Sajjanraj Swarupchand v. Mehta Commercial — 1972 DIGILAW 47 (GUJ)

JUDGMENT :- This is an appeal against the judgment and decree of the learned District Judge, Bulsar at Navsari confirming the judgment and decree of the learned Civil Judge, Junior Division, Umbergaon in civil suit No. 47 of 1962 with certain modifications as per the particulars mentioned in the judgment. 2. The facts giving rise to this appeal in a nut-shell are as under :- The present respondent Mehta Commercial Company a firm registered under the Indian Partnership Act having its principal office of business at Umbergaon, had six partners in all. One of them was one Madanchand Kishanchand. The present appellant who was the defendant in the trial Court is also a partnership firm which started its business at Bhilad from Samvat year 2012, having two partners Sajjanraj and Swarupchand. This Swarupchand is the son of the plaintiff's partner Madanchand. It has come out in evidence that the mother of Sajjanraj and the mother of Madanchand are sisters. Thus, the partners of the plaintiff-firm and those of the defendant-firm, were inter-related. According to the plaintiff, both the plaintiff and defendant-firms had mutual dealings. The plaintiff firm had sold to the defendant firm from time to time various quantities of grass and both these firms had paid and received various items from each other. It was alleged by the plaintiff that for all these transactions, an account was opened in the books of account in the plaintiff-firm in the name of defendant in Samvat year 2012 and all the amounts paid on behalf of defendant firm were debited in their account and the amount received from the defendant firm were credited from time to time. The accounts between them were often settled. These dealings went upto Sambat year 2016. According to the plaintiff, at the end of Samvat year 2016, on Aso Vad Amas, an amount of Rupees 9146-70 paise remained due from the defendant firm as principal including the interest. As the defendant failed to pay the said amount, the plaintiff served him with a notice and in spite of the demand, when the defendant failed to pay the said amount, the suit was filed to recover Rs. 10,000/- consisting of Rs. 9,146-70 paise as principal and Rs. 853-30 paise as interest. According to the plaintiff, as there was mutual, open and current account between the parties, the suit was in time. 3. 10,000/- consisting of Rs. 9,146-70 paise as principal and Rs. 853-30 paise as interest. According to the plaintiff, as there was mutual, open and current account between the parties, the suit was in time. 3. On behalf of the defendant, Sajjanraj Mukundchand who was served with the summons as a partner of the defendant firm contested the suit and filed his written statement at Ex. 25. He contended that the firm of the defendant was dissolved on Fagan Vad Amas of Samvat year 2016 and the second partner Swarupchand who is the son of the plaintiff's partner Madanchand had taken away all the books of account of the firm and hence, he was not in a position to challenge any specific items out of the items detailed in the plaintiff's books of account. While, therefore not admitting any of the items either on the credit or debit side, the defendant put the plaintiff to the strict proof of its case. Sajjanraj denied that the plaintiff had purchased any grass from the defendant firm. According to him, the plaintiff firm had contracts with Aarey Colony Bombay for the supply of grass. As the grass could not be sent from Umbergaon, the plaintiff firm had contracted with the defendant firm under which the defendant firm had to send grass to Aarey Colony, Bombay. According to the defendant, the Bombay Grass Selling company were the agents of the plaintiff firm at Bombay and they received the cheque from Aarey colony which was credited in the plaintiff's account. According to the defendant, the accounts between them were never settled in his presence and were not binding on him. He alleged that the second partner Swarupchand may have been present and in collusion with the plaintiff, settlement may have been made but the said settlement cannot be binding on him. He also alleged that the account books of the plaintiff firm are not reliable and they are not properly maintained. He then specifically mentioned that he was not given credit for several items as per particulars mentioned in the written statement. From the pleadings of the parties, the learned trial Judge framed issues at Ex. 28. From the evidence that was before him, the learned trial Judge held that the plaintiff had proved that Rs. 9146-70 paise towards the principal and Rs. 853-30 paise towards interest had remained due from the defendant. From the pleadings of the parties, the learned trial Judge framed issues at Ex. 28. From the evidence that was before him, the learned trial Judge held that the plaintiff had proved that Rs. 9146-70 paise towards the principal and Rs. 853-30 paise towards interest had remained due from the defendant. He, therefore, passed a decree against the defendant for the said amount. Against the said judgment and decree of the learned trial Judge, an appeal was preferred in the district Court of Bulsar at Navsari. The learned District Judge while confirming the judgment and decree of the trial Court, modified it and held that Rs. 8344-70 paise towards principal and Rs. 665-30 paise towards interest, in all Rs. 9,000/- were due by the defendant to the plaintiff. He, therefore, passed a decree accordingly. Against the said decree of the learned District Judge, Bulsar at Navsari, the original defendant has preferred the present appeal to this Court. 4. Mr. K.S. Nanavaty, learned Advocate for the appellant-defendant raised the following contentions before me :- 1. The suit against the defendant firm was not maintainable inasmuch as it was dissolved prior to the institution of the suit; 2. The plaintiff should have filed the suit against the erstwhile partners of the dissolved firm and not against the firm; 3. That no decree could be passed against the defendant from mere entries in the books of account maintained by the plaintiff; 4. That the plaintiff had failed to prove various items from his books of account and therefore, the decree passed by the learned Judge cannot be sustained. 