Important Point – Once two possible views arise as per record of trial court, High Court will not interfere with findings and conclusion of trial court.

VALMIKI J. MEHTA, J.

C.M. Appeal No. 27640/2017 (for condonation of delay)

For the reasons stated in the application the delay of 24 days in filing the appeal stands condoned.

C.M. stands disposed of.

RFA No. 689/2017 and C.M. Appeal No. 27639/2017 (for stay)

1. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, CPC by the defendant no. 1 in the suit impugning the judgment of the trial court dated 25.1.2017 by which the trial court has decreed the suit for recovery of Rs. 7,91,776/- along with interest on account of fuel/diesel purchased by the appellant/defendant no. 1 from the respondent/plaintiff who owns a retail petrol pump outlet of Bharat Petroleum in Delhi.

2. The facts of the case are that the respondent/plaintiff pleaded that the appellant/ defendant no. 1 was in transportation business and owned various trucks. It was further pleaded in the plaint that the appellant/defendant no. 1 approached the respondent/plaintiff for supply of fuel on credit basis and with respect to which interest at the rate of 1.25% per month compounded quarterly was to be charged. Appellant/defendant no. 1 was pleaded to be in default right from the very first bill and outstanding amount kept on inflating on each subsequent bill whereby the appellant/defendant no. 1 offered to liquidate the outstanding amount in installments by desiring to get a running account with the respondent/plaintiff. It is then pleaded in the plaint that the outstanding amount remained unpaid as in August 2004. It is further pleaded that when credit was obtained and the account to be maintained by the respondent/plaintiff the same was subject to a security deposit, which though was originally waived, but, when appellant/defendant no. 1 sought revival of his account with the respondent/plaintiff then the respondent/plaintiff was given by the appellant/defendant no. 1 cheque as security and which was to be used and encashed in case there were defaults in clearing of the outstanding amount. It is then pleaded in the plaint that the history of defaults in payments continued and last supply was drawn by the appellant/defendant no. 1 in November 2005. It was pleaded that in September 2006 the outstanding amount came to Rs. 7,91,776/-. It is then pleaded in the plaint that when the respondent/plaintiff deposited the cheque for recovery of the outstanding amount, the same was dishonored and therefore not only the subject suit was filed but a complaint under Section 138 of the Negotiable Instruments Act, 1881 was also filed and which is pending disposal before the concerned court of Metropolitan Magistrate.

3. Appellant/defendant no. 1 contested the suit and pleaded that the suit is barred by limitation. It was also pleaded that the security cheque which was claimed by the respondent/plaintiff was of a period prior to three years prior to the date of filing of the suit. It was further pleaded that the security cheque was a blank cheque which did not bear any date or amount. Appellant/defendant no. 1, however, did not dispute that he had been taking fuel from the petrol pump of the respondent/plaintiff and that he owned a fleet of ten trucks and was in the business of transportation. It was pleaded in the written statement that the respondent/plaintiff was inflating bills and therefore the credit facility was discontinued since inception itself. It is further pleaded that the appellant/defendant no. 1 in good faith and trust upon the respondent/plaintiff agreed to keep the security cheque with the respondent/plaintiff although no purchases were to be made on credit basis. The suit was accordingly prayed to be dismissed.

4. After pleadings were complete, the trial court framed the following issues:-

“1. Whether the plaintiff firm is a registered partnership firm and competent to file the suit? OPP

2. Whether the suit is barred by limitation? OPP

3. Whether the plaintiff has misutilised the security cheque? OPD

4. Whether the plaintiff is entitled