Telangana High Court
M/S Silamkot Finance Private Limited vs Nagari Pandusa on 22 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.224 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 10.04.2023, passed by the II Additional District Judge, Sanga Reddy, in AS.No.81 of 2018, whereunder and whereby the judgment and decree dated 02.06.2016 passed by the Senior Civil Judge, Sangareddy, dismissing the suit in O.S.No.337 of 2006, was confirmed.
2. The appellant is the plaintiff and the respondents are the defendants in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The factual matrix of the case, in brief, which led to filing of the Second Appeal is that the plaintiff-company has been incorporated under the Companies Act and duly registered on 25.11.1997 before the Registrar of Companies. Its object apart from others is to purchase movable and immovable properties of any kind. In that course of business, the plaintiff-company purchased the suit schedule property under a registered sale deed dated 13.08.1999 for a sale consideration of Rs.3,11,000/-. 2
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4. Defendant Nos.1 and 2, who are some of the Directors of the plaintiff-company, with a dishonest intention hatched a plan to convert the plaintiff-company's assets into their personal properties, fabricated a Board meeting resolution dated 14.07.2004, where the plaintiff-company is said to have given an authorization to them to sell the suit schedule property for consideration of Rs.3,51,000/- and accordingly, defendant Nos.1 and 2 transferred the suit schedule for property in the names of defendant Nos.3 to 5, who are their relatives, under a registered sale deed dated 29.11.2004. Thereafter, in the year 2005, defendant Nos.3 to 5, in collusion with defendant Nos.1 and 2, have transferred the suit schedule property in the names defendant Nos.6 to 9, who are also their relatives, through a registered sale deed dated 09.03.2005 for a consideration of Rs.3,70,500/-. The plaintiff-company does not have any knowledge about the said transactions, but as per its knowledge, no consideration has been passed under the above said registered sale deeds.
4.1. Having come to know about the fraud played by defendant Nos.1 and 2 in selling the plaintiff-company lands, one Sri Ratan Jawahar Shah, who is one of the Directors of the plaintiff- 3
LNA, J S.A.No.224 of 2023 company, called for a meeting of Board of Directors on 12.11.2006 to discuss about functioning of the plaintiff-company, the properties held by it and their appreciation value. The plaintiff served personal notice to all the twelve Directors of the plaintiff- company fixing the Agenda for meeting. All the Directors received the said notice except defendant Nos.1 and 2 who refused to take notice and did not attend the said Board meeting. In the said Board meeting, it was discussed and found that defendant Nos.1 and 2, in collusion and in conspiracy with defendant Nos.3 to 9, have committed/criminal breach of trust and thereby, cheated the plaintiff-company for their personal gains causing wrongful loss to the plaintiff- company.
4.2. That being so, defendant Nos.6 to 9 have got the suit schedule property partitioned through a registered partition deed vide document No.25990/2006 with an ulterior motive and further, cheated the plaintiff-company. As such, the plaintiff-company passed resolution on the same day authorizing-Ratan Jawahar Shah to initiate appropriate civil and criminal actions against defendant Nos.1 and 2 as the aforesaid acts done by them are against the 4 LNA, J S.A.No.224 of 2023 interest of plaintiff-company. Hence, the present suit is filed for the following reliefs.
"(1) For a decree of declaration that the partition deed bearing Document No.25990/2006 dated 08.11.2006 registered before the Sub-Registrar, Sangareddy, Medak District, be null and void.
(2) For a decree to set aside registered sale deed bearing No.13104/2004 dated 29.11.2004 executed by defendant Nos.1 and 2 by way of a consequential relief.
(3) For a decree to set aside the registered sale deed bearing No.2654/2005 dated 09.03.2005 executed by the defendant Nos.3 to 5 by way of consequential relief and (4) For costs of the suit."
