Bombay High Court
Shri. Vishwanath Balwantrao ... vs Shri. Nivrutti Muralidhar Maule And Ors on 27 August, 2024
2024:BHC-AS:34254
IRESH Digitally signed by IRESH
MASHAL
MASHAL Date: 2024.08.27 18:26:20
+0530
902.286.22 sa.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 286 OF 2022
WITH
INTERIM APPLICATION NO. 3660 OF 2020
IN
SECOND APPEAL NO. 286 OF 2022
Shri. Vishwanath Balwantrao
Pethe (Decd. Legal Heirs)
Smt. Shivangi Vishwanath .....Appellants
and Ors
Vs.
Shri. Nivrutti Muralidhar Maule and Ors .....Respondents
Mr. P. B. Shah, a/w Kayval P. Shah and Ms. Gunjan Shah for
appellants
Ms. Pallavi N. Dabholkar for respondents
CORAM: GAURI GODSE J.
CLOSED FOR ORDER ON: 16th JULY 2024
PRONOUNCED ON: 27TH AUGUST 2024
ORDER:
1. This second appeal is preferred by defendants nos. 1 to 3
("defendants") to challenge the concurrent judgements and decrees
granting specific performance of the suit agreement in favour of
respondent no. 1 ("plaintiff").
902.286.22 sa.docx
2. Learned counsel for the appellants submitted that the plaintiff
committed fraud on the Executing Court as well as the defendants by
making misrepresentation before the first Appellate Court. He
submitted that in the present second appeal, the appellants have
challenged the order passed by the Executing Court permitting the
plaintiff to deposit the balance consideration amount. He submits that
the order passed by the Executing Court permitting the plaintiff to
deposit the balance consideration amount relied upon by the first
Appellate Court amounts to playing fraud on the Court as well as the
defendants. He, thus, submits that the impugned decree based on the
said order is a nullity, and it vitiates everything. To support his
submissions on fraud and misrepresentation, learned counsel for the
appellant relied upon the decisions of the Hon'ble Apex Court in the
case of Kamatchi Vs Lakshmi Narayan1, Meghmala & Ors Vs G
Narasimha Reddy & Ors2, R. Unnikrishnan & Anr Vs V. K.
Mahanudevan & Ors3 and Vaijinath Yeshwant Jadhav Vs Afsar Begum
Nadimuddin4.
3. Learned counsel for the appellants further submitted that the
1 (2022) 15 SCC 50
2 (2010) 8 SCC 383
3 (2014) 4 SCC 434
4 (2020) 15 SCC 128
902.286.22 sa.docx
order passed by the Executing Court amounts to going beyond the
decree passed by the Trial Court. Hence, the impugned Judgment
passed by the first Appellate Court by relying upon the order of the
Executing Court is not sustainable. In support of this submission,
learned counsel for the appellant relied upon the decision of the
Hon'ble Apex Court in the case of Sanwarlal Agrawal & Ors Vs Ashok
Kumar Kothari & Ors5.
4. Learned counsel for the appellants further submitted that the
Trial Court's decree passed in the year 2008 is a conditional decree
directing the defendants to execute the sale deed on obtaining
permission from the revenue authorities, removing names and
encumbrances in the revenue record within 30 days from the date of
the decree, by accepting remaining consideration of ₹16,10,000.
Learned counsel for the appellants submitted that, thus, the plaintiff is
required to show continuous readiness and willingness, which is
completely absent in the present case.
5. The learned counsel for the plaintiff further submits that the order
passed by the Executing Court permitting the plaintiff to deposit the
5 (2023) 7 SCArialC 307
902.286.22 sa.docx
amount on 20th January 2020, i.e. during the pendency of the first
appeal, shows that the plaintiff was never ready and willing to perform
his part of the contract. He thus submits that for want of continuous
readiness and willingness on the part of the plaintiff, the first Appellate
Court erred in confirming the decree for specific performance passed
by the Trial Court. In support of his submissions on the point of
continuous readiness and willingness, learned counsel for the
appellants relied upon the decisions of the Hon'ble Apex Court in the
case of P. Daivasigamani Vs S. Sambandan6, C. S. Venkatesh Vs
A.S.C. Murthy7, Mehboob-ur-Rehman Vs Ahsanul Ghani8 and Ravi
Setia Vs Madan Lal & Ors9.
6. Learned counsel for the appellants submitted that the order
passed by the Executing Court on 20 th January 2020, permitting the
plaintiff to deposit the balance consideration amount, was without
giving any notice to the defendants. Hence, reliance placed by the
plaintiff on the said order by producing the said copy before the first
Appellate Court only by way of a pursis shows that the plaintiff did not
come to Court with clean hands. Hence, the plaintiff is not entitled to
6 (2022) 14 SCC 793
7 (2020) 3 SCC 280
8 (2019) 19 SCC 415
9 (2019) 9 SCC 381
902.286.22 sa.docx
any discretionary relief. In support of the said submission, learned
counsel for the appellants relied upon the decision of the Hon'ble Apex
Court in the case of Swaran Salaria & Associate Vs Himalayan Heli
Service Pvt. Ltd. & Ors10.
