TMI Blog2019 (12) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal dismissed. - RSA No.518 of 2008 - - - Dated:- 21-11-2019 - MR. SANDEEP SHARMA, J. For the Appellant : Mr. Raj Kumar Sehvan, Advocate vice Mr. Sandeep Datta, Advocate. For the Respondent : Mr. Pawan K. Sharma, Advocate. Sandeep Sharma, Judge (oral) Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, lays challenge to judgment dated 19.6.2008, passed by learned District Judge, Kinnaur Division at Rampur Bushahr, District Shimla, H.P., in Civil Appeal No.4 of 2008, affirming the judgment and decree dated 7.12.2007, passed by learned Civil Judge (Senior Division), Rampur Bushahr, District Shimla, H.P.,in case No.106I of 2005, whereby suit having be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to be paid by him to the plaintiff, but ultimately matter was settled for ₹ 50,000/and he had issued cheque. Defendant claimed that sum of ₹ 50,000/was paid to the plaintiff in cash in July, 2004, but he did not issue any receipt. He further stated that though plaintiff had agreed to return the cheque, but he never returned the same. 4. On the basis of the pleadings adduced on record by the respective parties, learned Court below framed following issues: 1. Whether the defendant has paid a sum of ₹ 50,000/in cash to the plaintiff in the month of July, 2004 in presence of witnesses, as alleged? OPD. 2. Whether the plaintiff is entitled for the recovery of ₹ 58,266/alongwith inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law? 8. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no illegality and infirmity in the impugned judgments and decrees passed by learned Courts below, which otherwise appear to be based upon the proper appreciation of the evidence, be it ocular or documentary adduced on record by the respective parties. Though, during the proceedings of the case learned counsel representing the defendant made this Court to peruse evidence led on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril, 2003 had handed over a cheque amounting to ₹ 50,000/to him. In cross-examination, this witness though denied the suggestion put to him that no cheque was handed over to the plaintiff in his presence, but admitted that cheque was not filled before him. 11. Defendant while deposing as DW1 stated that amount was settled at ₹ 50,000/, but he could not make the payment as he was not getting the payment from the HP, PWD Department. He further stated that he had handed over cash of ₹ 50,000/to the plaintiff in July, 2004 in the presence of Saiyan Ram and Puran Dass. In cross-examination, this witness admitted that he was purchasing the food grains articles from the shop of the plaintiff and their accounts were set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her factum with regard to issuance of legal notice stands duly admitted. Submissions made by the learned counsel representing the appellant-defendant that since plaintiff had specific remedy of filing the complaint under section 138 of the Negotiable Instruments Act, Court below ought not have entertained the suit deserves out right rejection because there is no bar for a person to file civil suit for recovery of amount paid to him through cheque. Though, in the case at hand, defendant made an attempt to raise a defence that since sum of ₹ 50,000/was paid in cash, he is not liable to pay any money on account of cheque admittedly issued by him in favour of the plaintiff, but as has been taken note hereinabove, no cogent and convincing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained. (p.269) 18. Aforesaid exposition of law clearly suggests that High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless the same are shown to be perverse. But, in the case at hand, this Court while examining the correctness and genuineness of submissions having been made by the parties, has car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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