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2014 DIGILAW 251 (BOM)

Sainath Vassant Naik Gaonkar v. K. K. Daniel

2014-01-31

F.M.REIS

body2014
Judgment : 1. Heard Mr. Shivan Desai, learned counsel appearing for the appellants, Mr. C. A. Coutinho, learned counsel appearing for the respondent no.1 and Mr. A. F. Diniz, learned counsel appearing for the respondent no.2. 2. The above appeal has been admitted on the following substantial questions of law by an order dated 02.12.2008. (i) Whether the suit filed by the plaintiffs/respondent nos. 1 and 2, is barred by limitation? (ii) Whether the suit filed by the plaintiffs/respondent nos. 1 and 2, is barred under the Benami Transaction Act? 3. Mr. Desai, learned counsel appearing for the appellants before adverting to his submissions on the aforesaid substantial questions of law submitted that there is an additional substantial question of law which also arises in the present appeal as to whether the respondent nos. 1 and 2/plaintiffs have established the essential terms of the agreement to be entitled for the specific performance of the contract in the context that there is variance between the pleadings and the evidence. 4. Mr. Coutinho and Mr. Diniz, learned counsel appearing for the respective respondents have opposed the said prayer of Mr. Desai, learned counsel appearing for the appellants. It is submitted by the learned counsel that the said substantial question of law does not at all arise in the present Second Appeal as in any event, it is essentially a question of fact which cannot be appreciated by this Court in the present Second Appeal. 5. On hearing the learned counsel, I find that the question as to whether the oral agreement has been established or not is essentially a question of fact. Apart from that, the Courts below have also relied upon the writing executed by the appellant no.1/defendant no.1 in the suit to confirm the oral understanding arrived at between the parties. On the facts of such findings of the fact of the fact finding Court, I find that the said substantial question of law as proposed by Mr. Desai, learned counsel appearing for the appellants would amount to essentially re-appreciating the evidence on record which exercise is not permissible by this Court unless the findings are perverse in terms of Section 100 of Civil Procedure Code. As such, the contention of Mr. Desai, learned counsel appearing for the appellants to frame an additional substantial question of law stands rejected. 6. Dealing with the first substantial question of law, Mr. As such, the contention of Mr. Desai, learned counsel appearing for the appellants to frame an additional substantial question of law stands rejected. 6. Dealing with the first substantial question of law, Mr. Desai, learned counsel appearing for the appellants has pointed out that in terms of Article 54 of the Limitation Act, the suit was not filed within a period of three years from the date of the sale agreement executed in favour of the appellants, and as such the suit is barred by limitation. The learned counsel has pointed out that in the averments in the plaint there are pleadings to the effect that the respondent nos. 1 and 2/plaintiffs have approached the appellant no.1 to execute the said agreement which he had refused. The learned counsel as such points out that this itself discloses that the suit was filed much after the period of three years from the date the appellant no.1 showed his disinclination to execute the document of transfer. Mr. Coutinho, learned counsel appearing for the respondent no.1 however has taken me through the judgment of the learned Lower Appellate Court which discloses that the learned Lower Appellate Court has come to the conclusion that only when the legal notice was issued to the appellant no.1 to honour the commitment, the cause of action arose for the respondent nos. 1 and 2 to file the suit. Mr. Diniz, learned counsel appearing for the respondent no.2 has supported the said submissions of Mr. Coutinho, learned counsel appearing for the respondent no.1. 7. The question as to when the appellant no.1 has shown disinclination and refusal to honour the commitment between the appellant no.1 and the respondent no.2 is essentially a question of fact. The learned Lower Appellate Court on the basis of the legal notice served by the respondent nos.1 and 2 has come to the conclusion that such refusal has given a cause of action to the respondent nos. 1 and 2 to file the suit for specific performance. On perusal of the written statement filed by the appellants, I find that there are no pleadings to substantiate the contention that much prior to the said date of the said legal notice, the appellants had shown his refusal to honour the commitment, and as such the contention of Mr. 1 and 2 to file the suit for specific performance. On perusal of the written statement filed by the appellants, I find that there are no pleadings to substantiate the contention that much prior to the said date of the said legal notice, the appellants had shown his refusal to honour the commitment, and as such the contention of Mr. Desai, learned counsel appearing for the appellants that the findings of the learned Judge are perverse on that count