7. Learned counsel for the appellants also submitted that the
boundaries of the suit property mentioned in the plaint were not as per
the suit agreement; thus, there was confusion on the plaintiff's claim
on the particular area with reference to specific performance granted in
favour of the plaintiff. He submitted that both the Courts did not
correctly deal with the objections raised by the defendants regarding
the confusion in the boundaries. Learned counsel for the appellants
thus submitted that this appeal would require consideration also on the
point of incorrect appreciation of the facts and evidence on record.
8. Learned counsel for the appellants thus submitted that the
second appeal raises substantial questions of law on the point of (i)
fraud and misrepresentation, (ii) the order passed by the Executing
Court permitting the plaintiff to deposit the balance consideration
amount being beyond the scope of the decree, (iii) absence of
10 (2015) 4 SCC 335
902.286.22 sa.docx
continuous readiness and willingness on the part of the plaintiff to
perform his part of contract, (iv) plaintiff not entitled to discretionary
relief as he did not approach the Court with clean hands and (v)
absence of specific boundaries of the suit property.
9. Learned counsel for respondent no. 1, i.e., the plaintiff, submitted
that the Trial Court, in paragraphs 22, 23 and 25, recorded specific
findings on the objections raised regarding the boundaries of the suit
property. She submitted that the first Appellate court confirms the said
findings by re-examining the facts and evidence on record. She
submitted that the first Appellate Court, in paragraphs 14 to 19, has
recorded clear findings on the identification of the suit property.
Learned counsel for the plaintiff further submitted that there is no
substance in the arguments raised on behalf of the appellants on the
point of fraud and misrepresentation. She submitted that no such
argument was made before the first Appellate Court. In the first appeal
filed by the defendants, no grounds for fraud or misrepresentation
were ever raised by the defendants. Learned counsel for the plaintiff
further submitted that the order dated 20 th January 2020 passed by the
Executing Court permitting the plaintiff to deposit the
902.286.22 sa.docx
balance consideration amount was never challenged by the
defendants. She submitted that even in the present second appeal, no
specific ground is raised to challenge the said order. Learned counsel
for the plaintiff thus submitted that none of the arguments raised on
behalf of the appellants raise any substantial question of law that is
required to be considered by this court.
10. I have considered the submissions made on behalf of the
parties. Perused the papers of the second appeal. Execution of the
suit agreement is not in dispute. The terms and conditions of the suit
agreement are also not in dispute. As per the terms and conditions of
the suit agreement, the defendants had agreed to convey the suit
property to the plaintiff for a total consideration of ₹36,10,000. It is not
in dispute that out of the total consideration, ₹20,10,000 is received by
the defendants. Handing over possession of the suit property to the
plaintiff on the next day of the execution of the agreement is also not in
dispute.
11. The Trial Court recorded specific findings that the defendants
had agreed to provide 15 feet wide road to the plaintiff before
execution of the sale deed. As per the terms and conditions of the
agreement, the defendants had agreed to remove encumbrances of
902.286.22 sa.docx
the bank and, thereafter, receive the balance consideration of ₹16
lakhs. The said agreement is dated 31 st August 1995. Defendants had
filed R.C.S. No. 577 of 1999 for injunction and recovery of possession
after removal of alleged encroachment from the plaintiff. The said suit
was dismissed.
12. With regard to readiness and willingness on the part of the
plaintiff is concerned, the obligation to make payment of balance
consideration would arise after the defendants had performed their
part of the contract by removing encumbrances of the bank on the suit
property and providing 15 feet wide road as agreed in the terms and
conditions of the suit agreement. On examining the evidence on
record, both courts held that the description of the suit agreement is
sufficiently identified. Thus, both Courts held that the defendants failed
to perform their part of the contract by removing encumbrances and
providing the approach road as agreed.
13. Both courts have accepted the plaintiff's case, that after the
defendants performed their part of the contract, the plaintiff was under
obligation to pay the balance consideration amount. The possession of
the suit property is admittedly with the plaintiff. Thus, both the Courts
902.286.22 sa.docx
held that after the plaintiff was put in possession, he had developed
the suit property by incurring huge expenses and that it was only due
to the inaction on the part of the defendants to remove the
encumbrances and obtain permission from the revenue authorities, the
contract could not be specifically performed. Hence, both the Courts
held that the plaintiff was entitled to the discretionary relief of specific
performance.
14. A perusal of the reasons recorded by the first Appellate Court
indicates that the findings of facts on the terms and conditions of the
contract and the obligations on the part of the parties as recorded by
the Trial Court are confirmed by the first Appellate Court. The operative
part of the Judgment and decree of the Trial Court directs the
defendants to execute the sale deed on obtaining permission from the
revenue authorities, removing the encumbrances in the revenue
record of the Bank of India within 30 days of the decree by accepting
the remaining consideration of ₹16,10,000.
