Gujarat High Court
Bombay Garage Ahmedabad Ltd vs J P Iscon Private Ltd on 23 August, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1734 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BOMBAY GARAGE AHMEDABAD LTD & ORS.
Versus
J P ISCON PRIVATE LTD & ORS.
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Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR. AJAY MEHTA,
ADVOCATE WITH MR ANMOL A MEHTA, ADVOCATE for the Appellant(s)
No. 1,2,3
for the Defendant(s) No. 5,6,7
DELETED for the Defendant(s) No. 2,4
MR DEVEN PARIKH, SENIOR ADVOCATE WITH MR RUTUL P DESAI,
ADVOCATE for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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NEUTRAL CITATION
C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024
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Date : 23/08/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. This appeal has been preferred by Bombay Garage (Ahmedabad) Limited and Others who are the original defendants in Civil Suit No. 2515 of 2007. By a judgement and decree dated 25.11.2021 passed by the learned Judge, Court No. 4, City Civil Court, Bhadra, Ahmedabad, the trial court allowed the civil suit in favour of the respondents who are the original plaintiffs. By the judgement and decree under challenge, the appellants were directed to execute a registered sale deed in respect of land bearing Revenue Survey No. 266/17/2, Final Plot No. 332, Town Planning Scheme No. 14, admeasuring 7384 sq. mtrs. situated in the sim of village Dariapur- Kazipur, District Ahmedabad ('suit property').
2. Facts in brief are as under:
2.1 It was the case of the original plaintiffs - respondent no. 1 herein before the trial court that by a mutual Page 2 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined agreement between the plaintiff and the defendant, the appellant had contracted to sell to the plaintiff -
respondent property worth Rs.18,51,00,000/- and an amount of Rs.11,000/- was paid in cash as token earnest money at the time of the agreement.
2.2 According to the respondent - plaintiff, over a period of time, three meetings were held between the parties and it was agreed between the parties that the appellants
- defendants would on a consideration of Rs.20,50,00,000/- sell the suit property. It was the case of the respondents - plaintiffs that in addition to a token amount of Rs.11,000/-, Rs. 5 lakhs in cash as earnest money and a cheque of Rs. 5 crores dated 11.01.2007 bearing cheque no. 236878 drawn on Citibank, C.G. Road, Ahmedabad as initial amount for execution of the agreement was paid.
2.3 The appellants - defendants filed a written statement at Ex. 18 denying in toto such an oral agreement. In addition thereto, an objection was raised Page 3 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined by them that the suit filed was not maintainable under the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908 as an earlier suit being Special Civil Suit No. 173 of 2007 was withdrawn by the plaintiffs. After considering the evidence on record i.e. the deposition of witnesses on behalf of the plaintiffs and the documents produced by them so also the witnesses of the defendants and the documents produced, the trial court decreed the suit on the aforesaid terms. Hence, the appeal.
3. Mr. Mihir Thakore, learned Senior Advocate appearing with Mr. Anmol A. Mehta, learned counsel for the appellants - original respondents would make the following submissions:
(I) Reading the prayers in the plaint and paragraphs 3A, 3B and 3(1b), he would submit that these paragraphs originally did not form part of the plaint when filed on 06.12.2007. They were amended by an order dated 30.09.2011.Page 4 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024
NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined (II) Mr. Thakore would submit that on 11.05.2007, Suit No. 173 of 2007 was instituted by the very plaintiffs before Ahmedabad (Rural) seeking permanent injunction with regard to the suit property. He would read the plaint of the civil suit produced at Ex. 188. Undisputedly, according to him, no prayer for specific performance of the oral agreement was made in the suit which was subsequently withdrawn on 12.07.2007. The prior suit having been withdrawn without leave being granted to file a fresh suit, the respondents - original plaintiffs were precluded from filing a fresh suit. He would rely on the provisions of Order II Rule 3 of the Code of Civil Procedure, 1908.
(III) Mr. Thakore would submit that on reading the plaint, the examination in chief and cross examination of the plaintiff at Ex. 94, affidavit of P.W. 2 Shri Vajubhai Vala and his cross examination, affidavit of P.W. 3 - Jatin Madanlal Gupta, it was clear that there were serious inconsistencies and contradictions in the story made out Page 5 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined in the plaint. The inconsistencies in the pleadings would indicate that the witnesses were not clear as to where did the first meeting take place i.e. whether at the residence of P.W. 1 Shri Pravinbhai Kotak at Ahmedabad or at the residence of P.W. 2 Shri Vajubhai Vala. That the witnesses were unclear on the number of meetings held and the names and the number of negotiators present at the meeting. He would submit that there were inconsistencies in the statements on the aspect of when and how the cheque of Rs.5 crores was handed over to whom. He would further submit that there were serious doubts as to whether the respondent no. 3 Jai Rajubhai Shroff was authorised to act for and on behalf of the company.
(IV) Mr. Thakore would read the depositions of P.W. 1 Shri Pravinbhai Kotak, his cross examination, that of Shri Vajubhai Vala P.W. 2 as also his cross examination on affidavit and submit that when the case of the plaintiffs hinges on specific performance being sought through a Page 6 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined purported oral agreement when read in light of the deposition of respondent no. 3 and other witnesses, it is clear that there were inconsistencies on the presence of Shri Jai Shroff. He would submit that Shri Vajubhai Vala had no knowledge of the fact whether Shri Jai Shroff was authorised on behalf of the company to enter into any transaction for the suit property. Reading the various testimonies on record, Mr. Thakore would make an endevour to submit that each of the witnesses on behalf of the plaintiffs could not demonstrate of the meetings that were held either in August or in November and the place of the meetings which would indicate that these glaring inconsistencies and contradictions in the stand of the witnesses in light of a total denial did not in any manner prove a case of enforcement of an oral agreement as prayed by the respondents - plaintiffs. (V) Mr. Thakore would submit that though it was projected that there were three meetings between the parties, on reading the amended plaint, it is apparent that Page 7 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined the plaint only talks about two purported meetings. He submitted that the party who seeks specific performance of an oral agreement needs to discharge a heavy burden on it to prove enforcement of an oral agreement and from the evidence on record, the original plaintiffs are not being able to connect the dots and discharge the onus to prove that they were entitled to grant the very relief of specific performance. That the original plaintiffs - respondents had failed to prove beyond reasonable doubt that the vital and fundamental terms were negotiated which culminated into a concluded agreement. The suit was therefore liable to be dismissed. In support of his submission, Mr. Thakore would rely on the following decisions:
Brij Mohan and Others vs. Sugra Begum and others reported in (1990) 4 SCC 147 K. Nanjappa (Dead) by legal representatives vs. R.A. Hameed Alias Hameersab (Dead) by legal representatives & another reported in (2016) 1 Page 8 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined SCC 762.
