IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION.

SECOND APPEAL NO.

OF 2015.

IN
REGULER CIVIL APPEAL NO. 32/2013.
CROSS APPEAL IN
SECOND APPEAL NO. 453 OF 2015

DISTRICT: PUNE.
Mrs. MRUNAL VITHAL WABLE
Age: 45 Years: Occu: Coaching classes
Flat No. 4A, Building No.6,
Indira Heights, C.S.No.142, Poud Phata
Erandawane Pune....APPLICANT
(Original Plff.)
-:VERSUS:-

Mr. SANTOSHMAL TARACHAND KOTHARI

Age: 48 Years; Occ: Civil Contractor,
R/o Flat No.2B, Sanghavi Appartment
Surajnagar, Shirur, Dist Pune ..OPPONENT
(Original Defft.)
Claim Rs 1,67,298/- for the Court Fees
& Jurisdiction of the Court.
To,
The Honble Chief Justice and
other Honorable Puisne Judges
of this Honble High Court of Judicature
Bombay, At Bombay.

This Humble Appeal on Behalf

of the Plaintiff /Appellant.

HEREIN ABOVE

NAMED APPLICANT

MOST RESPECTFULLY

SHEWETH AS UNDER .

1. The

appellant

is

well

educated

lady.

She

possess

an

educational qualification of Masters in Arts. She is residing on

the given address and conducting the coaching classes. She
has independent source of earning. Her husband is serving
with the irrigation Department. The respondent developed
friendly relations with her husband. He frequently used to visit
the house of petitioner along with her husband. In the year
2006 the respondent was in need of money. He requested the

Appellant to help him as he needed of the amount for carrying

out the contract work. In view of the having cordial relations
by him with her husband, the Appellant gave Rs. 4,95,000/-.
To discharge the liability the respondent issued 3 different the
cheques. He assured that on the given date is the cheques will
be honoured and the appellant will receive her amount.
2. On the given date the Cheque was deposited in her bank
account. However these 3 cheques were dishonoured. On
receipt of the intimation from the concerned bank, the
appellant issued notices and called upon the respondent to
pay off the dues. The respondent failed to reply the notices,
also to discharge his liability. Thus the appellant on a 1st
march 2010 filed a Special Suit No. 643 of 2010. On 30th of
October 2012 the Joint Civil Judge Senior Division Pune
delivered his judgment and thereby dismissed the suit. A copy
of the judgement is produced on record vide Exhibit A and
the decree drawn vide Exhibit B in Spe. C. Suit.
3. The appellant feeling aggrieved with the dismissal judgement
and decree, the appellant filed Regular Civil Appeal No. 32 of
2013 in the District Court Pune. On 13 March 2014 the Ad
hoc District Judge-2 Pune delivered his judgment. He allowed
the appeal and decreed the suit. However while passing the
final order in paragraph No. 3 he directed the defendant

respondent to pay Rs. 4,95,000/- along with 7% p. a. interest

from the date of filing of the suit. There appears to learned ad
hoc district judge failed to take into consideration the interest
Rs.1,67, 298/- claimed from the date of cheque dishonoured
of the cheque till filing of the suit. The Lower Appellate court
allowed the appeal with costs. However it appears the lower
appellate court made another mistake of non-directing the
respondent to pay the costs of the suit. A copy of the grounds
of appeal memo is produced on record vide Exhibit C. The
judgement drawn in the Appeal is produced on record vide
Exhibit D and the bill of costs vide Exhibit E.
4. The appellant applied for the certified copies & get it. That on
going through the reasons recorded in the judgment delivered
and found there is apparent bonafide mistake on the part of
lower Appellate Court. At the time she became sick and there
being a summer vacation to the court. After the opening of the
court review petition was filed along with the Misc. Application
No. 698 of 2014 to condone the delay. However mean time the
Respondent filed Second Appeal No.453 of 2014, with the
request to condone the delay caused for filing the appeal. The
Respondent

filed

Civil

Application

No.1684/2014

&

on

23/12/2014 obtained Stay Order. The Appeal is filed in the

High Court & its cognizance has been taken, there by now

lower appellate court cannot proceed with the Review Petition.

Hence it becomes mandatory on the part of Appellant to file
this Appeal as a cross appeal.
5. That the appeal was decided by the lower court on 11 the
March 2014. The judgment and decree was signed by the lower
appellate judge on 24 March2014. The lower appellate court
decided the appeal in her favour. He decreed the suit. The
applicant noticed that the lower appellate court has not
awarded the interest Rs. 1,67,298/-.She applied for the
certified copies. On 25/07/ 2015 the applicant filed Review
Petition with delay codonation. The copy of the delay
condonation application is produced on record vide Exhibit F
and the copy of the review petition is produced on record vide
Exhibit G.

6. Feeling aggrieved and dissatisfied with the

partial

judgment delivered and reasons recorded by the lower

appellate court in Civil Appeal No 32 of 2013

and

thereby the decreed the suit partly filed his present

appeal on the following grounds:a. That the lower appellate court rightly observe that the
defendant respondent failed to discharge the burden of

proof to rebut the presumption created under section118 (a)

of the Negotiable Instrument Act.
b. That in view of the production of Income Tax documents
and of a certificate from the Chartered Accountant it was an
error on the part of Lower Appellate Court while observing
that Of course, the plaintiff has no documentary evidence
to show that she paid a hand loan of Rs.4,95,000/- to the
defendant.
c. That the none consideration of the claim of interest Rs.
1,67,298/- on the principal amount, from the period of
cheque was dishonoured till filling of the suit is a glaring
mistake on the part of the lower appellate court.
d. That the civil court is bound to consider and direct the
particular party as to payment of the costs of the suit, to
the either side, or at least he must direct the parties to bear
their own costs. None-consideration of this aspect is an
glaring mistake on the part of the lower appellate court.
That the lower appellate court while passing the directions
in final order clause No. 3 ought to have directed as follows
3. The Special Civil Suit being number 643/2010 is
decreed with costs.
e. That the rule of law the relief claimed & requested but
refused as final order is silent can only be made applicable

when the Judge specifically considers the entitlement of the

party is to the relief claimed. The omission to consider the
same is legal error on the part of that judge, vide observed
by the Apex Court of India in Ram Prasad V/s State of
Madhya Pradesh 1970 Mha. L. J.696.
f. That the lower court was bound to consider the pre suit
entitlement of the plaintiff to claim of the interest & costs of
the suit throughout.
Mumbai.
23/10/2015

P. G. Jagdale
Advocate for the Appellant.

1. Law point consisting of the Appeal is from point numbers b

to e.
2. The respondent has filed Second Appeal 453/2015 which is
pending before the honourable court. This appeal is a cross
appeal to the said appeal hence needs to heard & decide
simultaneously.