Telangana High Court
M/S Silamkot Finance Private Limited vs Nagari Pandusa on 22 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.224 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 10.04.2023, passed by the II Additional District
Judge, Sanga Reddy, in AS.No.81 of 2018, whereunder and
whereby the judgment and decree dated 02.06.2016 passed by the
Senior Civil Judge, Sangareddy, dismissing the suit in O.S.No.337
of 2006, was confirmed.
2. The appellant is the plaintiff and the respondents are the
defendants in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The factual matrix of the case, in brief, which led to filing of
the Second Appeal is that the plaintiff-company has been
incorporated under the Companies Act and duly registered on
25.11.1997 before the Registrar of Companies. Its object apart
from others is to purchase movable and immovable properties of
any kind. In that course of business, the plaintiff-company
purchased the suit schedule property under a registered sale deed
dated 13.08.1999 for a sale consideration of Rs.3,11,000/-.
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4. Defendant Nos.1 and 2, who are some of the Directors of the
plaintiff-company, with a dishonest intention hatched a plan to
convert the plaintiff-company's assets into their personal
properties, fabricated a Board meeting resolution dated 14.07.2004,
where the plaintiff-company is said to have given an authorization
to them to sell the suit schedule property for consideration of
Rs.3,51,000/- and accordingly, defendant Nos.1 and 2 transferred
the suit schedule for property in the names of defendant Nos.3 to 5,
who are their relatives, under a registered sale deed dated
29.11.2004. Thereafter, in the year 2005, defendant Nos.3 to 5, in
collusion with defendant Nos.1 and 2, have transferred the suit
schedule property in the names defendant Nos.6 to 9, who are also
their relatives, through a registered sale deed dated 09.03.2005 for
a consideration of Rs.3,70,500/-. The plaintiff-company does not
have any knowledge about the said transactions, but as per its
knowledge, no consideration has been passed under the above said
registered sale deeds.
4.1. Having come to know about the fraud played by defendant
Nos.1 and 2 in selling the plaintiff-company lands, one Sri Ratan
Jawahar Shah, who is one of the Directors of the plaintiff-
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company, called for a meeting of Board of Directors on 12.11.2006
to discuss about functioning of the plaintiff-company, the
properties held by it and their appreciation value. The plaintiff
served personal notice to all the twelve Directors of the plaintiff-
company fixing the Agenda for meeting. All the Directors received
the said notice except defendant Nos.1 and 2 who refused to take
notice and did not attend the said Board meeting. In the said Board
meeting, it was discussed and found that defendant Nos.1 and 2, in
collusion and in conspiracy with defendant Nos.3 to 9, have
committed/criminal breach of trust and thereby, cheated the
plaintiff-company for their personal gains causing wrongful loss to
the plaintiff- company.
4.2. That being so, defendant Nos.6 to 9 have got the suit
schedule property partitioned through a registered partition deed
vide document No.25990/2006 with an ulterior motive and further,
cheated the plaintiff-company. As such, the plaintiff-company
passed resolution on the same day authorizing-Ratan Jawahar Shah
to initiate appropriate civil and criminal actions against defendant
Nos.1 and 2 as the aforesaid acts done by them are against the
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interest of plaintiff-company. Hence, the present suit is filed for the
following reliefs.
"(1) For a decree of declaration that the partition deed
bearing Document No.25990/2006 dated 08.11.2006
registered before the Sub-Registrar, Sangareddy,
Medak District, be null and void.
(2) For a decree to set aside registered sale deed
bearing No.13104/2004 dated 29.11.2004 executed by
defendant Nos.1 and 2 by way of a consequential relief.
(3) For a decree to set aside the registered sale deed
bearing No.2654/2005 dated 09.03.2005 executed by
the defendant Nos.3 to 5 by way of consequential relief
and
(4) For costs of the suit."