5. Defendant Nos.1 and 2 filed their detailed written statement denying each and every allegation made in the plaint and inter alia contended that as per the Board resolution dated 14.07.2004, which was scribed by N.Shyam, S/o Late Narsing Rao, defendant Nos.1 and 2 were authorized to negotiate and sell the only property of the plaintiff-company i.e., suit schedule property. The said Resolution was signed by eight Directors which is evident from the Minutes book. The said Resolution dated 14.07.2004 was within the 5 LNA, J S.A.No.224 of 2023 knowledge of all the Directors including Ratan Jawahar Shah, but they neither disputed nor challenged the said resolution. After about four months, defendant Nos.3 to 5 came forward to purchase the land for a sale consideration of Rs.3,51,000/- and the entire sale proceeds were credited into the account of the plaintiff-company. Ratan Jawahar Shah was also aware of the aforesaid facts and subsequently, the sale proceeds were disbursed among the Directors/Investors.
5.1. As per the Board Resolution passed by the majority of members, four Directors of the plaintiff-company viz., N.Pandusa, Omkari Dattatri, T.Ramesh and Katighar Ramulu were authorized to deal, negotiate or issue cheques for the benefit of the plaintiff- company. Out of four Directors, any two Directors can sign on cheque or negotiate or issue cheques in favour of anybody. After receipt of the sale consideration amount, T.Ramesh and N.Pandusa issued cheques in favour of N.Shyam, Yashwantharao Chavan, Omkari Dattatri, K.Ramulu, D.Ashok and N.Surender. Apart from them, defendant No.1-N.Pandusa and T.Ramesh also received an amount of Rs.30,000/- each and put their signatures. 6
LNA, J S.A.No.224 of 2023 5.2. The amount was encashed and the same was paid by way of cash as per the desire of the remaining Board of Directors. Therefore, it is most unfair on the part of Ratan Jawahar Shah to dispute the sale deed executed by defendant Nos.1 and 2 in favour of defendant Nos.3 to 5. In 2006, the rise in the values of agricultural lands made Ratan Jawahar Shah to turn dishonest and file a suit by manipulating the alleged Board meeting said to have been conducted in his house. The company registered office is some thing different and no reason is given for change of venue. The alleged meeting that is held in the house of Ratan Jawahar Shah is only a private affair and he cannot assume any authority to file a suit refusing the sale made by the plaintiff-company. As this is a dispute regarding the actions of the Board of Directors and/or about the resolutions, this matter can only be decided by the authority appointed under the Companies Act and this court has no jurisdiction to decide the issue involved in this case under Section 10 of the Companies Act.
5.3. It was further averred that the income Tax Department came to the premises of defendant No.1 and seized all the valuable records including the Minutes book of the plaintiff-company. On 7 LNA, J S.A.No.224 of 2023 obtaining certified copies of the documents from the Income Tax Department, defendant No.1 filed the said documents i.e., certified copies of the meetings conducted on 10.07.2004 and 12.07.2004 and the Resolution dated 14.07.2004. Hence, they contended that the suit is devoid of merits and is liable to be dismissed.
6. Defendant Nos.3 to 5 also filed their detailed written statement denying each and every allegation made in the plaint and inter alia contended defendant Nos.1 and 2 made lot of efforts to search purchasers to sell the suit schedule property of the plaintiff- company in order to avoid payment of interest to the investors, as there is no source of income arising out of the suit schedule property and they waited for more than four months and that Ratan Jawahar Shah is well aware of the said fact. Further, as none came forward to purchase the suit schedule property, ultimately, defendant Nos.3 to 5 came forward and purchased the said property through registered sale deed dated 29.11.2004 and paid consideration by way of Pay Orders in favour of the plaintiff- company and the same was utilized by the Directors. All the said facts are quite evident from the records.
