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Himachal Pradesh High Court · body

2012 DIGILAW 767 (HP)

Digvijay Shandil v. Himachal Enterprises

2012-10-31

V.K.AHUJA

body2012
Judgment V.K. Ahuja, J. 1. This is a regular first appeal filed by the appellant under Section 96 of the Code of Civil Procedure against the judgment and decree, dated 2.3.2005, passed by the learned Additional District Judge (Fast Track Court), Solan, decreeing the suit of the respondent for recovery of `2,25,000/- alongwith interest as against the appellant. 2. Briefly stated, the facts of the case are the respondent, hereinafter also referred to as the plaintiff, filed a suit for recovery of Rs.2,25,000/-alongwith interest as against the appellant, hereinafter also referred to as the defendant. It was alleged by the plaintiff that he had claimed the suit amount as price of food and vegetable boxes sold to defendant in between 8.5.2000 to 27.11.2000. The plaintiff alleged that he had been dealing in the business of manufacturing and supply of such boxes at Solan and he was maintaining regular accounts. The defendant acknowledged his liability by signing ledger for a sum of Rs.2,01,025/-. The plaintiff claimed that as per the mercantile practice, he was entitled to interest at the rate of 18%, hence the suit for recovery of the amount. 3. Defendant took up various pleas in regard to the locus standi, maintainability, that the firm was not a registered one and there was no relationship of seller or buyer between the parties. However, it was admitted that the plaintiff had been running business of selling fruit and vegetable boxes at Solan in the name and style of Himachal Enterprises, but denied having purchased any such boxes on credit from the plaintiff. He pleaded that he was dealing with the son of the plaintiff, namely, Deepak Garg and they wanted to start selling such boxes at Kandaghat. The plaintiff had been sending boxes for sale at Kandaghat and collecting sale proceeds from the defendant. The shop was closed in the month of December, 2000 and the plaintiff took away the entire record. The defendant pleaded that he signed on the ledger since the plaintiff’s son told him that his signatures were required to file a sales tax return and denied his liability to pay any amount to the plaintiff. 4. On the pleadings of the parties, the followings issues were settled by the learned trial Court: “1. Whether the plaintiff is entitled to recover the suit amount alongwith interest from the defendant as alleged? OPP 2. 4. On the pleadings of the parties, the followings issues were settled by the learned trial Court: “1. Whether the plaintiff is entitled to recover the suit amount alongwith interest from the defendant as alleged? OPP 2. Whether the plaintiff has locus standi to file the suit? OPD 3. Whether the plaintiff is not a registered firm, if so, its effect? OPD 4. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided issues No.1 to 3 in favour of the plaintiff and as against the defendant and consequently, decreed the suit of the plaintiff in full. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that the plaintiff had failed to prove the transaction by independent evidence. It was also submitted that the entries in the book of accounts are not sufficient to fasten liability on the defendant. It was also submitted that the plaintiff had failed to produce the scribe of the entries made in the register or the bill books and since some blank spaces were left in the ledger, therefore, it cannot be said that the books of account were being maintained properly or these could be relied upon to fasten the liability upon the defendant. Thus, it was submitted that the findings to the contrary are liable to set aside and the appeal deserves to be allowed. 8. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein by the learned trial Court and submitted that there were no blank spaces in the ledgers, but these were in regard to the bill of account produced during the course of trial and some sheets were not having any entries and thus, it was submitted that since there were no blank spaces left in the ledgers, the admissions made by the defendant in those ledgers had to be relied upon and were rightly relied upon by the learned trial Court. 9. 9. In so far as the findings of the learned trial Court are concerned in regard to locus standi or that the plaintiff firm was not registered one, the learned trial Court had given its reasoning under Issues No.2 and 3 that the plaintiff had locus standi to file the suit and since it was a proprietorship concern, it did not require compulsory registration and accordingly, both these issues were decided in favour of the plaintiff and as against the defendant. No submissions were made in regard to the findings given under issues No.2 and 3 in this regard and as such these findings are liable to be affirmed. 10. In regard to the findings under issue No.1, the learned counsel for the appellant has placed reliance upon a number of decisions, which were also cited before the learned trial Court. Reliance was placed upon the decision in Brij Mohan Bakhshi versus Amar Nath Bakhshi and others, AIR 1980 Jammu and Kashmir 54. The observations made in para 8 are relevant, which are reproduced below: “Where a party only admits the signature and also explains the circumstances which led to his signing the document without knowing its contents it cannot be said that the party has admitted its execution. Execution implies conscious execution and knowledge of its contents.” 