1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.193/2010 Rambhau Gangadharao Zore ..vs.. M/s M.M. Kashikar Deoli =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri Mahesh Rai, advocate for the appellant C ORAM : SMT. VASANTI A NAIK,J. DATED : 16th June, 2010. Heard the learned counsel for the appellant. The appellant is the original defendant. A suit was filed by the plaintiff for recovery of an amount of Rs.80,047/-. According to the plaintiff, the plaintiff's father and the plaintiff were dealing in the business of supply of cement. The defendant was a building contractor and time and again took cement on credit from the father of the plaintiff. According to the plaintiff cement amounting to Rs.80,047/- was advanced to the defendants on credit by four different transactions. The father of the plaintiff died after the supply of the cement to the defendant. The defendant had repaid the amount of Rs.35000/- to the father of the plaintiff by cheque. The plaintiff, therefore, filed a suit for recovery of an amount of an amount of Rs.45,0047/- with interest as defendant 2 had failed to repay the amount though the cement was taken on credit. The defendant denied the claim of the plaintiff. The defendant pleaded that the father of the plaintiff had taken a hand loan of Rs.25000/- from the defendant by cheque prior to the supply of the cement by the four transactions. The defendant pleaded that an amount of Rs.20,000/- was paid in cash to the father of the plaintiff and nothing was due and payable to the plaintiff by the defendant. The defendant sought for the dismissal of the suit. The trial court on an appreciation of the material evidence on record held that the plaintiff had proved the suit claim and the defendant had been unsuccessful in proving the advancement of Rs.25000/- as hand loan to the father of the plaintiff to be adjusted towards the supply of cement and the payment of Rs.20000/- in cash to the father of the plaintiff. The first appellate court on re-appreciation of the evidence on record partly allowed the appeal filed by the defendant to hold that the defendant had advanced the amount of Rs.25000/- to the father of the plaintiff and that the amount was to be adjusted towards the purchase of the cement. The decree passed by the trial court was modified by the first appellate court and the first appellate court held that the defendant was liable to pay an amount of Rs.20,047/- to 3 the plaintiff with interest @6% p.a. as the defendant had been unsuccessful in proving that he paid the amount of Rs.20000/- to the plaintiff's father in cash. The findings recorded by the both the courts that the defendant had been unsuccessful in proving that he had paid the amount of Rs.20,000/- in cash to the father of the plaintiff, towards the purchase of cement is a pure finding of fact based on a proper appreciation of the material on record. The reasons recorded by both the courts to record these findings are just and reasonable. Since no substantial question of law arises for consideration in the second appeal, the same is dismissed with no order as to costs. JUDGE SMP