Bombay High Court
SHRI. SHAKIL AHMED KHANversusSHRI. KAZI TAUHID AHMED SAEED
- Decided
- Disposal
- Disposed Off
Holding
The Court held that the transaction was a sale, not a mortgage, and there was no substantial question of law, leading to dismissal of the appeal.
Summary
Shakil Ahmed Khan appealed against the trial and appellate courts' findings that a deed dated 30 June 2010 constituted a sale, not a mortgage, and ordered him to pay the balance consideration of Rs. 6,00,000 and obtain conveyance of the property. The defendant, Kazi Tauhid Ahmed Saeed, contended that the transaction was a mortgage arising from a friendly loan of Rs. 2,50,000 and alleged fraud and misrepresentation in the sale agreement. The trial court, after a factual inquiry, rejected the mortgage defence and decreed specific performance; the appellate court affirmed this decision. The appellant argued that the sale price of Rs. 8.5 lakh was far below the market value of Rs. 20 lakh, suggesting an implied mortgage. The High Court held that a sale at a price below market value does not render the sale void nor imply a mortgage, and found no substantial question of law requiring interference. Consequently, the second appeal and the related interim application were dismissed.
Issues considered
- Whether the transaction between the parties was a sale or a mortgage.
- Whether a sale of property at a price below market value can be deemed void or indicative of a mortgage.
- Whether there exists a substantial question of law warranting appellate interference with the trial court's findings.
Subjects
- specific performance
- sale vs mortgage
- contract fraud
- market value
- civil appellate jurisdiction
- property conveyance
Judgment
2026:BHC-AS:34941
Renuka 8-SA(ST)-28791-2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST) NO. 28791 OF 2025
WITH
INTERIM APPLICATION NO. 12433 OF 2025
Shakil Ahmed Khan ...Applicant/Appellant
V/s.
Kazi Tauhid Ahmed Saeed ...Respondent
________________
Mr. Tarun Kumar Sinha for Applicant/Appellant.
Ms. Sandhya A. Mailagir for Respondent
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 24 AUGUST 2026.
P.C.:
1) By this Appeal, the Appellant/Defendant has challenged
concurrent findings recorded by the Trial and the Appellate Courts in a
suit for specific performance. The Trial Court has decreed the suit by
directing Plaintiff to deposit balance consideration of Rs. 6,00,000/- in
the Court within 30 days with a direction to the Defendant to execute
conveyance and handover possession of the suit property to the Plaintiff.
2) I have heard Mr. Sinha, the learned counsel appearing for
the Appellant and Ms. Mailagir, the learned counsel appearing for the
Respondent and have considered the submissions canvassed by them.
Page No.1 of 3
24 August 2026
Renuka 8-SA(ST)-28791-2025.docx
3) Before the Trial Court, Appellant/Defendant raised a defence
that the transaction contemplated between the parties was that of a
mortgage. He contended that an amount of Rs. 2,50,000/-was paid by the
Plaintiff to the Defendant towards friendly loan. He also contended that
the Agreement for sale dated 30 June 2010 was an outcome of fraud and
misrepresentation. Thus, before the Trial and the Appellate Courts, what
was involved was a mere factual inquiry as to whether the Plaintiff had
extended handloan to the Defendant and whether the transaction
effected between the parties was that of a mortgaged or sale. The Trial
Court has conducted the factual inquiry by assessing the evidence on
record and has rejected the defence of the Defendant. The findings
recorded by the Trial Court are concurrently upheld by the Appellate
Court. There is no dispute to the position that the Agreement for sale
does not refer to creation of mortgage as such. The conclusion drawn by
the Trial and Appellate Courts that the transaction agreed between the
parties is that of sale therefore does not warrant interference.
4) It is sought to be contended before me that the market value
of the suit property at the relevant time was Rs. 20,00,000/- whereas the
same is agreed to be sold only for Rs. 8.5 lakh. It is well settled position
that mere sale of property below the market value cannot be a reason for
declaring the sale to be void. Therefore, it cannot be concluded that
parties intended execution of a mortgage.
5) Considering the above position, in my view, no substantial
question of law is involved in the Appeal. Second Appeal is accordingly
dismissed. In view of the dismissal of the Second Appeal, noting would
Page No.2 of 3
24 August 2026
Renuka 8-SA(ST)-28791-2025.docx
survive in Interim Application No. 12433 of 2025 and the same is
accordingly disposed of.
[SANDEEP V. MARNE, J.]
Signed by: Renuka S Thakur
Page No.3 of 3
Designation: PA To Honourable Judge 24 August 2026
Date: 25/08/2026 16:34:42
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