Bombay High Court
Sharifa Dost Mohammed Deleted Since ... vs M/S. Ajit Developers Pvt. Ltd., Mumbai ... on 21 February, 2025
2025:BHC-AS:8423
FA-1841-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1841 OF 2024.
1) Sharifa Dost Mohammed (Deleted) ]
1A. Yasin Khan ]
Aged. 64 years, Occ. Self Employee ]
rd
Residing at 302, Mira Apartment, 3 Floor, ]
Opp. Alphine Industries, Marol Military ]
Road, Andheri (East), Mumbai - 400 060 ]
2) Eshrat Shaikh Age- 60 Years ]
rd
residing at 302, Mira Apartment, 3 Floor, ]
Opp. Alphine Industries, Marol Military ]
Road, Andheri (East), Mumbai 400 060. ]
3) Yashin Khan Aged 64 Years, Occ- Self ]
Employee residing at 302, Mira Apartment, ]
3rd Floor, Opp. Alphine Industries, Marol ]
Military Road, Andheri (East), Mumbai 400 ]
060. ]
4) Hasina Eshrat Shaikh Aged 54 Years, Occ. ]
Housewife residing at 302, Mira Apartment, ]
3rd Floor, Opp. Alphine Industries, Marol ]
Military Road, Andheri (East), Mumbai 400 ]
060. ] ... Appellants.
Versus
1) M/s. Ajit Developers Pvt. Ltd. ]
A Company Incorporated under the ]
provisions of Companies Act, 1956 having ]
their address at Gokul Apartment, Ground ]
Floor, Haridas Nagar, Behind Kora Kenda, ]
Simpoli Road, Borivali (W), Mumbai 400 092 ]
]
2) Kayum Khan ]
Residing at Room No. 1 Haji Sattar Chawl, ]
KBM Compound, Behind Masjid Opp. Ashok ]
Nagar, Marol Military Road, Andheri (East), ]
Mumbai 400 060. ]
3) Abdul Qaiyum Khan @ Kayum Khan (Since ]
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Deceased). Residing at Room No. 1 Haji ]
Sattar Chawl, KBM Compound, Behind ]
Masjid Opp. Ashok Nagar, Marol Military ]
Road, Andheri (East), Mumbai 400 060. ]
] ...Respondents.
------------
Mr. Mayur Khandeparkar, Mr. Abhishek Walwaikar i/by Mr. Sandeep V. Mahadik, for
Appellant.
Mr. Rajesh Kachare and Kashvi Ait i/by Ms. Sonal Dabholkar for Respondent No. 1.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: January 8, 2025.
Pronounced on : February 21, 2025.
JUDGMENT :
1. The present appeal has been preferred by the Original
Defendants against the Judgment and Order dated 21st September,
2024 passed by the City Civil Court at Mumbai in S. C. Suit No. 6169 of
2005, decreeing the suit by granting the relief of specific performance
of agreement of sale dated 19th January, 1995. For sake of
convenience, the parties are referred to by their status before the Trial
Court.
2. The suit came to be filed against the legal heirs of one Dost
Muhammad Ata Muhammed, who was the executant of the Agreement
of Sale dated 19th January 1995 by which the deceased Dost
Muhammed had agreed to sell the suit property bearing Survey No. 42
Hissa No. 2 admeasuring about 1594 sqr. Mtrs. situated at village Vile
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Parle, Taluka Andheri, District Mumbai Suburban. The plaint pleaded
that as per the Agreement for Sale, the agreed sale consideration was
Rs. 8,51,000/- out of which a sum of Rs. 65,000/- was agreed to be paid
on or before the execution of the agreement of sale, 25% of the total
consideration as reduced by the amount already paid on the deceased
obtaining the agreement from the tenants to provide alternate
accommodation within 45 days from date of execution of the
agreement, 35% of the total consideration reduced by the amounts
already paid upon receipt of letter of intent, 40% of the total
consideration reduced by the amount already paid on obtaining
intimation of disapproval, 50% of the total consideration reduced by
the amounts already paid on obtaining commencement certificate and
the balance consideration in six quarterly installments. The plaint sets
out various clauses of the agreement and pleads that out of total
consideration of Rs 8,51,000/, the Plaintiffs paid Rs 4,40,000/ by
cheques to the deceased which were encashed. The possession of the
property was handed over by recording a letter of possession dated
19th January, 1995. The Plaintiffs entered into agreement with 44
tenants for providing permanent alternate accommodation of 225 sqr.
ft. By separate agreement dated 20th January, 1995 styled as "Manager
Agreement", the Defendant No. 1 agreed to carry out certain acts. The
proposal for implementing the Slum Rehabilitation scheme was
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submitted to the Slum Rehabilitation authorities and in the meantime
the deceased expired in the year 2001. By communication dated 22 nd
August 2003, one Zuber Khan claimed interest in the properties. By
letter dated 8th September, 2003 the advocate for Defendant No. 2
disputed the rights of Zuber Khan and confirmed the execution of
agreement of sale with a request to send particulars of payment made
to the deceased. By communication dated 22 nd September, 2003 the
Plaintiffs communicated their readiness and willingness to pay the
balance amount. On 7th August, 2004 when the Plaintiff's
representative visited the suit property it was informed that the
Defendant No. 2 was negotiating with the Tenants to vacate their
structures. The Plaintiff sought interalia the relief of specific
performance of the agreements dated 19th January, 1995 and 20th
January, 1995.
