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1979 DIGILAW 63 (ORI)

NIRANJAN LAL v. MOTILAL GUPTA

1979-05-03

N.K.DAS

body1979
JUDGMENT : N.K. Das, J. - Defendant No. 1 has filed this revision against a judgment of reversal in a suit for recovery of money on khata account relating to sale transaction. 2. Originally, there were four Defendants including the present Petitioner. Plaintiff is a registered partnership firm dealing in grocery articles and the Defendants constitute a joint Hindu family, of which Defendant No. 4 is the Karta. Defendants were carrying on business in grocery articles in the name of Defendant No. 1 and for such business used to purchase grocery articles on credit from the Plaintiff-firm in his name and used to make payments from time to time from 1968 to 1969. Defendant No. 1 brought articles from the Plaintiff firm on credit worth Rs. 3868.15 including previous balance of Rs. 2,805.91 from 14-11-1970 to 5-12-1970 and made payments of Rs. 3,403.00 between 30-10-1970 and to 3-4-1971. Thus, a sum of Rs. 465.15 remained outstanding against Defendant No. 1. The other Defendants have been benefited by such transaction. The Plaintiff has entered the present transaction in his accounts as well as the payments made by Defendant No. 1 and the accounts are maintained in regular course of business. The Defendants did not clear up balance in spite of repeated demands including a demand by pleader's notice, in response to which Defendant No. 1 gave reply denying the liability for the claim. The Plaintiff has claimed Rs. 62.64 as compensatory interest with effect from the last date of credit transaction. The total due claimed against the Defendants is Rs. 527.79 paise. As the appellate Court has decreed the suit only against Defendant No. 1, there is no necessity to refer to the contents of the written statement of the other Defendants. Defendant No. 1 in his written statement has admitted the transactions proved by the Plaintiff firm but has denied to have purchased any article on credit worth Rs. 570/- from the Plaintiff on 12-9-1970 and specifically denies the concerned credit dated 12.9.1970. He has further taken the stand that he made excess payment to the Plaintiff to a tune of Rs. 104.54 and he came to know about such excess payment at the time of Kalipuja. As he demanded refund of the said excess amount and stopped business with the Plaintiff, this suit has been foisted with false allegations. He has further taken the stand that he made excess payment to the Plaintiff to a tune of Rs. 104.54 and he came to know about such excess payment at the time of Kalipuja. As he demanded refund of the said excess amount and stopped business with the Plaintiff, this suit has been foisted with false allegations. He has also claimed that the Plaintiff is not entitled to compensatory interest. 3. The trial Court dismissed the suit holding that the Plaintiff has not been able to prove the transactions. The appellate Court has decreed the suit basing on the entry Ext. 4 which has been corroborated by the oral evidence of the Plaintiff and by the entry in the sales-tax register Ext. 3. He has further held that Defendant No. 1 actually took kerosene oil on credit worth Rs. 50/- as alleged by the Plaintiff. 4. An other transactions appearing in the khata account Ext. 4 has been admitted by the Defendant No. 1 excepting the entry dated 12-9-1970 for Rs. 570/-. This relates to the transaction in respect of kerosene oil said to have been sold by the Plaintiff to Defendant No. 1. The appellate Court has not accepted the credit memo Ext. 6 and the sales-tax register Ext. 6. But he has accepted the entry in the sales-tax register Ext. 3. It is well settled that in a suit of the present nature, the Plaintiff cannot get a decree simply on the entry Ext. 4. This entry should be corroborated by some evidence. In Chandradhar Goswami and Others Vs. The Gauhati Bank Ltd. it has been held that the retires in the books of account kept in course of business shall not alone be sufficient evidence to charge any person with liability. 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 there under, except where the person to be charged accepts the correctness of the books of account and does not challenge them Such a question arose before this Court in Kelu Sahu v. Hadibandhu Sahu 28 (1967) C.L.T. 825. It has been held that Section 34 of the Evidence Act enacts that entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire, but such statement shall not alone be sufficient evidence to charge any person with liability. All that the law requires is that the entries must be corroborated. Any evidence which is relevant under the Evidence Act would be sufficient for the purpose at corroboration which would vary in each case. The materials for corroborating may be contemporaneous vouchers, receipts or any other documentary evidence or the testimony of witnesses. It is not necessary that independent oral evidence is to be given in each case. Even the evidence of the Plaintiff himself may be sufficient for corroboration provided the Court accepts the same. Thus no Inflexible rule as to the test of corroboration be prescribed. Any relevant evidence under the Evidence Act, if accepted as true can corroborate the entry. 