5. Defendant Nos.1 and 2 filed their detailed written statement
denying each and every allegation made in the plaint and inter alia
contended that as per the Board resolution dated 14.07.2004, which
was scribed by N.Shyam, S/o Late Narsing Rao, defendant Nos.1
and 2 were authorized to negotiate and sell the only property of the
plaintiff-company i.e., suit schedule property. The said Resolution
was signed by eight Directors which is evident from the Minutes
book. The said Resolution dated 14.07.2004 was within the
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knowledge of all the Directors including Ratan Jawahar Shah, but
they neither disputed nor challenged the said resolution. After
about four months, defendant Nos.3 to 5 came forward to purchase
the land for a sale consideration of Rs.3,51,000/- and the entire sale
proceeds were credited into the account of the plaintiff-company.
Ratan Jawahar Shah was also aware of the aforesaid facts and
subsequently, the sale proceeds were disbursed among the
Directors/Investors.
5.1. As per the Board Resolution passed by the majority of
members, four Directors of the plaintiff-company viz., N.Pandusa,
Omkari Dattatri, T.Ramesh and Katighar Ramulu were authorized
to deal, negotiate or issue cheques for the benefit of the plaintiff-
company. Out of four Directors, any two Directors can sign on
cheque or negotiate or issue cheques in favour of anybody. After
receipt of the sale consideration amount, T.Ramesh and N.Pandusa
issued cheques in favour of N.Shyam, Yashwantharao Chavan,
Omkari Dattatri, K.Ramulu, D.Ashok and N.Surender. Apart from
them, defendant No.1-N.Pandusa and T.Ramesh also received an
amount of Rs.30,000/- each and put their signatures.
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5.2. The amount was encashed and the same was paid by way
of cash as per the desire of the remaining Board of Directors.
Therefore, it is most unfair on the part of Ratan Jawahar Shah to
dispute the sale deed executed by defendant Nos.1 and 2 in favour
of defendant Nos.3 to 5. In 2006, the rise in the values of
agricultural lands made Ratan Jawahar Shah to turn dishonest and
file a suit by manipulating the alleged Board meeting said to have
been conducted in his house. The company registered office is
some thing different and no reason is given for change of venue.
The alleged meeting that is held in the house of Ratan Jawahar
Shah is only a private affair and he cannot assume any authority to
file a suit refusing the sale made by the plaintiff-company. As this
is a dispute regarding the actions of the Board of Directors and/or
about the resolutions, this matter can only be decided by the
authority appointed under the Companies Act and this court has no
jurisdiction to decide the issue involved in this case under Section
10 of the Companies Act.
5.3. It was further averred that the income Tax Department
came to the premises of defendant No.1 and seized all the valuable
records including the Minutes book of the plaintiff-company. On
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obtaining certified copies of the documents from the Income Tax
Department, defendant No.1 filed the said documents i.e., certified
copies of the meetings conducted on 10.07.2004 and 12.07.2004
and the Resolution dated 14.07.2004. Hence, they contended that
the suit is devoid of merits and is liable to be dismissed.
6. Defendant Nos.3 to 5 also filed their detailed written
statement denying each and every allegation made in the plaint and
inter alia contended defendant Nos.1 and 2 made lot of efforts to
search purchasers to sell the suit schedule property of the plaintiff-
company in order to avoid payment of interest to the investors, as
there is no source of income arising out of the suit schedule
property and they waited for more than four months and that Ratan
Jawahar Shah is well aware of the said fact. Further, as none came
forward to purchase the suit schedule property, ultimately,
defendant Nos.3 to 5 came forward and purchased the said property
through registered sale deed dated 29.11.2004 and paid
consideration by way of Pay Orders in favour of the plaintiff-
company and the same was utilized by the Directors. All the said
facts are quite evident from the records.