5. Mr. N.R. Oza, learned Advocate for the plaintiff-respondent on the other hand urged that the defendant in his written statement filed before the trial Court had not specifically pleaded that the suit was not maintainable. He urged that such a technical plea should not be permitted to be taken in a second appeal. He urged that after all, it was a technical defence and nothing turned on the merits of the case. He urged that even assuming for the sake of argument that the defendant firm was dissolved on the date of the institution of the suit, summons against the defendant was served on Sajjanraj who admittedly was a partner of the defendant firm and therefore, whatever decree is passed would be binding on Sajjanraj. He urged that even assuming for the sake of argument that the defendant firm was dissolved on the date of the institution of the suit, summons against the defendant was served on Sajjanraj who admittedly was a partner of the defendant firm and therefore, whatever decree is passed would be binding on Sajjanraj. On merits, he urged that even though the defendant was given inspection of the books of account of the plaintiff, he did not specifically challenge several items from the books of account and vaguely asserted that the books of account were not properly maintained by the plaintiff. He urged that if the defendant wanted to urge that the books of account were not properly maintained by the plaintiff, he should have specifically shown as to which items were wrong and were not supported by the evidence on record. He urged that even though the defendant had maintained books of account, intentionally the said books were suppressed because if they were produced, the plaintiff would have been able to show from the corresponding entries in the books of account of the defendant that his case was correct. Under the circumstances, he submitted that when both the courts have recorded a finding that the defendant owed Rs. 9000/- and odd to the plaintiff, this finding should not be disturbed in the second appeal. 6. It may be noted at the outset that the defendant had not taken a plea in his written statement that the suit was not maintainable as the firm was dissolved on the date of the suit and that the cause of action of the suit had arisen after the dissolution of the firm. 6. It may be noted at the outset that the defendant had not taken a plea in his written statement that the suit was not maintainable as the firm was dissolved on the date of the suit and that the cause of action of the suit had arisen after the dissolution of the firm. In this connection, it will be worthwhile to refer to Order 30, Rule 1, C. P. C. It says :- "Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm if any of which such persons were partners at the time of the accruing of the cause of action and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct." Therefore Rule 1, Order 30 clearly envisages that a suit could be instituted by or against a firm doing business in India. The only qualification is that the firm must consist of two or more persons as partners at the time of the accruing of the cause of action. There is nothing in the rule 1 to show that a suit could not lie against a dissolved firm in the firm's name If the cause of action had accrued prior to the institution of the suit. In the instant case, no doubt, the defendant in his written statement has stated that the firm was dissolved on Fagan Vad Amas of samvat year 2016 which is equivalent to 27th March 1960. The plaintiff in the plaint has stated that the cause of action had arisen on 18th November 1961. Relying on the averment made in the plaint that the cause of action had arisen on 18th November 1961, it was urged by Mr. Nanavaty that as the cause of action had accrued after the partnership firm was dissolved on 27th March 1960, the suit against the firm in firm's name was not maintainable and the plaintiff should have brought a suit against the partners of the dissolved firm. Nanavaty that as the cause of action had accrued after the partnership firm was dissolved on 27th March 1960, the suit against the firm in firm's name was not maintainable and the plaintiff should have brought a suit against the partners of the dissolved firm. He submitted that not only the defendant at the earliest possible opportunity in his written statement had come out that the firm was dissolved on 27th March 1960 but even Sajjanraj in his deposition Ex. 81 has also stated about the dissolution of the firm on that day. Sajjanraj was not challenged on this point by the plaintiff. It was not the say of the plaintiff that the firm was not dissolved on the date alleged by Sajjanraj. Mr. Nanavaty, therefore, urged that in the absence of any denial on behalf of the plaintiff the defendant should be believed that the firm was dissolved on the day the suit was instituted against it. He, therefore, urged that if the firm was dissolved prior to the institution of the suit, and if the cause of action as stated in the plaint arose after the dissolution of the firm, apparently the suit was not maintainable. 7. Mr. Oza referred to the case of Bhagatsingh v. Jaswant Singh, AIR 1966 SC 1861 , wherein it was observed that : "Where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward." Relying on these observations, Mr. Oza urged that when the defendant had not specifically put a claim in the written statement that the suit was not maintainable it was not open to him now to contend in a second appeal that the suit was not maintainable and he should not be permitted to take such a plea as it involved a question of fact. It is true that the defendant in his written statement has not taken a specific plea that the suit was not maintainable because the firm was dissolved prior to the institution of the suit and that the cause of action had accrued to the plaintiff after its dissolution. But the defendant has stated that the firm was dissolved on a particular day that is 27th March 1960. But the defendant has stated that the firm was dissolved on a particular day that is 27th March 1960. It is also clear from the averment made in the plaint that the cause of action arose on 30th November 1961 that is after the alleged date of dissolution of the firm. Apparently, therefore, in view of the words used in rule 1, order 30, C. P. C., the suit against the defendant in the firm's name would not be maintainable. Mr. Oza, however, urged that this point was merely of academic interest. Once the notice of the suit was served on one of the partners of the firm, it was immaterial whether at the time of the institution of the suit, the firm was dissolved. He urged that whatever decree is obtained would be binding on all the partners. In support of his say, he referred to the case of Gordhandas Kalyanji Bhat v. Gautamchand Rupchand 27, Bom. LR 541 : (AIR 1925 Bom 331) wherein it was observed that :- "Where a suit is, under Order XXX, rule 1, of the Civil Procedure Code, properly filed against a partnership firm in the firm's name, service on any one or more of the partners or on the managers shall be deemed good service upon the firm. There is no difference as to the mode of effecting the service whether the firm is going on or has been dissolved at the date of the institution of the suit. If the service is effected as provided by rule 3, the suit can be proceeded with against the firm and the plaintiff is entitled to obtain a decree against the firm. In the case of partnerships, which are going concerns at the date of the institution of the suit, the decree which is obtained against the firm is binding on all the partners in the firm whether they have been served individually or not. In the case of a firm