MOHAMMAD AKRAM Vs. ROSHAN LAL

JUDGEMENT

(1.) By way of the present appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Solan, District Solan, (H.P), in Civil Appeal No.63-S/13 of 2006, dated 26.2.2007, vide which, the learned lower Appellate Court, has set aside the judgment and decree passed by the learned Civil Judge (Senior Division), Solan, District Solan, in Suit No.165/1 of 2003, dated 5.7.2006.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as 'plaintiff') maintained a suit for recovery of Rs. 26,000/- alongwith interest against the appellant/defendant (hereinafter referred to as 'defendant') alleging that plaintiff is engaged in the business of supplying the building material. It is alleged that defendant on placing the order to supply the building material to the plaintiff, informed him regarding the rates of building material, supplied the same and some amount was paid to the plaintiff by the defendant. The defendant instead of paying remaining amount, issued a cheque amounting to Rs. 26,000/-, which the defendant was supposed to pay towards the payment of building material taken on credit. The defendant assured that amount, which is due towards the plaintiff shall be got realized and assured the cheque will be encashed on its presentation. The plaintiff presented the post dated cheque, dated 20.12.2002, but it was found that the defendant had closed the account and defrauded the plaintiff of his rightful claim.

(3.) Defendant contested the suit by filing written statement taking preliminary objections regarding the maintainability and limitation. On merits, it is admitted that the defendant had placed an order of the supply of building material to the plaintiff, but it is denied that the defendant had paid some amount to the plaintiff and had not paid full amount to the plaintiff and for remaining payment, he issued a cheque of Rs. 26,000/-, to the plaintiff. The defendant had paid full amount to the plaintiff and blank cheque was issued, as security in the year 1992 and thereafter, the defendant never placed any order for supply of the building material. The defendant also asked the plaintiff to return the blank cheque as full payment, but the plaintiff did not return the same on the plea that it had been misplaced and assured to return the same. It is further alleged that the defendant had closed the account on 21.12.1998 and has not issued any cheque.