4&5-SA-9 & 10-24.DOC Suchitra IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.9/2024 WITH SECOND APPEAL NO.10/2024 MR. T. K. CHANDRAN, Son of Kannan, married, about 45 years in age, businessman, resident of MIG - 62, Goa Housing Board, Curti, Ponda - Goa. … APPELLANT Versus 1. SMT. RUKMINI HALANKAR, VITHAL, Widow of late Mr. Vithal Halankar, aged 66 years, resident of H. No. 670, Rambhuwanwada, Tiswadi - Goa. Kumbharjua, 2. SMT. VAISHALI VINAYAK TARI, Daughter of late Mr. Vithal Halankar, widow of late Vinayak Maddo Tari, aged 45 years, housewife, 3. MR. SAIRAJ VINAYAK TARI, Son of late Mr. Vinayak Maddo Tari, aged 18 years, student, 4. MR. HARSH VINAYAK TARI, Son of late Mr. Vinayak Maddo Tari, aged 15 years, minor, student, The Respondent No. 4 being minor, is represented herein by his mother and natural guardian, the Respondent No. 2, All residents of H. No. 58, Rumdawada, Post Usgaon, Pale, Bicholim - Goa. 5. MR. SWAPNIL HALANKAR, Son of 7th March 2025 4&5-SA-9 & 10-24.DOC late Mr. Vithal Halankar, married, service, aged 39 years, & his wife, 6. MRS. SALONI HALANKAR, SWAPNIL, Wife of Mr. Swapnil V. Halankar, aged 38 years, housewife, Both residents of H. No. 670, Rambhuwanwada, Tiswadi - Goa. Kumbharjua, 7. MRS. RAVINA KHORJUEKAR, RAVINDRA, Daughter of late Mr. Vithal Halankar, wife of Mr. Ravindra Khorjuekar, aged 43 years, housewife, and her husband, 8. MR. RAVINDRA KHORJUEKAR, Aged 47 years, businessman, Both residents of H. No. 181/50, New Wado, near Hanuman Temple, c/o. Damodar Stores, Vasco - Goa. 9. MS. PUSHPAGANDHA VITHAL HALANKAR, Daughter of late Mr. Vithal Halankar, unmarried/spinster, aged 40 years, household, 10. MR. NITYANAND VITHAL HALANKAR, Son of late Mr. Vithal Halankar, aged 32 years, service, bachelor, Both residents of H. No. 670, Rambhuvanwada, Kumbharjua, Tiswadi Goa. … RESPONDENTS Mr Jatin Ramaiya with Mr Pradip Kashyap, Advocates for the Appellants. Ms A. Fernandes, Advocate for Respondent Nos.1 to 10. CORAM: M. S. KARNIK, J. DATED: 7th MARCH 2025 7th March 2025 4&5-SA-9 & 10-24.DOC ORAL ORDER : 1. his Second Appeal challenges the Judgment and Decree dated 28.06.2022 passed by the District Judge-2, Panaji sitting at Ponda (First Appellate Court) in Regular Civil Appeal No.2/2020. he Civil Judge, Junior Division at Ponda (Trial Court) dismissed the appeal vide Judgment and Decree dated 27.05.2019. 2. he appellant is the original defendant. he suit was iled by the heirs of deceased Vithal Mahadev Halankar for eviction. Vide deed of sale/conveyance dated 08.06.2010, the Goa Housing Board sold Flat No.MIG-62 in a building constructed in Ponda Taluka to Vithal. his is the suit lat. Vithal allowed the defendant to occupy the suit premises which is subject matter of the leave and license agreement. An agreement for sale dated 24.05.2010 was entered into between Vithal and the defendant. Vithal agreed to sell to the defendant the said lat for a consideration of Rs.6,21,000/-. 3. An amount of Rs.3,00,000/- was paid by the defendant to Vithal on the date of singing of the agreement. Balance amount of Rs.3,21,000/- was agreed to be paid within forty days of the signing of the agreement. On failure of the defendant to pay the balance amount, a sum of Rs.75,000/- was to be forfeited by the plaintif and the remaining amount was to be refunded without interest. Page 3 of 10 7th March 2025 4&5-SA-9 & 10-24.DOC 4. A notice dated 15.03.2011 was issued by Vithal through Adv. Nelson Soares asking the defendant to vacate the suit lat. Vithal died on 09.09.2012. It is the case of the plaintif that the defendant was a trespasser and was liable to pay compensation of Rs.1,000/- per day from January 2009 till the disposal of the suit for illegal occupation of the suit lat as per the leave and licence agreement. he plaintif prayed that the defendant be evicted from the possession of the suit lat. 5. he Trial Court framed following issues and rendered indings thereon: Sr. No. Issue Finding 1. Whether the Plaintifs prove that the Defendant was allowed to use and occupy the suit lat purely on a temporary basis under a leave and license agreement? Proved. 2. Whether Plaintifs prove that as on date the Defendant is in illegal occupation of the suit lat? Proved. 3. Whether the Plaintifs prove that the Defendant has breached the terms of the agreement dated 24/05/2010? Proved. 