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6.1. It was further stated that defendant Nos.3 and 4 are
business men and are income tax assessees. Similarly, defendant
No.5 and her husband are having separate businesses and
defendant No.5 is also an income tax assessee. Accordingly, to
show bonafides they have paid the sale consideration by way of
Pay Orders in favour of the plaintiff-company at the time of
execution of registered sale deed on 29.11.2004.
6.2. It was further averred that as there was no income arising
out of the suit schedule property, defendant Nos.3 to 5 sold the
same in favour of defendant Nos.6 to 9 by executing registered sale
deed dated 09.03.2005 and received the sale consideration amount.
Thus, defendants 6 to 9, who are bonafide purchasers, are in
exclusive possession and enjoyment of the suit schedule property.
6.3. It was further averred that since there was a land boom
recently, the market value of the suit land has been increased and
as such, Ratan Jawahar Shah has developed dishonest intention and
fictitious meeting alleged to have been conducted by him on
12.11.2006 was brought into existence for the purpose of the case
and only to harass defendant Nos.3 to 5 and thereby, to extract
money from them. Hence, they prayed to dismiss the suit.
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7. Defendant No.6 filed his written statement denying each and
every allegation made in the plaint and inter alia contended that he
purchased the 1/4th share of the suit schedule property for a
valuable consideration of Rs.92,625/-, which is reflected in his
Income Tax returns. It was further stated that the other defendants
and their predecessors-in-title had been in continuous and
uninterrupted possession of the suit schedule property successively.
Upon execution of partition deed, dated 08.11.2006, defendant
No.6 has been allotted land admeasuring Ac.0-19.5 guntas which is
clearly demarcated by metes and bounds and he has been in
peaceful and exclusive possession of the same.
7.1. In any case, the title, ownership and possession of
defendant No.6 over his share in the suit schedule property cannot
be defeated on mere allegation that sale consideration has not been
received by one of its predecessors-in-title. The vendor under any
document cannot seek cancellation of the document, but can only
sue for recovery of the alleged un-paid sale consideration.
7.2. It was further stated that Ratan Jawahar Shah did not raise
any protest or objection to the transaction all these years.
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7.3. It was further stated that a perusal of registered sale deed
bearing document No.13104/2004 dated 29.11.2004 would reveal
that an amount of Rs.3,51,000/- has been paid to the plaintiff-
company by way of three separate cheques and the receipt thereof
was admitted by the company. Accordingly, defendant No.6 prayed
to dismiss the suit.
8. Defendant Nos.7 to 9 filed their common written statement
denying each and every allegation made in the plaint and inter alia
contended that defendant Nos.3 to 5, who are the bonafide
purchasers of the suit schedule property, under registered sale deed
dated 29.11.2004 by paying the sale consideration amount to the
plaintiff-company, came forward to sell the suit schedule property
and accordingly, defendant Nos.6 to 9, who are business men, and
having independent source of income and are income tax assesses,
purchased the property from defendant Nos.3 to 5 under a
registered sale deed dated 09.03.2005 for valuable sale
consideration and that since the date of purchase, defendant Nos.6
to 9 are in exclusive possession and enjoyment of the suit land.
8.1. It was further averred that Ratan Jawahar Shah has
knowledge about the Resolution passed by the Board of Directors
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dated 14.07.2004 and he is also well aware of the fact of sale of the
suit schedule property to defendants 3 to 5 by defendant Nos.1 and
2. Hence, he has no right to seek cancellation of any of the
registered sale deeds.
8.2. It was further stated that certain differences arose between
defendant Nos.6 to 9 and hence, they decided to get partition of the
suit schedule property. Accordingly, the partition deed was reduced
into writing and was got registered on 08.11.2006 and defendant
Nos.6 to 9 are in exclusive possession and enjoyment of their
respective shares. Therefore, Ratan Jawahar Shah has no right to
question or seek cancellation of partition deed dated 08.11.2006.
Thus, he prayed to dismiss the suit in limini.
