1 sa445-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.445 OF 2010 WITH CIVIL APPLICATION NO.1252 OF 2010 Ramdas Kusha Mhatre ..Appellant Vs Parmanand Janardan Pote since deceased through his legal heirs and others ..Respondents -- Ms.Gauri Godse, for appellant. Mr.G.N.Salunke i/b.Mr.Prakash K. Deshmukh, for respondent no.2. -- CORAM : R.G.KETKAR, J. DATE : 18 th MARCH, 2011. P.C: This Second Appeal is preferred by the original defendant no.1 challenging the judgment and decree dated 27 th April, 2010 passed by the learned Principal District Judge, Raigad Alibag in Civil Appeal No.11 of 2008 as well as the judgment and decree dated 13 th December, 2007 passed by the learned Civil Judge Senior Division, Panvel in Special Civil Suit No.102 of 2003. By these judgments, the Courts below decreed the suit instituted by the respondent nos.1 and 2 (hereinafter referred as “the plaintiffs”) for the specific performance of the agreement of sale dated 24 th January, 2003. The facts and circumstances, giving rise to the filing of present Second Appeal, are as under. 2 sa445-10.sxw 2] The plaintiffs instituted Special Civil Suit No.102 of 2003 on 28 th October, 2003 inter alia contending that the appellant (hereinafter referred as “the defendant no.1”) and respondent no.3 Ukhabai Haribhau Patil (hereinafter referred as “the original defendant no.2”) were having undivided share in land Survey No.111 H. No.7/1 admeasuring 0-7-1 Ares situate at village Koproli, Taluka Uran, District Raigad (for short “the suit land). Under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the Act”), they were having restricted ownership. Because of the personal difficulties, the defendant nos.1 and 2 intended to sell the suit land. After negotiations between plaintiff and defendant nos.1 and 2, the consideration was fixed at Rs.1,75,000/-. Accordingly, the defendant nos.1 and 2 executed an agreement of sale on 24 th January, 2003 in favour of the plaintiff no.1 and accepted earnest money of Rs. 65,000/-. Subsequently, on 25 th January, 2003, the defendant nos.1 and 2 executed Power of Attorney in favour of the plaintiff no.2 Prashant Parmanand Pote who is the son of plaintiff no.1. On 29 th January, 2003, the defendant nos.1 and 2 submitted an application before the Sub-Divisional Officer, Panvel seeking permission to sell the suit land. Pursuant to the said application, report from the concerned Tahsildar was called for. However, in the meantime, defendant no.1 abruptly raised objections for grant of permission. In view of this objection, the application seeking permission was disposed of and intimation to that effect was issued to the plaintiffs on 13 th June, 2003. The plaintiffs, therefore, issued notice through an Advocate on 11 th July, 2003. That was replied by the defendant on 7 th August, 2003. In view of this, the plaintiffs instituted suit for specific performance of agreement of sale on 28 th October, 2003. 3 sa445-10.sxw 3] The defendant no.2 Ukhabai filed written statement at exhibit 18. She admitted execution of agreement of sale dated 24 th January, 2003 as also giving of power of attorney in favour of plaintiff no.2 for obtaining permission in the name of plaintiff no.2. She also admitted making of application on 29 th January, 2003 before the Sub-Divisional Officer, Panvel seeking permission which was duly signed by the defendant nos.1 and 2. In substance, she accepted the transaction and contended that the earnest amount of Rs.65,000/- was grabbed by the defendant no.1. 4] The defendant no.1 resisted the suit by filing written statement at exhibit 41. It was inter alia contended that the legally enforceable contract is not brought into the existence and consequently, plaintiffs are not entitled to institute suit for specific performance. The plaintiff no.2 is a stranger to the alleged transaction between the plaintiff and defendant nos.1 and 2 and therefore, the suit is bad in mis-joinder of the parties. The stamp paper on which the alleged agreement of sale dated 24 th January, 2003 is typed, is not purchased by any of the parties to the contract. So, the alleged agreement of sale itself is inadmissible in evidence. It was further contended that since the suit land is covered by the provisions of the Act having restricted ownership, the