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LNA, J S.A.No.224 of 2023 6.1. It was further stated that defendant Nos.3 and 4 are business men and are income tax assessees. Similarly, defendant No.5 and her husband are having separate businesses and defendant No.5 is also an income tax assessee. Accordingly, to show bonafides they have paid the sale consideration by way of Pay Orders in favour of the plaintiff-company at the time of execution of registered sale deed on 29.11.2004. 6.2. It was further averred that as there was no income arising out of the suit schedule property, defendant Nos.3 to 5 sold the same in favour of defendant Nos.6 to 9 by executing registered sale deed dated 09.03.2005 and received the sale consideration amount. Thus, defendants 6 to 9, who are bonafide purchasers, are in exclusive possession and enjoyment of the suit schedule property. 6.3. It was further averred that since there was a land boom recently, the market value of the suit land has been increased and as such, Ratan Jawahar Shah has developed dishonest intention and fictitious meeting alleged to have been conducted by him on 12.11.2006 was brought into existence for the purpose of the case and only to harass defendant Nos.3 to 5 and thereby, to extract money from them. Hence, they prayed to dismiss the suit. 9
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7. Defendant No.6 filed his written statement denying each and every allegation made in the plaint and inter alia contended that he purchased the 1/4th share of the suit schedule property for a valuable consideration of Rs.92,625/-, which is reflected in his Income Tax returns. It was further stated that the other defendants and their predecessors-in-title had been in continuous and uninterrupted possession of the suit schedule property successively. Upon execution of partition deed, dated 08.11.2006, defendant No.6 has been allotted land admeasuring Ac.0-19.5 guntas which is clearly demarcated by metes and bounds and he has been in peaceful and exclusive possession of the same. 7.1. In any case, the title, ownership and possession of defendant No.6 over his share in the suit schedule property cannot be defeated on mere allegation that sale consideration has not been received by one of its predecessors-in-title. The vendor under any document cannot seek cancellation of the document, but can only sue for recovery of the alleged un-paid sale consideration. 7.2. It was further stated that Ratan Jawahar Shah did not raise any protest or objection to the transaction all these years. 10
LNA, J S.A.No.224 of 2023 7.3. It was further stated that a perusal of registered sale deed bearing document No.13104/2004 dated 29.11.2004 would reveal that an amount of Rs.3,51,000/- has been paid to the plaintiff- company by way of three separate cheques and the receipt thereof was admitted by the company. Accordingly, defendant No.6 prayed to dismiss the suit.
8. Defendant Nos.7 to 9 filed their common written statement denying each and every allegation made in the plaint and inter alia contended that defendant Nos.3 to 5, who are the bonafide purchasers of the suit schedule property, under registered sale deed dated 29.11.2004 by paying the sale consideration amount to the plaintiff-company, came forward to sell the suit schedule property and accordingly, defendant Nos.6 to 9, who are business men, and having independent source of income and are income tax assesses, purchased the property from defendant Nos.3 to 5 under a registered sale deed dated 09.03.2005 for valuable sale consideration and that since the date of purchase, defendant Nos.6 to 9 are in exclusive possession and enjoyment of the suit land. 8.1. It was further averred that Ratan Jawahar Shah has knowledge about the Resolution passed by the Board of Directors 11 LNA, J S.A.No.224 of 2023 dated 14.07.2004 and he is also well aware of the fact of sale of the suit schedule property to defendants 3 to 5 by defendant Nos.1 and
2. Hence, he has no right to seek cancellation of any of the registered sale deeds.
8.2. It was further stated that certain differences arose between defendant Nos.6 to 9 and hence, they decided to get partition of the suit schedule property. Accordingly, the partition deed was reduced into writing and was got registered on 08.11.2006 and defendant Nos.6 to 9 are in exclusive possession and enjoyment of their respective shares. Therefore, Ratan Jawahar Shah has no right to question or seek cancellation of partition deed dated 08.11.2006. Thus, he prayed to dismiss the suit in limini.
