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2015 DIGILAW 997 (GAU)

Kanark Enterprise Pvt. Ltd. v. Utpal Kalita

2015-08-11

N.CHAUDHURY

body2015
JUDGMENT : Aggrieved by the judgment and decree dated 18.12.2007 passed by the learned Civil Judge, Bongaigaon in Money Suit No. 11 of 2006, plaintiff has preferred this appeal. 2. Kanark Enterprise Pvt. Ltd. as a Bonded Warehouse is a Company registered under the Companies Act, 1956. The Board of Directors authorized one of the Directors Sri Hridayananda Roy Choudhury to institute the suit for realization of money from the defendant Utpal Kalita against sale of India Made Foreign Liquor (for short ‘IMFL’) and India Made Beer (for short ‘IMB’) on different dates. The defendant is the owner of a shop of IMFL and IMB and used to purchase these products regularly from the plaintiff. Last payment was made by the defendant on 6.10.2004 against last invoice issued on 5.10.2004. The plaintiff maintained Books of Accounts in regard to the business with the defendant and as per Books of Accounts, plaintiff was entitled to Rs. 5,50,477/- for which demand was made on 7.8.2006 by sending an agent of the plaintiff company. The defendant did not make payment and several requests made thereafter also could not yield any result. Situated thus, plaintiff issued a notice through his lawyer on 11.8.2006 claiming the aforesaid sum of Rs.5,50,477/- along with interest @ 18 % per annum w.e.f. 6.10.2004 till realization. Upon receipt of the notice, defendant sent a reply notice through his lawyer on 2.10.2006 agreeing to pay the amount and requested the plaintiff to pay monthly installment of Rs.5000/- per month. By that notice, defendant also claimed rebate and discount as per various schemes allowed by the Company from time to time. As the defendant did not make payment of the amount claimed by plaintiff, plaintiff instituted the suit in November, 2006 praying for decree of Rs.7,55,530/- including the principal amount and the interest till the date and for further interest @ 18% per annum and the decretal amount w.e.f. 1.11.2006 till realization. 3. On being summoned, defendant appeared and submitted written statement broadly denying the averments made in the plaint. However, in para-11 of the written statement giving of reply notice by the defendant has not been denied. On the basis of the aforesaid submission of the parties, learned trial court framed following eleven issues and allowed the parties to prove their respective cases:- (i) Whether the suit is maintainable in its present manner and form? However, in para-11 of the written statement giving of reply notice by the defendant has not been denied. On the basis of the aforesaid submission of the parties, learned trial court framed following eleven issues and allowed the parties to prove their respective cases:- (i) Whether the suit is maintainable in its present manner and form? (ii) Whether there is any cause of action for the suit? (iii) Whether the suit is barred by law of limitation? (iv) Whether the suit is bad for non-joinder/ mis-joinder of necessary party? (v) Whether proper court fee had been paid? (vi) Whether the suit is valued properly? (vii) Whether the defendant is licensee of IMFS “OFF” Shop and used to purchase IMFL & I.M. Beer regularly from plaintiff? (viii) Whether books of account maintained by plaintiff shows that Rs.5,50,477/- only is still pending for defendant? (ix) Whether defendant was ready and willing to pay the same in installment of Rs.5,000/- per month? (x) Whether the plaintiff is entitled to reliefs as prayed for ? (xi) To what other relief/reliefs parties are entitled to ? 4. Plaintiff examined two witnesses including its Director, Hridayananda Roy Choudhury and exhibited as many as 12 documents from Ext. 1 to Ext.12. Defendant examined himself as sole witness but did not adduce any documentary evidence. Considering the depositions of the witnesses and the documents relied on by them, the learned trial court formed opinion that suit of the plaintiff was bad for defect of parties as there was no authorization by the Board of Directors for institution of the suit. According to the learned court, the material particulars were not disclosed in the plaint but were furnished in course of evidence and so they could not have been considered being beyond pleadings. Having noticed that defendant had admitted the liability to make payment, learned trial court observed that defendant wanted to pay the amount on monthly installment of Rs.5000/-. But even thereafter, the suit of the plaintiff was dismissed holding that the computerized books of account was neither maintained in regular course of business nor was the same a book of account at all. With these observations, the suit of the plaintiff was dismissed in entirety by the judgment and decree referred to above. It is this judgment which has been brought under challenge in the present appeal. 5. I have heard Mr. With these observations, the suit of the plaintiff was dismissed in entirety by the judgment and decree referred to above. It is this judgment which has been brought under challenge in the present appeal. 