1 F.A.NO.155.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 155 OF 1995 Bansilal S/o Fulchand Jain,Age 56 years,Occupation Business R/o Shendurni Tq.Jamner,District Jalgaon. Deceased through Legal Representatives. 1] Kantilal S/o Bansilal Jain, Age 38 years Occupation Trader 2] Vijay Kumar S/o Bansilal Jain, Age 36 years Occupation Trader. 3] Sohanlal S/o Bansilal Jain, Age 31 years Occupation Trader. 4] Rajendra S/o Bansilal Jain, Age 28 years Occupation Trader. 5] Dhiraj S/o Bansilal Jain, Age 24 years Occupation Trader. 6] Mrs. Kiran W/o Satishkuar Bafna, Age 33 years Occupation Household Work 7] Mrs. Ratnabai W/o Bansilal Jain, Age 58 years Occupation Household Work. 8] Kavita W/o Rajendrakumar Lodha, Age 26 years Occupation Household Work. All R/o Shendurni, Tq. Jamner, District Jalgaon. APPELLANTs V E R S U S Dilipkumar S/o Bansilal Agrawal, Age 41 years,Occupation Business & Agricultural R/o Shendurni, Tq. Jamner, District Jalgaon. RESPONDENT 2 F.A.NO.155.95 ... Mr. P.R.Patil,Advocate for Appellant Mr. L.V.Sangit Advocate holding for Mr. V.J.Dixit,Sr.Counsel for respondent. ... CORAM : A.V. NIRGUDE, J. DATE OF RESERVING THE JUDGMENT : 27th JANUARY, 2010 DATE OF PRONOUNCING THE JUDGMENT : 23rd FEBRUARY,2010 ORAL JUDGMENT : 1] The appeal is filed by the original plaintiff, whose suit for specific performance was only partly decreed by the Courts below vide Judgment dated 29th November,1994 in Regular Civil Suit NO. 183 of 1992. 2] The facts of the appellant’s case are as follows : The respondent was owner of two house properties C.T.S. No.240 and 248, located within the limits of Gram Panchayat Shendurni, Taluka Jamner, District Jalgaon. The appellant/plaintiff stated that the respondent/defendant approached him for sale of these properties and accordingly, the defendant executed an agreement to sell the suit property for consideration of Rs.2,21,000/- on 17th January,1991. The appellant paid Rs. 51,000/-as earnest money. It was agreed between the parties that on or before 31st March,1991 the appellant would pay the second installment of Rs. 3 F.A.NO.155.95 50,000/- and third and final installment would be paid at the time of execution of the sale deed, which was to be executed on 31st August 1991. It was further agreed between the parties that possession of the property would be delivered prior to execution of the sale deed. The appellant said that he offered payment on 31st March,1991, as agreed, but the respondent did not accept the amount on the pretext that he was going out of station etc. On 4th April,1991, the respondent came to the appellant when a document was prepared in respect of payment of Rs.50,000/-. But the respondent raised dispute about the date of delivery of possession and refused to accept the amount and did not sign the document which was kept ready. The appellant said that he was ready and willing to perform his part of contract and so he issued a notice on 26th August,1991 saying that he was ready and willing to pay the balance amount of Rs.1,70,000/- and demanded the possession etc. He also indicated that as decided between the parties, he would remain present in the office of the Sub-Registrar on 31st August,1991 for execution of the registration of sale deed. A telegram for that purpose was also sent, in addition. On 30th August,1991 the respondent sent a telegram to the appellant demanding copy of the agreement. The appellant sent a copy of the agreement along with another notice on 6th September,1991. It is the case of the appellant that the respondent thereafter did not respond to his communication 4 F.A.NO.155.95 and instead of it sent a blank paper in an envelop. The appellant sent another notice to the respondent on 24th September 1991. Thereafter, the suit was filed. 3] The respondent in his written statement took up a stand that he had never agreed to sell the suit houses to the appellant and that he did not receive Rs.51,000/- as earnest amount. He said that the appellant is a rich and influential person of the village and indulged in money lending business without holding a license. He said that he was at that time, indebted to a co- operative society and a bank and in order to pay all such dues, he requested the appellant to give him a hand loan of Rs.1,00,000/-. He said that the appellant agreed to disburse such loan on condition of execution of a nominal agreement to sell. He said, he then agreed to such terms and executed the agreement, but the appellant instead of paying him Rs.51,000/- as recorded in the document, paid only Rs.11,000/-, assuring him that Rs.40,000/- would be paid within next eight days. He said, the appellant thereafter started avoiding to make such payment. The respondent further stated that when he insisted for payment of Rs. 40,000/- the appellant asked him to buy a stamp- paper. He insisted further that he would prepare a receipt of Rs.89,000/-. He said, he refused to execute such receipt. He said, the transaction was of hand loan and that the suit property was 5 F.A.NO.155.95 worth more than Rs.5,00,000/-. In view of these conflicting pleadings, the learned Judge of the Trial Court framed certain issues, recorded evidence and came to a conclusion that the case of the respondent is more believable, and as said above dismissed the suit directing the respondent to pay back Rs.11,000/- to the appellant. 4] Having heard the learned counsels appearing for the parties as well as after going through the judgment of the lower Court, evidence on record and the pleadings etc. following points arise for my consideration:- 1] Whether the transaction was of agreement to sell the suit properties? 2] What amount, did the respondent receive when he had executed the document ? 3] Whether the appellant was entitled to specific performance ? 5] In order to prove his case, the appellant recorded deposition of three witnesses including himself, whereas the respondent recoded his own deposition. As said above, there is no dispute about execution of the document dated 17th February,1991. The agreement apparently indicates that the respondent agreed to sell his two houses for a sum of Rs.2,21,000/- to the appellant. But the circumstances in which this agreement came to be executed created considerable doubt about the 6 F.A.NO.155.95 nature of the transaction and the intention of the parties. The appellant in his deposition stated that the settlement of the agreement was arrived at, in his house when Sambhaji and Vasant acted as intervenor. Soon after the settlement of agreement, he said, terms were reduced into writing. He said the defendant had purchased a stamp paper for himself and witness Vasant who was a bond writer jotted down the terms of agreement. According to him all this happened on 17th February,1991. 