FIRST APPEAL NO. 1315
Shri Ramchandra Algu Vishwakarma
Versus
Shri Shrikant Vasantrao Tile ]
CORAM : A. H. JOSHI, J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Date of Pronouncing the Order: 13.06.2013
JUDGMENT :
1]
Both the parties have requested for taking up the
appeal for final hearing.
parties
were
directed
to
In view of this request, the
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.
2] Heard. Perused the record.
3] Plaintiff's case can be briefly stated as follows:
(I)
The defendant executed two documents:-
An agreement of sale dated 22.8.2006 for a
plot
of
land
ig
(a)
consisting
of
admeasuring 4
structure
Aares
on
ground
floor. This agreement is duly registered.
(II) Another document is agreement of sale dated
(b)
structure
standing
over
the
structure
covered by registered agreement of
dated
22.8.2006.
unregistered
This
document
document
and
it
is
sale
is
only
notarised.
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
24.8.2006. This agreement is for sale of
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
readiness and
notice
and
willingness
expressed
to
perform
their
their
requested
the
defendant
consideration and
to
remain
in the office of Sub Registrar for
(e)
execution
of sale deeds.
present
part i.e. payment of balance
Plaintiffs' notice was replied by the defendant
through Advocate Shri Mohite, stating
agreement of sale pertained to plot
and the
construction on the
that the
of
land
ground
floor
only. The defendant has denied the agreement of
ig
floor.
Transaction
a
notarised
on
the
first
on the basis of agreement which was
document
(f)
structure
sale of property /
was
disputed
by
the
defendant.
(g)
Considering defendant's failure to honour the
demand,
the plaintiffs filed suit for specific
performance.
4]
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
(d)
5]
in fact not received by him.
That the suit be dismissed.
Considering the contest, learned trial judge framed
issues which are as follows:
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?
ig
(1) Is the suit false, frivolous and vexatious. If
yes the consequences?
(6)
6]
Is the property valued?
(5) (4) To what relief, if any, are the plaintiffs
entitled?
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.
7]
The burden of rebuttal was on the defendant, and he
and
securing
said
loan
and
not
by
way
of
an
advance
had to prove that the contract between the parties was for
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
Parties
went for trial. Plaintiffs examined witnesses
in support of claim
P.W. 1 Shrikant Vasantrao Tile
(I)
as follows:
ig
8]
to execution of agreement which was notarised.
(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
9]
Defendant
testimony he
10]
examined
himself.
Apart
from
his
own
did not bring any other witness or evidence.
Learned Trial Court has decreed the suit, hence this
appeal is preferred by the unsuccessful defendant.
11]
Learned Advocate for the appellant has urged following
grounds in support of appeal:-
Plaintiffs had failed to prove their case
(a)
(b)
From
the
to be a case of concluded contract.
cross-examination
plaintiffs and
examination
of
of
the
the
defendant it was duly proved to be
a
case of loan and security.
The plaintiffs had admitted in the cross
examination
that
they
were
(c)
position nor were ready
not
in
a
and willing to
ig
pay the amount disclosed in the agreement
and hence the suit ought not to have been
(d)
decreed.
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.
12]
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
unregistered
towards
first
floor
was
and was only notarised at the
request of defendant because said structure was
(c)
not so far assessed by the municipality.
Both these promises and documents were proved by
(d)
One
amongst
legal evidence.
agreements
evidence to
was
registered,
and
attempt to vary any stipulation
contained therein could not be given, however
law would definitely allow the party to prove
that there existed
have
to
be
The
ig
evidence of unimpeachable
(e)
witnesses
on
Vishwakarma
the
sons,
defendant's
proved
Such plea will
totally different contract.
and
by
the
quality and value.
agreement
namely,
sale
were
Santoshkumar
Vedprakash
defendant did not bring
of
Ramchandra.
R.
The
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
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
applied for loan and it is duly sanctioned by
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
Advocate
Mohite
P.
W.
5
examined
by
the
(i)
in nature.
plaintiff. This witness had duly proved that
reply given by transaction as regards land and building was
drafted by him
(j)
the
on the basis of instructions.
The
defendant
defendant
had
failed
to
animus
Advocate Mohite had any
admitting
(l)
that
against
the
false testimony.
It was not the case of oath against oath.
It
(k)
prove
ig
plaintiff and reason to give
the
was
case
plaintiff
of
and
discharge
rather
of
sheer
burden
denial
by
by
the
the
defendants.
(m)
The defendant could have proved his case and
proved that it was loan transaction by whatever
evidence he wanted.
the
defendant
to
No effort
prove
his
finding recorded by the
were taken by
plea,
trial
agreement of sale was proved
and
hence
Court
that
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.
The
defendant
findings
has
failed
to
show
that
the
rendered in the judgment and decree
(p)
or due to any illegality.
and appeal are vitiated due those being perverse
13] Perused the impugned judgment and evidence on record.
14] It
is
seen
that
the
plaintiff
was
relying
on
a
registered document and another unregistered but notarised
document. The burden on
While
the
burden
on
ig
lighter.
the plaintiff was comparatively
defendant
was
onerous
because he had to contradict a registered document as well
as a notarised document.
On perusal and
15]
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.
16]
The
defendant
has
failed
to
show
as
to
plaintiffs, bank witness and P.W. 5 Advocate all
make
statement
on
oath
before
the
court,
why
the
should
support
the
plaintiff's case.
The defendant's solitary statement does not inspire
registered
The Defendant's sons who were witnesses of
agreement
of
sale
should
have
stepped
confidence.
into
17]
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
Had the plaintiffs to possess any ill intention, they
would never have
pf
transaction.
witnesses,
let the defendant's sons to be the
ig
18]
trust and inspires confidence.
Rather
insisted for witnesses of their own
Ordinarily
family member
may
have
been
have documents
purchaser to
it
would
be
plaintiff's have shown
In
the
result
the
a
imprudent
act
for
The
fact
that the
renders the
witness more credible.
judgment
decreeing the suit does not
have
confidence.
candidness
testimony of plaintiff and their
19]
would
executed on which vendor's
witness.
this
they
and
order
suffer from any
impugned
illegality,
and is not against equity or good conscious.
20] appeal is found to be devoid of
In the result, the
merits,
whatsoever
and
deserves
to
be
dismissed
and
is
hereby dismissed with costs
21]
In view of dismissal of appeal, civil application no.
1734 of 2012 and 1735 of 2012 doe not survive and is
disposed of.
(A. H. JOSHI, J. )
i
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