1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 8 OF 2009 1. Shri Joao Joaquim Filipe Alfonso R/o. Fatorda, H. No.223, Margao-Goa. 2. Smt. Lawry Crasto Alfonso R/o. Fatorda, H. No.223, Margao-Goa. ... Appellants versus Shri Pradeep Gajanan Naik, Partner of M/s. United Builders, Room No.2A, II Floor, Antoneta mansion, V.V. Road, Margao-Goa. ... Respondent Shri S. R. Rivonkar, Advocate for the appellants. Shri H. D. Naik, Advocate for the respondent. Coram: SMT. R. P. SONDURBALDOTA, J. Date : 7TH OCTOBER, 2011. ORAL ORDER This second appeal challenges the concurrent findings of facts and law of the courts below on the ground that the same are 2 perverse inasmuch as they are not supported by the pleadings of the parties and the evidence produced by them during the trial. The orders impugned herein are the judgment and order dated 20th December, 2002 of the trial Court dismissing the suit filed by the appellants and the judgment and order dated 5th January, 2007 of the first appellate Court dismissing the appeal. 2. The suit filed by the appellants was for injunction simpliciter in the following terms:- “For judgement, order and decree of injunction, restraining the defendant, their family members, agents and labourers from carrying on any construction work and constructing any illegal structures in the suit property and from dealing in any manner with third parties for the purpose of agreement of sale or sale deeds of any shops or flats which are under construction”. The pleadings made in the plaint in support of the relief are that the appellants are the owners of a property admeasuring 2321 sq. meters situated at Fatorda, Margao, surveyed under Chalta No.24 of P.T. Sheet No.42. By the agreement of sale dated 19th August, 1987 the appellants sold a portion of the property 3 admeasuring 650 sq. meters to the respondent. The consideration for the sale was to repay the loan of the appellants of Rs.1,50,659.85p with interest accrued thereon to the Margao Urban Co-operative Bank and to allot a shop admeasuring 25 sq. meters built up area, free of cost within a period of one year from the date of signing of the agreement. The appellants allege that the respondent not only failed to repay the loan to the Bank on his behalf but also failed to hand over possession of the shop completely constructed, within the time stipulated. The appellants then terminated agreement of sale vide notice dated 8th March, 1991. Thereafter on 27th May, 1993 the appellants executed deed of revocation of power of attorney given to the respondent and issued public notice in a newspaper on 4th June, 1993. In the same month i.e. June, 1993 the appellants filed the suit herein against the respondent seeking permanent injunction in above mentioned terms. The acts imputed to respondent which constitute cause of action to file the suit alleged at para 8 of the plaint read as follows: “That notwithstanding the total failure of complying with the said agreement, the above named defendant is insistent on interfering with the suit property, 4 completing the building and selling the shops and flats to third parties, without any right or authority”. Further averments at para 10 of the plaint are:- “That the cause of action arose on 26th of May, 1993, when the above named plaintiff received for the first time a fabricated invoice of payment of house tax from 1.4.1993 to 31.3.1994 from the Margao Municipal Council, which was found to be the invoice of payment of tax for a garage which does not exist. In fact it was given to understand to the above named plaintiffs that the said invoice was made at the instance of the above named defendant, only to make it appear that the said garage was given in possession of the plaintiff, though no garage whatsoever comes within any clause of the agreement for sale annexed hereto”. 3. A glance at the plaint is sufficient to show that the allegations made against the respondent are absolutely vague. The averments at para 8 of the plaint are devoid of necessary particulars. The act of interferences alleged is insistence upon completing construction of the building and selling the shops and flats to third parties. For the first act of interference of insistence with completing the construction it was incumbent upon the appellants to set out in the plaint the extent of construction carried out by the defendant as on the date of filing of the suit and the specific activity 5 undertaken by the respondent for completion of construction. The fact that the respondent was carrying on construction under an agreement of sale would mean that he was in physical possession of the property agreed to be sold to him. The plaint does not disclose that at any point of time after termination of the agreement of sale physical possession of the property was returned to the appellants. The second act of interference, of selling the premises in the building is also vague inasmuch as it does not give particulars of any sale done after termination of the contract. 