1 S.A.No.703/2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.703 OF 2010 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.B.R.Kedar, advocate holding for Mr.B.V.Wagh, advocate for the appellant. Mr.L.D.Vakil, advocate for the Respondent. CORAM : S.V.GANGAPURWALA,J. Date : 02.12.2010. 1. Heard Mr.Kedar, learned counsel for the appellant and Mr.Vakil, learned counsel for the Respondent. 2. This is defendant's Second Appeal. The plaintiff had instituted suit for recovery on the ground that the plaintiff had given a hand loan to the defendant. The defendant failed to repay the same. The trial Court decreed the suit. The defendant preferred appeal. The appellate Court confirming the judgment of the trial Court, 2 S.A.No.703/2010 dismissed the appeal. The defendant aggrieved by the same, has filed the present Second Appeal. 3. Mr.Kedar, learned counsel for the appellant strenuously contended that the circumstances on record ought to have been considered by the Court. In fact, the defendant had proved that he had only borrowed Rs. 33,000/- (Rupees thirty three thousand). Even the witness had stated to that effect but the Courts have disbelieved the said evidence erroneously, though the Usanwar Chithi which is relied on by the plaintiff has not been proved as is required under the law. The defendant had issued a blank cheque as a security for interest amount. This aspect has also not been considered by the Courts. Mr.Kedar, learned counsel further submitted that the transaction in fact, is hit by the provisions of The Bombay Money-Lenders Act, 1946. The defendant had brought on record other transactions also. As such there was no impediment for the Court to come to the conclusion that the transaction in question was a money lending transaction and as such the suit should have been dismissed in view of the 3 S.A.No.703/2010 provisions of the Bombay Money-Lenders Act. 4. Per contra, Mr.Vakil, learned counsel for the Respondent submitted that both the Courts have concurrently held in favour of the plaintiff. The transaction is proved. There is no pleadings that the transaction is a money lending transaction. In such circumstances, the Courts have properly dealt with the matter. 5. With the assistance of the learned counsels, I have gone through the judgments. The arguments of Mr.Kedar, learned counsel regarding applicability of the provisions of the Bombay Money-Lenders Act, could have been considered if there would have been a pleading to that effect. The defendant has nowhere pleaded in his written statement that the suit transaction is a money lending transaction. Unless and until a specific pleadings is made to that effect, the Courts can not presume the transaction to be a money lending transaction. The issuance of cheque is not disputed. The defendant has claimed that the same is a blank cheque. Even assuming the cheque was inchoate, still the provisions of Negotiable Instruments Act, 4 S.A.No.703/2010 authorise the holder of the cheque to complete or fill in the cheque. Even in that case presumption U/s 118 of the Negotiable Instruments Act, is applicable. The burden thereafter has to be discharged by the drawer of the cheque. Moreover, even Usanwar Chithi corroborates the case of the plaintiff. Both the Courts on evaluation of the evidence have come to a plausible conclusion. The Second Appeals can not be entertained only on the ground that different view could have been possible. 6. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.02.12.2010. asp/office/sa703.10 5 S.A.No.703/2010