5. I have heard Mr. SS Sharma, learned senior counsel assisted by Mr. A Sharma, learned counsel for the appellant and Mr. K Bhuyan, learned counsel for the respondent. I perused the deposition of the witnesses and the exhibits adduced by them. 6. Hridayananda Roy Choudhury, Director of the plaintiff Company deposed as PW-1. He stated that defendant used to purchase IMFL and IMB regularly from the plaintiff company with proper documents and challans and he received the last payment from the defendant on 6.10.2004. It was against last invoice dated 5.10.2004. Plaintiff maintained Books of Accounts in regular course of business and as per the said Books of Accounts plaintiff was entitled to get Rs. 5,50,447/- from the defendant. Accordingly, an agent was sent to the defendant on 7.8.2006 asking for money but defendant refused to pay. Subsequently, the plaintiff made further request, however, to no avail. Ultimately on 11.9.2006 a pleader’s notice was issued to the defendant asking for Rs.5,50,447/- along with interest @ 18 % per annum w.e.f. 6.10.2004 till realization. He further stated that defendant gave reply to the notice of the plaintiff through his counsel Mr. K Bhuyan on 2.10.2006 and thereby admitted the debts payable to the company and requested for allowing him to pay monthly installments of Rs.5000/- each. By that reply notice, defendant claimed that available discounts and rebates should be given to him . According to PW-1, plaintiff is entitled to Rs.5,50,477/- as principal amount, Rs.2,05,053/- as interest from 6.10.2004 to 31.10.2006 and thus a decree for Rs.7,55,530/- is liable to be passed in favor of the plaintiff and against the defendant. Plaintiff exhibited as many as 36 transport passes as Exhibit- 1 to Exhbit-1(xxxvi) and permits of Utpal Kalita as Exhbit-2 to Exhbit-2 (xxxvi) Exhbit-3 to Exhbit-3 (vi) are the scheme papers, Exhbit-4 is a bunch of relevant pages of Ledger Account, Exhbit-5 is the credit note, Exhbit-6 is the legal notice. The reply notice given by defendant was proved as Exhbit-7 whereas Exhbit-8 is the letter dated 26.9.2006 and Exhibit-9 , 10 and 11 are the A/D Cards. The reply notice given by defendant was proved as Exhbit-7 whereas Exhbit-8 is the letter dated 26.9.2006 and Exhibit-9 , 10 and 11 are the A/D Cards. Exhbit-12 is the minutes of the meeting of the Board of Directors whereby Hridayananda Roy Choudhury was authorized to institute the suit on behalf of the company for realization of the suit money from the defendant. This witness was thoroughly cross-examined by defendant. In course of cross-examination, he stated that he did not file any authority letter from the company and there is no general Power of Attorney in his favour. According to him he did not deposit Memorandum of Association of the plaintiff company. This witness was cross examined in regard to content of Exhbit-4 and he said that Exhibit-4 does not show the liability of Rs.5,50,447/-. But he remained firm on the point that Exhbit-7 is the reply given by defendant against Exhbit-6 notice sent by plaintiff through its lawyer. He claimed by Exhibit-7 that defendant invited the plaintiff for amicable settlement and that he did not sit on the table of negotiation. Plaintiff also examined one Devaram Pegu as PW-2. He is the Superintendent of Excise and appears to be the authorized officer in regard to sale of IMFL and IMB. He stated that plaintiff is bonded a warehouse dealing in liquor and defendant is a license holder of IMFL wine shop. Defendant sought permit and accordingly 34 Nos. of permits were issued to him as Ext.2(ii) to 2(xxxvi). According to him, those permits were issued by himself to the defendant for lifting the goods from the plaintiff. Excise duty was paid through treasury challan on behalf of the defendant. However, he could not say the value of the goods as the same were fixed by warehouse. He said that subsequently he came to know about the value of the goods as invoice of bond and bill are submitted to the Excise department as per necessity. He admitted that exhbit-8 letter dated 26.9.2006 was received by him and the Commissioner of Excise instructed the defendant to make payment of Rs. 5,50,478/- to the plaintiff. Accordingly, he had written letter to the defendant for making the payment. Defendant was liable to make the payment to the plaintiff but defendant told him that he would pay the money gradually by monthly installments of Rs.4000 /5000/- . 5,50,478/- to the plaintiff. Accordingly, he had written letter to the defendant for making the payment. Defendant was liable to make the payment to the plaintiff but defendant told him that he would pay the money gradually by monthly installments of Rs.4000 /5000/- . As the plaintiff did not agree, legal notice Ext.6 was sent to the defendant and thereupon the suit was instituted. Although this witness was cross examined by defendant but no question was put to him in regard to the liability of the defendant to make payment of Rs.5,50,478/- and so his claim made in the examination in chief as to sending of demand letter to the defendant for the aforesaid amount went unrebutted. 