: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.895 OF 2009 ALONGWITH CIVIL APPLICATION NO.1502 OF 2009 IN FIRST APPEAL NO.895 OF 2009 Prabhu Parshwa Associates .. Appellants V/s. Suresh Vishwanath Bajare .. Respondent Mr. R.D. Soni i/b. M/s. Ram & Co. for the Appellants. Mr. Nitin Jamdar for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATED : 18 TH SEPTEMBER, 2009. P.C.: 1. The First Appeal has been filed against the judgment and decree dated 14th June, 2007 of the 10th Joint Civil Judge, Senior Division, Pune in Special Civil Suit No.1520 of 2006. The suit has been filed by the plaintiff, i.e. the respondent herein, for specific performance of the agreement of sale executed by the defendants, i.e. the appellants herein, in favour of the plaintiff. : 2 : 2. By consent, the First Appeal is taken up for final hearing at the stage of admission itself. 3. The trial court has decreed the suit in favour of the plaintiff and has directed the defendants to execute the sale deed in respect of the suit shop described in para 1 of the plaint. The trial court has directed the plaintiff to pay the balance consideration to the defendants before the sale deed is executed. 4. The defendants have filed the present First Appeal contending that they had not received the writ of summons from the trial court. According to them, they had no notice at all about the suit having been filed against them and, therefore, they had not defended the suit. Mr. Soni appearing for the defendants, i.e. the appellants herein, submits that the trial court has observed that the writ of summons was sent to the defendants by R.P.A.D. However the endorsement of the postal authorities indicate that the appellants had not claimed it. Mr. Soni points out the fact that the defendants : 3 : had not claimed the writ of summons would not necessarily mean that they have refused it. He relies on the judgment of a learned Single Judge of this court in the case of Lalmani Ramnath Tiwari vs. Bhimrao Govind Pawar, reported in 2001 (3) Bom.C.R. 21, in support of his submissions. 5. Mr. Soni also makes a grievance about the decision of the trial court on merits. He submits that no issues have been framed, nor is there any indication that the trial court has considered whether the plaintiff was, in fact, ready and willing to perform his part of the contract. He submits that in fact the plaintiff had applied for a loan which had not been sanctioned till the filing of the suit and, therefore, it would not mean that the plaintiff was ready and willing to perform his part of the contract. 6. Mr. Jamdar appearing for the plaintiff, i.e. the respondent herein, submits that after the amendment to the CPC, it is not necessary that the postal authorities should be examined in court to : 4 : indicate as to whether the endorsement “not claimed” had been affixed because the addresee had refused the packet. He submits that the judgment of A.M. Khanwilkar, J. in the case of Lalmani Ramnath Tiwari (supra) considers the position as it was prior to the amendment of the CPC in 1999 and, therefore, according to him this judgment will not be applicable to the facts and circumstances in the present case. 7. Mr. Jamdar also relies on the judgment of a learned Single Judge of this court in the case of P.A. Kowli vs. Narayan Jagannath Mahale, reported in 1981 Bom. R.C. 164. In view of the provisions of Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), the learned Single Judge observed that the endorsement “not claimed” would mean that the letter was refused. 8. Having heard the learned Counsel for the parties, in my opinion, the judgment impugned must be set aside. In the case of Lalmani Ramnath Tiwari : 5 : (supra), Khanwilkar, J. has distinguished between the two concepts of “not claimed” and “refused” and has held, after culling out the law from various decisions, that service of a notice allegedly sent by “Registered Post” and/or by “Under Certificate of Posting” must be proved. Merely because there is a noting that the letter is “not claimed”, it would not necessarily mean that the letter has been refused. 9. The learned Judge has relied on a judgment of this court in the case of Hajrabi Abdul Gani vs. Abdul Latif Azizulla & Anr., reported in AIR 1996 Bom. 192, besides other judgments. 10. In the present case, the only factor which is considered by the learned Judge while deciding the suit ex-parte was that there was an endorsement of the postal authorities that the defendants had not claimed the writ of summons. There is no discussion by the learned Judge regarding the other issues as to whether the plaintiff was ready and willing to perform his part of the contract and as to whether : 6 : he was willing to pay the balance amount. Taking these factors into consideration, in my opinion, the judgment and order of the trial court must be set aside and the matter must be remanded for a fresh hearing. 11. Accordingly, the judgment and decree dated 14th June, 2007 of the 10th Joint Civil Judge, Senior Division, Pune in Special Civil Suit No.1520 of 2006, is set aside. The suit is remanded for a fresh hearing on merits. 12. The suit shall be disposed of within a period of six months from today. 13. During the pendency of the suit, the defendants, i.e. the appellants herein, shall not part with possession of the suit property and/or create any third party rights and/or alienate/transfer the suit property as mentioned in para 1 of the plaint. : 7 : 14. The parties shall appear before the trial court on 5th October, 2009. 15. Writ to be sent down to the lower court forthwith. 16. In view of the above, Civil Application No.1502 of 2009 pending in the First Appeal does not survive and the same is disposed of accordingly. .......