JUDGMENT Pradeep Nandrajog, J. 1. The appellant had invoked a bank guarantee in sum of Rs.53,74,667/- which had been furnished by the respondent’s banker at the instance of the respondent; being required to do so as a condition of the contract under which the respondent was acting as the stockist for a weekly lottery scheme launched by the appellant. While invoking the bank guarantee the appellant had quantified the demand as under:- i) Difference on royalty upto 33rd Draw Rs.16,62,668/- ii) Interest on dues of royalty Rs.1,06,183/- iii) Amount of dishonoured cheques Rs.29,75,900/- iv) Interest on amount of dishonoured cheques Rs.95,852/- v) 10% penalty on royalty of Rs.1,78,202/- from 35th to 52nd draw Rs.3,20,764/- vi) Cost of 54,000 tickets of Baishakhi Bumper Rs.2,13,300/- Rs.53,74,667/- 2. Respondent filed a suit against the appellant seeking decree in sum of Rs.21,41,145/-, pleading in two paragraphs both numbered as 20 as under:- “20. That the plaintiff states that there is no question of any difference in royalty upto 34th draw inasmuch as royalty was fixed @ Rs.1,29,300/- per week as is clear from Annexure-B and the said royalty was paid and this amount is included in the dishonoured cheques of Rs.29,75,900/- referred to in item No.(iii) above. Since, no difference of royalty was payable upto 34th draw, there is no question of making any payment on interest in respect of items (i) as claimed in item (ii) above, this amount of Rs.29,75,900/- is payable by the defendant. As regards interest on dishonoured cheques amount to Rs.95,852/-, it is stated that there was no agreement for payment of any interest and further defendant has not charged any interest from other stockists in respect of dishonoured cheques. As regards item (v) it is stated that the total penalty payable is Rs.4,87,030/- which has been worked out in para 17 above and the said amount was payable by the plaintiff. As regards item (vi) it is stated that the plaintiff never conducted Baishakhi Bumper or did not purchase any ticket from the defendant in respect of Baishakhi Bumper which was conducted by another stockist and not by the plaintiff. Therefore, no amount of Rs.2,13,300/- is payable by the plaintiff on this account. Thus, the total amount payable by the plaintiff was Rs.34,62,930/- and the defendant already received a payment of Rs.53,74,667/- against the said amount by invoking the bank guarantee from Canara Bank, Bombay. 20. Therefore, no amount of Rs.2,13,300/- is payable by the plaintiff on this account. Thus, the total amount payable by the plaintiff was Rs.34,62,930/- and the defendant already received a payment of Rs.53,74,667/- against the said amount by invoking the bank guarantee from Canara Bank, Bombay. 20. That the amount payable by the plaintiff to the defendant was amount of dishonoured cheques of Rs.29,75,900/-and 10% penalty i.e. Rs.2,4,87,030/- that means total of Rs.34,62,930/- and the defendant invoked the bank guarantee of plaintiff for the amount of Rs.53,74,667/-. Thus, the defendant has illegally enriched itself to the tune of Rs.19,11,737/- and this amount the defendant is liable to pay to the plaintiff.” 3. The sum prayed to be decreed was thus Rs.19,11,737/- + pre-suit interest calculated at Rs.2,29,408/-. 4. Needless to state the appellant denied the case pleaded by the respondent. 5. From the disputed pleadings it is apparent that two questions of fact arose for consideration. The first was whether difference in royalty up to 33rd draw in sum of Rs.16,62,668/- was payable, which subsumed the issue whether royalty was only Rs.1,29,300/- per week. The second was whether the dishonoured cheque in sum of Rs.29,75,900/-included the royalty sum payable per week up to the 34th draw. 6. Both issues aforenoted have been decided by the learned Single Judge under issue No.2 which reads : ‘Whether the plaintiff committed breach of the agreement to give minimum turnover of Rs.21.50 crores @ 4.31% with guaranteed profit of Rs.92,66,500/- per annum in terms of Ex.D-2? If so, to what effect? OPD’ The reasoning is as under:- “31. As regards this issue, a bare glance at document Exhibit D-1, which is the tender dated 19.12.1990 submitted by the plaintiff with the defendant for running the “Bhagyanidhi Weekly Lottery” and is an admitted document, shows that Column No.10 captioned “Minimum Annual Turnover Offered” and Column No.12 captioned “Absolute Assured Profit on Turnover” were left blank by the plaintiff. The version of the defendant that in the circumstances, the plaintiff was required to spell out the “Minimum Annual Turnover” and also the “Minimum Assured Profit” on such turnover, therefore, appears to be perfectly plausible. The version of the defendant that in the circumstances, the plaintiff was required to spell out the “Minimum Annual Turnover” and also the “Minimum Assured Profit” on such turnover, therefore, appears to be perfectly plausible. This also stands corroborated by the fact that the plaintiff firm vide its letter