11. Another decision relied upon was in Jai Narain Dass and another versus Zubeda Khatoon, AIR 1972 Allahabad 494, in which the following observations were made in para 4: “In order to apply the provisions of Section 34 of the Act it would be necessary to establish that the account books were regularly kept in the ordinary course of business. The entries made in such account books would then become relevant and might be considered alongwith the other evidence to charge any person with liability but these entries alone would not be sufficient to fasten any liability on any person. The entries in the account books are, therefore, merely corroborative and primary evidence is always needed to prove the transaction mentioned therein………………..” 12. The decision in Charan Dass versus Lal Chand and another, A.I.R. 1939 Lahore 412, relied upon by the learned counsel for appellant, shows that the following observations were made: “If a number of blank spaces have been left in the rokar bahi in different places the conclusion that rokar bahi is unreliable would be fully justified.” 13. The decision in Charan Dass versus Lal Chand and another, A.I.R. 1939 Lahore 412, relied upon by the learned counsel for appellant, shows that the following observations were made: “If a number of blank spaces have been left in the rokar bahi in different places the conclusion that rokar bahi is unreliable would be fully justified.” 13. Another decision relied upon was in Thakur Gajendra Shah and another versus Thakur Shankar Bux Singh and another, A.I.R. 1935 Oudh 16, in which the following observations were made: “Where the writer of the account books is alive but has not been examined, the account books are not duly proved and must be ruled out as inadmissible, even though they seem to be genuine and have been made use of by both the parties as it suited their convenience.” 14. The decision in State versus Kishan Dayal, A.I.R. 1952 Him.P.& Bilaspur 46, was also relied upon in which the following observations were made: “Entries in the books of account regularly kept in the course of business are not alone sufficient evidence to charge any person with liability. In order to fix such liability it is necessary for the prosecution to prove the alleged offence by independent evidence and the entries in the books of account can then be used as a piece of corroborative evidence.” 15. It is clear from a perusal of the above decisions that they are based upon the facts of those cases which are quite distinct from the facts of the present case. In the present case, the plaintiff is not relying upon the entries solely in the ledger but is relying upon the signatures on the ledger made by the defendant which amounts to admission of the amount shown therein. In the present case, there were no blank spaces left in the ledgers, but it makes a reference only to the bill books of which some pages were blank as admitted by the plaintiff. In the present case, the entries are in the ledgers duly maintained without any blank spaces and having the signatures of the defendant in token of the balance shown therein. Therefore, the defendant cannot wriggle out of the admissions made by him of putting his signatures in the ledgers. 16. Apart from the above, no reasonable explanation has been given by the defendant as to why he singed the entries in the ledger books. Therefore, the defendant cannot wriggle out of the admissions made by him of putting his signatures in the ledgers. 16. Apart from the above, no reasonable explanation has been given by the defendant as to why he singed the entries in the ledger books. He comes up with the plea of having advanced a sum of `1.00 lac to the plaintiff but does not ask for any relief when he signs the ledgers showing the balance due towards him. In the written statement, he had taken the plea that the plaintiff’s son was his friend, who obtained his signatures on the accounts which were required to be produced before the sales tax authorities, which was also stated by him in the affidavit sworn by him, but when he was cross examined, he stated that these were obtained on the pretext of filing of income tax returns. There is also difference in his statement and the pleadings when he stated that these signatures were obtained in the month of April, but in the written statement it was alleged that these were obtained in the month of July. 17. In regard to the entries in the register that the scribe i.e. the son of the plaintiff was required to be examined, I am not in agreement with the submission since the entries may have been made in the hands of different persons, who may have been maintaining ledger books and it was not necessary to examine each and every person who may have made the entries in the register or the truck drivers through whom goods were sent when the ledger accounts are regularly maintained and have been produced in the court. If the defendant insisted, he could have got the statement deferred and the plaintiff’s son or whosoever was the scribe could have been examined, but once the ledger accounts were regularly maintained without any blank spaces, it is not necessary to examine each and every person who may have made entries therein. The plank of the case of the plaintiff is the admission made by the defendant by giving his signatures in the ledger books showing balance for which he has no explanation and, therefore, the findings of the learned trial court decreeing the suit of the plaintiff do not call for an interference by this Court. No other point was urged. 18. No other point was urged. 18. In view of the above discussion, accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed alongwith costs including lawyer’s fee.