impression to create a false document of saledeed with respect to suit shops. In the light of above pleadings, hesought a declaration that the sale deed with respect to the suitshops is a false and fabricated document and that the document isnot a document of sale but a document for hand loan.4 of 26 sa-339 of 2024.odt4.The respondent filed written statement opposing the counterclaim. The respondent denied all adverse allegations andcontended that the transaction was one of sale and not of handloan. 5.Based on rival pleadings, the learned Trial Court framedissues. The parties led evidence in the matter. The respondentplaintiff examined her husband Sudhakar and the broker, TanajiPatil as witnesses. The defendant-appellant examined fourwitnesses namely the defendant himself, his son Sandesh @RushiShukla and Ashlesha Devtale. The son of the defendant Dhiraj andSandesh Shukla are examined as witnesses to the hand loantransaction and Ashlesha is examined in order to demonstrate thatthe suit shops were in possession of ICICI bank. 6.After recording the evidence and hearing arguments in thematter, the learned Trial Court was pleased to decree the suit withcosts by directing the defendant to complete the process ofregistration of sale deed and to deliver possession of the suit shopsto the plaintiff. Simultaneously, counter claim filed by theappellant-defendant came to be dismissed. The learned Trial Courthas observed that the version of the plaintiff appeared to bereasonable and more probable since it was proved by documentaryevidence i.e. transfer of money coupled with execution of the sale5 of 26 sa-339 of 2024.odtdeed. The learned Trial Court has held that receipt of saleconsideration of Rs. 60,70,000/- was not in dispute and executionof the sale deed was duly proved by the witnesses examined by theplaintiff. As regards the defence set up by the appellant, the learnedTrial Court has observed that his version did not inspire confidence.The learned Trial Court has observed that the sale deed executed bythe defendant was accompanied by several attachments/annexuressuch as tax receipts of suit shops, tax assessment extract of suitshops, Aadhar Card and PAN Card of defendant-appellant , copy ofmap of the building. The learned Trial Court has observed that thedefendant appellant prayed to offer any plausible explanation as tohow these documents were received by respondent. The learnedTrial Court found the defence set up by the appellant defendantunbelievable and accordingly decreed the suit of the respondentplaintiff and dismissed counter claim filed by appellant defendant.7.The learned Appellate Court has also confirmed the findingsand has dismissed the appeal filed by the appellant-defendant. Thelearned First Appellate Court has also recorded similar findingsafter making assessment of the oral and documentary evidence onrecord in the backdrop of rival pleading.8.Learned senior advocate, Mr. Dhorde has contended that thesale deed is an outcome of fraud practiced by husband of the6 of 26 sa-339 of 2024.odtrespondent and the broker-Tanaji. He contends that the appellantwas in urgent need of money and was also busy with the elections.In such circumstances, taking unfair advantages of the situation,the husband of respondent and the broker-Tanaji obtainedsignature and thumb impression of the appellant on a blank paperutilizing which the sale deed is prepared. He contends that thetransaction was a loan transaction and not a transaction of sale andtherefore, the appellant had signed a blank paper and had put histhumb impression on the same as instructed by husband of thedefendant and the broker. Apart from this, a contention is raisedthat the suit ought to have been dismissed. Since the respondent-plaintiff did not herself enter the witness-box, although she hassigned the plaint. He contends that husband of respondent-plaintiffcould not have been examined as a witness in place of the plaintiff.He further admits that although there is a recital in the sale deedthat possession is delivered to the respondent-plaintiff, as a matterof fact possession was never delivered which is apparent from theprayers in the plaint itself. His contention is that the very fact thatpossession is not delivered would conclusively establish that thetransaction was one of loan and not of sale.9.Mr. Dhorde has drawn my attention to the plaint, which issigned by the respondent plaintiff herself. The respondent plaintiff7 of 26 sa-339 of 2024.odthas thereafter executed a power of attorney in favour of herhusband, who has entered the witness-box on her behalf. Thepower of attorney is dated 17.06.2021. Mr. Dhorde contends thatthe suit ought to have been dismissed on the ground that theplaintiff did not enter the witness-box and instead examined herhusband as a witness. He contends that the power of attorney atExhibit 39 is dated 17.06.2021, whereas the alleged sale deed isdated 19.10.2019 and the suit is filed on 06.07.2020. Hiscontention is that the power of attorney is executed after the dateof alleged sale deed and date of filing of suit and therefore,evidence