Dismissed

Mahammad Ibrahimsaheb Shaikh v. Wardhaman Sales Corporation

Bombay HC3 May 2005SA/376/2005

Case brief

AI extract

What is this about?

This court dismissed the second appeal. Although the appellant argued about statutory bar for sale, delay, limitation, and hardness, the Court found no substantial question of law. The concurrent findings of fact by lower courts were accepted, and the appeal was dismissed.

What did the court decide?

Second Appeal is dismissed with no order as to costs.

Mahammad Ibrahimsaheb Shaikh Vs Wardhaman Sales… — Specific Performance | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 376 OF 2005

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Mahammad Ibrahimsaheb Shaikh. ... Appellant. Versus. Wadhaman Sales Corporation. ... Respondents.

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Shri P.R.Arjunwadkar for the Appellant. Shri Surel Shah for the Respondents.

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CORAM : ABHAY S. OKA, J. DATED : 3rd May, 2005.

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P.C.:
1.	Heard		the	learned	Advocat	es appearing	for	the
parties.	T	he	trial	Court	has	passed a	decree	for
specific pe	rformance	again	st the App	ellant and the s	ame
has been c	onfirmed b	y the	Appellate	Court.
2.	Shri		Arjunwad	kar su	bmitted	that the	suit	plot
belongs	to	th	e A	gricultural	Produce	Market Co	mmittee	and
the	said		Commit	tee has	refused	to grant per	mission	to
sell	the	suit	plot.	He	submitted	that there	is a	gross
delay	in fil	ing	the	suit.	Thirdly	he submitte	d that	the
real nature not an agre	of the tran ement for s	sactio ale.	n was loa	n transaction an	d
3.	In	so	far	as the	first co	ntention is con	cerned,	no
statutory	bar		for	effecting	sale	in favour	of	the
Responden	t	is	shown	to me.	If	the contract	between	the

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: 2 :

¶9

Market	Com	mittee	an	d	the Appe	llant	prohibi	ts transfer
without	permiss	ion	of	the	Market	Co	mmittee,	consequences
of	breach	of	contract	will	follow.	In	the	absence of
any	statutory	bar,	the	A	ppellant	after	sole	mnly agreeing

¶10

to sell the suit plot cannot raise a contention that he

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was not competent to transfer the suit plot.

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4.	So far as the aspe	ct of	delay is	concerned, bot	h the
Courts	have considered	the	said aspect.	The	Courts
below	have held that	the	Respondent	was ready	and
willing	to perform his	part	of the	contract.	The
Appellate	Court has	recorded	a fin	ding that	entire
consideration	was received	b	y the	Appellant.	After
considering	all the rele	vant	factors, the	Courts	below
have	exercised discretion	under	section	20 of	the
Specific	Relief Act, 1963	in	favour of	the Re	spondent.
No i	nterference can be	made	with the	exercise of	the

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discretion in this Appeal under section 100 of the Code.

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5.	On	consideration	of	evidence on		record	the	Courts
have	found	that the	real	nature of	the	tran	saction	was

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agreement for sale. There is no perversity in the said

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findings.

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6.	At		this	stage	Shri	Arju	nwadkar	submitted	that		the
suit	is	barred		by	limitation.		It	appears	that		the
submission		on	the	basis	of	the	bar	of limit	ation	is	not
made	in	the	A	ppellate	Court		and	no	point		for

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: 3 :

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determination		is	framed	by	the	Appellate	Court	on	this
aspect.		Shri	Adjunwa	dkar		pointed out	that	point	is
raised	in	the	Memorandum		of	Appeal.	However,	from	the
judgment	of	the	Appellate		Court	it is	not	reflected	that
the	said	point	was		agitated	before	the	Appellate	Court.
It is	no	t the	case	of	the	Appellant	that	the said	point

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was urged before the Appellate Court and was not

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decided.

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7.	At	thi	s stage	Shri	Adjunw	adkar	submitted	that	the
issue	of	hardship	is not	co	nsidered	by	the C	ourts	below.
From	the	perusal	of the	Ju	dgment	of	the App	ellate	Court,
it	appears	that	submi	ssion	based	on	hardship	to	the
Appellant	is	not	made be	fore	the	Appell	ate Court.		Hence

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the same cannot be considered for the first time in the

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Second Appeal.

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In view of the concurrent findings of fact no

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substantial question of law arises. The Second Appeal

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is dismissed with no order as to costs.

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Judge.

Mahammad Ibrahimsaheb Shaikh v. Wardhaman Sales Corporation

Case brief

What is this about?

What did the court decide?

Mahammad Ibrahimsaheb Shaikh v. Wardhaman Sales Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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