15. Thus, the Trial Court granted 30 days time to the defendants to
comply with their part of the contract and execute the sale deed by
accepting the remaining consideration of ₹16,10,000. Thus, the
902.286.22 sa.docx
plaintiff was under obligation to pay the balance consideration of
₹16,10,000 only at the time of execution of the sale deed after the
defendants had performed their part of the contract. The Trial Court
further directed that if the defendants failed to execute the sale deed
and comply with the requirements, the plaintiff would be at liberty to
apply to the appropriate authorities for the removal of encumbrances.
At the time of the hearing before the first Appellate Court, the plaintiff
placed on record a pursis at exhibit 23 stating that he deposited the
entire balance amount of ₹16,10,000 on 20 th January 2020 in the
Executing Court. The first Appellate Court, by referring to the said
pursis held that the plaintiff had shown his continuous readiness and
willingness. It is with reference to this pursis at exhibit 23 that the
learned counsel for the appellants sought to argue that there was fraud
and misrepresentation on the Appellate Court as well as the
defendants. The submissions on fraud and misrepresentation only
refer to the said pursis.
16. The Trial Court granted 30 days to the defendants (appellants) to
execute the sale deed upon obtaining permission from the revenue
authorities and removing the encumbrances. Thus, the obligation on
902.286.22 sa.docx
the part of the plaintiff to deposit the balance consideration amount
was after the defendants had complied with their obligations. The
reference made by the first Appellate Court to the plaintiff's pursis
regarding the deposit of the balance consideration amount is only for
accepting the continuous readiness and willingness of the plaintiff.
Since there was no time limit prescribed for the plaintiff to deposit the
balance consideration amount, the continuous readiness and
willingness on the part of the plaintiff would arise only after the
defendants had performed their part of the contract.
17. Learned counsel for the appellants placed on record a copy of
the order dated 20th January 2020 passed by the Executing Court. A
perusal of the order indicates that the plaintiff had filed an application
before the Executing Court stating that the plaintiff was required to pay
the balance consideration amount after the defendants had complied
with the terms and conditions of the contract and the decree. However,
without prejudice to the rights and contentions of the decree holder
(plaintiff), permission was sought from the Executing Court to deposit
the balance consideration amount. On such a request made by the
plaintiff, Executing Court permitted the plaintiff to deposit the amount.
902.286.22 sa.docx
Thus, no fault can be found on the part of the plaintiff in making
compliance of his part of the contract. It is not the case that the
appellants (defendants) complied with their part of the contract as
directed by the Trial Court. Thus, the said application filed by the
plaintiff and the order passed by the Executing Court cannot be said to
be any kind of fraud or misrepresentation. Thus, the argument raised
on behalf of the appellants that there was fraud or misrepresentation
on the part of the plaintiff is absolutely absurd. The decisions of the
Hon'ble Apex Court relied upon by the learned counsel for the
appellants to support his contentions of fraud and misrepresentation
are not applicable to the facts of the present case. The legal principles
on fraud and misrepresentation settled by the Hon'ble Apex Court in
the aforesaid decisions are not even remotely applicable to the facts of
the present case.
18. The decision in the case of Sanwarlal Agrawal on the point that
the Executing Court cannot go beyond the decree is also not
applicable to the facts in the present case. In the present case, no time
limit was prescribed for the plaintiff to pay the balance consideration
amount. The Trial Court's decree granted 30 days time to the
902.286.22 sa.docx
defendants to comply with their part of the contract and execute the
sale deed in 30 days by accepting the balance consideration amount.
Thus, it is clear that the obligation on the part of the plaintiff to deposit
the balance consideration amount was after the defendants made
compliance. Thus, depositing the balance consideration amount by the
plaintiff without prejudice to the rights and contentions can, by no
stretch of imagination, be referred to as fraud or misrepresentation.
The first Appellate Court has independently confirmed the findings of
the Trial Court on the readiness and willingness of the plaintiff.
19. Thus, even the decisions of the Hon'ble Apex Court on the point
of continuous readiness and willingness of the party are also not
applicable to the present case. So far as the plaintiff's entitlement for
discretionary relief of specific performance is concerned, both the
courts have concurrently held that the obligations for completing the
contract were on the defendants. Thus, in the absence of any case
made out by the defendants on compliance with their part of the
contract, obligation on the part of the plaintiff would not arise. Hence,
the legal principles settled by the Apex Court in the case of Ravi Setia
are also not applicable to the facts of the present case.
902.286.22 sa.docx
20. The last argument on behalf of the appellants on the boundaries
of the suit property is concurrently held in favour of the plaintiff. The
said ground would require reappreciation of facts and evidence, which
is not permissible under Section 100 of CPC. Hence, the arguments
do not raise any substantial question of law.
21. Thus, the second appeal does not raise any substantial question
of law. Hence, the second appeal is dismissed.
22. In view of the dismissal of the second appeal, pending Interim
Application No. 3660 of 2020 is disposed of as infructuous.
[GAURI GODSE, J.]
