The burden of rebuttal was on the defendant, and he had to prove that the contract between the parties was for advance and securing said loan and not by way of an agreement of sale, though the document was in the form of an agreement of sale, was executed as such, and was duly registered. The defendant had also to explain facts leading to execution of agreement which was notarised.It is seen that the plaintiff was relying on a registered document and another unregistered but notarised document. The burden on the plaintiff was comparatively lighter. While the burden on defendant was onerous because he had to contradict a registered document as well as a notarised document.
First Appeal No. 1315 of 2012
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14. On perusal and assessment of oral and documentary evidence, through by the plaintiff, the version of the plaintiff that he is medical practitioner and he was in need of accommodation and entered into agreement for the same and paid amount indicated in the document is proved. The testimonies are coherent and do corroborate the facts pleaded by the plaintiff.
15. The defendant has failed to show as to why the plaintiffs, bank witness and P.W. 5 Advocate all should make statement on oath before the court, support the plaintiff's case.
16. The defendant's solitary statement does not inspire confidence. The Defendant's sons who were witnesses of registered agreement of sale should have stepped into witness box to prove that the agreement was not the real promise to sell but was executed for securing the loan. On the other hand plaintiff's story and evidence is worthy of trust and inspires confidence.1
Had the plaintiffs to possess any ill intention, they would never have let the defendant's sons to be the witnesses, pf transaction. Rather they would have insisted for witnesses of their own confidence.
Ordinarily it may have been an imprudent act for purchaser to have documents executed on which vendor's family member would be witness. The fact that the plaintiff's have shown this candidness renders the testimony of plaintiff and their witness more credible.
2013(4)MhLj207
IN THE HIGH COURT OF BOMBAY
Decided On: 13.06.2013
Appellants: Shri Ramchandra Algu Vishwakarma
Vs.
Respondent: Shri Shrikant Vasantrao Tile and Mrs. Beena Shrikant Tile
Vs.
Respondent: Shri Shrikant Vasantrao Tile and Mrs. Beena Shrikant Tile
Hon'ble Judges/Coram:A.H. Joshi , J.
1. Both the parties have requested for taking up the appeal for final hearing. In view of this request, the parties were directed to file additional documents and fresh synopsis. Those are filed and are taken on record. In view of the compliance, the appeal is taken up for final hearing. Heard. Perused the record.
2. Plaintiff's case can be briefly stated as follows:
(a) The defendant executed two documents:-(I) An agreement of sale dated 22.8.2006 for a plot of land admeasuring 4 Aares consisting of structure on ground floor. This agreement is duly registered.(II) Another document is agreement of sale dated 24.8.2006. This agreement is for sale of structure standing over the structure covered by registered agreement of sale dated 22.8.2006. This document is unregistered document and it is only notarised.(b) According to the plaintiffs they had paid amount of Rs. 10,50,000/- towards part of consideration as price of properties covered by these two agreements and balance of Rs. 10,00,000/- was due and was to be paid on sale deed.(c) Plaintiffs had applied for loan of Rs. 10,00,000/- to the Saraswat Bank.(d) Plaintiffs sent notice and expressed their readiness and willingness to perform their part i.e. payment of balance consideration and requested the defendant to remain present in the office of Sub Registrar for execution of sale deeds.(e) Plaintiffs' notice was replied by the defendant through Advocate Shri Mohite, stating that the agreement of sale pertained to plot of land and the construction on the ground floor only. The defendant has denied the agreement of sale of property/structure on the first floor.(f) Transaction on the basis of agreement which was a notarised document was disputed by the defendant.(g) Considering defendant's failure to honour the demand, the plaintiffs filed suit for specific performance.
3. In the said suit the defendant appeared and filed written statement. The defendant has set up a plea that:
(a) He had never intended to sell the property at the time of execution of the registered agreement of sale.(b) The transaction was in fact of a hand loan for which certain documents were got executed by the plaintiffs without appraising the defendant as to contents thereof.(c) He had received only Rs. 5,00,000/- as loan and remaining payments shown by cheque and cash were in fact not received by him.(d) That the suit be dismissed.
4. Considering the contest, learned trial judge framed issues which are as follows:
(1) Do plaintiffs prove existence of concluded contract in between parties to suit for alienation of suit property?(2) Do they prove to have been all along ready and willing to perform their part of agreement?(3) Do they prove failure on defendant's part to discharge his obligation arising out of contract?(4) Is the property valued?(5) Is the suit false, frivolous and vexatious. If yes the consequences?(6) To what relief, if any, are the plaintiffs entitled?
5. It is seen that issue No. 1 relates to concluded contract and it fastens a burden on the plaintiffs to prove that the agreement subject matter were the agreement of sale as represented in the documents.
6. The burden of rebuttal was on the defendant, and he had to prove that the contract between the parties was for advance and securing said loan and not by way of an agreement of sale, though the document was in the form of an agreement of sale, was executed as such, and was duly registered. The defendant had also to explain facts leading to execution of agreement which was notarised.
