Kamalbai Namdeo Kisve vs Rafika Suraj Sayyad
2021 Latest Caselaw 6784 Bom

                                        1                    273-2016-SA-JUD



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         SECOND APPEAL NO. 273 OF 2016

Kamalbai Namdeo Kisve,
Age 42 years, Occu : Business and
Household, R/o Munshi Plots, Omerga,
Tq. Omerga, District Osmanabad                          .. Appellant
                                                       (Orig. Plaintiff)
       VERSUS

Rafika Suraj Sayyad,
Age 43 years, Occu : Household,
R/o Munsi Plots, Omerga, Dist. Osmanabad                .. Respondents
                                                       (Orig. Defendant)

                                        ...
                    Mr. N.L. Jadhav, Advocate for the appellant
                    Mr. A.A. Khan, Advocate for the respondent
                                        ...

                                    CORAM                : ANIL S. KILOR, J.

                                    RESERVED ON          : 24-03-2021
                                    PRONOUNCED ON        : 28-04-2021

JUDGMENT :

1. The appellant, who is the original plaintiff, is challenging the

Judgment and Decree dated 07-03-2015 passed in Regular Civil Appeal no.

17of 2012 by the District Judge-1, Omerga, allowing the Appeal and reversing

the Judgment and Decree dated 30-08-2008 passed by the Joint Civil Judge

Senior Division, Omerga in Special Civil Suit no. 15 of 2005, decreeing the

suit for specific performance of contract.

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2. I have heard the learned counsels for respective parties.

3. Brief facts of the present case are as follows (The parties are

referred to as per their status before the trial Court).

4. It is the case of the plaintiff that the plaintiff and defendant are

resident of village Omerga in the same vicinity and they have no relations

with each others. The husband of defendant Suraj Sayyad had sustained

losses in his truck business and he was indebted. The defendant therefore

had decided to alienate her house property bearing no. 287, ward no. 18,

Municipal House no. 481 admeasuring 50 feet X 40 feet. The defendant had

approached to the plaintiff and shown her desire for sale of suit property for

satisfaction of debt. The defendant agreed to sell the suit property for

consideration of Rs.2,70,000/-. The said offer was accepted by the plaintiff

on 01-04-2005. Accordingly, the agreement for sale of suit property was

executed in favour of the plaintiff after acceptance of amount of

Rs.2,50,000/-. Thereupon, the defendant handed over the possession of suit

property to the plaintiff on the same date and agreed to perform remaining

part of the contract within a span of two months from the date of agreement.

It was also agreed that the defendant will accept the remaining amount at the

time of execution of sale deed.

4.1 It is the further case of the plaintiff that the defendant has

started obstruction to the peaceful possession and enjoyment of the plaintiff

with an intention to get more amount from the plaintiff. Therefore, the suit

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for perpetual injunction bearing RCS no. 257 of 2005 was filed against the

defendant. However, the same was withdrawn with condition to file a fresh

suit.

4.2 It is the case of the plaintiff that the plaintiff requested the

defendant on many occasions for execution of sale deed by accepting the

remaining amount of Rs.20,000/- but it was in vein. The plaintiff therefore

issued legal notice to the defendant on 16-04-2005 through her counsel and

thereby called upon the defendant to perform the remaining part of the

contract, however, the notice was replied on false ground. Thus, the suit for

specific performance was filed.

4.3 The defendant appeared in the said proceedings, filed written

statement and denied the claim of the plaintiff and came up with a case that

husband of the defendant purchased a truck through finance company and

there were two dues of installment to be paid. Therefore, the defendant

requested for Rs. 60,000/- to the plaintiff, out of which the plaintiff paid

Rs. 35,000/-.

4.4 The defendant further stated in her written statement that the

plaintiff used to threaten and because of which she left Omerga and started

residing at Kasari where the plaintiff along with others came and demanded

Rs.2,70,000/- or asked her to execute sale deed of the house property.