6] In the cross examination, he stated that though he knew the respondent, who was resident of his village for last 25 years, he had no previous transaction with him. He said that one day prior to the date of execution he came to know about the respondent’s intention to sell away his property and he was likely to approach him on the next day. He said he also perused the Gram panchayat extract of the suit properties, on the previous day. He said, the respondent sent him a message that a meeting could be held on the next day. He then admitted that after perusal of the extract of the property record of Gram Panchayat, he did not make further enquiry as to whether the property was an ancestral or self acquired. He said he did not personally enquired with the respondent about this aspect or about any encumbrance on the property. It is thus clear that there was no talk between the parties on 16th February 1991, a day prior to 7 F.A.NO.155.95 the execution of the agreement. The appellant did not have any transaction with respondent in the past and he has not clearly stated as to who told him on 16th February,1991 that the respondent was intending to sell his property and that as to who delivered the property extract of the suit property to him on that day. He has indicated that he received a message from the respondent on that day, but he is rather evasive about the name of the person who brought such message. The incident that had happened on 16th February,1991 between the parties was only a message being delivered to the appellant about the respondent’s intention to sell the property. On that day nothing further happened. 7] On the next day (17th February 1991), the appellant in his cross examination stated, at about 7.00 to 7.30 p.m. the respondent came to him and an agreement was arrived at. He further admitted that the entire transaction viz. the writing of the agreement and making payment of Rs. 51,000/- was over within half an hour. He said the respondent and his brother Champalal were only present at the time of negotiation. He further admitted that the stamp paper was purchased from witness Vasant at the same time. 8] The depositions of the appellant’s witnesses are almost similar. The witness Vasant said that document 'agreement to sell' was written down on 8 F.A.NO.155.95 17th February,1991. He said he himself scribed the document in presence of the parties and three more persons namely Champalal (brother of the appellant) Sambhaji, Kashinatrao and Dayabhai. The second witness of the appellant Sambhaji reiterated that on that day an agreement was scribed in presence of the parties as well as other persons namely Dayabhai Patel, K.K.Garud and Abasaheb. I am not inclined to give importance to minor variance in the deposition of the above mentioned witnesses in respect of how many persons were present when the agreement took place, because there is no dispute between the parties that an agreement was scribed on 17th February,1991 and that the respondent signed it. I am more concerned about the manner in which such an important document was written down, the manner in which an important deal of property, which was agreed to be sold for a sum of Rs.2,21,000/- was struck. I think the entire deal was finalized rather hastily and the haste in which document came to be executed creates serious doubt about the genuineness of the intention of the parties to sell and purchase the property. 9] As said above, the deal was in respect of two residential houses, located in the middle of the village. The appellant did not particularly know the respondent, he knew him as a co-villager. He did not know about his business, indebtedness, his overall financial position. He did not inquire 9 F.A.NO.155.95 from him as to whether the property was ancestral property or self acquired property. He neither asked him whether he had any family such as wife and children. There is nothing on record to show that the respondent publicised his intention to sell his residential house property so as to invite interested parties' bids for it. Generally a willing vendor would first communicate his intention to sell his property to members of public, so as to expect response from the interested parties. In such process, he would get competitive bids from interested and willing parties. The consideration of Rs.2,21,000/- shown in the agreement way back in the year 1991 for the suit property even though they were of a village, indicates that the suit properties were quite valuable. So, the party intending to sell such properties would not hastily agree for its disposal in such manner. There is nothing on record to show that the respondent was trying to sell away the property secretly. Neither there is anything on record that the respondent was constrained to sell away his property in a haste. So the circumstances leading to the execution of the so called agreement is shrouded with suspicion and mystery. I am, therefore, not inclined to believe the case of the appellant that the respondent had agreed to sell away his property to him. Once this conclusion is drawn, the defence of the respondent became plausible and acceptable to the extent that he intended to borrow some amount 10 F.A.NO.155.95 and after receiving certain amount, he would execute the document as and by way of security. 10] The question remains to be decided is whether the respondent received only Rs.11,000/- on that day or as said above Rs.51,000/-. In this regard I am more inclined to believe the case of the appellant. It is rather not acceptable that the respondent only received Rs.11,000/- when he executed the document showing his willingness to receive Rs.2,21,000/- as price of his property. I am, therefore, inclined to hold that the respondent received Rs.51,000/- on that day. 11] I, therefore, partly allow the appeal directing the respondent to repay Rs.51,000/- to the appellant along with interest at the rate of Rs.9% p.a. on this amount from the date of document (i.e. 17th February, 1991). With this, the relief sought by the appellant for specific performance stands refused. There shall be no order as to costs. Sd/- (A.V. NIRGUDE, J.) MTK/ ok