Gujarat High Court
The Manager , Junagadh Nagarik Sah. Bank ... vs Goganbhai Parbatbhai Bariya on 30 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 266 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 266 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER sd/-
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Approved for Reporting Yes No
✔
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THE MANAGER , JUNAGADH NAGARIK SAH. BANK LTD. & ANR.
Versus
GOGANBHAI PARBATBHAI BARIYA & ORS.
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Appearance:
MR JR SHAH(762) for the Appellant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 30/09/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the
Code of Civil Procedure, 1908 (for short "the Code")
challenging the judgment and decree, dated 01.03.2025,
passed by the Principal District Judge, Junagadh in Regular
Civil Appeal No.28 of 2023 which has confirmed the
judgment and decree dated 19.12.2022, passed by the 2 nd
Additional Senior Civil Judge, Junagadh, in Special Civil Suit
No.11 of 2012.
2. For the sake of brevity and convenience, the parties are
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referred to as per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are that
the plaintiff filed Suit for specific performance of the contract.
It was the case of the plaintiff that a partnership firm Raghav
Industries, while obtaining a loan from defendant no.1, had
provided various properties as security and as defendant nos.3
to 5, failed to repay the loan amount, recovery proceedings
were initiated against the suit property, and defendant no.3, on
behalf of the partnership firm, executed a power of attorney in
favor of the manager of defendant no.1, granting full rights to
sell the land.
4. Thereafter, defendant no.1 had invited tenders for the sale of
the land on 19.11.2005, and the plaintiff submitted a proposal
to purchase 21 Bighas of land at the rate of Rs.3,21,000/- per
Bigha and forwarded a cheque of Rs.10 lakhs in favor of
defendant no.1, which was accepted and deposited. An
agreement to sell was executed on 23.11.2005. Thereafter, as
defendants did not execute the sale deed in favor of the
plaintiff, the plaintiff filed a suit for specific performance after
taking into consideration the facts the Trial Court framed
issues, Vide Exhibit 36 as under:
"(1) Whether the plaintiff proves that he is
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ready and willing to pay the remaining
amount of compensation?
(2) Whether this Court has jurisdiction to
hear the present suit under Section 166
read with Section 96 of the Gujarat
Cooperative Societies Act?
(3) Whether the plaintiff is entitled for the
relief as sought in the suit?
(4) What order and decree?"
5. The plaintiff examined himself vide Exhibit 44. The witnesses
of the plaintiff were examined vide Exhibits 74 and 96. The
defendant did not enter the witness box and after considering
the oral evidence, documentary evidence, and giving findings
on all the issues, the Trial Court partly allowed the suit and
declared that defendant no.1 to repay the earnest money
amount of Rs.10 lakhs, with interest at the rate of 6% from the
date the amount has been deposited by the plaintiff with
defendant no.1. Aggrieved by the said judgment, the defendant
no.1 filed Regular Civil Appeal No.28 of 2023, and the First
Appellate Court dismissed the said appeal and confirmed the
judgment and decree passed by the Trial Court in Special Civil
Suit No.11 of 2012, hence, the present Second Appeal.
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6. Learned advocate for the defendant has argued that, if the
documents produced with the plaint are taken into
consideration, more particularly, the document produced vide
Exhibit 49, dated 28.09.2011, it can be clearly established that
the defendant no.1-Bank had specifically informed the plaintiff
that defendant no.1 was ready and willing to refund the said
amount of Rs.10 lakhs, but the plaintiff had not taken any
steps to recover the said amount. The fact remains that, as the
power of attorney given by defendant no.3 had been cancelled,
defendant no.1 could not have executed the sale deed in favor
of the plaintiff, and therefore, defendant no.1 was always
ready and willing to refund the said amount of Rs.10 lakhs to
the plaintiff and the Trial Court could not have granted interest
at the rate of 6% on the said amount of Rs.10 lakhs when
defendant no.1 had already informed the plaintiff, before the
plaintiff had filed the suit, that defendant no.1 was ready and
willing to refund the said amount of Rs.10 lakhs. Therefore,
the Trial Court could not have granted interest at the rate of
6% on the said amount. Therefore, the present Second Appeal
is required to be admitted on the following substantial question
of law.:
"(i) Whether the appellate court has
materially erred in not considering the
provision of section 96 of the Co-
Operative Societies' Act while deciding the
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issue about the jurisdiction of the civil
court.?
