1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 387 OF 2008 SECOND APPEAL NO. 387 OF 2008 SECOND APPEAL NO. 387 OF 2008 Mrs. Sushila Pannalal Goyal & Anr. ..Appellants (Orig. Plaintiffs) Vs. M/s. Sham Gandhi Construction Co. & Anr..Respondents (Orig.defendant) Mr.P.P.Goyal, Advocate, for the appellants. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE : 17th September,2008. DATE : 17th September,2008. DATE : 17th September,2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the appellants. 2. The appellant No.1 is the wife of the appellant No.2. The appellant No.2 was a tenant in the old building. That building was demolished for the purpose of re-development by the respondent. The appellant No.2 surrendered his tenancy over the shop in the old building. According to appellants, it was agreed that the respondent/bulder would sell a shop admeasuring 540 2 sq. ft. in the name of the appellant No.1 for consideration of Rs.81,000/-. However, in the initial agreement, area of the shop to be sold was only 330 sq. ft. The cheque of Rs.81,000/- was issued by appellants in favour of the respondent. The cheque was dishonoured. Therefore, the respondent filed Special Civil Suit No.297 of 1995 for recovery of that amount with interest. The present appellant filed Special Civil Suit No.1337 of 1995, which was later on converted into Regular Civil Suit No.5150 of 2000, for specific performance of the contract. According to them, the defendant/respondent should be directed to execute the contract for remaining 210 sq. ft. area in favour of the appellants and put them in possession of the same. 3. The suit was contested by the respondent. According to him,there was no such contract for sale of 540 sq. ft. and that he had handed over possession as per the contract. The suit filed by the defendant/respondent was decreed. The First and Second Appeals filed by the present appellants against that judgment were also dismissed. Even the Special Leave Petition filed by the appellants against the decree passed in that suit was dismissed. The suit filed by the appellants for specific performance of contract in respect of remaining 210 sq. ft. area was also 3 dismissed. It was noted that in the suit filed by the respondent for recovery of the amount of Rs.81,000/- the present appellant had taken the same plea as a counter-claim and that counter-claim was dismissed and in view of that, the finding in that suit would operate as a res judicata against the present appellant. The trial Court also came to conclusion that the appellant had failed to prove that there was an agreement to sell a shop admeasuring 540 sq. ft. or to sell 210 sq. ft. area in addition to the shop admeasuring 330 sq. ft. Against dismissal of the suit, the plaintiff preferred Civil Appeal No.750 of 2005. That appeal was also dismissed. Therefore, the appellants have preferred the present Second Appeal. 5. From the facts noted above, it is clear that the Courts below came to conclusion that there was no document to show that there was an agreement to sell 540 sq. ft. area. Admittedly, the written agreement reveals area of 330 sq. ft. only and not more than that. In view of this and the concurrent finding of fact by the Courts below, I do not find any substantial question of law involved in the present Appeal. 6. Therefore, the Appeal stands dismissed. 4 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)