9. Based on the aforesaid pleadings, the trial Court framed the
following issues for trial:-
"1.Whether the plaintiff is entitled for cancellation of
Registered partition deed dated 08.11.2006?
2. Whether the plaintiff is entitled for cancellation of
registered sale deed dated 29.11.2004?
3. Whether the plaintiff is entitled for the cancellation
of registered sale deed dated 09.03.2005?
4. To what relief?"
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10. To substantiate the case, on behalf of the plaintiff, Ratan
Jawahar was examined as PW1, one K.Shanker Rao was examined
as PW2 and Exs.A1 to A10 were marked. On behalf of the
defendants, defendant No.1 was examined as DW1, one Nagari
Shyam was examined as DW2, one Omkari Dattatreya was
examined as DW3, defendant No.4 was examined as DW4 and
defendant No.6 was examined as DW.5 and Exs.B-1 to B-8 were
marked.
11. The trial Court, upon considering the oral and documentary
evidence and the contentions of both the parties, dismissed the suit
vide judgment dated 02.06.2016. The trial Court quoting the
provisions of law i.e., Section 34 of the Specific Relief Act and the
proviso thereto and Order II Rule 2 and Sub-Rules-(2) and (3) of
Rule 2 CPC observed that the plaintiff could have asked for the
relief of declaration that the resolution dated 14.07.2004 as null
and void and it does not bind the plaintiff-company. Though, such
relief is available to be sought for, the plaintiff had omitted to seek
such relief which is fatal to its case.
12. The trial Court further held that as per Article-19 of the
Articles of Association, a general meeting of the company may be
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called by Board by giving notice in writing not less than seven
days. The notice dated 07.11.2006 (marked as Ex.A-2) is said to
have been issued to all Directors for attending the meeting on
12.11.2006. Thus, it is evident that no clear seven days notice was
served on the Directors for attending the meeting and as such, the
notice becomes invalid and consequently, the meeting held on
12.11.2006 also becomes invalid. Therefore, the resolution that
was passed by the plaintiff-company on 12.11.2006 authorizing
Ratan Jawahar Shah to file the suit seeking cancellation of the sale
deeds and partition deed, etc., cannot be said to be valid and hence,
the suit is not maintainable.
12.1. The trial Court further observed that as no relief is sought
for in the plaint to the effect that the very resolution dated
14.07.2004 is not legally valid and not binding on the company and
hence, the sales that were made by defendant Nos.1 and 2 under
Ex.A-7 is not at all valid, no issue was framed in that regard and no
finding was given. The trial Court further held that without there
being any such finding, it cannot straight away jump to decide the
validity of the sale deeds and partition deed and adjudicate as to
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whether the same is binding on the plaintiff-company or not. By
observing thus, the trial Court dismissed the suit.
13. On appeal, the first Appellate Court, being the final fact-
finding Court, re-appreciated the entire evidence and the material
available on record and dismissed the appeal vide judgment dated
10.04.2023.
13.1. The first Appellate Court observed as under:-
"The plaintiff company was having full knowledge with
regard to the resolution dated 14-07-2004. But, the
plaintiff company did not sought for declaration of the
said resolution, dated 14-07-2004, as it is fabricated
resolution. Without asking for such relief, the suit filed by
the plaintiff company is not maintainable.
Thus, without such relief by the plaintiff company,
the court cannot decide the genuineness or otherwise of
the resolution dated 14- 07-2004. When such relief is not
sought for by the plaintiff company, it has no right to seek
cancellation of the sale deeds under Exs.A6 to A8, as (sic
and) also Ex.A9, partition deed, particularly, the
consequential relief to declare the sale deed executed by
defendant Nos.1 and 2, as void is not correct."