which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the plaintiff must serve each and every partner whom he seeks to make personally liable for the decree. The right to execute the decree as against the firm is in no way affected by the proviso." Mr. In the case of a firm which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the plaintiff must serve each and every partner whom he seeks to make personally liable for the decree. The right to execute the decree as against the firm is in no way affected by the proviso." Mr. Oza, therefore, urged that even assuming for the sake of argument that the firm was dissolved at the date of the institution of the suit, the decree could not bind the other partners who were not served with the notice and who were not impleaded as partners, the decree obtained against the firm would not be invalid. In my opinion, the ruling referred to by the learned Advocate for the respondent-plaintiff has not considered the question whether a suit against a dissolved firm could lie on a cause of action which had accrued after the dissolution of the firm. In my opinion, therefore, this ruling cannot help us in order to find out whether such a suit was tenable or not. In the instant case, from the pleadings, apparently, it transpires that the cause of action arose on 13th November, 1961 that is after the date of the dissolution of the firm, prima facie, therefore, such a suit against the firm in the firm's name would not be tenable. 8. Mr. Oza next referred to the case of K. P. Muhammed v. Parakkat Nayer Veetil Thevazhi Tarwad. AIR 1971, Ker. 390 wherein it was observed by the full bench of the Kerala High Court as under :- "A plea that Section 77 T. P. Act operates as a bar to accounting under Section 76 (h) of that Act cannot be allowed to be raised for the first time in second appeal." Mr. Oza, relying on these observations urged that even if the suit was not maintainable, such a plea should not be permitted to be taken in a second appeal by the defendant. He urged that the defendant should have taken a specific Plea in the trial court that the suit was not maintainable. In such a case, it would have been open to the Plaintiff to amend the plaint impleading the partners of the dissolved firm as defendants. He urged that the defendant should have taken a specific Plea in the trial court that the suit was not maintainable. In such a case, it would have been open to the Plaintiff to amend the plaint impleading the partners of the dissolved firm as defendants. He urged that such a technical defect should not be allowed to come in the way of the interest of justice and the suit should not be thrown off merely on such a technical ground. Mr. Oza also urged that in case this court was of the view that the suit against the defendant was not tenable on the cause of action which accrued after the dissolution of the firm, the plaintiff should be given an opportunity to amend the plaint so that the plaintiff may not be prejudiced on account of this technical defect. He urged that such amendment should be permitted even in a second appeal. In support of his say, he referred to the case of Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon, AIR 1969 SC 1267 , wherein it was held that :- "Application for amendment of the plaint could not be granted because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any narrow or technical limitations." With respect. I am in entire agreement with the observations made therein. In the instant case, the question about the maintainability of the suit was for the first time raised in this court by the learned Advocate for the defendant. It is interesting to note that not only this point was not taken in the trial court but it was not argued even before the first appellate court. Under the circumstances, in the interest of justice, the plaintiff must be given an opportunity to amend the plaint and implead the partners of the dissolved firm as defendants. It is interesting to note that not only this point was not taken in the trial court but it was not argued even before the first appellate court. Under the circumstances, in the interest of justice, the plaintiff must be given an opportunity to amend the plaint and implead the partners of the dissolved firm as defendants. firstly because as no issue was framed by the court, no specific evidence has been led on behalf of the parties to show that the firm in fact was dissolved on 27th March 1960 as alleged by the defendant in his written statement and in his evidence before the court. Similarly, there is no clear cut evidence that the whole cause of action accrued to the plaintiff on 13th November, 1961 after the dissolution of the firm. The plaintiff has averred in the; plaint that there was mutual, current and open account between the parties and therefore the suit was in time. No doubt, the plaintiff had averred that there was settlement of account and the defendant would be liable to the tune of Rs. 10000/- including interest at the end of samvat year 2015. But from this averment, it cannot necessarily be inferred that the whole cause of action accrued on 13th November 1961. In any case, when there were hundreds of dealings between the parties and if most of these dealings had taken place prior to the alleged date of dissolution of the Partnership, it cannot be said that the suit with regard to these items would not be maintainable even against the firm in its firm's name. In the absence of any specific evidence on this point it is difficult for me sitting in second appeal to find out as to which items were prior to the dissolution of the firm and which items were after the dissolution of the firm. Under the circumstances, it would not be open to me to dismiss the suit merely on a technical ground that the plaintiff had filed the suit against a dissolved firm on a cause of action which was stated to have accrued on 13th November, 1961 that is after the date of the dissolution of the firm. I would have permitted the plaintiff to amend the plaint in this court if for reasons which I am stating below. I would have permitted the plaintiff to amend the plaint in this court if for reasons which I am stating below. I would not have remanded the suit to the trial court for proceeding further on merits. 