3. The Defendants failed to file their written statement within the
period of limitation and an Application for condonation of delay was
filed which came to be rejected by the Trial Court. The order of
rejection was challenged before the High Court which came to be
dismissed. Resultantly, the suit proceeded without the written
statement of the Defendants.
4. The Trial Court framed and answered the issues as under:
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Sr.No. Points Findings
1. Whether the Plaintiff has succeeded to prove In the affirmative.
that the father of the defendants, Dost Mohd.,
has executed the agreement of sale dated 19 th
January 1995 for a total consideration of Rs.
8,51,000/- which can be termed as a concluded
contract ?
2. Whether the plaintiff has succeeded to prove In the affirmative.
that he was always ready and willing to
perform his part ?
3. Whether the Plaintiff is entitled for the In the affirmative.
specific performance of the agreement dated
19.01.1995 ?
4. Whether the plaintiff has proved his In the affirmative.
possession and obstructions at the hands of
defendants ?
5. Whether the Plaintiff is entitled for a specific In the affirmative.
performance of the agreement dated
19.01.1995 ?
6. What order and Decree ? As per final order.
5. The Plaintiff filed the affidavit of evidence of one Manesh R.
Kutmutia authorized signatory of the Plaintiff on 20 th July, 2015. The
witness produced various documents and relevant for our purpose are
the following documents:
(1) Original copy of Resolution dated 29th August, 2013.
(2) Photocopy of original agreement dated 19th January, 1995.
(3) Original receipt dated 29th October, 2004 issued by sub Registrar of
Assurances.
(4) Original letter of possession dated 19 th September, 1995 confirming
handing over the suit property to the Plaintiff.
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6. Although 18 documents were produced by PW-1, the Trial Court
exhibited only the documents at Serial no 10, 11,12,13,15,16,17 and 18
of list of documents which did not include the Original Resolution
dated 29th August 2013 and Original letter of possession dated 19 th
January, 1995.
7. The Plaintiff was duly cross-examined and at the stage of final
hearing, an Application was filed by the Plaintiff on 19 th July, 2024
below Exhibit "17" seeking permission to produce on record the
following documents:
(a) The Original agreement dated 19th January, 1995 which had been
lodged for adjudication with the office of the Sub-Registrar and was
returned upon payment of the stamp duty on 5th April, 2024.
(b) The original statement of bank account of Bank of Baroda of
current account No. 010910 as earlier the original bank statement
could not be traced.
(c) Original written statement filed by the Defendants in earlier S. C.
Suit No. 4130 of 2004 which had been filed by the Plaintiffs against the
Defendants for injunction.
8. The Application came to be resisted by the Defendants. By order
dated 2nd August, 2024 the Trial Court permitted the production of the
documents and exhibited the documents granting liberty to the
Defendants to cross examine the Plaintiffs on the documents only on
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law point. Subsequently, the Defendants conducted further cross
examination on 26th August, 2024 on the agreement dated 19th
January, 1995 which was marked as Exhibit 20, the bank statements
which were marked as Exhibit-21 and the written statement which was
marked as Exhibit-22. The Trial Court on consideration of the evidence
decreed the suit by the impugned Judgment dated 21 st September,
2024.
9. Heard Mr. Mayur Khandeparkar, learned Counsel appearing for
the Appellant and Mr. Rajesh Kachare learned Counsel appearing for
the Respondent No. 1.
10. Mr. Khandeparkar, would submit that the Trial Court has relied
upon extract of resolution dated 29th August 2013 and possession
letter dated 19th September, 1995 though not exhibited and Bank
statements and written statement without evidence or deposition. He
has taken this Court in detail through the findings of the Trial Court to
contend that the Trial Court has decreed the suit based on these four
documents which could not be read in evidence. He submits that the
Plaintiff was cross examined on these documents however the
contents of the said document were not proved as the primary
deposition is absent. He submits that the Defendant No.4(a) Abdul
Qaiyum had expired and the legal heirs were not brought on record
and therefore the suit abated against the Defendant No.4(a). He
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submits that the Judgment of the Trial Court is based on inadmissible
evidence, which cannot be sustained.
