Dismissed

Smt Indu Gupta Alias Indu Devi and Ors. v. Hemant Kumar Poddar

Jharkhand HC5 Jan 2023SA/219/2013

Case brief

AI extract

What is this about?

This second appeal challenged lower courts' dismissal of a suit for specific performance due to doubts about an agreement's genuineness. The High Court upheld the dismissal, noting significant irregularities in the document and lack of independent proof of its contents under binding precedent.

What did the court decide?

Second Appeal No. 219 of 2013 dismissed, affirming lower courts' judgment and decree.

Smt Indu Gupta Alias Indu Devi and Ors. Vs Hemant… — Specific Performance | Jharkhand HC (2023)

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1 Second Appeal No. 219 of 2013

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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Second Appeal No. 219 of 2013

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1.Smt. Indu Gupta @ Indu Devi, widow of late Jawahar Prasad

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2.Megha Kumari (Minor), daughter of late Jawahar Prasad

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3.Aman Gupta (Minor)

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4.Gaurav Gupta (Minor)

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Nos.3 and 4, both sons of late Jawahar Prasad

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Appellant nos.2 to 4, being minors, are represented through their mother and natural guardian-Smt. Indu Gupta @ Indu Devi (Appellant No.1); All residents of Gaushala Chowk, P.O.-Ranchi, P.S.Kotwali, DistrictRanchi ….. Plaintiffs/Appellants/Appellants

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-- Versus --

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Hemant Kumar Poddar, son of late Mahabir Prasad Poddar, resident of

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Gaushala Chowk, P.O. Ranchi, P.S. Kotwali, District-Ranchi

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…... Defendant/Respondent/Respondent

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants :- Mr. A.K.Sahani, Advocate For the Respondents:-Mr. A.K.Das, Advocate

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13 /05.01.2023 Heard Mr. A.K.Sahani, the learned counsel appearing on behalf of the appellants and Mr. A.K.Das, the learned counsel appearing on behalf of the respondents.

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This Second Appeal has been filed challenging the judgment and decree dated 17.09.2013 and 25.09.2013 respectively passed in Title Appeal No.16 of 2009 affirming the order dated 28.11.2008 and decree dated 15.12.2008, respectively passed in Title Suit No.89 of 2000.

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Mr. A.K.Sahani, the learned counsel appearing on behalf of

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the appellants submits that the Title Suit No.89 of 2000 was instituted for decree for specific performance of the contract dated 27.10.1999. He submits that inspite of the valid documents as well as the agreement, the learned trial court has dismissed the suit by the judgment and decree dated 28.11.2008 and 15.12.2008 respectively. He further submits that the appellants filed the Title Appeal No.16 of 2009 and the learned appellate court dismissed the appeal and has affirmed the order of the leraned trial court by the judgment and decree dated 17.09.2013, the decree has been signed on 25.09.2013. Aggrieved with the said judgment and the decree of the learned appellate court, the appellants filed this Second Appeal. This Second Appeal was admitted on 18.03.2021 on the following substantial question of law:

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“(i) Whether in view of the pleadings of the parties in respect of the agreement which is Exhibit-9, both the courts below committed error of law by holding the Exhibit-9 as doubtful document”

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The plaintiffs have instituted the case narrating therein that

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there was an agreement for sale between the plaintiff and the defendant. It was reduced into writing dated 27.10.99 wherein the consideration amount was fixed for Rs.1,60,000/- out of which Rs.1,35,000/- was paid by way of advance and the balance amount of Rs.25,000/- was to be paid at the time of execution of the sale deed. The contract for sale was to be performed within the period of six months. The suit property comprises an area of 1700 sq.ft i.e. 2 katha 5 chhatak 35 sq.ft within Plot no.192, Sub-plot no.192-A, Holding no.683, Old Ward No.II, New Ward No.V of Ranchi Municipal Corporation, Mohalla Pinjarapole, Upper Bazar, Ranchi. The defendant as the sole owner of the said property executed an agreement for sale for an agreed consideration amount of Rs.1,60,000/- out of which Rs.1,35,000/- was paid in advance and the

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balance amount of Rs.25,000/- was to be paid at the time of execution of the sale deed. Failure to perform the contract would incur legal liabilities. The plaintiff made prayer for a decree of specific performance of contract directing the defendant to execute the sale deed in favour of the plaintiff after receipt of the balance consideration amount of Rs. 25,000/- and in the alternative made prayer for compensation to the tune of Rs.1,60,000/- and 1,25,000/- as compensation and damages with interest at the rate of 17 ½ % per annum on the amount of Rs.1,35,000/-. Other incidental reliefs were also prayed for.

