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2015 DIGILAW 730 (GAU)

Eastern Enterprise v. Diganta Saikia

2015-06-11

NISHITENDU CHAUDHURY

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JUDGMENT : Nishitendu Chaudhury, J. 1. This first appeal at the instance of the plaintiff has been instituted against judgment and decree dated 19.12.2008 whereby learned trial court had dismissed the suit of the plaintiff. Present appellant is a firm known as M/s. The Eastern Enterprise. The pleaded case of the plaintiff is that defendant was a regular customer of the plaintiff and used to purchase the I.M.F.L. & M. BEER from the plaintiff. In course of regular business defendant purchased I.M.F.L. of Rs. 1,11,567/- on 21.05.2001 and Rs. 30,687/- on 11.06.2001. Invoices and transit passes were prepared in the name of the defendant. Similarly, invoice dated 13.07.2001 reveals sale of Rs. 1,24,750/-. All these sales are projected in the Books of Accounts of the plaintiff against the ledger maintained in the name of the defendant. According to the plaintiff, since 2004 it has been maintaining accounts in computer. The defendant did not make payment of the aforesaid amounts but made a part payment of Rs. 500/- on 15.12.2006. As the defendant did not make any further payment thereafter the plaintiff served a pleader's notice on the defendant through Mr. K. Bhuyan, Advocate on 12.11.2007 demanding the amount along with interest at the rate of 18% per annum within 10 days. The defendant replied to the notice on 05.12.2007 through his Advocate but failed to furnish any authentic document/money receipt to prove that it had cleared its dues in any point of time. Under such circumstances, filing of the suit became necessary. Plaintiff stated that cause of action of the suit arose on 21.05.2001, 11.06.2001 and 13.07.2001 on which dates bills were raised and on 15.12.2006 when last payment was made by the defendant. According to the plaintiff, cause of action also arose on 12.11.2007 when the plaintiff made demand by serving pleader's notice on the defendant. Plaintiff has prayed for decree for realisation of Rs. 2,54,119/- along with interest at the rate of 18% per annum on the aforesaid amount. The defendant did not appear even after service of notice and so learned trial court proceeded ex-parte against the defendant. No issue was framed and plaintiff submitted examination in chief in the form of an affidavit under Order XVIII Rule 4 of the Code of Civil Procedure through its Accountant, namely, Pulak Roy on 04.06.2008 to prove prima facie that the plaintiff was entitled to the amount. No issue was framed and plaintiff submitted examination in chief in the form of an affidavit under Order XVIII Rule 4 of the Code of Civil Procedure through its Accountant, namely, Pulak Roy on 04.06.2008 to prove prima facie that the plaintiff was entitled to the amount. PW 1 exhibited as many as 7 documents. Ext. 1 is an authority letter issued in favour of Pulak Roy who presented the plaint and deposed as PW 1. Ext. 1(a) is the signature of one P.K. Banerjee who described himself as a partner of the plaintiff firm. This authority letter was issued on 2.1.2008 in favour of Pulak Roy authorising him to institute the suit against the defendant. Ext. 2 is the office copy of Transit Pass on the letter head of the plaintiff and signed by Officer In-charge of the Excise Department. However, the said Officer has not been examined to prove his signature. There is an endorsement on the body of this exhibit showing that someone had received the contents. But plaintiff has not led any evidence to disclose the identity of the person who allegedly received the goods mentioned in the Transit Pass. Ext. 2(a) is a print out of a bill understandably an office copy issued on 21.5.2001. This bill was raised for a sum of Rs. 1,11,567/-. Ext. 3 is yet another Transit Pass dated 08.06.2001. The two signatures appearing on the said transit pass were also not proved by the plaintiff. Ext. 3(a) is an invoice dated 11.06.2001 for Rs. 30,687/- drawn against the defendant but this is also an office copy which appears to have been received by someone, the signature of whom was not proved. Ext. 4 is office copy of transit pass issued on 10.07.2001. The signatures appearing on this transit pass were also not proved. Ext. 4(a) is the bill dated 13.07.2001 which is an office copy of the bill allegedly raised against the defendant. Ext. 5 is the photocopy of the Ledger Book of the year 2001. It appears to have been proved as original and the person who made the entries in the Ledger Book has neither been examined nor the entries have been proved to show that these entries were made in regular business to make the document an admissible one within the meaning of section 34 of the Evidence Act. It appears to have been proved as original and the person who made the entries in the Ledger Book has neither been examined nor the entries have been proved to show that these entries were made in regular business to make the document an admissible one within the meaning of section 34 of the Evidence Act. Be that as it may, all the entries made therein are of the year 2001. Ext. 6 is one page document claimed to be the computer printout of ledger account of Diganta Saikia maintained by the plaintiff. This shows receipt of Rs. 500/- by cash but the person making the entry has not been examined to establish that such a cash receipt was made on that day. Ext. 7 is the pleader's notice dated 12.11.2007 whereby plaintiff made demand of Rs. 2,54,119/- from the defendant. Although, it is pleaded in the plaint that defendant gave reply to this notice but no such notice was produced or exhibited by the plaintiff in course of evidence. 2. Upon consideration of the aforesaid evidence placed by the plaintiff, the learned trial court held that plaintiff failed to prove delivery of the goods to the defendant. All the exhibits brought on record by the plaintiff are their own documents and they do not make out that defendant had received the quantity of I.M.F.L. and M. BEER on particular dates. Accordingly, after considering the exhibits and the examination in chief of PW 1, learned trial court by his judgment and decree dated 19.12.2008 dismissed the suit in entirety. It is this judgment which has been brought under challenge in the present appeal. 