Chunnilal Radheshyam (M/s.) vs Dinesh Kumar Jaiswal

T.P. Sharma, J.

By this First Appeal u/s 96 of the Code of Civil Procedure, 1908 (for short ''CPC''), the appellant/defendant has challenged the legality and propriety of the judgment & decree dated 7.2.1992 passed by the District Judge, Ambikapur in Civil Suit No. 5B/1990 whereby the District Judge has decreed the money suit for recovery of Rs. 3,61,085.31 along with interest of Rs. 1,22,125/-.

The present appellant has valued the appeal at Rs. 1,64,562.36 on the ground that he has admitted rest of the claim and interim order dated 31.01.91 has been passed by the District Judge relating to Rs. 3,18,647.95, therefore, he is not required to value the appeal a per judgment and decree of the trial Court and is also not required to pay Court-fees. Record of the trial Court reveals that on the basis of partial admission of the appellant, interim order relating to entitlement of the aforesaid Rs. 3,18,647.95 has been passed by the trial Court, therefore, the appellant has rightly valued the appeal and has rightly paid the Court-fees.

Brief facts necessary for disposal of this appeal are that the respondent is owner of certain dumpers and he was carrying the business of coal transportation. The appellant and the respondent entered into an agreement for transportation of coal. The appellant agreed to pay Rs. 13.50 per tonne for transportation of coal. As agreed, the respondent has transported coal and finally Rs. 3,61,085.31 was remained for payment against the appellant to the respondent. The appellant has failed to pay the aforesaid amount, therefore, suit for recovery of such amount along with annual interest of 12% per annum was filed before the trial Court. By filing written statement, the appellant has substantially admitted the agreement for transportation of coal but has denied the rate and has alleged that Rs. 12.70 per tonne was agreed between both the parties, therefore, the respondent is only entitled for the amount to the extent of Rs. 12.70 per tonne. Likewise, the respondent is not entitled for any interest. After affording opportunity of hearing to the parties the District Judge has decreed the suit and also passed the interim order.

I have heard learned counsel for the parties, perused the judgment and decree and record of the trial Court.

Learned counsel for the appellant vehemently argued that both the parties entered into oral agreement, therefore, the respondent/plaintiff was under obligation to prove the terms of oral agreement by adducing sufficient evidence, but he has not examined any witness relating to rate except himself, his evidence is not reliable. The trial Court without considering the evidence of Radheshyam Khedia (DW-1) well corroborated by other evidence has decreed the suit in terms of evidence of the respondent/plaintiff and thereby committed illegality.

On the other hand, learned counsel for the respondent opposed the appeal and argued that evidence of appellant/defendant and its pleading are self-contradictory, therefore, in the absence of any prima facie material against the evidence of the respondent, the trial Court has rightly relied upon the evidence of the respondent supported by his accounts book.

The only question for determination in the appeal is rate for transportation and entitlement or liability of payment of interest. Both the parties have led evidence. As per evidence of respondent/plaintiff Dinesh Kumar Jaiswal, rate was Rs. 13.50 per tonne and not Rs. 12.70 per tonne. Per contra, defence witness Radheshyam Khedia (DW-1) has deposed in para 3 of his evidence that rate was Rs. 12.50 per tonne. In para 8, he has specifically deposed that rate was not Rs. 13.50 per tonne. In para 12 of his cross-examination he has denied the rate as Rs. 12.70 per tonne and has specifically deposed that it was wrongly written in his written statement. He has further deposed that he used to maintain accounts and has denied the suggestion that because in his accounts book rate has been written as Rs. 13.50, therefore, he has not filed copy of the accounts book. In his written statement, the appellant has mentioned the rate as Rs. 12.70 per tonne. The respondent has examined himself as PW-1 on 5-8-91, he was cross-examined by the appellant, in which it has been suggested that rate was Rs. 12.70. After lapse of three months when the appellant has examined Radheshyam Khedia (DW-1), on that day he has deposed that rate was Rs. 12.50 per tonne and not Rs. 12.70. He has further admitted that he has wrongly written rate as Rs. 12.70 in his written statement, but the appellant has not amended its pleading relating to such mistake even after examination of witness Radheshyam Kheaia (DW-1). In its written statement, the appellant has mentioned the rate as Rs. 12.70 per tonne. While examining the plaintiff''s witness, the present appellant has taken the same defence and has suggested the rate as Rs. 12.70 per tonne but on 28-01-92 after three months the appellant has deposed the rate as Rs. 12.50 per tonne. He has also admitted that he has written the same in his accounts book but reason best known to the appellant, he has not filed such account, inter alia, the respondent has filed copy of accounts book Ex. D\\4 which he was maintaining.

In the light of contradictory evidence, pleading of the appellant, with a view to clarify any mistake, the appellant was under obligation to produce account book containing rate Rs. 12.50, but reason best known to the appellant, the appellant has failed to produce such document. In these circumstances, in accordance with Illustration (g) of Section 114 of the Evidence Act, it may be presumed that the evidence which could be and is not produced would, if produced, be unfavourable to the appellant who holds it and would be adverse against the appellant. In these circumstances, the only evidence of the respondent/plaintiff was available for consideration, although there is clear discrepancy relating to place of ''the contract, but there is no discrepancy relating to terms of the contract. The trial Court has considered un-impeached evidence relating to terms of the contract and arrived at a finding that rate was Rs. 13.50 per tonne. While arriving at a finding, the District Judge has not committed any illegality.

As regards the question of interest, definitely this is commercial transaction and even in the absence of any specific terms, the appellant was under obligation to pay interest at least at the rate applicable to commercial transaction.

In the absence of ground for retention of money of huge amount, the trial Court has awarded annual interest of Rs. 12% per annum which is neither excessive nor unjust.

Consequently, I do not find any merit in the appeal. The appeal deserves to be dismissed and it is hereby dismissed. The appellant is entitled for adjustment of the amount if already paid under interim order. The appellant shall bear its own cost and cost of the respondent.

Advocate fee as per schedule.

A decree be drawn accordingly.