Sher Ali S/O Gulab Ali And Another vs Syed Zakir Hussain S/O Syed Inayat
2021 Latest Caselaw 12593 Bom

2.SA.180.2018.                                                                                                 1/2


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH, NAGPUR

                                      Second Appeal No.180/2018
               Sayed Zakir Hussain s/o Sayed Inayat Vs. Sher Ali s/o Gulab Ali & Anr.
                                                      WITH
                                        Second Appeal No.91/2015
               Sher Ali s/o Gulab Ali & Anr. Vs. Sayed Zakir Hussain s/o Sayed Inayat
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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 A.R. Patil, Advocate for the Appellant (in S.A. No.180/2018) and
                 for the Respondent (in S.A. No.91/2015).
                 Shri Adil Anwar J. Mirza, Advocate for the Respondents (in S.A. No.180/2018) and
                 for the Appellants (in S.A. No.91/2015).

                 CORAM : S.M. MODAK, J.

DATE : 3rd SEPTEMBER, 2021.

Heard both the sides.

02] Second Appeal No.180/2018 is preferred by the original defendant against the decree of the first Appellate Court thereby directing the original defendant/present appellant to refund the earnest money of Rs.3,00,000/-. The grievance of the appellant is that he has pleaded about forfeiture of the earnest money due to cancellation of the agreement from his side who is the vendor. The grievance is this cancellation and the forfeiture are not challenged by the original plaintiffs/present respondents before the trial Court and in spite that it was granted by first Appellate Court.

03] This Court has already issued notice on 27 th March, 2018 by framing following substantial question of law--

"Whether the appellate Court was justified in directing refund of earnest amount in the present case, in the absence of a prayer for setting aside of alleged cancellation of agreement by the appellant?"

2.SA.180.2018. 2/2

04] Whereas Second Appeal No.91/2015 is filed by the original plaintiffs against the judgment of the first Appellate Court which has reversed the decree for specific performance. In that appeal, substantial questions of law were already framed on 25 th February, 2015 and the appeal was admitted on 4th January, 2017.

05] As both these appeals are against the same judgment of the first Appellate Court. Hence, Second Appeal No.180/2018 is admitted.

                 06]           Paper-book is already filed.


                 07]           Learned Advocate Shri Adil Anwar J. Mirza waives
                 service of notice for the respondents.


                 08]           Both the appeals be kept for final disposal in the last
                 week of September, 2021.


                                                              JUDGE

                 vijay