Madhya Pradesh High Court
Shyamsundar Somani vs Jayprakash Somani on 28 June, 2022
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 28th OF JUNE, 2022
SECOND APPEAL No. 1066 of 2022
Between:-
1. SHYAMSUNDAR SOMANI S/O SHRI
SHANKARLAL SOMANI , AGED ABOUT 63
Y E A R S , OCCUPATION: BUSINESS R/O
MAHATAMA GANDHI MARG ALIRAJPUR
(MADHYA PRADESH)
2. AASHISH SOMANI S/O SHYAMSUNDAR SOMANI
, AGED ABOUT 44 YEARS, OCCUPATION:
BUSINESS MAHATAMA GANDHI MARG,
ALIRAJPUR DIST ALIRAJPUR (MADHYA
PRADESH)
3. NIRMAL SOMANI S/O SHYAMSUNDAR SOMANI
, AGED ABOUT 42 YEARS, OCCUPATION:
BUSINESS MAHATAMA GANDHI MARG,
ALIRAJPUR DIST ALIRAJPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI PRATEEK MAHESHWARI- ADVOCATE)
AND
JAYPRAKASH SOMANI S/O MITHALAL SHAH ,
AGED ABOUT 66 YEARS, MAHATAMA GANDHI
MARG (MADHYA PRADESH)
.....RESPONDENTS
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Signature Not VerifiedDigitally signed by
SAN SOURABH YADAV
Heard on the question of admission.
Date: 2022.06.30
17:42:37 IST
The present appeal is filed by the defendants against the judgment and
decree dated 19.01.2022 passed by the Principal Judge, Alirajpur in Regular
Civil Appeal No.01-B/21, whereby the Appellate Court has dismissed the
appeal and affirmed the judgment and decree passed by the First Civil Judge,
Alirajpur whereby, the suit filed by the respondent/plaintiff of recovery of the
amount has been decreed alongwith interest.
The respondent/plaintiff filed a suit for recovery of Rs.3,00,000/- from
the appellant herein alongwith interest @ 15% inter-alia alleging that the same
was given by the plaintiff to the defendants/appellants herein in pursuance of an
agreement to sale a property. It has been alleged that the appellants and the
plaintiffs were neighbours and were having good relations. The appellant
no.1/defendant no.1 was doing a business of property broking in addition to
doing business. The appellant no.2/defendant no.2 and the appellant
no.3/defendant no.3 are the sons of the defendant no.1 and they live together
and doing the business.
It is further pleaded that about two and half years before filling of the
plaint, the appellant no.1 approached the plaintiff/respondent stating that he had
purchased a property near Don Bosco School and was planning to develop the
same and if the plaintiff wants he can purchase a plot in the said land. It has
been alleged that the plaintiff alongwith one person Bansilal Sonawane saw the
location and an oral agreement was entered to purchase a plot having width 14
ft 6 inches and length 40 ft 6 inches for the sum of Rs.15,00,000/-.
It has been further alleged in the plaint that in pursuance of the aforesaid
plot of land, a cheque bearing 15848 dated 12.11.2014 of Rs.60,000/- was
issued by the plaintiff in favour of the appellant no.1/defendant no.1 and an
Signature Not VerifiedDigitally signed by
SAN SOURABH YADAV
Date: 2022.06.30
17:42:37 IST
amount of Rs.40,000/- was allegedly given in cash on the same day. It has been
further stated in the plaint that subsequently on 12.12.2014, the appellant no.3
went to the plaintiff and asked for another Rs.2,00,000/- citing urgent need in
the light of hospitalization of the appellant no.1 in Baroda and and allegedly, an
amount of Rs.1,00,000/- was withdrawn in cash from bank account and case of
Rs.1,00,000/- was taken from the cash available at the shop and paid to the
appellant no.3 with an understanding that the same would amount to payment
towards purchase of aforesaid plot. The said amount was given by the plaintiff
to the appellant no.2 and 3 in the presence of Bansilal. No receipt of the said
amount was issued and agreement to sale was also not executed. The
appellants/defendants filed their written statement denying the allegations of the
plaint except admitted in the said written statement that advance of Rs.60,000/-
was paid vide cheque dated 12.11.2014 from the joint account of the plaintiff.
No other amount has been received by the defendants and Banshilal was sham
and prepared witness being a person to the plaintiff. The Trial Court decreed
the suit directing the appellants/defendants to make payment of Rs.3,00,000/-
with interest of 6%. Being aggrieved by the said decree, the appellants filed first
appeal under section 96 of the CPC before the Additional District Judge, which
has been dismissed and the decree of the Civil Court were affirmed.
