Hem Kund Bus Service Pvt. Ltd. vs Suresh Motor Car Company

Ashok Bhan, J.—This judgment shall dispose of two R.F. As No. 1997 of 1978 and R.F.A. No. 331 of 1979 arising out of the same judgment R.F.A. No. 1997 of 1978. is defendant''s appeal challenging the judgment and decree of the trial court dated 3.11.1978 by which the suit of the plaintiff-respondent was decreed to the extent of Rs. 22,667.78 with proportionate costs. The facts giving rise to the present appeal are as under:

Plaintiff-respondent brought the present suit against Hem Kund Bus Service Private Limited defendant-appellant for the recovery of Rs. 38,000/ - as the price of goods sold by the plaintiff to the defendants from time to time. Defendants had been purchasing spare parts and other accessories for their buses on credit from the plaintiff-respondent themselves or through the employees of the company. Between the period commencing from 13.9.1973 to 10.4.1974 accessories worth Rs. 39,341.88 were old by the plaintiff-respondent to the defendant-appellants. It was alleged that at the time of sale the credit bills were prepared which were signed by one or the other person connected with the defendant. It was alleged that the defendant company paid a sum of Rs. 6,939.78 to the plaintiff during the period from April 18, 1974 to July 16, 1974 leaving the balance of Rs. 32,402.10; adding Rs. 5,579.90 as interest thereupon @ 12% per annum upon that amount till the filing of the suit, the plaintiff filed the present suit for recovery of Rs. 38,000/ - as rounded of figure. Plaintiff allege that the defendants were approached several times to make the payment of the amount due, but defendants failed to do so and hence the present suit.

Defendants contested the suit and pleaded that the suit was bad for mis-joinder of parties and causes of action. It was denied that the plaintiff was a registered firm; plea of limitation was also taken. On merits, it was stated that the accounts of the plaintiff''s firm were fictitious and that the defendants were not liable to pay the amount claimed by the plaintiff in the suit. Replication to the written statement was filed in which the facts already stated in the plaint were reiterated.

On the basis of pleadings of the parties, the trial court framed the following issues:

Whether the plaintiff is a registered firm under the Indian Partnership Act? OPP

Whether Suresh Chand Jain is a partner of the plaintiff firm and is competent to sue? OPP

Whether Jaswant Singh Grewal and Gurdev Singh defendants respectively are the Managing Director and Director Incharge of the defendant No. 1?. If not so, its effect? OPP

Whether during the period from 13.9.1973 to 10.7.1974 the defendants either through other partners or employees of defendant No. 1 purchased goods on credit from the plaintiff firm and if so, of what value? OPP

To what interest, if any, the plaintiffs are entitled to recover from the defendants? OPP

Whether the suit is bad for mis-joinder of parties and causes of action? OPD

Whether the suit is barred by time? OPD

Whether the suit has not been filed against the proper person? If so, its effect? OPD

Whether the defendants are entitled to special costs u/s 35A Code of Civil Procedure? OPD

Relief

After recording evidence and hearing learned Counsel for the parties, the trial court decided issues Nos. 1, 2, 3 and 6 to 9 in favour of the plaintiff and against the defendant. Issue No. 4, was partly decided in favour of the plaintiff and partly against it and it was held that the plaintiff would be entitled to recover a sum of Rs. 22,667.78 on account of sale price and not Rs. 38,000/ - as claimed by it. Under Issue No. 5; it was held that the plaintiff would not be entitled to any interest. Consequently, the suit was partly decreed for Rs. 22,667.78. Aggrieved against the said order plaintiff as well as defendants have come up in appeal before this Court.

Learned Counsel appearing for the respondents in R.F.A. No. 1997 of 1978 has challenged the finding of the trial court on Issue No. 4 only. Plaintiff-respondent in order to prove its case placed on record the carbon copies of the credit bills Exhibits P1 to P304. The trial court held that document''s Exhibits P1 to P103, Exs.P106 to P146 and Exs.P238 to P256 stands proved whereas the documents Exhibits P147 to P231 and Exs.P257 to P304 were not duly proved. It was held that the plaintiff-respondent was successful in proving that it sold spare parts/accessories to the defendants'' company on different dates during the period of 1973-74 on credit through bills Exhibits P1 to P103, Exs.P196 to P231 and P238 to P304 amounting to Rs. 29607.56 out of which Rs. 6,939.38 had been paid by the defendants company and consequently, the suit was decreed to the extent of Rs. 22,667.78. Learned Counsel for the appellant has challenged the findings of the trial court on this issue and argued that original bills had not been produced by the plaintiffs and only carbon copies of the bills were produced which are not admissible in evidence. Under Sections 65 and 66 of the Indian Evidence Act (hereinafter referred to as the Act). I do not find and substance in the argument of learned Counsel. Plaintiff had produced carbon copies of the original bills which had been prepared in the same process. The original bills had been delivered to the defendant company and the same being in its custody could not have been produced in evidence by the plaintiff-respondent, as the plaintiff-respondent were not in possession of the original bills. u/s 65 of the Act, secondary evidence may be given of the existence, condition or contents of document which the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved. Section 66 of the Act provides that secondary evidence of the contents of documents referred to in Section 65(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, such notice to produce the same. Learned Counsel for the appellant argued that since no notice u/s 66 of the Act had been issued to the defendant-appellants to produce the original, secondary evidence which had been filed by the plaintiff by producing carbon copies of the original bill cannot be taken into consideration. I do not find any substance in this submission either. Clause 2 of Section 66 provides that such notice shall not be required in order to render secondary evidence admissible when from the nature of the case, the first party knows that it, is he who will be required to produce it. In this particular case, the defendant being in possession of the original vouchers were in the knowledge that they would be required to produce the same which they failed to do so. In this view of the matter, plaintiffs were within its right to prove the supply of goods on credit by producing the carbon copies of the credit bills.