9. Based on the aforesaid pleadings, the trial Court framed the following issues for trial:-
"1.Whether the plaintiff is entitled for cancellation of Registered partition deed dated 08.11.2006?
2. Whether the plaintiff is entitled for cancellation of registered sale deed dated 29.11.2004?
3. Whether the plaintiff is entitled for the cancellation of registered sale deed dated 09.03.2005?
4. To what relief?"12
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10. To substantiate the case, on behalf of the plaintiff, Ratan Jawahar was examined as PW1, one K.Shanker Rao was examined as PW2 and Exs.A1 to A10 were marked. On behalf of the defendants, defendant No.1 was examined as DW1, one Nagari Shyam was examined as DW2, one Omkari Dattatreya was examined as DW3, defendant No.4 was examined as DW4 and defendant No.6 was examined as DW.5 and Exs.B-1 to B-8 were marked.
11. The trial Court, upon considering the oral and documentary evidence and the contentions of both the parties, dismissed the suit vide judgment dated 02.06.2016. The trial Court quoting the provisions of law i.e., Section 34 of the Specific Relief Act and the proviso thereto and Order II Rule 2 and Sub-Rules-(2) and (3) of Rule 2 CPC observed that the plaintiff could have asked for the relief of declaration that the resolution dated 14.07.2004 as null and void and it does not bind the plaintiff-company. Though, such relief is available to be sought for, the plaintiff had omitted to seek such relief which is fatal to its case.
12. The trial Court further held that as per Article-19 of the Articles of Association, a general meeting of the company may be 13 LNA, J S.A.No.224 of 2023 called by Board by giving notice in writing not less than seven days. The notice dated 07.11.2006 (marked as Ex.A-2) is said to have been issued to all Directors for attending the meeting on 12.11.2006. Thus, it is evident that no clear seven days notice was served on the Directors for attending the meeting and as such, the notice becomes invalid and consequently, the meeting held on 12.11.2006 also becomes invalid. Therefore, the resolution that was passed by the plaintiff-company on 12.11.2006 authorizing Ratan Jawahar Shah to file the suit seeking cancellation of the sale deeds and partition deed, etc., cannot be said to be valid and hence, the suit is not maintainable.
12.1. The trial Court further observed that as no relief is sought for in the plaint to the effect that the very resolution dated 14.07.2004 is not legally valid and not binding on the company and hence, the sales that were made by defendant Nos.1 and 2 under Ex.A-7 is not at all valid, no issue was framed in that regard and no finding was given. The trial Court further held that without there being any such finding, it cannot straight away jump to decide the validity of the sale deeds and partition deed and adjudicate as to 14 LNA, J S.A.No.224 of 2023 whether the same is binding on the plaintiff-company or not. By observing thus, the trial Court dismissed the suit.
13. On appeal, the first Appellate Court, being the final fact- finding Court, re-appreciated the entire evidence and the material available on record and dismissed the appeal vide judgment dated 10.04.2023.
13.1. The first Appellate Court observed as under:-
"The plaintiff company was having full knowledge with regard to the resolution dated 14-07-2004. But, the plaintiff company did not sought for declaration of the said resolution, dated 14-07-2004, as it is fabricated resolution. Without asking for such relief, the suit filed by the plaintiff company is not maintainable.
Thus, without such relief by the plaintiff company, the court cannot decide the genuineness or otherwise of the resolution dated 14- 07-2004. When such relief is not sought for by the plaintiff company, it has no right to seek cancellation of the sale deeds under Exs.A6 to A8, as (sic and) also Ex.A9, partition deed, particularly, the consequential relief to declare the sale deed executed by defendant Nos.1 and 2, as void is not correct."
