First Appeal Nos. 355 with 365 of 2010. Case: Laxman Haraklal and Ors. and etc Vs Ukhaji Zinga Mahajan and etc. High Court of Bombay (India)
| Case Number | First Appeal Nos. 355 with 365 of 2010 |
| Counsel | For Appellant: Nandode, holding for Amol S. Sawant, Adv. and For Respondents: S. P. Brahme, Adv. |
| Judges | S. V. Gangapurwala, J. |
| Issue | Specific Relief Act (47 of 1963) - Section 22 |
| Citation | AIR 2011 Bom 159 |
| Judgement Date | December 07, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
-
Both the appeals involve common question of law and as such are decided together. The respondents in both these appeals had instituted suit for specific performance of contract or in alternative for refund of the amount paid pursuant to agreement of sale. The respondents in their respective suits have contended that the appellants herein had entered into two separate agreement for sale dated 11-4-2002, thereby agreeing to sell their separate lands to the respondents herein. The price fixed was Rs. 35,000/- (Rupees thirty five thousand) per acre. It is the case of the respondents that on the date of the execution of the agreement, the respondents paid a sum of Rs. 5,00,000/- (Rupees five lacs) as earnest money to the appellants. The respondents further contended that as the names of the female members of the family of the appellants were appearing in the revenue record, the appellants agreed to remove those names before execution of the sale deed. As according to the appellants, the female members of the family have relinquished their share in the suit lands. The respondents further contended that if for any reason, the decree for specific performance cannot be passed in their favour then the earnest amount of Rs. 5,00,000/- (Rupees five lacs) be refunded along with compensation and interest thereon.
-
The present appellants in their written statement in each suit contended that they had taken hand loan of Rs. 2,00,000/- (Rupees two lacs) from the present respondents to clear up their debts and the said agreement was executed as a security for the loan. The price of the land in the said locality was more than Rs. 1,00,000/- (Rupees one lac) per acre but since it was a transaction of loan, the price of the suit lands was stated as Rs. 35,000/- (Rupees thirty five thousand) per acre in the agreement. The amount of Rs. 5,00,000/- (Rupees five lacs) mentioned in the agreement is inclusive of the principal sum of Rs. 2,00,000/- (Rupees two lacs) received by them along with interest to be paid in future.
-
The trial Court did not grant the relief of specific performance to the plaintiffs i.e. the present respondents. The trial Court came to the conclusion that the appellants have received Rs. 5,00,000/- (Rupees five lacs) but the same was not as an earnest amount but as a hand loan and the agreement of sale in favour of the respondents was only as a security for loan. The trial Court vide its judgment and decree dated 8-5-2009, directed the present appellants/original defendants to pay the present respondents a sum of Rs. 5,00,000/- (Rupees five lacs) with interest at the rate of Rs.6% p.a. from the date of suit till realisation of the decretal amount.
-
The defendants in the said suit/present appellants being aggrieved by the said judgment and decree have assailed the same in the present appeals.
-
Mr. Nandode, learned counsel holding for Mr. Amol Sawant, advocate for the appellants strenuously put forth following propositions:
(i) The trial Court erroneously disbelieved the case of the appellants that in fact, the appellants had received only Rs. 2,00,000/- (Rupees two lacs). The witnesses to the agreement have also substantiated the case of the appellants. There was no reason to discard their testimony.
(ii) The respondents have not proved the payment of Rs. 5,00,000/- (Rupees five lacs) by any cogent evidence nor their witnesses have been believed by the Court. In such circumstances the case of the appellants that only Rs. 2,00,000/- (Rupees two lacs were...
To continue reading
Request your trial