9. The pertinent question which arises before me is whether the plaintiff has proved his case against the defendant on merits. According to the plaintiff, there were several dealings between the parties and accounts were maintained in which amounts received from the defendant were credited and the goods sold to the defendant were debited. According to the plaintiff, after taking accounts, the defendant was liable to the tune of Rs. 9400/- and odd and with interest it came to Rs. 10000/-. The defendant in his written statement did not deny that there were dealings between them. The say of the defendant however, is that as his books of account were taken away by his partner Swarupchand who is the son of one Madanchand who was a Partner in the plaintiff-firm, he was not in a position to specifically state as to which items were correct and which items were not true. He, therefore, has stated that the plaintiff should be put to the strict proof of his case. It seems that the defendant had taken several adjournments from the court for filing written statement in order to have inspection of the books of account of the plaintiff. Thereafter, the defendant filed his written statement. But in the written statement, the defendant came out with a case that he was not given inspection of all the books of account by the plaintiff. In his written statement, the defendant clearly has stated that his books of account were lying with Swarupchand. The defendant in his evidence before the court had come out with a case that his books of account were taken away by Swarupchand. The plaintiff in his evidence did not state anything about the books of account of the defendant firm being taken away by Swarupchand. No doubt, the defendant has not examined Swarupchand in order to show that his books of account were lying with him. But one may not expect the defendant to examine Swarupchand for the simple reason that Swarupchand is the son of Madanchand who is a partner in the plaintiff-firm. No doubt, the defendant has not examined Swarupchand in order to show that his books of account were lying with him. But one may not expect the defendant to examine Swarupchand for the simple reason that Swarupchand is the son of Madanchand who is a partner in the plaintiff-firm. It is just possible that Swarupchand may not support the defendant's case because of his relationship with the plaintiff-firm. But in the absence of any evidence showing that the defendant was in fact in possession of the books of account at the relevant time and that he was suppressing the same with the intention that the plaintiff's case may not find corroboration from the corresponding entries in his books of account, no adverse inference could be drawn against the defendant. Mr. Oza, learned Advocate for the respondent submitted that it was brought out from the evidence of Sajjanraj that the suit for dissolution and account was filed in the court wherein Khatavahi for the samvat year 2014 was produced in Court. This shows that the defendant either was in possession of the books of account or the defendant had knowledge that books of account were produced in Court by Swarupchand and were in the custody of the court. He, therefore, urged that nothing prevented the defendant from setting the said books of account produced from the court. It is true that from the evidence of the defendant it has come out that Khatavahi for the samvat year 2014 was produced in the court and the said Khatavahi was lying in the High Court at the relevant time. But the evidence does not show that books of account for the previous years 2012, 2013 or for samvat year 2015 were in possession of the defendant. The plaintiff has not denied the defendant's say that the books of account were taken away by Swarupchand. Under the circumstances, unless it was established that in spite of the defendant being in custody of the books of account had deliberately omitted to produce the same for some ulterior motive, no adverse inference can be drawn against the defendant. Thus, the principle laid down in the case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif. AIR 1968 SC 1413 relied upon by the learned Advocate for the respondent-plaintiff cannot help him. 10. Thus, the principle laid down in the case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif. AIR 1968 SC 1413 relied upon by the learned Advocate for the respondent-plaintiff cannot help him. 10. Both the courts below have recorded a finding that books of account were maintained by the plaintiff in the regular course of business and that they were correct. Thus relying on the entries in these books of account as corroborative piece of evidence to the deposition of the plaintiff, both the courts below accepted the plaintiff's version and passed a decree in its favour. With respect to the learned Judge, their whole approach while appreciating the evidence is not correct. The courts below seem to have been prejudiced against the defendant because he had failed to produce his books of account. According to the learned Judges, the defendant had deliberately suppressed his books of account. According to them, even though the defendant had taken inspection of the books of account of the plaintiff, he had not at the proper stage denied the genuineness of the several entries on which reliance was placed by the plaintiff and therefore, they came to the conclusion that when the plaintiff's books of account were properly kept and entries made therein were correct, the plaintiff was sufficiently corroborated by the entries in the books of account and therefore, the plaintiff's case was duly proved. With respect to the learned Judges, the finding recorded by them is not correct. It may be remembered that mere entries in one's own books of account would not be conclusive and binding on the other side. Under Section 34 of the Evidence Act, such entries in the books of account kept in the regular course of business would be relevant and could be used as corroborative piece of evidence. But they themselves cannot be a basis for foundation of decree. I am supported in my view by the case of Chandradhar Goswami v. Gauhati Bank Ltd; AIR 1967 SC 1058 wherein it was observed that :- "It is clear from a bare perusal of the section that no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. In the present case, however, the appellants did not accept the correctness of the books of account. We have already indicated that they went to the length of saying that the accounts were not correctly kept and were fraudulent. They also said that no money had been taken by them after March 1, 1947. This being their pleading, the trial court rightly framed the third issue relating to the total amount due from the appellants to the Bank. But unfortunately, it overlooked to go into that issue specifically and we have already indicated how it made a mistake in arriving at the amount due when considering the issue relating to relief. In any case as the appellants had not admitted the correctness of the accounts filed by the bank, particularly after March 1, 1947, the bank had to prove payment of Rs. 10,000/- on March 19, 1947 if it wanted to charge the appellants with liability for that amount." From the observations of the Supreme Court therefore it would be clear that no decree can be passed merely on the basis of entries found in the books of account which may have been maintained in ordinary course of business unless the correctness of the books of account are admitted by the other side. In the instant case, the defendant from the beginning has denied the correctness of the entries in the books of account of the plaintiff. According to the defendant, he was not in a position to