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The defendant appeared and filed the written statement stating therein that defendant after receipt of summons appeared in the case and has contested the suit of the defendant claiming that there was no agreement for sale rather there was relationship of landlord and tenant between the parties. The defendant further claimed that the defendant helped the plaintiff several times by giving him money which the plaintiff repaid and as on date Rs.2800/- is still unpaid. When the defendant made demand of this money this false case has been instituted by the plaintiff. The execution of the contract for sale of the immovable property has been totally denied by the defendant. The defendant further claims that the suit property is valued for more than Rs.2 lacs per katha and the building standing thereon is valued for more than Rs.5 lacs. Even going by the meager valuation as stated by defendant the suit property would be valued for not less than Rs.10 lacs while the plaintiff dishonestly have come up showing the existence of agreement for sale of the suit property for Rs.1,60,000/-. The defendant has leveled allegations against the plaintiff to be a person involved in commission of various offences. At para-16 of the W.S the defendant claims that earlier the plaintiff was a tenant at the rate of Rs.3000/- per month but subsequent to addition in

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the construction of the property by way of the upper floor i.e. the second floor the rent of the second floor was also added and finally the entire rent of the suit premises is Rs.6000/- per month. At para-18 the defendant claims to have served notice to the plaintiff to vacate the house and make payment of a dishonoured cheque of Rs.18,000/- which was issued against arrears of rent. But the plaintiff declined to make the payment or to vacate the premises and this false case has been instituted.

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Mr. Sahani, the learned counsel appearing for the appellants draws the attention of the Court to the findings of the learned trial court in Title Suit No.89 of 2000 and submits that Exhibit-9 which is an agreement to sale was exhibited pursuant to the order passed by the High Court in W.P.(C) No.4810 of 2004. He submits that the entire pleadings and the documents have not been considered in its right perspective. He further submits that the Exhibit-9 which is a document has not been rightly appreciated by the learned trial court and on onerous finding, the suit has been dismissed. He further submits that the learned appellate court has also not dealt with the said document in right direction and has held that the Exhibit-9 is not a valid document and there is no evidence to show the payment of Rs.1,35,000/- which is not based on the valid document. He draws the attention of the Court on Exhibit-9 and submits that this agreement is a photocopy of the original and the original has been lost and that is why the photocopy has been filed which was not being accepted by the learned court, however, the appellants have moved before this Court in W.P.(C) No.4810 of 2004 and pursuant to the direction the suit was marked as Exhibit without any objection. He further submits that once there is no objection and the document is exhibited it was incumbent upon the learned court to

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consider that the agreement is valid. He minutely pressed the said agreement which is one of the core contention of the parties. He further submits that it is not a case that the said document was not witnessed and signed by the any witness. He submits that this document was signed by the P.W.6 which is scriber and the witness and his contention and his statement was wrongly not accepted by the learned trial court as well as the learned appellate court. He further submits that Exhibit-7 is an admission of the defendant which alone was sufficient to entitle the plaintiff for a decree for specific performance of contract but despite the fact that the court has ignored the evidence by way of Ext.7 and the court has erroneously came to the conclusion that the agreement was not genuine. He further submits that one important ingredient which is required to be readiness and willingness on the part of the plaintiff. It is one of the ingredients in light of section 16(C) of the Specific Reliefs Act, 1963. He submits that the law point involved has not also been rightly appreciated by the learned court. On the point of law of contract and evidence with regard to contract between the parties he relied in the case of Allahabad Bank & Anr. vs. MECON, Doranda, Ranchi, reported in 2005 (2) JLJR 423, paragraph nos.8 and 9 of the said judgment are quoted hereinbelow:

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“ 8. The aforesaid letter makes it clear that deposit of Rs, 40 crores was to be maintained by the plaintiff and all the contract was to be executed entirely through the defendant Bank, but this aspect was never fulfilled by the plaintiff. The plaintiff, by letter dated 27.7.1992 promised to keep the trade surplus with the defendant Bank but the second condition to execute all the contract through the defendant Bank was accepted, as there was no whisper with regard to this aspect in the plaintiffs letter dated 27.7.1992, but plaintiff failed to take care and abide by the assurance and promises with regard to deposit of Rs. 40 crores and execution of all the contracts through the defendant Bank. The bank guarantee was extended but not with the intention of free charges. The defendants denied

