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FA/4342/2009 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4342 of 2009
=========================================================
SHANKARBHAI
HUNDRAJMAL LALWANI - Appellant(s)
Versus
RAJNIKANT
TRIKAMLAL KOTAK & 2 - Defendant(s)
=========================================================
Appearance
:
MR
ASHISH H SHAH for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 30/03/2010
ORAL
ORDER
The
appeal under Section-96 of the Code of Civil Procedure arises from
the judgment and decree dated 28/3/2008 passed by the Court No.15,
City Civil Court, Ahmedabad in Civil Suit No.879 of 2006. The
appellant is the original plaintiff and the opponents are original
defendants.
By
the impugned judgment and decree the learned Trial Court has rejected
the suit which was filed by the appellant herein seeking declaration
that the registered sale deed dated 2/7/2004 is ab initio void or
voidable. The plaintiff-appellant has also prayed that the said sale
deed may be cancelled and the vacant and peaceful possession of the
suit property (Flat No.F-1 admeasuring about 39 sq. mt. situate in
Gangaram Cooperative Housing Society Limited at land bearing survey
No.39-40 Part, TP Scheme-42 and FP No.751) may be handed over to him.
The learned Trial Court has rejected the suit. Hence, the appeal.
The
plaintiff-appellant filed aforesaid suit alleging, inter alia, that
by virtue of an agreement to sell he had agreed to sell the suit
property for a sum of Rs.2,50,000/-. An agreement to sell was
executed on 18/5/2004 whereby the opponent nos.1 and 2 had agreed to
pay a sum of Rs.2,50,000/- as the consideration and out of the agreed
amount, Rs.11,000/- was paid by account payee cheque while balance
amount was to be paid at the time of execution of sale deed or at the
time of handing over the possession of the suit property. The
plaintiff-appellant further alleged that the sale deed was executed
on 10/6/2004. However, the opponent nos.1 and 2, taking disadvantage
of his mental health made him signed the sale deed as if the agreed
consideration was Rs.91,000/- only. The plaintiff-appellant alleged
that at the time of execution of the sale deed he was paid only
Rs.80,000/- and the opponent nos.1 and 2 did not pay the balance
amount of Rs.1,59,000/- towards the agreed consideration for the
transaction. The plaintiff-appellant has also alleged that at the
material point of time he was undergoing treatment for disturbed
mental health and taking disadvantage of the said situation the
opponent nos.1 and 2 committed fraud and got the sale deed executed.
He, therefore, prayed for declaration that the sale deed was void or
voidable.
The
suit was contested by the opponent nos.1 and 2 by filing written
statement wherein the said opponents denied all allegations made by
the appellant-plaintiff and stated inter alia, that they had paid the
entire consideration for the transaction and nothing remained
outstanding or unpaid as per the registered sale deed. The said
opponents also claimed that the alleged agreement to sell was not a
registered document and agreement between the parties was as per the
terms mentioned in the registered sale deed executed on 10/6/2004.
Replying the allegations, the opponents stated inter alia, that they
had paid Rs.11,000/- by account payee cheque on 11/5/2004 and they
had made further payment of Rs.80,000/- by cheque Nos.144184 and
144185 dated 28/6/2004 drawn on Union Bank of India. The said
opponents also claimed that the balance amount was paid in cash at
the time of execution of sale deed. The replying opponents also
asserted that as per the Jantri, the market price at the relevant
time was to the tune of Rs.1,09,000/- and that the charges towards
the stamp duty and registration expenses were also borne by them.
In
light of such rival contentions and pleadings, the learned Trial
Court framed below mentioned seven issues:
1) Whether
the suit of the plaintiff is maintainable in law and facts?
2) Whether
the plaintiff proves that he was suffering from mental illness and
was not in a position to protect his interest as alleged?
3) Whether
the plaintiff proves that the defendant has taken undue advantage of
weak mental health of the plaintiff?
4) Whether
the plaintiff proves that the defendant has got executed the sale
deed in question under fraud and undue influence as alleged?
5) Whether
the sale deed in question is void ab initio or voidable as alleged?
6) Whether
the plaintiff is entitled to the relief as prayed for?
7) What
order and decree?
On
evaluation of the evidence and examination of other material on
record, the learned Trial Court replied the issued Nos.1 to 6 in
negative and dismissed the suit without granting any relief in favour
of the plaintiff.
Learned
advocate Mr. Ashish Shah appearing for the appellant has submitted
that the opponent nos.1 and 2 had taken disadvantage of the mental
health of the plaintiff-appellant who was suffering from depressive
disorder since around 2002 and was undergoing treatment since May,
2004. The learned counsel for the appellant submitted that the
consideration for the transaction was Rs.2,50,00/-, however, the
appellant was paid only Rs.91,000/- by the opponent nos.1 and 2 and
that the opponent no.3, the broker, had also acted hands-in-glove
with the opponent nos.1 and 2 and gave evidence against the
appellant. The learned counsel for the appellant heavily relied upon
the evidence of Dr. Hemang C. Patel who was examined as the witness
of plaintiff-appellant and whose deposition was recorded at Exh.44.
