ash 1 fa-1182.89-chitnis.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1182 OF 1989 Shrikant Murlidhar Chandratreya .. Appellant Versus Ratnakar Kashinath Chandorkar .. Respondent -- Shri P.K. Hushing, Advocate for the Appellant Shri S.S. Kulkarni, Advocate for Respondent -- CORAM : A.S. OKA, J Date on which submissions are heard : 11th February, 2011 Date on which Judgment is pronounced : 6th May, 2011. JUDGMENT :- 1. The unsuccessful defendant has taken an exception to the Judgment and Decree dated 24th November, 1988 passed by the Trial Court in a suit filed by the Respondent-Plaintiff. The suit has been partly decreed and a money decree has been passed against the Appellant directing him to pay a sum of Rs. 2,50,000/- ash 2 fa-1182.89-chitnis.doc with interest at the rate of 6% p.a. from the date of the suit till realization of the amount. 2. The case made out by the Respondent-Plaintiff in brief is that the Appellant has been carrying on business of building construction. It is stated by the Respondent that he had friendly relationship and acquaintance with the Appellant. It is alleged that in October-November 1984, the Appellant was desirous of commencing a new business. The Appellant was in need of money for the business as well as on account of the house hold difficulties. It is stated that the Appellant borrowed various amounts from the Respondent from time to time totally amounting to Rs. 2,50,000/-. A writing was executed by the Appellant on 16th November, 1984 on non-Judicial Stamp paper of Rs. 5/-. According to the Respondent, by the said writing, the Appellant agreed to refund the sum of Rs. 2,50,000/- to the Respondent within a period of six months. The Appellant did not pay the amount and therefore, the Respondent through his Advocate issued notice of demand on 23rd August 1986, calling upon the Appellant to pay the amount within a period of 15 days. According to the case of the Respondent, the notice issued to the ash 3 fa-1182.89-chitnis.doc Appellant by Registered Post, Acknowledgment due was returned unserved with the remark ‘not claimed’. In the suit, the Respondent claimed a sum of Rs. 2,50,000/-. The Respondent also claimed interest at the rate of 18% p.a. on the said amount from 16th September, 1984 till the date of institution of the suit. The said interest amount was quantified at Rs. 86,250/-. Apart from this amount, the Respondent claimed notice charges of Rs. 250/-. On this amount of Rs. 2,50,000/- the Respondent claimed interest at the rate of 18% p.a. from the date of institution of the suit till realization of the amount. 3. The Appellant contested the suit by filing a Written Statement. The Appellant denied to have received any amount from the Respondent. The Appellant stated that the Respondent’s close relative Shri Potnis was holding a land bearing Survey no. 30 at Erandawane, Pune. It is alleged that the Respondent was managing the said property. It is alleged that the only source of income of the Respondent was the remuneration which he used to receive by acting as Manager of the said Property of Shri Potnis. A part of the said property of Shri Potnis was sold by him in the year 1972 to M/s. Raghukul Co-operative Housing Society Limited and ash 4 fa-1182.89-chitnis.doc the remaining part of the said property was occupied by the Respondent in his capacity of Manager of Shri Potnis. It is stated that the Respondent filed a Civil Suit in the Court at Pune against M/s. Raghukul Co-operative Housing Society Limited. It is alleged by the Appellant that on the intervention made by the Appellant, the parties to the said suit settled the dispute. 4. At the time of settlement, the said Society expressed desire to purchase a part of the said property of Shri Potnis. The Respondent suggested that there will be a sale transaction between Shri Potnis and the Society, to which he will be the confirming party. However, the Respondent stated that initially the sale transaction will be between the said Shri Potnis and the Appellant to which the Respondent will be a confirming party. According to the Appellant, it was agreed that in the amount received by the Appellant in the sale transaction to be entered into with the society, the Respondent will get a share. Moreover, it was agreed that after the Society purchases the land, the work of construction shall be entrusted to the Appellant and in the remuneration received by the Appellant, he will have to pay a share to the Respondent. ash 5 fa-1182.89-chitnis.doc 5. Accordingly, there was an Agreement for Sale executed between Shri Potnis and the Appellant which was signed by the Respondent as a confirming party. Thereafter in December 1992, the Appellant executed an Agreement for Sale in favour of the said Society. However, the said Society took over the responsibility of obtaining permission of the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976. The Society did not succeed in obtaining permission and therefore, there was uncertainty about the completion of the sale transaction. In the circumstances, there was uncertainty about the payment of share in the consideration amount which was agreed to be paid by the Appellant to the Respondent. Therefore, the Respondent demanded security for the said amount. The Appellant stated in the Written Statement that by way of security, a writing was obtained from the Appellant and his family members regarding a plot held by the Appellant’s father. It is contended that the said writing is void. It is alleged by the Appellant that the Respondent obtained signatures of the Appellant on a blank Stamp paper of Rs. 5/-. It is alleged that the Respondent obtained signatures of the Appellant’s brothers Ravindra and Prakash as well as one Shri ash 6 fa-1182.89-chitnis.doc Chandavarkar as witnesses. It is contended that the Appellant had not received any amount from the Respondent as alleged in the suit. It is alleged that the Respondent misused the said Stamp paper and created the writing relied upon in the plaint. The Appellant prayed for dismissal of the suit. 6. The parties adduced evidence in support of the case. The learned Trial Judge accepted the case of the Respondent that the Appellant had borrowed a sum of Rs. 2,50,000/- from the Respondent. However, the Trial Court declined to grant interest on the said amount up to the date of institution of the suit and the claim of Rs. 86,250/- in that behalf was rejected. 