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that there was any such contract, but it is an adjustment and facility of bank guarantee to plaintiff MECON and this was allowed on the second promise of the plaintiffs to deposit of Rs. 40 crores and execution of the entire contracts through the defendant Bank, besides other clauses mentioned in the sanctioned letter. The plaintiff except margin money did not ever deposit its trade surplus in the defendant Bank. The facilities extended to the plaintiff by the defendant Bank was cancelled as the plaintiff completely failed to fulfil its promise to give deposits of even of its trade surplus and it also failed to execute its contracts through the defendant Bank. The plaintiff itself admit in para 15 that after the facilities were cancelled by the defendant Bank, plaintiff informed the Bank, vide its letter dated 9:3.1994 that now they would route the entire transaction in respect of the contracts through the defendant Bank. Since the plaintiff violated the promise and assurance, bank was justified in cancelling the facilities to the plaintiff. The Bank has never charged penal rate of interest for non-payment of commission for issuing bank guarantee on several dates. It is denied that FDRs deposited by the plaintiff was a general deposit, which was deposited by way of margin money. It was connected with the bank guarantee and since the plaintiff did not pay the commission towards the bank guarantee, the defendants rightly withheld the payment and until realization of the bank commission from the plaintiff. Hence a prayer has been made to dismiss the suit.

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9. On the pleadings of the parties, the following issues were framed for their determination in the suit :

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(i) Is the suit as framed maintainable?

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(ii) Has the plaintiff valid cause of action for the suit?

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(iii) Whether the plaintiff is entitled to a decree as prayed for?

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(iv) To what other relief or reliefs the plaintiff is entitled to?

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Relying on this judgment, he submits that the case of the

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appellants is covered by this judgment and the learned court has not considered this aspect of the matter. On the point of contract and specific relief and consideration which is a reasonable equivalent or other valuable benefit, he relied in the case of Commissioner of Central Excise Mumbai v. Fiat India (P) Ltd., reported in (2012) 9 SCC 332, paragraph nos.66 and 73 of the said judgment is quoted below:

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“66. Excise is a tax on the production and manufacture of goods and Section 4 of the Act provides for arriving at the real value of such goods. When there is fair and reasonable price stipulated between the manufacturer and the wholesale dealer in respect of the goods purely on commercial basis that should necessarily reflect a dealing in the usual course of business, and it is not possible to characterise it as not arising out of agreement made at arm's length. In contrast, if there is an extraordinary or unusual price, specially low price, charged because of extracommercial considerations, the price charged could not be taken to be fair and reasonable, arrived at on purely commercial basis, as to be counted as the wholesale cash price for levying excise duty under Section 4(1)(a) of the Act.

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73. From a conspectus of decisions and dictionary meaning, the inescapable conclusion that follows is that “consideration” means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee. Similarly, when the word “consideration” is qualified by the word “sole”, it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case.”

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On the point of evidence of attesting witness as execution of agreement to sale, he relied in the case of Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy, reported in (2019) 14 SCC 220, paragraph nos.7 to 9, 25 and 26 of the said judgment are quoted hereinbelow:

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“7. From the discussion of the High Court in arriving at this conclusion, we find that it has not assigned any valid reason for disbelieving the attesting witnesses PWs 2 and 3. In fact, with respect to their evidence, the High Court made certain observations which are against the evidence on record. Similarly, with respect to PW 1, the High Court observed that he had not deposed as to the presence of the third attestor, Krishna Murthy, at the time of execution of the agreement of sale. However, it is clear from the evidence of PW 1 that he has specifically deposed about the presence of Krishna Murthy at that time. It was also wrongly observed by the High Court that PWs 1 and 2 are silent as to the time and place of the execution of the agreement. However, in his examination-in-chief, PW 2 has clarified that the first defendant executed this agreement at the suit schedule house, at a time when he was residing there and the plaintiff was residing in the western side of the house, etc. From the aforementioned facts, it is clear that the High Court disbelieved the evidence of the plaintiff (PW 1) and the attestors (PWs 2 and 3) on mere assumptions and

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wrong reasons.

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8. In any case, to satisfy our conscience, we have gone through the evidence of PWs 1, 2 and 3. As rightly observed by the trial court, there is no reason to disbelieve these witnesses, whose evidence is consistent, cogent and reliable. Though they were subjected to lengthy cross-examination, nothing noteworthy has been brought out from their deposition to discard their evidence. Thus, the evidence of PWs 1, 2 and 3 fully supports the case of the plaintiff and in our considered opinion, the High Court was not justified in rejecting their evidence.