13.2. The first Appellate Court further observed as hereunder:-
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"In order to establish, that the registered documents
under Exs.A7 and A8, are invalid and, therefore, Ex.A9 is
to be cancelled, the plaintiff company has to establish that
the resolution, dated 14-07-2004, is a fabricated one. The
pleading of the defendants is that there is a board meeting
on 14-07-2004, and a resolution was passed for alienating
the properties of the plaintiff company. Thus, on perusal
of the issues framed before the trial court, go to show that
there is no specific issue as to whether the resolution,
dated 14.07.2004, is valid or not, which is the basis of
the case. Without the said issue, the plaintiff cannot
establish that Exs.A7 and A8 are invalid and consequently
cannot seek cancellation of Ex.A9. The reliefs sought for
by the plaintiff company is only a consequential. Thus,
unless and until the plaintiff company seeks a direction
that the resolution dated 14.07.2004, as invalid, it cannot
seek for the cancellation of Exs.A7 to A9.
Order II Rule 2 of the Code, provides that without
praying for a relief, which is ought to have been asked,
when not asked, cannot be granted and the consequently
relief cannot be granted, without granting the main
relief."
13.3. The first Appellate Court further held as under:-
"The plaintiff company is not in existence as it was
removed from the ROC in the year 2018 itself. Thus, the
plaintiff is prosecuting the case in the name of dead
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company. Even, the plaintiff did not dispute with regard to
non existence of plaintiff-company and thereby, failed to
explain how the appeal filed by it is maintainable. The
defendants filed memo before this court, in the month of
December 2020, to the effect that as per the ROC record,
public notice was issued on 20.09.2017, the plaintiff
company name was removed from ROC record and the
plaintiff company is not in existence.
The plaintiff is representing as director of the
plaintiff company. The appeal is not filed in his individual
capacity. When the plaintiff-company is not in existence,
as per the record produced by the defendants before this
court, the appeal filed by the plaintiff company is not
maintainable, as Rathan Jawahar Shah has no locus-
stand to represent on behalf of the plaintiff company."
14. As regards the additional grounds of the appeal by the
plaintiff with regard to the fraud alleged to have been played by the
defendants in selling the property of the plaintiff company, the first
Appellate Court observed as under:-
"The pleading of the plaintiff is only with regard to the
resolution dated 14-07-2004, as fabricated and there is no
whisper in the plaint filed by the plaintiff-company with
regard to the fraud or particulars of the fraud played by
the defendants. Therefore, it is not open to the plaintiff to
urge before this court, that fraud is played by the
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defendants, as it is to be specifically pleaded and proved
with cogent evidence. In the absence of it, the plea taken
by the plaintiff, as additional grounds, that fraud is played
is liable to the discarded."
15. By observing as above, the first Appellate Court ultimately
held as under:-
"Therefore, in view of the foregoing discussion, the
grounds of appeal, the evidence of the defendants and the
documentary evidence produced before the trial court by
them under Exs.B1 to B-8, the version of PWs 1 and 2 and
Exs.A1 to A10 are of no help to the plaintiff, as there is no
fraud played by the defendants and the same is not
pleaded and proved before the trial Court in the case; that
there is no specific issue as to whether the resolution,
dated 14.07.2004 is valid or not, which is the basis of the
case, and without the said issue, the plaintiff cannot
establish that Exs.A7 and A8 are invalid and consequently
cannot seek for cancellation of Ex.A9, and that therefore
this Court is of the opinion that that the plaintiff has failed
to establish that it is entitled for grant of the relief, as
prayed for."
16. Based on the pleadings of both the parties, the following
substantial questions of law arise for consideration in this Second
Appeal:-
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"(1)Whether the first Appellate Court is right in ignoring
the law laid down by the Hon'ble Supreme Court when
the element of fraud is involved?
(2) Whether the first Appellate Court is right in ignoring
the various facets of fraud as explained by the Hon'ble
Supreme Court in catena of decisions more particularly
that "fraud avoids all judicial acts" and "fraud unravels
everything" and several rulings to this effect?