specifically deny several items from these books of account as his own books of account were taken away by his partner Swarupchand who was the son of Madanchand who was a partner of the plaintiff-firm. I, therefore, do not agree with Mr. Oza that as the defendant has not specifically disputed several entries in the books of account, he is deemed to have admitted the correctness thereof. In support of his case, Mr. I, therefore, do not agree with Mr. Oza that as the defendant has not specifically disputed several entries in the books of account, he is deemed to have admitted the correctness thereof. In support of his case, Mr. Oza referred to the case AIR 1966 SC 1861 , wherein it was observed that :- "Under S. 6, it is necessary, that a person objecting to the validity of the appointment of an heir to the property on the around of custom must plead and prove that the land in suit is ancestral and that he comes within five degrees of the common ancestor. The mere fact that the defendants contended in the written statement that the plaintiff could not be adopted according to the custom does not tantamount to making the requisite pleas. Similarly the mere fact that the issues as framed did involve the consideration of the validity of the adoption and the ancestral nature of the land in suit will not clothe the vague allegation in the written statement with the definiteness of the requisite pleadings. Where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward." There can be no quarrel with the principle enunciated therein and with respect. I am in entire agreement therewith. But the ratio of that case cannot apply to the facts of the instant case. In the instant case, when the plaintiff has specifically come out with a case that Rs. 10,000/- were due by the defendant to the plaintiff as per the statement of account made at the end of samvat year 2015 the onus lay on the plaintiff to prove his case. That onus cannot be discharged by mere production of his account books which were not admitted by the defendant. The plaintiff alone with his plaint had appended copies of entries from his books of account. From a perusal of the mere entries appended by the plaintiff, one cannot get any idea about the nature of transactions entered into between the parties. Unless, therefore the full inspection was given to the defendant, he would not be in a position to dispute several items. From a perusal of the mere entries appended by the plaintiff, one cannot get any idea about the nature of transactions entered into between the parties. Unless, therefore the full inspection was given to the defendant, he would not be in a position to dispute several items. The learned Judges below have assumed that the defendant had taken inspection of all the books of account and in spite of the inspection being taken he had not specifically denied the items and therefore, he should be presumed to have admitted the correctness of the entries. With respect to the learned Judges. I am unable to agree with them that the defendant had taken inspection of all the books of account of the plaintiff. There is no evidence on record showing that the defendant was given inspection of all the books of account. The learned Judges seem to have been under this impression because the defendant had taken several adjournments in order to file his written statement. But merely because the defendant may have taken adjournments giving reasons that he wanted to have an inspection of the books of account, one cannot necessarily come to the conclusion that the inspection must have been given to the defendant or that he had taken inspection of all the books of account. Assuming for the sake of argument that the defendant was given inspection of the books of account, the defendant has stated that in the absence of corresponding entries from his books of account, he was not in a position to challenge the correctness of the entries found in the books of account of the plaintiff. In my opinion, the defendant is right in saying so. The defendant also had denied that the books of account maintained by the plaintiff were genuine or that the entries were correct. Under the circumstances, it was incumbent on the plaintiff to prove its case by leading other cogent evidence. The plaintiff could have produced the correspondence, vouchers, bills, etc. in support of its case. There were several mutual dealings between the parties during the last four years. I am, therefore, not prepared to believe that except the books of account, the plaintiff had not maintained any vouchers, correspondence bills etc. showing the existence of the transactions entered into by the plaintiff firm with the defendant. in support of its case. There were several mutual dealings between the parties during the last four years. I am, therefore, not prepared to believe that except the books of account, the plaintiff had not maintained any vouchers, correspondence bills etc. showing the existence of the transactions entered into by the plaintiff firm with the defendant. One, therefore, fails to understand why the plaintiff did not produce any such papers in support of its case. The learned Advocate for the appellant invited my attention to several entries in the books of account maintained by the plaintiff. The plaintiff in his evidence in paras. 372 and 374 has been cross-examined about the genuineness of these entries. The entry for Rs. 135/- dated 28-8-1956 is with regard to cash payment. Even though this entry is found in the ledger, there is no corresponding entry in the Rojmel. Similarly, the entry for Rs. 2000/- dated 9-2-1967 alleged to be cash payment to the defendant, is not found in the Rojmel. Similarly, the entry for Rs. 2000/-, dated 3-8-1957 which is alleged to be cash payment to the defendant is not found in the Rojmel. It is found that the entry for Rs. 2000/-is debited against the khata of the defendant being adjustment entry for the excess credit given to the defendant in respect of the transaction with Sajjanraj. It may be noted that the firm Sajjanraj Bhikhalal did not exist at the relevant time. No corresponding entries from the books of account of Sajjanraj Bhikhalal were produced by the plaintiff to show that any excess amount was paid to Sajjanraj Bhikhalal and that the said amount was adjusted in the Khata of the defendant with his consent. Even though Kasturchand in his evidence in general has stated that the books of account of Sajjanraj Bhikhalal were with him. these books were not produced in court. The defendant has denied this entry. Thus, if the plaintiff wanted to rely on any adjustment entry on account of excess credit given to the defendant in respect of the transaction with Sajjanraj Bhikhalal. he has got to prove it by production of account of Sajjanraj Bhikhalal. Merely because this entry is shown in the Khata of the defendant, it cannot be accepted as gospel truth. The plaintiff also had relied on the Havala entries for Rs. 2000/- dated 22-11-1957, Rs. 284-12-0 of