Bombay High Court
Laxmi Shankar Hadkar Thro. Power Of ... vs Lata Chandrakant Mhapankar on 4 March, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:10872
Neeta Sawant 48-SA-181-2022.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 181 OF 2022
ALONGWITH
INTERIM APPLICATION NO. 17244 OF 2022
Mrs. Laxmi Shankar Hadkar
Through Her Power of Attorney Holder
Sham Shankar Hadkar ....APPELLANT
(ORIG. DEFENDANT)
V/S.
Smt. Lata Chandrakant Mhapankar ....RESPONDENT
(ORIG. PLAINTIFF)
______________
Mr. A.S. Khadeparkar, Senior Advocate a/w. Mr. Rohit P. Mahadik,
Mr. Rushikesh Bhagat, Mr. Vaibhav Kulkarni, i/by. Khandeparkar &
Associates, for the Appellant.
Ms. Babita P. Pandey, for the Respondent.
_______________
CORAM : SANDEEP V. MARNE, J.
Dated : 4 March 2024.
P.C. :
1) This Appeal is filed challenging the judgment and decree
dated 19 March 2021 passed by the District Judge, Sindhudurg at Oras
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Neeta Sawant 48-SA-181-2022.docx
by which Regular Civil Appeal No 121 of 2014 is dismissed and decree
dated 11 July 2014 passed by the Trial Court in Special Civil Suit No.
25 of 2000 is confirmed. The Trial Court has decreed the suit directing
the Appellant to execute sale-deed in favour of the Appellant on
accepting the remaining amount of consideration.
2) I have Mr. Khandeparkar the learned senior advocate
appearing for the Appellant and Ms. Pandey, the learned counsel
appearing for the Respondent.
3) The suit filed by the Plaintiff for specific performance of the
Agreement for Sale dated 8 June 1997 was sought to be defended by the
Appellant/Defendant by taking a plea that the transaction between the
parties was not of sale but merely of handloan. She contended that her
signature on blank stamp paper was misused by the Plaintiff for
preparation of forged document in the form of Agreement for Sale.
Though the Defendant filed Written Statement raising these
contentions, she failed to lead evidence to prove those averments. The
Trial Court however dismissed the suit by Decree dated 27 August
2008. The Trial Court's decree was however set aside by the first
Appellate Court and the suit was remanded for fresh decision by
Judgment and Order dated 9 January 2014. Parties were given another
opportunity to lead additional evidence and also to cross-examine
Plaintiff's witness. However, even on remand, the Defendant neither led
any evidence nor cross-examined the Plaintiff's witness. The Trial
Court therefore proceeded to decree the suit by Judgment and Order
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dated 11 July 2014, which is confirmed by the first Appellate Court by
its judgment dated 19 March 2021.
4) Mr. Khandeparkar would contend that the Plaintiff did not
aver her readiness and willingness to perform her part of contract nor
proved the same. Relying on the judgment of the Apex Court in U.N.
Krishnamurthy (since deceased) thr. Lrs. V/s. A.M.
Krishnamurthy, 2022 SCC Online SC 840, Mr. Khandeparkar
would contend that readiness and willingness must be averred in the
plaint. He would submit that no such averment was raised in the
plaint. He would submit that the Plaintiff must stand on his own feet
and her success in the suit cannot and does not depend on Defendant's
failure to lead evidence. He would submit that the document of
Agreement for Sale is clearly suspicious as the same is executed on
stamp paper of Rs.20/- He would therefore submit that the Trial Court
had rightly dismissed the suit by Judgment and Decree dated 27
August 2008.
3) I have considered the submissions canvassed by the learned
counsel appearing for the parties. The judgment of the Apex Court in
U.N. Krishnamurthy (supra), in my view would have no application
to the facts and circumstances of the present case. In that case, the
Plaintiff therein had paid part consideration of Rs.10,000/- out of the
total agreed consideration of Rs.15,10,000/-. It is on account of these
factors that the Apex Court expected the Plaintiff therein to aver and
prove that the balance amount of Rs.15,00,000/- was ready with him to
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be paid to the Defendant. The Apex Court went into the Balance Sheet
of the Plaintiff to examine whether the balance amount of consideration
was available with the Plaintiff or not. The Balance Sheet, however did
not prove that the Plaintiff therein was ready with the balance amount
of consideration. In the present case, on the other hand, the transaction
was agreed for amount of Rs.1,84,500/- out of which an amount of
Rs.1,23,000/- was already paid to the Defendant and the balance
amount was only Rs.61,500/-. The Plaintiff showed willingness to
deposit the said amount in the Court. She led evidence in which she
again reiterated her desire and willingness to deposit the balance
amount of consideration in the Court. Therefore, readiness and
willingness by the Plaintiff was both pleaded as well as proved in the
present case.
4) It was the Defendant who contended that the transaction
was of loan and not of sale. Therefore, the burden of proving that the
transaction was of loan, rested on the shoulders of the Defendant, which
burden, the Defendant failed to discharge. Not only the Defendant did
not lead evidence, she did not even bother to cross-examine Plaintiff's
witness despite having two opportunities. It must be observed that
while remanding the suit for fresh trial, an opportunity was given to the
parties to lead additional evidence, as well as to cross-examine
Plaintiff's witnesses. The Defendant failed to avail the opportunity.
5) In view of the facts and circumstances of the present case, I
am of the view that both the Trial as well as the first Appellate Court
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Neeta Sawant 48-SA-181-2022.docx
have rightly decreed the suit of the Plaintiff. No substantial question of
law is involved in the Appeal. The Appeal is accordingly rejected.
6) With rejection of the Appeal, the Interim Application does
not survive. The same also stands disposed of.
SANDEEP V. MARNE, J.
4 March 2024
