ORDER Mudgal. J. 1. The appellant/plaintiff has filed this appeal under section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 28.1.2004 passed by the Court of IV Additional District Judge, Vidisha in Civil Suit No.11B of 2002 whereby, the suit filed by the plaintiff for recovery of Rs.55,000/- (price of ornaments) against the defendant was dismissed. In this appeal, the appellant is referred to as the ‘plaintiff’ and the respondent as the defendant’. 2. The facts, in brief, of the plaint are that Girdhargopal Bhagat who is father of Vishal Kumar and Gaurav Kumar Bhagat is Power of Attorney holder on behalf of Vishal Kumar and Gaurav Kumar Bhagat who have a shop namely Ramchand Pooranchand Bhagat Sarraf in Vidisha. They are also engaged in the business of money lending. On 19.2.2002 defendant proposed to purchase golden ornaments weighing 122 Gram and 22 Miligram @ Rs. 4,500/- per 10 gram from them and took these ornaments to his home on the pretext that he would pay Rs. 55,000/- towards the cost of those ornaments on being their chosen by family members and he put his thumb impression on the document containing particulars of these ornaments. The defendant thereafter neither returned the ornaments nor paid Rs. 55,000/-, hence, plaintiff served a registered notice upon him on 7.8.2002 but even thereafter the defendant did not respond. Therefore, the suit for recovery of Rs.55,000/- (cost of the ornaments) with interest at the rate of 2% per month was filed on 9.10.2002 by the plaintiff against the defendant. 3. The defendant submitting his written statement has denied the facts in toto as stated in the plaint. It was pleaded that the alleged transaction never took place between the parties and the document Ex. P/2 alleged to be executed in lieu of that having his thumb impression was fabricated. He being a farmer, was not in a position to purchase the ornaments worth Rs.55,000/- and the suit filed by the plaintiff was based on the wrong facts, hence, prayed for dismissal of the suit. 4. After framing of the six issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff as stated above. 5. The following issues that arise for consideration in this appeal are : (I). Whether, the defendant got golden ornaments costing Rs. 4. After framing of the six issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff as stated above. 5. The following issues that arise for consideration in this appeal are : (I). Whether, the defendant got golden ornaments costing Rs. 55,000/- on the pretext of showing them to the members of his family from the plaintiff on 19.2.2002? (ii) Whether the findings given and conclusion drawn by the learned trial Court in the impugned judgment are based on proper reasonings? 6. Heard the arguments and perused the record. 7. Learned counsel for the appellant submits that the findings given by the learned trial Court are based on improper appreciation of the evidence. The counsel further pleads that the gold ornaments were given by the plaintiff to the defendant for the sake of display and choice by his members of his family. Memo of delivering the ornaments to the defendant Ex. P/2 was prepared and the defendant was made to put his thumb impression on it as an indication of his having received those ornaments. There was no reason to disbelieve the said document. Moreover, the plaintiff issued a notice dated 7.8.2002 Ex. P/3 to the defendant by registry receipt Ex.P/4 which was received and acknowledged by the defendant vide Ex-P/5. After receiving the notice the defendant did not controvert the facts stated in the said notice. Conduct of the defendant shows that he had no ground to deny the contents of the notice, owing to which, it would be presumed that the defendant has falsely prepared a story denying the contents of the plaint. Learned counsel further submits that the plaintiff has proved his case by the statement of Girdhar Gopal (PW 1) and Babulal (PW 2) as well as the document Ex. P/1 to Ex-P/5 whereas the defence of the defendant is based only on mere denial. He has not explained as to why the plaintiff has filed the suit if he did not get the ornaments from the plaintiff’s shop. P/1 to Ex-P/5 whereas the defence of the defendant is based only on mere denial. He has not explained as to why the plaintiff has filed the suit if he did not get the ornaments from the plaintiff’s shop. The counsel further pleads that the statement of the defendant is not in accordance with his pleadings as the defendant has pleaded in the written statement that he never purchased the ornaments from the plaintiff’s shop whereas he has admitted in his statement that a few years ago he had purchased some ornaments on cash payment from the plaintiff’s shop. 8. Controverting the submissions, the learned counsel for the respondent submits that the findings recorded by the learned trial Court are just as the document Ex-P/2 produced by the plaintiff is a fake and forged document. Besides it, the said document has not been duly proved by the plaintiff evidence as to its having been executed by the defendant. The counsel further submits that there is no reason on record to interfere in the impugned judgment as the findings are neither perverse nor arbitrary. 