of husband of the plaintiff ought to have been discarded.He has placed reliance on judgment of the Hon’ble Supreme Courtin the matter of Mohinder Kaur Vs. Sant Paul Singh reported in(2019) 9 SCC 358 in support of his contention. As against thislearned senior counsel Mr. Rajendra Deshmukh appearing onbehalf of respondent plaintiff has placed reliance upon a judgmenton this Court in the matter of Shankar s/o Ratiram Bhure Vs. Smt.Seetadevi w/o Vishnukumar Modi reported in 2006 (2) Mh.L.J. 511to contend that a power of attorney is a competent witness for factswhich are within his personal knowledge.10.Perusal of the pleadings in the plaint will indicate that thehusband of the respondent defendant has actively participated in8 of 26 sa-339 of 2024.odtthe matter from the stage of negotiation. He is also attestingwitness to the sale deed. The pleadings in the written statementand counter claim will also demonstrate that even according to theappellant-defendant, the husband of the plaintiff-respondent wasactively involved in the transaction, right from the beginning. Ihave perused the depositions of husband of the plaintiff. All thefacts on which he has deposed are within his personal knowledge.In that view of the matter, I am of the considered opinion that thesituation in the case at hand is covered by judgment of this Court inthe matter of Shankar Bhure (supra). In the said case, father-in-lawof the plaintiff, who had issued the rent note was examined aswitness on the basis of power of attorney. Similar objection wasraised that power of attorney cannot be a witness for the plaintiff.However, the objection was rejected on the ground that the powerof attorney holder was deposing on the basis of his personalknowledge.11.The judgment in the matter of Mohinder Kaur (supra) statesthat a power of attorney holder cannot act as a witness on behalf ofhis principal with respect to facts that had taken place prior to thedate of execution of power of attorney when he does not havepersonal knowledge about facts that had taken place prior to thedate of execution of power of attorney. The said judgment does not9 of 26 sa-339 of 2024.odthelp the appellant defendant in the present case since the power ofattorney holder of the respondent plaintiff in the present case is herhusband who is a competent witness for the plaintiff in view ofSection 120 of the Indian Evidence Act and also becauseundisputedly he was involved in the transaction right from itsinception. The power of attorney holder husband has personalknowledge about all the facts of the case and is therefore, acompetent witness.12.It may be mentioned that the submission also deserves to berejected in view of Section 120 of the Indian Evidence Act, whichstates that in any civil proceeding husband will be a competentwitness for the wife. 13.The contention of the learned senior counsel for theappellant raising objection to the examination of husband of theplaintiff and further calling upon this Court to draw adverseinference against the respondent plaintiff for not entering thewitness box is therefore, rejected. In the facts of the present case,the husband of the respondent plaintiff was a competent witnessand since he was aware about all the facts of the case, adverseinference cannot be drawn against the plaintiff for not entering thewitness-box and examining her husband and power of attorneyholder on her behalf.10 of 26 sa-339 of 2024.odt14.Mr. Dhorde contends that the respondent plaintiff had failedto prove the case regarding any agreement between the parties forsale of the suit shops. He contends that in the absence of anycredible evidence as regards the agreement, which culminated intothe execution of sale deed, decree for specific performance couldnot have been passed. He has drawn my attention to the finding bythe learned Trial Court with respect to issue Nos. 1, 2, 3 and 6,which deal with oral agreement between the parties, payment ofsale consideration, execution of sale deed as per agreement andallegation of appellant defendant that the sale consideration was infact a hand loan.15.The learned Trial Court has held that as per the case ofrespondent plaintiff since the defendant was in need of money, hewanted to sell the suit property immediately and for that purpose ameeting of plaintiff, her husband Tanaji-Broker and the defendantwas held, wherein the respondent plaintiff agreed to purchase thesuit property for a consideration of Rs. 60,70,000/-. The learnedTrial Court has observed that till this stage the agreement that isarrived at was oral agreement. The learned Trial Court has heldthat this oral agreement has then culminated into the execution ofsale deed. The learned Trial Court has held that the payment wasalso made through the bank transfer and as such the case of the11 of 26 sa-339 of 2024.odtplaintiff-respondent was proved by documentary evidence namelythe sale deed and the bank account statement. The learned TrialCourt has then referred to the oral evidence of husband ofrespondent plaintiff and Tanaji Patil to hold that the transactionwas duly