dated 21st December, 1990 (Exhibit D-2), offered the minimum annual turnover of Rs.21.50 crores at 4.31% with guaranteed profit of Rs.92,66,500/- (Rupees Ninety Two Lakh Sixty Six Thousand and Five Hundred only) per annum, stating: “This offer is final”. Yet again, letter dated 26th December, 1990, which is the letter of acceptance of the tender of the plaintiff firm and is also an admitted document, specifically corroborates the version of the defendants, in that, the said letter unequivocally states that the acceptance of the tender is on the following terms and conditions: “1) Minimum annual turnover : 21.5 crores 2) Rate of profit offered : 4.31% 3) Assured profit on turnover : Rs.92,66,500/- per annum” In the penultimate paragraph, it is further stated: “Your letter dated 21.12.90 will form the part of the agreement.” 32. In view of the aforesaid, in my opinion, it does not lie in the mouth of the plaintiff to now contend that the letter dated 21.12.1990 (the contents of which have nowhere been disputed by the defendants) was not part of the agreement between the parties. More so, as the plaintiff by its own letter dated 17th May, 1991 (Exhibit D-3) categorically admitted that it had given the highest offer of a minimum turnover of Rs.21.50 crores (Rupees Twenty One Crore Fifty Lakh only) presuming that the market trend would remain healthy, and requested the defendant to reduce the minimum turnover from Rs.21.50 crores (Rupees Twenty One Crore Fifty Lakh only) to Rs.15.60 crores (Rupees Fifteen Crore Sixty Lakh only). The plaintiff, in my view, having failed to give the minimum turnover assured by it must be held guilty of breach of the said agreement in terms of Exhibit D-2. This being so, the plaintiff must be held liable in terms of the said agreement to pay the difference of royalty paid provisionally and the royalty assured upto the 34th draw, i.e., Rs.1,78,202/- minus Rs.1,29,300/- = Rs.48,902/- x 34, totaling Rs.16,62,668/-. 33. This being so, the plaintiff must be held liable in terms of the said agreement to pay the difference of royalty paid provisionally and the royalty assured upto the 34th draw, i.e., Rs.1,78,202/- minus Rs.1,29,300/- = Rs.48,902/- x 34, totaling Rs.16,62,668/-. 33. As regards the interest, Clause 17 of the agreement provides for 18% interest per annum on the amount found due from the main stockist in the event of breach of any of the terms and conditions of the agreement by the main stockist. Thus calculated, the interest on the difference of royalty works out to Rs.1,06,183/- (Rupees One Lakh Six Thousand One Hundred and Eighty Three only), which the plaintiff is liable to pay. 34. What now remains to be examined is the plaintiff's contention that this amount of Rs.16,62,668/- (Rupees Sixteen Lakh Sixty Two Thousand Six Hundred and Sixty Eight only) is included in the amount of the dishonoured cheques of Rs.29,75,900/- (Rupees Twenty Nine Lakh Seventy Five Thousand and Nine Hundred only). 35. A look at the evidence adduced by the defendant shows that DW-2, Shri Ajay Kumar Garg, in the course of his cross-examination, was unable to deny that the amount of Rs.16,62,668/- (Rupees Sixteen Lakh Sixty Two Thousand Six Hundred and Sixty Eight only) was included in the amount of the dishonoured cheques. The relevant part of the said evidence is being reproduced hereunder: “Q. Is it correct to say that your claim for difference in royalty was included in the amounts of the dishonoured cheques as referred in EX.DW2/D-6? A. As far as I remember, it was not. Q. Is your reply to the above question reflected in any of the documents on the record of this case specially EXDW2/D-6? A. It is on record but I have to check it out. Further cross-examination is deferred. Xxxx By Sh. Amit P. Deshpandey, Counsel for Plaintiff I have not checked out whether the amount on account of difference in royalty is included in the amount of the dishonoured cheques as mentioned in Ex.DW-2/2/D6. I do not remember if Ex.PW-1/D3 is the last communication with the plaintiff on my part. It is wrong to suggest that plaintiff had made the payment of Rs.17,70,000/- to the DDA during 29/08/1991 to 20/09/1991........” 36. I do not remember if Ex.PW-1/D3 is the last communication with the plaintiff on my part. It is wrong to suggest that plaintiff had made the payment of Rs.17,70,000/- to the DDA during 29/08/1991 to 20/09/1991........” 36. In the light of the above cross-examination of DW- 2, in my view, the plaintiff's contention that the amount of the dishonoured cheques included the difference in the royalty amount to the extent of Rs.16,62,668/- (Rupees Sixteen Lakh Sixty Two Thousand Six Hundred and Sixty Eight only), being claimed by the defendant, must be upheld. The plaintiff, not having disputed that the amount of Rs.29,75,900/- (Rupees Twenty Nine Lakh Seventy Five Thousand and Nine Hundred only) was the amount payable by it on account of dishonoured cheques (inclusive of the sum of Rs.16,62,668/-), the defendant must be held entitled to receive the said amount. The amount of other dishonoured cheques excluding the dishonoured cheques of Rs.16,62,668/-, thus, works out to Rs.13,13,232/- (Rupees Thirteen Lakh Thirteen Thousand Two Hundred and Thirty Two only), i.e. (Rs.29,75,900 minus Rs.16,62,668).” 