1 Civil Appln. NO. 1093.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 1093 OF 2010 IN FIRST APPEAL NO.124 OF 2010 Mahendra Natthubhai Patel ...APPLICANT. VERSUS Bashirbhai S/o Muddubahi Shaikh and others. ...RESPONDENTS. ... Shri.Y.S.Choudhari, Advocate for Applicant. Shri.V.D.Hon,Advocate for Respondent No.1 Shri.N.D.Sonwane,Advocate for respondent No.2. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 27TH AUGUST, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. This Civil Application is preferred by original defendant No.1-appellant for staying Judgment and decree dated 18th November 2009 passed by the Civil Judge, Senior Division, Kopargaon, in Special Civil Suit No. 78 of 2006. 2 Civil Appln. NO. 1093.10 FEW FACTS OF THE MATTER ARE AS UNDER: 3. Respondent No.1-original plaintiff filed Special Civil Suit No. 78 of 2006 in the Court of Civil Judge, Senior Division, Kopargaon for specific performance of agreement to sell dated 5th April, 2005. It is the case of the plaintiff that defendant NO.1 executed agreement to sell dated 5th April, 2005, at Shirdi in respect of non agricultural plot situated at Shirdi Tq. Rahta, District Ahmednagar bearing Survey No. 114-12 (Old 114-3B+4A/2) admeasuring 00.05 Ares. It is stated in the agreement to sell that the suit property described herein above is known under the name and style as “Baroda Guest House, Shirdi”. The said property is owned by Mahendra Natubhai Patel, Bhoj Raja Pujari, Harishbhai Natubhai Patel, Pravinbhai Natubhai Patel. 4. The appellant-Ori. defendant No.1, at the time of executing agreement to sell stated that he will bring permission of other three owners for execution of the sale deed. Para Nos. 5 and 6 of 3 Civil Appln. NO. 1093.10 the agreement to sell read as under: “5. That the property described above is known under the the name and style as “Baroda Guest House, Shirdi”. The said property is owned by Mahendra Natubhai Patel, Bhoj Raja Pujari, Harishbhai Natubhai Patel, Pravinbhai Natubhai Patel. That no any registration of partnership or any other sort is made at any authorities.” “6.That the above Vendor assures that he will bring permission of other three owners for the execution of sale deed. That the Vendor is today accepting the earnest money for and on behalf of all the owners of the said property. After said permission the sale deed is to be executed within fifteen days from the intimation of the same to the Vendee.” 5. Respondent No.1, time and again, called upon the applicant to execute sale deed in respect of the suit property. As he failed to do so, he issued legal notice dated 29th July, 2006 to original defendants calling upon them to execute the sale deed in respect of the suit property. He states in his legal notice that he is ready and willing to pay balance amount of consideration. 4 Civil Appln. NO. 1093.10 6. The applicant-Original defendant No.1 by his reply dated 10th August 2006 admitted execution of agreement for sale, but he denied to execute the sale deed for various reasons. 7. As the applicant failed to execute sale deed in respect of the suit property, respondent No.1-Ori.Plaintiff filed Special Civil Suit No.78 of 2006 in the Court of Civil Judge, Senior Division, Kopargaon, for specific performance of agreement to sell dated 5th April, 2005. Prayer clauses of the suit read as under: “A] The defendants be directed to execute the sale Deed of suit property described in column No.2 of the suit. B] The defendants be directed to confirm the possession of the plaintiff and alternatively handover it on account of sale Deed in favour and possession of the present plaintiff. C] The defendants be directed to execute the Sale Deed in favour of the plaintiff. If defendants fail to execute the sale deed the sale deed be executed by the order and 5 Civil Appln. NO. 1093.10 at the hands of Court Commissioner. D] Costs and expenses of the proceedings be granted to plaintiff. E] If on any count the Sale Deed and order to execute the sale deed become ineffective the amount of Rs. 1,51,000/- with interest @ Rs. 20% be directed to return the plaintiff. F] The just and proper order as and when required be granted in favour of plaintiff. G] Till the disposal of suit the defendants be restrained from alienating the property to any of the third person.” 8. The applicant filed his written statement dated 13th December, 2006 admitting execution of agreement to sell in respect of the suit property, but denied other allegations. The respondent nos 2 to 7-Original defendants No.2 to 7 filed their admission pursis dated 8th September, 2005. In the said pursis they admitted execution of agreement to sell dated 5th April, 2005 in respect of the suit property and also admitted receipt of earnest 6 Civil Appln. NO. 1093.10 money of Rs. 1,51,000/-(Rupees one lakh Fifty One Thousand) each. They showed their willingness to execute the sale deed in respect of the suit property, on receipt of remaining consideration. 9. Considering the submissions of original defendants, the trial Court recorded findings that the applicant admitted execution of agreement to sell in favour of respondent No.1 and receipt of earnest money, but denied other allegations. The trial Court also recorded that other defendants i.e. defendant Nos. 2 to 7 in their joint written statement at Exh.13 admitted execution of agreement to sell and receipt of earnest money and also shown their readiness and willingness to execute the sale deed in favour of respondent No. 1, on receipt of remaining amount. 