Bombay High Court
Keshav Limbaji Patange And Ors vs Shivaji Panduranga Patange And ... on 21 July, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 9 OF 2016
Kailasbhai Mohanlal Joshi
Age : 71 Yrs., Occ. Business,
R/o : Andhale Chaure Nagar, ..... APPELLANT/
Nagapur, Ahmednagar. [ORI. DEFENDANT]
ig V E R S U S
Deepak Madanlal Gugale
Age : 44 Yrs., Occ. Business,
R/o : Apurya Apartment, ..... RESPONDENT/
Nandanwan Colony, Ahmednagar. [ORI. PLAINTIFF]
.....
Mr. K.M.Nagarkar, Advocate for Appellant.
Mr. R.P.Phatke, Advocate for Respondent.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 21/07/2016
JUDGMENT :
1. The Appeal is filed against the Judgment
and decree of Spl. Civil Suit No. 196/2009 which was
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pending in the Court of the Civil Judge [Sr.Division],
Ahmednagar and also against the Judgment and decree
of R.C.A. No. 264/2012 which was pending in the Court
of the District Judge -4, Ahmednagar. Money decree is
given against the present appellant/defendant and he is
directed to pay the amount due to the plaintiff of `
1,06,100/- with interest @ 8 % per annum. Heard both
sides.
2. It is the case of the respondent/plaintiff that
there was agreement between him and the defendant and
the defendant had agreed to sell plot No. 10 out of S.No.
24 (1B)/2B/1A/6/1E admeasuring 398.10 Sq. Meters
situated at Savedi, within the limits of Municipal
Corporation, Ahmednagar. It is contended that the
agreement dated 18/02/2006 was registered and for the
consideration of ` 34,31,000/-, the defendant had agreed
to sale the plot and had accepted ` 1,00,000/- as earnest
money.
3. It is the case of the plaintiff that to see that
there is no charge of any person on the property and the
property is free from encumbrances, he gave notice in
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the news-paper dated 03/09/2006 through Advocate. It
is contended that on 09/09/2006, one Mr. Deepak Jetala,
Advocate took objection to the transaction informing the
interest of his client. It is contended that the plaintiff
approached the defendant and informed about the
objection and then the defendant gave cheque of
` 1,00,000/- for returning the earnest money. It is
contended that criminal case was filed out of the incident
of bouncing of cheque, but the defendant did not make
the payment. It is contended that the defendant was
convicted also and his conviction was confirmed by the
Sessions Court, but the defendant did not make the
payment and he under-went the sentence and so the
cause of action took place. He had prayed for
recovery of ` 1,00,000/- and also legal expenses.
4. It appears that when the bailiff, officer of the
Court, went to the residential place of the defendant for
service of suit summons, defendant's wife was there but
she did not accept the summons and as she gave evasive
answers, the bailiff pasted the summons on the door of
the residential place of the defendant and gave report
accordingly. He filed affidavit in respect of this incident.
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Due to this record, ex-parte order was made. The
plaintiff gave evidence and then the aforesaid decree
came to be made.
5. The trial Court considered the record viz.
oral evidence given by the plaintiff, registered agreement,
public notice given by the plaintiff, the objection taken by
one lady Sunita Nandurkar to the transaction, cheque
given by the defendant for redemption of amount due,
copy of the complaint, and copy of Judgment given by
criminal Court convicting the defendant for the offence
u/s 138 of the Negotiable Instruments Act. In view of
this record, District Court also confirmed the decision
given by the trial Court.
6. It appears that before the District Court, the
decision was challenged by contending that there is no
proper service of summons on defendant and there was
no compliance of the provision of Order V Rule 17 of the
Code of Civil Procedure. The first appellate Court
considered the relevant provision and in view of the
aforesaid record viz. report of the bailiff, his affidavit and
provision of law, held that it was proper service.
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7. The submissions made by the learned
counsel for the appellant show that the execution of the
agreement is not disputed. The agreement was registered
and for return of money, cheque was also given by the
defendant. The cheque bounced and in that matter
conviction was given to the defendant, which he has
under gone. In view of these circumstances, it was
necessary for the present appellant to show that there is
some case on merit to the appellant. Learned counsel for
the appellant submitted that only on technical ground
that summons was not properly served on the defendant,
the appellant has challenged the decision. She placed
reliance on 2 cases reported as 2000 (1) Bom.C.R. - 306
[Baburao Soma Bhoi Vs. Abdul Raheman Abdul
Rajjak Khatik] and 2014 (3) Bom.C.R. - 474 [Smt.
Manju w/o Baldev Narang & Anr. Vs. Prakash s/o
Manohar Lokhande & Ors.].
8. On the basis of the observations made by this
Court in the aforesaid 2 cases, learned counsel for the
appellant submitted that there was no proper service and
the bailiff ought to have been examined. It needs to be
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kept in mind that the bailiff had created record as
provided under Order V Rule 17 of the Code of Civil
Procedure. The provision shows that it is open to the
Court to examine the bailiff by taking recourse of
provision under Order V Rule 19 of the Code of Civil
Procedure for satisfying itself that there was proper
service of summons. This provision is meant for use of
the Court. The case of Smt. Manju Narang cited supra
was involving eviction matter filed under Maharashtra
Rent control Act. Under the said Act, some right is given
to the tenant to take steps after service of summons and
in view of that right, interpretation was made by this
Court that there needs to be strict observance of the
provisions and even the bailiff needs to be examined. In
the present matter, which was filed for recovery of money
and in which there are aforesaid circumstances, the
defendant would have filed Written statement of
aforesaid nature. In view of the facts of the present
matter, this Court holds that the satisfaction of the Court
was sufficient and the Court had made ex-parte order in
view of the bailiff report and other record.
9. In view of these circumstances, this Court
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holds that it is not possible to interfere in the decision
given by the Courts below and as the findings are
concurrent, no substantial question of law as such is
involved in the matter.
10. In the result, Second Appeal stands
dismissed. In view of dismissal of the Second Appeal,
C.A. No. 154 of 2016 stands disposed of.
[T.V.NALAWADE, J.]
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