7. Parties went for trial. Plaintiffs examined witnesses in support of claim as follows:
(I) P.W. 1 Shrikant Vasantrao Tile(II) P.W. 2 Makarand Anant Kokate(III) P.W. 3 Shivaji Gaikawad(IV) P.W. 4 Rajendra Naik(V) P.W. 5 Shivaji Mohite, Advocate(VI) P.W. 6 Pradip Nimbalkar
8. Defendant examined himself. Apart from his own testimony he did not bring any other witness or evidence.
9. Learned Trial Court has decreed the suit, hence this appeal is preferred by the unsuccessful defendant.
10. Learned Advocate for the appellant has urged following grounds in support of appeal:-
(a) Plaintiffs had failed to prove their case to be a case of concluded contract.(b) From the cross-examination of the plaintiffs and examination of the defendant it was duly proved to be a case of loan and security.(c) The plaintiffs had admitted in the cross examination that they were not in a position nor were ready and willing to pay the amount disclosed in the agreement and hence the suit ought not to have been decreed.(d) The mother tongue of the defendant is Hindi and he is not aware as to what documents were executed in favour of the plaintiff. All that he knew is that the document was meant for loan by plaintiff.(e) The defendant does not have any other house property.
11. The respondents have urged in reply following points:-
(a) agreement of sale of plot of land and structure on the ground floor was duly registered.(b) The agreement towards first floor was unregistered and was only notarised at the request of defendant because said structure was not so far assessed by the municipality.(c) Both these promises and documents were proved by legal evidence.(d) One amongst agreements was registered, and evidence to attempt to vary any stipulation contained therein could not be given, however law would definitely allow the party to prove that there existed totally different contract. Such plea will have to be proved by the evidence of unimpeachable quality and value.(e) The witnesses on the agreement of sale were defendant's sons, namely, Santoshkumar R. Vishwakarma and Vedprakash Ramchandra. The defendant did not bring them in witness box either suo motu or by taking summons.(f) The plaintiff had proved his case of his being in position to perform the promise to pay balance consideration by proving that he had applied for loan and it is duly sanctioned by the bank etc.(g) The plaintiffs' admission that on date of agreement of sale he did not have money, was truthful version, and the plaintiff No. 1 had clarified that he had made arrangement to pay by examining witnesses from the bank.(h) Defendant's argument that plaintiffs had admitted their inability to perform their part of promise is not factual is erroneous and is by way of sheer distortion and barely argumentative in nature.(i) Advocate Mohite P.W. 5 examined by the plaintiff. This witness had duly proved that reply given by the defendant admitting the transaction as regards land and building was drafted by him on the basis of instructions.(j) The defendant had failed to prove that Advocate Mohite had any animus against the plaintiff and reason to give false testimony.(k) It was not the case of oath against oath.(l) It was case of discharge of burden by the plaintiff and rather sheer denial by the defendants.(m) The defendant could have proved his case and proved that it was loan transaction by whatever evidence he wanted. No effort were taken by the defendant to prove his plea, and hence finding recorded by the trial Court that agreement of sale was proved and transaction was that of loan was not proved is liable to be upheld.(n) The defendant has failed to show that the finding is contrary to law.(o) Barely criticising the finding is not sufficient to have it set aside.(p) The defendant has failed to show that the findings rendered in the judgment and decree and appeal are vitiated due those being perverse or due to any illegality.
12. Perused the impugned judgment and evidence on record.
13. It is seen that the plaintiff was relying on a registered document and another unregistered but notarised document. The burden on the plaintiff was comparatively lighter. While the burden on defendant was onerous because he had to contradict a registered document as well as a notarised document.
14. On perusal and assessment of oral and documentary evidence, through by the plaintiff, the version of the plaintiff that he is medical practitioner and he was in need of accommodation and entered into agreement for the same and paid amount indicated in the document is proved. The testimonies are coherent and do corroborate the facts pleaded by the plaintiff.
15. The defendant has failed to show as to why the plaintiffs, bank witness and P.W. 5 Advocate all should make statement on oath before the court, support the plaintiff's case.
16. The defendant's solitary statement does not inspire confidence. The Defendant's sons who were witnesses of registered agreement of sale should have stepped into witness box to prove that the agreement was not the real promise to sell but was executed for securing the loan. On the other hand plaintiff's story and evidence is worthy of trust and inspires confidence.
17. Had the plaintiffs to possess any ill intention, they would never have let the defendant's sons to be the witnesses, pf transaction. Rather they would have insisted for witnesses of their own confidence.
Ordinarily it may have been an imprudent act for purchaser to have documents executed on which vendor's family member would be witness. The fact that the plaintiff's have shown this candidness renders the testimony of plaintiff and their witness more credible.
18. In the result the judgment and order impugned decreeing the suit does not suffer from any illegality, and is not against equity or good conscious.
19. In the result, the appeal is found to be devoid of merits, whatsoever and deserves to be dismissed and is hereby dismissed with costs. In view of dismissal of appeal, civil application No. 1734 of 2012 and 1735 of 2012 doe not survive and is disposed of.
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