Bombay High Court
Girish Vishnu Argade vs Laxman Shankar More on 16 March, 2021
Bench: Anil S. Kilor
1 SA / 339 /2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 339 OF 2008
GIRISH S/O. VISHNU ARGADE
VERSUS
LAXMAN S/O SHANKAR MORE
...
Mr. D.P. Palodkar, Advocate for appellant
Mr. C.K. Shinde, Advocate for respondent
...
CORAM : ANIL S. KILOR, J.
DATE : 16-03-2021
ORDER :
1. In the present appeal, dismissal of suit for recovery of amount
filed by the appellant/plaintiff, by both the Courts below on the ground that
the plaintiff has failed to prove that a handloan of ` 1,20,000/- was given by
him to the defendant, is under challenge.
2. I have heard the respective counsels for the parties.
3. Brief facts of the present case are as follows. [Parties are referred
as per their status in the suit].
. The plaintiff is a Diploma holder in Metallurgical Engineering and
was serving in Bajaj Company, Aurangabad. Defendant - Laxman carries milk
business and owned by 15 - 20 buffaloes and used to supply milk to plaintiff
and other people in nearby area. The defendant wanted to purchase buffalo
and, therefore, he requested plaintiff for handloan of `1,50,000/-. Considering
the difficulties of defendant, plaintiff paid `1,20,000/- as handloan in the
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month of May, 2003. However, when the amount was demanded back, a
cheque was issued dated 10-07-2003 for `1,20,000/- which was dishonoured
on presentation of the same for encashment. Therefore, the suit for recovery of
`1,20,000/- on the strength of cheque was filed by the plaintiff.
. The defendant resisted the claim by denying the transaction in
totality.
. The learned trial Court dismissed the suit by holding that the
plaintiff failed to prove that he paid ` 1,20,000/- to the defendant as a
handloan.
. Feeling aggrieved by the dismissal of suit vide Judgment and
Decree dated 25-10-2005, plaintiff preferred Regular Civil Appeal no. 361 of
2005 which also came to be dismissed with concurrent findings that the
plaintiff failed to prove that he paid `1,20,000/- as handloan to the defendant.
Vide Judgment and Decree dated 28-08-2007, the same is assailed in the
present Appeal.
3. Learned counsel for the appellant submits that the Court has
failed to consider the provisions under Section 118 of the Negotiable
Instruments Act, 1881. It is submitted that there is a presumption against the
drawer of the cheque and in this case, the defendant who is the drawer of the
cheque has admitted his signature on the cheque, however, both the Courts
failed to consider the said aspect and dismissed the suit.
3 SA / 339 /2008
4. The learned counsel for the appellant further draws attention of
this Court to paragraphs no. 10 to 15 wherein same general observations are
made which are beyond the scope of dispute involved. It is submitted that
such observations by the appellate Court is nothing but exceeding its
jurisdiction and, therefore, he submits that such general observations may
kindly be expunged.
5. Per contra, the learned counsel for the respondent - defendant
opposed the present Appeal on the ground that no substantial question of law
is involved in the present Appeal.
6. To consider the rival contentions of the parties, I have gone
through the record and perused the relevant documents and judgments of both
the Courts below.
7. There is no dispute that under Section 118 of the Negotiable
Instruments Act, 1881, there is a presumption against the drawer of the
cheque, however, opening words of Section 118 make it clear that such
presumption is rebuttable. In the present matter though, the defendant is not
disputing his signature on the cheque in dispute, but he has disputed the
receipt of ` 1,20,000/- as handloan.
8. It is settled law that under the Negotiable Instruments Act, 1881,
it is the pre-requisite to prove that the cheque was issued against a legally
enforceable liability. In the present matter, both the Courts after considering
the oral as well as documentary evidence on record have come to the
conclusion that plaintiff has failed to prove that by way of handloan, he paid
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`1,20,000/- to the defendant and for repayment of the said handloan, the
defendant had issued the cheque. I do not find any perversity in the said
concurrent findings.
9. In the circumstances, I do not find that any substantial question
of law involved in the present matter. Accordingly, the Second Appeal is
dismissed.
10. The findings which are recorded by the learned lower appellate
Court in paragraph no. 10 to 15 some of which are of general in nature and
beyond the scope of dispute between the plaintiff and defendant, be treated as
prima-facie and not conclusive.
11. The Appeal is disposed of. No order as to costs.
[ ANIL S. KILOR ]
JUDGE
arp/
