Kaushik Laxmansinh Rathod vs Rajendrasinh Daulatsinh Chauhan
2023 Latest Caselaw 3041 Guj

    C/SA/601/2022                             CAV JUDGMENT DATED: 19/04/2023




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SECOND APPEAL NO. 601 of 2022
                          With
       CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                           In
            R/SECOND APPEAL NO. 601 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN - Sd/-

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1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of No the judgment ?

4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?

====================================== KAUSHIK LAXMANSINH RATHOD Versus RAJENDRASINH DAULATSINH CHAUHAN ====================================== Appearance:

======================================

CORAM: HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 19/04/2023

CAV JUDGMENT

C/SA/601/2022 CAV JUDGMENT DATED: 19/04/2023

1. Present Second Appeal has been preferred by the appellant - original defendant against the concurrent findings of the learned Courts below arising out of the suit for specific performance of contract, declaration, possession and perpetual injunction of the premises.

2. The factual matrix of the dispute between the parties are as under:

2.1 That the respondent filed the suit for specific performance of contract, declaration, possession and perpetual injunction of the suit premises, wherein the shop no.2-A and 2-B situated at first floor of Bombay Shopping Center Premises Cooperative Housing Society Ltd., Race Course, Vadodara.

2.2 The appellant - defendant no.1, who is a Doctor- Radiologist by profession and has his x-ray unit at the said Bombay Shopping Center, approached the respondent - plaintiff and offered to sale the suit premises for sum of Rs.3,00,000/-. After negotiation, an agreement to sale was executed on 19th October, 2006 at Baroda between appellant - defendant no.1 and the respondent - plaintiff. The said agreement to sale duly reduced in writing and is registered with the office of the Sub-Registrar, Vadodara on 19 th October, 2006 vide registration Entry no.4853. Before the Registry, the signature, fingerprints and photographs were taken and document was registered in accordance with law of registration. The respondent - plaintiff has made payment of

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Rs.1,00,000/- by Account Payee Cheque no.026098 dated 19 th October, 2006 of Central Bank of India, Kevda Baugh, Vadodara as part payment to the appellant - defendant no.1. It is averred that there is a clear mention of said payment in an agreement to sale which is duly authenticated by the appellant - defendant no.1. It was agreed between the parties that within two years, upon receipt of balance amount, the appellant - defendant no.1 would execute the sale deed and hand over the physical possession of the property referred to in the agreement dated 19th October, 2006 to the respondent - plaintiff. It is stated that after having signed and executed an agreement, the appellant - defendant no.1 developed greed on account of some misconception that he had sold the property below market value, and became confused with double mind. The appellant - defendant no.1 upon ill advice, deliberately did not present the aforesaid cheque neither did bother to inform the respondent - plaintiff that he was not presenting the cheque. The respondent - plaintiff was all the way under impression that appellant - defendant no.1 would at his convenience present the cheque and, therefore, the maintained the adequate balance in his account from which the cheque was issued to the appellant - defendant no.1. However, upon inquiry to the surpose of the respondent - plaintiff, it was found that the appellant - defendant no.1 had not tendered the cheque for payment for unreasonable long period and that validity period of cheque was nearing expiry. The respondent - plaintiff in order to clear the mist through his advocate issued a notice dated 30 th January, 2007 to appellant - defendant no.1. The appellant - defendant no.1

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was informed that by non-tendering the cheque, which is as good as cash by the appellant - defendant no.1 would not help him get absolved from his legal liability. The appellant - defendant no.1 having received the notice dated 30 th January, 2007 sent a reply thereof on 29 th March, 2007 after almost two months and in the said reply the appellant - defendant no.1 concocted the story that cheque in question was returned to the respondent - plaintiff. The respondent - plaintiff is ready and willing to pay the remaining due amount of consideration to the appellant - defendant no.1.

2.3 The appellant - defendant no.1 duly served with the summons and he filed a written statement Exh.20. The learned trial Judge on receipt of the written statement framed the Issues at Exh.53 and invited parties to prove the pleadings. After hearing the arguments of the parties and considering the documentary evidence, the learned trial Judge was pleased to pass the decree of specific performance in favour of the respondent - plaintiff on 4th January, 2019.