10. On these facts and circumstances, the trial Court passed the decree in favour of respondent No.1 and directed the applicant and respondent Nos. 2 to 7 to execute the sale deed of 7 Civil Appln. NO. 1093.10 the suit property in favour of respondent No.1. Operative part of the said decree reads as under. “1] Suit is decreed with costs. 2] All the defendants should execute sale deed of the suit property S. No. 114/12(Old S. No. 114/3B+4A/2) Adm.0.05 R situated at Shirdi more particularly described in para No. 2 of the plaint and deliver it’s possession to the plaintiff, by accepting balance consideration amount from the plaintiff. 3] Plaintiff should deposit balance consideration amount in the Court within one month from today. 4] The balance consideration amount deposited in the Court be paid 1/4th each to the defendant No.1, defendant No.6, Defendant No.7 and ¼ to L.Rs. of Bhoj Raja Pujari i.e. defendant Nos 2 to 5.” 11. Being aggrieved by the Judgment and decree dated 18th November, 2009 passed by the Civil Judge, Senior Division, Kopargaon in Special Civil Suit No. 78 of 2006, the applicant/Original defendant No.1 preferred above mentioned First Appeal in this Court mainly on the ground that the 8 Civil Appln. NO. 1093.10 trial Court erred in coming to the conclusion that respondent Nos. 2 to 7 are also entitled to share in remaining consideration. 12. Mr. Choudhary, learned counsel appearing on behalf of the applicant submits that respondent Nos. 2 to 7 are not owners of the suit property and they failed to prove the same; therefore, the trial Court erred in coming to the conclusion that they are entitled to share in remaining consideration of the suit property. He submits that the trial Court has not taken into consideration that the suit filed by the respondent No.1 in collusion with other respondents to defeat the applicant’s claim as a sole owner. 13. He further submits that the trial Court has not taken into consideration that the respondent Nos. 2 to 7 are claiming their shares in consideration, on the basis of revenue entries in 7/12 extract, but in fact names of respondent 9 Civil Appln. NO. 1093.10 Nos. 2 to 7 were deleted long back before 14 years by way of mutation entry No. 8240 in R.T.S. No. 366 of 1988. 14. He further submits that the trial Court has not taken into consideration the names of respondent Nos. 2 to 7 are taken back in the revenue record without knowledge of the applicant and that too without any notice to the applicant. Therefore, respondent Nos. 2 to 7 are not entitled for any consideration in respect of the suit property. 15. The learned counsel appearing on behalf of respondent Nos. 2 to 7 submits that they are ready and willing to execute the sale deed in favour of respondent NO.1, on receipt of their share in the consideration. 16. The learned counsel appearing on behalf of respondent No.1 states that the applicant had agreed to sell the suit plot by executing 10 Civil Appln. NO. 1093.10 agreement to sell dated 5th April, 2005 for consideration of Rs. 27,51,000/-(Rupees Twenty Seven Lakhs Fifty one Thousand). As per terms and conditions of the agreement to sell, he paid sum of Rs. 1,51,000/-(Rupees One Lakh Fifty One Thousand) to the applicant and in similar way to the respondent Nos 2 to 7. He further submits that the applicant agreed to obtain necessary permission from respondent Nos. 2 to 7 for executing sale deed. 17. The applicant had not executed sale deed as agreed and therefore on 29th July, 2006 respondent No.1 issued notice to the applicant and other owners calling upon them to execute sale deed in his favour. He also stated in the said notice that he was always ready and willing to perform his part of obligation, as per the agreement to sell. The said notice was replied by the applicant on 10th August, 2006 and raised several objections but admitted execution of agreement to sell of the suit property in favour of the respondent No.1. 11 Civil Appln. NO. 1093.10 18. The learned counsel appearing on behalf of respondent no.1 further submits that as the applicant failed and neglected to perform his part of contract, as per agreement to sell, therefore, he filed suit in the Trial Court. In the said suit, applicant filed his written statement at Exh.35 and admitted execution of agreement to sell in favour of respondent No.1 and admitted acceptance of earnest money of Rs. 1,51,000/- (Rupees One Lakh Fifty One thousand). 19. The learned counsel further submits that the trial Court decreed the suit and directed the applicant and respondent Nos. 2 to 7 to execute the sale deed in favour of respondent No.1. The trial Court further directed the respondent No.1 to deposit balance consideration amount in the Court within one month from the date of order. Pursuant to the said order of trial Court, respondent No.1 deposited sum of Rs. 21,47,000/- (Rupees Twenty One Lakh Forty Seven Thousand) in the trial Court on 12th January, 2010. In support 12 Civil Appln. NO. 1093.10 of this contention, he annexed the copy of receipt issued by the trial Court at Exhibit R-1 to his reply dated 16th March, 2010. 