4. Whether the Plaintifs prove that the Defendant is liable to pay a sum of Rs.18,25,000/- to the plaintifs by way of damages an further amount of Rs.1,000/- per day till the date of vacating the suit lat, as prayed in prayer clause (c) of the plaint? Not proved. 5. Whether the Plaintifs prove that the Defendant is liable to pay arrears of monthly compensation/license fee of Rs.2,300/- for the period from January 2009 and up till the date of inal disposal of the suit? Not proved. 6. Whether the Defendant proves that late Mr. Not proved. Page 4 of 10 7th March 2025 4&5-SA-9 & 10-24.DOC Vithal Halarnkar was not in possession of the suit lat up till 12/07/2010 i.e. up till the date of the conveyance deed? 7. Whether the Defendant proves that there was an agreement for sale executed between him and late Vithal Halarnkar in January 2005? Not proved. 8. Whether the Defendant proves that he was always ready and willing and is still ready and willing to perform his part of the contract? Not proved. 9. Whether the Defendant proves that the Plaintifs are liable to speciically perform their part of the contract? Not proved. 10. Whether counter claim has been iled within limitation? No. 11. Whether the Defendant proves that in the alternative the Plaintifs are liable jointly and severally to pay to the Defendant a sum of Rs.6,42,000/-including interest, as prayed in prayer clause (b) of the counter claim ? Not proved. 12. What relief? What Order? Suit is partly decreed. 6. he Trial Court partly decreed the suit for eviction. It was declared that the sale deed stands terminated as null and void. he defendant was directed to hand over vacant and peaceful possession of the suit lat to the plaintif. At this stage, it is relevant to mention that the defendant had iled a counter claim for speciic performance. he Trial Court found that the defendant could not prove that he was ready to perform his part of the contract and that the counter claim was not within limitation. he counter claim was dismissed. Page 5 of 10 7th March 2025 4&5-SA-9 & 10-24.DOC 7. he First Appellate Court dismissed the appeal, after framing the following points for determination and rendering its indings thereon: Sr. No. Points for determination Findings 1. Did the Ld. Civil Judge Junior Division, "C" Court, Ponda err in holding that the defendant was occupying the suit lat premises on a temporary basis under a leave and licence agreement ? In the Negative 2. Did the Ld. Civil Judge Junior Division, "C" Court, Ponda err in holding that the defendant had committed a breach of agreement for sale dated 24/5/2010? In the Negative 3. Did the Ld. Civil Judge Junior Division, "C" Court, Ponda err in holding that Vithal Halarnkar was in possession of the suit lat premises prior to the deed of conveyance dated 12/7/2010? In the Negative 4. Did the Ld. Civil Judge Junior Division, "C" Court, Ponda err in holding that there was no agreement of sale executed between the defendant and late Vithal Halarnkar in 2005? In the Negative 5. Did the Ld. Civil Judge Junior Division, "C"Court, Ponda err in holding that the defendant was not ready and willing to perform his part of the agreement ? In the Negative 6. Did the Ld. Civil Judge Junior Division, "C" Court, Ponda err in holding that the plaintifs are not liable to pay Rs.6,42,000/- being the earnest money paid together with interest ? Partly in the airmative. 7. Did the Ld. Civil Judge Junior Division, "C" Court, Ponda err in holding that counter-claim is barred by limitation ? Partly in the airmative. 8. he First Appellate Court was of the opinion that time is not the essence of the contract. he First Appellate Court 7th March 2025 4&5-SA-9 & 10-24.DOC concurred with the indings of the Trial Court that the defendant could not prove his readiness and willingness to perform his part of the contract. Further, the First Appellate Court concurred with the indings of the Trial Court that the counter claim is not within limitation. 