ORAL COMMON JUDGMENT

(per the Hon’ble Mr.Justice

D.S.R. Varma)

Though the matter is listed under the caption “interlocutory”, since the matter has been heard at length, with consent of the learned counsel appearing for both sides, the main appeal itself is being disposed of by this common judgment.

2.The application C.C.C.A.M. P.No.239 of 2006 is filed under Order XLI Rule 27 of the Code of Civil Procedure (for brevity “C.P.C”) seeking to receive the documents as additional evidence on record and to mark the same on behalf of the petitioner.

3. The Petitioner in C.C.C.A.M.P.No.239 of 2006 and the appellant in C.C.C.A.No.253 of 2004 is the plaintiff and the respondent in both the application in C.C.C.A.M.P.No.239 of 2006 and C.C.C.A.No.253 of 2004 is the defendant in the suit.

4. For the sake of convenience, in this common judgment, the parties will be referred to as per their array in the suit.

5. The plaintiff is a registered firm. The suit is filed by the plaintiff for recovery of money based on certain works undertaken by it. The defendant is a registered Contractor.

6, The case of the plaintiff is that the defendant was admitted as a partner in the firm; that after procuring contracts, the defendant used to get the works executed through the plaintiff and for the said services, the defendant had to retain 10 per cent of the profits and return the balance. During the subsistence of the said relationship, the plaintiff had undertaken two works - one at Vijayawada and the other at Khammam. The works were successfully completed.

7. It is the further case of the plaintiff that the defendant had retired from the partnership of the firm in the year 2000 without giving possession of certain receipts.

8. However, it is the further case of the plaintiff that on 14.02.2001 a cheque for a sum of Rs.34,82,000/- was drawn by the defendant in favour of the plaintiff and the plaintiff has acknowledged the same by way of a receipt. The cheque was marked as Ex.A.3. When the cheque was presented for encashment in a bank, the same was not honoured, which resulted in filing of the present suit.

9. The main contention of the defendant in the written statement is that the cheque, in fact, was signed, but the same had been passed on to the plaintiff through some other source. The defendant denied that any amount has been mentioned in that cheque. Therefore, in one word, it can be said that issuance of cheque is denied.

10. At this juncture itself, it would be appropriate to note that there was no pleading by the defendant to the effect that the cheque in dispute was forged.

11. It is the further contention of the defendant that execution of works was partial in nature.

12. Basing on the abovementioned pleadings, the Court below has framed the following issues for trial: 1. Whether the plaintiff is entitled to the suit amount along with interest at 24% per annum as prayed for? 2. To what relief?

13. Now, it is the contention of the learned Counsel appearing for the plaintiff that while dismissing the suit, the Court below held that the suit, in fact, was filed on the basis of accounts and that it was imperative for the plaintiff to produce the accounts in order to establish its claim and that since the accounts were not placed before the Court, it is difficult to hold that the defendant was at an obligation to pay the disputed amount of Rs.34,00,000/-to the plaintiff.

14. It is further contended by the learned Counsel appearing for the plaintiff that the Court below went wrong in holding that the basis of the suit ought to be the accounts but not the cheque and that the said observation of the Court below was contrary to the principles laid down under Section 118 of the Negotiable Instruments Act, 1881 (for brevity “the N.I.Act”).

15. In other words, it is the contention of the learned Counsel appearing for the plaintiff that an appropriate issue ought to have been framed by the Court below as regards the application of Section 118 of the N.I.Act while deciding

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