cannot be accepted. As the appellants have failed to produce any evidence to disprove the contention of the respondent nos. 1 and 2, such refusal came from the appellants only after the legal notice was served on them. Thus these findings of fact based on appreciation of evidence cannot be re-appreciated by this Court in the present Second Appeal to draw any contrary conclusion. The findings of fact have been arrived at on the basis of the material on record and this Court cannot reappreciate such findings of fact unless perversity shown by the appellants on such findings. As such, the findings cannot be said to be by any misreading of evidence or by relying upon any inadmissible evidence and as such there is no perversity in such findings to call for interference by this Court in the present Second Appeal under Section 100 of Civil Procedure Code. The first substantial question of law is answered accordingly. 8. With regard to the second substantial question of law, the learned counsel appearing for the appellants has taken me through Section 2 of the Benami Transactions (Prohibition) Act, 1988 and pointed out that on bare reading of the plaint, it clearly provides that the respondent nos. 1 and 2 have pleaded that the property was being purchased by the appellant no.1 with the consideration provided by the respondent nos. 1 and 2 which comes within the meaning of a benami transaction in terms of the said Act. The learned counsel further submitted that such claim stands barred in terms of Section 4 of the said Act. The learned counsel as such points out that the substantial question of law framed by this Court is to be answered in favour of the appellants and consequently, the impugned judgment passed by the learned Lower Appellate Court deserves to be set aside. 9. On the other hand, Mr. The learned counsel as such points out that the substantial question of law framed by this Court is to be answered in favour of the appellants and consequently, the impugned judgment passed by the learned Lower Appellate Court deserves to be set aside. 9. On the other hand, Mr. Coutinho, learned counsel appearing for the respondent no.1 has pointed out that a claim for specific performance of an immovable property is an actionable claim and does not create any interest or right of any immovable property. In support of his submissions, he has relied upon the judgment of the learned Single Judge of this Court reported in AIR 1994 Bombay 358 in the case of MurlidharBapuji Valve Vs Yallappa Lalu Chaugule since deceased by his heirs and representatives Sundrabai Lalu Chaugule and others. The learned counsel further pointed out that the disputed transaction, as claimed by the respondents does not come within the purview of Section 2 of the said Act and as such the question of claiming that the suit is barred by Section 4 of the said Act cannot be accepted. Mr. Diniz, learned counsel appearing for the respondent no.2 has supported the submissions of Mr. Coutinho and pointed out that in view of the judgment of Karnataka High Court reported in [2003(1) Civil LJ 484] in the case of Smt. M. Printer and others V/s Marcel Martins, once it is established that the consideration has been accepted to be given by the benamidar as well as the person claiming such right in the property, such transaction cannot be termed as a benami transaction in terms of Section 2 of the said Act. The learned counsel thereafter has taken me through the plaint and pointed out that it is the case of the appellants and respondent nos. 1 and 2/plaintiffs in the suit that the consideration towards the purchase of the property was provided not only by the plaintiffs but also by the defendant nos. 1 and 2 who are the appellants herein. The learned counsel further pointed out that this itself shows that the bar in terms of Section 4 of the said Act is not applicable to the respondents in the facts and circumstances of the case. 10. I have considered the submissions of the learned counsel and I have also gone through the records. The learned counsel further pointed out that this itself shows that the bar in terms of Section 4 of the said Act is not applicable to the respondents in the facts and circumstances of the case. 10. I have considered the submissions of the learned counsel and I have also gone through the records. Before I proceed to examine the said contention, it would be appropriate to briefly stipulate the facts and circumstances of the above case. It is the case of the respondents that they along with the appellant no.1 and the original respondent no.3 herein took part in Court auction held on 25.08.1993 in respect of the suit plot and such auction was taken in the name of the appellant no.1 since the respondents learnt that they could not purchase the suit plot jointly admeasuring an area of 1935 square metres of the property surveyed under No.81/1 situated at Curchorem village. It is further their case that at the time of such auction an agreement was arrived at amongst such party as to how to divide the suit property and the contribution to be made by each of them. It is further the case of the respondents that the respondent nos. 1 and 2 /the original plaintiffs paid a sum of Rs.38,750/-on 25.08.1993 which amount was deposited