proved.16.Mr. Dhorde, the learned senior counsel has argued that thelearned Trial Court has recorded findings of fact which are not evenpleaded by the respondent plaintiff in the plaint. Referring to theplaint averments, he contends that it is not even the case of therespondent plaintiff that any oral agreement was entered intobetween the parties with respect to the sale transaction. Hetherefore, contends that the findings recorded by the learned TrialCourt is perverse and warrants interference at the hand of thisCourt in exercise jurisdiction under Section 100 of Civil ProcedureCode. Drawing attention to the reasons recorded by the learnedFirst Appellate Court, he contends that similar error is committedby the learned Appellate Court as well. 17.The case of the respondent plaintiff is based on the documentof sale deed executed by the parties. Respondent plaintiff hasaverred about meeting that was held between the parties alongwith husband of respondent plaintiff and the broker in which the12 of 26 sa-339 of 2024.odtdeal was struck. Referring to this meeting and the decision arrivedat during the course of discussions and deliberations, the learnedTrial Court has recorded that parties had arrived at oral agreementwhich is evidenced by a written document i.e. the sale deed. Thefindings recorded by the learned Trial Court are required to beappreciated in the context. The learned Trial Court has referred tothe discussions and deliberations between the parties under whichthe transaction was finalized. This is referred to by the learned TrialCourt as oral agreement. I do not find any error or perversity insuch finding. It is obvious that before execution of any documentparties will engage in discussions, deliberations and negotiations.Such discussions and deliberations are normally held verbally. Onceparties arrive at consensus ad idem, the document is prepared. Thecontents of document are then cross checked to confirm that theyreflect the bargain correctly and thereafter, the document isexecuted. This is a normal sequence of events in any giventransaction. The sequence of events in the present case has alsounfolded in the same manner. There was a meeting in which dealwas finalized and accordingly sale deed was drafted and executed.Merely because the word ‘oral agreement’ is used by the learnedTrial Court, it would not mean that the case of the respondentplaintiff is for specific performance of oral agreement. The case of13 of 26 sa-339 of 2024.odtthe respondent plaintiff is for specific performance of contract inthe sense that the respondent plaintiff seeks directions against thedefendant appellant to complete formalities with respect toregistration of the sale deed. I do not find any fault with thefindings recorded by the learned Court in this regard.18.The learned senior counsel Mr. Dhorde next contends thatthere is inconsistency in the version of the plaintiff’s witness Nos. 1and 2 with respect to the date on which inspection of property wastaken by the plaintiff. He contends that whereas PW1, the husbandstates that he had visited the suit property on 17.10.2019 alongwith the broker Tanaji, the broker who is examined as PW2 statesthat the property was shown to the plaintiff and her husband on18.10.2019. He further contends that there is a positive recital inthe sale deed that possession of the suit property was delivered tothe purchaser that is to plaintiff whereas in the plaint it is statedthat possession was not delivered and a specific prayer is made fordelivery of possession. He further contends that the sale deed doesnot refer to any talks that were allegedly held between the plaintiffand the defendant in relation to the agreement of sale or of the saledeed. This according to him are material inconsistencies, which aresufficient to falsify the case set-up by the plaintiff. He therefore,contends that the version of the plaintiff should not have been14 of 26 sa-339 of 2024.odtbelieved and the version of the defendant that the transaction wasa loan transaction should have been accepted. He states that thefindings recorded by the learned Courts with respect to thetransaction are perverse and warrant interference in the presentsecond appeal on that count. 19.Per contra, Mr. Rajendra Deshmukh contends that the oraltalks between the parties had culminated in a written document,which is undisputedly signed by the defendant. He contends that itwas agreed that possession would be handed over at the time ofregistration of sale deed and as such sale deed records thatpossession is handed over. As regards the particulars of the talksbetween the parties not being mentioned in the sale deed hiscontention is that it was not necessary to mention all those thingsin the sale deed. The contention of Mr. Deshmukh is that whensignature of the defendant appears on the sale deed and it is hiscase that blank paper was misused in order to create document ofsale, the burden will be squarely on the defendant to properlyplead and prove his case. He contends that there will always be apresumption in favour of the plaintiff that the written documentwhich is executed by the defendant is duly executed.20.As regards the difference in the date on which the plaintiffvisited the suit property, I find that the said inconsistency in the15 of 26
