Shri. Bhagwan S/O Barsuji Chafle v. Shri. Madhukar S/O Chintaman Kotrunge

2025:BHC-NAG:6864 1 SA6.25 (J).odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

SECOND APPEAL NO.

OF 20 APPELLANT : Bhagwan S/o Barsuji Chafle, Aged about 58 years, Occu. Business, R/o Behind House of Dandekar, Zenda Chowk, Somalwada, Nagpur, Dist. Nagpur.

VERSUS

RESPONDENT : 1. Shri Madhukar S/o Chintaman Kotrunge, Aged about 40 years, Occu. Agriculturist,

2. Damodhar S/o Chintaman Kotrunge, Aged about 33 years, Occu. Agriculturist, Both R/o Vela (Harishchandra), Tah. and Dist. Nagpur.

------------------------------------------------------------------------------------------------------- Mr. D. C. Chahande, Advocate for the appellant Mr. S. P. Kshirsagar with Mr. S. D. Patil, Advocates for the respondents ------------------------------------------------------------------------------------------------------- CORAM : M. W. CHANDWANI, J.

DATE : JULY , 2025 ORAL JUDGMENT 1.

Heard.

2.

By this second appeal, the appellant is challenging the concurrent findings recorded by the trial Court in Special Civil Suit No. 1234/2007 and the first Appellate Court in Regular Civil Appeal

2 SA6.25 (J).odt No. 370/2018. Learned trial Court by the impugned judgment and order dated 24.04.2018 decreed the suit filed by the respondents/ original plaintiffs and the learned first Appellate Court by the judgment and order dated 13.03.2024 dismissed the appeal filed by the appellant/original defendant challenging the judgment of the trial Court.

3.

The appellant is the original defendant and the respondents are the original plaintiffs. The respondents/plaintiffs had filed a suit for specific performance of contract against the appellant/defendant in respect of the suit property i.e. plot no.1, admeasuring 2085 sq.ft. situated at mouza Somalwada, Tah. and Dist. Nagpur. The appellant and the respondents entered into an agreement of sale dated 21.04.2007 (Ex. 24) in respect of the suit plot for a total consideration of Rs.16,47,150/-. It is alleged that at the time of execution of said agreement of sale, an amount of Rs.4,00,000/- (Rupees Four lakhs only) was paid to the appellant in cash and the remaining amount of Rs.12,47,150/- was to be paid at the time of execution of the sale deed. The appellant came up with a defence that he had not offered the suit property for sale but it was a money transaction and the agreement of sale was a nominal

3 SA6.25 (J).odt document executed as a security to the said money transaction. By the impugned judgments, both the Courts discarded the defence taken by the appellant and directed him to execute the sale deed in favour of the respondents.

4.

I have heard Mr. D. C. Chahande, learned counsel for the appellant and Mr. S.P. Kshirsagar, learned counsel for the respondents. Perused the record and proceedings. 5.

Mr. Chahande, learned counsel for the appellant vehemently submitted that the trial Court as well as the first Appellate Court did not consider the fact that some writing on the overleaf of the first page of the agreement (Exh.24) supports the contention of the appellant that it is nothing but a money transaction. According to him, the trial Court as well as the first Appellate Court have also not considered that the respondent did not have money with him to get the sale deed executed.

6.

Mr. Kshirsagar, learned counsel for the respondents objected to the submission of the learned counsel for the appellant and submitted that the handwriting on the overleaf of the first page of the agreement has tempted the first Appellate Court to rely on the

4 SA6.25 (J).odt explanation given by the attesting witness (PW2) in his crossexamination. According to him, during the pendency of the suit, an amount of Rs.40,000/- was given to the appellant which itself shows that the respondents were ready and willing to perform their part of the contract.

7.

Perusal of the agreement of sale reveals that on the overleaf of the first page, there are two portions of writing. One is in respect of receipt of the amount of Rs. 4,00,000/- (Rupees Four lakhs only) by the appellant having no date and the second portion is in respect of receipt of amount of Rs.40,000/- (Rupees Forty thousand only) by the appellant by a bearer cheque. The first Appellate Court has relied on the version of the attesting witness, namely Panjabrao Shankar Thakre (PW2). He explained the first writing on the overleaf regarding receipt of Rs.4,00,000/-. According to him, it was written on the very same day of the agreement. The fact that the appellant received Rs. 4,00,000/- is also mentioned in the body of the agreement. Rather, there is no dispute that an amount of Rs.4,00,000/- has been received by the appellant. Therefore, this circumstance removes all the suspicion over the first writing, though it has not been signed by the appellant. The subsequent writing

5 SA6.25 (J).odt shows that it has been written on 05.08.2008 and bears the signature of the appellant having accepted the amount of Rs.40,000/-. In this respect, a Bank Officer was examined as DW2 before the trial Court and it has been cogently proved by the respondents that the amount of Rs.40,000/- was received by the appellant during pendency of the suit. Therefore, this writing also cannot be held to be suspicious. This issue has been dealt with by the first Appellate Court by giving sound reasons.

8.

Put all together, I do not find force in the argument of the learned counsel for the appellant that the agreement of sale (Exh.24) is a suspicious document. The fact that during pendency of the suit the appellant had accepted the amount of Rs.40,000/- from the respondents itself fortifies the finding recorded by the trial Court as well as the first Appellate Court that the respondents were ready and willing to perform their part of the contract. 9.

Thus, no substantial question of law arises in this second appeal. The appeal is devoid of merits and hence, it is dismissed. No order as to costs.

(M.W.Chandwani, J.) Diwale Signed by: DIWALE Designation: PS To Honourable Judge Date: 17/07/2025 18:49:33