(3) Whether the first Appellate Court is right in refusing
to receive additional evidence under Order XLI Rule 27
Code of Civil Procedure, ignoring the specific ruling of
the Hon'ble Supreme Court in Sanjay Kumar Singh &
Case ((2022) 7 SCC 247) in a case of this nature?
(4) Whether the first Appellate Court is right in rejecting
the application under Order XIV Rules 1, 3 & 5 read with
Sec. 107(1)(c) Code of Civil Procedure to frame
additional issues without exercising its power in a
correct perspective?
(5) Whether the first Appellate Court is right in relying on
and referring to a non-existing authorization for holding
that the suit is not maintainable on the ground the said
authorization was not challenged?
(6) Whether the first Appellate Court is right in dismissing
the appeal and rejecting the relief merely by holding that
the relief sought for in the suit is only consequential to a
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non-existing authorisation and that the said non-existing
authorization was unchallenged?
17. Learned counsel for appellant vehemently argued that the
trial Court decreed the suit without proper appreciation of the
evidence and the first Appellate Court also committed an error in
confirming the judgment and decree passed by the trial Court.
18. Learned counsel for the appellant contended that the trial
Court as well as the first Appellate Court miserably failed in
appreciating various grounds of appeal urged on behalf of the
appellant as regards the fraud played by the defendants. In this
regard, learned counsel for the appellant relied upon the following
judgments:-
(1) Dr. Vimla Vs. Delhi Administration 1
(2) S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath
(dead) by Lrs and others 2
(3) Ram Chandra Singh Vs. Savitri Devi and others 3
(4) Ram Kumar Vs. State of Uttar Pradesh and others 4
1963 Supp (2) SCR 585
(1994) 1 SCC 1
(2003) 8 SCC 319
2022 SCC OnLine SC 1312
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(5) Shrisht Dhawan Vs. M/s Shaw Brothers 5
(6) Munjal Showa Ltd Vs. Commissioner of Customs and
Central Excise (Delhi-IV) 6
(7) Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd 7
(8) State of AP and another Vs. T.Suryachandra Rao 8
(9) Santosh Vs. Jagat Ram and another 9
(10)Badami (deceased) by her LR Vs. Bhali 10
(11) Ram Preeth Yadav Vs. U.P.Board of High School and
Intermediate Education and others 11
Substantial Question Nos.1 and 2:-
19. This Court has carefully gone through the aforesaid
judgments relied upon by the learned counsel for the appellant.
There is no quarrel with regard to the proposition/ratio held by
catena of judgments of Hon'ble Supreme Court that fraud and
collusion vitiates every solemn act and it also amounts to abuse of
(1992) 1 SCC 534
2022 SCC OnLine SC 1296
(1996) 5 SCC 550
(2005) 6 SCC 149
(2010) 3 SCC 251
(2012) 11 SCC 574
(2003) 8 SCC 311
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process of Courts and the Court have inherent power to set aside an
order obtained by fraud.
20. In the instant case, in the plaint, the plaintiff-company
except pleading that the Board resolution dated 14.07.2004 is
fabricated did not chose to adduce any material particulars with
regard to the said aspect nor there is any whisper in the plaint with
regard to the fraud played by the defendants. Only before the first
Appellate Court the plaintiff-company has taken the alleged fraud
said to have been played by the defendant as additional ground.
However, the first Appellate Court having observed that there is no
whisper in plaint as regards the fraud, particularly the fraud played
by the defendants, which is to be specifically pleaded and proved
with cogent evidence, did not entertain/consider the additional
ground of fraud, which in the considered view of this court
warrants no interference in the absence of specific pleading and
factual foundation to that effect.
21. Further, the facts and circumstances of the case in the
aforesaid judgments relied upon by the learned counsel for the
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appellant are distinguishable with the facts of the instant case and
hence, are not applicable to the present case.
