Karnataka High Court
Dr.Kodandaram S/O Pandurangam vs J R Pais S/O E A Pais on 6 September, 2010
Author: Ravi Malimath
Bench: Ravi Malimath
.. 1 .. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6" DAY OF SEPTEMBER 201-0 BEFORE THE HON'BLE MR.3usT1cE RAVI MALIivi'ATHA__'_i"1l' REGULAR SECOND APPEAL NO.964 QrA.2oQ4iE_E'E ~- BETWEEN: E)r.Kodandaram S/o PainscE.Lirangai7n~,. " g Aged about ?'.?fv1 _«y'e.a rs, . Neuro S'I_:rgeo'ri.,:"*-.E4 A E " . Residing at No.._2'--78, Martin Pais Road, * Mangalore -~. O3' " DaE<shina :<ari'na..d_a_., ...APPELLANT ' ;."(ByA S_v4rVi'~O'_'.~S«j'hivarama Bhat, Advocate) 13"." J."F§..Pa"iVs S./C' E.A.Pais, A " Aged about 50 years, Residing at "Bahs Vern" A H Balmatta, Mangalore -- 575 002. Dakshina Kannada. 2. Mrs.Harriet M.Pais W/o late E.A.Pais Adult, Residing at "Bahsvern" Balmatta, Mangalore -- 575 002. Dakshina Kannada. .. (By Sri Chaitanya Hegde, Advocate):::A'g' is V**>I< This RSA filed under se'c.ti"0n 100" R./W0 X'L,II R 1 CPC against the Judgment and Dec_re.e"d_,ated 1'2.,.}?.2.004 passed In RA.No.120/1989,on..,the_«'file 'o'f..the'~I_ Addl. District Judge, D.K., Mangalore, allowiiwg. the§fapp"eal:..an..d setting aside the judgment and decree , dated .--~«30v.--7j.,1983, passed in OS.No.170/1980, o:n""'the f.'l_e._ of; the Pr|.Civi| Judge, MarI9a|ore., " .» I This, cdrr}iiig:,"..'ion for hearing this day, the court delivered the Afollowi'ng:~ JUDGMENT
,.__Aggrieved by the Judgment & decree dated _ 1,2-}i--'2t)O4 passed by the Additional District Judge, "'A.,_'D--a--l<'éshina Kannada, Mangalore, in R.A.No.120/1989 V» aiallowing the appeal and dismissing the suit, the plaintiff has filed the present appeal.
2. The parties would be referred their rank in the triai Court.
The case of the plaintifhisftinat tine" thejffiirst defendant entered into "Ca_n=...VagreenjeVntC'l».Vof'§._;'saie"i datedl' 6-3-1979 wherein 19*x_defendaLnt..ag'reed_Eto seli the house property as described in the suit 'A' schedule:Aforhaifeons§'d.e'ratio:ni=o'f Rs.50,000/-. As on the aiweheque for a sum of Rs.2S_,Qi)V'0;ffE'*l/Qraisl" V15' defendant and the baiaVn(_:e'" at the time of registration. The ternisiiof stipulated, that within a period daysL"'bot_h_é.vthe parties would have to seek an ' V:V'appr£?.Pi*£§;l;e"vpermission from the Urban Ceiling Authority H reeefpt of the same the saie deed should be e>uée;t_;jted.:4'within a" period of 15 days thereafter. It is Con-tended that the plaintiff approached the first defendant ftirréi-sin the-_:d'-eteiis required in order to submit an H a;5'p¥.i€:a-§:i3'on '.¥a'efeife_ the Urban Land Ceiling Authority and the same was not cornpii_ed with. Hewever, the 15' defendant $4.