(VI) Mr. Thakore would submit that a suit for specific performance based on bald and vague pleadings must be rejected. Merely by identifying a parcel of land, by unilaterally asserting the monetary value for its proposed sale and asserting that meetings were held, and a token amount was paid, itself would not lead to believing that the parties had concluded the contract. In absence of any clarity on the amounts paid and in absence of any proof of evidence, and writing of the minutes of the meeting, he would submit that the vagueness and uncertainties of the terms of agreement would not entitle the respondents -
plaintiffs to seek a decree of specific performance. He would rely on a decision in the case of Hiralal Motilal Sheth and Others vs. Rameshwar Ballabram Bhatwal and others reported in (1952) 2 SCC 547. (VII) Mr. Thakore would submit that before granting a decree of specific performance there are certain aspects which the trial court ought to have looked into namely Page 9 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined whether there existed a valid and concluded contract, whether the plaintiffs were ready and willing to perform their part of the contract and if performed to what extent had such performance been made. He would further submit that the statutory requirements under Sections 16, 20, 21, 22 and 23 of the Specific Relief Act were never fulfilled and therefore the plaintiffs having failed in the very first step to prove that there was a valid and a completed contract could not have been entitled to a decree of specific performance. He relied on the decision in the case of Kamal Kumar vs. Premlata Joshi and others reported in (2019) 3 SCC 704.
(VIII) Mr. Thakore, learned Senior Counsel would submit that the trial court has unnecessarily been over awed by the affidavit and cross examination of P.W. 2 merely because he was earlier the Speaker of the Legislative Assembly of Gujarat and then the Governor of Karnataka. No special privilege could have been carved out for a witness. The undue emphasis on believing his Page 10 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined testimony as gospel truth only because he was a constitutional authority was misconceived. There was no reason for him as a Finance Minister of Gujarat in the year 2006-07 to get involved in a land deal between two private parties. He would further submit that the affidavit of Shri Vajubhai Vala completely dismisses the case of the plaintiffs as the plaint does not refer to his role at all. Reliance was placed on the decision in the case of the Kashi Nath (Dead) through Legal heirs vs. Jaganath reported in (2003) 8 SCC 740. (IX) Mr. Thakore, learned Senior Counsel would further submit that the trial court could not have drawn adverse inference against the deposition of the appellant no. 2 - Smt. Poonam Bhagat and appellant no. 3 - Smt. Rajniben Bhagat. It could not have been inferred by the trial court that these witnesses gave incorrect, evasive and false answers. He would reiterate that the alleged witnesses of the defendant's case could not make the plaintiff's case stronger as it was essentially the burden of the plaintiffs Page 11 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined to prove their case. Reliance was placed on the decision in the case of State of Madhya Pradesh vs. Ushadevi reported in (2015) 8 SCC 672.
(X) Mr. Thakore would submit that after the first purported meeting in August 2006, no further correspondence or follow-up was made by the parties and there is nothing on record to show that the plaintiffs made calls or texted messages or letters for pressing to enforce the contract in question. On the question of the construction of the letter dated 25.11.2006, on which heavy reliance was placed by the original plaintiffs to support their story, Mr. Thakore would submit that the letter and question was not proved as evidence by respondent no. 1. Existence of the letter even if believed to be true, such a letter is an internal communication from an unknown sender of the appellant company. The letter in no manner proves that a concluded contract was entered into between the parties. The testimony of Shri Pravinbhai Kotak in context of the letter contradicts the Page 12 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined averments made in the plaint.
(XI) Mr. Thakore would submit that no reliance can be placed on the affidavit of Mr. Jai Shroff because the same was not exhibited.
(XII) Relying on the decision in the case of Chiragbhai Hasubhai Virani vs. Hetalben W/o Chiragbhai Virani D/o Pradipbhai Jayantibhai Shah reported in 2023 AIJEL - HC - 248062, Mr. Thakore would submit that it is not that the appellate court cannot take a second plausible view in case if it disagrees with the findings of the trial court. In the case on hand, when there were serious inconsistencies and contradictions of the evidence on record, the appellate court has always powers to reverse the decision so taken. Reliance was also placed on the following decisions:
Malluru Mallapa (D) Thr. LRS. vs. Kuruvathappa and others rendered in Civil Appeal No. 1485 of 2020.
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NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined V. Prabhakara vs. Basavaraj K. (Dead) by legal representatives & Another reported in (2022) 1 SCC 115. (XIII) Strongly relying upon the provisions of Order II Rule 2 read with Order XXIII, Rule 3 of CPC and reading the plaint in the previous suit, Mr. Thakore, learned Senior Counsel would submit that the plaintiffs either intentionally omitted or otherwise to seek relief of specific performance. Reading the averments in both the plaints, Mr. Thakore would submit that as per Order II Rule 2(2) CPC, when a plaintiff has omitted to seek the relief of specific performance that would amount to relinquishment and the withdrawal pursis citing technical reasons would not entitle the respondents to file a fresh suit as no leave to file such suit under Order XXIII Rule 1(3) was taken. He would rely on the following decisions:
Gurubux Singh vs. Bhooralal reported in (1964) SCC OnLine SC 101.
Vurimi Pullarao S/O. Satyanarayana vs. Vemari Page 14 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Vyankata Radharani w/o. Dhankoteshwarrao and others reported in (2020) 14 SCC 110.
(XIV) Pressing into service the provisions of Section 46 of the Companies Act, Mr. Thakore would submit that there was no authorised board resolution authorising Mr. Jai Shroff to act on behalf of the company. The witnesses of the plaintiffs had nowhere clearly stated about the authority of the respondent no. 3 Mr. Jai Shroff and no board resolution was placed on record. The theory of receiving money as a token by the representative in absence of any authority would not make the deal valid.
