2024:BHC-AS:1568 Sayali Upasani IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.- 1 OF 2023 WITH CIVIL APPLICATION NO. 1 OF 2023 Shri Parag Babasaheb Bamne, ...Appellant Age 32 years, Occu – Service, R/at Prankur Plot No.10, Road No.7, Sector No.19, New Panvel, District Raigad, through power of attorney holder Babasaheb Dhondiba Bamne, age 72 years, residing at as above.

Vs.

Shri Pandurang Anandrao Rayte, ...Respondent Age 55 years, Occu – Service, R/o S. Ni.27/5, Ambegaon (BK), Taluka Haveli, District Pune Mr. Sudhir V. Sadavarte, for Appellant.

Mr.Sanjeev Sawant with Mr. Heramb Kadam with Ms.

Samiksha Mane, for the Respondent.

CORAM:- N. J. JAMADAR, J.

RESERVED ON:- 19th AUGUST, 2023 PRONOUNCED ON:- 12 JANUARY, 2024 ORDER:-

1) This Appeal is directed against a judgment and order dated 18^th June, 2019, passed by the learned District Judge whereby the learned District Judge was persuaded to partly allow the Appeal, set aside the judgment and decree dated 25^th April, 2017, passed by the learned Civil Judge, Senior Division, Pune in Special Civil Suit No. 1044 of 2010 and remand the suit for fresh decision on the issue framed by the learned District Judge in paragraph Nos. 60 and 75 of the impugned judgment and order, purportedly under Order 41, Rule 25 of the Code of Civil Procedure, 1908 (“the Code, 1908”).

2) Shorn of unnecessary details, background facts necessary for the determination of this Appeal can be summarised as under:-

(a) For the sake of the convenience and clarity, the parties are hereinafter referred to in the capacity in which they were arrayed before the Civil Court.

(b) A suit for cancellation of agreement for sale, possession, declaration and perpetual injunction was instituted with the assertions that the plaintiff is the owner of the property, situated at Survey No.27, Hissa No. 5, admeasuring 0.1 – R with a ground floor structure admeasuring 67.41 sq. meters and 630 sq. ft. on the 1st floor, at village Ambegaon Budruk, Taluka Haveli, District – Pune (“the suit property”). The plaintiff had availed loans from Canara Bank, Kothrud, Pune and Bharati Co-operative Bank, Pune to construct the building. The loan was outstanding.

(c) In the month of August, 2008, the plaintiff met with an accident and, thus, could not pay the installments of the loan. The plaintiff, thus, decided to raise funds to repay the loan by mortgaging the ground floor of the suit property. Post negotiations, the defendant agreed to advance a sum of Rs.9,00,000/- against the mortgage of the ground floor. The parties agreed that the then value of the suit property was Rs.23,00,000/-. It was agreed that in the event the mortgage money was not repaid within three years, the plaintiff would execute the Sale-deed of the suit property in favour of the defendant upon payment of the balance consideration.

(d) The plaintiff asserted, taking undue advantage of the ill- health of the plaintiff, the defendant got executed a registered agreement for sale on 12th September, 2008. Possession of the ground floor premises was obtained illegally. The defendant also threatened the plaintiff with dire consequences. The plaintiff was constrained to issue a notice to the defendant and also lodge a complaint with the police. The plaintiff apprehended that the defendant would dispossess him of the 1st floor of the suit property as well. The plaintiff was, thus, constrained to institute the suit seeking reliefs of declaration, possession and perpetual injunction.

(e) The defendant resisted the claim by filing a written statement and counterclaim. The defendant claimed that the plaintiff had executed the agreement for sale dated 28th August, 2008 after fully understanding the import of the said document. In accordance with the terms of the said agreement for sale, the defendant had parted with entire consideration of Rs.9,00,000/-. In fact, the defendant was made to pay a sum of Rs1,25,000/- over and above the agreed consideration on