Bombay High Court
Vijay Bansilal Warma vs Ganesh Agency Thro. Its ... on 24 February, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
928 SECOND APPEAL NO.439 OF 2019
VIJAY BANSILAL WARMA
VERSUS
GANESH AGENCY
THROUGH ITS PROPRIETOR-RUPESH RAJGOPAL ZANWAR
...
Mr. V.D. Hon, Senior Advocate i/b Mr. A.V. Hon, Advocate for the appellant
Mr. S.S. Jadhav, Advocate for the sole respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 24th FEBRUARY, 2021.
PER COURT :
1 Heard both sides. Appellant is the original defendant, who is
challenging the Judgment and Decree passed by learned Adhoc District
Judge-5, Ahmednagar in Regular Civil Appeal No.299/2017 dated
08.10.2018, thereby reversing the Judgment and Decree passed by learned
3rd Joint Civil Judge Senior Division, Ahmednagar in Special Civil Suit
No.3/2014 dated 07.10.2017.
2 The original plaintiff had come with the case that he had
extended loan of Rs.4,44,000/-, from time to time, to the defendant. Plaintiff
2 SA_439_2019
contended that after the repeated demands the defendant had issued two
cheques for Rs.2,00,000/- and Rs.2,44,000/- respectively. However, after the
presentation of those cheques they came to be dishnonured, as it was found
by the bank that both the cheques are fake. Thereafter the plaintiff had
issued demand notice on 01.10.2013 to the defendant, but defendant failed
to comply, and therefore, the decree was sought by the plaintiff for an
amount of Rs.5,05,900/-.
3 Defendant resisted the claim of the plaintiff and totally denied
the transaction, so also issuance of any cheque or cheques. He denied that he
had issued those fake cheques.
4 After the issues have framed, both the parties have led oral as
well as documentary evidence. After considering the said evidence and
hearing both sides, the learned Lower Court had come to the conclusion that
the plaintiff has failed to prove that the amount of Rs.5,05,900/- was due to
him from defendant, and therefore, the suit came to be dismissed.
5 The plaintiff filed the said appeal i.e. Regular Civil Appeal
No.299/2017. After hearing both sides, the learned First Appellate Court has
reversed the Judgment and Decree, by holding that plaintiff had proved that
defendant had taken the said hand loan and was liable to pay Rs.5,05,900/-
3 SA_439_2019
on the date of the suit. Hence, present Second Appeal has been filed by the
defendant.
6 In order to cut short, it can be said that both the learned
Advocates have made submissions in support of their respective contentions.
The first and the foremost fact, that is required to be noted is, that both the
Courts have arrived at contrary conclusion, though the evidence before them
was the same. The fact is then required to be seen, as to whether the plaintiff
had proved, whether the hand loan was given or not. At one place the
learned Trial Court has made observation that though the plaintiff has
admitted in the cross-examination that Ganesh Agency has maintained the
account, but then he says that he has not made entry in the Account Book
about the dates of payment of amount to defendant and the amounts, those
were paid by him from time to time to the defendant. It appears that he has
admitted that he has not taken any receipt or anything in acknowledgment.
But then the First Appellate Court has taken a note of relationship between
the plaintiff and defendant and the business that they are carrying out and
has come to the conclusion that there appears to be the business transactions
between both of them. The First Appellate Court has taken note of PW 4
Sandip Raut, who used to keep accounts for the plaintiff and it is stated that
he has proved Cash Book and Ledger Exhs.45 and 46. Therefore, now,
4 SA_439_2019
definitely question has been raised, as to whether the said Account Book or
Cash Book can be said to have been properly proved as per Section 32(2) of
the Indian Evidence Act. If it is held that those Account Books i.e. Cash Book
and Ledger are properly proved, then only the question of granting decree
would be there, otherwise the plaintiff's case should fail. When they
contradictory observations have been made, the evidence then requires re-
appreciation, that too, with legal point, and therefore, substantial questions
of law are arising in this case, requiring admission of the matter.
7 Appeal is admitted.
8 Following substantial questions of law are framed :
i) Whether Cash Book and Ledger Exhs.45 and 46 to support
the plaintiff's claim of extending hand loan of Rs.4,44,000/- to
the defendant was proved as required under Section 32 of the
Indian Evidence Act ?
ii) Whether the First Appellate Court was justified in reversing
the Judgment and Decree passed by the learned Lower Court ?
iii) Whether interference is required ?
5 SA_439_2019
9 Issue notice to the respondent after admission. Learned
Advocate Mr. S.S. Jadhav waives notice for the respondent.
10 Call Record and Proceedings with paper book.
( Smt. Vibha Kankanwadi, J. )
agd