11. Mr. Kachare, learned Counsel appearing for the Respondent/
Original Plaintiff would submit that the Plaintiffs had filed Suit No.
4130 of 2004 against the Defendants for injunction and in that suit the
Defendants had admitted the payment of consideration. He points out
to the order dated 10th September, 2004 passed in the notice of motion
in S. C. Suit No. 4130 of 2004 to contend that the admitted position
was that the agreement for sale was executed by the original deceased
and the sum of Rs. 4,75,000/- has been paid and that the Plaintiffs are
ready and willing to pay the balance amount of consideration. He
submits that the bank statement was annexed to the plaint which
showed the payment of Rs. 4,75,000/-. He submits that the certified
copy of the written statement was produced wherein the Defendants
had admitted the execution on the payment of consideration and being
certified copy was admissible in evidence. He submits that there is
deposition as regards payment of Rs.4,75,000/- and the Plaintiff has
been cross-examined on the bank statements and therefore the
documents stood proved and could be read in evidence. He submits
that the execution of the agreement was proved, payment of
consideration was proved and readiness and willingness was proved
and therefore the suit came to be decreed. He submits that the order
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allowing production of document was not challenged and attained
finality. He submits that the affidavit of evidence refers to the original
resolution and possession letter which were produced on record.
12. In rejoinder, Mr. Khandeparkar would submit that despite the
deposition, the resolution and possession letter were not marked as
exhibit and therefore could not be read in evidence. He submits that
the Plaintiff has admitted in cross examination that there was no
resolution executed in favour of the PW-1. He submits that as far as
the order of the earlier proceedings is concerned the same was an
interim order and Section 42 of the Evidence Act provides for the
relevancy but however does not provide for the conclusiveness. He
submits that the matter is required to be remanded for fresh trial.
13. The following points arise for determination:
(i) Whether the four documents i.e. extract of
resolution dated 29th August, 2013, possession letter dated
19th September, 1995, bank statements -Exhibit 21 and copy of
written statement Exhibit-22 were not duly proved and could
not be read in evidence.
(ii) Whether the impugned judgment of Trial Court is
based on inadmissible evidence.
(iii) Whether the Plaintiff is entitled to the decree of
specific performance of the Agreement for Sale dated 19 th
January, 1995.
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AS TO POINT NO (i):
14. The disputed four documents can be categorised in two
categories, the first category are the documents which were not
marked as Exhibits but relied upon by the Trial Court and second
category are the documents which are alleged to not have been duly
proved and admitted in evidence without deposition. The Extract of
Resolution dated 29th August, 2013 and the Possession Letter dated
19th September, 1995 fall in the first category and the Bank statements
and copy of Written Statement in Suit No 4130 of 2004 marked as
Exhibit 21 and Exhibit 22 respectively fall in the second category.
15. Coming to the first category i.e. the documents not marked as
Exhibit by the Trial Court, the Plaintiff examined one Manesh R
Kutmutia ,the authorised signatory of the Plaintiff Company as PW-1,
who filed his Affidavit in lieu of evidence under Order XVIII, Rule 4 of
CPC. Along with his Affidavit, PW-1 produced 18 documents including
the original copy of Resolution dated 29 th August, 2013 and Original
letter of possession dated 19th September, 1995 confirming handing
over the suit property to the Plaintiff. The deposition about these two
documents can be found in paragraph 1 and 8 of the Affidavit of
evidence as under:
"1. I say that I am the Authorised Signatory of the Plaintiff
above named. I say that I have signed and verified the plaint as a
Authorised Signatory of the Plaintiff. I say that the Directors of
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the Plaintiff passed a resolution dated 29.08.2013 appointed me
the Authorised Signatory of the Plaintiff. I hereby produce the
said Original Resolution dated 29.08.2013. The same may be
taken on record and marked as Exhibit. I say that I have personal
knowledge of the said transaction as I was one of the Director
when the Agreement dated 19.01.1995 was executed with the
Defendant. I was present at the time of entering into said
transaction. I say that the agreement was executed in my
presence.
8. I say that the predecessor of the Defendant handed
over possession of the suit property. I say that the predecessor of
the Defendants have executed a letter of possession dated 19 th
January, 1995 confirming of handing over possession of the suit
property to the Plaintiff. I say that the said letter of possession
has been signed by the Dost Mohammed Atta Mohammed
predecessor of the Defendant. I say that Shri Ajit Gopaldas
Thakkar of the Plaintiff have accepted the peaceful possession of
the suit property for and on behalf of the Plaintiff and have
signed the said letter of possession. I say that contents of the said
letter of possession dated 19th January, 1995 are true and correct.
I am producing the original letter of possession dated 19 th
September, 1995, and the same may be taken on record and
marked as Exhibit."