7. The defendant examined himself as DW-1. In his examination in chief submitted in the form of affidavit, he admitted that plaintiff had served notice dated 11.9.2006 on him through advocate claiming Rs.5,50,477/- since 6.10.2004 which according to him was a baseless one. He denied to have made any payment on to plaintiff 6.10.2004 by himself or through any agent. He claimed to have approached the plaintiff to examine the Books of Account/ledger book to see the concerned account but he was denied access. He therefore sent reply notice through pleader on 2.10.2006 against the notice dated 11.9.2006 with request to submit the correct account but the same did not evoke any response. According to him plaintiff does not have any cause of action and the suit is a malafide one. This witness was cross examined by plaintiff at length when he stated that he has a wine shop at Nalbari and he used to sell IMFL by purchasing from the plaintiff’s ware house. He admitted to have run business with the plaintiff from 2002 till 2004 and also admitted that he used to purchase on credit from time to time and used to make payment occasionally. However, he denied that till 6.10.2004, he was liable to pay Rs.5,50,447/- to the plaintiff. He also denied a suggestion that on 7.6.2006, an agent of the plaintiff had visited him. But he admitted that Exhbit-7 is the reply given by him through his counsel against notice Exhibit- 6. He admitted that Exhibit-8 is the letter given by the Joint Commissioner of Excise. He specifically admitted further that he took goods from the plaintiff by Ext.2(i) to 2(xxxvi) and Ext.1 to 1(xxxvi). But he admitted that Exhbit-7 is the reply given by him through his counsel against notice Exhibit- 6. He admitted that Exhibit-8 is the letter given by the Joint Commissioner of Excise. He specifically admitted further that he took goods from the plaintiff by Ext.2(i) to 2(xxxvi) and Ext.1 to 1(xxxvi). According to him, he had admitted in the written statement that plaintiff is entitled to get the money and that he would pay the same in installments. 8. The learned trial court while deciding issues No. 2 to 8 held that Exhbit-4 is nothing but 15 loose sheets which are not serially and consecutively numbered. Exhbit-4 only substantiates the claim of the plaintiff that Books of Account had been maintained by the company but the same cannot be said to be a Books of Account in the true sense of the term as they were merely loose sheets. The learned trial court further observed that material particulars of facts were not mentioned in the pleadings in order to support Exhbit-4 but in course of evidence Ext.1 to 1(xxxvi) and Ext.2 to 2(xxxvi) along with Exhbit-3 and 5 were brought on record. But this being beyond pleadings could not have been considered and accordingly, learned trial court held that plaintiff could not prove the claim of Rs.5,50,477 as balance to be paid by defendant as on 6.10.2004. However, Issues No. 3 , 7, 1 and 4 were decided in favor of the plaintiff. Coming to issue No. 5 and 6 as to valuation and payment of court fee, learned trial court held that excess amount of court fee had been paid on the interest amount which is unethical and unfair. Issue no. 9 is in regard to readiness and willingness of the defendant to make monthly payment of Rs.5000/- against the liability and the learned trial court by relying on Exhibit-7 documents which is the reply notice of the defendant held that defendant was ready and willing to pay the same by monthly installment of Rs.5000/- and accordingly Issue No. 1 was decided in favor of the plaintiff. Ultimately while deciding Issues No. 10 and 11, learned trial court held that plaintiff failed to come with sufficient material particulars in order to corroborate that as per Books of Account maintained by it, the defendant is liable to pay Rs.5,50,447/- as on 6.10.2004 and that the plaintiff is entitled to interest as claimed. With these findings the suit of the plaintiff was dismissed in entirety. 9. Upon perusal of the impugned judgment and decree along with the pleadings and evidence of the parties, it appears that the point for determination would be as follows: (i) Whether the defendant has admitted his liability of making payment to the plaintiff? (ii) Whether the plaintiff is entitled to Rs.5,50,447/- alongwith interest as claimed? 10. The learned trial court while deciding Issue No. 9 has come to a categorical finding that plaintiff successfully brought on record as to readiness and willingness of defendant to make payment of money to the plaintiff by way of monthly installment @ Rs.5000/-. This finding has been arrived at on the basis of recital of Exhibit-7. Exhibit-7 is the notice in reply to Exhibit-6 notice sent by plaintiff. By exhibit-6 plaintiff claimed that it is entitled to Rs., 5,50,447/- towards principal from defendant as on 6.10.2004. Defendant did not deny that he is liable to make any payment to the plaintiff but he said that the notice was baseless and that he was agreeable to liquidate debts by making payment of Rs.5000/- per month. In course of his evidence, defendant has stood by Exhibit-7 and so defendant is bound by the recital made in it. In addition to what has been stated in Exhbit-7, defendant has candidly admitted in course of his cross-examination that he used to purchase IMFL and IMB from the plaintiff on regular basis till 2004. He has also admitted that Ext.1 to 1(xxxvi) are the transit passes and invoices by which plaintiff had supplied the goods to him. In the invoice exhibits, the price of the goods are also mentioned. Having seen all those documents, the defendants made specific admission that he is agreeable to make payment of Rs.5000/- per month. In view of admission in course of cross examination as to Exhbit-1 series and Exhbit-2 series, the first point for determination has to be decided in favour of the plaintiff holding that defendant has admitted liability of making payment to the plaintiff. In view of admission in course of cross examination as to Exhbit-1 series and Exhbit-2 series, the first point for determination has to be decided in favour of the plaintiff holding that defendant has admitted liability of making payment to the plaintiff. May be he did not admit the account. 