1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR SECOND APPEAL NO.444/2009 APPELLANT:- M/s M.M. Kashikar Deoli, through its proprietor Rahul s/o Prafulchandra Kashikar, aged about 35 years, Occ. Business, R/o Deoli, Tahsil Deoli, District Wardha. (Original plaintiff and respondent in first appeal) ...V E R S U S... RESPONDENT:- Rambhau s/o Gangadharrao Zore aged about 48 years, Occ : Business, R/o Deoli, Tahsil Deoli, District Wardha. (Original defendant and Appellant in first Appeal). ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- [S/Shri M.M. Agnihotri, S.K. Bhoyar, Advs. for appellant] CORAM:- A.B. CHAUDHARI, J. DATED :- 02.12.2009 1. Heard learned Counsel for the appellant. 2. Having heard learned Counsel for the appellant, I find that the first appellate Court has believed the case of the defendant that amount of Rs.25,000/- by cheque was paid to the deceased - Prafulchandra and the same was to be adjusted in the purchase of cement i.e. 2 transaction in question. This plea was specifically set up in defence but the plaintiff did not amend his plaint to explain the said defence in the pleadings nor there was any finding recorded by the trial Court as to what purpose the said amount of Rs.25,000/- by cheque was given and therefore, the appellate Court drew inference that in the absence of any explanation from the plaintiff about the said amount of Rs.25,000/- which was admittedly received by cheque, the plaintiff could not be allowed to take double benefit. The appellate Court, further, in my opinion, rightly rejected the case of the defendant who had stated that he had in addition paid cash amount of Rs.20,000/-, in absence of any proper evidence. The first appellate Court has, therefore, rightly appreciated the evidence on record and corrected the finding recorded by the trial Court which for no reasons rejected the defence for adjustment of Rs.25,000/- that was already paid by cheque to Prafulchandra. That being finding of fact, no interference is called for and no substantial question of law arises for consideration. In the result, I find no merit in the present second appeal. The same is, therefore, dismissed. No order as to costs. JUDGE ssw