Gujarat High Court
Vrajlal Bhikhabhai Savaliya vs Manojbhai Ramashankar Dave on 12 August, 2025
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C/SA/65/2025 ORDER DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 65 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SECOND APPEAL NO. 65 of 2025
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VRAJLAL BHIKHABHAI SAVALIYA & ORS.
Versus
MANOJBHAI RAMASHANKAR DAVE
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Appearance:
MR. MANOJ T DANAK(6264) for the Appellant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL ORDER
1. The present Second Appeal has been filed under Section
100 of the Code of Civil Procedure, challenging the judgment
and decree passed by 3rd Additional District Judge, Visavadar in
Regular Civil Appeal No.9 of 2023, dated 26.12.2024, whereby,
the appellate Court has confirmed the judgment and decree
passed by the Principal Senior Civil Judge, Junagadh in Special
Civil Suit No.50 of 2009, dated 20.07.2023, wherein the trial
Court has directed the appellants to pay an amount of
Rs.18,07,000/- with 6% interest to the respondent.
2. For the sake of convenience, the parties are referred to as
per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are
that it is the case of the plaintiff that the plaintiff has deposited
an amount of Rs.18,07,000/- through two fixed deposits in the
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bank on the basis of the agreement dated 13.02.2006 and when
the plaintiff left the partnership firm, defendant No.1 had given
cheque of Rs.18,07,000/- to the plaintiff. It is the case of the
plaintiff that the defendant had given writing on the letterhead of
the Company that when the amount of fixed deposit receipt
which are put for security will be released, the said amount will
be returned with interest and when the plaintiff tried to deposit
the said cheque, the same was dishonoured, and therefore, the
plaintiff filed a complaint before the Visavadar Court under
Section 138 of the Negotiable Instruments Act and the plaintiff
filed Civil Suit for Rs.72,86,820/- with 1% interest. The
defendant in the said suit filed written statement, vide Exhibit-
25 and the trial Court framed issues, vide Exhibit-38 as under:-
"1. Whether the Plaintiff proves that, the Plaintiff entered into
a partnership with the Defendants No. 1 to 6 by executing a
partnership deed on 13/02/2005 for making capital investment
in the business of getting government contracts?
2. Whether the Plaintiff proves that, the Plaintiff had placed
an amount of Rs. 5,79,000 and Rs. 12,28,000, totaling Rs.
18,07,000, in a Fixed Deposit in the names of the Defendants?
3. Whether the Plaintiff proves that, when the Plaintiff and
the Defendants separated from the partnership business,
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Defendant No. 1 gave the Plaintiff a cheque for Rs. 18,07,000
on 14/02/2007?
4. Whether the Plaintiff proves that, as the cheque given by
the Defendant was returned without realization, the Plaintiff is
entitled to recover the original amount of Rs. 18,07,000 and the
amount of loss due to interest for 26 months, amounting to Rs.
4,69,820, a total of Rs. 22,76,820, with interest, from the
Defendant?
5. Whether the Plaintiff proves that, the Plaintiff is entitled to
obtain a permanent injunction that Defendant No. 5 should not
pay any amount to Defendants No. 1 to 4 until Defendants No. 1
to 5 pay the Plaintiff the claimed amount with interest?
6. Whether Defendants No. 1 to 5 prove that, the Plaintiff is
not entitled to receive the claimed amount and interest from the
Defendants?
7. Whether Defendant No. 5 proves that, the Plaintiff's suit is
liable to be dismissed as Defendant No. 5 has been wrongly
made a party, even though Defendant No. 5 is not liable for the
transactions between the Plaintiff and Defendants No. 1 to 4?
8. Whether the Plaintiff is entitled to the reliefs sought?
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4. The plaintiff examined himself, vide Exhibit-45 and
witnesses of the plaintiff were examined, vide Exhibit-75 & 80.
The defendant examined himself, vide Exhibit-45 and after
taking into consideration the oral evidence and documentary
evidence and giving findings on all the issues, the trial Court
directed that the defendants are liable to pay an amount of
Rs.18,07,000/- with interest at the rate of 6%. The defendant
challenged the said order by filing Regular Civil Appeal No.9 of
2014 and by order dated 26.12.2024, the said appeal was
rejected and the judgment and decree passed by the Principal
Senior Civil Judge, Junagadh in Regular Civil Suit No.15 of
2009 was confirmed. Aggrieved by the same, the present
Second Appeal is filed.
