Point of Law: On the exercise of jurisdiction in second appeal under Section 100 CPC, and the points being raised herein, it can safely be concluded that no question of law much less substantial one arises for adjudication.

ORDER :

The civil suit for recovery of an amount of Rs.47,500/- alongwith interest was instituted by the respondent against the appellant. Learned Trial Court decreed the suit on 31.05.2005 for an amount of Rs.40,000/- alongwith interest @ 6% per annum from the date of accrual i.e. 1.4.2000 till its realization. The judgment and decree passed by the learned Trial Court was affirmed by the learned First Appellate Court on 5.9.2008. Having lost in both the learned Courts below, the defendant has preferred the instant appeal under Section 100 of the Code of Civil Procedure.

2(i). The case put-forth by the respondent-plaintiff was that an agreement Ext. PW1/A was entered into between the parties on 14.06.1999. This agreement was in respect of running the business of Cafe ‘Mrigni’ at Gopalpur for a period of 12 months from 31.3.1999 to 31.3.2000. In terms of this agreement, plaintiff had paid a sum of Rs.1 lac to the defendant as costs of crockery, furniture, kitchen equipments etc. lying in the premises. A sum of Rs.40,000/- was paid by the plaintiff to the defendant as security for the use of latter’s beer bar licence upto 31.3.2000. It was submitted that plaintiff had used the beer bar licence of the defendant till 31.3.2000. He ran the beer bar in accordance with law and was not challaned for any kind of violation. He had not disobeyed any instructions of the beer bar licence, therefore, was entitled to the refund of security amount of Rs.40,000/- alongwith interest from 1.4.2000 onwards. The defendant had failed to refund the security amount of Rs.40,000/- to the plaintiff despite repeated requests, hence, suit for recovery was instituted.

2(ii). In his written statement, the defendant admitted execution of the agreement dated 14.06.1999 concerning the running of Cafe ‘Mrigni’ from 31.3.1999 to 31.3.2000. The defendant also admitted receipt of Rs. 1 lac from the plaintiff towards costs of crockery, furniture and kitchen equipments etc. Defendant also admitted having been paid Rs.40,000/- by the plaintiff as security for the use of beer bar licence upto 31.3.2000.

The defence taken was that the plaintiff was not entitled to refund of the security amount of Rs.40,000/-. Defendant contended that the plaintiff had contravened the terms and conditions of the agreement Ex.PW1/A after 31.3.2000. The defendant had to deposit licence renewal fee of Rs.12,500/- to the Excise and Taxation Department for the period 2000-2001. This amount paid by the defendant was liable to be set-off against the security amount. The defendant further averred that the plaintiff had used the licence beyond 31.3.2000. There was an oral agreement between him and the plaintiff whereunder the plaintiff had agreed to share the profit earned by him by using the beer bar licence, which was got renewed by the defendant beyond 31.3.2000. The plaintiff had agreed to pay the defendant a sum of Rs.15,000/- on this account but the amount was not paid by him. Defendant’s case was that in addition to Rs.12,500/- deposited by him to the Department as renewal fee of the beer bar for the year 2000-2001, plaintiff was also liable to pay an amount of Rs.15,000/- towards share of profits earned by him by using renewed beer bar licence. The defendant also claimed that the plaintiff had not paid the rent for use and utilization of Cafe amounting to Rs.39,600/- for the period from June 1999 to March 2000. The defendant thus in all claimed an amount of Rs.67,000/- from the plaintiff and after adjusting plaintiff’s security amount of Rs.40,000/- , put forth his claim of balance amount of Rs.27,000/-

2(iii). Learned trial Court, on consideration of the entire material before it, decreed the suit for an amount of Rs.40,000/- alongwith interest @ 6% per annum vide judgment and decree dated 31.05.2005. This judgment and decree has been affirmed in appeal by the learned First Appellate Court on 5.9.2008.

3. This appeal was admitted on 2.3.2009 on the following substantial question of law:-

“3.