Prabhu Gangaram Gade vs Kadaji Vishwanath Tuturwad
2023 Latest Caselaw 11651 Bom

                                       1                          14 SA-521-23-.odt




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD
                     SECOND APPEAL NO.521 OF 2023
                   WITH CA/12637/2023 IN SA/521/2023

                       PRABHU GANGARAM GADE
                                  VERSUS
                    KADAJI VISHWANATH TUTURWAD
                                     ...
                 Advocate for Appellant : Mr. Y. P. Deshmukh
                  Advocate for Caveator : Mr. A.R. Borulkar
                                     ....

                                  CORAM : S. G. MEHARE, J.

DATE : 09.11.2023

PER COURT :

1. Heard the learned counsel for the appellant. The learned

counsel for the caveator is absent.

2. The appellant was the defendant. A decree for specific

performance of the contract was passed against him. His appeal

against the said decree was also dismissed.

3. The learned counsel for the applicant would submit that

there was no transaction as such. The learned trial Court and the

First Appellate Court did not consider the material fact that on

the day of agreement to sell no earnest money was paid. The

plaintiff in contradiction to his statement in examination-in-chief

2 14 SA-521-23-.odt

has admitted that he paid Rs. 1,50,000/- on the next day of the

alleged agreement to sell. Both the Courts did not consider this

material aspect. There were many such discrepancies in the case

and evidence led by the plaintiff and his witnesses. The material

admissions affecting the plaintiff's case were not discussed. He

also denied the execution of the agreement to sell. Considering

the arguments this Court feels it appropriate to issue notice before

admission, to the respondent.

4. Hence, issue notice to the respondent before admission

returnable on 18th December, 2023.

5. In the meantime, the execution and implementation of the

impugned judgment and decree has been stayed till appearance of

the respondent.

( S. G. MEHARE ) JUDGE

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