2.4 Being aggrieved by the judgment and decree of the trial Court, the appellant - defendant filed Regular Civil Appeal no.56 of 2019 before the Court of Principal District Judge, Vadodara, wherein learned 5th Addl. District Judge vide order dated 23rd March, 2022 has dismissed the said appeal.

3. Heard Mr. A. R. Majmudar, learned advocate appearing on behalf of the appellant - defendant.

4. I have examined the findings of both the Courts below on

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the issue raised in the suit.

5. It is the main contention of Mr. Majmudar, learned advocate for the appellant - defendant that the trial Court and the first Appellate Court has not given consideration to the fact that the earnest amount, which was given to the appellant

- defendant was taken back by the respondent - plaintiff and no cash was given by the respondent - plaintiff towards earnest money and the agreement to sell was cancelled in reply to the notice given by the respondent - plaintiff by the present appellant - defendant. As such the respondent - plaintiff was not entitled for any relief of specific performance of the contract.

5.1 It is also contended that the trial Court should have taken into consideration not only the readiness and willingness but also the conduct of the parties, escalation of the price of the suit property and whether the respondent - plaintiff was unfairly benefited from the decree.

5.2 Mr. Majmudar, learned advocate for the appellant - defendant relied upon the judgment in case of Shenbagam Vs. K.K. Rathinavel, reported in 2022 (2) SCALE - 56. Paras-26 and 33 reads thus:

"26. In evaluating whether the respondent as ready and willing to perform his obligations under the contract, it is not only necessary to view whether he had the financial capacity to pay the balance consideration, but also assess

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his conduct throughout the transaction.

33. In the context of the discretion under Section 20 of the Specific Relief Act, several decisions of this Court have considered whether it is appropriate to direct specific performance of a contract relating to the transfer of immovable property, especially given the efflux of time and the escalation of prices of property. In Satya Jain Vs. Anil Ahmed Rushdie, (2013) 8 SCC 131, this Court held:

"39. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law.

40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be

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entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experiences judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance.

41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour." (emphasis supplied)

In directing specific performance of the agreement, this Court in Satya Jain (supra) held that sale deed must be executed for the current market price of the suit property."

6. As such, the learned advocate for the appellant - defendant in the second appeal has prayed for atleast considering the escalation of the prices and to consider the appeal accordingly.

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7. Hearing the submissions of Mr. Majmudar, learned advocate for the appellant - defendant and as stated above, examining the judgment and order of both the trial Courts below, Mr. Majmudar, learned advocate appellant - defendant is unable to point-out any infirmity, perversity or impropriety in concurrent findings of the fact rendered by the learned trial Court below. Not only that, the learned advocate for the appellant - defendant is unable to show to this Court any finding recorded by the learned trial Courts below is without any evidence or there is any illegality in the findings.

8. Here, in this case, the trial Court, as well as, the first Appellate Court has taken care of the grievance as raised by the learned advocate for the appellant - defendant, undisputedly the agreement to sell was executed which is not denied in 2006. Undisputedly a cheque for sale consideration of Rs.3,00,000/- and cheque of Rs.1,00,000/- was given by the respondent - plaintiff to the appellant - defendant and the cheque was not encashed by the appellant - defendant. The notice was issued and in reply to the notice, for the first time the appellant - defendant has come with the case that the cheque has been returned to the respondent - plaintiff. However, in the entire findings of the trial Court, as well as, the first appellate Court, no evidence to that effect has been found on record by both the Courts. The readiness and willingness is also duly proved as held by both the Courts as the notice was given by the respondent - plaintiff. There was balance in the account of the respondent - plaintiff as per the pass-book, which is on record. No case has been made-out by

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the appellant - defendant as regarding the returning of the cheque and no earnest amount being received by him till the notice to perform the contract has been given by the respondent - plaintiff. Neither any complaint regarding fraud has been filed by the appellant - defendant nor any proceedings regarding cancellation of the agreement to sell has been done by the appellant - defendant from the execution to agreement to sell till the notice received by him. As such the conduct of the appellant - defendant is doubtful rather than the conduct of the respondent - plaintiff. The respondent - plaintiff has immediately filed the suit after receiving the reply of the notice for specific performance. No inordinate delay has taken place, wherein escalation of price at that time can be seen. On the contrary, the conduct of the appellant - defendant indicates regarding the denial of the performance of contract giving escalation of price.