replied stating that the cheque issued on the date of the agreement was dishonoured and hence some _4.m'o.re~.V_time was granted for the payment. The made. After a number of corresgpondencesl.:5ei;wee'nV them, the plaintiff issued a legal notice tofthe'clefe'nda'n:t...__ca:ll_irng ll upon him to perform his p'art._0l the contra'c'ii,i...jt»o..ufurnislh the required particulars etc. failure" with the same, the plaintiff fil'=e.cl" a% suitj_>d..SV--._l$.lo'.'i70/1980 on the file of the Principal. Civilvjudhge, l~4an_gall'orVe',§to. execute the sale deed _receiving the consideration of Rs.50',Q__C)0/%--.' ,:T'h'e>:_deferidants entered appearance and C0:nt.esteCl'.'thl£§ 'suit. trial Court on framing as many as l V. QV8*issues"decreedfltlhée suit of the plaintiff. Aggrieved by the .s-arrief,'}..:t'hVef,:d~efendants preferred an appeal before I iAddit_ivo~nal'~V'District Eudge, Dakshina Kannda, Mangalore. AA The appellate Court by its Judgment & decree dated 12-?- allowed the appeal and consequently dismissed the suit. Hence, the present appeal by the plaintiff. we
3. The appeal was admitted by this'g..Csi?lljVit-akfcgsri"-1.5- 10-ZOO4 on the following substantial Guestioits ofsv!:aird:+' "i) Whether the_..disshon_o'u'r"*o;f cheque issued by the pilaint-i.ffzf1iri¥_r'e.sp*eci:'iof Rs.25,000/-- advance agreed ugndelri' ''th'e' '' agreement could the~..ag--reem'en't""in question ? l i
ii) whether that "¢'i.~;s:ij_rttfji '».b_elow could haveVlreversedl'the-j_u-dgment and decree of the trial gcourt'd'eso'it.e"'the fact that the defendant und'erV"Ex',-.P.3_ has agreed to receive the _advance"*~a.I.T_1__Ount if tendered under Demand or-aft?"
A.s_Ie_arned counsel for the appellant/plaintiff the first appellate Court committed an error in the impugned Judgment & decree and hence v.in.terference is called for. He contends that the first siappellate Court committed an error in coming to the E944 -5- conciusion that, the non-payment of the initiai sum of Rs.25,000/~ being a condition precedent, thenc'»:.'p.|aaintiff having faiied to honour the same, the suit be rejected. He further contends that th_e__Veviden:ce_ would' show that the plaintiff was eiverlkrealtiy'1'a~n:d'-.w.vi:L|'linVgjv':*toT. Derforrn his part of the contract. 4"He"reIiesV,'o'--i:.the efiriédencee to contend that in View of a demand draft was narfieyyvof the first defendant. The has also been relied _tifieWdemand draft for a sum of Rs.2$','Q_OO_/4 but the same could not be handed ou\}eV.rhto' .ithe"'1"'.': defendant for various reasons. He . . c"onte"nds" that theélplaintiff has shown his readiness and perform his part of the contract. He Ac-onte_nds%.Tthlat the appellate Court erroneously came to the AA Vconciusion that the plaintiff has failed to perform his part
--..VV'--ofd5the contract. At the very inception, the finding of the appellate Court that the piaintiff has failed to discharge his obligation is not in consonance with the material evidence ,2' rs -7- on record. The materiai on record discioses that in view of the demand draft having been prepared being corroborated by the evidence of the bani;...._i§ian.a'g~er;._it wouid be sufficient to show his readiness .a_n"d~.VVwi!:!_i'ngnefssfto perform his part of the contrac?'=;:'rmi~fi'_e 'fur'ther--con.teVnd's that L Ciause(1) to the agreement toiseil'-..canno.t'.;be condition precedent for the""p,ij'r'pose of.V_t"he:.'-contrafct. That there are no recitais thefnafggreemlent to soecify that oniy on the receipt of a sum of the remaining Ciauvfses in agre.ern_'ent would be given effect to. He theref'o.re gconten---ds last Clause is not a condition precedent' avndron the other hand it shows his readiness _ 'and i»»;'\;:;iliVVb'rsi4_;ig_ness.Vmfifhe appeliate Court therefore committed V ._an&i'e.rroir"inidiésmissing the suit. 2 ,. He further contends that the defendants were 2 not viiiliing to perform their part of the contract and have made a faise ciaim with regard to the dishonour of the cheque. He contends that the cheque which was
j)/::*"''' i -3- dishonoured was not produced before the trial Court.
