-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.927 OF 2005 In SUMMARY SUIT NO.2177 OF 1985 Bank of India : Appellant (Orig.Plaintiff) V/s. M/s.Ramniklal Traders & Ors. : Respondents (Orig.Defendants) ... Ms A. Banerjee i/b. Little & Co., for the appellant. Mr.Parag Shah i/b. Mahesh Shah & Co., for the respondents. ... CORAM : S.A.BOBDE & A.A.SAYED,JJ. DATE : MARCH 23, 2009. P.C. 1. This is an appeal preferred by the appellant-plaintiff against the judgement and order dated 27.6.2005 by which the learned single Judge of this Court has dismissed the appellant’s suit. The parties are referred hereinafter in the same capacity in which they are arrayed in the suit. 2. The plaintiff sued the defendants for recovery of a sum of Rs.2,64,962.50 at 6% per annum on the basis of acceptance of a bill of exchange. In the Written Statement, the defendants pleaded that the alleged -: 2 :- acceptance was conditional and the plaintiff was aware of the circumstances in which it was accepted because along with the bill of exchange, the documents pertaining to the sale transaction of the goods sold and delivered were filed. The defendants pleaded that the goods were rejected because they were not of the prescribed quality and, therefore, they were not liable to make payment of any bill of exchange. In evidence, the plaintiff filed an affidavit of evidence of one Bhaskar Dhakate, an Officer of the Bank, who entered the witness-box. In cross-examination, however, he deposed that he is not aware of any of the facts of the case nor has he seen the record of the case before filing the affidavit of evidence. The learned Judge, therefore, came to the conclusion that the affidavit of evidence filed by the plaintiff is totally false and does not aver the true facts. The learned single Judge, therefore, dismissed the suit. 3. The learned counsel for the plaintiff vehemently submitted that the defendants had admitted the acceptance of the bill of exchange and their plea that the acceptance was conditional is totally untenable. Therefore, the suit should have been decreed. According to the learned counsel, therefore, it was not necessary for the plaintiff to have proved their case at all. In the circumstances of -: 3 :- the case, however, it is not possible to accept the submission. Each of the material facts has to be proved by cogent and reliable evidence. Merely because one fact is said to have been admitted, the plaintiff cannot be relieved of discharging the burden of proof that is placed on his shoulder by sections 101 and 102 of the Evidence Act, 1872. In any case, the admission was conditional. Whether a condition could be said to have been validly imposed again is a matter of debate and is a mixed question of law and facts which requires evidence. The learned counsel for the plaintiff further submitted that an opportunity may be given to the plaintiff to again lead evidence in the matter since the witness was nervous and, therefore, he deposed that he is not aware of the contents of the affidavit of evidence nor the facts of the case. It is difficult to accept this plea since the witness did not say so before the Court nor did the Advocate who was appearing for the plaintiff make this submission before the Court which was recording the evidence. We find that even in the appeal, there is no affidavit to that effect. 4. In these circumstances, there is no merit in the appeal which is hereby dismissed. S.A. BOBDE, J. -: 4 :- A.A. SAYED, J.