9. As made-out by the learned Courts below, it is rightly observed and found that the respondent - plaintiff was having a right of specific performance in his favour. He is ready and willing to perform his part of contract. Rs.1,00,000/- as being paid towards the earnest money by the respondent - plaintiff and the time of performance of the contract was two years whereas the appellant - defendant not being able to prove regarding return of cheque to the respondent - plaintiff or the appellant - defendant has not received any earnest money and it is also not able to prove that the agreement was cancelled.

10. Hence, this Court does not find any error of law to interfere with the concurrent findings of the learned Courts

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below in exercise of the powers under Section 100 of the Code of Civil Procedure as the jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal.

11. The scope of Second Appeal under Section 100 is limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of law. High Court can interfere with the concurrent findings of fact, if the findings are perverse but the perversity should be apparent on the face of record.

12. Here in this appeal, the question of law raised cannot be said to be substantial question of law and there are question of law but not the substantial question of law.

13. In the case of Easwari Versus Parvathi and others,. reported in (2014) 15 SCC 255, it is held that the High Court can entertain a Second Appeal on a substantial question of law and it has absolutely no jurisdiction to entertain the Second Appeal on the ground of erroneous findings of fact, however, gross error seems to be looked into. The High Court can interfere in the concurrent findings of facts in the Second Appeal if the appellate Court has not properly appreciated the evidence on record.

14. In the case of Samina Khatun, AIR 1995 Gauhati 104, also it is held that the High Court can only entertain Second Appeal only on substantial question of law. The High Court has absolutely no jurisdiction to entertain Second

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Appeal on the ground of erroneous findings of fact.

15. As laid down in the case of State of Haryana Versus Khalsa Motors Limited, reported in (1990) 4 SCC 659, on the basis of evidence on record it is held that the trial court and first appellate court has given concurrent findings of facts and the High Court cannot reverse the said findings under ordinary circumstances.

16. In the case of C.Doddanarayana Reddy & Ors. Vs. C. Jayarama Reddy & Ors., reported in (2020) 4 SCC 659, the Hon'ble Apex Court has observed and held as under :-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High

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Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

                13.      In     Ramanuja             Naidu         v.      V.
                Kanniah Naidu (1996 3 SCC 392),
                this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC

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must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

15. And again in Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC

484), this Court held: (SCC p. 486, para 5) "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors.9, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High

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Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the 9 (1999) 3 SCC 722 court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding

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on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned.

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To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question 10 (2001) 3SCC 179 of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that

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it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving

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Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two 11 (2019) 8 SCC 637 courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred.

Resultantly, no substantial question of law arose for consideration before the High Court.

17. In the recent decision in the Case of Kapil Kumar Vs. Raj Kumar reported in (2022) 10 SCC 281, the Hon'ble Apex Court has observed and held as under :-

"10. At the outset, it is required to be noted that as such there were concurrent findings of facts recorded by the learned trial court as well as the learned first appellate court on execution of pronote by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the findings recorded by the courts

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below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under section 100 CPC.

11. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. From the impugned judgement and order passed by the High Court, it appears that as such no specific substantial question of law seems to have been framed by the High Court.

                   However,     it    appears             that   what      was
                   considered        by      the      High       Court     was

whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence."

18. Under the circumstances, nothing is available on record which can be favourable to the appellant - defendant and thus, this Court does not find any substance in the present appeal and the same is devoid of any merits, both on facts and in law, and hence the same is dismissed at admission stage.

19. In view of the dismissal of the main Second Appeal, the connected Civil Application No.1 of 2022 stands rejected.

Sd/-

(RAJENDRA M. SAREEN, J.) AMAR RATHOD...