SA/26020/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 260 of 2008 With CIVIL APPLICATION No. 13336 of 2008 In SECOND APPEAL No. 260 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AMRUTLAL POPATLAL PARMAR - Appellant(s) Versus MAYURBHAI INDUBHAI SHAHERAVALA - Defendant(s) ========================================================= Appearance : PARTY-IN-PERSON for Appellant(s) : 1, None for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 03/12/2008 ORAL JUDGMENT 1. The appellant – ori. defendant has filed SA/26020/2008 2/8 JUDGMENT this Second Appeal under Section 100 of Civil Procedure Code challenging the order passed by the learned Additional District Judge ( 8th Fast Track Court, Rajkot) on 5.4.2007 in Regular Civil Appeal No.86 of 2005 whereby the learned Additional District Judge has confirmed the judgment and decree passed by the learned 2nd Jt.Civil Judge (S.D.) Rajkot in Special Civil Suit No.203 of 1990 decided on 30.3.2000, except one modification that the rate of interest was reduced from 18% to 6% per annum. 2. Heard Mr.Amratlal Popatlal Parmar, the appellant appearing as party in person, and also perused the judgment and decree passed by the Trial Court as well as the First Appellate Court. 3. It is the case of the ori. plaintiff – present respondent that the plaintiff and the defendants were familiar with each other and SA/26020/2008 3/8 JUDGMENT on friendly terms since long and the defendant is working as LIC Agent, who had borrowed sum of Rs.1,20,000/- for the purpose of paying initial premiums of LIC policies of his client insurers and the defendant drew cheque No.088707 dated 12.2.1990 in favour of the plaintiff as a security of the amount borrowed. It is also the case of the ori. plaintiff that the defendant was not capable of repaying the amount in due time and, therefore, the cheque was changed from 12.2.1990 to 14.5.1990 and the defendant also put his signature there at the correction point. That when the said cheque was tendered by the plaintiff in the Bank, the same was returned as unaccepted on 9.6.1990 and, therefore, the plaintiff informed the defendant of the fact whereupon the defendant assured the plaintiff to repay the aforesaid sum in a short time. The defendant went on giving false excuses and the plaintiff then came to know that the defendant was trying to SA/26020/2008 4/8 JUDGMENT dispose off his movable and immovable properties to deprive the plaintiff of his dues and, therefore, the plaintiff has filed suit against the defendant to recover the amount of Rs.1,20,000/- as the principal amount and Rs.10,800/- as interest at the monthly rate of 1.1/2% upto the date 14.8.1990. 4. The defendant has denied the claim of the plaintiff vide his Written Statement Ex.21. The Trial Court by its judgment and order dated 30.3.2000 decreed the suit in favour of the plaintiff with interest at the monthly rate of 1.1/2% calculated at Rs.32,000/-. Initially the defendant being aggrieved by the order of the Trial Court has filed Appeal before this Court, as the pecuniary jurisdiction of the said Appeal was with this Court. It was registered as First Appeal No.291 of 2000. However, in coming into force of new Gujarat Civil Courts Act, 2005 SA/26020/2008 5/8 JUDGMENT the Appeal came to be transferred to District Court, Rajkot as the pecuniary jurisdiction of the District Court is enhanced to the valuation upto Rs.5,00,000/- in Appeals. The learned Additional District Judge has decided the said Appeal in 2007 and as stated earlier confirmed the judgment and decree of Appellate Court, except one modification that is by reducing rate from 18% to 6%. 5. Mr.Parmar has submitted before the Court that both the Courts below have given concurrent finding to the effect that the plaintiff has failed to prove that the cheque was given for consideration. On the contrary, both the Courts below have held that the plaintiff has not been able to establish before the Court that the cheque in question was given for consideration. He has, therefore, submitted that since the cheque is without consideration, as per rules containing in Section 43 of the Negotiable SA/26020/2008 6/8 JUDGMENT Instruments Act, there was no liability of the defendant to repay the amount of cheque to the plaintiff. He has also relied on the provisions contained in Section 118 of the Negotiable Instruments Act and submitted that the defendant has proved before both the Courts below that the cheque was not given for consideration and hence no presumption can be drawn in favour of the plaintiff that the cheque was given for consideration. He has, therefore, submitted that on conjoint reading of Sections 43 and 118 of the Negotiable Instruments Act, the defendant could not be held to be liable to repay the cheque amount with interest and hence substantial question of law arises from the order of the Appellate Court and this Appeal requires an admission. 6. Having heard Mr.Parmar, appearing as party in person, and having gone through the orders passed by the Courts below and having SA/26020/2008 7/8 JUDGMENT considered the provisions contained in Section 43 as well as Section 118 of the Negotiable Instruments Act, the Court is of the view that both the Courts below have proceeded on the footing that the cheque was given by the defendant to the plaintiff for satisfaction of his liabilities. It is true that at some stage the learned Trial Judge has observed that the plaintiff has failed to prove that the cash amount was given by the plaintiff to the defendant. However, on bare perusal of Section 118 of the Negotiable Instruments Act it clearly appears that the presumption is required to be drawn in favour of the holder of the cheque unless otherwise proved and hence under the law onus lies on the person, who draws a cheque to prove that the said cheque is not given for consideration. Since ultimate finding given by both the Courts below is to the effect that the defendant has issued the cheque in favour of the plaintiff towards repayment of SA/26020/2008 8/8 JUDGMENT his liabilities and since the said cheque has been bounced, the decree passed in favour of the plaintiff with interest and the Appellate Court has modified the rate of interest. 7. Since there is concurrent findings of fact this Court has very limited jurisdiction to interfere in the Second Appeal. The Court is of the view that no question of law, much less substantial question of law, arises out of the order of the Courts below. The Second Appeal is summarily dismissed. 8. Since the Second Appeal is dismissed, the Civil Application does not survive and it is accordingly rejected. (K. A. PUJ, J.) kks