Bombay High Court
Madhav S/O Narayan Chimote vs Vishnugupt Constructions Pvt. ... on 27 August, 2021
Bench: S. M. Modak
1 1 SA 10220
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL (St.) NO. 10220 OF 2021
(Madhav S/o Narayan Chimote Vs. Vishnugupt Constructions Pvt. Ltd. and anr.)
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Shri A.M. Ghare, Advocate for the appellant.
CORAM : S.M. MODAK, J.
DATE : 27th AUGUST, 2021.
1. Heard Shri A.M. Ghare, learned Advocate for the
appellant No.1/original defendant No.1.
2. The suit was filed by the respondent No.1 for specific
performance of oral agreement for sale of land which was
allowed to be retained as per the provisions of the Urban Land
(Ceiling and Regulation) Act, 1976. Initially, the plaintiff has
pleaded about consideration of Rs.6,00,000/-. Appellant No.1/
Defendant No.1 contested the suit. The Trial Court disbelieved
the case of purchase and sale transaction, however, the trial
Court directed the defendants to refund Rs.5,50,000/-. It is on
basis of proved receipt at Exh. 52.
3. The plaintiff filed first appeal. The issue was raised by
the plaintiff that consideration was not Rs.6,00,000/- but it
was Rs.24,00,000/-. It was refused, however, this Court in Writ
Petition No. 145 of 2017 was pleased to allowed that plea and
following issue was framed:
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"a. What was the agreed amount of sale
consideration? Issue was sent to the trial Court. Both
the sides adduced evidence. Trial Court gave a finding
that the price of the land was more than Rs.6,00,000/-
and Rs.24,00,000/- and it is a reasonable price. It is
strange think how such findings can be given. It ought
to have been in either way."
4. When such finding reached to the First Appellate Court,
the First Appellate Court was pleased to accept the plaintiff's
case and hold that consideration was Rs.6,00,000/-.
Defendants were directed to execute the sale deed on deposit
of balance consideration of Rs.50,000/-. This decree is
challenged by defendant No.1.
5. Shri Ghare, learned Advocate emphasised that the First
Appellate Court has not dealt with the documentary evidence
in the form of Exh.146. According to him it mentions about
dishonor of the two cheques and assurance by the plaintiff to
clear it up to 31.01.2003. According to him, further terms were
not decided. His emphasis is that Exh.146 is not at all
considered by the First Appellate Court.
6. He relied upon the judgment in case of Santosh Hazari
Vs. Purushottam Tiwari (Deceased) by LRs reported in (2001)
3 SCC 179. It is on the point of duty of the First Appellate
Court, particularly while disagreeing with the observations of
the trial Court Judge.
7. After hearing learned Advocate Shri A.M. Ghare, for the
appellant and perusing the First Appellate Court Judgment, it
3 1 SA 10220
reveals that even though there is no written agreement for
sale, dispute pertains to the quantum of consideration and
deciding other terms of the transaction. One can very well say
that the First Appellate Court has not considered Exh.146 at
all. In view of that, issue notice to respondents before
admission by framing following substantial question of law:-
"Whether the First Appellate Court committed wrong in
not considering the documentary evidence in the form of
Exh.146 and the other evidence adduced before the trial
Court after the remand?"
8. Notice is made, returnable after six weeks.
CIVIL APPLICATION (St.) NO. 10221 OF 2021
1. It is told that the specific performance decree got
executed by executing a sale deed through Court. In view of
that, parties can only be directed not to create third party
interest and change the nature of the suit land including
carring out construction thereon.
2. Issue notice to respondents, returnable after six weeks.
3. Steno copy of this order be supplied to the party.
JUDGE
C.L.Dhakate
