JUDGMENT: The defendants in O.S.No.851 of 1997 on the file of the III Additional Senior Civil Judge, Visakhapatnam being aggrieved by the judgment and decree, dated 15-03-2004 made in O.S.No.851 of 1997, had preferred the present appeal. 2. In A.S.M.P.No.11672 of 2004 on 29-06-2004 interim stay was granted on condition of deposit of half of the decretal amount and costs within a period of eight weeks. The same had been complied with and the amount deposited had been permitted to be withdrawn by an order dated 27-10-2004 in A.S.M.P.No.13865 of 2004 and 11672 of 2004. 3. The respondent in the appeal as plaintiff in the suit aforesaid, filed the suit for recovery of a sum of Rs.2,58,980-39ps with subsequent interest and costs. The learned III Additional Senior Civil Judge, Visakhapatnam in the light of the respective pleadings of the parties having settled the issues, recorded the evidence of P.W.1, marked Exs.A1 to A16 and recorded findings and ultimately came to the conclusion that the appellants-defendants are liable to pay Rs.2,58,980-39ps with subsequent interest at 12% per annum from the date of the suit i.e. 03-10-1997 till the date of the decree, i.e.15-03-2004 and thereafter at 6% per annum till the date of realization. Aggrieved by the same, the defendants preferred the present appeal. 4. Sri O. Manohar Reddy, learned counsel appearing for the appellants had taken this Court through the evidence of P.W.1 and also Exs.A1 to A16 and would maintain that in the absence of acceptable evidence, the trial Court totally erred in passing the decree. The learned counsel also would maintain that the question of drawing adverse inference as against the appellants-defendants would not arise for the reason that the respondent as plaintiff may have to establish its case irrespective of the fact whether the defendants entered into the witness box or not. The learned counsel also had drawn the attention of this Court to Section 114 of the Indian Evidence Act, 1872 and the scope and ambit thereof and further distinguished the decision in VIDHYADHAR v. MANKIKRAO, AIR 1999 SC 1441 = 1999 (2) ALD (SCSN) 17. 5. The learned counsel also had drawn the attention of this Court to Section 114 of the Indian Evidence Act, 1872 and the scope and ambit thereof and further distinguished the decision in VIDHYADHAR v. MANKIKRAO, AIR 1999 SC 1441 = 1999 (2) ALD (SCSN) 17. 5. On the contrary Sri Satyanarayana, learned counsel appearing for the respondent-plaintiff had taken this Court through the findings recorded by the trial Court, the evidence of P.W.1 and also referred to Exs.A1 to A16 in general and Exs.A7 and A9 in particular and would maintain that in the light of the facts and circumstances and the evidence available on record, the findings recorded by the trial Court cannot be found fault. The learned counsel also placed strong reliance on the decision of the Apex Court in VIDHYADHAR v. MANKIKRAO(supra). 6. Heard the counsel and perused the oral and documentary evidence available on record. 7. In the light of the rival submissions made by the counsel on record, the following points arise for consideration in this appeal. 1. Whether the findings recorded by the trial Court are to be confirmed or liable to be set aside in the facts and circumstances of the case? 2. If so, to what relief the parties would be entitled? 8. Point No.1:- The parties hereinafter would be referred to, for the purpose of convenience, as shown in O.S.No.851 of 1997 aforesaid. 9. The plaintiff filed the suit for recovery of a sum of Rs.2,58,980-39ps with subsequent interest and costs. It was averred in the plaint as hereunder: The plaintiff concern does business in transport. The defendants for the purpose of transporting their products have appointed the plaintiff as one of their Transport Contractors vide letters dated 30-11-1992 and 19-01-1994 of the defendants. The first defendant passed the bills and arranges payment of the transport charges to the plaintiff. It is from the 2nd defendant distribution unit at Visakhapatnam that the products are dispatched to several places. The plaintiff transported light diesel oil, fuel oil and bitrumen from Visakhapatnam to Sanatnagar Pamjam, Hyderabad, Nandyal and Kavali on different dates and submitted the bills for payment of transport charges amounting to Rs.2,58,980.39ps to the defendants but the defendants have not paid the amount so far. Carbon copies of five bills submitted for payment are filed and they may be read as forming part of the plaint. Carbon copies of five bills submitted for payment are filed and they may be read as forming part of the plaint. Some of the bills are misplaced. But there is no dispute regarding the transport of the products. Two product dispatch notes dated 27-04-1995 and 19-07-1995 are filed. The invoice numbers of the products transported on 02-11-1994, 14-11-1994 and 25-11-1994 are 810960, 811034 and 819112 respectively but the same are also misplaced. The plaintiff addressed a letter dated 23-05- 1995 to the Deputy Manager, BPCL, Visakhapatnam, requesting payment of transporting charges for the product transported on 02-11-1994, 14-11-1994 and 25-11-1994 but the defendants have not so far paid the transport charges, office