13.2. The first Appellate Court further observed as hereunder:- 15
LNA, J S.A.No.224 of 2023 "In order to establish, that the registered documents under Exs.A7 and A8, are invalid and, therefore, Ex.A9 is to be cancelled, the plaintiff company has to establish that the resolution, dated 14-07-2004, is a fabricated one. The pleading of the defendants is that there is a board meeting on 14-07-2004, and a resolution was passed for alienating the properties of the plaintiff company. Thus, on perusal of the issues framed before the trial court, go to show that there is no specific issue as to whether the resolution, dated 14.07.2004, is valid or not, which is the basis of the case. Without the said issue, the plaintiff cannot establish that Exs.A7 and A8 are invalid and consequently cannot seek cancellation of Ex.A9. The reliefs sought for by the plaintiff company is only a consequential. Thus, unless and until the plaintiff company seeks a direction that the resolution dated 14.07.2004, as invalid, it cannot seek for the cancellation of Exs.A7 to A9.
Order II Rule 2 of the Code, provides that without praying for a relief, which is ought to have been asked, when not asked, cannot be granted and the consequently relief cannot be granted, without granting the main relief."
13.3. The first Appellate Court further held as under:-
"The plaintiff company is not in existence as it was removed from the ROC in the year 2018 itself. Thus, the plaintiff is prosecuting the case in the name of dead 16 LNA, J S.A.No.224 of 2023 company. Even, the plaintiff did not dispute with regard to non existence of plaintiff-company and thereby, failed to explain how the appeal filed by it is maintainable. The defendants filed memo before this court, in the month of December 2020, to the effect that as per the ROC record, public notice was issued on 20.09.2017, the plaintiff company name was removed from ROC record and the plaintiff company is not in existence.
The plaintiff is representing as director of the plaintiff company. The appeal is not filed in his individual capacity. When the plaintiff-company is not in existence, as per the record produced by the defendants before this court, the appeal filed by the plaintiff company is not maintainable, as Rathan Jawahar Shah has no locus- stand to represent on behalf of the plaintiff company."
14. As regards the additional grounds of the appeal by the plaintiff with regard to the fraud alleged to have been played by the defendants in selling the property of the plaintiff company, the first Appellate Court observed as under:-
"The pleading of the plaintiff is only with regard to the resolution dated 14-07-2004, as fabricated and there is no whisper in the plaint filed by the plaintiff-company with regard to the fraud or particulars of the fraud played by the defendants. Therefore, it is not open to the plaintiff to urge before this court, that fraud is played by the 17 LNA, J S.A.No.224 of 2023 defendants, as it is to be specifically pleaded and proved with cogent evidence. In the absence of it, the plea taken by the plaintiff, as additional grounds, that fraud is played is liable to the discarded."
15. By observing as above, the first Appellate Court ultimately held as under:-
"Therefore, in view of the foregoing discussion, the grounds of appeal, the evidence of the defendants and the documentary evidence produced before the trial court by them under Exs.B1 to B-8, the version of PWs 1 and 2 and Exs.A1 to A10 are of no help to the plaintiff, as there is no fraud played by the defendants and the same is not pleaded and proved before the trial Court in the case; that there is no specific issue as to whether the resolution, dated 14.07.2004 is valid or not, which is the basis of the case, and without the said issue, the plaintiff cannot establish that Exs.A7 and A8 are invalid and consequently cannot seek for cancellation of Ex.A9, and that therefore this Court is of the opinion that that the plaintiff has failed to establish that it is entitled for grant of the relief, as prayed for."
16. Based on the pleadings of both the parties, the following substantial questions of law arise for consideration in this Second Appeal:-
18
LNA, J S.A.No.224 of 2023 "(1)Whether the first Appellate Court is right in ignoring the law laid down by the Hon'ble Supreme Court when the element of fraud is involved?
(2) Whether the first Appellate Court is right in ignoring the various facets of fraud as explained by the Hon'ble Supreme Court in catena of decisions more particularly that "fraud avoids all judicial acts" and "fraud unravels everything" and several rulings to this effect?