7. From a perusal of the reasoning of the learned Single Judge in paragraph 31 and 32 of the impugned decision it is apparent that the finding returned is that the respondent’s stand that it was liable to pay royalty only in sum of Rs.1,29,300/- per week was incorrect. The learned Single Judge has held that the royalty payable per week was Rs.1,78,202/- and since royalty in sum of Rs.1,29,300/- per week was concededly paid the difference i.e. Rs.48,902/-was payable. Since the period spanned 34 weeks, the learned Single Judge has found that towards royalty the respondent was liable to pay Rs.16,62,668/-. 8. We highlight at this stage that said finding has not been challenged by the respondent. No cross objections have been filed. No counter appeal has been filed. 9. The learned Single Judge has held, in paragraph 33, that as per clause 17 of the agreement between the parties interest @ 18% per annum was payable on outstanding amount the interest element would be Rs.1,06,183/- on the sum of Rs.16,62,668/-; which finding has attained finality. 10. Proceeding to discuss whether the dishonoured cheque in sum of Rs.29,75,900/- included the royalty sum payable, the learned Single Judge has held that it did. 11. Accordingly, suit filed by the respondent has been decreed in sum of Rs.16,62,668/-. 12. 10. Proceeding to discuss whether the dishonoured cheque in sum of Rs.29,75,900/- included the royalty sum payable, the learned Single Judge has held that it did. 11. Accordingly, suit filed by the respondent has been decreed in sum of Rs.16,62,668/-. 12. The reasoning of the learned Single Judge, evidenced by paragraphs 35 and 36, is a non-satisfactory answer given by Ajay Kumar Garg DW-2 on the subject whether the difference in the royalty was reflected in the sum of Rs.29,75,900/-. 13. The reasoning of the learned Single Judge is legally incorrect for the reason it is premised on the presumption that the onus was on the appellant. It is trite that he who asserts must prove the assertion and thus the onus is in the positive and never the negative. 14. Besides, the fundamental error of fact committed by the learned Single Judge is that on the subject of royalty, two issues of fact were arising. The first was whether royalty was payable only in sum of Rs.1,29,300/- per week or whether the royalty was to be paid in sum of Rs.1,78,202/- per week. The second was whether the dishonoured cheque in sum of Rs.29,75,900/- included the royalty payable. 15. Now, it is apparent that since the respondent was disputing liability to pay royalty in sum of Rs.1,78,202/- per week and was admitting liability to pay only Rs.1,29,300/- per week towards royalty, it would be apparent that the dishonoured cheque in sum of Rs.29,75,900/- would include the admitted royalty liability accepted in sum of Rs.1,29,300/- per week for 34 weeks and no more. Since part payments towards royalty were being made from time to time, it would be apparent that the cheque sum would include the balance royalty calculated @ Rs.1,29,300/- per week for the balance weeks. Under no circumstances would the cheque sum include the difference in the assured liability fastened by the learned Single Judge. 16. In fact, respondent’s pleading in the first paragraph numbered as 20 would show that it is the case of the respondent that the dishonoured cheque included balance royalty up to the 34th draw calculated @ Rs.1,29,300/- per week. It was never the case of the respondent that it included royalty in sum of Rs.1,78,202/- per week. 16. In fact, respondent’s pleading in the first paragraph numbered as 20 would show that it is the case of the respondent that the dishonoured cheque included balance royalty up to the 34th draw calculated @ Rs.1,29,300/- per week. It was never the case of the respondent that it included royalty in sum of Rs.1,78,202/- per week. Indeed, this could never be respondent’s pleading because the stand of the respondent was that under the contract its liability to pay royalty per week was only Rs.1,29,300/-. 17. Since on the evidence led, keeping in view the pleadings of the parties, we are of the opinion that the impugned decree is liable to be set aside, we do not decide CM No.9723/2012 and dispose it of as infructuous highlighting that vide said civil miscellaneous application the appellant wants to lead additional evidence to prove the statement of account with reference to correspondence exchanged and bring out that difference in the royalty amount was not included in the dishonoured cheque. 18. The appeal is allowed. The impugned decree dated August 24, 2009 is set aside. Suit filed by the respondent is dismissed. 19. Parties shall bear their own costs all throughout. Appeal is allowed.