It has been admitted by the defendants in their written statement that they had business dealings with the plaintiff''s firm. The documents. Exhibits D16 and D17 themselves show that on 31.12.1974, there was an outstanding amount of Rs. 8,607.55 and on 31.12.1973, there was an outstanding amount of Rs. 12,007.55 against the defendant company and due to the plaintiff''s firm; defendant-appellants failed to furnish the details of accounts in regard to the purchase made by them from the plaintiff. They have not produced their books of accounts. Plaintiff in para 4 of the plaint, which is reproduced below had given the details of the credit bills to the defendants as well as the bills received by it:

That defendants purchased on credit goods (spare parts and other accessories of Buses) worth Rs. 39,341.88 paise for the plaintiff within a period commencing from 13.9.1973 to 10.7.1974. The bills and the challanmemos vide which the goods have been purchased are duly signed by the partners of the defendant company or the employees of the defendant company who purchased the goods on behalf of the defendants. The details of credit sales and the amounts received during the year 1973-74 and 1974-75 are as under:

Year 1973-74 (From 13.9.1973 to 31.3.1974)

Credit Sales Rs. 25,686.48

Amount received Rs. 2,000.00

Balance as on 31.3.1974 Rs. 23,686.48

Year 1974-75 (From 1.4.1974 to 10.7.1974)

Last balance Rs. 23,686.48

Further credit sales Rs. 13,655.40

Total Rs. 37,341.88

Amount received Rs. 4,939.78

Balance Rs. 32,402.10

The list of bills with dates and amount of prices are attached herewith. The carbon copies of the bills, challan memos will be produced later on. Original bills were being given to the defendants.

Reply to para 4 of the plaint is given by the defendants in para 10 of the written statement which is totally vague and is reproduced below:

That para No. 4 of the plaint is denied. If any vouchers have been got signed by the alleged partners and employees, the company is not liable as they had no authority. There is no voucher signed, by the authorised person of the Company Hemkund Bus Service (P) Limited. If the plaintiff has connived with any outgoing partner and has got signed any voucher by that outgoing partner or employee the company is not responsible. Accounts are fictitious one.

From a perusal of para 4 of the plaint and reply filed by the defendant-appellants, it is clear that plaintiff had given the details of the amount due to them from the defendants and had also produced their books of account. As compared to this, the reply of the defendants is totally vague and non-committal. They have also failed to produce their books of accounts. The trial court was thus justified in coming to the conclusion that the plaintiffs were entitled to recover a sum of Rs. 22,667.78.

Learned Counsel for the plaintiff-appellant in R.F.A. No. 331 of 1979 has argued that the trial court had wrongly discarded the evidence of credit bills Exhibits P147 to P231 and Exhibits P257 to P304. 1 do not find any substance in this submission. Plaintiff has failed to prove the execution of these bills and there is no evidence on the file to show that the articles mentioned in these bills were actually sold to the defendant-company. The trial court ''rightly came to the conclusion that the plaintiff had foiled to prove that any articles were sold to the defendant-company through bills Exhibits P147 to P231 and Exs.P257 to P304. Finding of the trial court on issue No. 4, is, therefore, affirmed.

Learned Counsel for the plaintiff-appellant, in R.F.A. No. 331 of 1979 has assailed the finding of the trial court on Issue No. 5 as well as the claim that plaintiff was entitled to 12% interest on the outstanding amount. 1 do not find any substance in this submission either. Plaintiff has failed to show from the evidence that there was any agreement regarding the payment of interest at first place and then rate of interest in case of delayed payments of goods which were supplied on credit. Trial court rightly came to the conclusion that the plaintiff was not entitled to any interest on such amount.

For the reasons recorded above, the appeal filed by the defendants as well as by the plaintiff fail and are dismissed with no order as to costs.