Bombay High Court
Sitaram S/O Hemraj Khandelwal vs Raman Radhakisan Rathi And Others on 12 August, 2021
Bench: S. M. Modak
8-Asa144.2021.2021. 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 144/2021
Sitaram s/o Hemraj Khandelwal Versus Raman Radhakisan Rathi and another.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri J.J. Chandurkar, Advocate for appellant.
CORAM : S.M. MODAK, J.
DATE : 12/08/2021
Heard learned advocate for the appellant/plaintiff.
2. The plaintiff was appointed as a broker for sale of
plots. He entered into an agreement with defendant and
defendant has agreed to execute the sale-deed in respect of plots
with members nominated by the plaintiff. As per that agreement
plaintiff has also paid certain amount to the defendant.
Defendant failed to execute a sale-deed with members. Hence,
plaintiff filed a suit for recovery of the amount which includes the
consideration paid as well as commission. The defendant
contested the suit. The trial Court was pleased to decree the suit.
3. The defendant went in appeal. The First Appellate
Court was pleased to set aside the judgment and was pleased to
dismissed the suit.
4. It is contended that the First Appellate Court while
appreciating the evidence has non-suited the plaintiff on the
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ground that the transaction in between plaintiff and defendant is
hit by the provisions of the Maharashtra Chit Funds Act, 1974.
According to the plaintiff, in fact the defendant has nowhere
pleaded in the written statement that the plaintiff is required to
be non-suited for the reason that the chit conducted by the
plaintiff was not registered with the concerned properties.
5. It is also submitted that the agreement with
defendant was executed in the year 1985 and at that time the
Maharashtra Chit Funds Act was not in force. My attention is
invited to the provision of Section 90 of the Chit Funds Act, 1982.
It shows that the State Act was repealed by Section 90 of the
Central Act. The First Appellate Court has not considered the
position of law.
6. It is true that the trial Court has framed an issue No.2
"Whether the said contract is illegal, void and enforceable of
law?" However, when the judgment of the trial Court is perused,
there is no discussion about the compliance of the Maharashtra
Chit Funds Act, 1974 probably it may be due to absence of
pleadings in the written statement.
7. Issue notice before admission on following substantial
question of law :
a] Whether the First Appellate Court was right in
non-suiting the plaintiff for the reason that the
transaction in between the plaintiff and it is
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members attracts the provisions of the
Maharashtra Chit Fund?
b] Whether the First Appellate Court was right in
applying the provisions of Maharashtra Chit
Funds Act, 1974 even though the said Act was
repealed by the Chit Funds Act, 1982 ?
8. Issue notice to the respondents, returnable on
28/09/2021.
JUDGE
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