On 01-04-2005, the plaintiff forcibly took her in a Jeep and brought at

Omerga under threat and had taken thumb impression on the stamp paper as

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well as on register. Therefore, it is the case of the defendant that the alleged

document dated 01-04-2005 is forged and bogus document. A Police

complaint was also lodged by the defendant against the plaintiff for the

offences punishable under section 341, 342, 363, 384, 506 r/w. 34 of the

Indian Penal Code and 33 of the Bombay Prohibition of Money Lending Act.

4.5 The learned trial Court framed the issues. Thereupon, both the

parties examined their respective witnesses. The learned trial Court

whereupon decreed the suit in favour of the plaintiff, directing the defendant

to execute the sale deed in favour of the plaintiff vide Judgment and Order

dated 30-08-2008.

4.6 The defendant feeling aggrieved by said Judgment and Decree

dated 30-08-2008, preferred an Appeal bearing RCA no. 17 of 2012 before the

District Judge-1, Omerga. Said Appeal came to be allowed vide impugned

Judgment and Decree dated 07-03-2015 which is impugned in the present

Appeal.

5. This Court vide order dated 22-07-2019 framed the following

substantial questions of law :

1. Whether the learned First Appellate Court erred in holding agreement to sell Exh. 46 being inadmissible evidence in ignorance of Section 35 of the Maharashtra Stamp Act ?

2. Whether the agreement to sell/contract can be said to be a legal contract in view of the defence taken that it was got executed by giving threats ?

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3. Whether proper Court fee was paid by the plaintiff ?

4. Whether the learned First Appellate Court was justified in reversing the decree passed by the learned Trial Court ?

5. Whether plaintiff was entitled to get specific performance of the contract ?

6. Whether interference is necessary in the Judgment and Decree passed by the learned First Appellate Court ?

6. Shri Jadhav, learned counsel for the appellant submits that the

impugned Judgment and Decree dated 07-03-2015 is perverse as the learned

lower Appellate Court while reversing the Judgment and Decree of the trial

Court dated 30-08-2008, failed to consider the oral as well as documentary

evidence available on record.

6.1 He submits that the burden to prove that the agreement dated

01-04-2005 was executed by fraud and under coercion lies on the defendant

who has asserted it.

6.2 It is submitted that the law does not require to prove that where

from the the plaintiff brought the amount and paid to the defendant while

entering into the transaction in respect of specific performance of the

contract.

6.3 He has further submitted that while reversing the Judgment of

the learned trial Court, the learned lower appellate Court exceeded its

jurisdiction and went beyond the evidence available on record.

                                             6                     273-2016-SA-JUD


6.4               It is submitted that the FIR itself is not sufficient to establish that

there was threat more particularly when the FIR was lodged after 20 days of

the alleged incident.

6.5 He further submits that while holding that the agreement to sale

- exhibit - 46 is inadmissible in evidence, learned lower appellate Court failed

to consider the import of Section 35 of the Maharashtra Stamp Act.

6.6 He has placed reliance on a judgment of the Hon'ble Supreme

Court of India in the case of Javer Chand Vs. Pukhraj Surana1 for the purpose

that once the Court rightly or wrongly, decides to admit the document in

evidence, so far as the parties are concerned, the matter is closed.

6.7 He has further placed reliance on the judgment of learned Single

Judge of this Court in the case of Mahendra Mahadeo Deshbratar & Ors.

Versus Kailash Bhauraoji Chandankhede2, wherein relying upon the above

referred Judgment in the case of Javer Chand has held that once the

document is exhibited, the objection to the same cannot be considered at any

stage thereafter.

6.8 He has further placed reliance on the Judgment of the Hon'ble

Supreme Court of India in the case of Santosh Hazari Vs. Purushottam Tiwari

deceased by L.Rs.3 to show that what care the appellate Court shall take while

reversing or affirming the findings of the trial Court.

1     1961 AIR (SC) 1655
2     2014 (4) Bom.C.R. 877
3     2001 (2) Mh.L.J. 786





                                          7                  273-2016-SA-JUD

7. Per contra, Mr. Khan, learned counsel appearing for the

respondent supports the impugned Judgment and Decree and prays for

dismissal of the present Appeal on the ground that no substantial question of

law is involved in the present matter.

8. To consider the rival contentions of the parties, I have gone

through the record and proceedings and also perused the Judgment and

Decree of both the Courts below.

