High Court
Legal Reasoning
1 sa57.2025 judegmentIN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABADSECOND APPEAL NO. 57 OF 2025WITHCIVIL APPLICATION NO. 1441 OF 2025 (FOR STAY)IN SECOND APPEAL NO. 57 OF 2025Niranjan Dharamdas LokhandeSince deceased through :1.Mangal Niranjan Lokhande,Age; 53 years, Occ. Household,2.Meghraj Niranjan Lokhande,Age; 32 years, Occ. Business,3.Surekha Niranjan Lokhande,Age; 29 years, Occ. Household,All R/o House No. 919,Saurabhnagar, Bhingar, Taluka and District Ahmednagar. ...APPELLANTS (Original Defendants) VERSUSPadmakar Ramesh Harba,Age; 55 years, Occ. Business,R/o; House No. 452, Patil Galli,Bhingar Ahmednagar. ...RESPONDENT (Original Plaintiff)…………….Mr. R.S. Kasar : Learned Advocate for AppellantsMr. A.S. Bayas h/f Mr. G.B. Chate : Learned Advocate for Respondent…………... CORAM : S. G. CHAPALGAONKAR, J. Date of reservation : 26.02.2025 Date of Pronouncement : 04.03.2025 2 sa57.2025 judegmentJUDGMENT : 1.Appellants (LRs of Original defendant) impugns judgment anddecree dated 12.07.2024 passed by Adhoc District Judge-1, Ahmednagarin Regular Civil Appeal No. 148 of 2019, thereby upholding judgment anddecree dated 28.02,.2019 passed by Civil Judge, Senior Division,Ahmednagar in Regular Civil Suit No. 716 of 2012. (Hereinafter the partiesare referred by their original nomenclatures in trial Court).2.Respondent/Plaintiff instituted RCS No. 716 of 2012 seekingrelief of specific performance of contract on basis of agreement to saledated 28.05.2011 executed by defendant in respect of suit house. It iscontention of plaintiff that defendant was in need of money to clear duesof many persons and also have family requirements. Defendant offeredhim to sale property for a consideration of Rs. 4,25,000/-. Accordingly,agreement to sale was executed. Defendant accepted amount of Rs.4,00,000/- as an earnest money at the time of execution of agreement tosale before Public Notary and in presence of two witnesses. It was agreedthat sale deed will be executed on or before 29.08.2011 and balance ofconsideration would be paid at the time of execution of sale deed. Plaintiffissued a public notice dated 06.06.2011 calling upon objections fromgeneral public regarding their interest in suit property and his intention topurchase the same. Later on, plaintiff noted reluctance of defendant toexecute sale deed, he issued legal notice dated 14.10.2011 calling uponhim to remain present in the office of Sub Registrar to execute sale deed, 3 sa57.2025 judegmenthowever, defendant did not turn up to office of Sub Registrar, hence causeof action arose to file suit.3.Defendant refuted plaintiff’s claim contending that plaintiff ismoney lender. Defendants had obtained loan on interest from plaintiff.Document was executed by way of security to loan. Although entireamount along with interest is already parted with to plaintiff, he filed falsesuit on the basis of agreement to sale.4.Trial Court framed issues, recorded evidence of witnesses,finally decreed suit holding that plaintiff proved execution of agreement tosale and he was always ready and willing to perform his part of contracteventually entitled for decree of specific performance of contract.5.Aggrieved defendant filed Regular Civil Appeal bearing No. 148of 2019 before learned Adhoc District Judge-1, Ahmednagar, which hasbeen dismissed upholding judgment and decree of trial Court.6.Mr. Kasar, learned Advocate appearing forappellants/defendants would submits that plaintiff is money lender. Byinviting attention of this Court to the cross-examination of plaintiff hesubmits that plaintiff has instituted many suits for recovery of amount.Similarly, he has instituted cheque bounce cases against some persons.According to Mr. Kasar aforesaid admission of plaintiff clearly suggests hisengagement in money lending business. He would further points out thatloan was outstanding against defendant, charge of said loan was taken onproperty. Defendants were in financial duress, therefore, they had 4 sa57.2025 judegmentobtained loan and executed document by way of security.7.Mr. Bayas, learned Advocate appearing for plaintiff submitsthat all these contentions are considered by both Courts below andrecorded concurrent findings of fact that transaction between parties wasintended for sale. Defence put forth by defendant has been rejected.8.Having considered submissions advanced and reasoningadopted by Courts below, it can be observed that defendants neverdisputed execution of agreement to sale dated 28.05.2011 in favour ofplaintiff. There is no denial as to receipt of earnest money of RS.4,00,000/-, out of total consideration of Rs. 4,25,000/-. In thisbackground, defendants contend that it was money lending transactionand agreement to sale was not intended to be acted upon, it can be saidthat except bare words, defendant could bring on record any evidence insupport of their defence. On the other hand, plaintiff entered into witnessbox. Evidence of Public Notary, Mr. Baldota has been recorded on thepoint of agreement to sale. Since defendant Niranjan DharamdasLokhande expired during pendency of suit, his legal representative Mr.Meghraj examined himself in support of his defence. The Courts belowhave rightly observed that as per Section 92 of the Indian Evidence Actoral evidence is admissible, however, it prohibits evidence against writtendocument for purpose of addition, contradiction and verifying its terms. Itis true that Proviso-II to Section 92 permits leading of evidence to showexistence of any separate oral agreement between parties,which is not consistent with terms. In present case evidence to 5 sa57.2025 judegmentdemonstrate independent agreement between parties as is permissibleunder Proviso to Section 92 of Indian Evidence Act is not brought onrecord. Merely on basis of pending proceedings instituted by plaintiff forrecovery of amount, presumption cannot be drawn that he was in thebusiness of money lending.9.Mr. Kasar, would further submits that Courts below have notconsidered question of hardship to defendant. In support of his contentionhe relied upon judgment in the case of Bal Krishna and Another Vs.Bhagwan Das (Dead) and Others reported in 2008 AIR SC 1786. He triedto demonstrate that LRs of defendant are residing in suit house and grantof decree would cause greater hardship to them. There cannot be disputethat grant of decree of specific performance is a discretion of Court, wherecontract would involve some hardship on defendants which they did notforcee, Court may decline to exercise discretion and refuse to grantdecree.10.In present case, there is nothing to hold that plaintiff wouldhave unfair advantage and defendant would suffer unforseen hardship.On the other hand, one can find that out of agreed consideration of Rs.4,25,000/-, defendant had received amount of Rs. 4,00,000/- by way ofearnest money. Present suit is brought within a period of one year fromdate of execution of document. Meanwhile, plaintiff had issued legalnotice and called upon defendant to execute sale deed. Courts below havedealt with aforesaid aspect and recorded concurrent findings that issue ofhardship does not advance cause of defendants. In that view of the
Decision
6 sa57.2025 judegmentmatter, no substantial question of law arises for consideration in thisappeal. Second Appeal stands dismissed. Pending Civil Application, ifany, stands disposed off. ( S. G. CHAPALGAONKAR ) JUDGEmahajansb/