the year 2013 and Rs. he has got to prove it by production of account of Sajjanraj Bhikhalal. Merely because this entry is shown in the Khata of the defendant, it cannot be accepted as gospel truth. The plaintiff also had relied on the Havala entries for Rs. 2000/- dated 22-11-1957, Rs. 284-12-0 of the year 2013 and Rs. 532-12-6 with regard to the transaction with Vrailal Devidas. The plaintiff had not examined Vrailal Devidas in order to prove the Havala of Rs. 532-12-6. The plaintiff also did not lead any evidence to show how the amount of Rs. 284-12-0 was posted as Havala for the samvat year 2013 in the khata of the defendant. The evidence shows that various items of cash amounts which have been debited in the khata of the defendant as cash payment are not found in the Rojmel. The explanation given by the plaintiff is that cheques were received which were credited in his account in the bank. Thereafter, bearer cheques were drawn in his name and after withdrawing the said amounts the amounts were paid to the defendant and hence, no corresponding entries were made in the Rojmel. In my opinion, the explanation given by the plaintiff is not convincing. Even if the plaintiff had withdrawn the said amounts by drawing cheques in his own name, when the said amount is ultimately given to the defendant in cash, corresponding entry has got to be shown in the Rojmel in order to prove the correctness thereof. Absence of cash entry in the Rojmel would create a reasonable suspicion in one's mind about the genuineness of the entries which are found in the khatavahi. It is not difficult to manipulate the khatavahi in any way one may like. Unless the khatavahi was supported by day to day entries in the Rojmel one cannot place implicit reliance on the entries in the khatavahi only, in order to pass a decree on such entries. In the case of Chandi Ram Deka v. Jamini Kanta Deka, AIR 1952 Assam 92, it was observed that :- "In order to be relevant under Section 34. the books of account must be kept regularly in the course of business. They must be in conformity with some known system of accounting. Where the books produced are merely the ledgers not supported by any day books or roznamcha. the books of account must be kept regularly in the course of business. They must be in conformity with some known system of accounting. Where the books produced are merely the ledgers not supported by any day books or roznamcha. containing no entries of transactions as they take place and there is no daily opening or closing balance in the ledger accounts but what was shown from those books was that there was plaintiff's account and in that account entries were made and those entries could all have been made on any one day these books do not fulfil the reauirements of Section 34 and be regarded as relevant under that section." Mr. Oza, learned Advocate for the plaintiff referred to the decision of this High Court in the case of Alumal Tahelram v. Mehthram Basarmal, (1968) 9 Guj LR 1078, wherein it was observed by my learned brother N. G. Shelat, J. that :- "Under Section 34 of the Evidence Act, the entries from the books of account regularly kept in the course of the business, before they can be acted upon for holding a person liable thereunder, must get some corroborative evidence from other sources. It may be either oral evidence of the plaintiff or of the person who wrote accounts. It may, again also be, from other documents such as vouchers, receipts, etc. in respect of the transactions that took place between the parties. But more determining factor should be the circumstances surrounding the accounts maintained by the plaintiff if they satisfy the court about the correctness of those entries and statements made in such books of account, and they can well serve as a corroborative piece of evidence reauired under Sec. 34 of the Act as it may happen that evidence by way of vouchers, receipts etc. may not be there and the oral evidence may not be available of the person who actually entered into that transaction." Relying on these observations. Mr. Oza urged that in the instant case, the plaintiff was examined on oath. The plaintiff had deposed about several transactions and explained each and every entry in his books of account. From his evidence, it transpires that the books of account were regularly maintained by him. Both the courts have recorded a finding that the account books were properly and correctly maintained. The plaintiff had deposed about several transactions and explained each and every entry in his books of account. From his evidence, it transpires that the books of account were regularly maintained by him. Both the courts have recorded a finding that the account books were properly and correctly maintained. Under the circumstances, when the defendant did not produce his own books of account, the plaintiff could be said to be sufficiently corroborated by the entries made in the account books and there was no reason why the plaintiff's evidence should not be believed with regard to the correctness of the entries found in the books of accounts. The circumstances of this case went to support the plaintiff's say. Several entries pertaining to the transactions with Aarey colony Bombay for the supply of grass were duly proved by the employee of Aarey colony by producing relevant entries from the books of account maintained by Aarey colony. This shows that the entries made in the books of account by the plaintiff were correct. Thus, it was urged by Mr. Oza that even from the circumstances of this case one can draw a legitimate inference that the plaintiff's books of account were correct and therefore there was nothing wrong if the court relying on the oral evidence of the plaintiff corroborated by the entries made in the account books passed a decree in his favour. It is true that in certain circumstances, one may rely on the deposition of the plaintiff corroborated by his books of account but when the correctness of the entries in the books of account are denied by the other side, mere word of the plaintiff supported by the entries in his books of account would not be sufficient to pass a decree in his favour. This is exactly what has been held by the Supreme Court in the case of Chandradhar Goswami, AIR 1967 SC 1058 (Supra). It has been clearly laid down by the Supreme Court that. "No person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. It has been clearly laid down by the Supreme Court that. "No person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them." Naturally, the entries made in the books of account have to be proved by examining the person who has written the books of account. From the deposition of the plaintiff., the books of account may, therefore, be said to have been proved. But that would not in any way fasten the liability on the defendant if the defendant did not admit the correctness of the entries made therein. With respect, therefore, the observations made in Alumal Tahemram, (1968) 9 Guj LR 1078 (supra) go beyond the principle laid down by the Supreme Court. This High Court in a later case in the case of Shubhkaron Rameshwarlal Agarwal v. The Durgaprasad Pvt. Ltd. 13 Guj LR 179 : ( AIR 1972 Guj 208 ) has made the following observations :- "The provisions of Sec. 34 of the Evidence Act lays down a rule of evidence that the entries in the books of account would not be sufficient for purposes of finding the liability against a person. There should be additional evidence, independent of those entries which would prove the factum of payment in respect of which the entries are made in books of accounts. Where the entries are not admitted, it is the duty of a party, seeking to enforce the liability of such entries to produce evidence in support thereof to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence." The same view was taken by me in first appeal No. 870 of 1965, decided on 1-3-1972 (Guj) wherein it was observed that "When the defendant in the written statement categorically denied the statements made in the plaint that they were the servants of the plaintiffs or that the suit shop was sub-let to the plaintiff at the monthly rent of Rs. 100/-and that they had overdrawn several amounts as alleged by the plaintiffs, it was not necessary for them to dispute each and every item shown in the extracts of the books of account. Defendant No. 1 in his evidence before the court has categorically denied all these items. As observed earlier, it is for the plaintiff to prove his case and he cannot succeed merely because the defendants were unable to prove any partnership between them .................. In order to bind the defendants, the accounts should have been made up and signature obtained. No such signature is taken of the defandants on the khata baki for the amount which fell due by the defendants to the plaintiff as alleged by him. Under the circumstances, mere entries in the books of account of the plaintiff cannot be binding on the defendants." It is thus clear that in order to fasten liability on the defendant with regard to the transactions, mere word of the plaintiff supported by the entries in his own books of account would not be sufficient when the defendant has not admitted the correctness of the said entries. I have already referred to several items which are not found in the day book maintained by the plaintiff. It may be noted that the plaintiff in paras 338, 339, 340 and 341 of his deposition has admitted that all the transactions are not written down in the books of account. He particularly stated that uplak amount which would be returned immediately or a day after, would not be mentioned in the books of account. In paras 443 and 445, he admitted that his Nondh book does not bear any date. His Mehtaji would note therein any transaction which may be brought to his knowledge. It was also brought out from his cross-examination in para 486 that expenses for going to his native place were not debited. This shows that the Uplak amount and some sundry expenses incurred by the plaintiff were not noted even in the Rojmel. Under the circumstances, there is no guarantee that the entries made in the khatavahi were genuine. In any case when the defendant has controverted the correctness of the said entries, it was for the plaintiff to establish the same by leading independent evidence in support thereof. He could have been able to prove the same by production of vouchers, bills, correspondence, etc. In any case when the defendant has controverted the correctness of the said entries, it was for the plaintiff to establish the same by leading independent evidence in support thereof. He could have been able to prove the same by production of vouchers, bills, correspondence, etc. I am not prepared to believe that when several transactions had taken place between the parties, other evidence was not available to the plaintiff. Thus, even though the books of account may have been maintained by the plaintiff in the regular course of business, mere entries made therein would not be sufficient to pass a decree in his favour particularly when the defendant has not admitted the same as laid down by the Supreme Court. Mr. Oza next urged that this court while hearing the second appeal, should not disturb the finding of fact recorded by both the courts below. He urged that both the courts below had believed that the plaintiff's books of account were correctly maintained in the ordinary course of business. He, therefore, urged that the decree passed by the lower courts should not be disturbed. It is true that normally, the finding of fact recorded by the first appellate court which is the final court of fact should be accepted by this court while hearing a second appeal. But if is found that both the courts below had appreciated the evidence on a wrong angle or under the mistaken belief of law that the entries made in the books of account regularly kept would be sufficient to pass a decree in favour of the plaintiff, it would be open to this court to set aside the said finding which was contrary to law. In the instant case, both the courts below have drawn an inference on assumption of certain facts. Both the courts below have drawn an adverse inference against the defendant for non-production of the books of account. Both the courts below have believed the books of the plaintiff on the ground that some of the entries made therein were supported by the entries made in the books of account of Aarey colony, Bombay. In my opinion, merely because some entries have been duly proved, it cannot necessarily be inferred that all the entries relied upon by the plaintiff were correct. In my opinion, merely because some entries have been duly proved, it cannot necessarily be inferred that all the entries relied upon by the plaintiff were correct. Both the courts below have not paid sufficient attention to the fact that payment of cash to the defendant regarding items of Rs. 2000/-dated 9-2-1957, Rs. 2000/- dated 3-8-1957, and Rs. 135/- dated 28-8-1956 were not found in the Rojmel at all. Both the courts also implicitly relied on the Havala entries made by the plaintiff in his books of account. The defendant has challenged the correctness of these entries. The Havala entries if they are not admitted by the defendant have got to be duly proved by calling the person concerned. The amount of Rs. 532-12-6 was a transaction with regard to Vrajlal Devidas. This transaction could have been proved by examining Vrajlal Devidas. Similarly, adjustment entry of Rs. 2000/- in respect of the transaction with Sajjanraj Bhikhalal could have been proved by examining the partner of Sajjanraj Bhikhalal supported by an entry in their books of account. However, the plaintiff has not taken the trouble to examine the persons in order to prove the entries which were disputed by the defendant. Both the courts below have not sufficiently appreciated this aspect of the case. They seemed to be of the view that the plaintiff's deposition supported by the entries