Reliance was placed on Smt. Deepa Bandekar vs. Rajaram Mines reported in 1990 SCC OnLine Bom
435. Relying on a decision of the Apex Court rendered in a Civil Appeal arising out of SLP (C) No. 2246 of 2017, Mr. Thakore, learned counsel would submit that the relief for specific performance was a discretionary relief and the courts while granting such relief have to be extra cautious. In facts of the present case, in absence of Page 15 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined specific and accurate pleadings, the trial court could not have granted such a relief. He also relied on the following decisions:
Kollipara Sriramulu vs. T. Aswatha Narayan reported in AIR 1968 SC 1028;
Lala Durga Prasad and Others vs. Lala Deep Chand and others reported in (1953) 2 SCC 509;
Maung Paung and Another vs. Ma On and others reported in AIR 1923 Rang 242.
Mr. Thakore would therefore submit that the appeal deserves to be allowed and the decree against the appellants ought to be reversed.
4. Mr. Devan Parikh, learned Senior Counsel appearing with Mr. Rutul Desai, learned advocate for the respondents - appellants made the following submissions:
(i) In answer to the submission of the learned Senior Counsel Mr. Mihir Thakore that only oral evidence has Page 16 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined been considered for the purpose of decreeing the suit, he would submit that the present case is in the context of oral agreement and therefore the evidence which is required to be considered obviously is going to be oral.
Based on the evidence, it is clear that the parties clearly understood the concluded oral contract which was to be performed in a particular manner. The trial court after dealing with every argument and appreciating the oral evidence, has disbelieved the oral evidence of the defendants no. 1, 2 and 9. The respondents - plaintiffs successfully discharged their burden by giving credible oral evidence to prove that the meetings did take place which ultimately culminated into a concluded oral contract. The defendants - appellants herein failed to discharge their burden of proof. He would submit that the basic foundational facts that a meeting was held between the defendant no. 6 with the plaintiff at Gandhinagar where the defendant no. 1 confirmed the sale through Smt. Rajni Bhagat was clearly made out. That on agreeing for a revised consideration amount of Page 17 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Rs. 20,50,00,000/-, that a cheque of Rs. 5 crores was handed over and was accepted by Smt. Rajni Bhagat is established. The trial court on the basis of the credibility of oral evidence believed the case of the plaintiffs - respondents and correctly came to the conclusion that while the evidence of the plaintiffs' witnesses are believable, that of the defendants' witnesses are wholly incredible and cannot be believed. He would further submit that the trial court did not commit any error nor did it view the evidence of Shri Vajubhai Vala in context of his constitutional office. His evidence was that of a neutral party who had nothing to gain from the contract.
(ii) Mr. Parikh, learned counsel would submit that reading the affidavit of Shri Jai Shroff, it is very clear that the affidavit specifically accepts that meetings and negotiations did take place for sale of subject land. The affidavit lends corroboration to the case of the respondents - plaintiffs that meetings and negotiations did take place where all relevant terms were finalised and Page 18 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined earnest money of Rs.5,11,000/- and a cheque of Rs. 5 crores was given. He would further submit that the cross examination of Smt. Rajani Bhagat clearly demonstrated beyond doubt that she could not deny the meetings, negotiations and conclusion of the contract at Shri Vajubhai Vala's residence. The plaintiffs - respondents had successfully shifted the onus of proof from the defendants which the defendants had failed to discharge.
(iii) It is in light of the evidence led by the plaintiffs that the letter dated 25.11.2006 conclusively establishes that the contract was entered into. By the aforesaid letter, Smt. Rajni Bhagat had written to the Ahmedabad office that all necessary documents and certificates which would disclose that a contract was entered into were to be forwarded to the plaintiff Shri Pravinbhai Kotak.
(iv) Mr. Parikh would submit that in a contract for agreement to sell and purchase of land, there are a few facts which need to be ascertained. In the present case, in light of the fact that when the three fundamental Page 19 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined things namely the identity of the property, the consideration price to be paid and the time for completion and payment were agreed to, negotiations amounted to a concluded contract and even if it was oral, it could be specifically performed. The learned trial court on the basis of appreciation of evidence had come to a right conclusion. In order to support, that there was an oral agreement which could be specifically enforced or it was the case of the respondents - plaintiffs that there were three meetings which took place between the parties as well as the consideration amount which came to be fixed and the plaintiffs had proved the same by leading oral evidence.
Reading paragraph no. 3A of the plaint and reading the oral evidence of Shri Pravinbhai Kotak, Mr. Parikh would submit that it was clear that a meeting did take place at Gandhinagar at Mr. Vajubhai Vala's residence. The sale consideration amount had been fixed and a token amount of Rs.11,000/- was paid. Mr. Jatin Gupta, Ex. 144 was a witness who also stated about the meeting Page 20 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined taking place at Gandhinagar. In the cross-examination, he had stood by his testimony that he would confirm that earnest money was paid to the defendant no. 6 at the first meeting held at Shri Vajubhai Vala's residence. Mr. Parikh would read Ex. 139 the oral evidence of Shri Vala and submit that reading of his testimony would indicate that he knew both the parties and therefore a meeting was held at his residence and a price of Rs.18.51 crores was fixed. That even the defendant no. 6 Mr. Jai Shroff in his presence telephonically informed Ms. Bhagat who agreed to the same. The cross examination of this witness did not show otherwise.
(v) With regard to the second meeting, which according to the evidence on record, was held at the residence of Mr. Pravinbhai Kotak at Satyagrah Chhavni, Mr. Parikh would submit that reading of the plaint together with his testimony would prove the same. It was clear from the evidence that the second meeting was held in August 2006 at Satyagrah Chhavni in presence of Mr. Jatin Page 21 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Gupta. The meeting resulted in a concluded contract. Mr. Jatin Gupta, in his examination in chief also referred to this meeting.
(vi) Reading the plaint para 3(b1) and the evidence of Mr. Pravin Kotak and Mr. Jatin Gupta, Mr. Parikh would submit that, that a third meeting did take place at Mumbai on 20.11.2006 at Mr. Jai Shroff's office is also proved. This is evidence from the testimony of Shri Pravin Kotak and Shri Jatin Gupta. Mr. Parikh would submit that minor inconsistencies and variations are bound to creep in, in the depositions inasmuch as the witnesses are examined and cross examined more than ten years after the suit was filed and therefore minor variations cannot lead to their evidence being discarded.
(vii) With regard to the submission of Mr. Thakore, learned counsel that an oral agreement cannot be enforced, Mr. Parikh would submit that it is clear that after the third meeting, the defendant no. 1 - respondent no. 1 handed over a letter dated 25.11.2006 which proves Page 22 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined that an oral contract between the parties was concluded. This is an independent piece of evidence. As against the evidence led by the plaintiffs, the trial court has rightly not believed the oral evidence led by the defendants as what is evident is that the defendants except in total denial have not set out any other defence and therefore an adverse inference is required to be drawn against them.
