1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.420 of 2009 (Shri Suresh Bhimaji Dongre v. Shri Ashok Dattuji Khatdeo) --------------------------------------------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri N.S. Deshpande, Advocate for Appellant. Shri S.K. Bhoyar, Advocate for Respondent. Coram : C.L. Pangarkar, J. Dated : 3rd May, 2010 Heard the learned counsel for the appellant, and the learned counsel for the respondent. This second appeal is preferred by the appellant against the judgment of the first Appellate Court confirming the judgment of the Trial Court. The facts giving rise to this appeal are as under : The respondent/plaintiff filed a suit for recovery of Rs.89,133/- against the appellant/defendant. The plaintiff is a broker and it is alleged that the defendant made the purchases through the plaintiff of certain agricultural produce, but did not pay for the same. It was contended that the defendant made the repayment of Rs.25,500/- and a sum of Rs.73,271.07 was due outstanding against the said purchases. The suit was resisted by the appellant/defendant. It was contended that there was a partnership between the plaintiff and one Tatyaji and Tatyaji had made certain purchases and he did not pay for the same. Thus a sum of Rs.4,961.75 was due to the plaintiff from the defendant. 2 The Trial Court framed the issues, recorded evidence and found that the defendant had made the purchases as alleged and a sum of Rs.73,371,07 was due against those purchases. It also found that there was no partnership between the plaintiff and Tatyaji and Tatyaji had not made any purchases. In appeal also, the decree was confirmed. The learned counsel for the appellants contends that the evidence has not been properly appreciated by the Courts below and submits that the Courts below have relied upon the sale receipts, which do not bear the signatures of the defendant and no liability can be fastened on him. It appears that the Courts below have considered the evidence in proper perspective. After having gone through the judgments of the Courts below, it is apparent that the Courts below found that the defendant was trying to make out a case, which is not pleaded. It was never the defence of the defendant of total denial. The defendant had contended that Tatyaji was the partner of the plaintiff and he made certain purchases and had failed to pay as against those purchases. In this context, the Courts below have found that although it was necessary for the defendant to have examined Tatyaji, he did not examine, but the plaintiff examined Tatyaji. Although an opportunity was given to the defendant to cross-examine Tatyaji, nothing could be elicited in the cross-examination of Tatyaji to suggest that Tatyaji had purchased any goods from the defendant and that he owed certain amount to the defendant. It is also not proved by the defendant that there was any partnership between the plaintiff and Tatyaji. All these facts have been rightly appreciated by the Courts below and what was, therefore, urged before this Court was only the questions of facts. Therefore, it is apparent that no substantial question of law is involved in this appeal and what was urged was the question of fact. There are concurrent 3 findings of fact. No substantial question of law is involved. Therefore, there is no substance in the second appeal. The second appeal is, therefore, dismissed. Judge. pdl