YASHWANTBHAI ANANDLAL THAKKAR Vs. SHANTILAL VARDHICHAND SHAH

JUDGEMENT

(1.) RULE . Mr. Mahendra K.Patel, learned advocate, waives service of notice of Rule for the respondent. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

(2.) THE challenge in this petition under Articles 226 and 227 of the Constitution of India, is to the order dated 12.09.2013, passed by the learned Civil Judge (S.D.), Patan ("the Trial Court"), in Special Civil Suit No. 40 of 2010, whereby the application of the petitioner at Exh. 26, under the provisions of Section 10 of the Code of Civil Procedure, 1908 ("the Code" for short), has been rejected.

(3.) THE petitioner instituted Regular Civil Suit No. 138 of 2010, in the Court of the learned Principal Senior Civil Judge, Jamnagar, for recovery of Rs. 78,826/ -, against the present respondent, with 18% interest. In the said suit, it is the case of the petitioner that he was on very good terms with the respondent, who was his neighbour. The respondent faced grave financial losses in his business, which led to several legal proceedings. Further, there was a great deal of pressure upon the respondent from his creditors, and he feared that he would be physically harmed. The respondent, therefore, quietly left Jamnagar, one night. It is further the case of the petitioner that the respondent executed a Power of Attorney in favour of the petitioner, in order to sell the land belonging to the respondent, at Revenue Survey No. 155/1, Aliya, to enable him to pay off his debts. On 06.08.2009, the petitioner and the respondent went to the office of the Sub -Registrar and the respondent sold the above -mentioned property to one Rajak Osman Kar, a resident of Jamnagar, for a sale consideration of Rs. 25,00,000/ -. According to the petitioner, thereafter the respondent went from the spot in a closed car, in order to avoid detection. Thereafter the petitioner, the confirming party and the advocate had the sale registered at the office of the Sub -Registrar vide serial number 5168, dated 06.08.2009. It is further the case of the petitioner in his suit, that the respondent had to pay various debts plus the stamp duty on the registration of the land, which amounted to Rs. 25,78,826/ -. Out of love and affection, the petitioner lent the respondent an amount of Rs. 78,826/ - on 08.08.2009, in order to enable him to meet the shortfall over and above the amount of Rs. 25,00,000/ -. To the surprise of the petitioner, on 02.03.2010, the respondent sent a notice to the petitioner to return the amount of Rs. 25,00,000/ - which was the sale consideration for the land sold by the respondent through the petitioner, being his Power of Attorney. This notice was replied to by the petitioner on 17.03.2010. In the reply, the petitioner asserted that the respondent owed him an amount of Rs. 78,826/ -, therefore, he should withdraw the notice. When the respondent did not return the money or withdraw the notice, the petitioner was constrained to institute the above -mentioned suit on 05.04.2010.