5. Learned advocate for the defendant has mainly argued that
the trial Court and the appellate Court have not considered the
aspect that defendant No.1 filed his examination-in-chief and
entire suit was decided after his cross-examination. The trial
Court has taken into consideration that the defendants had
admitted that they had returned the amount of FDR after the
work is completed and FD is released from the Government but
the fact remains that the defendants have not received such
amount, and therefore, the defendant was not liable to pay the
said amount. It has also been argued that the trial Court has not
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taken into consideration the fact that the suit was not triable
under the provision of Secion-69 of the Partnership Act and the
trial Court has also not taken into consideration the fact that the
defendants are acquitted for the offence under Section 138 of
Negotiable Instruments Act, and therefore, it has been argued
that the present Second Appeal is required to be admitted on the
substantial question of law which are formulated in the
memorandum of appeal and are reproduced hereinunder:-
(i) Whether the Court below is justified in passing the
impugned order, especially the Suit was not maintainable per
Section 69 of the Indian Partnership Act?
(ii) Whether the Court below is justified in passing the
impugned order instead of remand back the matter?
(iii) Whether the Court below is justified in passing impugned
order, more particularly, the fact that the appellants have been
acquitted so far the offence under Section 138 of the NI Act is
concerned?
(iv) Whether the Court below is justified in passing order
which is impugned not supported by the material on record?
(v) Whether the Court below is justified in passing the
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impugned orders by ignoring statutory provisions of the Code of
Civil Procedure?
6. Having heard learned advocate for the defendant and
having considered the judgment and decree passed by the trial
Court and confirmed by the first appellate Court. The fact
remains that there is no dispute that the plaintiff had given the
fixed deposit but the only defence by the defendants that was
raised was that said amont was to be returned after the work is
completed and the fixed deposit is released from the
Government.
7. From the documentary evidence, it can be established that
the plaintiff has executed MOU with defendant on 13.02.2006,
and thereafter, on 19.04.2006, the said partnership was dissolved
and on 14.02.2007, the defendant had given a cheque of
Rs.18,07,000/- in the name of M/s. Dolly Construction, to the
plaintiff. The said cheque was deposited on 19.07.2007,
therefore, it is undisputed fact that the plaintiff become the
partner of defendants in the business of Govenment Contract on
03.02.2006 through the partnership deed, MOU, which have
been produced, vide Exhibit-54 and on the basis of that, the
plaintiff had prepared two different fixed deposit receipt for an
amount of Rs.12,28,000/- and other for Rs.5,59,000/-, in all an
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amount of Rs.18,07,000/- in the name of defendant No.5 on
14.02.2006. The defendant has also admitted that the partnership
was dissolved, vide Exhibit-55 and it can also be clearly
established that when the plaintiff and defendant dissolved the
partnership, defendant No.1 had given a cheque of
Rs.18,07,000/- on 14.02.2007.
8. Havng heard learned advocate for the defendnat. In view
of the above referred facts, the trial Court and the appellate
Court have given their findings of facts and from the facts it is
very clear that after the partnership was dissolved, the defendant
has categorically admitted that in view of the fact that the
partnership firm was dissolved and cheque of Rs.18,07,000/- has
been handed over to the plaintiff.
9. In view of the said fact, the defendant himself has admitted
before the trial Court that he has not paid the amount due to the
plaintiff till date. In view of the said fact, no substantial
questions are involved in the present Second Appeal and the
present Second Appeal is required to be dismissed.
10. Considering the submissions made and after examining the
findings of both the Courts below on the issue raised in the suit
and upon examining the judgment and orders of both the Courts
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below, this Court is of the considered opinion that the learned
advocate for the defendant is unable to point out any infirmity,
perversity or impropriety in the concurrent findings of the fact
recorded by both the Courts below, not only that, the learned
advocate for the defendant is unable to show that the findings
recorded by the learned Courts are without any evidence or there
is any illegality in the findings.
11. In the case of Jaichand (Dead) through Lrs and Other
v. Sahnulal and Another reported in 2024 SCC OnLine SC
3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the
final Court of facts except in such cases where such
findings were erroneous being contrary to the
mandatory provisions of law, or its settled position on
the basis of the pronouncement made by the Apex
Court or based upon inadmissible evidence or without
evidence."
12. Under the circumstances, this Second Appeal is devoid of
any substantial question of law. Both the learned Trial Court and
first appellate Court have rightly decided the issue between the
parties in the right perspective and as stated above no substantial
question of law arises in the present appeal. The defendant has
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failed to prove his case before the learned trial Court as well as
before the first appellate Court. This Court does not find any
substance in the present Second Appeal as the same is devoid of
any merit both on facts and law and the same is dismissed at
admission stage.
13. In view of the order passed in the main matter, Civil
Application does not survive and stands disposed of
accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
