Bombay High Court
Awachit S/O. Shiva Jamgade And ... vs Mrs. Meerabai W/O. Nivrutti ... on 3 March, 2017
Bench: Ravi K. Deshpande
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0303sa79.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.79 of 2016
1. Awachit s/o Shiva Jamgade,
Aged about 56 years,
Occupation : Agriculturist,
R/o Plot No.50,
Bajrang Nagar, Manewada Road,
Nagpur.
2. Gautam s/o Shiva Jamgade,
Aged about 52 years,
Occupation : Agriculturist,
R/o Mahur Zari,
Tahsil and District Nagpur.
3. Shuddhodan s/o Shiva Jamgade,
Aged about 50 years,
Occupation : Agriculturist,
R/o Sheela Nagar, Behind Lekha
Apartment, Gittikhadan,
Katol Road, Nagpur.
4. Satyawan s/o Shiva Jamgade,
Aged about 48 years,
Occupation - Agriculturist,
R/o Sheela Nagar,
Behind Lekha Apartment,
Gittikhadan, Katol Road,
Nagpur.
5. Deoman s/o Shiva Jamgade,
Aged about 46 years,
Occupation - Agriculturist,
R/o Sheela Nagar,
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0303sa79.16.odt
Behind Lekha Apartment,
Gittikhadan, Katol Road,
Nagpur.
6. Smt. Savitribai wd/o Shiva Jamgade,
Aged about 74 years,
Occupation - Household,
R/o C/o Sharda w/o Yashwant
Khandare,
Plot No.185, Laghuvetan Colony,
Indora, Nagpour (Dead).
7. Mrs. Sharda w/o Yashwant Khandare,
Aged about 41 years,
Occupation : Agriculturist,
R/o Plot No.185, Laghuvetan Colony,
Indora, Nagpur.
8. Mrs. Girjabai w/o Prabhu Raut,
Aged about 54 years,
Occupation : Agriculturist,
R/o Laghuvetan Colony,
Indora, Nagpur. ... Appellants
Versus
Mrs. Meerabai w/o Nivrutti Bhosale,
Aged about 47 years,
Occupation : Agriculturist, R/o
Gittikhadan, Katol Road,
Nagpur. ... Respondent
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0303sa79.16.odt
Coram : R.K. Deshpande, J.
rd
Date : 3 March, 2017
1. On 25-8-2016, this Court passed an order as under :
" Heard Shri Amit A. Choube, the learned counsel appearing
for the appellants and Shri J.A. Anthony, the learned counsel
appearing for the respondent.
The trial court passed a decree in Special Civil Suit No.565
of 1998 for specific performance of contract on 07.08.2009. The
lower Appellate Court has maintained the said decree in Regular
Civil Appeal No.314 of 2010 decided on 29.08.2015. Hence, the
original defendants are before this Court, against the concurrent
findings of fact recorded by the courts below.
The specific performance was sought of the agreement
dated 20.12.1984 at Exhibit-28. It was for total consideration of
Rs.1,25,000/-, out of which, it was alleged by the plaintiff that
initially an amount of Rs.25,000/- was paid by way of earnest
0303sa79.16.odt
money, whereas an amount of Rs.25,000/- was paid on
31.05.1995. By issuing notice dated 01.12.1997 at Exhibit-24 the
defendant No.3 was called up to execute the sale-deed and since it
was not executed the suit for specific performance of contract was
filed.
It was the defence raised by the appellant/defendants that
it was a money lending transaction and in fact the plaintiff obtained
blank stamp paper signed by the defendant on which the said
agreement was written. According to the defendants, it is only an
amount of Rs.25,000/-, which was paid by the plaintiff to the
defendants for carrying out a renovation work, although it was
agreed to lend an amount of Rs.50,000/-.
The question is about proof of the contents of the
document at Exhibit-28 and the payment of earnest amount of
Rs.50,000/-. Though, it is an admitted position that an amount of
Rs.25,000/- was paid to the defendants on 20.12.1994, the
payment of Rs.25,000/- on 31.05.1995 was disputed. Prima facie,
0303sa79.16.odt
there seems to be no evidence on record to establish the said
payment. Apart from this, there is also no discussion on the aspect
of readiness and willingness to perform the part of contract upon the
plaintiff. The sale-deed was to be executed on 31.05.1995, but the
notice calling upon the defendants to execute the sale-deed was
issued on 01.12.1997.
In the background of the aforesaid pleadings of the parties
and the findings recorded by the courts below, the following
substantial questions of law arises for consideration.
i] Whether the contents of the agreement dated 20.12.1994
at Exhibit-28 have been established?
ii] Whether the plaintiffs have established their claim for
readiness and willingness to perform their part of contract and the
payment of Rs.25,000/- on 31.05.1995?
Hence, Admit.
Shri J.A. Anthony, the learned counsel waives service of
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notice for respondent.
Put up this matter on 15.09.2016 for considering the
question of remand of the matter back to the trial court.
Civil Application (S) No.183/2016 :
The interim order passed by this Court shall continue to
operate."
2. Shri Anthony, the learned counsel for the respondent, concedes to
the position that the matter is required to be remanded back to the Trial
Court to consider it afresh in the light of what this Court has observed in
the aforesaid order. Hence, the Trial Court is required to decide the two
questions, which are framed by this Court, apart from all other questions
involved in the matter.
3. In view of above, the second appeal is allowed. The judgments
and orders passed by the Courts below, which are impugned in this appeal,
are hereby quashed and set aside. The matter is remanded back to the Trial
Court to decide it afresh in the light of what this Court has observed in the
aforesaid order. The Trial Court to decide the matter within a period of
0303sa79.16.odt
eight months from the date of first appearance of the parties before it. The
parties to appear before the Trial Court on 17-4-2017. No order as to costs.
Judge.
Lanjewar
