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Judgment
Rakesh Kumar Jain, J.—Defendants are in second appeal against judgment and decree of both the learned Courts below whereby suit of the plaintiff for recovery of Rs. 3,29,528/- towards principal along-with interest @ 6% per annum from 6.10.1995 till the date of actual realization has been decreed.
Pleaded case of the parties to the lis is that the plaintiff is dealing in the business of supply of G.P. Sheets/Coils which has been supplying goods to defendant No. 1. on credit through various bills. They had continuous business transaction in which defendant No. 1. has been paying the amount through cheques, drafts and cash. As per case of the plaintiff, it supplied G.P.Sheets/Coils to the defendants vide bill No. 1428 dated 06.10.1995 for a sum of Rs. 3,29,528/-. Receipt of the goods were duly acknowledged on the back of the bill by defendant No. 2. which were supplied through transport. The plaintiff has been maintaining regular books of accounts which are duly audited. All the transactions between the parties have been entered in the ledger and other accounts. The plaintiff had requested the defendants to make the payment, but on their refusal, had to file the suit.
In the written statement, the defendants denied the purchase of G.P.Sheets/Coils by the aforesaid bill and also denied the receipt thereof . It was denied that any receipt or bill was ever signed by defendant No. 2 in token of receipt of goods. It was claimed that the signatures, if any, on the purported bill were result of forgery and fabrication. Thus, it was a case of total denial. From the pleadings of the parties, following issues were framed by the trial Court on 30.9.2002:
Whether the plaintiff is entitled to recover Rs. 3,29,528/- along-with interest ? OPP
Whether the plaintiff is entitled to the future interest ? OPP
Whether the suit is not within limitation ? OPD
Whether the suit is hit by Section 69 of the Partnership Act ? OPD
Whether the plaintiff has got no cause of action to file the present suit ? OPD
Whether this Court has got no jurisdiction to entertain and try the present suit ? OPD
Relief:
Plaintiff examined Naresh Kumar Jain as PW-1, whereas defendants examined Girdhari Lal Sareen as DW-1 and Sudhir Kumar as DW-2, while remaining evidence of the defendants was ordered to be closed by order of the Court dated 10.1.2007.
Interestingly, none of the partners of the defendants'' firm appeared in the witness box.
Learned trial Court dismissed the suit. In appeal learned First Appellate Court after considering the documents available on record gave the following findings:
I have given a careful thought to these submission of the learned Counsels. As per pure and simple case of the plaintiff/respondent Swastika Agro Industrial Corporation (hereinafter called plaintiff), appellant industry had been purchasing goods on credit from it and had been making the payment through cheques, drafts and cash at different intervals and upon request of the appellant Industry vide bill No. 1429 dated 06.10.1995 goods worth Rs. 3,29,528/- were supplied and the receipt of the goods was duly acknowledged by defendant No. 2. Pawan Kumar Sareen. In order to evident these facts, plaintiff firm has proved copy of the above said bill dated 06.10.1995 as Ex. P-3. Perusal of its reverse side makes out a declaration is printed upon it. The above said declaration is in compliance of The Sale Tax Act, vide which it has been declared by the appellant Industry that the goods purchased by it from the plaintiff are meant for sale in Punjab State only. A further perusal of the above said declaration makes out that it bears the rubber stamp of the appellant Industry and signatures of its partner Sh. Pawan Kumar Sareen. It also mentions sales tax number of the appellant Industry as 15694610 dated 01.04.1989. In order to prove delivery of the goods, plaintiff firm has proved copy of certificate issued by Northern Carriers Private Ltd. as Ex.P4. As against the express evidence brought forth by the plaintiff firm, the case of the defendants is that of total denial. It has not only denied the transaction dated 06.10.1995 ,vide which it had received goods worth Rs. 3,29,528/-, but it has also denied its previous business relations with the plaintiff firm. It is relevant to notice that the appellant Industry is not a local firm. It hails from Amritsar. No reason has been specified in its pleadings by the appellant Industry, as to why an alleged false recovery suit may have been filed against it by the plaintiff firm. It is also to be born in mind that the recovery suit does not relate to a recovery of imaginary amount. If the plaintiff firm was to harass the defendant by filing a false recovery suit, it could have sued it for seeking recovery of an unimaginative sum. In order to affirm its pleadings upon oath plaintiff firm has examined Sh. Naresh Kumar Sareen, who testified that bill Ex.P-3 upon its reverse contains the declaration, which is signed by defendant No. 2 Pawan Kumar Sareen, but in order to rebut this express affirmation, defendant Pawan Kumar Sareen himself has not stepped into the witness box. Defendant Industry was sued by the plaintiff firm through its partner Pawan Kumar Sareen and Rakesh Kumar Sareen, but none of them have stepped into the witness box and instead on behalf of Defendant Industry, Sh. Girdhari Lal Sareen father- cum-attorney of Pawan Kumar Sareen and Rakesh Kumar Sareen has appeared as DW-1. It goes without staying that in his statement on oath attorney Girdhari Lal Sareen has also denied the claim of the plaintiff firm in totality, but his cross examination reveals many things, which indicates subsisting business relations between the parties. In his cross examination, Sh. Girdhari Lal Sareen disclosed that the plaintiff firm is running its business at Jalandhar and it is situated near Kings Hotel. He also admitted that he knew Sh. Inder Sain Jain (Inder Sain Jain is none else, but father of Naresh Kumar Jain). If there was no business dealings between the parties and if the defendant Industry had never purchased any goods from the plaintiff firm, then how attorney Girdhari Lal Sareen knew of the above said facts?
