Chandi Ram Deka vs Jamini Kanta Deka

Ram Labhaya, J.—This is an appeal from the judgment and decree of the Court of the Political Officer, Miami Hills. Sidiya dated 4th January 1950. The decree was in a suit for recovery of Rs. 2,878-9-0. The claim was baaed on hand notes . The sum decreed was Rs. 700 with proportionate costs.

Plaintiff has appealed. The case for the plaintiff was that defendant borrowed different sums on three different dates. The total amount borrowed was Rs. 2000. The amount was not repaid on demand. He claimed Rs. 2000, principal, and the rest as interest calculated at the rate of 2 percent plus an item of Rs. 2-9-0 as the casts of the notice.

Defendant''s main plea was that a sum of Rs. 1625 had been paid back. This consisted of 4 items paid on different dates during the months of March, April and May 1947. He admitted his liability to pay interest at Court rate. The political Officer came to the conclusion that the plea of repayment to the extent of Rs. 1625 had been substantiated by the evidence given by defendant. He, therefore, allowed the claim of the plaintiff to the extent of Rs. 700 only which includes interest calculated at the rate of 12 per cent per annum.

It has been urged on behalf of the appellant that the payment of the sum of Rs. 1625 has not been proved and the finding of the Political Officer on this point is unsustainable.

We have only the statement of the defendant on this point. He did not examine any other witnesses. His own statement was that he paid Rs. 600 on 15th March 1947, Rs. 25 on 16th March 1947, Rs. 400 on 3rd April 1947 and Rs. 600 on 29th May 1947. He also deposed that he had entered these payments in his account books which he produced. The entries were marked Exs. A, B, C and D. He further stated that the plaintiff gave him a chit, Ex. E, on the occasion of his last payment, i. e., on 29th May 1947. According to him on that date plaintiff promised to return the hand-notes executed by him in plaintiff''s favour but did not keep his word. Defendant admitted that in-spite of the failure of the plaintiff to return the hand notes, he did not send any notice demanding their return. He did not even assert that a sum of Rs. 1625 had been paid to the plaintiff when he received a notice of demand from him for the entire amount.

The first question is whether the account books relied on by the defendant in support of the plea of repayment can be regarded as relevant. In order to be relevant, they must be kept regularly in the course of business. They must be in conformity with some known system of accounting. The books produced in this case do not fulfil these requirements. They are merely the ledgers of the defendant. They are not supported by any day book or roznamcha. They do not contain entries of transactions as they take place. There is no daily opening or closing balance in the ledger accounts. What has been shown from these books is that there was plaintiff''s account and in that account entries were made. These entries could all have been made on any one day. These books, therefore, cannot be regarded as relevant under S. 34, Evidence Act. The entries in books, therefore, could not be used in evidence. We are still left with the defendant''s statement. We do not think that this statement alone suffices to discharge the burden that was rightly placed on him. In his written statement he suggested that three persons, Bholoka Mahari, Govinda Ram Das and Mohan Chandra Kalita, would be able to throw light on the plea he had raised. He did not examine any one of them in defence. Govinda was, however, examined as a Court witness. He did not support the defendant. Defendant''s own statement, unsupported as it is, cannot be accepted as sufficient proof of the partial discharge of the liability which he has pleaded.

Exhibit E purports to have been executed on 30th May 1947. According to the defendant no sum was paid on this date. The last sum (Rs. 600) was paid on 29th May 1947. The receipt does not bear any signature. It has not been proved to have been executed by the plaintiff. It receives no support from the accounts. There is thus no evidence on the basis of which we would be justified in recording a finding in defendant''s favour that a sum of Rs. 1625, alleged to have been paid, was actually paid to the plaintiff. The liability to pay the entire sum therefore remains. Defendant has not disputed his liability to pay interest. He has also not questioned the rate at which interest was calculated. The plaintiff, in these circumstances, is entitled to a decree for the principal amount claimed with interest at the rate of 12 per cent per annum, the rate allowed by the Court below.

The appeal is, therefore, allowed. The decree of the trial Court will be modified and plaintiff will be granted a decree for Rs. 2440 with proportionate costs in both the Courts.

Thadani, C.J.

I agree.