9. Mr Ramaiya, learned counsel for the appellant was at pains to point out that both the Courts below have failed to take into consideration the material part of the evidence of the witness of the plaintif. Speciic suggestion was put that the sale deed could not be executed since the plaintif failed to produce the sale deed and obtained an order from the Court declaring him the successor of Vithal. he plaintif did not respond to this suggestion. It is the submission of Mr Ramaiya that in view of the provision of Section 148 of the Indian Evidence Act, this was a it case where the Court should have drawn an adverse inference as the answer to the question obviously would be unfavourable to the plaintif, he having refused to answer the question. Mr Ramaiya further submitted that the inferential inding that the defendant had no resources to generate the balance amount of Rs.3 lakhs is absolutely unwarranted. It is submitted that the Court should have considered that an amount of almost Rs.3 lakhs was already paid at the time of execution of the agreement for sale and what was remaining to be paid was only the balance amount of Rs.3 lakhs. Mr Ramaiya submitted that the Courts below did not consider the case of the defendant that though the defendant was ready and willing to perform his part of the contract, but it was only on account of the plaintif not having the succession certiicate that the sale deed could not be executed 7th March 2025 4&5-SA-9 & 10-24.DOC and hence the materials on record clearly demonstrate that the defendant was always ready and willing to perform his part of the contract. Mr Ramaiya submitted that the appeal requires to be admitted on the following additional substantial question of law apart from the substantial questions of law which are already formulated in the appeal: A. Whether it was incumbent upon the Ld. Trial Court and the Ld. Appellate Court to render indings on the efect of admissions and/or statements made in the cross examination by the Plaintifs/Respondent whilst passing the Judgement and Order? 10. Mr Ramaiya further submitted that the Courts below should not have dismissed the counter claim. 11. On the other hand, Ms A. Fernandes, learned counsel for the respondent invited my attention to the indings of the First Appellate Court as well as the Trial Court. She submits that the indings are based on the evidence on record which by no stretch of imagination can be said to be perverse. It is submitted that the concurrent indings recorded by the Courts below are not to be interfered with. 12. I have heard learned counsel for the appellant as well as the respondent. Appellant/defendant was put in possession of the suit lat on basis of a leave and license agreement. When the agreement of sale was entered into between Vithal and the defendant, a sum of Rs.3 lakhs was paid by the defendant to Vithal. he balance amount of Rs.3 lakhs was not paid by the defendant to Vithal. hough the First Appellate Court has 7th March 2025 4&5-SA-9 & 10-24.DOC reversed the indings of the Trial Court on the aspect that time was the essence of contract, however there are concurrent indings of fact as regards the defendant committing breach of the leave and license agreement dated 04.02.2005. he First Appellate Court held that there was nothing to show that the defendant had the required money to pay the balance amount. Even after the notice dated 15.03.2010 was issued terminating the agreement for sale dated 24.05.2010 and asking the defendant to vacate the suit premises, the defendant did not pay the balance price and demand execution of sale deed. he indings of the First Appellate Court are based on the evidence on record. he First Appellate Court took into consideration that for the payment of amount of Rs.3 lakhs at the time of execution of agreement of sale, the defendant had taken loan from the bank. he further testimony of defendant no.1 clearly demonstrates that he did not have money to pay the balance price. In fact it was the speciic stand that the defendant was to borrow money from his brother to pay the balance amount. he First Appellate Court observed that the defendant has not examined his brother as a witness to show that his brother had the money and that he intended to give the money to his brother. In my opinion, these are all indings of fact rendered on the basis of evidence on record. hese indings of facts do not warrant any interference. he present appeals do not involve any substantial questions of law. 13. Both the Second Appeals are dismissed. No costs. 14. At this stage, a request is made by Mr Ramaiya, learned counsel for the appellant that as the appellant has been occupying 7th March 2025 4&5-SA-9 & 10-24.DOC the premises since the year 2005, he may be granted some time to vacate the same. his request is opposed by Ms Fernandes. In my opinion, I feel it appropriate that though the execution may proceed, for six months from today the appellant may not be evicted. M. S. KARNIK, J. 7th March 2025 Signed by: SUCHITRA NANDAN SINGBAL Designation: Personal Assistant Date: 13/03/2025 18:34:02