5. It has been proved by P.W. 1 that the account book Ext. 2 is maintained in the regular course of business and Ext. 4 is the entry In the account book Ext. 2. Defendant No. 1 has also admitted all other entries in the account book Ext. 2, which relate prior to 12-9-1970 and subsequent to 12-9-1970. On the same day Defendant No. 1 took the articles on credit worth Rs. 999.50 as per the credit memo Ext. 1. The appellate Court has held that it the Defendant did not take articles on credit worth Rs. 570/- on that date, there is no reason why entries were made in the account book showing purchase of such articles. The transaction in question is not the last transaction in the account book. The appellate Court on examining the account book has come to the conclusion that the relevant entry does not appear to have been subsequently made or interpolated. Defendant No. 1 has taken the stand that On accounting it was found that he made excess payment to the Plaintiff to a tune of Rs. 104.85. If the entry relating to the particular transaction is excluded, question of excess payment also does not arise. Defendant No. 1 has taken the stand that On accounting it was found that he made excess payment to the Plaintiff to a tune of Rs. 104.85. If the entry relating to the particular transaction is excluded, question of excess payment also does not arise. The appellate Court has further held that Defendant No. 1 admits that he has maintained a purchase register which would show that he has not purchased any kerosene on 12-9-1970. The learned Counsel for the Petitioner submits that Ext. H is the khatian produced by Defendant No. 1 and the finding of the lower appellate Court In this respect is an error on record. After going through the evidence of Defendant No. 1 (D.W. 2), st appears that besides the khatian Ext. H he also maintains a separate purchase register which would shown that he has not purchased kerosene on the relevant date. The appellate Court, has, therefore, rightly held that for non-production of the purchase book and no explanation being advanced for such non-production, adverse inference can be drawn against Defendant No. 1. When all other transactions 'are admitted by Defendant No. 1, it can never be said that the Plaintiff has falsely made the entry in the account book which has also been found with cogent reasons to be genuine by the appellate Court. 6. The appellate Court has also held that the sales-tax register Ext. 3 corroborates the entry Ext. 4. This register was not accepted by the trial Court to be genuine. The appellate Court has given reasons for accepting the same to be genuine. The ground on which the appellate Court rejected this Ext. 3 is that it bears no signature or seal of any Officer of the Sales-Tax Department. In absence of any evidence that this book was checked by the Sales-Tax Officer at any time, it is quite natural that this book may not bear the signature of any officer of the Department. In this respect, the finding of the appellate Court cannot be said to be without merit. 7. The findings on which the appellate Court has accepted Ext. 4 and Ext. 3 to be genuine, and has also accepted the evidence of the Plaintiff are findings of facts. These findings cannot be said to be by illegal exercise of jurisdiction or exercise of jurisdiction with material irregularity. 7. The findings on which the appellate Court has accepted Ext. 4 and Ext. 3 to be genuine, and has also accepted the evidence of the Plaintiff are findings of facts. These findings cannot be said to be by illegal exercise of jurisdiction or exercise of jurisdiction with material irregularity. After going through the evidence and looking to the documents, I am also satisfied that there are no compelled reasons to interfere with the findings of the appellate Court in this respect and I hold that the Plaintiff is entitled to the amount relating to Ext. 4. The appellate Court has decreed the Plaintiff's suit in toto. The Plaintiff has claimed interest from 5-12-1970 up to the date of institution of the suit at the rate of b% per annum. In the plaint it is stated that this claim of interest is by way of compensatory interest for non-payment of the amount. No specific contract in this respect has been pleaded. Though it is averred that there was a pleader's notice sent by the Plaintiff, such notice has not been proved in Court. The Plaintiff also does not state anything in his deposition relating to the claim of interest. In view of these circumstances, I hold that the Plaintiff is not entitled to Rs. 62.64 paise claimed as interest from 5-12-1970 to 8-3-1973. 8. In the result, the revision is allowed in part and the decree of the appellate Court is modified as follows: The suit is decreed in part for Rs. 465.15 paise with corresponding cost on contested scale together with pendente lite and future interest at the rate of 3% per annum till realisation. There will be no order for costs of this revision. Final Result : Allowed