Learned counsel for the appellant submits that the findings recorded by
the Courts below are contrary to the record and the plaintiff has failed to prove
that Rs.1,00,000/- from the bank account and Rs.1,00,000/- from the shop was
paid to the appellant nos.2 and 3. The plaintiff has failed to adduce any
documentary evidence to show the aforesaid payment to the appellants.
Upon perusal of the record and the order of the trial Court, it is evident
Signature Not VerifiedDigitally signed by
SAN SOURABH YADAV
that the issue no.1 regarding payment of Rs.2,40,000/- by the plaintiff to the
Date: 2022.06.30
17:42:37 IST
appellants has been found to be proved. The Courts below have appreciated
the evidence of PW No.1 Jaiprakash Shah and PW No.3 Varsha and PW No.4
Bansilal who have deposed before the Court that the amount of Rs.2,00,000/- in
cash was paid to the appellant nos.2 and 3 in their presence. Apart from that,
the plaintiff has also filed copy of the account Exb.P/5(C) and Exb.P/2 to prove
that the amount of cash was withdrawn from the bank. The relevant part of the
finding of the trial Court on appreciation of oral and documentary evidence is
reproduced as under :-
"10 vc iz'u ;g gS fd D;k fnukad 12-12-2014 dks oknh }kjk izfroknh dz-03
fueZy dks :i;s 2]00][email protected]& ¼nks yk[k½ izfroknh dza 01 ds bZykt gsrq
iznku fd;s x;s Fks vFkok ugha fd;s x;saA t;izdk'k 'kkg ¼ok-lk-&01½ us
vius 'kiFk dFku ds iSjk&04 esa ;g O;Dr fd;k gS fd fnukad 12-12-2014 dks
izfroknh dz- 03 fueZy eq> oknh t;izdk'k ds ikl vk;k Fkk vkSj cksyk Fkk fd
mlds firk ';kelqanj izfroknh dza 01 chekj gksus ls pSdvi rFkk bZykt ds
fy;s cM+kSnk vLirky esa HkrhZ gS rFkk mUgsa bZykt ds fy;s :i;ksa dh vko';drk
gSA blfy;s IykWV dh fder :i;s 2]00][email protected]& ¼nks yk[k½ iSVs eq>s ns nsaA
rc oknh us rRdky ca'khyky firk rksrkjke lksuokM+s ds lkFk tkdj ,sDlhl cSad
ds vius [kkrs dz- 15852 ls :i;k 1]00][email protected]& ¼,d yk[k½ fudyokdj
rFkk 1]00][email protected]& ¼,d yk[k½ :i;k vius diM+s dh nqdku ls fudky dj
ca'khyky firk rksrkjke lksuokMs us izfroknhx.k ds ?kj tkdj izfroknh dz- 02 o
03 dks iznku fd;k FkkA izfrijh{k.k esa Hkh mDRk lk{kh vius dFkuksa ij vVy
jgkA mDr rF; dk leFkZu lk{kh o"kkZ ¼ok-lk-&03ý ca'khyky lksuokM+s
¼ok-lk-&04½ us Hkh fd;k gS] izfrijh{k.k esa Hkh mDr nksuks lk{kh vius bl
dFkuksa ij vVy jgs fd muds le{k izfroknh dz- 02 o 03 dks oknh us
2]00][email protected]& ¼nks yk[k½ :i;s fn;s FksA mDRk rF; dk leFkZu bl rF; ls
Hkh gksrk gS fd oknh }kjks fudkys x;s Fksa] ,oa t;izdk'k 'kkg ds vdkmWV dh
lR;kfir lR;izfrfyfi izn'kZ ih&05 dh QksVks dkWih izn'kZ ih&05 lh Hkh ;g
ize kf.kr djrh gS fd mDr fnukad dks oknh }kjk vius [kkrs ls ;g jkf'k
fudkyh x;h FkhA blds vfrfjDr oknh }kjk izLrqr jksdM+ cgh izn'kZ ih&02 o
mldh izfrfyfi izn'kZ ih&02 lh ds voyksdu ls rFkk oknh ds [kkrs ds cSad
LVsVesaV dk voyksdu djus ls Hkh mDr rF; dk leiks"k.k gksrk gS fd fnukad
12-12-2014 dks lsYQ pSd dz- 015852 ds }kjk 1]00][email protected]& ¼,d yk[k½
:i;s o 1]00][email protected]& ¼,d yk[k½ :i;s uxn viuh flYyd esa ls izfroknh
