Ashok Prabhakar Deshpande vs Nilesh Kondaji Shelke
2021 Latest Caselaw 15170 Bom

                                        (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      SECOND APPEAL NO.170 OF 2021

 Ashok Prabhakar Deshpande                                = APPELLANT
                                                        (Orig.Plaintiff)

          VERSUS

 Nilesh Kondaji Shelke                                    = RESPONDENT
                                                        (Orig.Defendant)
                                       -----
 Mr.Amit S.Savale, Advocate for Appellant.
                                       -----

                               CORAM :        SMT.VIBHA KANKANWADI,J.

RESERVED ON : 08/10/2021 PRONOUNCED ON : 21/10/2021

PER COURT :-

1. Present appeal has been filed by original

plaintiff, who had filed Special Civil Suit No.

27/2013 before Civil Judge, Senior Division,

Kopargaon,District Ahmednagar for recovery of

amount of Rs.7,00,000/- (Rupees seven lakhs) along

with interest. The said suit came to be dismissed

on 6.11.2015. The appeal preferred by the

plaintiff, i.e. Regular Civil Appeal No.148/2015,

has been dismissed by learned District Judge-1,

Kopargaon District Ahmednagar on 25.2.2020. Hence,

the present Second Appeal.

2. Heard learned Advocate Mr. Amit Savale,

for the appellant.

3. It can be gathered from the pleadings,

evidence and the judgments of both the Courts that,

the defendant is not disputing that he had received

amount of Rs.7,00,000/- from the plaintiff,

however, he has his own story to tell. The

question is, therefore, on the basis of the

pleadings, whether burden of proof could have been

cast on the plaintiff that he should prove that the

defendant had borrowed sum of Rs.7,00,000/- from

him ? Further, it appears that only one sentence

has been taken to be an admission when it is the

cardinal principle that the evidence has to be

considered as a whole.

. Learned Advocate for the appellant has

relied on a decision in the case of M.Manoharan

Chetti and Ors. Vs. M/s C.Coomarswamy Naidu and

Sons, Madras - AIR 1980 Madras 212, wherein it has

been held that admission per se is not a conclusive

proof by itself. Therefore, taking into

consideration the fact that whether both the Courts

below misconceived the alleged admission, will have

to be definitely gone into and, therefore,

substantial questions of law, as contemplated under

Section 100 of CPC, are arising in this case,

requiring admission of the Second Appeal.

4. The Second Appeal stands admitted.

Following are the substantial questions of law, -

i. Whether both the Courts below were justified in putting in burden of proof on the plaintiff to prove that the defendant had borrowed sum of Rs.7,00,000/- from him when the said fact is stated to have been admitted in the pleadings by the defendant ?

ii. Whether the defendant had proved that out of loan of Rs.40,00,000/- obtained by him with the help of the plaintiff, he gave loan/amount of Rs.10,00,000/- to the plaintiff ? In other words, whether the defendant has proved his own story about the money transaction between him and the plaintiff ?

iii. Whether the plaintiff was entitled to receive the amount together with interest ? If yes, to what extent ?

                  iv.             Whether                  interference                        is





                  required.


 5.               Issue        notice         to      the          respondent,

 returnable on 25.1.2022.

 6.               Call R and P.




                               (SMT. VIBHA KANKANWADI)
                                       JUDGE



 BDV