7. The Learned Counsel appearing for the Appellant has taken the Court through the pleadings, notes of evidence and relevant documents. The Learned Counsel submitted that the evidence of the witnesses examined by the Appellant establishes that the signatures of the Appellant and the alleged witnesses were obtained by the Respondent on a blank Stamp paper of Rs. 5/- denomination. He invited attention of the Court to the evidence of the 1st Witness examined by the Appellant by the name Shri Anil ash 7 fa-1182.89-chitnis.doc Chandawarkar. He pointed out that the said witness is an independent witness and his evidence clearly establishes the contention of the Appellant that the signatures of the Appellant and other three witnesses were obtained on blank Stamp paper. He pointed out that the case made out by the Respondent in his Examination-in-Chief that the Appellant had signed on the document after typing the contents of the said document has not been established. He pointed out that the Respondent admitted that the portion marked ‘A’ of the said writing at Exhibit – 27 was incorrect. He pointed out that the evidence of the Appellant and three witnesses examined by the Appellant completely negatives the case of the Respondent that the Appellant himself got the writing typed. He submitted that the 1st Witness examined by the Appellant was an independent witness and there was no reason for him to state on oath that he signed a blank Stamp paper. He pointed out that against the signatures of witness no. 3, hand written figure 3 appears in ink and if document was got typed by the Appellant himself, figure 3 would not have been written in ink. He submitted that alleged writing was not signed by the Respondent. He submitted that there is absolutely no evidence adduced by the Respondent regarding the payment of Rs. ash 8 fa-1182.89-chitnis.doc 2,50,000/- to the Appellant. He submitted that even capacity of the Respondent to advance a large amount of Rs. 2,50,000/- was not established. He submitted that the Trial Court has committed an error by passing the decree. 8. The Learned Counsel appearing for the respondent submitted that the Appellant has not denied the signatures on the documents. He submitted that merely because there is an inadvertent error in the said document, the purport of the said document by which the Appellant admitted his liability cannot be ignored. He submitted that the alleged discrepancies in evidence as regards the person who brought the Stamp paper and who got the document typed are totally insignificant. He submitted that even assuming that the 3rd witness has himself not put the number 3 before signing the document, the legality of the document is not affected. He submitted that the case pleaded by the Appellant in the written statement has not been established and therefore the case made out by the Respondent has been rightly accepted. 9. I have given careful consideration to the submissions. I have perused the record. I have gone through the pleadings and ash 9 fa-1182.89-chitnis.doc notes of evidence. It must be stated here that as regards the signatures of the Appellant and three witnesses on the document at Exhibit-27 are concerned, there is no dispute. As a defence, the Appellant has pleaded existence of another transaction between the parties. According to the case of the Appellant , Shri Potnis with whom the Respondent was working as a Manager agreed to sale an area of 2 ½ acres to the Appellant and the Appellant in turn agreed to transfer the said area to M/s. Raghukul Co- operative Housing Society Limited. It was contended by the Appellant that certain share in the said transaction was to be given to the Respondent-Plaintiff. It is the case of the Appellant that he was to carry out construction on behalf of the Society on the said land and he had agreed to pay a share in the profits to the Respondent-Plaintiff. The specific case of the Appellant is that as the permission of the Competent Authority for sale of the land was not obtained by the Society, the execution of conveyance was delayed. As a result, the payment of amount by the Appellant to the Respondent was delayed. The case of the Appellant is that as a security for payment of the amount payable to him, the Respondent obtained the signatures of the Appellant on a blank stamp paper and got a writing typed on the said stamp paper by ash 10 fa-1182.89-chitnis.doc misusing the said stamp paper. 10. The Respondent stepped into the Witness-Box. The Respondent admitted that Shri Potnis had entered into an agreement with the Appellant and the Appellant executed an Agreement for Sale in favour of the Society. The Respondent also admitted that there was a dispute between Shri Potnis and the Society. The Respondent denied that it was agreed between him and the Appellant that he was to get some commission from the Appellant after execution of sale deed by the Appellant in favour of the Society. He denied the correctness of the suggestion that he obtained Hawala from the Appellant in the form of signature on blank stamp paper. He was showed a portion marked ‘A’ in the document at Exhibit-27, which records that he was liable to pay Rs. 2,50,000/- to the Appellant. He stated that the said portion was incorrect. 