Darshan Singh vs Madan Gopal and others

J.V. Gupta, J.—This is Plaintiff''s second appeal, whose suit for the recovery of Rs. 17,844/- as price of the wheat sold, was decreed by the trial Court, but was dismissed in appeal except for the amount of Rs. 978/- which was admitted by the Defendants.

The Plaintiff sold wheat to the Defendants who carried on their business at Focal Point Market, Phuglana, in the months of April and June, 1980. The details of the wheat sold are as under:

On 13-5-1980

= 20 quintals

= Rs. 2331 8O

On 13-5-1980

= 32 quintals

= Rs. 3729 20

3 On 13-5-1980

= 43 quintals

= Rs. 5013 56

4 On 19-5-1980

= 42 quintals and 16 Kgs.

= Rs. 4913.36

On 19-5-1980

= 10 quintals

= Rs. 1170.00

Total

= Rs. 17158 00

It was farther pleaded that Defendants had purchased 10 quintals wheat for their domestic use and that purchase was made on 19th May, 1980, but no price had been paid for the said wheat. The Plaintiff also served a notice, Exhibit P-1, dated 19th May, 1980, but no reply was given thereto. Hence the present suit was filed on 26th July. 1980 for the recovery of the amount alongwith interest at the rate of 12 per cent per annum.

In the written statement, the Defendants admitted the purchase of wheat as detailed above except for the purchase of 10 quintals of wheat alleged to be sold by the Plaintiff on 19th May, 1980. The Defendants farther pleaded that they kept regular account of the payments which were made to the Plaintiff by them on different occasions and a sum of Rs. 978/- remained due from them to the Plaintiff It was denied that the Plaintiff was entitled to claim any interest. As regards the notice, it was pleaded that no reply to the notice was given as after the issue of the notice and delivery of the same, the Plaintiff admitted that it was a false notice. The trial Court found that the Plaintiff was entitled to recover Rs. 17,158/- on account of the wheat sold to the Defendants. It was further held that the Plaintiff was entitled to claim interest at the rate of 12 per cent per annum, and thus a sum of Rs. 686/-, claimed as interest, was also allowed. Consequently, a decree for the recovery of Rs. 17,844/- was granted in favour of the Plaintiff In appeal, the learned Additional District Judge relying upon the entries in the account books maintained by the Defendants, came to the conclusion that no amount was due to the Plaintiff except a sum of Rs. 978/- which the Defendants admitted in their written statement. In view of this finding, the Plaintiff''s suit was dismissed, except for a sum of Rs. 978/-. Dissatisfied with the same, the Plaintiff has filed the second appeal in this Court

The Learned Counsel for the Appellant contended that the trial Court had given cogent reasons for coming to the conclusion that the account books were not regularly maintained by the Plaintiff-firm but that finding has been reversed by the lower appellate Court arbitrarily, and, therefore, the finding is vitiated According to the Learned Counsel, the notice Exhibit P-1, was served upon the Defendants before filing the suit, but no reply was given by them On the other hand, the Learned Counsel for the Defendants submitted that whether the amount has been paid or not is a question of fact and it being a finding of fact could not be interfered in second appeal. In support of his contention, he referred to R. Ramachandran Ayyar Vs. Ramalingam Chettiar, M/s Kulu Transport Cooperative Society Ltd Kulu v. Arora Traders, Gurdaspur Road, Pathankot (1978) 80 P. L. R. 503 and Kaka Ram Sohanlal and Others Vs. Firm Thakar Das Mathra Das and Others,

I have heard the Learned Counsel for the parties and also gone through the case law cited at the bar. Admittedly, the Plaintiff did sell the wheat to the Defendants, and the Defendants were liable to pay this price According to the Defendants, the total price was paid and it was duly entered in their account books, the copies of which had been produced as Exhibit D-1, D-2, D-3, D-4 and D 5. It has also been admitted by the Defendants that the said account books were never produced before any authority, that is, either before the District Food and Civil Supplies, the Market Committee, or before the Markfed authorities. DW-2, Raj Kumar, who is said to be the author of these entries, admitted that these Bahis (account books) are not page marked, and they are not initialled nor were they produced in any of the aforesaid offices. Not only this, this witness further admitted that this account is personal of the Defendants. The specific words appearing in Bahi are "Eh Hisab Assin Ghar Da Rakhya Hai". It was on the basis of this admission of the Defendant Raj Kumar, who is the author of the account books, the trial Court found that these account books do not contain the entries of the account of other parties. If these entries do not relate to the account of other parties, then how can the said entries be said to be in the Bahis regularly maintained in the course of business. According to the trial Court, the entries in the Bahis, which admittedly remained in the possession of the Defendants, could be conveniently made to suit the interest of the Defendants and no authenticity could be attached to these entries. The lower appellate Court while discussing this aspect of the case observed, "This witness also deposed that the original Bahis were not produced before any official authority He also stated in a stray sentence that they have maintained it as their domestic accounts". After making these observations, the lower appellate Court found that the original account-books produced by the Defendants to indicate that the same relate to the account of the Defendant-firm and there is no suggestion whatsoever either to D.W-1 Madan Gopal or to the scribe of the original account, D W. Raj Kumar that the three Bahis account maintained by the Defendants is not regularly kept or that the account-books maintained by the Defendants are defective, or incorrect in any manner. This approach of the lower appellate Court is wholly misconceived, wrong and illegal. It was for the Defendants to prove by producing cogent evidence that the entries in the books of account were regularly made in the course of business. For that purpose, it was necessary for them to prove that the accounts were regularly maintained relating to other persons also. No such evidence was led by the Defendants. Simply because DW Madan Gopal has stated that the accounts were maintained regularly was not sufficient to come to the conclusion that the entries were made in the account books regularly in the course of business. It is the case of the Defendants themselves that a sum of Rs. 10,000/- was paid at one time, but signatures of the Plaintiff were never obtained in the said Bahis. In the ordinary course of business, it could not be believed that when such a huge amount is paid to a party, then his signatures or thumb impression, as the case may be, are not obtained on the record. Under the circumstances, the finding of the lower appellate Court is vitiated and is liable to be set aside. Admittedly, the Plaintiff had sold wheat to the Defendants and is entitled to its dues Mere entries in the account books showing the payment was neither sufficient nor could be believed on the evidence on the record. The finding of the trial Court in this behalf is correct, and the same has been reversed by the lower appellate Court arbitrarily. However, it has been conceded that as regards the sale of 10 quintals of wheat on 19th May, 1980, since it has been found as a fact that there was no proof that it was sold to the Defendants, the Plaintiff was not entitled to the price of the same, amounting to Rs. 1170/- .

As a result of the above discussion, the appeal succeeds and is allowed with costs The judgmeat and decree of the lower appellate Court is set aside and that of the trial Court is restored, except for the amount of Rs. 1170/- Thus, the Plaintiff''s suit stands decreed for a sum of Rs. 16,674/-, instead of Rs. 17,844/- .