Govind Ramvilasji Baheti And Ors vs Jawaharlal Madanlal Sarda
2022 Latest Caselaw 3756 Bom

                                       1                   SA / 146 / 2022



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      940 SECOND APPEAL NO.146 OF 2022
                       WITH CA/3825/2022 IN SA/147/2022

                                     WITH
                                   SA/147/2022

                  GOVIND RAMVILASJI BAHETI AND OTHERS
                                VERSUS
                      JAWAHARLAL MADANLAL SARDA

                                      ...
                 Advocate for Appellants : Mr. Bora Satyajit S.
               Advocate for the respondent : Mr. Swapnil S. Rathi
                                      ...

                                CORAM      : MANGESH S. PATIL, J.

                                DATE       : 06 APRIL 2022

PC :

               Heard both the sides.

2. The appellants are the original plaintiffs, LRs. of one

Ramvilas, who executed the sale deed of the suit property in favour of

the respondent by accepting a cheque which was subsequently

dishonoured. They have filed suit seeking a declaration that the sale

was void, the consideration having failed.

3. The respondent admitted the execution of the sale deed

and dishonour of the cheque but contended that the balance

consideration was paid subsequently in three instalments evidenced by

three receipts.

2 SA / 146 / 2022

4. The trial court upheld the stand of the appellants that the

balance amount of consideration was not paid but it refused to grant

any declaration, however, simultaneously held that even the

respondent had failed to prove that the balance amount of

consideration was paid in instalments. It decreed the suit partly.

It refused declaration but directed the respondent to pay the balance

amount of consideration together with interest.

5. The lower appellate court dismissed the appellants' appeal

but allowed the cross-objection of the respondent and quashed and set

aside the part of the decree passed by the trial court which directed

payment of the balance amount of consideration.

6. The second appeals are admitted on the following

substantial questions of law :

I) Whether the lower appellate court was justified in insisting

the appellants to prove that the receipts purportedly issued

by Ramvilas were, in-fact, not issued by him even when

except the respondent's testimony neither the witnesses

on these receipts were examined nor were the receipts

confronted to the appellants' witnesses ?

II) Whether the judgments and orders holding that in spite of

failure of consideration, the sale was subsisting is legally

sustainable in view of the following judgments in :

3 SA / 146 / 2022

1) Vidyadhar Vs. Manikrao and another; (1999) 3 SCC 573

2) Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead

through LRs. and others; (2020) 7 SCC 366

3) Kewal Krishan Vs. Rajesh Kumar and Ors.; AIR 2022 SC 564

7. Considering the nature of the dispute, the respondent shall

not create any third party interest in the suit property till decision of the

second appeals.

8. Civil application no. 3825 of 2022 stands disposed of.

[ MANGESH S. PATIL ] JUDGE arp/