copy of the said letter is filed. The plaintiff again addressed a letter dated 09-04-1997 to the Deputy Manager, Visakhapatnam Distribution Unit, Malkapuram, Visakhapatnam marking a copy to the Manager (Transport) of the first defendant requesting payment of transport charges due by the said date butt the defendants have not made the payment. The plaintiff again addressed a letter on 08-05-1997 to the Manager, Transport. Still the defendants have not chosen to make the payment. Finally, the plaintiff got issued a registered lawyer's notice dated 28-06-1997 to the first defendant demanding payment of transport charges due amounting to Rs.2,58,980.39ps. The said notice was received by the manager of the 1st defendant but the payment has not been made. Hence the suit. 10. The defendants, who are the appellants herein resisted the suit and filed written statement denying the plaint allegations. It was pleaded in their written statement that : It is true that the plaintiff transported diesel oil bitumen etc. from Visakhapatnam to different places. The plaintiff has been transporting the products of M/s. Bharat Petroleum Corporation Ltd. The Bharat Petroleum Corporation Ltd., is a huge corporate body with several departments and each department will be independent of the other departments. As such it is the transport project at Madras headed by Chief Manager and Manager, who looks after the transportation of the products of M/s. Bharat Petroleum Corporation. It is dispatch unit at Visakhapatnam headed by Senior Manager that entrusts products to the transporter. As per the agreement entered into by the plaintiff, after he has taken any load for transport, he has to submit the acknowledged CCDA to the dispatching unit of M/s. B.P.C.L. for having unloaded the load at customers' place. It is dispatch unit at Visakhapatnam headed by Senior Manager that entrusts products to the transporter. As per the agreement entered into by the plaintiff, after he has taken any load for transport, he has to submit the acknowledged CCDA to the dispatching unit of M/s. B.P.C.L. for having unloaded the load at customers' place. Then he has to submit his bill to the inward transport unit or department at Madras who after checking it will pass the bill to be paid by dispatch unit at Vizag. The plaintiff has been taking unduly long time for submitting acknowledged CCDA for the products received by him for transport and consequently or otherwise submitting bills after taking a long time. The products to be transported are essential commodities. The plaintiff did not submit some inflated bills and by the time they are in process of being passed for the correct due amount, it came to light that the plaintiff was entrusted for transportation of 11.88117 of Bulk Bitumen to D.E.E. (R & B) Hyderabad, through CCDA Bo. 473/54144 dated 29-06-1995 i.e. 12-08 Mts of Bulk Bitumen to Asst. Engineer CR 7 B Kavali, through CCDA 511/20356 dated 27-07-1993 and i.e. one load to DE (R & B) Hyderabad through CCDA 616/20491 dated 10-07-1995 but the plaintiff did not submit the acknowledged CCDAs in spite of repeated enquiries placed on the plaintiff in writing and it is as such the Manager Transport at Madras had to terminate the transportation contract with the plaintiff as intimated by his Regd. Letter dated 23-03-1996 by which date also the acknowledged CCDAs were submitted. In view of the above M/s. B.P.C.L. could not process the bills and paid as huge amount was found to be recovered from the plaintiff towards the cost of the products entrusted to him. The claim made by the plaintiff is not proper and correct and is barred by time and prays to dismiss the suit. 11. On the strength of these pleadings, the following issues were settled by the trial Court. 1. Whether the plaintiff is entitled to the suit claim? 2. To what relief? 12. On behalf of the plaintiff, one M. Divakar was examined as P.W.1 and Exs.A1 to A16 were marked. On behalf of the defendants, none had been examined. P.W.1 deposed in detail about the case of the plaintiff as averred in the plaint. 1. Whether the plaintiff is entitled to the suit claim? 2. To what relief? 12. On behalf of the plaintiff, one M. Divakar was examined as P.W.1 and Exs.A1 to A16 were marked. On behalf of the defendants, none had been examined. P.W.1 deposed in detail about the case of the plaintiff as averred in the plaint. P.W.1 deposed that the defendants for the purpose of transporting their products appointed the plaintiff's transport represented by its proprietor as one of their transport contractors on 19-12-1994. The first defendant passed the bills and arranged payment of transport charges to the plaintiff. The second defendant is the distribution unit at Visakhapatnam. He also deposed that from there, the products of the defendants were dispatched to various places in the State and the defendants transported light diesel oil, fuel oil and bitrumen from Visakhapatnam to Sanath Nagar Pamjam, Hyderabad, Nandyal and Kavali through the plaintiff transport. The bills for payment of transport charges were Rs.2,58,980-39ps and despite the claims made by the plaintiff, the defendants did not pay the said amounts. The invoice numbers of the products transported on 