made in his books of account would be sufficient for passing a decree in his favour. With respect to the learned Judges below, they were not right in their view. As held by the Supreme Court as well as by this court in the cases referred to earlier, mere entries in the books of account will not be sufficient to fasten the liability on the defendant particularly when the defendant has not admitted the said entries. The entries in the books of account are merely corroborative piece of evidence. Naturally, the said entries have got to be proved either by examining the plaintiff or some person who has written the books of account. But merely because the plaintiff who is an interested person gives evidence on oath and seeks corroboration from his own books of account, in my opinion, that would not be sufficient to pass a decree in his favour when all these entries have been controverted by the defendant. But merely because the plaintiff who is an interested person gives evidence on oath and seeks corroboration from his own books of account, in my opinion, that would not be sufficient to pass a decree in his favour when all these entries have been controverted by the defendant. As both the courts below had appreciated the evidence through a wrong angle, relying on misconceived notions of law, it is open to this court to disturb the finding of fact recorded by both the courts below. 11. Mr. Oza invited my attention to the letter Ex. 107, wherein the defendant had acknowledged his liability to the tune of Rs. 10,000/-. Mr. Oza therefore urged that when the defendant had previously admitted his liability, it was not necessary for the plaintiff to lead any further evidence and the defendant should not be permitted to resile from his previous statement. In support of his case, he referred to the judgment of the Division Bench of this court in first appeal No. 1009 of 1960, decided on 5-2-1963 (Guj) wherein it was observed :- "The party who has made the admission must know that the statement can be used against him and if he has any explanation to offer, it is for him to enter into the witness box and offer explanation as he can. In our judgment, if a document containing an admission is brought on the record, it means that an opportunity is given to the party concerned to explain the admission and if he fails to avail himself of that opportunity, the effect thereof cannot be that the admission cannot be used as evidence in the case. In the case of a party, it is entirely his choice whether he should go in the witness box or not and, in our judgment. Section 145 cannot have been intended by the Legislature to lead to such a position that valuable evidence furnished by an admission made by a party against himself can be practically nullified by a refusal on the part of that very party to enter into the witness box." There can be no quarrel with the principle enunciated therein and with respect. I am in agreement therewith. The question, however, is - whether the letter. Ex. 107 relied upon by the plaintiff amounts to an admission with regard to the suit transaction. I am in agreement therewith. The question, however, is - whether the letter. Ex. 107 relied upon by the plaintiff amounts to an admission with regard to the suit transaction. It may be noted that this letter was not produced by the plaintiff along with other documents produced by him at the relevant time. The plaintiff did not refer to this letter in his own examination-in-chief. The plaintiff did not rely on this letter as an admission on the part of the defendant in support of his case. Only in cross-examination, the plaintiff confronted the defendant with that letter. The defendant admitted to have written this letter but the defendant did not say that this letter was written with regard to the particular suit transaction. In this letter the defendant has mentioned that it was difficult for him to make payment. He has named certain other creditors to whom he was liable to the tune of Rs. 60,500/-. Taking all these circumstances into consideration, he has mentioned that he was making all efforts to make payment of not only Rs. 10,000/- but whatever amount which would ultimately be found due on taking accounts. This letter does not bear any date. The plaintiff has not stated in his deposition as to when this letter was received by him. The plaintiff and defendant had mutual dealings for the last four years which run to several thousands of rupees. It is not improbable that this letter may have been written by the defendant in the beginning of their mutual dealings. Therefore merely because the defendant had promised to pay Rs. 10000/- or any amount that may be found due by the defendant on taking accounts one cannot draw an inference that this letter pertained to the last settlement of accounts alleged to have been made between them as stated by the plaintiff. There is nothing in this letter to suggest so. In my opinion, therefore, in the absence of any explanation offered by the plaintiff, this letter does not help him at all. This letter cannot be used as an admission in support of the plaintiff's cause of action in the present suit. In my opinion, therefore, this letter will not be helpful to the plaintiff in support of his case. 12. Mr. This letter cannot be used as an admission in support of the plaintiff's cause of action in the present suit. In my opinion, therefore, this letter will not be helpful to the plaintiff in support of his case. 12. Mr. Oza lastly urged that in case this court came to the conclusion that mere entries in the books of account were not sufficient for fastening liability on the defendant, in the interest of justice, the suit should be remanded to the trial Court in order to give the plaintiff an opportunity to lead necessary evidence in support of his case. Mr. Nanavaty who appeared on behalf of the defendant fairly conceded this position. In my opinion, there is great force in the submission made by Mr. Oza. As already observed, both the courts below have gone on the assumption that mere entries in the books of account supported by the sworn testimony of the plaintiff will be sufficient to pass a decree in his favour. Under the circumstances, it would not be proper to dismiss the suit in toto. In my opinion, it would be just and proper if the judgments and decrees of both the courts are set aside and the suit is remanded to the trial Court for proceeding further in the light of the observations made above. 13. In the result, the appeal succeeds. The judgments and decrees passed by both the courts below are hereby set aside and the suit is remanded to the trial Court with a direction to proceed further according to law. It will be open to the plaintiff to amend the plaint and to bring the partners of the dissolved firm on record if deemed proper. It will be open to both the parties to lead additional evidence in support of their respective case. In view of the facts of this case cost of this appeal will abide the final result.