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9. As mentioned supra, the High Court mainly relied upon the opinion evidence of DW 2, the handwriting expert, who opined that the signature of the first defendant on the agreement of sale, Ext. A-1 did not tally with his admitted signatures.

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25. Moreover, the High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms 47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements. In the matter at hand, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20-4-1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs 58,800 and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract.

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26. In view of the aforementioned reasons, the impugned judgment [Baddam Prathap Reddy v. Chennadi Jalapathi Reddy, 2008 SCC OnLine AP 249 : (2008) 3 AP LJ 30] of the High Court is liable to be set aside. Accordingly, the judgment and decree passed by the trial court stands restored. The appeals are allowed accordingly.”

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On the point of specific relief as well as payment of

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consideration amount under the contract, he relied in the case of Syed Dastagir v. T.R. Gopalakrishna Setty, reported in (1999) 6 SCC 337, paragraph nos. 9 and 10 of the said judgment are quoted below :

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“ 9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded maybe in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.

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10. Returning to the facts of the present case we find the aforesaid pleading recites that all balance amount of the consideration under the contract has been paid by the plaintiff of which there is an endorsement by the defendant except the balance amount of Rs 120 about which also there is a specific plea that he has tendered the same in the Court. It is true that in the

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pleading the specific words “ready and willing to perform” in this nomenclature are not there but from the aforesaid plea, could it be read that the plaintiff was not ready and willing to perform his part of that obligation? In other words, can it be said that he has not pleaded that he is “ready and willing” to perform his part? Courts cannot draw any inference in the abstract or to give such hypertechnical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted. The section makes it obligatory to a plaintiff seeking enforcement of specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said, for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of the obligation then it cannot be said there is noncompliance of the said section.”

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Relying on these judgments, Mr. Sahani, the learned counsel appearing on behalf of the appellants submits that the law point as well as the documentary evidence have not been considered by the learned trial court as well as the learned appellate court and it has been wrongly held that the agreement is not genuine document and that is why this second appeal was admitted which requires to be allowed.

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Per contra, Mr. A.K.Das, the learned counsel appearing on behalf of the respondents submits that the suit was instituted for 1700 sq.ft. wherein the agreement is meant for 1800 decimal which was cut down without any initial and it has been wrote 1700 decimals. He submits that in view of the agreement, prima facie, at the outset, the document itself appears to be not genuine document. The learned trial court as well as the learned appellate court have rightly held about the genuineness of this document. He further submits that the genuineness of this document is doubtful in view of the fact that there is no signature of either party at page no.1 of the agreement. According to him, there is no

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boundary defined in the agreement. The sketch has not been attached with this agreement. The suit was filed on 26.04.2000 whereas the sketch may was prepared on 04.05.2000. He further submits that in view of creating of the sketch map after filing of the suit itself suggest that the document was not genuine document. He further submits that just a day before of filing of the suit a sanha was registered with the police about loss of original document on 25.04.2000 which further suggest that the genuineness of the document is doubtful. He further submits that the learned trial court as well as the learned appellate court have rightly indicated the evidence of P.W.6 who is an Advocate of the appellant and rightly held that he was the witness in interest and has signed the agreement and filed the suit on behalf of the appellants and in that view of the mater there is no illegality in the findings of the learned trial court as well as the learned appellate court. He further elaborates his argument by way of submitting that the appellants were tenant of the respondents and for discharging the liability of rent, he has issued a cheque of Rs.18,000/- which was bounced. He submits that a complaint case has been filed for bouncing of the cheque as well as the other documents exhibited before the learned trial court which suggest that the amount of Rs.1,35,000/- was not paid to the respondents as he was not in a capacity to pay Rs.18,000/-; there is no question of paying the amount of Rs.1,35,000/-. He further submits that the original plaintiff died in course of the proceeding and subsequently one Indu Devi substituted in place of the original plaintiff and said Indu Devi is a concubine of the plaintiff and for that also an F.I.R was registered by the first wife of the original plaintiff who was deceased. He further submits that Exhibit-7, legal notice, issued by the defendants has been signed only at last page of the said notice and signature is there however