dz- 02 o 03 dks fn;s x;s FksA ;g rdZ dh oknh dks tc izfroknhx.k }kjk IykWV
ls lacaf/kr nLrkost o jlhn bR;kfn iznku ugh fd;s x;s FksA rc Hkh oknh us
iqu% izfroknhx.k dks jkf'k D;ksa iznku dh dk fujkdj.k ;g gS fd mHk;i{k yacs
le; ls iM+kSlh gS rFkk ,slh ifjfLFkfr esa vDlj ,d nqljs dh lgk;rk djrs
gSA izfroknh dz- 01 us vius izfrijh{k.k esa Lo;a ;g Lohdkj fd;k gS fd og
bZykt ds fy;s cM+kSnk esa HkrhZ gksrk jgrk gSA izfroknhx.k dk ;g rdZ fd jksdM+
cgh esa izfroknh dz- ';kelqanj dks iSls fn;s tkus fy[kk gqvk gS tcfd oknh }kjk
izfroknh dz- 02 o 03 dks /ku jkf'k fn;k tkuk O;Dr fd;k gS] ekU; ugha gS
D;ksafd izfroknhx.k ,d gh ifjokj ds lnL; gS rFkk oknh }kjk ;g Li"V fd;k
x;k gS fd mlds }kjk iSls izfroknh dz- 01 ds bZykt gsrq iznku fd;s x;s Fks
vr% jksdM+ cgh izn'kZ ih&02 esa izfroknh dz- 01 dk uke gksus ls jksdM+ cgh dh
lR;rk ij vfo'okl ugha fd;k tk ldrkA izdj.k esa oknh }kjk t;s'k ¼ok-lk-
Signature Not VerifiedDigitally signed by
SAN SOURABH YADAV
Date: 2022.06.30
&02½ ds dFku Hkh djok, gSA fdUrq lk{kh ,d vuqJqr lk{kh gS mlus
17:42:37 IST izfrijh{k.k esa Loa; Lohdkj fd;k gS fd mlds le{k iSlksa dh dksbZ ysu nsu ugha
gqbZ gSA vr% mlds dFkuksa ij fopkj fd;k tkuk vuqfpr gSA vr% mDRk foospuk
ds vk/kkj ij ;g rF; Hkh vf/klEHkkoukvksa dh izcyrk ds vk/kkj ij ize kf.kr gS
fd fnukad 12-12-2014 dks oknh }kjk izfroknh dz- 02 o 03 dks 2]00][email protected]&
¼nks yk[k½ iznku fd;s x;s FksA "
I do not find any perversity in the findings recorded by both the Courts
below. Both the courts below have appreciated the oral and documentary
evidence.
It is well settled law that the concurrent findings of fact of the trial Court
and first appellate Court cannot be interfered with by the High Court in exercise
of its jurisdiction under Section 100 of the CPC, unless findings are perverse.
Relying on the judgments passed by the Apex Court in the cases of Deity
Pattabhiramaswamy Vs. S.Hanymayya and Others, AIR 1959 SCC 57
(Para 13) ; The Dollar Company, Madras Vs. Collector of Madras, (1975)
2 SCC 730 (Para 4) ; Dudhnath Pandey Vs. Suresh Chandra Bhattasali
(1986) 3 SCC 360; Jahejo Devi Vs. Moharam Ali, (1988) 1 SCC 6 372;
Kamladevi Budhia Vs. Hem Prabha Ganguli; (1989) 3 SCC 145;
P.Velayudhan Vs. Kurungot Imbichia Moidu's, (1990) Supp. SCC 9; and
Ramanuja Naidu Vs. V. Kanniah Naidu and another, (1996) 3 SCC 392 ,
and the judgment of this Court rendered in the case of Rajesh Vs.
Rajkunwar, (2016) 1 MPLJ 132, this Court is of considered opinion, that as
the judgment of the trial Court is based upon purely finding of facts which have
been affirmed by the first appellate Court. Besides, no substantial question of
law is involved in the instant appeal, hence question of interference by this
Court does not arise.
In view of the foregoing analysis, the instant appeal being sans
merit, is dismissed. No order as to costs.
Signature Not VerifiedDigitally signed by
SAN SOURABH YADAV
Date: 2022.06.30
17:42:37 IST
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOURABH YADAV
Date: 2022.06.30
17:42:37 IST
