Sanjay Shravan Yadav Thr. Power Of ... vs Rahul Vilas Kambale And Anr
2021 Latest Caselaw 5829 Bom

                                               4. SA St.-4433-2020 w IA 3071-2020.doc




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                   Second Appeal Stamp No. 4433 / 2020
                                   with
                    Interim Application No. 3071 / 2020

Sanjay Shravan Yadav
Through Power of Attorney
Subhash Sanjay Yadav                                          .. Appellant
         Vs.
Rahul Vilas Kambale and Anr.                                  .. Respondents



                                       ****

Advocate Chetan G. Patil for Appellant.

                                       ****
                                CORAM     : SANDEEP K. SHINDE J.
                                DATE      :   31st MARCH, 2021.
P.C. : -
         Heard.

1. Rahul Vilas Kambale (Plaintiff-Respondent), relative of Shravan

Rau Yadav, had instituted a suit for specific performance of contract

dated 17th July, 2010 against him. After filing the written statement,

Shravan Yadav died. His legal representatives were brought on

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record.

2. The learned trial Court held that Plaintiffs had proved that on

17th July, 2010, deceased Shravan had agreed to sell the suit

property to him for Rs. 6 Lacs, out of which, Rs. 3 Lacs. were paid as

earnest money. The trial Court has also held that Rahul Kambale was

'ready and willing' to perform his part of a contract. Before filing the

suit, Plaintiffs had issued notice at Exhibit-54, calling upon Shravan

Yadav, to perform his part of the contract by accepting the balance

consideration. Notice was admittedly not replied by Shravan Yadav.

Plaintiffs had also examined a witness to prove the suit contract.

Neverthless Plaintiffs' witnesses, were not cross-examined by the

Defendants- Legal heirs.

3. Mr. Patil, learned Counsel for the Appellant submitted that

Sanjay Yadav (Defendant) was terminally ill and therefore could not

cross-examine Plaintiffs' witnesses. He further submitted that

Defendant had attempted to pursue the trial Court to set aside the

order of "no cross-examination", however beyond submission there is

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no material on record to suggest such efforts were being made. This

contention is rejected.

4. It may be stated that Shravan Yadav, in his written statement

denied the execution of the suit contract and this being suit for

specific contract, the legal representatives of Shravan Yadav were

estopped from raising additional or contrary defence. Obviously

their defence was confined to defence of Late Shravan. The trial

Court, after appreciating the evidence, decreed the suit. The Regular

Civil Appeal filed by the Sanjay Yadav (Defendant No.1) also met with

the same fate. On all issues of fact, concurrent finding has been

rendered by the two courts below.

5. Mr. Patil submitted that the terms of the suit contracts were

vague and therefore unenforceable. Admittedly, Shravan Yadav

(Deceased Orig. Defendant) did not raise this point in his written

statement, nor it was a ground before the first Appellate Court. In

the circumstances, the reliance placed on the judgment of the

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Hon'ble Apex Court, in the case of Keshavlal Lallubhai Patel &

Others Vs. Lalbhai Trikumlal Mills Ltd. 1959 SCR 213 : AIR 1958

SC 512, no application to the facts of this case.

6. In consideration of the facts of the case, in my view, the appeal

does not give rise any substantial question of law. Appeal alongwith

Interim Application is rejected.

                                        (SANDEEP K. SHINDE, J.)




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