Therefore the case of the defendants cannot be accepted. He further contends that it was the defendant-s.'_gy5.ih_o'.j'iAie.re not willing to perform their part of the i'ife'r'iCeVb on these grounds the suit requires
5. In support of his contentions igreiiies Judgments reported in the'v'Vi'ca_'s'e_of BASAPPA DODDANNAVAR v. ';Snf1t.SC§N§i;iE5Ai»»,Tt.iLJANSA" KOSANDAL AND,YvOTHH:E3'i~'t.:S.. AI_Pqi971 MYSORE 217 at para- 18 to"co'ntendr_.'th'at»:_'si.nCe'" the order of the trial Court is reasonedfthe"interference by the first appellate Court is . _ir'npro'ber'; ~__l-ie, therefore contends that the interference by thief' Court was unnecessary and hence the decree of the trial Court requires to be Ag cgonfirnied. He further places reliance on the Judgment in case of C.NAZEER AHMED v. s.3AHAN ARA reported in 2001(2) Kar.L.J. 288 to contend that it is not necessary for the purchaser to actually produce the money that he ijfléfl -9- possesses. The proof to raise adequate funds is sufficient. He therefore pleads, that in the present case, the»-.p'ira_intiff has established that he had sufficient fundsto'h«o_'nour.-the contract and that he has been ever wi|l_i--ngv--t'o~..p'e»rforni,,_his part of the contract. Hence, the Court to the contrary is.»Ver_roneVou_'s" to interfered with. He placed Judgivrnent in the case of NIRMALA (P) LTD. AND OTHERSvyrep'o:rted_tn 5 scc 481 to contend th'a.5t;,.V was ready and willing to perform__ his pialrtllofl:_'th,e"'<c:'ontract and had not taken any adjvangtage' his olwnvwrong, but on the other hand it is defendant alone who was trying to wriggle out of the theisuit requires to be decreed. The plaintiff in such V__vcir.c,il;'nl1stances could not be directed to pay any _ additional amount while granting the decree. He relied on decision in the case of P.D'Souza vs. Shondrilo Naidu reported in 2004(6) Supreme 28, to contend that, in a suit for specific performance of the contract the plaintiff must wk i -19- establish his part of contract. The question as _tol_jw.hether the onus was discharged by the plaintiff or upon the facts and circumstance of each .--c'a'se.-.7;
6. Sri Chaitanya Hegde, if appearing for the responclents/d.efe.ndant's'...dvefends.'t'h'e.' impugned order. He contemcls» that" no error committed by the fir:st,_appelllgaltelfilourt thatfclalls for any interference. By placing' 'At.he__'.'.Exhibits and the material 'r'eco_rdVihe.Lconten_ds that the plaintiff was never willinglto' perfo_rm'A'--hi_§-._p'a.'t of the contract. He contends thateyenlélltinough the cheque issued on the date of the of the agreement was dishonoured, the time for was extended by the defendant.
ir'a««spit_e 'o.ffthe extension of time granted, the said amount is wasnnot paid to the defendant. He therefore pleads, that in if of the non--payment in terms of the agreement of sale slvide E><.P--1 as well as the non~payment of the amount on the subsequent dates, the plaintiff has failed to establish 0% "11- his readiness and wiliingness and hence the ;s'u'i't'.f'_na:s5 been rightly dismissed.
7. He further contends thatthe of sale was based on C|anKs'e.x(:1)._ofV"t¥'eV:atgreement with reference to payme_n'fi= arriount. The remaining Ciauses therefore have to be read to C|ause(1) of the agreeme:;'1VtV, the date of entering into the cheque was received by the "su bsequent date the cheque was disi':onoured-,_ff'he entire agreement which is based on the inwterms of Ciause(1) having not been ft;ifiiied',._the:-contract would therefore not subsist. In support of his contentions, he reiies on the A"r.V_V'3u.dAgment in the case of DEDDAPPA AND OTHERS vs. JEBRANCH MANAGER, NATIONAL INSURANCE CO.LTD., reported in (2008) 2 SCC 595 to contend that due to the 2w>Zr~ ".12....
dishonour of the cheque, the entire contract comes to an end and the same cannot be enforced. He furthe"r.lr_'e.l:iels on the Judgment in the case of NARINDER Av', SURINDER KUMAR MALIK repor_ted._i_n 2Go§V"'A:ilR' 6'i5g6li' :. and also on the decision c.cal_s'e_;"*f'of A.K.LAKSHMIPATY(D) & O'".':".i_V-'l"ERS RA; _S)-'§lflEE§£5"'PAiilNALAL' H.LAHOTI CHARITABLE TRusf}& 'Ofl'HE.RS-reported in AIR 2009 AIR scw 714'47to. coyeitginlastithet only because the photostat copy of the"ch'eg.ue.:»oxrdemand draft was prod.uced'_',lAtheVsgaime _its.e|f not establish the readiness and v'VilVl_ing%nes.si'of"t:_h'e__:"pa'.rty to perform his part of the contract. u"i'here"'ha's to be something more substantial in c orderi'~'t'o show readiness and willingness. Heard Counsels and examined the records.