16. The contents of the documents have to be proved by adducing
evidence of the person who can vouchsafe about the truth of the
documents. PW-1 has deposed that the Directors of the Plaintiff had
passed the resolution authorising him as authorised signatory and had
produced the original resolution. He has further deposed that he had
personal knowledge of the transaction. In respect of the possession
letter dated 19th January, 1995, he has identified the signature of the
executant and has deposed about the contents of the possession letter
and produced the original letter of possession. The original extract of
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resolution dated 29th August, 2013 and original possession letter were
duly proved and tendered in evidence. Despite the deposition and
production of the original documents, the Trial Court failed to mark the
document as exhibits, which was a ministerial act.
17. Under Order XIII of Code of Civil Procedure, 1908, (CPC) the
original documents are to be produced before settlement of issues.
Notice to admit document is to be given under Rule 2 of Order XII.
Order XIII governs the production, impounding and return of
documents. Rule 3, 4 and 6 of Order XIII of the CPC govern the
manner of admission and rejection of documents and reads as under.
"3. Rejection of irrelevant or inadmissible documents.- The Court
may at any stage of the suit reject any document which it
considers irrelevant or otherwise inadmissible, recording the
grounds of such rejection.
4. Endorsements on documents admitted in evidence.- (1)
Subject to the provisions of the next following sub-rule, there
shall be endorsed on every document which has been admitted
in evidence in the suit the following particulars, namely:-
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted; and the
endorsement shall be signed or initialled by the Judge.
(2) Where a document so admitted is an entry in a book, account
or record, and a copy thereof has been substituted for the
original under the next following rule, the particulars aforesaid
shall be endorsed on the copy and the endorsement thereon
shall be signed or initialled by the Judge.
6. Endorsements on documents rejected as inadmissible in
evidence.- Where a document relied on as evidence by either
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party is considered by the Court to be inadmissible in evidence,
there shall be endorsed thereon the particulars mentioned in
clauses (a), (b) and (c) of Rule 4, sub-rule (1), together with a
statement of its having been rejected, and the endorsement
shall be signed or initialled by the Judge."
18. The Civil Manual makes provision for production and
marking of documents as exhibits and paragraph No. 522(1), (523)(1)
and paragraph No. 524 of Chapter 27 of Civil Manual reads as under.
"522.(1) All documents tendered in evidence shall be
accompanied by a list in the form given as No. 5 in Appendix of
the first schedule of the Code of Civil Procedure.
523. (1) As soon as the list is filed, the Bench Clerk should
endorse on the back of each document the particulars
mentioned in clauses (a), (b) and (c) of Rule 4(1), Order XIII, Civil
Procedure Code.
(Note): Occasionally, documents are produced which are of
great historic value such as old sanads or grants, and such
documents may be seriously impaired or damaged by the usual
endorsements. It is important that the identity of a document
produced in Court and acted upon should be placed beyond
question in view of a possible appeal or other future proceeding.
But where a document of historical interest is in question, the
Court before which it is produced, should make every possible
endeavor to prevent its being defaced by marks of any kind.
Some means of avoiding disfigurement would generally suggest
themselves. The parties may agree to a photographic copy being
substituted for the original or the document may be enclosed in
a sealed cover are in a locked and sealed sealed box, the
necessary particulars being endorsed on the outside. Careful
measures should also be taken for the safe custody of such
documents.
524. If a document included in the list is referred to in the
proceedings before it is tendered in evidence and formally
proved, it should be immediately marked for identification. When
it is tendered in evidence, it should be detached from the list. If
rejected, it should be endorsed as prescribed by Order XIII, Rule
6, Civil Procedure Code, and returned. If admitted, the
endorsement referred to in the above rule should be completed
and signed by the Judge (Order XIII, Rule 4, Civil Procedure Code)
and the document should be assigned the appropriate exhibit
number and filed in the record and all references to it in the
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depositions and judgment should bear that number. Every
document should be further marked with the letter 'P' or 'D',
according as it is tendered by the plaintiff or the defendant. The
number assigned to each document should be endorsed on the
list of documents mentioned above."
19. By Amendment Act of 2002 Order 18 Rule 4 came to be
amended and read as under.
"4. Recording of evidence.- (1) In every case, the examination-in-
chief of a witness shall be on affidavit and copies thereof shall
be supplied to the opposite party by the party who calls him for
evidence:
Provided that where documents are filed and the parties rely
upon the documents, the proof and admissibility of such
documents which are filed along with affidavit shall be subject
to the orders of the Court.
(2) The evidence cross-examination and re-examination of the
witness in attendance, whose evidence examination-in-chief by
affidavit has been furnished to the Court, shall be taken either
by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission
under this sub-rule, consider taking into account such relevant
factors as it thinks fit.