11. To prove the second point for determination, plaintiff has brought on record not only Exhibit-1 and 2 series but also exhibits- 4 and 5. These are print out of computerized Accounts allegedly maintained by plaintiff. Electronic documents are admissible in evidence but they have to be proved in accordance with law. But in proving Exhibit-3 and 4, plaintiff did not examine the person who made the data entries and thus it is not possible to hold that plaintiff has proved the document in accordance with law. There is no certificate as to correctness of the entries. Plaintiff is duty bound to show that the accounts were maintained in regular course of business and that can be done by examining the witness who made the daily endorsement. In the absence of the evidence of person making the entries in the Books of Accounts within the meaning of Section-34 of the Evidence Act it cannot be said to have been proved. On the other hand, Exhbit-1 and 2 series which have been brought on record by plaintiff also did not appear to have been brought by following provision of Sectiion-66 of the Evidence Act. The defendant having admitted that by Exhibit-1 and 2 series, he had purchased the goods from the plaintiff, the plaintiff cannot be outright non- suited for not following the prescribed procedure of law for the purpose of proving the accounts. Moreover, plaintiff has made concise statement of material facts in the plaint as to making sale of goods to the defendant. Concise statement of material fact does not require statements of the material particulars which can be produced at the time of adducing evidence. There is necessarily some difference between the material facts and material particulars. Material facts are those which need to be pleaded and established by plaintiff to get relief. For the purpose of proving the material facts, some minute details may be necessary and they are called material particulars which are in the form of evidence. There is necessarily some difference between the material facts and material particulars. Material facts are those which need to be pleaded and established by plaintiff to get relief. For the purpose of proving the material facts, some minute details may be necessary and they are called material particulars which are in the form of evidence. A plaintiff is not required to furnish the evidence in support of the claim by way of pleadings and so this material particulars can be subsequently produced in course of evidence. The learned trial court does not appear to have correctly held that Exhibit-1 to 5 adduced by plaintiff cannot be considered as the same were beyond pleadings. Plaintiff pleaded in the plaint that it has regular business with the defendant and for that purpose it maintained Books of Accounts. After having said so, the plaintiff brought on record the ledger sheet as well as extracts of accounts. Such production, therefore, is permissible but the plaintiff did not produce the same in the prescribed procedure. The documents which are in custody of the defendant ought to have been called by plaintiff and in case, the defendant refused to part with the evidence, the secondary evidence should have been brought on record. Similarly, the Books of Accounts , ledgers should have been proved by examining the person who had prepared the same and in that event defendant would have been at liberty to cross examine the witness to prove his veracity or otherwise. Under normal circumstances, because of the failure of the plaintiff to discharge his burden as warranted by law, the appeal would have been dismissed. But in case in hand, in view of specific admission made by defendant in course of his cross examination as to his liability to make payment, dismissal of the appeal will amount to injustice and considering the entirety of circumstances, it is necessary to afford adequate opportunity to the parties for placing their respective evidence. The second point is accordingly decided and the matter is remanded to the learned trial court for passing judgment afresh after affording adequate opportunity to both the sides to prove their respective documents in accordance with law. Since, it is a suit of 2006, the learned trial court shall endeavor to complete the process within a period of 6(six) months from the date of receipt of records. 12. Send down the records immediately. Since, it is a suit of 2006, the learned trial court shall endeavor to complete the process within a period of 6(six) months from the date of receipt of records. 12. Send down the records immediately. Parties shall appear before the trial court on 1.10.2015 to receive necessary order.