in the Court. It is also stated that the respondent no.1 and the plaintiff no.2 in the suit also paid a sum of Rs.40,000/-on 07.09.1993 which amount along with the amount of appellant no.1 and the respondent no.3 was paid in Court on 08.09.1993. Despite of request to comply with the formalities of dividing the property, as there was no response on the part of the appellants the suit came to be filed by the respondent no.1 after addressing a notice to the appellants. The suit was resisted by the appellants herein inter-alia raising a preliminary objection that the suit was barred by limitation and that there was no agreement between the appellants and the said respondent with regard to the suit property. It is further their case that they had taken a loan from the respondent nos. 1 and 2 because the appellant no.1 was in need of money to deposit in Court. It is also their case that the respondent no.2 approached him for a plot and paid a sum of Rs.40,000/- to the appellant no.1 on 07.09.1993. It is further their case that they had taken a loan from the respondent nos. 1 and 2 because the appellant no.1 was in need of money to deposit in Court. It is also their case that the respondent no.2 approached him for a plot and paid a sum of Rs.40,000/- to the appellant no.1 on 07.09.1993. It is further their case that the respondents are not entitled for any relief in the suit. The learned Trial Judge framed the issues and recorded evidence and by judgment and decree dated 31.08.2004 the suit filed by the respondent nos. 1 and 2 came to be dismissed. Being aggrieved by the said judgment and decree, the respondent nos. 1 and 2 preferred an appeal before the learned Appellate Court and by judgment and decree dated 23.06.2006, the appeal was allowed and the judgment of the learned Trial Court was set aside and the suit filed by the respondent nos. 1 and 2 was decreed. The learned Appellate Court after re-appreciating the evidence on record came to the conclusion that there was a valid and concluded contract between the appellants and respondents which was legally enforceable. The learned Judge while appreciating the evidence on record took note of the fact that the appellants had admitted in the written statement that a sum of Rs.38,750/- was paid to the appellant no.1 besides the said amount was used to make the deposit in the Court. The learned Judge also noted that the Court auction was in respect of same plot which is the subject matter of the suit and further that the appellants had also admitted the receipt of Rs.40,000/- from the respondent no.2 which was also paid towards the part payment of the auction price in the Court. The learned Judge also noted the receipts which were on record in connection with the said payment disclosing the purpose for which the said amount was in fact paid to the appellants. The learned Judge on the basis of material on record and evidence came to the conclusion that there was concluded agreement between the parties in respect of the said plot. On such basis the appeal came to be allowed. It is also to be noted that the suit being barred by the provisions of Benami transactions (Prohibition) Act, 1988 as raised before this Court was not even advanced before the Courts below. On such basis the appeal came to be allowed. It is also to be noted that the suit being barred by the provisions of Benami transactions (Prohibition) Act, 1988 as raised before this Court was not even advanced before the Courts below. In any event, considering that the appeal has been admitted on that count, I shall now proceed to examine the above substantial questions of law in the light of the said findings of the fact finding Court and ascertain whether such plea is available to the appellants herein. Section 2 of the Benami Transactions (Prohibition) Act, 1988 provides thus: “2. Definitions.- In this Act, unless the context otherwise requires,- (a) “Benamitransaction” means any transaction in which property is transferred to one person for a consideration paid or provided by another persons; (b) “prescribed” means prescribed by rules made under this Act; (c) “property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.” 11. The Apex Court had occasioned to consider when a suit filed on the assumption that the consideration is paid by the plaintiff as well as the defendant who is a benamidar, would amount to a benami transaction in terms of Section 2 of the said Act. The Apex Court in the judgment reported in (2012) 5 SCC 342 in the case of Marcel Martins Vs M. Printer and others, has observed at paras 18 and 19 thus: “18. The High Court noticed the reasons given by the Trial Court in support of its findings and found the same to be untenable. The High Court observed: “Therefore, in view of my discussion as aforesaid, I am of the opinion that the defendant has miserably failed to establish that the entire sale consideration of Rs.48,636 was paid by him. On the contrary the plaintiffs have established their case that plaintiffs 2, 3 and 4 and the defendant have contributed Rs. 5000 towards the sale consideration and the balance amount has been contributed by the first plaintiff. As such it cannot be said that the defendant is the absolute owner of the suit schedule property.” 