High Court

Legal Reasoning

..1..sa-81-15IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD11 SECOND APPEAL NO. 81 OF 2015LEELABAI MADHUKAR SONAWANEVERSUSSAYYED MAHMMAD SAYEED RASUL INAMDAR...Advocate for Appellant : Mr. Paresh B. Patil...CORAM: Y. G. KHOBRAGADE, J. DATE: 22.04.2024 PER COURT : 1. Heard Mr. Paresh Patil, learned counsel appearing for theappellant at length.2.The appellant is the original plaintiff in Regular Civil SuitNo. 44/1992 and prayed for decree of specific performance of contract,possession of the suit property or in alternative for refund of earnestmoney.3.The gist of the matter is that, the defendant/respondent is ownerof agricultural land bearing block no. 306/1-A admeasuring 81 R.within territory of Patana Village group Grampanchayat, TalukaChalisgaon, District Jalgaon (hereinafter referred to as 'suit property').On 30.01.1991, the defendant orally agreed to sell the suit property in ..2..sa-81-15consideration of Rs. 25,000/- to the plaintiff. Accordingly, the plaintiffpaid Rs. 10,000/- towards earnest money. The plaintiff alleged that thedefendant agreed to execute the sale-deed in her favour at the time ofregistration of sale-deed on 30.12.1991. The plaintiff further contendedthat the defendant was agreed to hand over possession of the suitproperty at the time of execution of the sale-deed. She and thedefendant were to incur 50-50% expenses for execution of the saledeed. According to the plaintiff, she is ready and willing to pay Rs.5000/- and to perform the part of the agreement but the defendantfailed to perform his part of the agreement. The plaintiff furtheraverted that she requested the defendant on many times to accept theremaining amount and to execute the sale-deed but the defendantavoided the same. Therefore, the plaintiff filed a suit and prayed fordecree of specific performance of contract.4.After service of notice the defendant filed Written Statement atExh 10 and denied claim of the plaintiff. The defendant denied aboutexecution of agreement to sell in favour of the plaintiff and passing ofreceipt of amount of Rs. 20,000/-. According to the defendant, hereceived legal notice on 04.12.1991 and replied the same on15.12.1991. According to the defendant, the husband of the plaintiff ..3..sa-81-15was used to lend money to the people on charging of interest. So also,to secure the loan amount the plaintiff's husband got executed theagreement to sell. The plaintiff's husband does not possess license formoney lending and he has not executed agreement of sale of the suitproperty. The defendant contended that he had obtained amount ofRs. 10,000/- from plaintiff's husband and had agreed to repay the saidamount. When he approached the plaintiff's husband for refund of loanamount but at that time the plaintiff's husband demanded Rs. 15,000/-and prepared false agreement to sell and filed suit on the basis of falseagreement, which was never to be acted, hence prayed for dismissal ofthe suit.5.On the basis of rival pleadings of both sides, the learned trialCourt framed issues at Exhibit 11. In order to prove the issues, plaintiffexamined her husband / power of attorney holder P.W.1- MadhukarNamdev Sonawane, P.W.2 Vishnu Ganesh Sangeet and P.W. 3 JagannathYashwant Shitole.6.Per contra, the evidence of the defendant shows that the plaintiffand her husband paid Rs.10,000/- and got executed the document ofsale in respect of suit property being security to the loan transaction. ..4..sa-81-15On 20.10.2008 the learned Trial Court decreed the suit directing thedefendant to execute the sale-deed in respect of suit property in favourof the plaintiff and to hand over possession within a period of onemonth. The defendant was allowed to withdraw the amount of Rs.5000/-, deposited by the plaintiff, towards balance consideration andthe amount of Rs. 20,000/- deposited in the Court after appeal period isover.7.Being aggrieved by the said Judgment and decree, thedefendant/respondent filed Regular Civil Appeal No. 232/2008. On04.09.2014, the learned First Appellate Court passed the Judgment anddecree and set aside the Judgment dated 20.10.2008 passed in RegularCivil Suit No.44/1992 by the learned Trial Court, holding that thePlaintiff shall be entitled to recover amount of Rs. 10,000/- along withinterest at the rate of 12% per annum from the date of the suit till itsrealization.8.The learned counsel appearing for the appellant vehementlycanvassed that the defendant failed to prove Exhibit 27 agreement tosell dated 30.01.1991 executed towards security, but the plaintiffproved that said agreement was executed as the defendant had agreed ..5..sa-81-15to