(3) The Court or the Commissioner, as the case may be, shall
record evidence either in writing or mechanically in the presence
of the Judge or of the Commissioner, as the case may be, and
where such evidence is recorded by the Commissioner he shall
return such evidence together with his report in writing signed
by him to the Court appointing him and the evidence taken under
it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks
material respecting the demeanor of any witness while under
examination:
Provided that any objection raised during the recording of
evidence before the Commissioner shall be recorded by him and
decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the
Court appointing the commission within sixty days from the date
of issue of the commission unless the Court for reasons to be
recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of Commissioners to record the evidence under
this rule.
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(7) The Court may by general or special order fix the amount to
be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in
so far as they are applicable, shall apply to the issue, execution
and return of such commission under this rule."
20. The proof and admissibility of the documents filed along with
the Affidavit is to be judicially determined by the Trial Court as soon as
the document is tendered in evidence. The Court is obliged to form its
opinion on the admissibility of the document based on which the
document is required to be endorsed as admitted or not admitted in
evidence. The record is silent as regards the judicial determination of
these two documents. Pertinently, the submission of Mr. Khandeparkar
is not that the two documents were inadmissible in evidence or were
not duly proved, the objection is restricted only to non marking of
document as exhibit. The marking of document as Exhibit is for the
purpose of identifying the document and what is relevant is the proof
of document.
21. The objection to the maintainability of the suit was rejected by
the Trial Court in paragraph 32 by noting that the resolution has been
produced by PW-1. The Trial Court also accepted the case of the
handing over possession by noting the separate possession letter
executed by the Defendant. As the documents were duly proved by
PW-1, the non exhibiting of the documents, which duty is cast upon
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the Court, would not come in the way of the documents i.e. the
resolution dated 29th August, 2013 and possession letter dated 19 th
September, 1995 being read in evidence.
22. Now, coming to the second category of documents i.e. the
original statement of Bank Account for the relevant period and the
copy of the written statement filed by the Defendant in Suit No 4130
of 2004. The Plaintiff examined its authorised signatory as witness
who deposed through his Affidavit of evidence in July 2015 and was
cross examined. In paragraph 17 to 20 of the Affidavit of evidence, the
PW-1 deposed about the filing of the S.C Suit No 4310 of 2003 and
various orders passed therein and tendered the orders in evidence.
There is no deposition about the written statement filed in S.C. Suit No.
4310 of 2003. Although it is sought to be contended that the written
statement produced by Plaintiff was certified copy of written
statement, the Application for production below Exhibit-17, refers to
the document as original copy of written statement and in the cross-
examination PW-1 has admitted that alleged copy of written statement
is not signed by any Defendant. In absence of deposition, the written
statement could not have been tendered in evidence.
23. As far as the statement of bank account is concerned, the plaint
pleads in paragraph 11 as under:
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"11. The Plaintiffs state that the Plaintiffs, out of the total
consideration of Rs 8,51,000/ paid a total sum of Rs 4,40,000/-
the said deceased by cheques under the said Agreement. The said
deceased duly received the said payment. The Plaintiffs crave
leave to refer to and rely upon the statements of accounts, the
Bank statements when produced. Hereto annexed and marked
Exhibit "C" is the copy of the statement showing the particulars of
total payments made by the Plaintiffs to the deceased interalia,
under the said Agreement."
24. In accordance with the pleading, in paragraph 4 of the Affidavit
of evidence, PW-1 has deposed about payment of Rs.25,000/- vide
Cheque No 018527 dated 11th October, 1994, Rs.40,000/- vide cheque
No.018585 dated 17th November, 1994 drawn on Bank of Baroda,
Mangaldas Market Branch. In paragraph 9 of the Affidavit of evidence,
PW-1 has deposed about payment of Rs.35,000/- vide Cheque No
013585 and Cheque No 013587 dated 20th January, 1995 of Rs.17,500/-
each drawn on Bank of Baroda, Mangaldas Market Branch. The bank
statements were not tendered in evidence along with the Affidavit of
evidence.
25. Subsequently, an application was filed below Exhibit "17" at the
stage of final hearing to produce the original documents I..e original
agreement, bank statement and written statement. The Defendants
raised objection to admissibility of the documents and as regards the
bank statement the objection was that the Plaintiff never placed or
sought leave to rely upon the bank statements and in addition, the
bank statement is not accompanied by the Bankers Certificate as
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mandated by Bankers Book Evidence Act and thus inadmissible in
evidence. The Trial Court rejected the objection and admitted the
document in evidence.