prior permission of the competent Authority is necessary for sale of the property. Since the agreement for sale is in the name of one person and application for permission to sell the suit property is in the name of a person who is stranger to the transaction, the said fact was brought to the notice of the Sub-Divisional Officer. Pursuant thereto, the application was rejected and permission to sell the 4 sa445-10.sxw suit land was refused. The plaintiffs did not challenge the said refusal by filing any proceedings and consequently, the said order attained finality. It was further asserted that the agreement for sale became infructuous in view of the order of the Sub Divisional Officer. The defendant no.1 also contended that the plaintiffs in collusion with the defendant no.2 obtained his signature on a blank paper and prepared a bogus agreement of sale. The plaintiffs as also defendant no.2 and Village Talathi Shri Kekan mounted heavy pressure and obtained his signature on a blank paper. He also denied the receipt of Rs.65,000/- as and by way of earnest amount. Finally, it was contended that by executing agreement of sale dated 26 th July, 2002 in favour of S/Shri Santosh Pote and Mahendra Thakur the defendant nos.1 and 2 agreed to sell the suit land for a consideration of Rs. 3,00,000/- and they have accepted amount of Rs.50,000/- towards the earnest money. Though the plaintiffs were aware of this transaction, they have suppressed the same. 5] After the death of the defendant no.2, her heirs and legal representatives namely defendant nos.2(1) Madhuri Hiraji Patil, 2(2) Sharad Haribhau Patil and 2(3) Trupti Prashant Mhatre were brought on record during the pendency of the suit. The defendant no2(1) and 2(3) filed a joint purshis at exhibit 48 adopting the written statement filed by the defendant no.2. As against this, the defendant no.2(2) Sharad Haribhau Patil adopted the written statement filed by the defendant no.1 by filing purshis at exhibit 55. 6] On the basis of the rival pleadings, the learned trial Judge framed 5 sa445-10.sxw necessary issues. In support of the plaintiffs’ case, the plaintiffs examined [1] Plaintiff No.1 at exhibit 61, [2] Plaintiff No.2 at exhibit 78 and [3]one Namdeo Mhatre at exhibit 80. As against this, defendant examined [1] Defendant no.1 Ramdas at exhibit 83, [2] Santosh Pote at exhibit 90 and [3] Dnyaneshwar Mhatre at exhibit 93. The parties also relied upon the documentary evidence to substantiate their case. 7] On the basis of the material on record, the learned trial Judge decreed the suit holding that the defendant nos.1 and 2 executed agreement of sale on 24 th January, 2003. It was held that the suit is not bad in mis-joinder of the parties. It was also held that the agreement of sale is admissible in evidence. Consistent with these findings, the learned trial Judge directed the defendant nos.1, 2(1) to 2(3) to execute the sale deed after obtaining permission of the competent authority as required under Section 43 of the Act by accepting the balance consideration of Rs. 1,10,000/-. It was directed that in case the defendants failed and neglected to obtain the permission, the plaintiffs shall obtain the permission through the Court Commissioner after obtaining his appointment for that purpose. Aggrieved by this decision, the defendant no.1 preferred Civil Appeal No.11 of 2008. By judgment and decree dated 27 th April, 2008, the learned District Judge dismissed the said Appeal. It is against these decisions, the original defendant no.1 preferred present Second Appeal. 8] Ms.Gauri Godse reiterated the contentions which were raised in the Courts below. She submitted that the plaintiff no.2 is a stranger to the alleged transaction and consequently, the suit is bad for mis-joinder of the 6 sa445-10.sxw parties. The stamp paper on which the agreement of sale is allegedly executed is not purchased by any of the parties to the agreement and therefore, the agreement of sale itself is in-admissible in evidence. Since the Sub Divisional Officer refused the permission for sale of the suit land and the said order was not challenged by the plaintiffs, it attained finality. In view thereof, the agreement of sale came to an end and consequently, the plaintiffs cannot maintain their suit on the basis of