3. I have heard Mr. K Bhuyan, learned counsel for the appellant. It appears from the order sheet that notice tendered to the sole respondent was refused by him and so this court by order dated 30.07.2013 accepted service on the respondent and decided to proceed ex-parte against the respondent. Ultimately, after perusal of the evidence led by the plaintiff the learned trial court passed the impugned judgment and decree dated 19.12.2008 holding that plaintiff is not entitled to any relief as it could not prove delivery of goods to the defendant by leading cogent evidence. The dismissal of the suit by the learned trial court has been challenged in the present appeal. 4. The dismissal of the suit by the learned trial court has been challenged in the present appeal. 4. The point for determination in this first appeal, therefore, would be as follows: Whether dismissal of the suit of the plaintiff on the basis of the materials available on record is justified? 5. I have perused all the exhibits and the examination-in-chief of the sole witness of the plaintiff. In Ext. 1 authority letter plaintiff itself has shown that the authority letter was issued by one of the partners of the plaintiff firm. This case gives rise to the presumption that plaintiff is a partnership firm but the plaint does not disclose as to whether plaintiff is a registered partnership firm or not. If plaintiff is a partnership firm in that event, it was the duty of the plaintiff under Order XXX Rule 1 of the Code of Civil Procedure to make disclosure as to the names of the partners. In that event, the suit ought to have been instituted at least by two of the partners. But here in this case the suit has been presented by one accountant of the firm who is allegedly authorised by one of the partners only. That being the position, prima facie, the suit of the plaintiff appears to be barred under section69 of the Partnership Act read with provision of Order XXX Rule 1 of the Code of Civil Procedure. 6. Averments made in the plaint as well as the Ext. 2 to Ext. 5 show that transaction was of the year 2001 and thereafter no transaction was made by the plaintiff with the defendant within next 3(three) years. Plaintiff has failed to produce a scrap of paper to show that defendant acknowledged liability within the period of limitation in writing. That being the position, the plaintiff was not entitled to the benefit of Section 18 of the Limitation Act. It is pleaded in the plaint that defendant made cash payment on 15.12.2006 and in support thereof a photocopy of the manual ledger has been placed on file. The person who made the entry in the ledger book is not disclosed and he has not been examined to show that ledger book was maintained as a regular course of business and that the endorsement was made by him on amount being tendered by the defendant. The person who made the entry in the ledger book is not disclosed and he has not been examined to show that ledger book was maintained as a regular course of business and that the endorsement was made by him on amount being tendered by the defendant. This exhibit, therefore, is neither admissible under Section 34 of the Evidence Act nor does it prove any transaction on 15.12.2006. Moreover, section 34 itself shows that statements or entries in Books of Accounts shall not alone the sufficient evidence to charge any person with liability. Even if it is presumed that defendant made cash payment on 15.12.2006, that being made beyond the limitation period, would not amount to acknowledgment of liability within the meaning of section 18 of the Limitation Act. To become of acknowledgment of liability within the meaning of section 18 of the Limitation Act, the acknowledgment has to be in writing and that, too, within the period of limitation. In that event, further period of limitation would start from the date of acknowledgment. In the case in hand, neither there is any acknowledgment in writing as to liability nor has the alleged deposit being made by the defendant within the period of limitation. Consequently, it appears from bare reading of the plaint that suit of the plaintiff is barred by the limitation. Mr. K. Bhuyan, learned counsel for the appellant, submits that this question did not arise and nobody had raised objection as to the bar of limitation. Section 3(1) of the Indian Limitation Act provides that the Court is duty bound to examine as to whether a suit, an application or an appeal has been filed within the statutory period of limitation irrespective of whether an objection on the point of limitation has been taken by the defendant. That being the position and there being no averment in the body of the plaint to set up a case that defendant had admitted liability within a period of limitation in writing, the suit of the plaintiff was liable to be rejected at the threshold under Section 3(1) of the Indian Limitation Act. This Court feels that the suit of the plaintiff ought to have been dismissed on additional point of limitation in view of the averment made in the plaint as well as the entry made in Ext. 3, 4 and 5. 7. This Court feels that the suit of the plaintiff ought to have been dismissed on additional point of limitation in view of the averment made in the plaint as well as the entry made in Ext. 3, 4 and 5. 7. The learned trial court held that plaintiff failed to prove delivery of the goods to the defendant. The plaintiff has miserably failed to show that the goods in question were delivered to the defendant at all. The so called transit passes, office copies of which have been presented, appear to have contained signature in acknowledgment of receipt but plaintiff has miserably failed to plead or depose as to who had received the products and whose signature is available on the transit passes. Neither the official who prepared the document has been examined nor has any other person has been examined to prove that defendant or his agent had accepted the goods. Ext. 1 to Ext. 7 do not have any indication to lead this court to hold that defendant had received the goods. The learned trial court, therefore, has not committed any error in holding that plaintiff failed to prove supply of goods to the defendant. 8. Considering the totality of circumstances including the pleading, the evidence and the judgment passed by the learned trial court, it is apparent that plaintiff has not succeeded to prove a prima facie case against the defendant for getting relief. Consequently, the appeal is devoid of any merit. It is accordingly, dismissed. 9. No order as to costs. Send down the records.