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2016 Supreme(Bom) 1850
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, J.
Manohar Pamandas Jani – Appellant
Versus
Madhukar Trimbak Waychal – Respondent
Second Appeal No. 144 of 2016 with Civil Application No. 228 of 2016
Decided On : 25-10-2016
For the Appellants : Mr. S.K. Shinde, Ms. Tanya Goswami and Mr. Sudam Kale.
For the Respondents: Ms. Shruti Tulpule and Mr. Girish Godbole.
Headnote:Specific Relief Act, 1963 - Section 10-Civil Procedure Code, 1908, Section 100-Suit for specific performance of agreement.-Concurrent finding of facts of Courts below being not perverse, cannot be interfered with in second appeal under Section 100 of CPC.
A perusal of the record indicates that the plaintiff had obtained such agreement for sale which was to be acted upon as and by way of security and there was no transaction for agreement for sale in respect of two properties of the defendant No. 1. The plaintiff had fraudulently refused to return the original agreement for sale to the defendant No. 1 on the pretext that the same was misplaced and has filed a false and frivolous suit against the defendants for specific performance of the said agreement. In Court`s view, the findings recorded by the two Courts below are recorded after considering the oral and documentary evidence relied upon by both the parties and the findings are not perverse and thus cannot be interfered with by the Court under Section 100 of the Code of Civil Procedure, 1908. The appeal is totally devoid of merit.
Specific Relief Act, 1963 - Section 10-Evidence Act, 1872, Sections 91 and 92-Suit for specific performance of agreement to sale.-Defendants, disputing entire transaction, entitled to adduce evidence to show real intention of parties behind agreement for sale in view of Section 92 of Evidence Act.
Insofar as the submission of the plaintiff that the defendant No. 1 could not have been permitted to lead evidence contrary to the contents of the agreement to sale dated 17th October, 1995 is concerned, the first Appellate Court has held that the defendants were entitled to adduce oral evidence to show that the real intention of the parties behind the agreement for sale dated 17th October, 1995 was to secure the loan. The defendant No. 1 had not led evidence to contradict the contents of the said agreement for sale dated 17th October, 1995.
The case of the defendants before the trial Court was that the said transaction entered into between the parties was not to be acted upon as the same was to be kept as a security in favour of the plaintiff and was not to be acted upon as an agreement to sale. The defendant No. 1 had disputed the entire transaction and thus could lead evidence in that regard in view of Section 92 of the Indian Evidence Act, 1872. The first Appellate Court, has rightly adverted to the judgments of the Supreme Court and has rightly rejected the contention raised by the plaintiff.
R.D. Dhanuka, J.
1. By this appeal filed under Section 100 of the Code of Civil Procedure, 1908, the appellant (original plaintiff) has impugned the judgment and decree dated 5th August 2015 passed by the learned District Judge-5, Solapur dismissing the Regular Civil Appeal No. 299 of 2014 and upholding the judgment and decree dated 22nd January 2014 passed by the Civil Judge, Senior Division, Solapur dismissing the Regular Civil Suit No. 663 of 2012 filed by the appellant herein inter-alia praying for specific performance of an agreement to sale dated 17th October 1995. The parties are described as per their original status in the suit before the trial Court. Some of the relevant facts for the purpose of deciding this second appeal are as under:-
2. It was the case of the plaintiff that the defendant no. 1 was indebted to the Bank of India and was in need of money and thus decided to sell his immovable property bearing Gat No. 55 to the extent of 11529 sq. mtrs and the land admeasuring 8839 sq. mtrs. out of Gat No. 53/6/2 for total consideration of Rs. 7,50,000/- i.e. Rs.1,50,000/- per acre and a shed existing in Gat No. 53/6/2 for Rs. 50,000/-. It was the case of the plaintiff that the total consideration agreed by the parties in respect of the aforesaid property was of Rs. 8 lakhs. According to the plaintiff, on 17th October 1995, the plaintiff and the defendant no. 1 entered into an agreement to sale in respect of the aforesaid properties. The defendant no. 1 accepted Rs. 1 lakh from the plaintiff under the said agreement and also handed over the possession of the suit property to the plaintiff. According to the plaintiff, the said sale transaction was to be completed within 11 months i.e. by September 1996. The defendant no. 1 alleged to have demanded Rs. 4 lakhs from the plaintiff in the month of November 1995 towards remaining consideration. It was the case of the plaintiff that the plaintiff paid sum of Rs.4 lakhs to the defendant no. 1 on 18th November 1995 who acknowledged the said amount on the agreement to sale. The defendant no. 1, however, did not pay the bank loan and did not complete the sale transaction within 11 months in favour of the plaintiff.
3. It was the case of the plaintiff that the plaintiff insisted to cancel the agreement and called upon the defendant no. 1 to return back the amount paid by the plaintiff. The defendant no. 1 made a proposal that to compensate the delay in execution of sale deed, he would execute sale deed of the entire Gat No. 55 admeasuring 15372 sq. mtrs. instead of 11529 sq. mtrs. The plaintiff alleged to have accepted the said proposal and paid additional amount of Rs. 1,50,000/- to the defendant no. 1. It was the case of the plaintiff that on 6th January 1997, the defendant no. 1 executed sale deed of the entire Gat No. 55 admeasuring 15372 sq. mrts. in favour of the plaintiff.
4. It was the case of the plaintiff that the defendant no. 1, however, did not execute the sale deed in respect of 8839 sq. mtrs. out of Gat No. 53/6/2 alleging that the bank had not settled his loan matter. It was also the case of the plaintiff that the defendant no. 1 agreed to execute power of attorney in favour of the plaintiff and accordingly executed such power of attorney in the month of October 1999 which was alleged to have been registered on 18th October 1999 with intimation to the plaintiff.
5. On the basis of the said power of attorney, the plaintiff got entered his name in other rights column of the 7x12 extract on 18th May 2002. The defendant no. 1 issued a telegraphic notice dated 27/28th March 2002 and denied the execution of the said alleged power of attorney. The plaintiff vide his letter dated 1st April 2002 showed his willingness to pay the balance consideration with a request to execute the sale deed. The plaintiff thereafter filed a suit (Regular Civil Suit No. 663 of 2012) inter-alia praying for specific performance of the said agreement to sale against the defendant no. 1 in
