Narottam Bajirao Hiray vs Girish Ramkishor Khandelwal And ...
2021 Latest Caselaw 12749 Bom

                                         (1)

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                       SECOND APPEAL NO.45 OF 2020

 Narottam Bajirao Hiray                            = APPELLANT
                                                   (Orig.Defendant)

          VERSUS

 1)       Girish Ramkishor Khandelwal
          and Anr.                    = RESPONDENT/S
                                      (orig.Plaintiff)
                            -----
 Mr.AR Nikam,Advocate for Appellant;
 Mr.GG   Suryawanshi,                  Advocate         for         Respondent
 No.1(Absent).
                                     -----

                                 CORAM :       SMT.VIBHA KANKANWADI,J.

RESERVED ON : 31/08/2021 PRONOUNCED ON : 07/09/2021 PER COURT :-

1. Present appeal has been filed by original

defendant, challenging concurrent decisions of

learned lower Courts. Present Respondent No.1 is

original plaintiff, who had filed Special Civil

Suit No.489/2008 before the 2nd Joint Civil Judge,

Senior Division, Aurangabad for recovery of money.

It came to be decreed on 25.9.2009. Present

appellant filed Regular Civil Appeal No.369/2012,

challenging the said judgment and decree before the

District Court, Aurangabad. The appeal was heard by

learned District Judge-9, Aurangabad and it was

dismissed on 7.12.2017. Hence, the present Second

Appeal.

2. Heard Shri Nikam, learned Advocate for

the appellant. Learned Advocate appearing for

Respondent No.1 was absent. Even in view of

decision in the case of Ashok Rangnath Magar Vs.

Shrikant Govindrao Sangvikar - (2015) 16 SCC 763,

it is not necessary that the respondent should be

heard. If the appellant satisfies this Court that

substantial questions of law, as contemplated under

Section 100 of CPC, are arising in the appeal, then

the appeal deserves to be admitted by framing such

substantial questions of law.

3. Learned Advocate for the appellant

vehemently submitted that both the Courts below

have not considered the documents properly. The

plaintiff had come with a case that he was allotted

Gala No.3 in Waluj Industrial Area at Aurangabad

by original deft.No.2. But, as he was in financial

crisis and, therefore, he decided to transfer the

leasehold rights to deft.No.1 subject to payment of

total consideration of Rs.5,00,000/-. A Deed of

Assignment in favour of deft.No.1 was executed by

the plaintiff on 18.6.2007. He had come with a

case that deft.No.1 agreed to pay the said amount

of Rs.5,00,000/-. However, he avoided to pay and,

therefore, he issued notices to deft.No.1 on

8.1.2008 and 15.3.2008. However, since deft.No.1

failed to pay that amount, he has filed the suit.

. Defendant No.1 resisted the claim and

categorically submitted that on the date of

execution of the Assignment Deed, he has given the

amount to the plaintiff. Both the Courts below

have held that the defendant has not paid the

amount of consideration and, therefore, the decree

came to be passed. They failed to consider the

contents of the Assignment Deed, copy of which has

been made available and he has pointed out

following part from the Assignment Deed.

" .......NOW THIS DEED WITNESSETH THAT, IN pursuance of the sum of Rs.5,00,000/-

(Rs.Five lacks only) being the consideration amount in respect of land area 126 sqm. (which the vendors herewith acknowledge and no separate receipt therefore is needed) "Assignor" hereby assigns their Leasehold rights held by them under the said Lease Deed to be read with Deed of Assignment mentioned herein above in favour of the "Assignee" subject to the following..." (emphasis placed by this Court)

4. It is further submitted that when the

plaintiff is admitting execution of the document

then he ought to have explained the above said

bracketed portion (of which emphasis placed), but

he has simply denied the said assignment to be a

registered document and, therefore, it has

presumptive value. In his oral evidence, especially

the cross, when the above said term was brought to

the notice of the plaintiff, he admitted the

content. However, then stated that he did not feel

it necessary that it should be mentioned in the

said Deed that amount of Rs.5,00,000/- was not

received by him till that date. In spite of a

specific recital in Exhibit-25, both the Courts

below, without taking into consideration the same,

arrived at a conclusion that on the basis of the

oral evidence of the plaintiff, such amount was not

given by the defendant. This is perversity.

Further, the plaintiff had not examined attesting

witnesses to support his contention and, therefore,

the appeal is giving rise to substantial questions

of law.

5. No doubt, this Court has limitation to go

into the facts of the case, in view of the

restrictions, which are in-built in Section 100 of

Code of Civil Procedure and only questions of law

are required to be considered; yet the law has been

further developed in Ramathal Vs. Maruthathal and

Ors., [(2018 18 SCC 303], wherein the issue

considered was as to whether the High Court was

wrong in interfering with the question of fact in

the Second Appeal. The Hon'ble Supreme Court

indicated in the said case that the restraint

against interference is not an absolute rule but

when there is perversity in findings of the Court,

which are not based on any material or when

appreciation of evidence suffers from material

irregularity, the High Court would be entitled to

interfere on a question of fact as well.

6. Now, as regards Exhibit-25 - Assignment

Deed is concerned, definitely there is aforesaid

bracketed portion, which says that, "vendors

acknowledge receipt and no separate receipt thereof

is needed", then it is required to be seen as to

whether both the Courts below have interpreted it

properly or not. Whether the parties had intention

to convey, in view of the said term, that amount

was received by the plaintiff, is definitely

giving rise to substantial question of law. Hence,

the Second Appeal stands admitted. Following are

the substantial questions of law, -

i. Whether both the Courts below have interpreted the term regarding "acknowledgment and no separate receipt required", as mentioned in the Assignment Deed at Exhibit-25 ?

                  ii.      Whether   appreciation of                             the
                  evidence by both the Courts below                               is
                  perverse in view of the terms in                               the
                  Assignment Deed at Exh.25, which                                is
                  admittedly executed by the plaintiff                            in
                  favour of deft.No.1.

                  iii.     Whether the plaintiff had proved

that amount of Rs.5,00,000/- was still due as consideration from deft.No.1 ?

iv. Whether interference is required ?

7. Since learned Advocate for Respondent

No.1 was absent, issue notice to Respondent No.1

after admission of the Second Appeal, returnable on

3.1.2022.

8. Call R and P.

(SMT. VIBHA KANKANWADI) JUDGE BDV