19. On the contrary the plaintiffs have established their case that plaintiffs 2, 3 and 4 and the defendant have contributed Rs. 5000 towards the sale consideration and the balance amount has been contributed by the first plaintiff. As such it cannot be said that the defendant is the absolute owner of the suit schedule property.” 19. We do not find any error much less any perversity in the view taken by the High Court nor do we see any miscarriage of justice to warrant interference with the finding that the sale consideration for the purchase of the suit property was contributed by the plaintiffs and the defendant and not provided by the defendant alone as claimed by him. We have, therefore, no hesitation in upholding the said findings which is at any rate a pure finding of fact.” 12. On reading the said judgment, the Apex Court has approved the observations of the Karnataka High Court in the case of Smt. M. Printer & Ors. (supra) to come to the conclusion that when the contribution has been paid for the property by the plaintiffs and the defendants such claim cannot be considered to be a benami transaction in terms of Section 2 of the said Act. 13. The learned Single Judge of this Court in similar circumstance in the case reported in 2002(3) Bom. C. R. 475 in the case of VittalDaulat Lad V/s Ashok Govind Tawade has observed at para 12 thus: “12. As far as annexures to the plaint are concerned, no doubt they form part of the plaint, and the same are to be read along with the pleadings in the plaint. Referring to Exhibit "A" it was sought to be contended on behalf of the respondent that the same clearly discloses that the property was purchased in the name of the respondent and that the appellant has not placed reliance on any other document as being disclosing to be a document of title to the property. In the circumstances, therefore, according to the learned Advocate for the respondent, no fault can be found with the finding of the trial Court based on Exhibit "A" while holding that the suit was hit by section 4 of the Benami Act. In the circumstances, therefore, according to the learned Advocate for the respondent, no fault can be found with the finding of the trial Court based on Exhibit "A" while holding that the suit was hit by section 4 of the Benami Act. However, as rightly submitted by the learned Advocate for the appellant, the Exhibit "A" has to be read with the pleadings in the plaint and not de hors the case pleaded by the plaintiff. The pleadings in the plaint nowhere disclose the Exhibit "A" to be the document of title. On the contrary the pleadings clearly reveal the Exhibit "A" to be a statement disclosing the confirmation of payment of consideration price to the vendor and thereby cessation of ownership of the vendor in relation to the suit premises. The pleadings further specifically disclose that the consideration amount of Rs. 4500/-, in respect of the suit premises in respect of which receipt was prepared, was contributed in equal shares by the appellant and the respondent and the vendor had conveyed the suit premises in favour of the appellant and the respondent in equal shares and both the parties i.e. the appellant and the respondent had signed the said document as the executing parties for having purchased the said property in equal shares. The pleadings also disclose that the said writing was prepared by the respondent in the absence of the appellant prior to the payment of purchase price and without the knowledge of the exact contents of the said note, the appellant affixed his signature. It has been specifically stated by the appellant in the pleadings that the appellant signed the said writing as one of the purchases and that the said fact was clearly admitted by the respondent in his statement before the Metropolitan Magistrate, Bombay. The Exhibit "A" to the plaint undoubtedly refers to the description of the suit premises, payment of consideration price of Rs. 4500/-and also sale of the property by the vendor in favour of the respondent herein. It is pertinent to note that the pleadings nowhere disclose Exhibit "A" as being a document of title or a statement in relation to the conveyance of the property in favour of a particular person but the same is described as an acknowledgement in writing regarding the receipt of the sum of Rs. 4500/-by the vendor from the appellant and the respondent. 4500/-by the vendor from the appellant and the respondent. If one reads the said Exhibit "A" along with the pleadings, it is apparent that it is the case of the appellant that the property which originally belonged to one Ramalu Rajanna was purchased by the parties to the suit i.e. the appellant and the respondent for a sum of Rs. 4500/-which amount was contributed by the appellant and the plaintiff in equal shares and, therefore, the property is owned by both the parties i.e. the appellant and the respondent in equal shares. This being the case which is pleaded by the plaintiff in the absence of any dispute being raised as regards the said case and the matter having been proceeded under Order VIII, Rule 10 of C.P.C. without any challenge to the facts stated in the plaint, even assuming there is additional statement in the annexure "A" to the effect that the