(viii) Relying on the evidence of Smt. Poonam Bhagat, Mr. Parikh, learned counsel would submit that she has completely denied any meeting. In the cross examination, she has given evasive answers. Mr. Parikh would also read the oral evidence of Smt. Rajni Bhagat at Ex. 164. He would submit that the oral evidence cannot be discounted. It is a fact that the evidence on record clearly proves that the parties were ad idem on material terms of the contract. He would rely on the following decisions:
Kollipara Sriramulu (Dead) by his Legal Page 23 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Representatives vs. T. Aswatha Narayana (dead) by his Legal Representatives and Others [1968 SCC Online SC 87] Lala Durga Prasad vs. Lala Deep Chand [(1953) 2 SCC 509] AIR 2007 (NOC) 2527 (ORI)
(ix) With regard to bar under Order II Rule 2 CPC, Mr. Parikh would submit that the submission of the appellant on this count is totally misconceived and devoid of merit.
He would submit that the plaintiffs initially did file Special Civil Suit No. 173 of 2007, however, reading of the withdrawal pursis vide Ex. 50 would indicate that the withdrawal was not unconditional. The withdrawal pursis clearly stated that the plaintiffs were withdrawing the suit on a condition to file a fresh suit against the defendants. With regard to this submission on the bar under Order II Rule 2, Mr. Parikh would rely on the following decisions:
Anil Kumar Singh vs. Vijay Pal Singh and Page 24 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Others [(2018) 12 SCC 584] Gurinderpal Singh vs. Jagmittar Singh [(2004) 11 SCC 219] Vimlesh Kumari Kulshrestha vs. Sambhajirao And Another [(2008) 5 SCC 58] Sucha Singh Sodhi (Dead) Through Legal Representatives vs. Baldev Raj Walia and Another [(2018) 6 SCC 733]
(x) On the aspect of the suit being amended, he would cite the following decisions:
Venkatraja and Others vs. Vidyane
Doureradjaperumal (Dead) Through Legal
Representatives [(2014) 14 SCC 502] Akkamma and Others vs. Vemavathi and Others [(2021) 18 SCC 371]
(xi) On the absence of authorization under Section 46 of the Companies Act of Mr. Jai Shroff as argued by Mr. Page 25 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Mihir Thakore, learned Senior Counsel, Mr. Parikh would submit that it is accepted fact that private companies are run as partnership firms and the land being owned by a company is as good as land owned by family members. It is natural that Mr. Jai Shroff being the only son-in-law is consulted by the female members of the family. Mr. Parikh would rely on the following decisions M/s. MRF Ltd. vs. Manohar Parikar [(2010) 11 SCC 374] 1923 SC OnLine Rang 169 Mr. Parikh would therefore submit that the appeal in question should be dismissed.
5. Having considered the submissions made by the learned advocates for the respective parties, in context of the case and the evidence on record, and the judgement delivered by the trial court, we are conscious of the fact that this is a case of examining oral evidence on record for enforcing specific performance of an oral agreement. Page 26 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024
NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined As the case goes, so narrated in the plaint, the suit property was a subject matter of sale. It was the case of the respondents - original plaintiffs that by a mutual agreement between the plaintiff - respondent no. 1 and the appellant - defendant no. 1 under the authority of the administrator Shri Jai Shroff - defendant no. 6, the defendants had contracted to sell to the respondent plaintiff their property. The case in the plaint is that an amount of Rs.11,000/- in cash was paid. 5.1 Subsequently, a meeting was held between the respondent no. 1 and the appellant and Shri Jai Shroff - defendant no. 6 where deliberations were held regarding the nature of further transactions and after increasing the consideration, the parties agreed to sell the property for a consideration of Rs.20,50,00,000/-. Rs. 5 lakhs were paid in cash and Rs. 5 crore cheque dated 11.01.2007 was handed over. It was agreed that the remaining amount of consideration be paid and documents pertaining to suit property are delivered. The case of the plaintiffs further Page 27 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined was that a meeting was held in August 2006 between Smt. Rajniben Bhagat, Shri Jai Shroff, Shri Pravin Kotak and Shri Jatin Gupta at the residence of Shri Pravin Kotak. Thereafter, they met on 20.11.2006 at the Mumbai office of Shri Jai Shroff where the board members were present and so was the Director Smt. Rajni Bhagat where the transaction of the amounts so referred to were made. Crucially, a letter dated 25.11.2006 was made by the Bombay office of the defendant no. 1 which had a reference of Shri Pravin Kotak for providing title documents for completing the transactions. Based on this plaint and the narrative, the trial court examined the depositions of the witnesses of the plaintiffs and the defendants and analysed the documentary evidence of the respective parties.
6. It has been an endeavour on behalf of the learned Senior Counsel for the appellants Shri Thakore to bring out inconsistencies and contradictions in the overall oral evidence of the witnesses of the respondents namely that Page 28 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined of Shri Pravin Kotak, Shri Vajubhai Vala and Shri Jatin Gupta. The target of attacking these testimonies is that there are inconsistencies on the number of meetings, the place of meetings and the handing over of the cheque of Rs. 5 Crores and as to whether the respondent no. 3 Shri Jai Shroff was duly authorized to act for and on behalf of the appellant company. The endeavour to discount the witness Shri Vajubhai Vala is on his office. Essentially, reading of the plaint would indicate that three meetings were held between various stakeholders of the oral contract which is evident from reading of the plaint which from the narrative indicates that apart from the August 2006 and November 2006 meetings, the inception of the contract was at a first meeting where a mutual agreement between the plaintiffs, the defendant no. 1 Smt Rajni Bhagat and Shri Jai Shroff was conceived. That is evident from reading paragraph no. 3A of the plaint. 6.1 Reading the oral evidence of Shri Pravinbhai Kotak Ex.94, would indicate that he states that the defendant Page 29 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined no. 6 Shri Jai Shroff, the administrator of the defendant company's director Smt. Rajni Bhagat is the son-in-law of said Smt. Rajni Bhagat. He was authorized to deal with the suit property. He further testifies that at a meeting with Smt. Rajni Bhagat and Shri Jai Shroff, a sale consideration of Rs.20,50,00,000/- was agreed to and Rs. 11,000/- was paid as earnest money. Reading his cross examination would indicate that he has stated about a meeting having taken place at Gandhinagar where one Mr. Keyur Shah was also present.
