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2018 Supreme(Bom) 593
IN THE HIGH COURT OF BOMBAY AT NAGPUR
MANISH PITALE, J.
Santoshkumar & Another - Appellant
Versus
Ashwin - Respondents
Second Appeal Nos. 10 of 2018 & 119 of 2018
Decided On : 13-04-2018
For the Appellants : R.M. Sharma
For the Respondent: M.P. Khajanchi
Headnote:
Civil Procedure Code,1908 - Order 41 Rule 31 - Power of attorney - Claim by appellants - Appellants for which purpose respondent gave further appellants towards interest for period between respondent handed over four which added up to said amount - Since said cherubs were post date detach bearing - Appellants further contended in suit that they approached respondent through their son in law for refund said amount along with interest but respondent kept on asking for time – Ultimately appellants were constrained to file suit for recovery limitation period for same was expiring - On this basis appellants prayed for grant of decree against respondent for recovery of amount along with interest at rate per annum from date of filing suit – Held, Appellants as are evident from evidence and material on record show that cause of action could not be said to have arisen for them from date affixed on post dated - Entire basis of relief claimed by appellants was memorandum understanding therefore cause of action for them was triggered from date said document – Non presentation of post dated by appellants in present case assumes significance and it is distinguishing feature from facts case in which aforesaid judgment was rendered by Hobble Supreme Court in case - Therefore inevitable conclusion is that suit filed by appellants was beyond period of limitation of three years from date of memorandum of understanding - On this aspect also appellate Court has taken into consideration material on record in correct perspective to hold that suit filed by appellants was barred by limitation - Analysis impugned judgment and order of appellate Court shows that there has been detailed assessment of documents and material on record and findings of facts have been rendered by appellate Court which cannot be said to be perverse - Appellate Court being last Court on facts its findings on facts would ordinarily not be interfered by second appellate Court unless it is shown that there are glaring errors in appreciation of evidence and material on record rendering findings perverse or that findings have been arrived at in cryptic manner - In present case as stated above assessment of evidence and material on record by appellate Court is sufficiently detailed and it cannot be said that errors have been committed by appellate Court while reversing findings of trial Court - Therefore substantial question framed by this Court is also answered in favor respondent and against appellants – Appeal dismissed
1. By these two appeals, the appellants are challenging common judgment and order dated 01/01/2018 passed by the Court of Ad-hoc District Judge-4, Nagpur (appellate court) whereby appeals filed by the respondent have been allowed, consequently, the suit filed by the appellants has been dismissed and the counter claim of the respondent has been allowed.
2. The facts in brief leading to the filing of these two appeals are as follows: The appellants herein filed Summary Civil Suit No. 45 of 2014, before the Court of Civil Judge Senior Division, Nagpur (trial court) for recovery of Rs. 74,37,500/- against the respondent. It was the case of the appellants that they had entered into agreements dated 06/06/1997 with M/s Oswal Developers and Builders, a partnership firm, of which the respondent was a partner, in order to purchase flat nos. 201 and 202, in building known as block A, on plot number 1/A, Hindustan Housing Company Ltd., Wardha Road, Nagpur (the suit property). The appellants further contended that they had paid entire consideration for the said suit property to the respondent. According to them, since the respondent failed to complete construction of the aforesaid flats, he agreed to refund the entire amount paid by the appellants and for that purpose, a memorandum of understanding dated on 01/01/2011 was executed, which was written in the handwriting of the respondent. It was claimed by the appellants that since both of them were not in a position to sign the memorandum of understanding due to old age, their son-in-law Tarun Bharatia had signed the same on their behalf. As per the said memorandum of understanding, the respondent had agreed to refund an amount of Rs. 50,00,000/- (Rupees Fifty Lakhs only) to the appellants, for which purpose the respondent handed over four cheques, which added up to the said amount. Since the said cheques were post dated, each bearing the date 30/03/2011, the respondent gave a further cheque of Rs. 1,87,500/- to the appellants towards interest for the period between 01/01/2011 to 31/03/2011. The appellants further contended in the suit that they approached the respondent through their son-in-law for refund of the said amount along with interest, but the respondent kept on asking for time. Ultimately, the appellants were constrained to file suit for recovery on 24/03/2014, since limitation period for the same was expiring. On this basis, the appellants prayed for grant of decree against the respondent for recovery of amount of Rs. 74,37,500/- along with interest at the rate of 15% per annum from the date of filing of the suit.
3. The respondent appeared before the trial court and denied that he was liable to pay the aforesaid amount as paid by the appellants. The respondent contended that the aforesaid flats in question were constructed and that they were in possession of the appellants, which they had used for accommodation of their guests for some duration and for some periods of time, they had given the flats on rent. It was contended that although there was specific stipulation in the agreements dated 06/06/1997 that execution of necessary documents for conferring absolute title on the appellants in pursuance of the said agreements would be after decision in Special Civil Suit No. 763 of 1996 (a litigation pending between the respondent and the owner of the land on which the building was situated wherein the aforesaid flats were located), with a further stipulation that only if the respondent failed to get a decree of specific performance in the said suit, he would be liable to refund double the amount to the appellants, despite the fact that the aforesaid suit was still pending, the respondent had agreed to refund amount to the appellants on purely humanitarian considerations. It was contended that even under the aforesaid memorandum of understanding dated 01.01.2011, the respondent was liable to refund the amount specified therein, only upon the appellants executing legally va