the said agreement of sale and seek relief of specific performance. She contended that the plaintiffs in collusion with the original defendant no.2 and Talathi Shri.Kekan obtained signature of defendant no.1 on a blank paper and on the basis of this document, the plaintiffs have prayed for relief of specific performance which cannot be granted. She contended that the defendant no.1 did not receive any earnest money as alleged by the plaintiffs. Finally, she contended that though initially defendant no.2 Ukhabai admitted the transaction, the defendant no.2(2) Sharad Haribhau Patil supported the case of the defendant no.1 / appellant. In support of her submissions, Ms.Gauri Godse relied upon the decisions in the case of [1]Municipal Corporation of Greater Bombay Vs. Girjashankar R. Singh, AIR 1996 BOMBAY 361 and [2] M/s.KBC Pictures Vs. A.R.Murgadoss & ors, 2009(2) All.M.R.108, to contend that the agreement of sale is inadmissible in evidence as the stamp paper is not purchased in the name of any of the parties to the instrument. On the other hand, Mr.Saluke supported the impugned judgment and decree. 9] I have considered the rival submissions made by learned counsel for the parties. The learned District Judge in paragraph no.21 of the impugned 7 sa445-10.sxw judgment recorded that no evidence is adduced on behalf of the defendant no.1 to prove that the plaintiff no.1 and defendant no.2 have obtained his signature forcibly on a blank paper. The perusal of the oral evidence of D.W.1 shows that he did not lodge any police complaint against the plaintiff for allegedly preparing bogus document. In order to prove the subsequent agreement dated 26 th July, 2002 executed by the defendant nos.1 and 2 in favour of S/Shri. Santosh Pote and Mahendra Thakur at exhibit 90, D.W.2 Santosh Pote was examined at exhibit 90. However, the said document was not referred to the said witness and consequently, in paragraph no.22, the learned District Judge observed that the said document is not proved. Shri Santosh Pote admitted that no permission was taken prior to the sale of property. The learned District Judge, therefore, came to the conclusion that evidence of the said witness creates doubt and genuineness of the agreement dated 26 th July, 2002. 10] In so far as the agreement dated 24 th January, 2003 is concerned, the Courts below recorded concurrent findings of fact that the said document is duly proved by the plaintiffs. As far as mis-joinder of parties is concerned, the Courts below recorded findings that the agreement for sale was executed by the defendant nos.1 and 2 in favour of the plaintiff no.1. Subsequently, on 25 th January, 2003, the Power of Attorney was executed by defendant nos.1 and 2 in favour of the plaintiff no.2 and even application dated 29 th January, 2003 was made by the defendant nos.1 and 2 seeking permission for sale of property in favour of Plaintiff no.2. On the basis of this, the Courts below came to the conclusion that on account of conduct of the parties as also the fact that the stamp paper was purchased in the 8 sa445-10.sxw name of plaintiff no.2 Prashant, it was agreed between the parties to sell the suit land to the plaintiff no.2. It, therefore, cannot be said that the suit is bad for mis-joinder of the parties and that the agreement of sale is in- admissible in evidence. In the case of Municipal Corporation of Greater Bombay Vs. Girjashankar (supra), learned Single Judge observed in paragraph nos.7 and 8 as under:- 7. As held by the Supreme Court in the Case of Hindustan Steel Ltd. Vs. M/s.Dilip Construction Co., reported in AIR 1969 SC 1238, the Stamp Act is a fiscal measure enacted to secure revenue for the State on certain cases of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponents. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of initial defect in the instrument. In the instant case, the object of securing revenue for the State has been duly taken care of by the Arbitrator since the said award has been made on the requisite stamp paper of Rs.100/-. It is amusing that a public body like the petitioners has taken objection to the said award on such flimsy ground. The said award made by the arbitrator on a sheet of paper impressed with stamp issued in the firm name of the respondent is legal, valid and proper. 