6.2 Oral evidence of Shri Jatin Gupta at Ex. 144 when read indicates that he is one of the Directors of J.P. Infrastructures Pvt. Ltd. That a meeting was held at Gandhinagar at the residence of Shri Vajubhai Vala. Though he was not present at the meeting, he was informed by the Director of the company Shri Pravin Kotak that the meeting was attended by him where on an offer made by Shri Kotak for consideration of Rs.18.50 crores, Shri. Jai Shroff had made a telephonic Page 30 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined conversation with Smt. Rajniben Bhagat who in turn confirmed the transaction. That the first meeting did take place at Gandhinagar stands proved by the oral evidence of Shri Vajubhai Vala Ex. 139. His evidence was recorded by a Court Commissioner and in the evidence so filed, it has come on record that he knew both the parties and the Director of defendant no. 1 wanted to sell the property. The sale consideration was fixed at Rs.18.50 crores. He categorically testifies that the meeting was held in the year 2006-07 in his presence at his residence at Gandhinagar. That on behalf of Smt. Rajni Bhagat, Shri Jai Shroff was authorized. On cross-examination it is found that no questions have been put to him to discount his version and the fact that a first meeting did take place where an exchange of a token amount of Rs.5,11,000/- was made cannot be disputed in light of the evidence of the defendant which we shall discuss later. 6.3 The second half of the plaint indicates that subsequently a meeting was held in August 2006 at the Page 31 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined residence of Shri Pravin Kotak. Reading the testimony of Shri Kotak would indicate that at the residence of Shri Pravin Kotak both Smt. Rajni Bhagat and Shri Jai Shroff had remained present. In this meeting, Shri Jatin Gupta and others were also present. This also is corroborated by the testimony of Shri Jatin Gupta at Ex. 144. Reading of Shri Gupta's testimony would indicate that the meeting that was held at Shri Kotak's residence was the second meeting. In his testimony, he says that this was the additional meeting held at Shri Kotak's residence where he was present, so was Smt. Rajni Bhagat who had then increased the sale consideration to Rs.20,50,00,000/- and she was given a cheque of Rs. 5 lakhs. The witnesses therefore namely Shri Pravin Kotak and Shri Jatin Gupta clearly establish that not only a first meeting was held at Shri Vala's residence prior to the one in August 2006 but the one that was held in August 2006 was the second meeting in line where Smt. Rajni Bhagat was present and it was ultimately decided that the sale price be revised to Rs.20.50 crores.
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NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined 6.4 The plaint then subsequently talks of a third meeting which took place on 20.11.2006 at Mumbai. Evidences of Shri Pravin Kotak and Shri Jatin Gupta would indicate that both of them had met at the defendant no. 6 Shri Jai Shroff's office in November 2006. Mr. Keyur Shah was present there. It was decided that in accordance with the earlier meetings the sale deed be confirmed after entering into certain formalities. When this is read in light of the evidence of Shri Pravin Kotak, he confirms to not only giving a cash amount of Rs.5 lakhs but also handing over a cheque of Rs. 5 crores dated 11.01.2007 to Smt. Rajni Bhagat. On the evidence of Shri Jatin Gupta and Shri Pravin Kotak, there is no cross-examination and from the evidence of Smt. Rajni Bhagat, the only averment made by her is that she neither remembers nor does she know.
6.5 Reading the testimonies of these witnesses in light of a complete denial of the meetings at the hands of the Page 33 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined defendants and there being no cross examination on these vital aspects of these three meetings as averred in the plaint, the exchange of amounts at these meetings i.e. the first held at the residence of Shri Vajubhai Vala, second at Satyagrah Chhavni at Shri Kotak's place and the last one at Mumbai office of Shri Jai Shroff, what is clear is that there is an absolute consistency in the entire evidence on the important aspects namely that the three meetings did take place, that at such meetings Shri Jai Shroff would always concur with Smt. Rajni Bhagat. Smt. Rajni Bhagat was present in two out of the three meetings i.e. in one held in August 2006 at the residence of Shri Kotak and at the Mumbai office of Shri Jai Shroff. That she was telephonically consulted when the meeting took place at Shri Vajubhai Vala's evidence at Gandhinagar comes out from the oral testimony of Shri Vala. The price was fixed at Rs. 18.50 crores and then mutually modified to Rs.20.50 crores. That a cheque dated 11.01.2007 of Rs. 5 crores was given. Essentials of a concluded contract therefore is evident from the Page 34 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined consistent stand of the statements made by the witnesses on the property in question, the purchase price and the consideration to be paid. When viewed in light of the oral evidence tendered by Smt. Poonam Bhagat at Ex. 177 and Smt. Rajni Bhagat Ex. 164, except a complete denial nothing has come on record. A perusal of the judgement of the trial court would indicate that the respondents - plaintiffs have discharged their burden on the basis of the oral evidence which have found to be credible not only about the meetings but also the terms of the contract.
7. That brings us to the letter dated 25.11.2006 which is at Ex. 98. Reading of the letter would indicate that the letter was written by the Bombay office of the appellant company to its Director Smt. Rajni Bhagat. The contention of the learned counsel for the appellant that this letter would not corroborate the story of the oral contract cannot be accepted. Reading of this letter indicates that it directly establishes the presence of an Page 35 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined oral agreement in the three meetings that were held as a pre-cursor thereto. The letter was written to the Bombay office by the Ahmedabad office forwarding all documents and certificates which would disclose that a contract was entered into. The letter clearly refers that copies be kept with the office if they are being passed on to Shri Pravin Kotak. What needs to be appreciated is that the letter was written after the three meetings that the witnesses have sufficiently explained and now that a denial is sought to be raised on the ground of Shri Jai Shroff acting without authority is misconceived. This has to be viewed in light of the testimony of Smt. Rajni Bhagat who except denial of the entire contract or any meeting does not come out clean as observed by the trial court. The total assessment of the evidence and the way the trial court has viewed it has to be assessed on the anvil of whether based on such evidence, the trial court could have come to the conclusion that it did. Except a denial in the written statement that no meeting took place and the denial so made in the evidence, what has come from the evidence Page 36 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined of the witnesses on behalf of the plaintiffs is that the three meetings were held, that based on these three meetings the contract was acted upon by a letter dated 25.11.2006 and prior thereto token amounts of Rs.11,000/-, Rs. 5 lakhs and Rs. 5 crore cheque were exchanged.
