(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 463/2010. Pankaj Narendra Shah and others. VERSUS Smt. Vandana Bhabatosh Sarkar and others. ________________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. CORAM : R. M. SAVANT, J. DATED : FEBRUARY 23, 2011 Heard Shri A.K. Choube, the learned Counsel for the appellants/ original defendants and Shri B.N. Mohta, the learned Counsel for the respondent/original plaintiff. This Appeal takes exception to the judgment and decree dated 28.01.2010 passed in Regular Civil Appeal No. 1/2005 by the learned District Judge-4, Nagpur by which the decree of dismissal of the suit by trial Court was set aside, and the suit came to be decreed. The appellants herein are the original defendants. The respondent herein is the original plaintiff who filed a suit for recovery of an amount of Rs. 75,000/-. It was the case (2) of the plaintiff that the said amount of Rs. 75,000/- was given to the defendants, who were the tenants of the property in respect of which there was an oral agreement between the plaintiff, the owner Shri Poddar and one Shri Sharadchandra Deshmukh. It was further the case of the plaintiff that the said amount of Rs. 75,000/- was given in three cheques to the defendants for vacating the premises occupied by them, so as to facilitate the development of the property. On the oral agreement not falling through, the plaintiff had issued notice to the defendants to return the said amount of Rs. 75,000/- and on the defendants refusing to do so, the plaintiff was constrained to file the said suit being Special Civil Suit No.1164/1995. The said suit came to be dismissed by the trial Court on the ground that the plaintiff was not able to prove as to for what purpose the said amount of Rs. 75,000/- was paid to the defendants. It is required to be noted that the defendants in the trial Court has propounded a theory of hand loan, taken by the plaintiff which was returned by the plaintiff by the said three cheques. Being aggrieved by the dismissal of the suit, the plaintiff filed Regular Civil Appeal No.1/2005. The said Appeal came to be allowed, and the decree of (3) dismissal came to be set aside and in turn the suit came to be decreed for this amount of Rs. 75,000/- with interest @ 12% from the date of filing of the suit till realization. The First Appellate Court on consideration of the material on record, more especially the fact that the three cheques of Rs. 75,000/- given by the plaintiff were admittedly en-cashed by the defendants and in view of the fact that the defendants have not adduced any evidence in support of their theory, that there was a hand loan transaction, thought it fit to decree the suit, as according to the learned First Appellate Court since the suit was to be decided on the basis of the oral evidence adduced by the parties, the case of the plaintiff was more probable. The First Appellate Court in terms observed that in the teeth of there being no evidence adduced by the defendants in support of their theory of loan transaction, the case of the plaintiff that the said amount of Rs.75,000/- was advanced for vacating the suit premises needed to be accepted. The learned Counsel appearing on behalf of the appellants, contended that the onus was on the plaintiff to prove that the said amount of Rs. 75,000/- was paid to the defendants for vacating the suit premises in respect of which the plaintiff has not adduced any (4) evidence. In my view, the said submission is mis-founded. The plaintiff has filed the suit for recovery of the said amount of Rs. 75,000/- which amount was paid to the defendants for vacating the premises in question. This was the foundation of the said suit. In absence of any contrary evidence adduced by the defendants, the said case of the plaintiff is required to be accepted in view of the en- cashment of the cheques by the defendants, which the First Appellate Court has rightly accepted. Considering the findings of fact recorded by the First Appellate Court, in my view, the Second Appeal is bereft of any merit and does not involve any substantial question of law, the same is accordingly dismissed. No costs. JUDGE Rgd