Advocates:
['MOHAMMED AHFAZ QURESHI', 'GHANSHYAM M SARODEGHANSHYAM M SARODE', 'PARINAZ QURESHI', 'GHANSHYAM M SARODE']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

SECOND APPEAL NO.385 OF 2017

Shri Dr. Mohandas K. Gadbail

..vs..

Mr. Shrikant Govindrao Deshpande

.......................................................................................................................................................

Office Notes, Office Memoranda of Coram,

appearances, Court orders or directions

Court's or Judge's Order

and Registrar's orders

.......................................................................................................................................................

Shri M.A. Qureshi, Counsel for the appellant.

CORAM

: V.M. DESHPANDE,

J.

DATED

: NOVEMBER 1, 2017.

1.

Heard learned counsel Shri M.A. Qureshi for the

appellant/plaintiff, in extenso.

2.

According to learned counsel Shri Qureshi for the

appellant/plaintiff, since the respondent/defendant failed to

enter into the witness box, the Appellate Court ought to have

drawn adverse inference against the respondent/defendant and

ought to have recorded a finding as recorded by the Trial Court

that the appellant/plaintiff has handed over Rs.5.00 Lacs in cash

by way of hand loan facility to the respondent/defendant.

3.

A suit for recovery of amount of Rs.5.00 Lacs was

filed by the appellant/plaintiff.

According to the

appellant/plaintiff, in the month of January 2011 the

respondent/defendant, who is resident of Amravati, came to

.....2/-

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Nagpur and pleaded with the appellant/plaintiff to extend

financial help.

Looking to the need of the

respondent/defendant, it is the case of the appellant/plaintiff

that Rs.5.00 Lacs were given in cash in installment. It is further

the case of the appellant/plaintiff that the respondent/defendant

assured to repay the hand loan by May 2011. It is further the

case of the appellant/plaintiff that two cheques dated 30.6.2011

(Exhibit 36) and 30.7.2011 (Exhibit 37) were given by the

respondent/defendant to the appellant/plaintiff. However, those

cheques were dishonoured by his bankers for want of sufficient

fund. With this, the plaint was presented.

4.

The written statement submits that there was a

partnership in between the appellant/plaintiff and the

respondent/defendant and the said partnership was terminated

and during existence of the said partnership, some cheques duly

signed by the respondent/defendant were in possession of the

appellant/plaintiff and those cheques were misused.

5.

The Trial Court decreed the suit. Feeling

aggrieved by such decree, an appeal was presented before the

Appellate Court. The Appellate Court allowed the appeal and

set aside the decree directing the respondent/defendant to pay

amount of Rs.5.00 Lacs along with interest.

6.

The only submission, i.e. advanced before this

Court at the time of admission by learned counsel Shri Qureshi

.....3/-

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for the appellant/plaintiff, that the respondent/defendant failed

to enter into the witness box and, therefore, the Appellate Court

committed an error in not drawing adverse inference against

the respondent/defendant, has to be considered in following

admitted position.

7.

The appellant/plaintiff is a doctor by profession.

He regularly files his Income Tax Returns with the Income Tax

Department. No documentary evidence, either in the nature of

the bank pass book, is filed on record to show that in the month

of January 2011 the appellant/plaintiff was having Rs.5.00 Lacs

in his bank account. No Income Tax Return is filed on record to

show that even at the time of handing over of Rs.5.00 Lacs in

cash, in the month of January the appellant/plaintiff was having

Rs.5.00 Lacs in cash with him. In my view, this aspect is

considered by the Lower Appellate Court correctly.

8.

Further, the appellant/plaintiff has admitted in his

cross-examination that he is not aware about profession and

family of the respo