10. The first substantial question of law is as to ..._.:§whether the agreement stood vitiated in view of the dishonour of the cheque. The learned counsel for the W "14- Agglomeration Authority seeking its permission. is on the basis of the receipt of the said amount'~._:anl_d~.__the consequential permission, that the balance Rs.25,000/-- would have to be paidwithiri date of receipt of the said permission...:'On»fa'iIu're:"toi'---.obitain the said permission the purciiaser was ent'itled._"towiithhold' a sum of Rs.5,000/- out of R_s:.u}:»5,0iQv0/--..pa~idv_by_ghim and on the default of the pu"rcl'l1aser, ?the'4"vta:nl:d'o~r_would be entitled to withhold Rs.VS,0QO]"-*out"ofs.__Rs;.2a§,iOu0/- paid. It is theraeVforVe'_' the Vblauses being dependent on Clausefi)' narn_elyrQ.iis:;it--ti':regard to the initial payment of a sum-of Rs4f25V,'00.()/--."it should be construed as a Clause that €:ondl'iti_on precedent to the fulfillment of the terms of thlegi' It is only on the basis of the amount of lFts_.25_',00;C)f;'¥l having been paid to the vendor that the AA remaining clauses in the agreement of sale have been
--..Vl'p.ro'ceeded with. However if the contention of the learned Hécounsel for the plaintiff were to be accepted, the agreement would have to be read as a contract without ...3_5...
consideration. The contention therefore of the Eearned counsei for the piaintiff to say that it is not a fccundition precedent would therefore be unsustainabie. 2 by if f
11. As on the date of enitering agvreernfeiit the cheque having been is's'ue"d, it wast by both the parties that the Therefore, the subsequent Ciauses' were based on they:factufrhtofgggthe being paid to the defendant. Under " _ theseifl »:""-circumstances therefore, the acknowledgeiment of the cheque for a sum of Rs.25,000/- _ o'nftht'e.g_dateofthe agreement wouid therefore have to qbe'rea'd_"as'jamcondition precedent in the agreement. If the Aeontentiofnifthat it is not a condition precedent were to be up _accepted, then in that event there is no necessity at aii to V'--»en5ter into an agreement of sale. If the initial payment is if of no consequence and is not a condition precedent, then there is no advantage or whatsoever to either of/ the AW"
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parties in entering into an agreement of sale. The initial payment is therefore intended to bind both the_pa'rtie.s. If there is nothing to bind both. the partie.s;V_:l..th'eTre._"is..___'no meaning for both of them to enter into"'thé_vv,aVgi'eeme4n't~'_\\,,., Therefore, the said Clause would :1'hatiel'irt.o a . condition precedent.
12. On the Vd'*i--shono_ur2.j_ao~f "thed:c'l1eque paid in terms of Ex.P~1, the 1" de-fe.ndan't._wroteV;a{"Eetter vide Ex.P-3 intimvating" thhewcheque issued had bounced twiceland that._.irtspit_e---..of'«repeatedly reminding him to pay the said the plaintiff was postponing it. He has . V. asked thvemplaintiff, that in view of the dishonour of said amount may be paid within a period of A48 ho_urs»thlereafter. It is contended by the counsel for the _ plaintifi" that in reply to Ex.P~3 dated 22-3-1979, the V."l.,.V"p.lal.intiff vide Ex.P--4 has stated that he would like to know "Eon what grounds the cheque bounced. The plaintiff has stated that there has been no defay on his part and ti"
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accordingly sought for return of the cheque so that-4r_a'~fresh cheque can be issued.
13. A reading of Ex.P--3_ therefiorel"Vinriyiciate, that there have been commu'~njcati'o'ns between_'vtvhe plaintiff' and the defendant. _ That t_hle:-irefe_yrenceVtheleffect that he has been repeVa'teuly plaintiff of his obligation to pay, woruidiindvicatfey the parties are in constan.t§'-...toric:h»_ »vlf:h_atone.._4an*othVer'.VVV'The plaintiff himself admits tolA"tlhe between both of them over telephone.y%Hencey.'A'i~t matter that would necessarily have to de.perrd' on a written communication between v___i4,n}=Al£t is however contended by the piaintiff's Ag counsei' that no material has been placed by the defendant fto estabiish the dishonour of the cheque. He contends, that aithe Court wouid therefore have to infer, that the defendant was neither ready nor wiiling to perform his part of the ri-
_.]_8_.