(3) Whether the first Appellate Court is right in refusing to receive additional evidence under Order XLI Rule 27 Code of Civil Procedure, ignoring the specific ruling of the Hon'ble Supreme Court in Sanjay Kumar Singh & Case ((2022) 7 SCC 247) in a case of this nature?
(4) Whether the first Appellate Court is right in rejecting the application under Order XIV Rules 1, 3 & 5 read with Sec. 107(1)(c) Code of Civil Procedure to frame additional issues without exercising its power in a correct perspective?
(5) Whether the first Appellate Court is right in relying on and referring to a non-existing authorization for holding that the suit is not maintainable on the ground the said authorization was not challenged?
(6) Whether the first Appellate Court is right in dismissing the appeal and rejecting the relief merely by holding that the relief sought for in the suit is only consequential to a 19 LNA, J S.A.No.224 of 2023 non-existing authorisation and that the said non-existing authorization was unchallenged?
17. Learned counsel for appellant vehemently argued that the trial Court decreed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
18. Learned counsel for the appellant contended that the trial Court as well as the first Appellate Court miserably failed in appreciating various grounds of appeal urged on behalf of the appellant as regards the fraud played by the defendants. In this regard, learned counsel for the appellant relied upon the following judgments:-
(1) Dr. Vimla Vs. Delhi Administration 1 (2) S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by Lrs and others 2 (3) Ram Chandra Singh Vs. Savitri Devi and others 3 (4) Ram Kumar Vs. State of Uttar Pradesh and others 4 1 1963 Supp (2) SCR 585 2 (1994) 1 SCC 1 3 (2003) 8 SCC 319 4 2022 SCC OnLine SC 1312 20 LNA, J S.A.No.224 of 2023 (5) Shrisht Dhawan Vs. M/s Shaw Brothers 5 (6) Munjal Showa Ltd Vs. Commissioner of Customs and Central Excise (Delhi-IV) 6 (7) Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd 7 (8) State of AP and another Vs. T.Suryachandra Rao 8 (9) Santosh Vs. Jagat Ram and another 9 (10)Badami (deceased) by her LR Vs. Bhali 10 (11) Ram Preeth Yadav Vs. U.P.Board of High School and Intermediate Education and others 11 Substantial Question Nos.1 and 2:-
19. This Court has carefully gone through the aforesaid judgments relied upon by the learned counsel for the appellant. There is no quarrel with regard to the proposition/ratio held by catena of judgments of Hon'ble Supreme Court that fraud and collusion vitiates every solemn act and it also amounts to abuse of 5 (1992) 1 SCC 534 6 2022 SCC OnLine SC 1296 7 (1996) 5 SCC 550 8 (2005) 6 SCC 149 9 (2010) 3 SCC 251 10 (2012) 11 SCC 574 11 (2003) 8 SCC 311 21 LNA, J S.A.No.224 of 2023 process of Courts and the Court have inherent power to set aside an order obtained by fraud.
20. In the instant case, in the plaint, the plaintiff-company except pleading that the Board resolution dated 14.07.2004 is fabricated did not chose to adduce any material particulars with regard to the said aspect nor there is any whisper in the plaint with regard to the fraud played by the defendants. Only before the first Appellate Court the plaintiff-company has taken the alleged fraud said to have been played by the defendant as additional ground. However, the first Appellate Court having observed that there is no whisper in plaint as regards the fraud, particularly the fraud played by the defendants, which is to be specifically pleaded and proved with cogent evidence, did not entertain/consider the additional ground of fraud, which in the considered view of this court warrants no interference in the absence of specific pleading and factual foundation to that effect.
21. Further, the facts and circumstances of the case in the aforesaid judgments relied upon by the learned counsel for the 22 LNA, J S.A.No.224 of 2023 appellant are distinguishable with the facts of the instant case and hence, are not applicable to the present case.