26. Firstly, the plaint specifically pleads about the payment and
relies upon the statement of account. Secondly, in the Affidavit of
evidence, there is specific deposition by PW-1 about the cheques
drawn on Bank of Baroda and the payments made but the bank
statements were not tendered during evidence, and came to be
tendered subsequently. As PW-1 had deposed about the bank
payments, it cannot be said that there was no deposition about the
bank statements. It may not have been deposed in so many words that
PW-1 hereby tenders the bank statement, but there was necessary
pleading and evidence as regards the bank statement.
27. Coming to the question as to whether the bank statements have
been proved and could be relied upon under the Bankers Book
Evidence Act, Section 4 of Bankers Book Evidence Act reads thus:
"4. Mode of proof of entries in bankers' books.-Subject to the
provisions of this Act, a certified copy of any entry in a
banker's book shall in all legal proceedings be received as
prima facie evidence of the existence of such entry, and shall
be admitted as evidence of the matters, transactions and
accounts therein recorded in every case where, and to the
same extent as, the original entry itself is now by law
admissible, but not further or otherwise.
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28. Section 2(8) of Bankers Book Evidence Act defines "certified
copy" as under:
"certified copy" means when the books of a bank,--
(a) are maintained in written form, a copy of any entry in
such books together with a certificate written at the foot of
such copy that it is a true copy of such entry, that such entry is
contained in one of the ordinary books of the bank and was
made in the usual and ordinary course of business and that
such books is still in the custody of the bank, and where the
copy was obtained by a mechanical or other process which in
itself ensured the accuracy of the copy, a further certificate to
that effect, but where the book from which such copy was
prepared has been destroyed in the usual course of the bank's
business after the date on which the copy has been so
prepared, a further certificate to that effect, each such
certificate being dated and subscribed by the principal
accountant or manager of the bank with his name and official
title;
(b) consists of printouts of data stored in a floppy, disc, tape
or any other electro-magnetic data storage device, a printout
of such entry or a copy of such printout together with such
statements certified in accordance with the provisions of
section 2-A.
(c) a printout of any entry in the books of a bank stored in a
micro film, magnetic tape or in any other form of mechanical
or electronic data retrieval mechanism obtained by a
mechanical or other process which in itself ensures the
accuracy of such printout as a copy of such entry and such
printout contains the certificate in accordance with the
provisions of section 2-A."
Section 2-A of the said Act reads as under :
"2-A. Conditions in the printout. - A printout of entry or a copy
of printout referred to in sub-section (8) of section 2shall be
accompanied by the following, namely: --
(a) a certificate to the effect that it is a printout of such entry
or a copy of such printout by the principal accountant or
branch manager ; and
(b) a certificate by a person in-charge of computer system
containing a brief description of the computer system and the
particulars of--
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(A) the safeguards adopted by the system to ensure
that data is entered or any other operation performed
only by authorised persons;
(B) the safeguards adopted to prevent and detect
unauthorised change of data;
(C) the safeguards available to retrieve data that is
lost due to systemic failure or any other reasons;
(D) the manner in which data is transferred from the
system to removable media like floppies, discs, tapes or
other electro-magnetic data storage devices;
(E) the mode of verification in order to ensure that
data has been accurately transferred to such removable
media;
(F) the mode of identification of such data storage
devices;
(G) the arrangements for the storage and custody of
such storage devices;
(H) the safeguards to prevent and detect any
tampering with the system; and (I) any other factor
which will vouch for the integrity and accuracy of the
system.
(c) a further certificate from the person in-charge of the
computer system to the effect that to the best of his
knowledge and belief, such computer system operated
properly at the material time, he was provided with all the
relevant data and the printout in question represents
correctly, or is appropriately derived from, the relevant data."
29. Admittedly, the bank statements are not accompanied by
certificate under the Bankers Book Evidence Act, however, bears the
seal of Bank of Baroda and signature of the official. In Radheshyam G.
Garg vs Safiyabai Ibrahim Lighwalla (1987 SCC Online Bom 22), this
Court held the certificate under Bankers Book Evidence Act to be
directory as under:
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"The lower appellate Court by placing reliance on section 2(8) of
the Bankers' Books Evidence Act, 1891 has held that 'certified
copy' means a copy of any entry in the books of a Bank, together
with a certificate written at the foot of such copy that it is a true
copy of such entry, that such entry is contained in one of the
ordinary books of the bank and was made in the usual and
ordinary course of business, and that such book is still in the
custody of the bank, such certificate being dated and subscribed
by the principal accountant or manager of the Bank with his
name and official title. According to the learned Judge since the
said extracts of statement of account had not been signed by the
principal accountant or manager as required and since the same
did not bear any date or official seal, the same could not be
treated as certified copy and consequently the same could not be
read in evidence.