11. The Appellant stepped into the Witness-box. He deposed to his case regarding the sale transaction of land of Shri Potnis. He stated that the Respondent insisted that Appellant should execute some undertaking (Hawala). He stated that on ash 11 fa-1182.89-chitnis.doc 16th November, 1984 when the Respondent met him, Appellant’s brother Ravi brought Stamp paper of Rs. 5/- as suggested by the Respondent. He stated that he signed on the reverse side of the stamp paper. He stated that the signature of his brother was also obtained on the blank stamp paper. He stated that the signature of one Shri Anil Chandawarkar was also obtained on the said stamp paper. He stated that the said Anil was a friend of his brother. He stated that when the document was signed, it was a blank paper. In the Cross Examination the Appellant admitted that he has not produced the documents in respect of transaction with the Society on record. He admitted that there was no written document of agreement between him and the Respondent to share the income and profit out of sale and construction on the said land. He admitted that three witnesses were present when he signed the blank stamp paper. He stated that he was not aware as to who signed at Sr. No. 3 as a Witness. He stated that the said signature may be of his brother Prakash. 12. The Appellant examined the said Anil Chandawarkar as a witness. He deposed that on 16th November, 1984 at the residence of the Appellant, the Respondent came and told the ash 12 fa-1182.89-chitnis.doc Appellant to give Security (Hawala). He stated that Appellant’s brother Ravi got the Stamp paper on which the Appellant, his brothers Ravi and Prakash signed. He stated that he also signed on the blank Stamp paper. In the Cross Examination he stated that he signed the document as an attesting witness and he did not ask the Respondent as to why he was demanding the signatures of the witnesses. 13. The Appellant examined his brother Ravi. He deposed that the Appellant asked him to bring Stamp paper of Rs. 5/-. He stated that the Appellant signed the said stamp paper and he signed the said stamp paper on request made by both the Appellant and the Respondent. He stated that the Stamp paper was blank which was also signed by his brother Prakash as well as the said Chandawarkar. In the Cross Examination, he stated that he was not accustomed to put his signatures on a blank Stamp paper. The Appellant also examined his other brother Prakash, who also stated that it was the Appellant who asked Ravindra to bring Stamp paper of Rs. 5/-. He stated that Appellant signed the said Stamp paper and he along with his brother Ravindra also signed the Stamp paper. He identified his signature against Sr. No. ash 13 fa-1182.89-chitnis.doc 3 on the said document. In the Cross Examination, he denied that he had put the figure 3 before his signature. 14. Except oral testimony, the Appellant has not proved that he had agreed to pay commission to the Respondent in the sale transaction with the Society and a share in the amount earned by him by constructing a building for the Society. The documents relating to transaction in respect of the said land have not been produced. There is no independent evidence is adduced to show that the Appellant had agreed to pay the aforesaid amounts and due to delay in the payments of the amounts, the Respondents insisted on Appellant signing the blank stamp paper as a security. The theory propounded by the Appellant can be accepted, provided he proves that he was liable to pay certain amount by way of commission to the defendant and as the said amount was not paid, the Respondent insisted on execution of the document. 15. It is pertinent to note that the Appellant stated in the Examination-in-Chief that his brother brought Stamp paper of Rs. 5/- as suggested by the Respondent. However, the witness Anil examined by the Appellant did not state that the Respondent ash 14 fa-1182.89-chitnis.doc suggested to the Appellant’s brother Ravi to purchase the Stamp paper. The said Ravi alias Ravindra stated that the Appellant asked him to bring the Stamp paper. The Appellant’s brother Prakash stated that it was the Appellant who asked Ravindra to bring the Stamp paper. All the three witnesses who deposed on behalf of the Appellant were interested witnesses in as much as two of them were his real brothers and the third one is the friend of his real brother. Thus, the case pleaded by the Appellant that the blank stamp paper was signed as Hawala appears to be doubtful. 16. Once it is held that the theory propounded by the Appellant was not established, it follows that the case made out by the Respondent will have to be accepted as the signature of the Appellant on the document at exhibit 27 is admitted. Only discrepancy which is brought on record is that there is one sentence in the document at Exhibit-27 which purports to record that the Respondent was to pay an amount of Rs. 2,50,000/- . The learned Trial Judge has dealt with this aspect in paragraph 9 of the Judgment. The relevant portion reads thus: “Plaintiff makes it clear in para 7, except document Exh.27, nothing is obtaining in writing from Defendant, had any other transaction except claiming ash 15 fa-1182.89-chitnis.doc in the suit. The witness has fairly admitted portion “marked A” Exh.27. He states he is not liable to pay Rs.2,50,00 to Defendant. It is typographic mistake. The word should have been (yene) instead of (dene). If whole contents of the documents are read out, except the line of word (dene) in it. It is clear Defendant is owing to Plaintiff. There is further promise to pay the dues within 6 months. So, statement of Plaintiff Defendant gave writing has to be accepted. The Defendant collected stamp through his brother. The Defendant asked his brothers to sign and one more third person, friend of one of his brother signed it. Thus, the statement of Defendant Plaintiff is not able to advance hand loan accumulating Rs, 2,50,000 has to be rejected. On the contrary evidence of Plaintiff inspires confidence and is reliable one.” There is no reason to find fault with the said finding. 17. In the circumstances, it is not possible to find fault of the findings recorded by the Trial Court. Appeal is accordingly dismissed with no order as to costs. (A.S. OKA, J)