8. Reliance was placed by learned counsel for the appellant on the decisions of the Apex Court in the case of Brij Mohan (supra), K. Nanjappa (supra) and Hiralal Motilal Sheth (supra) to indicate that the burden of proof is on the plaintiff to discharge whether an oral agreement did at all take place. What is evident from the witnesses and so also from the record that true it is that heavy burden lies on the plaintiffs to prove that there was consensus ad idem, the three parameters for determining validation of a contract i.e. the price, the property being settled which are the vital terms of the contract, it cannot be said that the term of the agreement was vague and the discretion that the trial court Page 37 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined exercised was contrary to the decision of the Apex Court in the case of Kamal Kumar (supra).
8.1 The trial court has found that the defence of the witnesses of the defendant is entirely baseless and false. The foundational facts that were proved from the evidence on record is that Shri Jai Shroff, the son-in-law of Smt. Rajni Bhagat came to Gandhinagar and a meeting was held at the residence of Shri Vajubhai Vala where Shri Pravin Kotak was also present. After a telephonic confirmation from Smt. Rajni Bhagat, the sale was confirmed of the subject land. Subsequently, a meeting took place where Smt. Rajni Bhagat was present at the residence of Shri Pravin Kotak and then in the office of Shri Jai Shroff at Bombay. The common thread of the evidence of the witnesses bring out this clear case of an oral contract having been concluded. There is infact absolute consistency on the following important aspects:
(a) Three meetings took place; Page 38 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined (b) At the meetings, Mr. Jay Shroff would always concur with Smt. Rajni Bhagat; (c) Smt. Rajni Bhagat was in person present in two meetings; (d) The price was first fixed at Rs.18.51 crores and
then mutually modified to Rs.20.50 crores;
(e) Rs.5,11,000/- was paid as earnest money;
9. These are evident from the relevant dates and the documents produced on record which read as under:
Date Particulars The appellant no.1 is the owner of the property bearing revenue survey no.266/17/2, bearing final plot no.332 in town planning scheme no.14, admeasuring about 7384 sq. mtrs, situated in the sim of village: Dariyapur- Kazipur, taluka City, District & Sub- District: Ahmedabad.
The appellant no.1 intended to sell the subject property, therefore, the defendant no.6 under the authority of the administrator of the defendant no.1 & 9, of whom is a son in law, met the authorized person of the plaintiff at Gandhinagar at the residence of Shri Vajubhai Vala who was at the relevant point of time, the Honourable Finance Page 39 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Minister for State of Gujarat.
In the said meeting the subject property was agreed to be sold to the plaintiff, at fixed consideration price of Rs. 18.51 Crores and even the earnest money was paid to the Defendant no.6. Further Defendant no. 6 telephonically spoke to Ms. Rajni Bhagat, and she also agreed for the same.
August 2006 The second meeting took place at Mr. Pravin Kotak's residence, Satyagrah Chhavni between the plaintiff and M/s. Rajni Bhagat, Jay Shroff, Jayesh Kotak, Jatin Gupta and others.
In the discussion, it was agreed as under:
Consideration amount revised to Rs.20,50,00,000/- and cheque dated 11.1.2007 of Rs.5 crores was handed over.
20.11.2006 Third meeting took place in Mumbai at the office of Jay Shroff. In the said meeting, the Board members of the plaintiff company were present as well as on behalf of the defendant no.1 and its Director Smt. Rajniben Bhagat remained present as well as Mr. Jay Shroff was also present in the said meeting.
25.11.2006 A communication was made to the Exh.98 plaintiff wherein, the same had the reference of the name of the plaintiff Director viz. Pravin Kotak and the same was in the context of providing the title documents for completing the transaction of the sale.
Note: This communication clearly points out that the parties acted Page 40 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined pursuant to the concluded oral contract entered between the parties for the subject property. This letter clearly signifies that the documents were for Mr. Pravin Kotak, who is a buyer.
11.5.2007 SCS no.173/2007 came to be filed by the Exh.100 plaintiff for permanent injunction. 1.8.2007 Plaintiff filed pursis below Exh.50 in SCS Exh.101. no.173/2007 seeking conditional withdrawal of the suit on the ground that there are mutual settlement talks are going on as well as due to technical reasons and with a liberty to file fresh suit.
12.8.2007 The Court, passed an order below Exh.50 pursis permitting the plaintiff to withdraw the said suit.
6.12.2007 The plaintiff-respondent herein filed civil suit bearing no.2515/2007 for specific performance seeking direction against the defendant nos. 1 to 6 to honour the oral agreement and execute the sale deed in favour of the plaintiff for the subject property.
Relevant averments in the plaint at para- 3(A)- it defines the subject property and its meets and bounds as well as about the first meeting which took place at Gandhinagar and the oral contract came to be entered upon.
Para-3(B) & 3(B1)- it refers to the second meeting which took place between the parties at Satyagrah Chhavni i.e. the residence of Shri Pravin Kotak in the month of August-2006.
Para-3(B1)- it refers to the third meeting which took place on 20.11.2006 at Mumbai.
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NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined @internal page-6, it refers to the readiness and willingness of the plaintiff to make immediate payment of agreed total sale consideration Rs.20,50,00,000/- of and upon against the execution of the sale deed.
25.11.2021 The Ld. court below was pleased to decree the suit in favour of the plaintiff and against which the present appeal is filed
10. True it is that while discussing the evidence in first appeals, it is open for the appellate court to reassess and reverse the findings of the trial court, if otherwise found erroneous. It does involve a rehearing on law and on facts as pointed out by Shri Thakore by relying on a decision in the case of Malluru Mallapa (supra). However, as set out in the decision of the Apex Court in the case of Chiragbhai Hasubhai Virani (supra), the appellate court is expected to bear in mind that a finding recorded by the trial court is arrived at after having an advantage and opportunity of seeing the demenour of the witnesses and hence the trial court's conclusions should not lightly be disturbed unless the approach of the trial court is Page 42 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined erroneous. Paragraph no. 13 of the decision in the case of Chiragbhai Hasubhai Virani (supra) reads as under:
"13. The scope of First Appeal is no not that much circumscribed but at the same time, there are some fetters also in exercising such jurisdiction as can be seen from the observations made by the Hon'ble Apex Court in few decisions, relevant of which we deem it proper to consider hereunder: (1) In the case of Venkatesh Construction Company v. Karnataka Vidyuth Karkhane Limited reported in (2016) 4 SCC 119, Hon'ble the Apex Court held and observed in para 20 as under:-
"20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside."