9. Before answering the first substantial question of law whether

the learned First Appellate Court erred in holding agreement to sell Exh. 46

being inadmissible evidence in ignorance of Section 35 of the Maharashtra

Stamp Act?, I would consider whether the alleged agreement was executed or

made by free consent of the parties.

10. It is a settled that without consensus ad-idem there can be no

contract. It is also settled law that there must be a valid and binding contract

between the parties in respect of which the parties should be consensus

ad-idem. Burden of proof is on the plaintiff seeking specific performance of

the contract.

11. On the above referred touchstone, I revert back to the relevant

facts of the present case which would throw light on the point whether there

was free consent of the defendant. From the record, it is revealed that the

alleged agreement was executed on 01-04-2005. In cross-examination, the

plaintiff deposed that the discussion about transaction took place in the house

8 273-2016-SA-JUD

of defendant in the morning between 10.00 am to 10.30 am on 01-04-2005

and immediately thereafter, the amount of Rs.2,50,000/- was paid and the

defendant was taken to Omerga for execution of the agreement in question.

11.1 It has also come on record that the husband of the plaintiff and

defendant were not present at the time of execution of agreement or at the

time of discussion regarding the sale transaction in question.

11.2 The oral evidence of plaintiff further shows that the amount of

Rs.2,50,000/- was arranged by her from her brother who was also not present

at the time of transaction and said amount was brought by her on 01-04-2005

even before any discussion as alleged to have held.

11.3 The attesting witness Bharat Patil states in his oral evidence that

on 01-04-2005 he had been to the Court for obtaining certified copy in a

criminal case and at that time, the plaintiff requested him to sign the said

agreement as witness.

11.4 It is also not disputed that the FIR was lodged by defendant

against the plaintiff inter-alia, alleging that the defendant was kidnapped by

plaintiff from her village Kasari to Omerga in a jeep vehicle and her signature

was obtained on the alleged agreement.

11.5 Moreover, it has also come on record that the husband of the

defendant is in business of transportation and his truck was seized by the

finance company because of default in payment of two installments and even

9 273-2016-SA-JUD

after alleged payment of Rs.2,50,000/- by plaintiff towards part

consideration, said truck was not released by making the payment of default

installments.

11.6 Though it is the case of plaintiff that immediately after signing

the agreeme0nt, the defendant handed over the possession of suit house, no

documents namely electricity bill, water bill etc. produced on record by the

plaintiff.

12. The above referred facts which are on record safely take to a

conclusion that the execution of alleged agreement was not voluntary and

with free consent. It is a settled law that any contract which is made without

free consent, is not binding.

12.1 The undisputed facts and circumstances in this case creates

doubt over the genuineness of the alleged transaction in absence of free

consent of the defendant. The plaintiff substantially failed to remove the said

doubt and make out a probable and possible case to hold that the contract in

this matter is a valid contract and there is no fraud or coercion, particularly in

a backdrop of criminal complaint lodged by the defendant against the

plaintiff.

13. As regards the first substantial questions of law framed by this

Court, in view of Javer Chand's case, it is settled law that "The Court has to

judicially determine the matter as soon as the document is tendered in

evidence and before it is marked as an exhibit in the case. Once a document

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has been marked as an exhibit in the case and the trial has proceeded all

along on the footing that the document was an exhibit in the case and has

been used by the parties in examination and cross-examination of their

witnesses, Section 36 of the Stamp Act comes into operation. Once a

document has been admitted in evidence, as aforesaid, it is not open either to

the Trial Court itself or to a Court of Appeal or revision to go behind that

order. Such an order is not one of those judicial orders which are liable to be

reviewed or revised by the same Court or a Court of superior jurisdiction."

14. However, having observed that the alleged agreement is not

valid in absence of free consent and for the said reason it is not binding on the

defendant, I have no hesitation to hold that there is no merit involved in the

present Second Appeal.

15. Accordingly, I hold that the learned lower appellate Court was

justified in reversing the decree passed by the trial Court and holding that the

plaintiff is not entitled to get decree of specific performance of contract.

16. The Second Appeal is dismissed.

Sd/-

[ ANIL S. KILOR ] JUDGE arp/