IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 177 of 2026 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In R/FIRST APPEAL NO. 177 of 2026 FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE M. K. THAKKER ==========================================================

Approved for Reporting Yes No YES ==========================================================

GAUTAM NANDLAL KAPASI Versus AMBALAL SHIVABHAI MISTRY & ANR.

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Appearance:

MS. SHIVANGI M RANA(7053) for the Appellant(s) No. 1 MR JAIMIL D DOSHI(11097) for the Defendant(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER Date : 06/03/2026

JUDGMENT

1 The present appeal is filed under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and order dated 28.04.2025 passed by the learned Additional Judge, City Civil Court, Ahmedabad in Civil Suit No.146 of 2017, whereby the application filed by the appellant–defendant for leave to defend the suit below Exhibit 18 came to be rejected and the application for summons for judgment filed by the respondent–plaintiff below Exhibit 17 came to be allowed. Consequently, judgment and decree came to be passed against the present appellant directing payment of Rs.60,00,000/- with interest within a period of 30 days and further providing that, in the event of failure to pay the said amount, the appellant shall also pay compensation of Rs.2,00,000/- along with interest at the rate of 9% per annum. The present appellant was the original defendant and the respondents were the original plaintiffs before the learned Trial Court and shall hereinafter be referred to according to their original status. The plaintiff filed a civil suit for recovery of Rs.60,00,000/-, which was paid to the defendant as advance booking amount for Flat Nos.101 and 201 situated in the scheme namely “Shri Sharan” at 14-A, Mahalaxmi Society, Mahalaxmi Cross Road, Paldi, Ahmedabad, which shall hereinafter be referred to as the “suit property”.

2 It is contended in the plaint that the plaintiff had agreed to purchase Flat No.101 for a sale consideration of Rs.1,20,00,000/-, Flat No.201 for a sale consideration of Rs.1,15,00,000/-, as well as a flat situated on the 4th floor for a consideration of Rs.1,00,00,000/-. Towards advance booking, an amount of Rs.60,00,000/- was paid qua Flat Nos.101 and 201, i.e., Rs.30,00,000/- each. The said amount was paid through cheque on 10.09.2015 and receipts were issued by the defendant acknowledging the said payment. As per the case of the plaintiff, the sale deed was executed in respect of the flat situated on the 4th floor for the consideration of Rs.1,00,00,000/- and possession thereof was also handed over to the plaintiff. Thereafter, the plaintiff issued a notice dated 23.11.2016 calling upon the defendant to return the amount of Rs.60,00,000/-, contending that though the flats were booked, due to demonetization in the year 2016, the plaintiff was not in a position to purchase the said flats and therefore requested the defendant to refund the said amount.

2.1 The defendant replied to the said notice on

10.12.2016 and, while not disputing the advance payment, stated that if the remaining amount was not paid within the stipulated time, the advance payment would be treated as forfeited. In that background, the defendant refused to refund the advance amount. The plaintiff thereafter issued a further reply contending that she was a senior citizen aged more than 80 years and that the defendant had demanded additional amounts under different heads, due to which the plaintiff had decided not to proceed with the purchase of the suit property. The defendant again replied on 30.12.2016, which was responded to by the plaintiff on 06.01.2017. Ultimately, the plaintiff filed the suit under Order XXXVII of the Code of Civil Procedure along with an application for injunction under Order XXXIX Rules 1 and 2 o