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sa-339 of 2024.odtversion of PW1, husband of plaintiff and PW2 broker is not amaterial inconsistency. The husband has deposed that they hadvisited the property for inspection on 17.10.2019, whereas thebroker had stated that he had shown the property on 18.10.2019.In my considered opinion this variation of one day is not a materialvariation or material contradiction. The depositions of thesewitnesses are recorded in the year 2021 and in such circumstancesdifference of one day in specifying the date on which the propertywas visited cannot by any stretch of imagination be termed to be amaterial contradiction, rendering their versions unbelievable.21.The contention of Mr. Dhorde with respect to possession alsodoes not appeal to reasons. Normally, a purchaser takes possessionof the demised property upon execution and registration of the saledeed. Therefore, in almost every sale deed, where possession is tobe delivered upon execution and registration of sale deed there is acovenant stating that vendor has delivered possession to thepurchaser. In the present case also such covenant is mentioned inthe sale deed. Possession is actually delivered in normaltransactions upon execution and registration of the sale deed. Inthe present case also since the sale deed was not registeredpossession was not delivered. The fact that the sale deed records16 of 26 sa-339 of 2024.odtthat possession is delivered whereas in fact possession was notdelivered is quite normal and hardly takes the case of the appellantany further. It must also be mentioned that at the relevant timeICICI Bank Ltd. was in possession of suit shops as tenant ofappellant. Although the Branch at suit shops was shifted to otherlocation on 09.09.2019, possession was delivered by ICICI BankLtd. to appellant initially on 03.12.2019 and thereafter uponcarrying out necessary repairs on constructions of appellant, vacantpossession was finally delivered on 03.01.2020.22.The learned counsel for the appellant has placed reliance onjudgment of the Hon’ble Supreme Court in the matter of SureshChandra Roy Vs. Sudhir Chandra Biswas reported in (2018) 17SCC 242. In the case before Hon’ble Supreme Court, a suit fordeclaration of title and injunction against forcible dispossession andredemption of mortgage was filed with respect to writtenagreement dated 28.10.1970 claiming that the document reflecteda loan transaction and not an outright sale as mentioned in thedocument. Placing reliance on order passed by revenue authorityon 03.04.1975, the appellate Court and High Court recorded afinding that the vendor-mortgager was in possession of theproperty which suggested that the transaction was one of mortgageand not of sale. Placing reliance on the said judgment Mr. Dhorde17 of 26 sa-339 of 2024.odtcontends that in the present case also the vendor-defendant is inpossession of the suit property despite execution of the sale deedand therefore, the sale deed must he held to be a mortgage. I amafraid, the said contention cannot be accepted. In the judgmentbefore the Hon’ble Supreme Court, the document in question wasdated 28.10.1970. The revenue authority had passed order dated03.04.1975 stating that the vendor continued to be in possession ofthe property. There was a time lag of five years from the date ofexecution of the document while by the vendor was in possession.The vendor himself filed suit for redemption of mortgage. In thecase at hand, the sale deed is executed on 19.10.2019. The saledeed was presented for registration on 30.10.2019 when thedefendant vendor did not turn up for completing registrationformalities. The plaintiff has filed suit for specific performance ofcontract in such circumstances. The sale transaction in the presentmatter was not completed since the document of sale deed was notregistered. Having regard to distinguishing features of both thecases, I am of the considered opinion that the judgment of theHon’ble Supreme Court cannot come to assistance of thedefendant-appellant in the present matter. The distinguishingfeature in both the cases is that in the matter before the Hon’bleSupreme Court despite execution of the purported sale deed in the18 of 26 sa-339 of 2024.odtyear 1970 the vendor-mortgager continued to be in possession ofthe property for a long period. It appears from reading of thejudgment that the purchaser-mortgagee did not take steps forrecovery of possession. In such circumstances the Hon’ble SupremeCourt has upheld findings recorded by the Court that the documentwas one of mortgage and not an outright sale. 23.Similarly, the contention that details of talks with respect tofinalization of delay are not mentioned in the sale deed will alsonot mean that such talks were never held. Differentscribes/draftsman draft documents differently. Some mention allthe details from the inception till the finalization