contract. It is for this reason alone that Ex.P¢3-- in order to wriggle out of the contract,__y'v_'i'--hat:.A.l.:i'r:spiteof sending a reply vide Ex.P-4 seeking'to"'!<n'o_w-::th.e~._gro_undg "V on which the cheque was_re_turned_a'nd a|so'--i.re:quesl;in'g the return of the cheque, tvhefisame not 'done by the plaintiff. ' 5
15. The 15" defendantiiii t'he§let»t_er at Ex.P-3 after reminding the' .plaint'iff"'a'bout.:jtheVV-failvdre in making the advance'_"p'aymVént asked him to make the said paymen_t"withi.n'a'A'pieii.o:d'of 48 hours thereof. This would clearly in'di.cate° the "readiness and willingness of the A'diefeh"dant.g_in performing not only his part of the contract tVofevnsui're1*'that the agreement to sell reaches its logical end. __There is no material on record to show that on receipt up of by the plaintiff, that the advance amount was ~.._*paid to the defendant. To contend that the demand draft has been prepared, which has been corroborated by the Certificate at Ex.P--5, to show that the same stood in the ?24_ -19- name of the defendant, would not be sufficient to hold that the plaintiff was willing to perform his part of the Vecontract. The willingness to perform the contract and __t;'r'i"e go ahead with the same, are two diff_e~ren:fij'~.éS~pectsifVtha.t»4°--.._A require to be considered. The7.prepalrati'o»n:4.of'--.the:-derijalnd draft as evidenced by F».-'x._,?_"S lVw.oéildV orri'luy; capacity of the piaintiff to 'tine contract. The failure of the plain-ti_ff-'_Vto 1n'ila:l<.eL».v..t'Al*ieHsaidlpayment even within a period of 48....hou:rslei;tende'd':»':th*e'"reafter by Ex.P-3, WOE;i_:lCl cllelarlgf unwillingness of the plaintiff to perform "his 'part-to-fl:_th.e"contract. Therefore, the failure of the--.plaint'iff.toestablish his willingness to perform his part _AV'o'fV.th'le coAn_tractV"w'oluld disentitle him for a decree that he 3 i._Seel<_s;«._c. "
reasoning of first appellate Court while rejer:ting the plea of the plaintiff is based on the material if 'r..ef\}.'idence on record. I find no error committed by the appellate Court that calls for interference. The appellate n-......._..-
Court has rightly taken the View that t|'7r;Zwas an __ 20 __ obligation on the part of the plaintiff to discharge the payment of a sum of Rs.25,000/--. He havir'ig"'ta'i~lge'd. to discharge the said obligation could not be~'..'e'ntyitled"' decree.
1?. Ciause(1) of the...i59reern'ent 't«iVou_ld"'~--i:n'dicajte that' the cheque has been recei'v'eij'--fo-r._thelisaidvamount. In order to show his read;_i'ness.:*a:nd__'¢'wivi_l.ingness, the counsel for the plaintiff contend that in terms of Clau;hse(_2')lAA'oi_-V'theyysa:i:d"'..,§:Igreement both the parties were requiredé' to"subnii§--~..iy_a"ri"'.application before the Urban Agglo_merati.on"Authority. Since the required documents fogrthcolmiing the said letter was written. " u"The agreement to sell is dated 6--3--3.979. ".t§'i'ause('fiii}__postulates that within a period of 15 days from that date, the necessary applications would have to be AA_rn*ade, namely within 21-3-1979. The letter written by the plaintiff to the defendant regarding the declarations to be /is ..... ..
fiied before the competent authority is dated 19-»--3~1979 nameiy, on the 13"' day of the date of the If the contention of the piaintiff's counsei4':_:'"w.er.e'ittodcbei accepted, then the appiication Zshtouéd '_h"ave."bee_nV:made'gat'1'. the eariiest point of time. Seeking ietter, 2 days before the eVx;3.é:'r:3'za--of theuttmei the piaintiff's case doubitfui. Ti'h'e::nc'onte.ntioniof the piaintiff's counsel is unsustainabhl-e evidence that the piaintiff the d§ef_Tend.a'nit'_:_~~were' constantiy in touch over te|eohoneVVwitiihregjyard to the agreement and its after effects,__ 4T_he'r'efore--, th-ed'i'e'liance on Ex.?~2 to estabiish the re;adiness"ahdwiilingness of the piaintiff is notjustifiable. ___"19_, He"nce__._the dishonour of the cheque as advance '.V'amAou4n't:V'vi:t'ia_tes the agreement. The first substantiai .' . q'uestiio'nci';ofa:'|aw is accordingiy answered. The second substantial question of {aw on .. Vtwhichsthe appeai was admitted was as to whether the We Court below could have reye?s2ed_the Judgment & decree of the trial Court when under Ex.P--3 the defen.da4n't._V_ had agreed to receive the advance amount?