4. The respondent in his written statement claimed that he had paid the entire outstanding loan with interest on behalf of the appellants to Madgaum Urban Co-operative Bank during the period 1988 to 1989 and that the loan account of the appellants was closed by the Bank. As regards the construction, according to him, the same was commenced in January, 1988 and was completed even before the date of notice of the termination of the agreement of sale. In fact, Margao Municipal Council by its letter dated 26th April, 1991 had granted Occupancy Certificate for the construction 6 consisting of three shops and one garage on the ground floor of the building. According to the respondent, he had offered possession of a shop to the appellants who refused to take possession of the same. Thereafter, they received notice for payment of house tax from Margao Municipal Council. Along with the written statement the respondent raised a counter-claim seeking directions to the appellants to execute power of attorney in his favour, refund of the loan amount of Rs.80,000/- allegedly taken by the appellants from him and for damages. 5. The evidence on behalf of the appellants was of appellant no.2 who in her deposition claimed that the respondent had repaid the loan only to the extent of Rs.80,000/-. She claimed that the balance amount of Rs.70,000/- was paid by the appellants. She however was unable to produce any documentary evidence in support of the claim of payment by the appellants. As regards the construction evidence of appellant no.2 was that the area of the shop given by the respondent to the appellants was less than 21 sq. meters. According to her, the area was got measured by her through 7 her Advocate Shri Barreto. She further admitted that three of the shops put up by the respondent are provided with shutters including her shop. 6. The trial Court on appreciation of the evidence led by the parties held that the appellants had failed to establish that the consideration under the agreement was not received by the appellants. It also, inter alia, held that the agreement of sale between the parties does not stand terminated and that there was no interference with the suit property as alleged by the appellants. The trial Court dismissed the suit as well as the counter-claim. Thereafter, the first appellate Court considered the entire evidence as also the pleadings and dismissed the appeal preferred by the appellants holding that the findings of the trial Court were consistent with the evidence on record. 7. One of the contentions raised by the respondent in his written statement was that the suit is barred by the law of limitation. The trial Court upheld the contention to hold that the suit filed was 8 not within limitation. Shri S. R. Rivonkar, learned Counsel for the appellants submits that the trial Court completely erred on its finding on this issue. According to him, the finding is in fact perverse since the trial Court dealt with the suit as if it was for specific performance of the agreement of sale. The trial Court held that since the agreement provided that the loan amount of the appellants was to be repaid to the Bank and possession of the shop was to be handed over to the appellants within a period of one year from the date of the agreement of sale, the period of limitation to institute the suit started from 20th August, 1988 i.e. on the date of expiry of the period of one year. Hence the suit filed in the year 1993 was delayed by almost five years. Even if this contention of the appellants is to be accepted and it is to be held that the suit filed was within the period of limitation, since both the courts below have decided the proceedings on merits also, the contention cannot assist the appellants in setting aside the judgments and orders of both the courts below. The learned Counsel next submits that the courts below failed to appreciate the fact that the allegations made by the appellants at para 8 of the plaint which are quoted at para 2 9 above have not been denied in the written statement and that the respondent did not step into the witness box to lead evidence. The allegations made at para 8 of the plaint being absolutely vague it would make no difference even if the same are not specifically dealt with in the written statement. Further there is specific admission on the part of the appellants in the evidence as regards the claim made by the respondent in his written statement. Therefore, there was no need for the respondent to step into the witness box. 8. Perusal of the record shows that the concurrent findings of facts arrived at by the Courts below are completely supported by the evidence on record. In the circumstances, there is no substantial question of law arising in this appeal for consideration of the Court. Hence, the appeal is dismissed. R. P. SONDURBALDOTA, J. RD