In my judgment the aforesaid view of the learned Judge of the
lower appellate Court was hypertechnical. The said extract of
account was duly signed by the Agent of the bank. Implicit in it
was a certificate that it was a true copy of an entry contained in
one of the ordinary books of the bank and was made in the usual
and ordinary course of business and that such book was in the
custody of the bank. The detailed ingredients mentioned in the
defining clause 8 of section 2 of Bankers' Books Evidence Act,
1891 for qualifying to be 'certified copy' are not mandatory but
merely directory."
30. In the present case, the original bank statements were not per se
inadmissible in evidence. What was objected was to the mode and
manner of proof. As held by this Court in the decision cited above, the
detailed ingredients of Section 2(8) of Bankers Book Evidence Act are
merely directory. The bank statements are the original bank
statements bearing the seal and signature of the bank. PW-1 has
deposed about the cheque payments made through Bank of Baroda
and corroborated the same by producing original bank statement. The
bank statements could be received as prima facie evidence of existence
of such entries. Further, the Plaintiff was cross examined by the
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Defendant. Once the document is used in cross examination, then the
document gets proved and can be read in evidence as held by the Apex
Court in case of Ram Janki Devi vs Juggilal Kamlapat [1971 (1) SCC
477]. The Apex Court in that case had held that it is not possible to
accept complaint of lack of proof when the documents are shown in
cross examination to the witness.
31. The impugned judgment discloses that during final arguments,
the objection as regards admissibility of the bank statements was
raised by the Defendants and the Trial Court has rightly rejected the
contention on the ground that the bank statement is original and duly
stamped by the authorised person of the bank.
32. In light of the discussion above, the conclusion is that the
resolution dated 29th August, 2013, possession letter dated 19th
September, 1995 and the bank statements could be read in evidence.
Point No (1) is accordingly answered.
AS TO POINT Nos. (ii ) and (iii):
33. Both points are interlinked and taken together for discussion.
The Defendants failed to file their written statement and therefore
their defence cannot be taken into consideration. The issue is whether
the impugned judgment is based on inadmissible evidence and
whether the Plaintiff is entitled to specific performance of the
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agreement for sale dated 19th January, 1995.
34. From the evidence on record, it can be conclusively stated that
Plaintiff has duly proved the execution of the Agreement for Sale
dated 19th January, 1995 by the predecessor of Defendant. There is no
submission canvassed by Mr. Khandeparkar assailing the finding on
execution of the agreement of sale. Though the written statement
was sought to be relied upon for supporting the case of admission of
execution of agreement of sale by the Defendants, the finding of trial
Court is not based solely on the said admission of the Defendants in
the written statement. The only reference can be found in paragraph
16 of the judgment where the Trial Court supports its findings on
execution of the agreement by noting that the Defendants have
specifically admitted the execution of the agreement. Irrespective of
the written statement, the evidence on record amply proves the
execution of the Agreement by the predecessor of the Defendant.
35. The terms and conditions of the agreement casts an obligation
on the Plaintiff under Clause 1 to make payment of Rs.65,000/- on or
before execution of the agreement, which payment was acknowledged
in the agreement itself and the slab of payment provided for payment
of 25% on Vendors obtaining all Tenants Agreements for alternate
accommodation within 45 days. Clause 1 provided for further
payments upon subsequent events of receipt of further permissions
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such as Letter of Intent from SRA, IOD and Commencement Certificate
from Corporation and balance on Vendors conveying the property,
which were all dependent on obtaining the Tenants Agreement by the
vendors.
36. The obligation on the Plaintiff was to make payment of Rs.
65,000/- on execution of the Agreement, which was duly complied. The
further payments were subject to the performance of the Defendant's
obligation. In his deposition PW-1 has given the details of the cheques
and specifically deposed that the Plaintiff has made payment of Rs
4,75,000/- to the Defendant and that Defendant has failed to secure
agreement from the tenants as per the agreement. The deposition of
PW-1 about making of payment of Rs.4,75,000/- to the Defendant has
remained uncontroverted in cross-examination. As there was no
written statement filed, there is no denial to the receipt of payment of
Rs 4,75,000/- and consequently the case of the Defendant could not be
put in the cross-examination.
37. Even if the bank statements are excluded from consideration,
there is oral evidence of PW-1 deposing about the payment of
Rs.4,75,000/ to the Defendants supported by communications dated
23rd October 2003-Exhibit 7, 8th September, 2003 -Exhibit 8 and 22 nd
September, 2003- Exhibit 9. By communication dated 23 rd August,
2003, the Plaintiff had communicated its readiness and willingness to
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make the balance payment as and when due. In response, the
Defendants by communication dated 8th September, 2003, called upon
the Plaintiff to furnish the statement of payments made to their late
father along with mode of payment and receipts, which statement was
enclosed by Plaintiff vide communication dated 22 nd September, 2023.
