IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION.

SECOND APPEAL NO. OF 2015.

INREGULER CIVIL APPEAL NO. 32/2013.

CROSS APPEAL IN

SECOND APPEAL NO. 453 OF 2015

DISTRICT: PUNE.

Mrs. MRUNAL VITHAL WABLE Age: 45 Years: Occu: Coaching classesFlat No. 4A, Building No.6,Indira Heights, C.S.No.142, Poud PhataErandawane Pune…………………………....APPLICANT

(Original Plff.) -:VERSUS:-

Mr. SANTOSHMAL TARACHAND KOTHARI

Age: 48 Years; Occ: Civil Contractor,R/o Flat No.2B, Sanghavi AppartmentSurajnagar, Shirur, Dist Pune ……………..OPPONENT (Original Defft.)

Claim Rs 1,67,298/- for the Court Fees

& Jurisdiction of the Court.

To, The Hon’ble Chief Justice andother Honorable Puisne Judgesof this Hon’ble High Court of Judicature Bombay, At Bombay.

This Humble Appeal on Behalf of the Plaintiff /Appellant.

HEREIN ABOVE NAMED APPLICANT MOST RESPECTFULLY

SHEWETH AS UNDER .

1. The appellant is well educated lady. She possess an

educational qualification of Masters in Arts. She is residing

on the given address and conducting the coaching classes.

She has independent source of earning. Her husband is

serving with the irrigation Department. The respondent

developed friendly relations with her husband. He frequently

used to visit the house of petitioner along with her husband.

In the year 2006 the respondent was in need of money. He

requested the Appellant to help him as he needed of the

amount for carrying out the contract work. In view of the

having cordial relations by him with her husband, the

Appellant gave Rs. 4,95,000/-. To discharge the liability the

respondent issued 3 different the cheques. He assured that

on the given date is the cheques will be honoured and the

appellant will receive her amount.

2. On the given date the Cheque was deposited in her bank

account. However these 3 cheques were dishonoured. On

receipt of the intimation from the concerned bank, the

appellant issued notices and called upon the respondent to

pay off the dues. The respondent failed to reply the notices,

also to discharge his liability. Thus the appellant on a 1st

march 2010 filed a Special Suit No. 643 of 2010. On 30th of

October 2012 the Joint Civil Judge Senior Division Pune

delivered his judgment and thereby dismissed the suit. A

copy of the judgement is produced on record vide Exhibit – A

and the decree drawn vide Exhibit – B in Spe. C. Suit.

3. The appellant feeling aggrieved with the dismissal

judgement and decree, the appellant filed Regular Civil

Appeal No. 32 of 2013 in the District Court Pune. On 13

March 2014 the Ad hoc District Judge-2 Pune delivered his

judgment. He allowed the appeal and decreed the suit.

However while passing the final order in paragraph No. 3 he

directed the defendant respondent to pay Rs. 4,95,000/-

along with 7% p. a. interest from the date of filing of the suit.

There appears to learned ad hoc district judge failed to take

into consideration the interest Rs.1,67, 298/- claimed from

the date of cheque dishonoured of the cheque till filing of

the suit. The Lower Appellate court allowed the appeal with

costs. However it appears the lower appellate court made

another mistake of non-directing the respondent to pay the

costs of the suit. A copy of the grounds of appeal memo is

produced on record vide Exhibit – C. The judgement drawn in

the Appeal is produced on record vide Exhibit – D and the bill

of costs vide Exhibit – E.

4. The appellant applied for the certified copies & get it. That

on going through the reasons recorded in the judgment

delivered and found there is apparent bonafide mistake on

the part of lower Appellate Court. At the time she became

sick and there being a summer vacation to the court. After

the opening of the court review petition was filed along with

the Misc. Application No. 698 of 2014 to condone the delay.

However mean time the Respondent filed Second Appeal

No.453 of 2014, with the request to condone the delay

caused for filing the appeal. The Respondent filed Civil

Application No.1684/2014 & on 23/12/2014 obtained Stay

Order. The Appeal is filed in the High Court & its cognizance

has been taken, there by now lower appellate court cannot

proceed with the Review Petition. Hence it becomes

mandatory on the part of Appellant to file this Appeal as a

cross appeal.

5. That the appeal was decided by the lower court on 11 the

March 2014. The judgment and decree was signed by the

lower appellate judge on 24 March2014. The lower appellate

court decided the appeal in her favour. He decreed the suit.

The applicant noticed that the lower appellate court has not

awarded the interest Rs. 1,67,298/-.She applied for the

certified copies. On 25/07/ 2015 the applicant filed Review

Petition with delay codonation. The copy of the delay

condonation application is produced on record vide Exhibit –

F and the copy of the review petition is produced on record

vide Exhibit – G.

6. Feeling aggrieved and dissatisfied with the partial

judgment delivered and reasons recorded by the

lower appellate court in Civil Appeal No 32 of 2013

and thereby the decreed the suit partly filed his

present appeal on the following grounds:-

a. That the lower appellate court rightly observe that the

defendant respondent failed to discharge the burden of

proof to rebut the presumption created under section118

(a) of the Negotiable Instrument Act.

b. That in view of the production of Income Tax documents

and of a certificate from the Chartered Accountant it was

an error on the part of Lower Appellate Court while

observing that “Of course, the plaintiff has no

documentary evidence to show that she paid a hand loan

of Rs.4,95,000/- to the defendant”.

c. That the none consideration of the claim of interest Rs.

1,67,298/- on the principal amount, from the period of

cheque was dishonoured till filling of the suit is a glaring

mistake on the part of the lower appellate court.

d. That the civil court is bound to consider and direct the

particular party as to payment of the costs of the suit, to

the either side, or at least he must direct the parties to

bear their own costs. None-consideration of this aspect is

an glaring mistake on the part of the lower appellate

court. That the lower appellate court while passing the

directions in final order clause No. 3 ought to have

directed as follows “3. The Special Civil Suit being number

643/2010 is decreed with costs.”

e. That the rule of law “the relief claimed & requested but

refused as final order is silent” can only be made

applicable when the Judge specifically considers the

entitlement of the party is to the relief claimed. The

omission to consider the same is legal error on the part of

that judge, vide observed by the Apex Court of India in

Ram Prasad V/s State of Madhya Pradesh 1970 Mha. L.

J.696.

f. That the lower court was bound to consider the pre suit

entitlement of the plaintiff to claim of the interest & costs

of the suit throughout.

Mumbai.

23/10/2015 P. G. Jagdale

Advocate for the Appellant.

1. Law point consisting of the Appeal is from point numbers “b” to “e”.

2. The respondent has filed Second Appeal 453/2015 which is pending before the honourable court. This appeal is a cross appeal to the said appeal hence needs to heard & decide simultaneously.