Ganesha Mal Nanak Chand vs Chhinder Kaur

Paramjit Singh Patwalia, J.—This regular second appeal is directed against the judgment and decree dated 20.01.2010 passed by learned Additional Civil Judge (Sr. Divn.), Dabwali whereby suit for recovery filed by plaintiff-appellant has been dismissed and against the judgment and decree dated 27.01.2012 passed by learned Additional District Judge, Fast Track Court, Sirsa whereby appeal preferred by appellant-plaintiff has also been dismissed. For convenience sake, reference to parties is being made as per their status in the suit.

The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are to the effect that plaintiff-firm filed suit for recovery of Rs. 2,52,760/- (Rs. 1,51,260/- as principal and Rs. 1,01,500/- as interest) on the basis of account books of plaintiff-firm. It was pleaded that the plaintiff-firm is doing the business of commission agents at Mandi Dabwali and Prem Parkash son of Hans Raj is partner of the said firm. The plaintiff-firm maintains its account books properly in regular course of business and same are produced before the Sales Tax and Income Tax Authorities from time to time. The defendants namely Pardeep Singh, Kuldee Singh and Lakhwinder Singh sons of Avtar Singh used to visit the shop of plaintiff. They agreed to bring their agricultural produce at the shop of the plaintiff for sale and also requested that the account be operated in the name of Pardeep Singh on behalf of all of them. On their request, an account was opened in the name of said Pardeep Singh and all the three brothers borrowed amount from, time to time and on 28.03.2002 Pardeep Singh confirmed balance of Rs. 1,48,000/- and signed in the account book of the plaintiff-firm. It was further pleaded that all the three brothers borrowed money as detailed in para 5 of the plaint and signed the bahi entries of the plaintiff-firm. As per account books, an amount of Rs. 1,51,260/- was outstanding against all the three brothers, which they had not repaid despite demand and legal notice dated 10.04.2003. It was pleaded that said Pardeep Singh has died and defendants No. 1 to 4 are his legal heirs and they are legally bound to pay the amount due against Pardeep Singh. It was also pleaded that all the three brothers also promised to pay interest @ 24% per annum on the amount due and in this manner, the defendants are liable to pay a sum of Rs. 2,52,760/-. Hence, suit was filed.

Defendants No. 1 and 4 to 6 resisted the suit and filed joint Written statement taking preliminary objections of maintainability, hats standi, concealment of facts and limitation. On merits, it was pleaded that Prem Parkash was not competent to file suit on behalf of the plaintiff-firm and the firm does not maintain its account books regularly. It was further pleaded that amount shown in the ''bahi'' of the plaintiff-firm was false and fabricated one and that Pardeep Singh had opened account with the firm acting as agent of his father Avtar Singh and his other brothers Lakhwinder Singh and Kuldeep Singh used to sell the produce on behalf of their father, who had opened the account and used to operate the same and all the three brothers never requested the plaintiff-firm to advance money nor they confirmed any balance amount outstanding in the name of Pardeep Singh nor they agreed for payment of interest @ 2% per month. It was also pleaded that one account was opened by Avtar Singh but the plaintiff while manipulating the account books had filed two suits against the defendants, therefore, suit was barred under Order 2 Rule 2 CPC. Other averments in plaint were denied.

Defendants No. 2 and 3 also resisted the suit and adopted written statement filed by defendants No. 1 and 4 to 6.

Replication was filed by the plaintiff controverting the averments made in written statement and reiterating the plea taken in plaint. On the basis of pleadings of parties, the Court of first instance framed following issues:

"1. Whether the plaintiff firm is entitled to recover a sum of Rs. 2,52,760/- along with interest as alleged? OPP

Whether the suit is not maintainable? OPD

Whether the suit is time barred? OPD

Relief."

After appreciating the evidence, the Court of first instance dismissed the suit. Feeling aggrieved, the plaintiff preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this second appeal.

I have heard learned counsel for the appellant and perused the record.

Learned counsel for the appellant has referred to following substantial questions of law formulated in the grounds of appeal for consideration by this Court:

(i) Whether the courts below have completely erred in disbelieving the entry of Rs. 1,48,500/- dated 28.03.2002 when the same is duly signed by Pardeep Singh and it is proved by the statement of the scribe of the bahi and the handwriting expert?

(ii) Whether there is any contradiction in terming any entry of dated 28.03.2002 as opening balance or the first entry in the account?

(iii) Whether the bahi entries which are duly signed by the farmer, which have been proved by the scribe of the bahi entries and the report of the handwriting expert amounts to a complete evidence in terms of Section 34 of the Evidence Act?

(iv) Whether the mere denial of the defendants can be used to defeat the presumption in favour of the regular book of account maintained by a commission agent which are duly corroborated by other evidence?

(e) Whether the courts below have completely misread the evidence on record to record a perverse finding on facts?

Learned counsel for the appellant has contended that both the courts below have misread the evidence and findings of both the courts below are based on surmises and conjectures. The bahi entries of the plaintiff being maintained in the regular course of business are admissible in law as evidence.

I have considered the contentions raised by learned counsel for the appellant.

It is the case of the plaintiff that the defendants were having dealing with the plaintiff-firm and borrowed the amount which was entered in ''bahi'' of the plaintiff-firm. Undoubtedly, as per Section 34 of the Evidence Act, 1872, entries in account books regularly kept in course of business are relevant, but are not by themselves sufficient to charge any person with liability. Unless it qualifies to be a ''bond'' or a ''negotiable instrument'', bahi entry/account book cannot form the sole basis of action of recovery. In RSA No. 1892 of 1986, titled Dhup Singh v. Pheru and others'', decided on 09.01.2014, this Court has extensively dealt with the legal effects and value of an entry in bahi/account book. In the instant case, the plaintiff-firm has failed to prove the transaction of loan. Mere entries in account books are not sufficient to charge any person with liability when same are not corroborated.

Both the courts below have recorded concurrent finding that in one suit, the plaintiff impleaded Pardeep Singh and in other suit for the same cause of action, his other two brothers namely Lakhinder Singh and Kuldeep Singh have been impleaded as party. It has also been rightly recorded that some of the entries are common in both the suits relating to these defendants which goes to show that the plaintiff-firm is not property maintaining its account books because it is not possible that a person would borrow same money amount from the plaintiff-firm on the same day. In fact, same amount has been shown in both the suits. It has also been rightly recorded that no previous balance was confirmed by Pardeep Singh on 28.03.2002. The plaintiff-firm did not produce its ''bahi'' entries at the time of filing of suit which fact has been admitted by the partner of the plaintiff-firm in his cross-examination.

Both the courts below have also rightly recorded that the plaintiff-firm has also shown the same amount in the account of defendants-Lakhwinder Singh and his brother as is evident from the copy of plaint of other suit (Ex. D-32) which also proves the version of the defendants that fabricated entries have been made by the plaintiff in its account books. The plaintiff-firm has also not led any evidence to show whether entries shown in Ex. D-1 to D-31 relates to Avtar Singh, father of defendants-Lakhwinder Singh and Kuldeep Singh, brothers of Pardeep Singh or to some other Avtar Singh. Learned counsel for the appellant could not show that the said findings are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. Consequently, concurrent findings of fact recorded by both the courts below do not warrant interference in regular second appeal. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal.

No other point has been urged.

Dismissed.

No order as to costs.