conveyance is in favour of the respondent, that by itself cannot be presumed to be a document of title which can justify the refusal of relief to the appellant on the basis of section 4 of the Benami Transactions (Prohibition) Act, 1988. In order to attract the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988 it is necessary that the property must be held in the name of a particular person other than the party approaching the Court with the plea that the person in whose name the property stands is not the real owner of the property but the party who is approaching the Court is the real owner of the property. That was certainly not the case of the appellant in the pleadings. The appellant in the case in hand has approached the Court with the specific plea of co-ownership and that while preparing the receipt regarding the payment of consideration amount for the property, the respondent without the knowledge of the appellant, had including an additional statement of fact in the note which was prepared only in relation to the acknowledgement of such consideration. Certainly this would not amount to any admission as such on the part of the appellant to the effect that the property stands in the name of the respondent, though appellant is real owner thereof. Much to the contrary the ownership of the respondent is also admitted to the extent of 1/2 share in the property. Certainly this would not amount to any admission as such on the part of the appellant to the effect that the property stands in the name of the respondent, though appellant is real owner thereof. Much to the contrary the ownership of the respondent is also admitted to the extent of 1/2 share in the property. Without analysing these aspects of the matter apparently the trial Court jumped to the conclusion that the contention of the appellant is to the effect that he is the real owner though receipt stands in the name of the respondent. There was absolutely no scope for the trial Court to conclude that the case of the appellant being that he is the real owner of the property though the same stands in the name of the respondent and that, therefore, it is not entertainable in view of the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988. The decision in Namdeo Laxman Nawale is of no help in the case in hand. The same was decided in totally different set of facts. Besides, the observation in para 6 of the said decision justifies the conclusions arrived at herein, rather than supporting the contentions of the Advocate for the respondent.” 14. Considering the ratio laid down by the Apex Court as well as by this Court in the judgments referred to herein above and reading the plaint filed by the respondent nos. 1 and 2 which discloses that the consideration towards the purchase of the property has been contributed not only by the plaintiffs/respondent nos. 1 and 2 but also by the appellants/defendant nos. 1 and 2 herein, the question of contending that such claim is barred in terms of Section 4 of the said Act cannot be accepted. It is also to be noted that there is no foundation laid by the appellants in the pleadings or in the evidence to raise such contention before this Court. Considering the facts and circumstances of the case, I find that the second substantial question of law framed by this Court is to be answered in favour of the respondents. 15. In view of the above, I find no merit in the above appeal which stands accordingly rejected. 16. At this stage, Mr. Considering the facts and circumstances of the case, I find that the second substantial question of law framed by this Court is to be answered in favour of the respondents. 15. In view of the above, I find no merit in the above appeal which stands accordingly rejected. 16. At this stage, Mr. Desai, learned counsel appearing for the appellants has pointed out that there is some ambiguity in the judgment passed by the learned Lower Appellate Court which require modification. Mr. Desai, learned counsel has pointed out that the learned Judge has directed that the suit property be divided into four parts, and one part be conveyed to each of the plaintiffs/respondent nos. 1 and 2. Mr. Desai, learned counsel has further pointed out that it would be appropriate that the decree be modified to the effect that half of the property be allotted to the respondent nos. 1 and 2 jointly with proper access to the main road and such half would be determined or chosen by the appellants/defendant nos. 1 and 2 herein. Needless to say that the remaining half would remain with the appellants. Mr. Coutinho and Mr. Diniz, learned counsel appearing for the respective respondents have no objection with that regard. 17. In view of the above, though the appeal stands rejected nevertheless, the impugned judgment passed by the learned Lower Appellate Court dated 23.06.2006 stands modified by consent of the learned counsel to the extent that the suit property will be divided into two halve. One half shall be allotted jointly to the respondent nos.1 and 2/plaintiffs as determined and chosen by the appellants/defendant nos. 1 and 2 and the other half shall be allotted jointly to the appellants/defendant nos. 1 and 2 with proper access to the main road. Decree stands modified accordingly.