3 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 5002 OF 2010 IN FIRST APPEAL NO. 701 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM : P.R. BORKAR.J. DATED : 06.05.2010 Heard Mr. S.R. Deshpande, Advocate for the applicant and Mr. S.P. Shah, Advocate for sole respondent. 2. Mr. S.P. Shah, Advocate has taken me to the Bombay Amendment to Rule 1 of Order XLI of the Code of Civil Procedure. As per Rule 3 where the appeal is against a decree for payment of money, the appellant shall, within such time as the appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. However, proviso to Rule 3 shows that the Court may dispense with the deposit or security where it deems fit to do so for sufficient cause. 3 3. Learned Advocate of the applicant has taken me through the statement of sole witness of the plaintiff. Said witness Shriram Gajbhare is a Tax Consultant who appears to have perused the accounts of the plaintiff. Learned Advocate has drawn my attention to the cross examination of this witness and therein the witness has specifically stated that he was not aware that the accounts of the plaintiff were audited. He himself was not employee in the firm. He had not prepared bills or delivery challans, to which he has made reference in examination in chief. He also stated that verified copies of ledger accounts were not signed by the plaintiff himself. He further admitted that delivery challans Exhibit-108 to 114 were regarding delivery of cement to Bobby Agency and payments regarding the said delivery were shown due in the ledger account Exhibit-107 in the name of present appellant M/s. Chaurasia Sales Agencies. 4. It is argued that the plaintiff has not lead evidence to show that at the instructions of the appellant M/s. Chaurasia Sales Agencies, delivery of 3 goods was made to Bobby Agency and therefore, the present appellant is liable to pay for goods supplied to Bobby Agency. It does not appear prima facie that there is any further evidence led by the plaintiff - respondent to throw light on this aspect. 5. In the circumstances, in view of the admissions in cross examination, it is necessary that this application should be allowed in terms of prayer clause-B as a exceptional case where basic burden is not discharged. It is also not the case of respondent - plaintiff that the appellant firm has no sufficient assets and it would be very difficult for the respondent to recover the amount, in case the appeal is dismissed ultimately. The application is accordingly allowed and disposed of as such. [P.R. BORKAR,J.] sut/MAY10/ca5002.10