9. In order to prove the case, the plaintiff has got two witnesses namely Girdhar Gopal (PW1), father of Vishal Kumar and Gaurav Kumar, holder of the power of attorney appointed by registered power of attorney Ex.P/1 and Babulal (PW2) examined. Girdhar Gopal (PW 1) has tendered his evidence as holder of power of attorney dated 26th July, 2001. The (PW1) depositing statement elaborately in para 1 to 6 has stated that the plaintiff firm deals in jewelery and the defendant used to sell and buy ornaments from the plaintiff’s shop. On 19.2.2002, the defendant took gold ornaments weighing 122 gm and 200 mg worth Rs.55,000/- on the pretext of showing them to the members of his family for their choice and this transaction was recorded in writing vide Ex.P/2. The witness has further deposed that the defendant neither returned the said ornaments nor did he made any payment for it. In this regard, the plaintiff issued notice dated 7.8.2002 Ex.P/3 to the defendant who did not pay any heed to it in spite of receiving it. In corroboration of the same, the witness Babulal (PW 2) has also given a similar statement. In this regard, the plaintiff issued notice dated 7.8.2002 Ex.P/3 to the defendant who did not pay any heed to it in spite of receiving it. In corroboration of the same, the witness Babulal (PW 2) has also given a similar statement. Controverting the plaintiff’s evidence, the defendant has deposed in his statement that he did not make any transaction regarding gold ornaments with the said plaintiff’s firm and he refused to have executed the document Ex. P/2. 10. The statement of Babulal (PW 2) and his very reference at the time of the said transaction on 7.8.2002 do not seem to be credible as the Ex. P/2 does not bear his signature. Moreover, it has not been mentioned in the pleadings any where that Babulal (PW 2) was present when the transaction was made. Even there is no mention of Babulal as a witness in the notice Ex.P/3. Moreover, Girdhar Gopal (PW 1) has too not deposed in his statement that Babulal was present while the said transaction took place. Nowhere, the name of witness (PW 2) Babulal was mentioned before the statement of (PW 1). Considering the said facts and circumstances, the very entry of Babulal (PW 2) at the time of the said transaction does not seem to be convincing. Hence, the statement of (PW 2) is not found to be believable. 11. In paras 9 and 10 of the witness (PW 1) it has come on record that the defendant used to do business with him for the last 10 years in respect of taking money on credit and pledging ornaments and buying and selling the same and in this regard, entry was made in ledgers. The learned trial Court has disbelieved the statement of (PW 1) as the documents of ledgers for showing the entry of this transaction have not been produced in the Court. The said findings do not seem to proper as the document Ex.P/2 has been produced showing the said transaction to have been made between the parties. The learned trial Court has disbelieved the statement of (PW 1) as the documents of ledgers for showing the entry of this transaction have not been produced in the Court. The said findings do not seem to proper as the document Ex.P/2 has been produced showing the said transaction to have been made between the parties. On close reading of the statement of (PW 1) it can be inferred that the transactions like money lending, pledging of ornament, buying and selling were usually entered in the ledgers whereas, in the instant case, the transaction of selling the gold ornaments was not completed formally as the defendant took the gold ornaments in a casual manner just for the sake of displaying them to the members of his family for the selection of the ornaments. In the said circumstances if the entry regarding the ornaments having been taken by the defendant was not made in the ledger it does not affect the credibility of the statement of (PW 1). The reason behind it is that the document of Ex.P/2 regarding handing over the gold ornament was prepared and the thumb impression was put on it by the defendant who has admitted in paras 4 and 8 of his statement that he being educated up to second standard usually put his thumb impression. Although, the thumb impression borne on Ex. P/2 has not been verified by a finger expert yet the document Ex. P/2 cannot be doubted on this very ground. 12. The notice Ex. P/3 was given by the plaintiff to the defendant vide registered receipt Ex. P/4. The said notice was received and acknowledged by the defendant vide Ex. P/5. Though the defendant has denied in the written statement his having received the notice Ex. P.3, yet he did not refuse having received the notice in the statement of chief examination. However, he denied his receiving the said notice in para 8 of his cross-examination. The defendant has admitted in para 8 of his statement that the address mentioned on Ex. P.5 is his postal address. In the instant case, the notice Ex. P/3 was sent through registered A.D, so it can be presumed that the notice might have been delivered on the defendant because, the defendant has failed to prove his defence by producing any cogent evidence in rebutting the said presumption. P.5 is his postal address. In