He submitted that the doctor had stated that the appellant was
suffering from depressive disorder and was not mentally fit, at the
relevant time, to take any decision. He laid stress on the said
evidence of Dr. Hemang Patel and submitted that the learned Trial
Court committed serious error in not giving due consideration and
weightage to the evidence of Dr. Patel. The learned counsel
submitted that the learned Trial Court ought to have held that the
appellant was not in a position to enter into such transaction at the
relevant time and for such reason, the sale deed ought to have been
declared void or voidable at the instance of the appellant. The
learned counsel assailed the impugned judgment as contrary to
evidence on record and prayed that the same may be set aside and
decree as prayed for may be granted in favour of the appellant.
For
considering the submissions of the appellant, by order dated
16/3/2010, the Record and Proceedings of the aforesaid suit was
called for and I have carefully taken into consideration the Record
and Proceedings pertaining to Civil Suit No.879 of 2006.
I
have also carefully scanned the deposition of Dr.Hemang Patel. It
deserves to be noted that though the appellant in his claim had
alleged that the opponent nos.1 and 2 had paid only Rs.11,000/- at
the time of executing agreement to sell and thereafter Rs.80,000/-
while the sale deed was executed. However, during his cross
examination, as rightly observed by the learned Trial Court, the
appellant-plaintiff admitted that the contesting opponent had paid
Rs.75,000/- in cash at the time of/after execution of the sale deed.
He also stated in his evidence that a sum of Rs.1,68,000/- was paid
to him. There are apparent contradictions between the claim in the
plaint and the oral evidence. Further more, it is not in dispute
that the alleged agreement to sell was not registered, though
registration of agreement to sell is a statutory obligation.
It
is an undisputed fact that after selling the suit property to the
opponent nos.1 and 2, the plaintiff-appellant purchased a larger flat
in the same society and started residing in the said larger
accommodation and that the plaintiff-appellant had handed over vacant
possession of the suit property to the opponent nos.1 and 2 after the
sale deed was executed and registered.
What
is most pertinent is the fact that it was also admitted by the
plaintiff-appellant that his family comprise, besides him, his wife
and two major sons. One of the sons is an employee with the Income
Tax department and other one is serving in a limited company (Samsang
India Ltd.). It cannot be digested that even the family members
would not take any steps if the facts as alleged were true and any
fraud was perpetrated, as alleged.
It
is also pertinent to note that the plaintiff-appellant handed over
the possession of the suit property to the opponent nos.1 and 2
immediately after registration of the sale deed on 10/6/2004 whereas
the suit came to be filed two years thereafter i.e. in 2006.
The
time gap of almost two years coupled with the fact that the appellant
had handed over the possession of the suit property without any
protest or condition and purchased another larger premises and then
filed the suit after two years, belies the claim of the appellant and
exposes the absence of truth and facts in the allegations.
It
is unpalatable that not only the plaintiff-appellant but even his
wife and/or the two sons also did not realize that fraud, as
subsequently alleged, was committed by the contesting opponent nos.1
and 2.
Had
it been the correct position then in the first instance the appellant
and his family members would not have parted with the possession and
in any case would not have waited for two years before filing the
suit. In the present case the plaintiff-appellant did not take any
action for almost two years even after handing over the possession.
Not only the plaintiff-appellant but any of the family members also
did not take any action.
The
evidence of the broker i.e. opponent no.3 has also gone against the
plaintiff-appellant and he has not been able to establish that the
broker also acted in collusion with the purchaser and was party to
the alleged fraud.
The
learned Trial Court has discussed at length the evidence of the
plaintiff, the doctor and the opponents and has evaluated the
allegations of the plaintiff in light of the material on record.
The
learned Trial Court has enumerated contradictions in the plaintiff’s
assertion about his mental health viz-a-viz the doctor’s evidence.
It
also cannot be overlooked that the alleged agreement to sell was,
despite statutory obligation, not registered. As against the said
unregistered document, the document before the learned Trial Court
was the registered sale deed in respect of which any objection was
not raised for long span of about two years. As noticed above, not
only the plaintiff-appellant but his family members also never raised
any objection.
In
the backdrop of these facts coupled with the evidence of opponent
no.3 supporting the registered sale deed and the defence of opponent
nos.1 and 2, no fault can be found with the conclusion of the learned
Trial Court that the relief prayed for by the plaintiff was not be
available.
Only
on the strength of the evidence of the doctor, the
plaintiff-appellant has come out with allegation of fraud. In his
deposition, the plaintiff’s witness Dr. Hemang Patel has stated that
unless (or only if) the intensity of depressive disorder increase,
ordinarily the patient is able to take decisions after evaluating the
pros and cons. Any of the family members have not given evidence
supporting the plaintiff’s case that the sale deed was obtained by
taking disadvantage of his mental ill health.
After
careful examination of the material on record it is not possible to
hold that the learned Trial Court is incorrect in its conclusion or
that the final order is contrary to evidence. Actually the factual
backdrop, particularly the time lag between the date of registration
of the sale deed, handing over the possession of the property
viz-a-viz the presentation of the suit do not support the allegations
and/or the prayer of the plaintiff.
The
plaintiff-appellant has not been able to make out any case to upset
the decision of the learned Trial Court. The appeal therefore does
not deserve to be entertained and is required to be dismissed. The
appeal is accordingly rejected. No order as to costs.
(K.M.THAKER,
J.)
(ila)
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