CHANAN SINGH Vs. DAULAT RAM

JUDGEMENT

(1.) This appellants appeal (hereinafter referred to as the plaintiff) is directed against the judgment and decree passed by Additional District Judge (1), Shimla in Civil Appeal No. 24 S/13 of 1988/ 86. whereby the appeal of the respondents (hereinafter referred to as the defendants), has been allowed and consequently the judgment and decree passed by Sub -Judge 1st Class, Theog in Civil Suit No. 137/1 of 1981, has been reversed and resulting in the suit of the plaintiff being dismissed,

(2.) Brief facts giving rise to this appeal are that the plaintiff filed a suit for recovery of Rs 20,000 on the allegations that Daulat Ram and Chet Ram, who were arrayed as defendants No, 2 and 3 being real brothers,, were proprietors of defendant No,. 1 M/s, Daulat Ram and Brothers and these defendants were dealing in the sale and purchase of timber and trees. Plaintiff was a sole proprietary concern of Chanan Singh, who died during the pendency of the appeal and his legal representatives were brought on record vide orders of this Court dated 18 6 1986. According to plaintiff Chanan Singh had purchased standing Deodar and Kail trees from number of persons and he had paid money to such persons as per agreement. According to the averments he had finalised the deal with the defendants for the purchase of the standing trees at the rate of Rs. 6/50 per eft. of deodar trees and Rs, 4 per eft, for Kail trees and such deal was reduced into writing in the month of February 1980, After completing codal formalities of getting such trees makred, thereafter, felling and converting those into timber scants, i e 3000 scants of different sizes were brought to road head known as Dhurala by the defendants which was their launching depot. Case of the plaintiff further was that on reaching at the launching depot, plaintiff was paid a sum of Rs. 20,000 after the parties had made settlement of accounts as this sum was due and payable. According to the plaintiff for the sum of Rs, 20,000 defendants issued a cheque for this amount on 16 -7 -1981 and when this cheque was presented for encashment, the same was dishonoured by its banker and according to the plaintiff this false cheque was issued by the defendants with a dishonest intention to cheat the plaintiff, when the defendants had no amount in the bank at all and further according to the plaintiff the defendants had failed to acknowledge that they had no money in the bank on that date. According to plaintiff since the cheque had bounced, therefore, he had a cause of action to maintain the suit for recovery of Rs. 20,000.

(3.) This suit was contested and resisted by the defendants who pleaded that they did not owe Rs. 20,000 to the plaintiff as alleged by him, but infact they owed Rs 36,000 out of which Rs 20,000 was paid in cash against receipt (Ex. DA) at Shimla on 16 -7 -1981 and on the same date another sum of Rs. 16,000 was paid by another receipt (Ex. DB) at Theog since they did not have adequate money to liquidate the total sum |of Rs. 36,000 as payable by them to the plaintiff. It was further pleaded by the defendants that after the receipt of this amount, plaintiff also get an affidavit attested on the same date i. e 16 -7 -1981 (Ex, D -1) and thus no amount was payable by them. In respect of cheque in question, it was stated that defendant No 3 Chet Ram was having a saving bank account with Indian Bank, The Mall, Shimla Branch and on search it was found that the cheque book was missing, At such point of time the said defendant No. 3 Chet Ram informed the bank authorities for cancellation of the said cheque book so that fraud by any party may be averted. This intimation appears to have been sent by the defendant No 2 to its banker vide Ex DE after the receipt of notice from the court on 10 -10 -1981. With these pleadings the claim of the plaintiff was repudiated.