20. The learned counsel appearing on behalf of the respondent No.1 submits that as the applicant as well as respondent Nos. 2 to 7 admitted before the trial Court that they have no objection to execute sale deed in favour of respondent No.1, in that case, there is no question of granting any stay to the impugned judgment and decree passed by the trial Court. 21. He further submits that as per order passed by the trial Court, the respondent No.1 already deposited sum of Rs. 21,47,000/-(Rupees Twenty One Lakh Forty Seven Thousand) in the trial Court. He further submits that there is dispute between the applicant and respondent Nos. 2 to 7 about distribution of balance consideration. Therefore, there is no question of staying entire decree of trial Court. 13 Civil Appln. NO. 1093.10 22. He further submits that it is crystal clear from Appeal Memo of First Appeal filed by the applicant that his main contention is about entitlement of balance consideration and not execution of the sale deed in favour of respondent NO.1. 23. He further submits that because of dispute between the applicant and respondent Nos. 2 to 7 he should not suffer because he has already deposited balance consideration of Rs. 21,47,000/- (Rupees Twenty One Lakh Forty Seven Thousand) in the trial Court. On these submissions, the learned counsel appearing on behalf of the respondent No.1 submits that this Hon’ble Court be pleased to dismiss the above mentioned Civil Application in toto. 24. In the alternative, he further submits that if this Hon’ble Court come to the conclusion that the applicant is entitled to stay to the impugned judgment and order passed by the trial 14 Civil Appln. NO. 1093.10 Court, in that case, stay should be granted only limited to the extent of distribution of balance consideration of amount between the applicant and respondent Nos. 2 to 7 and not for execution of sale deed in his favour. 25. We have heard respective counsel for the parties at length. We have perused the record and proceedings of trial Court. After going through the record and proceedings of trial Court and judgment and decree passed by the trial Court dated 18th November, 2009, it is crystal clear that the applicant and respondent Nos. 2 to 7 categorically admitted execution of agreement to sell dated 5th April, 2005. They also admitted receipt of earnest money. 26. The respondent Nos. 2 to 7 filed admission pursis dated 8th September, 2006 before the trial Court stating that, “All the defendants do not have any objection to decree the suit in terms 15 Civil Appln. NO. 1093.10 of prayer except the prayer clause No. D and interest of amount of consideration. The claim of the plaintiff is admitted. Defendant Nos 6 & 7 received Rs. 1,51,000/- each against the consideration of the above agreement of sale. The defendant No.6 received the Demand Draft of Rs.1,51,000/- Andra Bank Branch Shirdi D.D.No.62368 dated on 08/09/2006. The defendant No. 7 received the Demand Draft of Rs. 1,51,000/- Andra Bank, Branch Shirdi D.D.No. 62367 dated on 08.09.2006 against the consideration of the above agreement of sale.” 27. After going through the record and proceedings of trial court, impugned judgment and decree, we are of the opinion that the applicant and respondent Nos. 2 to 7 are disputing about entitlement of the balance consideration amount which is deposited by the respondent No.1 in the trial Court. Neither the applicant nor respondent Nos. 2 to 7 denied execution of agreement to sell 16 Civil Appln. NO. 1093.10 in favour of respondent No.1. Even after going through the grounds raised by the applicant in the present appeal, it is clear that mainly he is disputing entitlement of the respondent Nos. 2 to 7 to the balance consideration mentioned in the agreement to sell dated 5th April, 2005. 28. In view of above mentioned facts and circumstances, we are of the opinion that it is not necessary to grant blanket stay in the present Civil Application to the impugned judgment and order passed by the trial Court on 18th November, 2007. 29. As there is dispute between the applicant and respondent Nos. 2 to 7 about distribution of balance consideration, the impugned judgment and decree dated 18th November, 2009 passed by the Civil Judge, Senior Division, Kopargaon, in Special Civil Suit No. 78 of 2006 is stayed to the extent of balance consideration amount deposited in the Court to be paid 1/4th each to the defendant 17 Civil Appln. NO. 1093.10 No.1, Defendant No.6, Defendant No.7 and 1/4th to L. Rs. of Bhoj Raja Pujari i.e. Defendant Nos. 2 to 5. 30. We further direct the trial Court to invest the amount deposited by respondent No.1 in any Nationalized Bank initially for a period of three years and renew the same till hearing and final disposal of the present First Appeal. We pass following order: Order i] The impugned order passed by the learned Civil Judge Senior Division at Kopargaon, dated 18.11.2009 in Special Civil Suit No. 78 of 2006 is stayed to the extent of clause No. 4 of the order, which reads as under: “The Balance consideration amount deposited in the Court be paid 1/4th each to the defendant No.1, Defendant No.6, Defendant No.7 and 1/4th to L.Rs. of Bhoj Raja Pujari i.e. Defendant Nos 2 to 5.” 18 Civil Appln. NO. 1093.10 ii] The trial Court is directed to invest the amount deposited by respondent No.1 initially for a period of three years in any Nationalized Bank and renew the same till final hearing and disposal of the First Appeal. . The Civil application is disposed of accordingly. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK