IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Second Appeal No. 203 of 2001 (Old No. 1339 of 1998) Nanhey Miyan … Appellant. Versus Matloob Rehman … Respondent. Mr. Vijay Bhatt, Advocate for the appellant. Mr. T.A. Khan, Advocate for the respondent. Dated: July 29, 2008. Hon’ble B.C. Kandpal, J. This appeal, under Section 100 of the C.P.C. has been preferred against the judgment and decree dated 8-6-1998 passed by Special Judge/Additional District and Sessions Judge, Nainital in Civil Appeal No. 6 of 1993, arising out of O.S. No. 44 of 1987. 2- Brief facts of the case are that an agreement dated 17-9-1986 was executed between the plaintiff/appellant and the defendant/respondent with respect to carry on the contract works jointly. It was agreed that the contract for construction of building from Gramin Abhiyantran Sewa Nainital will be obtained in the name of defendant/respondent and the money will be invested by the plaintiff/respondent for the tender work as security money. The profit was agreed to be shared between the plaintiff and defendant @ 60% and 40% respectively. The plaintiff in order to obtain the contract withdrew an amount of Rs. 31,000/- through cheque No. 9622324 dated 25-9-86 from Punjab and Sindh Bank, Haldwani and gave that amount to the defendant so as to deposit the same as security money. The defendant deposited the amount as security money in the tender and told the plaintiff that joint account will be opened when the tender will be accepted. After acceptance of the 2 tender the defendant started the contract himself and refused to comply with the terms and conditions of the agreement dated 17-9-1986 arrived between the parties. Therefore the defendant cheated the plaintiff and obtained the sum of Rs. 31,000/- and he is liable to repay the above amount to the plaintiff. The plaintiff sent notice dated 23.2.87 to the defendant, but the defendant neither paid the amount nor is ready to return the same to the plaintiff. Therefore, the plaintiff filed money suit against the defendant for recovery of Rs. 33,790/- along with pendentelite and future interest @ 18% per annum from 23.6.87. Plaintiff also prayed for loss suffered by him due to breach of agreement dated 17-9-1986 arrived at between the parties. 3- The defendant/respondent contested the suit by filing written statement. The defendant admitted this fact that an agreement was executed between the parties. According to him, he is a registered contractor in Gramin Abhiyantran Sewa and from time to time he has been sanctioned contracts by the said Department. The plaintiff asked the defendant to do the contract works in partnership. For this purpose a joint account was to be opened in Punjab National Bank, Haldwani and the plaintiff was to invest the money and the profit was to be shared by the plaintiff and the defendant 60% and 40% respectively. However, the plaintiff did not pay the money to deposit the same as security money and did not fulfill the term and condition of the agreement. The result was that the agreement came to an end. The plaintiff never purchased national saving certificates of Rs. 31,000/-. The plaintiff had three contracts in which he had deposited Rs. 18,000/-, Rs. 8,000/- and Rs. 5,000/-. The defendant further alleged that the plaintiff did not comply with the agreement, hence he is not entitled to get any 3 profit. The plaintiff has instituted the suit on wrong facts in order to get the benefit illegally. 4- The defendant also filed additional written statement and alleged that the plaintiff never accompanied the defendant to deposit the security money in the Post Office, Haldwani and he did not pay Rs. 31,000/- to him on 25.9.86. The security money deposited by him in Haldwani Post Office was his own money. 5- On the pleadings of parties, the learned Additional Civil Judge, Nainital has framed the following issues:- 1- Whether the plaintiff withdrew Rs 31,000/- from the Bank and delivered the same to defendant on 25-9-86 in the Post Office Haldwani which the defendant deposited as the security in part performance of the agreement as alleged in the plaint?. 2- Whether the defendant or the plaintiff has committed breach of agreement dated 17-9-86?. 3- Whether the plaintiff is entitled to any interest @ Rs. 18% per annum, as alleged in the plaint?. 4- Whether the defendant is entitled to special costs?. 5- To what relief, if any, is the plaintiff entitled?. 6- Both the parties have adduced oral as well as documentary evidence in support of their case. The learned trial Court after hearing learned counsel for the parties and considering the material on record, held that the plaintiff has paid Rs. 31,000/- after withdrawing the same through cheque from Pubjab and Sindh Bank, 4 Haldwani, which was deposited by the defendant in the Post Office, Haldwani as security money. The trial court also held that the breach was committed by the defendant and decreed the suit against the defendant for recovery of Rs. 31,000/- along with interest @ 6% per annum from 6-4-1987 till the actual date of payment. 7- Feeling aggrieved the defendant preferred appeal before the Additional District and Sessions Judge, Nainital, who vide impugned judgment and decree dated 8-6-1998 allowed the appeal and set aside the judgment and decree dated 23-12-92 passed by the trial Court and accordingly dismissed the suit of the plaintiff. 8- Now the plaintiff has preferred this appeal before this Court. 9- The appeal has been admitted on the following substantial question of law:- “Whether the lower appellate court has erred in law by introducing a new case against the pleadings of the parties and against the record?” 10- I have heard Sri Vijay Bhatt, learned counsel for the appellant, Sri T.A. Khan, learned counsel for the respondent and perused the record. 11- The learned counsel for the plaintiff/appellant has submitted that the plaintiff has withdrawn Rs.31,000/- from his account standing in Punjab and Sindh Bank, Haldwani in presence of respondent who filed the cheque No. 962232 in his own hand writing and deposited the same in his own account in the Head Post Office Haldwani and got prepared three National Savings 5 Certificates for Rs. 18,000/-, Rs. 8,000/- and Rs. 5,000/- for being deposited towards security amount for obtaining three different contracts from Rural Engineering Service. He has further alleged that the withdrawal was proved by P.W.1, Sri Krishna Kumar Rawat, Cashier. The disputed handwriting of the defendant/respondent was also proved by the handwriting expert. He therefore, urged that the judgment and decree passed by the first appellate court is wholly illegal, arbitrary and against the evidence on record and the impugned decree passed by first appellate court is liable to be set aside. 12- On the other hand learned counsel for the defendant has opposed the submission of the counsel for the appellant and submitted that the plaintiff did not pay the sum of Rs. 31,000/- for being deposited as security money with the tender and no National Savings Certificates were purchased by the plaintiff and given to the defendant. In fact there were three contracts in which Rs. 18,000/-, Rs. 8,000/- and Rs. 5,000/- were deposited by the defendant as security deposits separately. 13- From perusal of record it reveals that the trial court has decided all the issues in favour of the plaintiff/appellant, but the first appellate court arrived at the conclusion that the plaintiff has failed to prove that he has paid Rs. 31,000/- to the defendant in order to deposit the same as security money in the tender. 14- The important point to be decided in this appeal is ‘as to whether the plaintiff handed over Rs. 31,000/- to the defendant in order to deposit the same as security money for the contract work carried out in 6 partnership or not and which of the party committed breach of agreement arrived at between them. 15- Agreement paper No. 34-C shows that provision was made that the money deposited at the time of tender was to be deposited from joint account which was to be opened in Punjab and Sindh Bank, Haldwani. The transaction of the account was to be made through joint signatures of the parties and in the event of return of security money, the same has to be deposited in the above joint account. It is significant to mention here that in paragraph 3 of the plaint the plaintiff has written that on 25-9-1986 he withdrew Rs. 31,000/- from his account through cheque No. 162232 from Punjab and Sindh Bank, Branch Haldwani and purchased National Savings Certificates on the same day from Post Office Haldwani and handed over the same to the defendant which were deposited by the defendant as security in the tender. The plaintiff sought amendment in this paragraph and added that he withdrew Rs. 31,000/- from his account through cheque No. 962232 dated 25- 9-1986 and handed over that sum to defendant after going Haldwani with him. The defendant in his written statement has specifically denied the assertion of the plaintiff and alleged that he had deposited the security money in three other tenders. The plaintiff was not sure about the mode of payment and he had to seek amendment in the plaint. The above conduct of the plaintiff makes his assertion doubtful in respect of making payment of Rs. 31,000/- to the defendant by the plaintiff at Haldwani Post Office for being deposited as security money in the tender of joint work. 16- So far as the allegation of the plaintiff that the respondent/defendant deposited the cheque No. 962232 7 in his own account in the Head Post Office in his handwriting, is concerned. The above fact was also denied by the defendant and the handwriting of the defendant was got compared from the disputed handwriting. The conclusion of hand writing expert was not conclusive, as the handwriting expert produced by the plaintiff gave report in his favour whereas the handwriting expert of the defendant gave report in favour of the defendant. For the sake of argument if it is taken to be true that the defendant filled in the writing of the cheque but from this it cannot be inferred that the payment was made to the defendant. If the plaintiff had to give the money to the defendant, the best way was to issue cheque in his name and that would have been a best evidence against the defendant. Further if the plaintiff has made payment to the defendant then there was no need to accompany the defendant by the plaintiff to Post Office Haldwani and he would have obtained receipt of the payment from the defendant. The plaintiff has produced P.W.3, Abdul Mazid who had stated that on 259-86 he had gone to Haldwani Post Office to take envelope and tickets and there he had seen that the plaintiff had handed over the bag filled with money to the defendant. In absence of any receipt and issuing cheque in the name of the defendant the assertion of the plaintiff has no substance. The evidence of this witness seems to be doubtful on the ground that in his cross-examination this witness has admitted that in between the Head Post Office and his house, there are two other post offices. He could very well purchase envelopes from the post office nearer to his house but no reason whatsoever was given by this witness as to why he went to the Head Post Office therefore the presence of this witness at Head Post Office becomes doubtful. 8 17- Plaintiff also produced P.W.1, Krishna Kumar Rawat, Cashier of the Punjab and Sindh Bank. This witness has proved that on 25-9-86 the plaintiff withdrew a sum of Rs. 31,000/- through cheque No. 962232, but this fact has not been proved that the said amount was actually handed over by the plaintiff to the defendant. The payment to the security money to the tender was to be done from the joint account but the parties did not open the joint account and the agreement came to and end for non-compliance of its terms and conditions. It is settled principle of law that the plaintiff has to stand on his own legs by adducing reliable and cogent evidence to prove his case and he cannot taken benefit of shortcomings of the defendant. 18- From the material on record, it is established that the plaintiff has not been able to prove that he had handed over Rs. 31,000/- for being deposited as security money at the tender for joint work. In the agreement it was agreed that whole money had to be paid by the plaintiff, no joint account was opened, therefore, there was breach on the part of the plaintiff/appellant. The point is decided accordingly against the plaintiff/appellant. 19- I have also gone through the findings recorded by the first appellate court and I do not find any infirmity in the finding recorded by the first appellate court, whereby the judgment and decree passed by the trial court decreeing the suit of the plaintiff, was set aside. 20- Accordingly, the substantial question of law framed by this Court, is answered in negative and I am of the view that the lower appellate court has not 9 introduced any new case against the pleadings of the parties as well as against the record. Whatever the findings were recorded by the first appellate court, are based upon the pleadings and the evidence available on record. However, the finding recorded by the first appellate court, is the finding of fact which is not against the evidence as well as pleadings of the parties, hence does not require any interference by way of this second appeal. 21- The appeal lacks merit and is liable to be dismissed. 22- Accordingly, the appeal is dismissed. The judgment and decree dated 8-6-98 passed by first appellate court setting aside the judgment and decree dated 23-12-92 and dismissing the suit, is hereby confirmed. 23- The interim stay, if any, stands vacated. (B.C. Kandpal, J.) S.P.