02-11-1994, 14-11-1994 and 25-11-1994 are 810960, 811034 and 819112 respectively. P.W.1 also deposed that certain bills were misplaced. Subsequent thereto, P.W.1 addressed a letter on 23-05-1995 to the Deputy Manager, BPCL, Visakhapatnam requesting payment of transport charges for the product transported in the above said bills. Again he addressed a letter on 09- 04-1997 requesting the defendants to make payment of the transport charges. Later, on 08-05-1997 also another letter was issued requesting for payment. Finally, P.W.1 issued a registered notice through an advocate on 28-06-1997 to the first defendant demanding the payment of Rs.2,58,980.39ps. The said notice was received by the first defendant, but no payment had been made. The documents marked by the plaintiff are, Ex.A1 is the letter from defendant to the plaintiff dated 30-11-1992. Ex.A2 is the letter from the defendant to the plaintiff dated 19-12-1994. Ex.A3 is the bill No.NT/33/95. Ex.A4 and A5 are the product dispatch notes. Ex.A6 is the letter dated 23-05-1995. Ex.A7 is the letter dated 08-05-1997. Ex.A8 is the letter dated 09-04-1997. Ex.A9 is the registered lawyer's notice dated 28-06-1997. Ex.A10 is the postal receipt and Ex.A11 is the postal acknowledgment. Ex.A12 is the product dispatch note dated 19-07-1995. Ex.A13 is a letter dated 19-12-1995 from the defendant to the plaintiff. Ex. Ex.A6 is the letter dated 23-05-1995. Ex.A7 is the letter dated 08-05-1997. Ex.A8 is the letter dated 09-04-1997. Ex.A9 is the registered lawyer's notice dated 28-06-1997. Ex.A10 is the postal receipt and Ex.A11 is the postal acknowledgment. Ex.A12 is the product dispatch note dated 19-07-1995. Ex.A13 is a letter dated 19-12-1995 from the defendant to the plaintiff. Ex. A14 is another letter dated 30-11-1992 from the defendant to the plaintiff. Ex.A15 is the letter dated 23-03-1996 from the defendant to the plaintiff and Ex.A16 is the Bill No.NT/7/95. P.W.1 deposed about all the exhibits in detail. Though the averments made in the plaint had been denied by the defendants, none entered into the witness box so as to substantiate the specific stand taken by them in their written statement. In VIDHYADHAR v. MANKIKRAO (supra), the Apex Court observed at Paras 15 and 16 as follows: "It was defendant No.1 who contended that the sale deed, executed by defendant No.2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs.500/- were paid as sale consideration to defendant No.2. He further claimed that payment of Rs.4,500/- to defendant No.2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No.1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madhya Pradesh 225, also followed the Privy Council decision in Sardar Gurbaksh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punjab and Haryana 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box." 13. Submissions at length were made by the counsel on record relating to the applicability or otherwise of Section 114 of the Indian Evidence Act, 1872 to the facts on hand. Ex. A7 is the letter dated 08-05-1997 apart from several other letters which had been referred to above. Ex.A9 is the registered lawyer's notice dated 28-06-1997 wherein specific demand had been made. In this regard, there was no response. It is pertinent to note that not only the defendants had not entered into the witness box at all but when several demands had been made, there was no response from the defendants' side and apart from this aspect of the matter, when specific demand had been made through an advocate by issuing a notice, Ex.A9, there was no response. It is no doubt true that merely because no reply had been given, always it cannot be said that the claim of the plaintiff had to be taken as proved. But, however, while appreciating the facts of referred case all the facts and circumstances to be taken into consideration equally. The non-giving of reply also may have to be taken into consideration. Here is a case where there are series of letters made by the plaintiff making a demand and the evidence of P.W.1 is clear and categorical on this aspect. But, there was no response from the defendants' side. The non-giving of reply also may have to be taken into consideration. Here is a case where there are series of letters made by the plaintiff making a demand and the evidence of P.W.1 is clear and categorical on this aspect. But, there was no response from the defendants' side. Subsequent thereto, specific demand had been made by the plaintiff by issuing a notice through an advocate, Ex.A9 and for this also, there was no response. Hence, in the light of the facts and circumstances, the clear evidence of P.W.1 and also Exs.A1 to A16 and in view of the fact that though the averments made in the plaint had been denied in the written statement, no evidence had been adduced at all by the defendants, the trial Court arrived at the correct conclusion and hence the findings recorded by the trial Court cannot be found fault and accordingly, the said findings are hereby confirmed. 14. Point No.2:- In the light of the findings recorded above, the appeal being devoid of merit, the same shall stand dismissed. But, however, in the facts and circumstances of the case, the parties do bear their own costs.