1 (SA153/2010 with CAS64/2008) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.153 OF 2010 ALONGWITH CIVIL APPLICATION NO.64 OF 2008 IN SECOND APPEAL NO.153 OF 2010 Mr. Nasir Ahmed Siddiqui .... Appellant. V/s Mr. Hiralal R. Gupta .... Respondent. Mr. S.D. Patil for the appellant. Ms. Neeta Karnik for Respondent. CORAM: V. M. KANADE, J. DATE : 8th April, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Appellant and the learned Counsel appearing on behalf of the Respondent. 2. Appellant is the original Defendant and Respondent is the original Plaintiff. For the sake of convenience, parties shall be hereinafter referred to as “Plaintiff” and “Defendant.” 2 (SA153/2010 with CAS64/2008) 3. Plaintiff is the Builder and Developer by profession and carries on business of construction of buildings and sale of flats. Defendant is the employee of the Bombay Port Trust. Two agreements were executed between the Plaintiff and the Defendant dated 8/11/1990 and 5/12/1990. By virtue of the 1st agreement dated 8/11/1990, Defendant booked Flat No.1 admeasuring 465 sq.ft built up area on the second floor of Shantinagar D building and by second agreement dated 5/12/1990, he booked Flat No.9 admeasuring 430 sq.ft on the second floor of Shantinagar E building. These agreements were duly registered. According to Plaintiff, Defendant did not make payments which were due and payable under the agreements and, consequently, Plaintiff filed a suit on 30/9/1996 for a declaration that agreement dated 8/11/1990 and 5/12/1990 be cancelled. Plaintiff also claimed damages of Rs 1 lakh. 4. Defendant filed his Written Statement and stated that he had taken a loan from Dockyard and from LIC and that the Plaintiff had received total amount of Rs 3,19,300/- prior to 1992 and, therefore, it was urged that the question of cancellation of agreements did not arise. He also denied the execution of cancellation letter dated 8/5/1993. The Trial Court dismissed the suit of the Plaintiff and against the said judgment and order, Plaintiff preferred an appeal before the lower Appellate Court which allowed the appeal and decreed the suit filed by the Plaintiff. 3 (SA153/2010 with CAS64/2008) 5. It is contended by the learned Counsel appearing on behalf of the appellant/Defendant that the Plaintiff having received major part of the consideration in respect of both the flats, was not entitled to seek a declaration for cancellation of the agreements. Secondly, it is contended that no ground was made out for rescission of contract. It is submitted that the alleged letter of cancellation was not issued by the appellant/Defendant and lastly, it is submitted that the Plaintiff could not have sold the said flats to third parties without seeking permission from the two authorities viz. Dockyard and LIC. It is submitted that the judgment and order passed by the lower Appellate Court was liable to be set aside and the judgment and order passed by the Trial Court was liable to be confirmed. 6. On the other other hand, it is submitted by the learned Counsel appearing on behalf of the Respondent/Plaintiff that the lower Appellate Court had arrived at the conclusion after going through the evidence on record and that the Plaintiff had proved that the Defendant had signed the cancellation letter dated 8/5/1993. Therefore, there was no question of setting aside the said finding which was recorded by the lower Appellate Court. Secondly, it is submitted that no counter-claim had been filed by the Defendant, seeking possession of the said two flats and, consequently, no order of injunction was passed against the Plaintiff. It is contended 4 (SA153/2010 with CAS64/2008) that the Plaintiff, therefore, had sold the two flats prior to the suit being filed in the Trial Court. Lastly, it is contended that the Plaintiff had, by their letter, informed the Defendant that pursuant to the cancellation of agreements they were ready to refund the amount received by them to the Dockyard and LIC and that the Defendant should give break-up of the amounts which were paid by LIC and Dockyard. It is submitted that the said break-up was not given by the Defendant and, in fact, the Defendant had received money from LIC and had not forwarded the entire amount to the Plaintiff and, as a result, though loan was sanctioned by both these authorities, since receipt was not shown by the Defendant, they did not disburse the balance amount to the Plaintiff. 7. After having heard the learned Counsel appearing for both the parties at length, in my view, no case is made out for admitting the second appeal. The Lower Appellate Court, after going through the evidence on record had held that the Plaintiff had duly cancelled the said agreements and that the Plaintiff had duly proved that the Defendant had executed the letter dated 8/5/1993. In my view, it is not possible to substitute the view taken by the lower Appellate Court since cogent reasons have been given by the lower Appellate Court. Though the Defendant has claimed that he has paid substantial portion of the consideration amount, he could not prove that he had paid the amount to the Plaintiff. It 5 (SA153/2010 with CAS64/2008) appears that the lower Appellate Court was justified in coming to the conclusion that the Defendant had not established that he had paid substantial portion of the consideration. Even when the matter was pending in this Court, this Court had given suggestion to the Defendant to give break-up of the amount which was received from LIC and the Dockyard and the amount which was paid by him to the Plaintiff so that the Plaintiff could be directed to refund the said amount. However, Defendant did not give the break-up of the said amount till today. In any case, suit flats have already been sold by the Plaintiff prior to filing of the suit and third party rights have been created. No counter- claim has been filed by the Defendant, the appellant herein. Therefore, he was not entitled to get possession of the suit flats. 8. No substantial question of law is raised in this second appeal. Second Appeal is dismissed. 9. Since the second appeal is dismissed, Civil Application No.64 of 2008 does not survive and it is disposed of accordingly. (V.M. KANADE, J.) 6 (SA153/2010 with CAS64/2008)