Bombay High Court
Omprakash Babulal Agrawal vs Sureshchandra Ghanshamdas ... on 11 August, 2021
Bench: V. V. Kankanwadi
sa-624-2012.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.624 OF 2012
WITH CA/10739/2012 IN SA/624/2012
OMPRAKASH S/O BABULAL AGRAWAL
VERSUS
SURESHCHANDRA GHANSHAMDAS AGRAWAL
...
Mr. V. R. Dhorde, Advocate for the appellant.
Mr. S. P. Shah, Advocate for the respondent.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 11.08.2021
ORDER :-
. Present appeal has been filed by the original plaintiff to challenge
the judgment and decree passed in Regular Civil Appeal No.94 of 2008
decided by learned District Judge-1, Dhule on 10.01.2012, wherein the
appeal filed by present appellant came to be partly allowed, thereby
setting aside the judgment and decree passed by learned Civil Judge
Junior Division, Shirpur, Dist. Dhule on 20.08.2008 in Regular Civil Suit
No.16 of 1981 to the extent of dismissal of the suit for refund of earnest
money. By the said decree, the first Appellate Court had refused to grant
relief of specific performance, however, defendant was directed to
refund the earnest amount of Rs.15,000/- to the plaintiff along with
interest at the rate of 6% per annum from the date of the suit i.e.
sa-624-2012.odt
16.12.1981. As aforesaid, the learned Civil Judge Junior Division,
Shirpur, Dist. Dhule had dismissed the said suit, which was for specific
performance of the contract and in the alternative refund of earnest
amount was prayed.
2. Heard learned Advocate Mr. V. R. Dhorde for the appellant and
learned Advocate Mr. S. P. Shah for the respondent.
3. The learned Trial Judge appears to have framed so many issues.
Initially issues were framed at Exhibit-25. Thereafter, they were
recasted at Exhibit-58 and then again additional issues were framed at
Exhibit-189. Plaintiff had come with the case that the defendant had
executed agreement to sell on 02.08.1977 in respect of the suit property.
Defendant, though admitted the execution of the document, had come
with the case that in fact it is a money lending transaction or in a sense
it was executed as a security for the loan. The learned Trial Judge held
that the plaintiff has failed to prove that the said document was
agreement to sell. It was held that the defendant has proved that the
said document has been held as security towards loan/money lending
and Benami transaction. It was also held by learned Trial Judge that the
agreement to sell is void on the ground of impossibility, uncertainty and
vagueness and non executable in view of Section 29 of the Indian
Contract Act. It was held that the plaintiff is not entitled to get specific
sa-624-2012.odt
performance of the contract and even the alternative prayer for refund
of earnest amount was also rejected.
4. The first Appellate Court held that the suit agreement was
executed by defendant as collateral security for the loan of Rs.15,000/-
and since the proof about refund of loan has not been laid, it was held
that the said amount of Rs.15,000/- should be paid along with the
interest by the defendant to the plaintiff.
5. As regards the interpretation of the document is concerned, that
itself is a substantial question of law and when the execution of that
document is admitted, it is then required to be seen as to whether the
party executing such document can take up any contrary defence. Here,
agreement to sell Exhibit-106 is a registered document. Therefore,
definitely, it attaches some presumpted value, however, the defendant
has come with the case that since he was in need of money, he has
executed that document. It is, therefore, requires to be seen as to what
was the intention of the parties while arriving at an agreement. Further,
when the document is admitted, then we are required to see why
specific performance cannot be granted. It is also required to be seen as
to whether the Courts below have misinterpreted the evidence that is led
by the parties and a wrong conclusion has been drawn that the real
intention of the parties was different than the registered document
sa-624-2012.odt
Exhibit-106. Hence, the second appeal stands admitted. Following are
the substantial questions of law :-
I) Whether both the Courts below erred in construing agreement
to sell Exhibit-106 as a document executed for collateral security for
loan amount of Rs.15,000/-?
II) Whether the plaintiff was entitled to get relief of specific
performance on the basis of admittedly executed agreement to sell
Exhibit-106?
III) Whether the Courts below erred in considering inadequacy of
consideration amount mentioned in the agreement to sell to imply
that the said transaction was in fact a loan transaction and the
document was executed as collateral security?
IV) Whether the plaintiff was ready and willing to perform his
part of the contract.?
V) Whether interference is required?
6. Issue notice to the respondent. Learned Advocate Mr. S. P. Shah
waives notice for respondent.
7. Call record and proceedings.
8. Civil Application No.10739 of 2012 to be heard at the time of
final hearing and disposal of the second appeal.
[SMT. VIBHA KANKANWADI, J.]
scm