of the deal i.e. thestage of parties arriving at consensus ad idem and then mention theagreed terms and conditions, whereas some simply mention theterms and conditions agreed upon. The fact that details of earliernegotiations and talks are not mentioned in the document istherefore, immaterial.24.The defendant has specifically come up with a case of fraud.Pleadings in a case of fraud or misrepresentation must confirm tomandate of Order VI, Rule 4 of the Civil Procedure Code. Whereasthe general rule of pleadings is that a plaintiff or defendant mustmention material facts, Order VI Rule 4 of the Code of CivilProcedure makes an exception with respect to case of fraud,19 of 26 sa-339 of 2024.odtmisrepresentation etc. The said provision states that pleading withrespect to fraud misrepresentation etc. must contain the materialfacts with all material particulars. It is the case of defendant that hewas in urgent need of money and taking unfair advantage of thehaste during election time, his signature was obtained on blankpaper and the same was used for preparing a false document ofsale deed. The defendant has to stick to these allegations. Hecannot conduct a roving inquiry in the matter with an attempt tomake out a case of fraud. A case of fraud will have to be made outwithin the four corners of pleadings. In case where a party pleadsfraud his pleadings and proof must go hand in hand. There cannotbe any divergence between the pleadings and the evidence. In thisregard it needs to be mentioned that it is the positive case of thedefendant that the husband of the plaintiff and the broker were hisfriends and therefore, he relied on them while signing blank paperwhich was then misused to create the sale deed. This is thefoundation of his case. However, in his cross examination, he hasstated that he does not know the plaintiff and her husband. Thepleading and evidence are therefore, self-contradictory. Thestatement in his deposition that he does not know the plaintiff andher husband is sufficient to demolish his case of fraud. Itcompletely belies the case of the defendant that the husband of20 of 26 sa-339 of 2024.odtplaintiff and the broker were known to him and therefore, keepingfaith in them , he signed blank paper which was misutilised tofabricate the sale deed. 25.It is undisputed that the defendant has signed the sale deed.He also does not dispute his thumb impression which appears onthe sale deed. The defendant has signed all six pages of the saledeed. Perusal of the sale deed does not indicate that the content ofthe sale deed is typed in a manner so as to adjust the signatures ofparties. At first five pages of the sale deed the signature at thedefendant appears at the left hand side bottom of the page whereason the last page the signature appears somewhere in the lowermiddle half of the page besides his photograph. Besides thesignature on page no. 6 thumb impression of the defendant isappearing. The signatures and thumb impression of the plaintiff arebelow the signature and thumb impression of defendant.Signatures of witnesses appear thereafter. The manner in which thesignatures and thumb impressions appear in the document does notcreate any doubt with respect to due execution. The case of thedefendant in that his signature was obtained on blank paper iscompletely unbelievable. It must also be mentioned that thepleading in paragraphs 1, 3 and 9(b) in the written statement-cum-counter claim is regarding signature and thumb impression on a21 of 26 sa-339 of 2024.odtblank paper and not blank papers. However, in paragraph 9(a) it isstated that signatures were obtained on blank papers. Thepleadings are clearly inconsistent. There is no plausible explanationby the defendant for the signatures that appear on all the pages ofthe sale deed. Apart from this, the learned Courts have rightly heldthat there is no explanation with respect to the photograph, AadharCard and PAN Card of the defendant, which are annexed with thesale deed.26.The Hon’ble Supreme Court has in the matter of GrasimIndustries Ltd. and Ors. Vs. Agarwal Steel reported in (2010) 1 SCC83 held that when a person signs a document, there is apresumption that he has read the document properly and hasunderstood it and only then he has affixed his signature on thedocument. The Hon’ble Supreme Court has stated that unless sucha presumption is drawn, no signature on a document can ever beaccepted. It is further held that a presumption is stronger, when thesignatures are of businessmen who are careful people whonormally do not sign document without reading and understandingthem. What applies to a businessmen should also apply to apolitician like the defendant.27.It was therefore for the defendant to plead and prove his caseproperly to dislodge the said presumption. However the pleadings22 of 26 sa-339 of 2024.odtof the respondent are insufficient to dislodge the presumption. Thepleadings do not address all the adverse circumstances that appearon record.28.It is cardinal principle of law that burden of proving fraudalways lies upon a person who alleges it. Fraud is required to bepleaded properly and then proved strictly in accordance with thepleadings. Absence of proper pleadings with all particulars do noteven give rise to an issue on case of fraud. If the pleadings are notclear, precise and specific, case of fraud set up by a party cannot beeven be taken up for consideration. In such cases it must be heldthat no triable issue is made out. Reliance in this regard can beplaced on judgment of the Hon’ble Supreme Court in the matter ofBishnudeo Narayan Vs. Seogeni Rai reported in 1951 SC 280 .