22. In fact, the judgments of the Hon'ble Apex Court in S.P.Chengalvaraya Naidu's case (supra), Indian Bank's case (supra), T.Suryachandra Rao's case (supra) relate to the inherent power of the Courts to recall the order/judgment if the same is found to have been obtained by fraud/forgery or in cases, where the order was obtained by non-discloure of the true facts, as the same amounts to abuse of process of Court. However, the facts of the present case are otherwise. In fact, in the present case, the plaintiff never pleaded that the defendant played fraud on the Court. Therefore, the said judgments are of no aid to the plaintiff- company. Thus, the questions are answered accordingly. Substantial Question No.3:-
23. A perusal of the documents sought to be taken on record by the appellant would reveal that those pertains to the notices of demand and Penalty order issued by the Income Tax Department with regard to some financial irregularities alleged to have been committed by the erstwhile Directors of the company. 23
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24. In considered opinion of this Court, the core issue involved in this case is with regard to the alienation of properties of the company. Therefore, the documents sought to be received as additional evidence are neither related nor relevant for adjudication of the present Appeal and the issue/s in the lis. Thus, this question is answered against the appellant.
Substantial Question No.4:-
25. The trial Court has framed four issues basing on the pleadings of both the parties. The appellant has not taken steps for framing of additional issue under Order XIV CPC, at the first instance before the trial Court. It is only before the first Appellate Court that the appellant filed an application to frame additional issue. Having not been diligent before the trial Court insofar as the framing of additional issue is concerned, it is not open for the appellant to agitate the said aspect before the first Appellate Court. Also, had the request for framing of the additional issues been sought before the trial Court and if the same was accepted, both the parties would have got an opportunity to adduce evidence in that regard and the trial Court also would have got the advantage of 24 LNA, J S.A.No.224 of 2023 appreciating the said evidence while adjudicating the suit. But, admittedly, the appellant failed to do so before the trial Court. Accordingly, this question is answered against the appellant. Substantial Question Nos.5 and 6:-
26. Learned counsel for the appellant contended that the observation of the first Appellate Court that as Board resolution dated 14.07.2004 remained unchallenged, the consequential deeds i.e., Exs.A-7 to A-9 cannot be challenged is untenable and to buttress his contention he relied upon the following judgments of the Hon'ble Apex Court:-
(1) Shaik Munni Vs. M/s Jagan Mohan Salt Industries, Calingapatnam and others 12 (2) Bachhaj Nahar Vs. Nilima Mandal and another 13 (3) Ajay Vs. Mrunali Prabhakar Gadgil and others 14
27. In Bachhaj Nahar's case (supra), the Hon'ble Apex Court held that without pleading and an opportunity of hearing to 12 2002 SCC OnLine AP 930 13 (2008) 17 SCC 491 14 2014 SCC OnLine Bom 1078 25 LNA, J S.A.No.224 of 2023 defendant, no amount of evidence can be looked into to grant any relief.
28. Applying the said ratio, it is to be noted that in the case on hand, the plaintiff-company failed to plead the ground of fraud alleged to have been played by the defendants in the plaint and no evidence was adduced in that regard before the trial Court and only at the stage of first appeal, the said ground of fraud was sought to be raised as an additional ground. Therefore, the trial Court and first Appellate Court have rightly held that without seeking to cancel the Board Resolution, dated 14.07.2006, which authorized defendant Nos.1 and 2 to deal with the suit schedule property of the plaintiff-company, the relief sought with regard to cancellation of the subsequent transactions, i.e., the registered sale deeds which emerged as a consequence of the authorization given in the said Board Resolution, is invalid and hence, the same cannot be granted. Therefore, this finding of the trial Court as well as first Appellate Court does not call for interference by this Court. Thus, both the questions are answered against the appellant. 26
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29. Further, it is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
30. Further, in Gurdev Kaur v. Kaki 15, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
31. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C.
32. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs. 15
(2007) 1 Supreme Court Cases 546 27 LNA, J S.A.No.224 of 2023
33. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:22.04.2024 dr