21. In considering question No.1 ital' been recorded that Ex.P~3 has not b*ee¢n"..actedV'Vu.pon-bythel T. plaintiff. The action of the plainti__ff'-lacks making any payment to the--v--de"fenda'nt. 'within thyelllpelriod as stated in Ex.P~3. Evenif thei"co'n_tent:.Q'n of the plaintiff were to be acc'ep_ted:V'3~.theL"p..ayment should have been made atleast.__48y date of receipt of Ex.P--3. How~eyer,u.'it..,ViAs'not the case. Ex.P--3 which speaks of the tendered by the plaintiff which has remained ii.i_nfulfillevd.Vff-If"the plaintiff had complied with the demand in.ter_:ns.,o~'fAEx.P~3, the same would have been accepted by _ tghexdefendant and the agreement would have sustained. if 'i.V"'Th.erefore even though in terms of Ex.P-3 the defendant has agreed to accept the said amount, that by itself would not entitle the suit of the plaintiff to be decreed. The _23_.
plaintiff having failed to tender the advance amount inspite of E)<.P--3 being issued to him therefore would disentitle him to the decree sought. Hence E><.P--3 by itself:-wo.uld not entitle the plaintiff to obtain a decree.---..':;Fhe.é.:a'p'pe§|_aate'» Court was therefore justified inv.reversin--g the trial Court. The second sublstaintial qluest-ion«. accordingly answered.
'''''contended that there was sufficientamourit-i..i:n't»the__account of the plaintiff to show his capacityllttgi perfo__rrr:_ contract. It was contended that Cheque faulty and there is no reason for its ' ;.d'ishAovn4ou'r';-.that the signature was not in accordance with "law" avndivfthel plaintiff being a Doctor could not have comrriitted such a minor error. Therefore in view of the Aiynonrproduction of the cheque by the defendant, the 'contention of the plaintiff requires to be accepted. 2%
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23. The reasons for non--compliance of thevierms of the contract would not be germane to of specific performance sought for. Even urged by the plaintiff are accepted',"the sAam.e:xw'o:JVid--.hotbed T. sufficient to hold that the reason's.__afi'"e_suffici_en~t.to 'c--oi'i.do'ne the non--compliance of the"v--.te".<ms of--.conltract';:T"The facts would disclose, as h'el_d by"t"ri'ec_:'first._app'eliate7Court, that there has been non--c'orripi§ai-ncei'w_i.th-- to Clause(1) of the agreer_nent.*_-. Thee rfleasonsjv-_fo'r"j'non--compliance are therefore' a_VVA3reiev:a~nt factor at all. When the plaintiff claims that he :_ev_er"ready and willing to perform his part the V-r,oVn't'ract nothing prevented him from ensuring j"s~a_i_d demand draft reaches the defendant. On the was pleaded before the Court below that a meet_in'g-ffwas arranged in the office of the Advocate .. Vcwhercefn the old cheque was sought to be handed back to if plaintiff and only then the demand draft was sought to be handed over to the defendant. The claim of the plaintiff wouid be difficult to accept. If the piaintiff was honest in fat» -25- contract, the demand draft as prepared by him won.-i--l__cl have been handed over to the defendant. When.V:'b:opth"'»v.the parties were in constant communication,-If:they.V:"d'i'dfhoAt» require the office of a lawyer for"th'e« pun':pose:Alof_ 'the' j demand d raft. Even otherw'i«s_ei,««_lV the ll"rece.i pt "
dishonoured cheque was aizsoliutelyt of 'no "con-sequence to the plaintiff, since:"..the 'Vb'e_i.'ng fidishonoured the question of the defendant' person misusing the said cheque-.woiuld: not iarise.._VV 'Hence, on this ground also.:I find A'ri"oerr=or well considered order of the first appellate' ,Cou~rt. appellate Court has therefore rig'h't!y come t_o'the"'conciusion that the condition precedent .EE'>'«".;"l-"--:V%il"«._t;eing fulfilled, has rightly dismissed the suit V thefp.iVain.ti.f--f'.
It is therefore clear that the plaintiff has mis~era;blvy faiied to prove his case. The suit of the plaintiff been rightly rejected.
r/«-
....25..,
25. In view of the answers to questions of law, the appeal wonlpd conseq»uen.t:|ys:hayeflfio fail. The appeai is dismissed.