sell the suit property and said agreement is executed in presence ofthe witnesses. Therefore, though Section 19 of the Specific Relief Actprovides for grant of discretionary relief but the plaintiff proved thatthe defendant entered into an agreement to sell the suit property inconsideration of Rs. 25,000/- and out of which the plaintiff alreadypaid Rs. 10,000/-. So also, as per terms and conditions of theagreement to sell Exhibit 27, the plaintiff and the defendant wereagreed to incur 50-50% registration charges. Therefore the plaintiffwas required to bear Rs. 5,000/- towards registration charges of thedefendant, hence agreed to pay Rs. 5000/- balance amount. Therefore,considering the material evidence available on record, the Trial Courtdecreed the suit. However, the learned First Appellate Court wronglyheld that the document executed by way of security to the loantransaction and set aside the Judgment and decree passed by the TrialCourt. Therefore, the findings recorded by the First Appellate Court areillegal and perverse hence prayed for quashing and setting aside thesame.9.It is an admitted fact that the plaintiff did not enter into witnessbox. On the contrary she examined her husband Madhukar NamdevSonwane P.W. 1 and P.W. 2 Vishnu Ganesh Sangeet as well as P.W.3 ..6..sa-81-15Jagannath Yeshwant Shitole. The P.W. 1 is the Power of Attorney of theplaintiff. The agreement of sale Exhibit 27 shows that the defendant isthe owner of agricultural land admeasuring 81 R. The considerationamount of Rs. 25,000/- was fixed under agreement dated 28.01.1991.The said agreement was oral and Written Agreement executed on30.01.1991. Thereafter, an amount of Rs. 10,000/- was paid to thedefendant before the Sub-Registrar and had agreed to pay remainingbalance amount at the time of execution of the sale-deed. As per the7/12 extract (Exhibit 23) name of the defendant was shown in thecolumn of the other right. As per the evidence of P.W. 2 -Vishnu GaneshSangeet no money transaction take place in his presence. Theevidence of P.W. 3 -Jagannath Yeshwant Shitole appears that the amountof Rs. 10,000/- was paid to the defendant by the husband of theplaintiff (P.W.1). In cross-examination, P.W. 3 deposed about notknowing the details of transactions between the husband of plaintiffand the defendant.10. On perusal of contents of document Exhibit 27 it clearlysuggests about making payment of Rs. 10,000/- to the defendant at thehouse of defendant itself and there is no denial about receipt of saidamount by the defendant. In cross-examination P.W. 1 categorically ..7..sa-81-15stated that his wife not dealing with any transaction. He always carriestransaction on behalf of his wife. The document of Power of AttorneyExhibit 20 does not reveal that the husband of the plaintiff (P.W.1) isauthorized and competent to depose on behalf of the plaintiff to prove the transactions between the plaintiff and the defendant. 11. Needless to say that, though the P.W. 1 stated about entering intooral agreement on 28.01.1991 and subsequently reduced into writingon 30.01.1991, however, there is no averment in the plaint about oralagreement between the plaintiff and the defendant. The defence ofdefendant is that there was loan transaction between him and thehusband of plaintiff to pay the debt of one Dharmaraj Sonwane. P.W.1admitted in his cross-examination about presence of DharmarajSonawane at the time of the transaction. The cross-examination of P.W.2 -Stamp-Vendor clearly suggests that he does not remember as towhether he had written several documents for the plaintiff and he doesnot know about transaction between the plaintiff and the defendant.12.Per contra, the evidence of witness of defendant suggests that thedefendant had obtained loan from the plaintiff’s husband and wasvisited to return the loan amount but the P.W. 1 demanded Rs. 15,000/-. ..8..sa-81-15The evidence of P.W.3 -Talathi appears that on the day of his evidencei.e. 04.12.2001 the suit property was worth Rs. 2,75,000/-. Therefore,considering the evidence available on record as well as admission givenby the defendant, the learned First Appellate Court allowed the appealand set aside Decree passed by the learned Trial Court and directed thatthe plaintiff shall be entitled to recover an amount of Rs. 10,000/-along with interest at the rate of 12% per annum from the date of thesuit till its realization does not appear to be illegal, bad in law and noany substantial question of law is involved. Therefore, I do not find anysubstance in the appeal. Hence, the following order :ORDERThe Second Appeal is dismissed. (Y. G. KHOBRAGADE, J.) shp