(ii) Whether the learned appellate court
has committed an error in not properly
considering section 167 of the Co-
Operative Societies' Act in view of the fact
that admittedly the appellant bank is a
registered under the Co-Operative
Societies' Act and therefore before filing
the suit it is necessary to give notice under
section 167 of the Co-Operative Societies'
Act.
(iii) Whether the learned Appellate court
has committed an error in not framing the
issue of limitation though the learned trial
judge has committed an error in not
framing the said issue and in the memo of
appellate, appellants has raised such
ground and therefore it was necessary on
the part of the learned appellate court to
frame such issue.
(iv) Whether the learned Appellate court
has committed an error in not considering
the provision of law while answering issue
of limitation?.
(v) Whether the learned Appellate Court
has committed an error in confirming the
judgment of the learned trail judge in
awarding the interest at the rate of 6%.?"
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7. Having heard the advocate for the defendant no.1, the fact
remains that, though, it is the case of defendant no.1 that
defendant no.1, had agreed to refund the amount of Rs.10
lakhs to the plaintiff, but at the same time, the defendant no.1
could have deposited the said amount in the Court on the date
of filing the suit. If the said letter produced vide Exhibit 49 is
taken into consideration, the fact remains that the said letter
produced vide Exhibit 49, is dated 28.09.2011 and the suit that
has been filed is filed in the year 2012. The fact also remains
that the amount of Rs.10 lakhs had been deposited with the
bank and it is on the date when the said amount has been
deposited by the plaintiff, the amount was lying with
defendant no.1.
8. Therefore, while awarding interest at the rate of 6%, the Court
has taken into consideration the fact that the amount was lying
with the Bank, and the interest awarded is 6%, is an
appropriate interest on the amount of Rs.10,00,000/- which
was lying with the bank. Therefore, The present Second
Appeal is required to be dismissed.
9. It is required to be noted that in Second Appeal, the scope is
very limited and the Court cannot re-appreciate the evidence.
In the case of Navaneethammal v. Arjuna Chetty reported in
1996 (6) SCC 177, the Hon'ble Apex Court has observed as
under:-
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"11. This Court, time without number, pointed out
that interference with the concurrent findings of
the courts below by the High Court under Section
100 CPC must be avoided unless warranted by
compelling reasons. In any case, the High Court is
not expected to reappreciate the evidence just to
replace the findings of the lower courts."
10. In the case of Jaichand (Dead) through Lrs and Other
v. Sahnulal and Another reported in 2024 SCC OnLine SC
3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100
CPC, the High Court cannot interfere with the
findings of fact arrived at by the first Appellate
Court which is the final Court of facts except in
such cases where such findings were erroneous
being contrary to the mandatory provisions of
law, or its settled position on the basis of the
pronouncement made by the Apex Court or
based upon inadmissible evidence or without
evidence."
11. Under the circumstances, this Second Appeal is
devoid of any substantial question of law. Both the learned
Trial Court and first appellate Court have rightly decided
the issue between the parties in the right perspective and as
stated above no substantial question of law arises in the
present appeal. The appellants have failed to prove their
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case before the learned trial Court as well as before the first
appellate Court. This Court does not find any substance in
the present Second Appeal as the same is devoid of any
merit both on facts and law and the same is dismissed at
admission stage.
In view of the disposal of the main matter, the connected
Civil Application does not survive and the same is
accordingly disposed of.
(SANJEEV J.THAKER,J)
URIL RANA
