In a suit for recovery of money, the plaintiff must prove the existence of a debt and the nonpayment of the debt by the defendant. The defendant, on the other hand, must prove that he has paid the debt or that he is not liable to pay the debt.

B.P. Dharmadhikari, J.

1. All these Appeals under Section 96 of the Code of Civil Procedure, 1908, arise out of a common judgment dated 11.10.1999, delivered by 4th Joint Civil Judge (Senior Division), Aurangabad, in Special Civil Suit No. 375/1995, and Special Civil Suit No. 183/1997.

2. Special Civil Suit No. 183/1997 was filed by the appellant in First Appeal No. 282/2000 and First Appeal No. 283/2000, namely, Kumar's Liquors & Beers Private Limited [hereinafter referred to as “Kumar Liquors”], claiming refund of security deposit of Rs. 1,00,00,000/- (Rs. One Crore) from the defendant in that suit, namely, BDA Limited [hereinafter referred to as “BDA Limited”]. That Suit was initially filed at Secunderabad City Civil Court vide Original Suit No. 427/1994 & came to be transferred to Aurangabad for its trial along with Special Civil Suit No. 375/1995. Special Civil Suit No. 375/1995 was filed by BDA Limited against Kumar Liquors, for recovery of sum of Rs. 2,93,73,919.46, towards the liquor & wine supplied to later with interest at 18%. Trial court has by impugned judgment dated 11.10.1999, partly decreed Special Civil Suit No. 375/1993 and Kumar Liquors has to pay sum of Rs. 1,03,29,717.40, with interest at 12 % on it calculated from the date of suit i.e. 2941995 till payment. Special Civil Suit No. 183/1997 filed by Kumar Liquors is dismissed because of adjustment or appropriation of security deposit of Rs. 1,00,00,000/- towards money claim of BDA Limited.

3. In First Appeal No. 283/2000, as also First Appeal No. 282/2000, appeal memo and prayers are identical. However, Kumar Liquors has submitted that one of its appeal challenges decree and judgment dismissing its Special Civil Suit No. 183/1997, while the other challenges judgment and decree passed in Special Civil Suit No. 375/1995 against it. BDA Limited has filed First Appeal No. 425/2000 for the remaining monetary claim which has been rejected by the trial court including the exercise of adjustment of security deposit undertaken by it.

4. We have heard Senior Adv. Mr. P.V. Mandlik with Adv. Mr. A.S. Gandhi for the Kumar Liquors and Adv. Mr. P.K. Joshi for BDA Limited, in these matters.

5. Sr. Adv Mr. Mandlik has contended that the claim in Suit filed by M/s. BDA Limited was for the liquor supplied to M/s. Kumar Liquors, between 2621993 to 2741993 for Bombay Region and between 6.3.1993 to 26.4.1993, for Aurangabad Region. Its total claim in suit was of Rs. 2,93,73,919.40. The BDA Limited, therefore, does not claim that any goods were supplied to M/s. Kumar Liquors, after above mentioned dates in April 1993 & there was no grievance about payment for earlier period. The legal notice was issued by BDA Limited vide Exhibit 1153 on 28.3.1995, claiming amount of Rs. 2,93,73,919.46, and in it, they did not state that said claim towards price of goods supplied was worked out after adjusting security deposit amount of Rs. 1,00,00,000/- otherwise to be repaid by it to Kumar Liquors. According to him, in this situation, the claim in plaint, of Rs. 3,93,73,919.46 could not have been accepted and acted upon by the trial court. Learned Counsel has further contended that the suit in Secunderabad court was filed by his clients Kumar Liquors even before issuance of that legal notice. That suit was registered as Original Suit No. 427/1994. When such a suit was already instituted against BDA and a decree of refund of security deposit was sought, it was incumbent upon BDA Limited to plead adjustment of security deposit towards the amount of sale price in that notice itself. Not only that there is no such plea in suit notice, but such adjustment is also not pointed out in its plaint by BDA Limited. The plaint has been instituted in 1995.

6. He has further submitted that relationship between BDA Limited and Kumar Liquors was regulated by letter dated 28.11.1990 and the later communication dated 15.12.1990 was not at all relevant. He contents that a Company by name, Cruikshank was subordin