The absence of any further objection by the Defendants proves that
the Defendants had accepted the statement of payment furnished by
the Plaintiff. By the said communication, the Plaintiff once again re-
iterated its readiness and willingness to fulfill its obligations and make
the balance payments.
38. On the aspect of payment, the Trial Court held in Paragraph No.
33 as under:-
"33. In this case, the defendants further contend that the
plaintiff has not succeeded to prove the alleged payment made
by him to the defendants. On this point, the learned counsel for
the defendant argued that though the plaintiff has produced a
bank statement to show that he has made a payment to the
defendant, this bank statement is not proved by him as per
section 2 of the Bankers Book Act. I do not agree with this
submission made by defendant because the bank statement
produced by the plaintiff is original and is duly stamp by the
authorized person of the bank. Furthermore, as per the notice
reply of the defendant dated 08.09.2003 to the plaintiff's notice,
the plaintiff company has given all details of the payment made
by plaintiff's company to defendant by virtue of the reply dated
22.09.2003. The defendant has never challenged the said reply
any where, nor has the defendant given a counter reply to the
said reply. Therefore, there is also no force in the above said
submission made by the defendant."
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39. The Trial Court has not rested its finding on the aspect of
payment of Rs.4,75,000/- only on the bank statement but has
considered the notice reply of Defendants dated 8 th September 2003.
The Trial Court has rightly noted that the defendant has not challenged
the said reply nor given counter reply to the Plaintiff's reply dated 22 nd
September, 2003 and has therefore upon cumulative reading of the
correspondence held that the payment of Rs. 4,75,000/- has been
made. The case has to be decided on the preponderance of
probabilities and when the evidence on record is cumulatively
appreciated, there is uncontroverted oral deposition of PW-1 about
payment of Rs.4,75,000/- and the correspondence exchanged between
the parties wherein the statement of payment was furnished to
Defendants. In event the Defendants were not satisfied, there would
be a denial which is not found in the present case..
40. The Plaintiff proved the execution of the Agreement for Sale
dated 19th January, 1995 and the handing over of possession of the
property by proving the possession letter dated 19th January, 1995. The
Plaintiff has further proved the failure on part of the Defendant to
perform his part of the contract as the Defendants failed to obtain
Tenants Agreement within 45 days.
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41. The Trial Court in paragraph 18 of the impugned judgment has
held that the Plaintiff has complied with its obligations by taking the
initiative of removing the hutments by executing agreement and
making provision for their alternative residence, applying to Slum
Rehabilitation Authority for permission and making the payment of Rs
4,75,000. The Trial Court held that the Defendants have failed to obtain
the tenant agreement and execute the necessary agreement in favour
of the Plaintiff and therefore the Plaintiff was not under an obligation
to make the entire payment before execution of sale deed.
42. On the aspect of readiness and willingness, the Trial Court held
that the bank statement shows that the Plaintiff has already made the
payment of Rs.4,75,000/- and in the notice reply has specifically
mentioned that he is ready to pay the balance consideration subject to
execution of sale agreement. The finding indicates that the conclusion
of the Trial Court of readiness and willingness is not based solely on
the bank statements, but on the various steps taken by the Plaintiff in
pursuance of the contract. Though the Trial Court has referred to the
bank statement and written statement, the findings are not based
solely on these documents. As such, even assuming arguendo, that
these documents could not be read in evidence, the basis for the
impugned judgment is not these two documents but the judgment is
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decided on preponderance of probabilities upon appreciation of entire
evidence.
43. The sum and substance of the discussion is that findings of the
Trial Court on aspect of readiness and willingness is based on the
payment of Rs.4,75,000/- by consideration of the oral evidence, the
bank statements as well as the communications exchanged between
the parties. The findings can be sustained even if the bank statements
are excluded from consideration.
44. The evidence on record proves the due execution of the
Agreement for Sale dated 19th January, 1995, the handing over of
possession, the breach of contract by the Defendant and the readiness
and willingness of the Plaintiff to stand with the contract. Even if the
bank statement and the written statement are excluded from
consideration, in light of the evidence on record, the Plaintiff is
entitled to specific performance of the agreement. Point No (ii) and
(iii) are accordingly answered.
45. As far as the submission that Defendant No 4a has expired and
there no specific performance can be granted of his share, the said
issue was not raised during the trial and is sought to be raised for the
first time in Appeal, which cannot be permitted. There is nothing to
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show that there were any surviving legal heirs apart from the
Defendants on record who claim right in the property. In the absence
of any such material, the effect of abatement cannot be considered.
46. Resultantly, First Appeal stands dismissed.
[Sharmila U. Deshmukh, J.]
47. At this stage, request is made for stay of the judgment for a
period of six weeks. The said request is opposed by learned Counsel
appearing for the Respondents. Considering the request, the
judgment is stayed for a period of six weeks.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 21/02/2025 19:49:18