In his cross examination, Sh. Girdhari Lal Sareen disclosed that the firm M/s. P.R. Steel is a partnership concern constituted by his sons Rakesh Kumar Sareen and Pawan Kumar Sareen and it deals in sale and purchase of steel, but when he asked to show the partnership deed, he showed his ignorance. When probed further, he made a strange statement that M/s. P.R. Steel do not maintain any books of account nor it pays income tax and sale tax. This statement was made primarily to out wit the plaintiff, because the plaintiff has led evidence imputing that defendant Industry had been allotted sale tax No. 15694610 dated 01.04.1989. As it was a fact, Sh. Girdhari Lal Sareen could no more conceal it, when he admitted that defendant Industry had been allotted the above said sale tax number. He further disclosed that defendant Industry had been filing sale tax returns, but when asked to produce the copy of the sale tax returns, he showed his helplessness. On 06.12.2006 his further cross examination was deferred to make it convenient for him to trace out the returns, but on the subsequent date, he submitted that he had failed to trace out the record. As the defence of the defendant Industry had been based upon falsehood, hence after admitting the above said sale tax number when asked again (on 10.01.2007) Sh. Girdhari Lal Sareen changed his stand to show his ignorance whether M/s. P.R. Steel is registered with Sale Tax Department or Income Tax Department.
Plaintiff firm has proved a copy of ledger account Ex. P5, where in it has enumerated 32 transactions regarding debit and credit. In his cross examination Sh. Girdhari Lal Sareen was asked whether the defendant had paid Rs. 30,000/- through draft dated 24.06.1995, but he showed his ignorance by saying that he do not know about it. He was again put a fact regarding making of payment by it to the plaintiff on 08.07.1995, but he again showed his ignorance. Sh. Girdhari Lal Sareen was again asked whether the defendant Industry paid Rs. 40,000/- on 19.08.1995, but again he stated that he do not know about it.
Before filing the suit as many as three legal notices Ex. P7, Ex. P9 and Ex. P11 were sent to the defendant Industry through registered post as well as through UPC. When asked about these notices, like a tutored witness Girdhari Lal Sareen again showed his ignorance. He also showed his ignorance whether defendant Industry had replied to any such notice. Some of the notices sent through registered post were refused delivery and when asked this fact, Girdhari Lal Sareen showed his ignorance. However, he admitted that address of the defendant Industry mentioned on undelivered RCs Ex. 12 to Ex. P14 is correct.
It was also held by learned First Appellate Court that no reason has been assigned by the defendants (partners of the firm) for their absence from the witness box. Presumption was thus drawn that they were afraid of cross examination as it would have revealed the truth that bill document Ex.P-3 was signed by defendant No. 2.
Learned Counsel for the appellant has vehemently argued that DW-2 Sudhir Kumar has denied to have carried the alleged goods through its transport company. In this regard, learned Court below has given a detailed finding which reads as under:
The learned Counsel for the appellants argued vehemently that there is no proof regarding delivery of goods to the appellants. The Ld. Counsel submitted that though a certificate alleged issued by Northern Carrier Private Ltd. dated 31.03.1996 was proved by the plaintiff as Ex. P4, but the above said certificate was found fake, especially when in defence the appellants examined Sudhir Kumar assistant manager of the above said Carrier. I have gone through the statement made by DW-2 Sudhir Kumar. Though, in his affidavit-cum-examination in chief Ex.D8 he has affirmed that the above said certificate dated 31.03.1996 Ex. P4 is forged and fabricated and that his company had not issued any such document, but in his cross examination DW Sudhir Kumar could not substantiate his allegations. In fact, he was found deposing without consulting of the record, because in his cross examination he replied that he could not trace the record regarding billties for the year 1994, 1995 and 1996 and that what ever has been mentioned by him in his affidavit Ex.D8, has been mentioned after looking at certificate Ex.P4, thus I find that statement of DW-2 Sudhir Kumar is unable to rebut the certificate Ex.P4 vide which it had been certified that by the above said carrier that goods mentioned in bill No. 1428 dated 14.06.1995 (Ex.P3) had been delivered to M/s. P.R. Steel Industries at Amritsar. In fact the above said certificate Ex.P4 contains two more entries certifying that vide bill No. 1307 dated 24.04.1995 and vide bill No. 1308 dated 28.04.1995 goods had been delivered to the appellants. If the above said certificate would have been forged, the defendants/appellants must have filed criminal complaint against the plaintiffs.
From the reading of aforesaid observations, I find that the findings have been returned after appreciation of evidence on record. Therefore, I do not find any question of law much-less substantial involved in this appeal because the questions that have been framed in para 8 of memorandum of appeal with regard to delivery of consignment through alleged bill Ex.P3, are not the questions of misreading of evidence by the Courts below.
In view of the above discussion, I do not find any error in the judgments of both the Courts below nor any substantial question of law has been raised or argued before me in the present appeal, thus the same is hereby dismissed, however, with no order as to costs.