1 S.A. 9.2016 - [J] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 9 OF 2016 Kailasbhai Mohanlal Joshi Age : 71 Yrs., Occ. Business, R/o : Andhale Chaure Nagar, ..... APPELLANT/ Nagapur, Ahmednagar. [ORI. DEFENDANT] V E R S U S Deepak Madanlal Gugale Age : 44 Yrs., Occ. Business, R/o : Apurya Apartment, ..... RESPONDENT/ Nandanwan Colony, Ahmednagar. [ORI. PLAINTIFF] ..... Mr. K.M.Nagarkar, Advocate for Appellant. Mr. R.P.Phatke, Advocate for Respondent. ..... CORAM : T.V.NALAWADE, J. DATE OF JUDGMENT : 21/07/2016 JUDGMENT : 1. The Appeal is filed against the Judgment and decree of Spl. Civil Suit No. 196/2009 which was 2 S.A. 9.2016 - [J] pending in the Court of the Civil Judge [Sr.Division], Ahmednagar and also against the Judgment and decree of R.C.A. No. 264/2012 which was pending in the Court of the District Judge -4, Ahmednagar. Money decree is given against the present appellant/defendant and he is directed to pay the amount due to the plaintiff of ` 1,06,100/- with interest @ 8 % per annum. Heard both sides. 2. It is the case of the respondent/plaintiff that there was agreement between him and the defendant and the defendant had agreed to sell plot No. 10 out of S.No. 24 (1B)/2B/1A/6/1E admeasuring 398.10 Sq. Meters situated at Savedi, within the limits of Municipal Corporation, Ahmednagar. It is contended that the agreement dated 18/02/2006 was registered and for the consideration of ` 34,31,000/-, the defendant had agreed to sale the plot and had accepted ` 1,00,000/- as earnest money. 3. It is the case of the plaintiff that to see that there is no charge of any person on the property and the property is free from encumbrances, he gave notice in 3 S.A. 9.2016 - [J] the news-paper dated 03/09/2006 through Advocate. It is contended that on 09/09/2006, one Mr. Deepak Jetala, Advocate took objection to the transaction informing the interest of his client. It is contended that the plaintiff approached the defendant and informed about the objection and then the defendant gave cheque of ` 1,00,000/- for returning the earnest money. It is contended that criminal case was filed out of the incident of bouncing of cheque, but the defendant did not make the payment. It is contended that the defendant was convicted also and his conviction was confirmed by the Sessions Court, but the defendant did not make the payment and he under-went the sentence and so the cause of action took place. He had prayed for recovery of ` 1,00,000/- and also legal expenses. 4. It appears that when the bailiff, officer of the Court, went to the residential place of the defendant for service of suit summons, defendant's wife was there but she did not accept the summons and as she gave evasive answers, the bailiff pasted the summons on the door of the residential place of the defendant and gave report accordingly. He filed affidavit in respect of this incident. 4 S.A. 9.2016 - [J] Due to this record, ex-parte order was made. The plaintiff gave evidence and then the aforesaid decree came to be made. 5. The trial Court considered the record viz. oral evidence given by the plaintiff, registered agreement, public notice given by the plaintiff, the objection taken by one lady Sunita Nandurkar to the transaction, cheque given by the defendant for redemption of amount due, copy of the complaint, and copy of Judgment given by criminal Court convicting the defendant for the offence u/s 138 of the Negotiable Instruments Act. In view of this record, District Court also confirmed the decision given by the trial Court. 6. It appears that before the District Court, the decision was challenged by contending that there is no proper service of summons on defendant and there was no compliance of the provision of Order V Rule 17 of the Code of Civil Procedure. The first appellate Court considered the relevant provision and in view of the aforesaid record viz. report of the bailiff, his affidavit and provision of law, held that it was proper service. 5 S.A. 9.2016 - [J] 7. The submissions made by the learned counsel for the appellant show that the execution of the agreement is not disputed. The agreement was registered and for return of money, cheque was also given by the defendant. The cheque bounced and in that matter conviction was given to the defendant, which he has under gone. In view of these circumstances, it was necessary for the present appellant to show that there is some case on merit to the appellant. Learned counsel for the appellant submitted that only on technical ground that summons was not properly served on the defendant, the appellant has challenged the decision. She placed reliance on 2 cases reported as 2000 (1) Bom.C.R. - 306 [Baburao Soma Bhoi Vs. Abdul Raheman Abdul Rajjak Khatik] and 2014 (3) Bom.C.R. - 474 [Smt. Manju w/o Baldev Narang & Anr. Vs. Prakash s/o Manohar Lokhande & Ors.]. 8. On the basis of the observations made by this Court in the aforesaid 2 cases, learned counsel for the appellant submitted that there was no proper service and the bailiff ought to have been examined. It needs to be 6 S.A. 9.2016 - [J] kept in mind that the bailiff had created record as provided under Order V Rule 17 of the Code of Civil Procedure. The provision shows that it is open to the Court to examine the bailiff by taking recourse of provision under Order V Rule 19 of the Code of Civil Procedure for satisfying itself that there was proper service of summons. This provision is meant for use of the Court. The case of Smt. Manju Narang cited supra was involving eviction matter filed under Maharashtra Rent control Act. Under the said Act, some right is given to the tenant to take steps after service of summons and in view of that right, interpretation was made by this Court that there needs to be strict observance of the provisions and even the bailiff needs to be examined. In the present matter, which was filed for recovery of money and in which there are aforesaid circumstances, the defendant would have filed Written statement of aforesaid nature. In view of the facts of the present matter, this Court holds that the satisfaction of the Court was sufficient and the Court had made ex-parte order in view of the bailiff report and other record. 9. In view of these circumstances, this Court 7 S.A. 9.2016 - [J] holds that it is not possible to interfere in the decision given by the Courts below and as the findings are concurrent, no substantial question of law as such is involved in the matter. 10. In the result, Second Appeal stands dismissed. In view of dismissal of the Second Appeal, C.A. No. 154 of 2016 stands disposed of. [T.V.NALAWADE, J.] KNP/S.A. 9.2016 – [J]