(2) In the case of V. Prabhakara v. Basavaraj K. (Dead) By Legal Representatives and Another reported in (2022) 1 SCC 115, Hon'ble the Apex Page 43 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Court held and observed in para 22 to 24 as under:-
"22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.
23. The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in the case of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497:
"27. It is no doubt true that the High Court was exercising power as first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a re-Page 44 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024
NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined hearing of the main matter and the appellate court can re-appraise, re- appreciate and review the entire evidence - oral as well as documentary and can come to its own conclusion.
28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanor of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.
29. Before more than a century, in Coghlan v. Cumberland [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus; "Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full Page 45 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen."
(See also observations of Lord Thankerton in Watt v. Thomas, [1947 AC 484])
30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated :
"...but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court Page 46 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."
31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, Pratap Narain Singh [SCC p. 717 para 8) "8. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Page 47 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.
32. Referring to several cases on the point, the Court concluded:
(Sarju Pershad case, SCC p. 720, para 18):
"18. ...The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding."
(emphasis supplied)
33. After about a decade, in Radha Prasad v. Gajadhar Singh [this Court reiterated: (AIR p. 118, para 14) "14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanor of the witness in court. But this does not mean that merely because an appeal court has not heard Page 48 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanor of witnesses observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified."
34. In T.D. Gopalan v. Commissioner of Hindu Religious & Charitable Endowments [(1972) 2 SCC 329], this Court said: (SCC p. 333, para
9):
"9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the crossexamination of a Page 49 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants."
35. Yet in another decision in Madhusudan Das v. Narayanibai [(1983) 1 SCC 35], this Court said:(SCC pp. 39-40, para 8):
"8. ...At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Page 50 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. ...The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact."
(emphasis supplied)
36. Three requisites should normally be present before an appellate court reverses a finding of the trial court: (i) it applies its mind to reasons given by the trial court; (ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the trial court.
37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Page 51 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024
NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law."
11. On the question whether there can be a specific performance of an oral contract, this Court in First Appeal No. 254 of 2020 relying on the decision of the Apex Court in the case of Alka Bose vs. Parmatma Devi reported in AIR 2009 SC 1527 has observed that the sale agreement can be oral also and valid. It is not necessary that the agreement should be written. Once the oral agreement comes within the ambit of Section 10 of the Indian Contract Act and fulfills the conditions under Section 10 namely that of offer, acceptance, consideration, legal object, a suit based on an oral agreement is maintainable in law. From the evidence on record, the plaintiffs have been able to prove that there was consensus ad-idem between the parties for the concluded agreement for sale of immovable property. The heavy burden that lied on the plaintiffs was ably discharged.
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12. So far as the argument about Section 46 of the Companies Act, 1956 is concerned, it is pertinent to note that it has come on record that Smt. Rajni Bhagat used to consult Mr. Jay Shroff being her son-in-law. Further more, it is borne out that the plaintiff and the defendant no. 1 are private companies run as partnership firm by their family members. In fact when a question was put to Smt. Rajni Bhagat as to who are the other Directors, she did not reply to the same. It is also to be noted that in the first meeting Smt. Bhagat had telephonically consented and in the other two meetings she had personally remained present. Therefore, such oral contract can be said to be binding on the company also.
13. That brings us to the submission of learned counsels for the respective parties on the issue of whether a fresh suit could have been filed and whether the suit was barred under the provisions of Order II Rule 2 CPC. Mr. Thakore in his submissions had relied on the decisions in the case of Gurubux Singh (supra) and Vurimi Page 53 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Pullarao (supra). He had submitted that the 5 judge bench of the Apex Court has held that if a relief which could otherwise have been prayed for in a previous suit was prayed for in the subsequent suit, and having the same not been included could amount to relinquishment. In juxtaposition to that, Mr. Parikh would submit that reading of the pursis at Ex. 50 would indicate that the suit was withdrawn with a liberty to file a fresh suit. Reading the decision of the Apex Court, in the case of Anil Kumar Singh (Supra) and that of Gurinder Pal (supra), when Ex. 50 pursis is read and so the order thereunder, what is apparent is the permission to withdrawal of suit was with a liberty to file a fresh suit. That being so, a suit for specific performance filed subsequent to the earlier suit cannot be treated to have been barred. Paragraph no. 6 of the decision in the case of Gurinderpal (supra) reads as under:
"6. Having heard the learned counsel for the parties, we are satisfied that the Judgement of the High Court as also of the first appellate court cannot be sustained to the extent to which the bar Page 54 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined enacted under Order 2 Rule 2 CPC has been applied. The provisions of Order 2 Rule 2 CPC bar the remedy of the plaintiff-appellant and, therefore, must be strictly construed. The order of the trial court dated 15-6-1994 passed in the earlier suit, extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff- appellant recorded by the court on that very date. The plaintiff- appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit was being dismissed as withdrawn "in view of the statement of the plaintiff. A conjoint reading of the order of the court and the statement of the plaintiff, clearly suggests that the suit was dismissed as withdrawn because the plaintiff wanted to file a fresh suit, obviously wherein the plaintiff would seek the decree of specific performance and not of a mere injunction as was prayed for in the suit which was sought to be withdrawn. In the subsequent suit, the first appellate court was not right in forming an opinion that liberty to file the fresh suit was not given to the plaintiff in the order dated 15-6-1994."
13.1 Even in the case of Akkamma (supra), the Apex Court had held that a subsequent suit for specific performance was maintainable. Paragraphs no. 18-20 of the decision read as under:
"18. Our attention has also been drawn to certain portions of M. Krishnaswamy's "Law of Adverse Possession" (12th Edition). In this commentary, the author has summarised the legal position in Page 55 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined relation to presumption of law in relation to vacant lands in the following manner:
"Possession is not necessarily the same as actual user. To prove possession, it is not necessary, generally, to prove user of land. If the land is of such a nature as to render it unfit for actual enjoyment in the usual modes, it may be presumed that the possession of the owner continues until the contrary is proved.
The jurisprudential concept of possession is made up of two ingredients: (i) the corpus: and (ii) the animus. Corpus means actual exclusive physical CONTROL over the property denoting physical possession. The animus denotes the intention and exercise of right to possess the property as owner to the exclusion of others. These, two ingredients put together go to constitute legal possession. Thus, the mere throwing of Gudha (Garbage) over an open plot of land for a very long period much more than even 12 years will not constitute legal possession of the persons throwing Gudha and muchless can such user ripen into adverse possession so as to extinguish the title of the rightful owner."