the instant case, the notice Ex. P/3 was sent through registered A.D, so it can be presumed that the notice might have been delivered on the defendant because, the defendant has failed to prove his defence by producing any cogent evidence in rebutting the said presumption. In this regard, judgments of this Court in Shivdayal v. Union of India 1980 (I) MPWN 144 and District Manager, FCI v. Nemi Sager Saxena 1985 MPWN 260 are worth mentioning. Mere statement of denial given by the defendant during cross-examination cannot be termed an adequate evidence to falsify the story of receiving the notice Ex.P/3. Further, soon after receiving the said notice, the defendant did not deny the contents of the notice Ex.P/3 at once. Thus, non rebuttal of the contents of the notice by the defendant at the earliest opportunity clearly shows his lack of defence and his implied admission of the contents of the notice. Subsequently, denial of the allegations of the plaint made by the defendant in the written statement appears to be afterthought and is based on eventual legal advice. 13. It is wroth noting that there is no consistency in the written statement and the statement deposed by the defendant. In paras 1 to 4 of the written statement the defendant has already denied any such transaction with the plaintiff regarding buying and selling ornaments. In para 11 of the written statement, he had pleaded that he had pledged some ornaments once or twice in the life time of erstwhile proprietor Pannalal and Ramchandra long long ago and further alleged that he had not made any transaction with the plaintiff’s shop for the last 10 or 12 years whereas, he has admitted in para 5 and 6 of his statement that he made a transaction from the plaintiff’s shop namely 16 or 17 years ago regarding purchase of silver and gold ornaments. Further, he deposed that he purchased those ornaments on cash payment, however, he did not produce the receipt of the cash payment. It is obvious from the said facts that the defendant has old acquaintance with the plaintiff and has been customer of the plaintiff’s shop. In such circumstances, the story put forth by the plaintiff that he had given the ornaments to the defendant for sheer display and selection by the members of his family seems to be believable. It is obvious from the said facts that the defendant has old acquaintance with the plaintiff and has been customer of the plaintiff’s shop. In such circumstances, the story put forth by the plaintiff that he had given the ornaments to the defendant for sheer display and selection by the members of his family seems to be believable. 14. The defendant has neither pleaded in his written statement nor did he disclose any thing in his statement that if the said transaction was not made between the plaintiff and him as to why the plaintiff has field this suit against him without any cause after paying Court fees in the trial Court as well as in the appellate Court. Moreover, the defendant had remained silent after receiving the demand notice Ex. P/ 3. It is true that in the instant case, the plaintiff has given only his statement in order to prove his case and the defendant has given his statement in rebuttal of the plaintiff’s evidence. However, the statement of the plaintiff as well as his story alleged in the plaint appears to be credible and probable as his statement has been corroborated by the document of Ex. P/2 and P/3 since there is further consistency in the statement of (PW 1) and the pleadings made in the plaint while, the version of the defendant is lacking consistency in the pleadings and his statement as stated earlier. Besides it, considering the facts and circumstances as discussed earlier, the story put forth by the plaintiff and his statement are found trustworthy and reliable. The learned trial Court appears to have failed in the appreciation of the evidence and the consideration of the facts and entire circumstances of the case. 15. Having taken into account the above facts and circumstances of the case, it is concluded that the plaintiff has succeeded in proving his case that the defendant had taken the gold ornament worth Rs.55,000/- for display to and selection by his family members for eventual purchase and the defendant neither returned the ornaments nor did he make the payment. 15. Having taken into account the above facts and circumstances of the case, it is concluded that the plaintiff has succeeded in proving his case that the defendant had taken the gold ornament worth Rs.55,000/- for display to and selection by his family members for eventual purchase and the defendant neither returned the ornaments nor did he make the payment. Hence, the plaintiff is entitled to get the decree for Rs.55,000/- and interest @ of 1% per month from the date of the transaction till the filing of the suit on 9.10.2002 and thereafter the interest shall be payable @ 6% per annum till the entire payment is made fully by the defendants. 16. Therefore, allowing the appeal and setting aside the impugned judgment and decree of the learned trial Court, the suit is hereby decreed as stated earlier. The cost of both the Courts of the plaintiff shall be borne by the defendant. The decree be drawn accordingly.