8. Moreover, the arbitrator has recorded in the minutes of the meeting held before him on 23 rd March, 1995 had directed the respondent to supply the stamp paper of Rs.100/- to make his award. The arbitrator was a tribunal of the choice of the parties to decide the disputes referred to him for arbitration. After hearing the parties the parties and on deciding to make the 9 sa445-10.sxw award in favour of the respondent, the arbitrator justifiably called upon the respondent to furnish the stamp paper of requisite value for making the said award thereon. Merely because the said award has been made on the sheet of paper with impressed stamp of Rs.100/- issued in the name of the firm of the respondent, a party to the reference, the said award is made neither in contravention of the said Section 34 as amended nor is inadmissible in evidence nor invalid nor bad in law. By and large it is always an obligation of either of the parties to the reference to arbitration and preferably of the party in whose favour the award is to be made to furnish the stamp paper of requisite value to the arbitrators or umpire, as the case may be for making the award thereon. In the instant case, this having been done, I find no infirmity in the procedure followed by the arbitrator in making the said award. In any event, this cannot be a ground for setting aside the said award under the provisions of Section 30 of the Act. In the case of M/s.KBC Pictures (supra) the learned single Judge of this in paragraph no.14 has observed as under:- 14. Perusal of the agreement dated 29 th December, 2004 shows that it has been written on a stamp paper which has been purchased in the name of Mr.S.B.Sharma. Mr.Sharma is not a party to the agreement. Under Section 34 of the Bombay Stamp Act (as amended by Maharashtra Amendment Act 29 of 1994 with effect from 1 st May, 1994) an instrument which is written on an impressed stamp, is required to be written on stamp paper which is purchased in the name of one of the parties to the instrument. The 10 sa445-10.sxw present stamp paper has not been purchased in the name of any of the parties to the instrument. The agreement dated 29 th December, 2004 is therefore not properly stamped and is inadmissible in evidence. 11] In the present case, the Courts below have recorded findings that by conduct of the parties, it was orally agreed between the parties that the defendant nos.1 and 2 intended to sell the suit land in favour of the plaintiff no.2. The stamp paper was purchased in the name of plaintiff no.2. The Power of Attorney was executed by defendant nos.1 and 2 on 25 th January, 2003 in favour of the plaintiff no.2 as also the application dated 29 th January, 2003 signed by the defendant nos.1 and 2 was made for obtaining permission in the name of plaintiff no.2. The Courts below have recorded concurrent findings of facts based upon the evidence on record. It cannot be said that the judgments of the Courts below are either perverse or that the Courts below have in utter disregard of relevant material, decreed the suit of the plaintiffs. 12] No substantial question of law arises in the present Second Appeal. The same is dismissed with no order as to the costs. In view of the dismissal of the Second Appeal, Civil Application does not survive and the same stands dismissed. 13] At this stage, Ms.Godse, learned counsel for the appellant submits that learned counsel for the respondents made a statement that the plaintiff will not proceed with the execution and the said statement was recorded by 11 sa445-10.sxw this Court in order dated 16 th September, 2010 passed in Civil Application No.1252 of 2010. She submits that in order to test this order before the Superior Court, the statement recorded in order dated 16 th September, 2010 may be continued for a period of eight weeks from today. 14] Mr.Salunke opposes this prayer and submits that he is ready to make a statement to the effect that for a period of four weeks from today, the plaintiff will not proceed with the execution. 15] Having regard to the controversy between the parties, in my opinion, the interest of the justice would be served by directing the plaintiff not to proceed with the execution for a period of eight weeks from today. Order accordingly. [R.G.KETKAR, J.]