19. But these statements of law would not operate in this case, as the original plaintiff in the earlier suit had admitted possession as also use of the subjectland by the first defendant. No case of granting right of user has been made out either. Neither the plaintiff has alleged casual use of the subject land by the first defendant. The original plaintiff's claim for possession was rejected in the 1982 suit and in the subsequent suit also, which gives rise to this appeal, the plaintiffs could not Page 56 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined demonstrate repossession of land on the basis of which he could obtain injunctive relief from disturbance of possession.
20. In both the two reported decisions in the cases of Devish (supra) and Navalram Laxmidas Devmurari (supra) referred to earlier, the first two Courts - being the Courts of fact had come to affirmative finding about the plaintiffs' possession of the suit property. So far as the proceeding before us is concerned, the finding of the First Court is otherwise. The plaintiffs sought to introduce prayer for recovery of possession to cure the defect of not having made out a case on that count by way of amendment of plaint at the appellate stage. The High Court rejected this prayer. We have quoted earlier in this judgment the reason for such rejection. We are in agreement with the High Court on this point. While in a situation of this nature, amendment of plaint could be asked for (Vinay Krishna vs. Keshav Chandra and Anr.), such a plea ought to have been made within the prescribed limitation period. This position of law has been clarified in the case of Venkataraja and Ors. vs. Vidyane Doureradjaperumal (Dead) Through Legal Representatives and Ors. [ (2014) 14 SCC 502]. In this case, it has been held:
"24. A mere declaratory decree remains nonexecutable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide Parkash Chand Khurana vs. Harnam Singh and State of M.P. Page 57 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined vs. Mangilal Sharma)."
13.2 What is also evident from reading the decision in the case of Vimlesh Kumari Kulshreshta (supra) is that when an application is made, the order thereunder has to be read with the application on which such order is made and when Ex. 50 pursis is read, the order therefore would indicate that it was an order under Order 23 which permitted the respondents - plaintiffs to file a subsequent suit. Paragraphs no. 15-20 in the case of Vimlesh read as under:
"15. In Hari Basudev Vs. State of Orissa and Others [AIR 2000 Orissa 125], a Division Bench of the Orissa High Court held;
"7. As already indicated, the cause of action accrued to opposite party No. 4 to file the election dispute u/S. 30 of the Act only after publication of the result of the election. Opposite party No. 4 in his petition made out a case for grant of permission to withdraw M.J.C. No. 14 of 1997. He had also stated in the petition that he reserved his right to file a fresh case, if necessary. The learned Civil Judge having permitted him to withdraw the said case, we are inclined to hold that permission to institute a fresh case in the circumstances was impliedly granted."
16. In Mulla's The Code of Civil Procedure, Page 58 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined Seventeenth Edition, page 674, it is stated "(g) Permission need not be Express The permission mentioned in this section need not be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. No formal order is necessary for withdrawal of a suit. But the proceedings must show that the plaintiff has withdrawn the suit or part of the claim. However, if either from the application of the plaintiff or from the order permitting withdrawal, it transpires that while permitting withdrawal, the court had also granted liberty to institute fresh suit, the subsequent suit would be barred. Thus, in a case, the Delhi High Court held that the words 'without prejudice to the right of plaintiff' endorsed on the application for withdrawal would only mean that the suit was sought to be withdrawn as compromised and not on merits.
An application for withdrawal of suit was made, seeking liberty to file a fresh suit. The order passed by the court was that 'The application is, therefore, allowed while permitting the plaintiff to withdraw the suit'. It was held that this should be construed as an order also granting liberty, as prayed. The court cannot split the prayer made by the applicant."
17. For the reasons aforementioned, we are of the opinion that the High Court was not correct in applying the provisions contained in Order XXIII Rule 1 of the Code of Civil Procedure in the facts and circumstances of the case.
18. It is no doubt true that ordinarily an Page 59 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined endeavour should be made by the court to give effect to the terms of the agreement but it is also a well settled principle of law that an agreement is to be read as a whole so as to enable the court to ascertain the true intention of the parties. It is not in dispute that no plan was prepared. A purported sketch mark was attached with the plaint, which was not proved. Evidences brought on record clearly lead to the conclusion that the appellant was not the tenant in respect of the entire house. She, in her deposition, even did not claim the same. Another tenant was occupying some rooms in the same premises. Appellant herein in her evidence also admitted that no map was attached to the agreement.
19. The very fact that the premises sought to be transferred could not adequately be described; a plan was sought to be attached. According to the appellant herself, she had been residing only in the ground floor, along with open land on the northern side and had been using two rooms, a Patore alongwith open land of the upper portion.
20. She had not received the possession of the disputed house. It is, therefore, evident that she did not claim herself to be a tenant in respect of the entire house and, thus, the same was not agreed to be sold."
14. Considering all these aspects of the matter, particularly when the evidence on record, has been succinctly dealt with by the trial court and assessed in its proper perspective, we are of the opinion that no error can be found in the judgement of the trial court. When a Page 60 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable. Accordingly, we do not find any reason to reverse the judgement and decree dated 25.11.2021 passed by the trial court.
15. The appeal is accordingly dismissed. FURTHER ORDER It appears that during the pendency of the appeal, by order dated 30th June, 2022, the following interim relief was granted.
"Having heard learned Senior Advocate Mr. Mihir Thakore assisted by learned advocate Mr.Anmol Mehta appearing for the applicant and learned Senior Advocate Mr. Devan Parikh assisted by learned advocate Mr. Rutul Desai appearing for the opponent no.1, interim relief in terms of paragraph No.7(A). In addition to Page 61 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024 NEUTRAL CITATION C/FA/1734/2022 CAV JUDGMENT DATED: 23/08/2024 undefined same, parties are hereby also directed to maintain status quo with regard to the property in question till the final disposal of the First Appeal."
Mr. Ajay Mehta, learned advocate for the appellant requests for continuation of this interim relief for a further period of eight weeks for which Mr. Rutul P. Desai, learned advocate for the respondent has objection. Let the aforesaid interim relief be continued till 9 th October, 2024.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) DIVYA Page 62 of 62 Uploaded by DIVYA PILLAI(HC00199) on Wed Aug 28 2024 Downloaded on : Wed Aug 28 20:51:30 IST 2024