22. In fact, the judgments of the Hon'ble Apex Court in
S.P.Chengalvaraya Naidu's case (supra), Indian Bank's case
(supra), T.Suryachandra Rao's case (supra) relate to the inherent
power of the Courts to recall the order/judgment if the same is
found to have been obtained by fraud/forgery or in cases, where the
order was obtained by non-discloure of the true facts, as the same
amounts to abuse of process of Court. However, the facts of the
present case are otherwise. In fact, in the present case, the plaintiff
never pleaded that the defendant played fraud on the Court.
Therefore, the said judgments are of no aid to the plaintiff-
company. Thus, the questions are answered accordingly.
Substantial Question No.3:-
23. A perusal of the documents sought to be taken on record by
the appellant would reveal that those pertains to the notices of
demand and Penalty order issued by the Income Tax Department
with regard to some financial irregularities alleged to have been
committed by the erstwhile Directors of the company.
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24. In considered opinion of this Court, the core issue involved
in this case is with regard to the alienation of properties of the
company. Therefore, the documents sought to be received as
additional evidence are neither related nor relevant for adjudication
of the present Appeal and the issue/s in the lis. Thus, this question
is answered against the appellant.
Substantial Question No.4:-
25. The trial Court has framed four issues basing on the
pleadings of both the parties. The appellant has not taken steps for
framing of additional issue under Order XIV CPC, at the first
instance before the trial Court. It is only before the first Appellate
Court that the appellant filed an application to frame additional
issue. Having not been diligent before the trial Court insofar as the
framing of additional issue is concerned, it is not open for the
appellant to agitate the said aspect before the first Appellate Court.
Also, had the request for framing of the additional issues been
sought before the trial Court and if the same was accepted, both the
parties would have got an opportunity to adduce evidence in that
regard and the trial Court also would have got the advantage of
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appreciating the said evidence while adjudicating the suit. But,
admittedly, the appellant failed to do so before the trial Court.
Accordingly, this question is answered against the appellant.
Substantial Question Nos.5 and 6:-
26. Learned counsel for the appellant contended that the
observation of the first Appellate Court that as Board resolution
dated 14.07.2004 remained unchallenged, the consequential deeds
i.e., Exs.A-7 to A-9 cannot be challenged is untenable and to
buttress his contention he relied upon the following judgments of
the Hon'ble Apex Court:-
(1) Shaik Munni Vs. M/s Jagan Mohan Salt Industries,
Calingapatnam and others 12
(2) Bachhaj Nahar Vs. Nilima Mandal and another 13
(3) Ajay Vs. Mrunali Prabhakar Gadgil and others 14
27. In Bachhaj Nahar's case (supra), the Hon'ble Apex Court
held that without pleading and an opportunity of hearing to
2002 SCC OnLine AP 930
(2008) 17 SCC 491
2014 SCC OnLine Bom 1078
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defendant, no amount of evidence can be looked into to grant any
relief.
28. Applying the said ratio, it is to be noted that in the case on
hand, the plaintiff-company failed to plead the ground of fraud
alleged to have been played by the defendants in the plaint and no
evidence was adduced in that regard before the trial Court and only
at the stage of first appeal, the said ground of fraud was sought to
be raised as an additional ground. Therefore, the trial Court and
first Appellate Court have rightly held that without seeking to
cancel the Board Resolution, dated 14.07.2006, which authorized
defendant Nos.1 and 2 to deal with the suit schedule property of the
plaintiff-company, the relief sought with regard to cancellation of
the subsequent transactions, i.e., the registered sale deeds which
emerged as a consequence of the authorization given in the said
Board Resolution, is invalid and hence, the same cannot be
granted. Therefore, this finding of the trial Court as well as first
Appellate Court does not call for interference by this Court. Thus,
both the questions are answered against the appellant.
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29. Further, it is well settled principle by a catena of decisions of
the Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
30. Further, in Gurdev Kaur v. Kaki 15, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fell for
consideration.
31. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C.
32. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
(2007) 1 Supreme Court Cases 546
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33. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:22.04.2024
dr
