BIR BAHADUR BIST Vs. CHIRANJI LAL HARKELAL

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, lays challenge to judgment dated 19.6.2008, passed by learned District Judge, Kinnaur Division at Rampur Bushahr, District Shimla, H.P., in Civil Appeal No.4 of 2008, affirming the judgment and decree dated 7.12.2007, passed by learned Civil Judge (Senior Division), Rampur Bushahr, District Shimla, H.P.,in case No.106-I of 2005, whereby suit having been filed by the respondent-plaintiff (hereinafter 'plaintiff') for recovery of Rs. 58, 266.00/-,came to be decreed.

(2.) Precisely, the facts of the case as emerge from the record are that the plaintiff, which is a firm duly registered under Section 58(1) of the Indian Partnership Act, 1932 filed suit for recovery in the Court of learned Civil Judge (Senior Division), Rampur Bushahr, District Shimla, H.P., averring therein that appellant-defendant( hereinafter 'defendant'), who is a registered Government Contractor had been purchasing food grains and other articles from the plaintiff's shop. As per plaintiff, total outstanding amount against the defendant was Rs.41, 994.00 and defendant with a view to discharge his aforesaid liability, issued cheque in the sum of Rs. 50,000/- in the name of plaintiff firm. However, fact remains that on presentation, aforesaid cheque drawn on State Co-operative Bank, Kumarsain was dishonoured vide memo dated 28.10.2004. Since despite repeated requests, defendant failed to make the payment, plaintiff was compelled to file the suit for recovery. By way of suit plaintiff prayed that his suit may be decreed for Rs. 58, 266.00/- alongwith interest at the rate of 15% per annum.

(3.) By way of written statement, defendant while admitting that he is contractor and had been purchasing food articles from the shop of the plaintiff, categorically stated in his written statement that he had some dispute with the plaintiff over the amount to be paid by him to the plaintiff, but ultimately matter was settled for Rs. 50,000/- and he had issued cheque. Defendant claimed that sum of Rs. 50,000/- was paid to the plaintiff in cash in July, 2004, but he did not issue any receipt. He further stated that though plaintiff had agreed to return the cheque, but he never returned the same.