Bombay High Court
Niranjan Dharmadas Lokhande Died Thr ... vs Padmakar Ramesh Harba on 4 March, 2025
2025:BHC-AUG:6269
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 57 OF 2025
WITH
CIVIL APPLICATION NO. 1441 OF 2025
(FOR STAY)
IN
SECOND APPEAL NO. 57 OF 2025
Niranjan Dharamdas Lokhande
Since deceased through :
1. Mangal Niranjan Lokhande,
Age; 53 years, Occ. Household,
2. Meghraj Niranjan Lokhande,
Age; 32 years, Occ. Business,
3. Surekha Niranjan Lokhande,
Age; 29 years, Occ. Household,
All R/o House No. 919,
Saurabhnagar, Bhingar,
Taluka and District Ahmednagar. ...APPELLANTS
(Original Defendants)
VERSUS
Padmakar Ramesh Harba,
Age; 55 years, Occ. Business,
R/o; House No. 452, Patil Galli,
Bhingar Ahmednagar. ...RESPONDENT
(Original Plaintiff)
................
Mr. R.S. Kasar : Learned Advocate for Appellants
Mr. A.S. Bayas h/f Mr. G.B. Chate : Learned Advocate for Respondent
...............
CORAM : S. G. CHAPALGAONKAR, J.
Date of reservation : 26.02.2025
Date of Pronouncement : 04.03.2025
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JUDGMENT :
1. Appellants (LRs of Original defendant) impugns judgment and
decree dated 12.07.2024 passed by Adhoc District Judge-1, Ahmednagar
in Regular Civil Appeal No. 148 of 2019, thereby upholding judgment and
decree dated 28.02,.2019 passed by Civil Judge, Senior Division,
Ahmednagar in Regular Civil Suit No. 716 of 2012. (Hereinafter the parties
are referred by their original nomenclatures in trial Court).
2. Respondent/Plaintiff instituted RCS No. 716 of 2012 seeking
relief of specific performance of contract on basis of agreement to sale
dated 28.05.2011 executed by defendant in respect of suit house. It is
contention of plaintiff that defendant was in need of money to clear dues
of many persons and also have family requirements. Defendant offered
him to sale property for a consideration of Rs. 4,25,000/-. Accordingly,
agreement to sale was executed. Defendant accepted amount of Rs.
4,00,000/- as an earnest money at the time of execution of agreement to
sale before Public Notary and in presence of two witnesses. It was agreed
that sale deed will be executed on or before 29.08.2011 and balance of
consideration would be paid at the time of execution of sale deed. Plaintiff
issued a public notice dated 06.06.2011 calling upon objections from
general public regarding their interest in suit property and his intention to
purchase the same. Later on, plaintiff noted reluctance of defendant to
execute sale deed, he issued legal notice dated 14.10.2011 calling upon
him to remain present in the office of Sub Registrar to execute sale deed,
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however, defendant did not turn up to office of Sub Registrar, hence cause
of action arose to file suit.
3. Defendant refuted plaintiff's claim contending that plaintiff is
money lender. Defendants had obtained loan on interest from plaintiff.
Document was executed by way of security to loan. Although entire
amount along with interest is already parted with to plaintiff, he filed false
suit on the basis of agreement to sale.
4. Trial Court framed issues, recorded evidence of witnesses,
finally decreed suit holding that plaintiff proved execution of agreement to
sale and he was always ready and willing to perform his part of contract
eventually entitled for decree of specific performance of contract.
5. Aggrieved defendant filed Regular Civil Appeal bearing No. 148
of 2019 before learned Adhoc District Judge-1, Ahmednagar, which has
been dismissed upholding judgment and decree of trial Court.
6. Mr. Kasar, learned Advocate appearing for
appellants/defendants would submits that plaintiff is money lender. By
inviting attention of this Court to the cross-examination of plaintiff he
submits that plaintiff has instituted many suits for recovery of amount.
Similarly, he has instituted cheque bounce cases against some persons.
According to Mr. Kasar aforesaid admission of plaintiff clearly suggests his
engagement in money lending business. He would further points out that
loan was outstanding against defendant, charge of said loan was taken on
property. Defendants were in financial duress, therefore, they had
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obtained loan and executed document by way of security.
7. Mr. Bayas, learned Advocate appearing for plaintiff submits
that all these contentions are considered by both Courts below and
recorded concurrent findings of fact that transaction between parties was
intended for sale. Defence put forth by defendant has been rejected.
8. Having considered submissions advanced and reasoning
adopted by Courts below, it can be observed that defendants never
disputed execution of agreement to sale dated 28.05.2011 in favour of
plaintiff. There is no denial as to receipt of earnest money of RS.
4,00,000/-, out of total consideration of Rs. 4,25,000/-. In this
background, defendants contend that it was money lending transaction
and agreement to sale was not intended to be acted upon, it can be said
that except bare words, defendant could bring on record any evidence in
support of their defence. On the other hand, plaintiff entered into witness
box. Evidence of Public Notary, Mr. Baldota has been recorded on the
point of agreement to sale. Since defendant Niranjan Dharamdas
Lokhande expired during pendency of suit, his legal representative Mr.
Meghraj examined himself in support of his defence. The Courts below
have rightly observed that as per Section 92 of the Indian Evidence Act
oral evidence is admissible, however, it prohibits evidence against written
document for purpose of addition, contradiction and verifying its terms. It
is true that Proviso-II to Section 92 permits leading of evidence to show
existence of any separate oral agreement between parties,
which is not consistent with terms. In present case evidence to
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demonstrate independent agreement between parties as is permissible
under Proviso to Section 92 of Indian Evidence Act is not brought on
record. Merely on basis of pending proceedings instituted by plaintiff for
recovery of amount, presumption cannot be drawn that he was in the
business of money lending.
9. Mr. Kasar, would further submits that Courts below have not
considered question of hardship to defendant. In support of his contention
he relied upon judgment in the case of Bal Krishna and Another Vs.
Bhagwan Das (Dead) and Others reported in 2008 AIR SC 1786. He tried
to demonstrate that LRs of defendant are residing in suit house and grant
of decree would cause greater hardship to them. There cannot be dispute
that grant of decree of specific performance is a discretion of Court, where
contract would involve some hardship on defendants which they did not
forcee, Court may decline to exercise discretion and refuse to grant
decree.
10. In present case, there is nothing to hold that plaintiff would
have unfair advantage and defendant would suffer unforseen hardship.
On the other hand, one can find that out of agreed consideration of Rs.
4,25,000/-, defendant had received amount of Rs. 4,00,000/- by way of
earnest money. Present suit is brought within a period of one year from
date of execution of document. Meanwhile, plaintiff had issued legal
notice and called upon defendant to execute sale deed. Courts below have
dealt with aforesaid aspect and recorded concurrent findings that issue of
hardship does not advance cause of defendants. In that view of the
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matter, no substantial question of law arises for consideration in this
appeal. Second Appeal stands dismissed. Pending Civil Application, if
any, stands disposed off.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