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contents of the pages 1 to 3 are not genuine which has been deposed by the defendants which was exhibit and examined as D.W.5 and he has denied the contents of the notice. He further submit that the legal points are not in dispute however such disputed question of facts where concurrent findings of facts of both the learned courts are there, the High Court may not interfere with inthe Second Appeal. He further submits that the documents (Ext.9) has not been proved and merely being exhibited the said document will not rescue the appellants. It is well settled that once the document is exhibited it is required to be proved and the appellants have failed to prove the said document, Exhibit-9, which is the core of contention of the parties and to buttress his such argument, he relied in the case of „Ramji Dayawala & Sons (P) Ltd. v. Invest Import‟, reported in (1981) 1 SCC 80, paragraph no.16 of the said judgment is quoted hereinbelow:

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“ 16. Incidentally it was urged by Mr Majumdar that even if the court proceeds on the assumption that the letter and the cable were received, it is not open to this Court to look into the contents of the letter and the cable because the contents are not proved as the Managing Director of the appellant Company who is supposed to have signed the letter and the cable has neither entered the witness-box nor filed his affidavit proving the contents thereof. Reliance was placed on Judah v. Isolyne Shrojibasini Bose [AIR 1945 PC 174 : 1945 MWN 634 : 26 PLT 279] . In that case a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix the contents of the letter could be utilised to prove want of testamentary capacity. Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter

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bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. But in this case Bhikhubhai Gourishankar Joshi who filed an affidavit on behalf of the appellant has referred to the averments in the letter and the cable. He is a principal officer and constituted attorney of the appellant Company. Once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. What is the effect of averments is a different question altogether but the averments contained in the letter and the cable are satisfactorily proved.”

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On these grounds, Mr. Das, the learned counsel appearing

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on behalf of the respondents submits that there is no illegality in the judgments of the learned both the courts and hence, this Second Appeal is fit to be dismissed.

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Admittedly, this Second Appeal was admitted on 18.03.2021 on the law point as indicated hereinabove. The law point with regard to Exhibit-9 is required to be answered by this Court in view of the submissions of the learned counsels appearing on behalf of the parties.

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The Court has perused the Exhibit-9 and finds that in the first page the area was first shown as 1804 decimals and for cutting that area without any initial of the either of the party the area is shown as 1700 decimals. In the first page, there is no signature of either of the party. The suit was instituted for 1700 sq.ft. In the second page of the

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said agreement, the date of purchase of the stamp fee of the parties the purpose of stamp is not disclosed. It is well known that if for stamp fee the stamp is being purchased the purpose is being written which is lacking in the agreement in question. Admittedly there is no boundary defined in the agreement. The sketch has not been attached with the said agreement. The suit was instituted on 26.04.2000 whereas the sketch was prepared on 04.05.2000 (Exhibit-4). The genuineness of which itself is under doubt in view of preparation of the sketch map after instituting the suit in question. Just before a day a sanha was lodged with the police for loss of original documents on 25.04.2000 whereas the suit was filed on 26.04.2000. Admittedly P.W.6 is an Advocate conducting the agreement of the suit in question and he has signed on the agreement. The learned court has given the very reason of not accepting the version of the P.W.6. Further the payment of Rs.1,35,000/- is also questionable in view of the fact that the cheque of Rs.18,000/- was issued by the appellants which was bounced and for that the complaint case was instituted by the respondent/defendants. In the notice, Exhibit-7, only in the last page signature of the respondent/defendants is there, however, in the first three pages, there is no signature and the contents of the notice have been denied by the defendant who was examined as D.W.5 and the learned trial court as well as the learned appellate court has elaborately discussed all these things about the genuineness of the Exhibit-9 and more importantly the said Exhibit-9 has not been proved by the appellants as has been held by both the learned courts. Merely filing of the document and being exhibited will not prove to be exhibited unless it is proved as has been held by the Hon‟ble Supreme Court in the case of

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„Ramji Dayawala & Sons (P) Ltd. v. Invest Import‟(supra). So far as the judgment relied by Mr. Sahani, the learned counsel appearing on behalf

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of the appellants are concerned, it is not in dispute. The legal issues of those judgments are on the facts and circumstances of those cases, however, in the case in hand, the genuineness of the document as Exhibit-9 is very much doubtful. There is concurrent finding of two learned courts and nothing has been made out to interfere with the judgments of both the learned courts.

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In view of the above facts, reasons and the analysis, law

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point is answered accordingly.

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Accordingly, Second Appeal No.219 of 2013 is dismissed.

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( Sanjay Kumar Dwivedi, J.)

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SI/,

Smt Indu Gupta Alias Indu Devi and Ors. v. Hemant Kumar Poddar

Case brief

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Smt Indu Gupta Alias Indu Devi and Ors. v. Hemant Kumar Poddar

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