“… It is also to be observed that no proper particulars havebeen furnished. Now if there is one rule which is betterestablished than any other, it is that in cases of fraud, undueinfluence and coercion, the parties pleading it must set forthfull particulars and the case can only be decided on theparticulars as laid. There can be no departure from them inevidence. General allegations are insufficient even toamount to an averment of fraud of which any court ought totake notice however strong the language in which they arecouched may be, and the same applies to undue influenceand coercion.”29.The judgments in the matter of Major Gen. Darshan SinghVs. Brij Bhushan Choudhary reported in (2024) 3 SCC 489 andZarina Siddiqui Vs. A. Ramalingam Alias R. Amarnathan reported23 of 26 sa-339 of 2024.odtin (2015) 1 SCC 705 relied by the appellant, reiterate the settledlegal position that a plaintiff who makes false statement in theplaint is not entitled to discretionary relief of specific performanceof contract. In the case of Major Gen. Darshan Singh (supra), theissue was as to whether the vendor had entered into agreement ofsale in his individual capacity or in the capacity of Karta of theJoint Hindu Family. The agreement did not refer to the vendor asKarta however, in the draft of sale deed his status was shown asKarta of the Joint Hindu Family. The plaintiff in the said case hadplayed the said mischief. In view of the aforesaid Supreme Courthas held that the plaintiff was not entitled for discretionary relief ofspecific performance of contract. 30.In the case of Zarina Siddiqui (supra), the defendant No. 2held a registered power of attorney on behalf of defendant No. 1 tosell the property of the defendant No. 1. However, the defendantsmade a false statement that the power of attorney merelyauthorized the defendant No. 2 to manage the property. Thedefendants withheld the power of attorney with a view to misleadthe Court. The defendants entered into agreements of sale andreceived part sale consideration and thereafter denied theagreements. The plaintiff filed a photo copy of power of attorneywhich indicated that the defendant No. 2 was authorized to sell the24 of 26 sa-339 of 2024.odtproperty as constituted attorney for defendant No. 1. In view ofsuch conduct, the Hon’ble Supreme Court has strongly deprecatedthe conduct of the defendants.31.The judgment rather supports the case of the respondentplaintiff. The conduct of the appellant defendant in the present caseitself is questionable. The defendant was in need of money. Hereceived sale consideration of Rs. 60,70,000/- from the plaintiffand executed the sale deed in her favour. However having receivedthe total amount of sale consideration, he did not turn upcompleting formalities regarding registration of the sale deed. Heavoided the plaintiff and even ignored letters issued from the officeof Sub-Registrar for completing the sale transaction. He has comeforward with a lame explanation that his signature was obtained onblank paper, which was misused to create the sale deed. However,as mentioned above , his signatures appear on all pages of the saledeed for which no explanation is offered in the written statementand counter claim. Likewise, there is no explanation forthcomingwith respect to his identification documents and other documentsrelating to the suit property, which are annexed with the sale deed.It is obvious and in the absence of any explanation it has to bepresumed that the defendant himself had provided said documentsto the plaintiff for filing the same along with the sale deed in order25 of 26 sa-339 of 2024.odtto complete the formalities of registration. The defendant obtainedamount of sale consideration from plaintiff on promise to sell theproperty. However, having received the entire sale consideration,the defendant dishonestly retracted from the transaction and isoffering explanation which on the face of it is false. The conduct ofthe defendant appellant is deprecable. 32.Having regard to the aforesaid, I am of the consideredopinion that both the learned Courts have considered tocontroversy involved in the matter in great detail and have arrivedat just proper and correct conclusion in decreeing the suit filed bythe respondent plaintiff and dismissing the counter claim filed bythe appellant defendant. In the result, I find no reason to interferewith the concurrent judgments by the learned Trial Court and FirstAppellate Court. The second appeal is without any substance and isdismissed as such. [ROHIT W. JOSHI] JUDGEKS_Kamble/26 of 26