Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1223 (GAU)

RANBIR ROY v. NIPOPRIYA DAS

2018-08-20

SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Ms. B. Sarkar, learned counsel for the appellant. None appears for the respondent though served. 2. This second appeal is preferred against the concurrent judgement and decree dated 12/07/2007 passed by the learned District Judge, Karimganj in Money Appeal No. 9/2006 dismissing the appeal preferred by the appellant, thereby affirming the judgement and decree of dismissal dated 22/08/2003 passed by the Court of learned Civil Judge, Senior Division, Karimganj in Money Suit No. 9/1995. 3. The appellant herein as plaintiff had instituted Money Suit No. 9/1995 interalia praying for a decree for recovery of an amount of Rs. 1,11,305/- from the defendant along with interest pendentilite @ 12.5% per annum as well as future interest to be paid at the same rate besides praying for other consequential reliefs. 4. The case of the plaintiff, as projected in the plaint, is that the defendant was carrying on with tea business with him during the period 1992-93 and as per accounts maintained by the plaintiff, an amount of Rs. 2,83,350/- was the outstanding dues, being the price of tea, as on 29/04/1993. According to the plaintiff, after adjustment and payment of all other amount, a sum of Rs. 1,11,305/- stood as the outstanding liability of the defendant payable to the plaintiff as price of tea. When the defendant had failed to pay the said amount, the plaintiff had instituted the suit for recovery of the aforesaid amount. 5. On receipt of summons in connection with the Money Suit No. 9/1995, the defendant/respondent had entered appearance and contested the same by filing written statement. Besides taking various plea questioning the maintainability of the suit, the defendant had also categorically denied that the claim of the plaintiff that he was engaged in tea business with the plaintiff during the period 1992-93. The defendant has also denied any liability on his part to make payment of the outstanding amount of Rs. 1,11,305/- to the plaintiff. According to the defendant, the plaintiff's case is totally false, fabricated, baseless and imaginary. The defendant has also denied that there was any cause of action for filing the suit. The defendant has also denied any liability on his part to make payment of the outstanding amount of Rs. 1,11,305/- to the plaintiff. According to the defendant, the plaintiff's case is totally false, fabricated, baseless and imaginary. The defendant has also denied that there was any cause of action for filing the suit. It is also the pleaded stand of the defendant that the plaintiff, who is his maternal uncle, used to engage the defendant to make delivery and supply of tea to various customers of the plaintiff through the Mini Truck which was purchased by the defendant after obtaining loan from the United Bank of India, Sarisa Branch, Karimganj for his livelihood. When the plaintiff became irregular in making payment of the remuneration -cum- hire charge of the vehicle to the defendant, he had informed the plaintiff that he was not interested to carry on with the delivery job under the plaintiff and had accordingly left the engagement. On such decision of the defendant, the plaintiff became furious and took control of the vehicle of the defendant by holding out a threat that he will not return the vehicle to the defendant. However, with great difficulties and with the intervention of the relatives, the defendant could recover the vehicle but the plaintiff did not pay his remuneration-cum-hire charges from the month of October, 1992 to April, 1993. Having meted out such harsh treatment to the defendant, the plaintiff had instituted the suit with the intention to cause further harassment to the defendant by making false and baseless statement. The defendant had also raised categorical objection under Order 7 Rule 17 of the CPC on the ground that the suit was not maintainable in the eye of law. 6. Based on the pleadings of the parties, the learned trial Court had framed two issues which are as follows :- "(i) Whether the suit is barred under the provisions of Order 7 Rule 17 of CPC ? (ii) Whether the plaintiff is entitled to recover Rs. 1,11,305/- from the defendant ?" 7. During trial, the parties had adduced evidence in support of their respective cases. The plaintiff had placed heavy reliance on a document marked as Ext. 1 which is the carbon copy of a account statement prepared by the plaintiff. (ii) Whether the plaintiff is entitled to recover Rs. 1,11,305/- from the defendant ?" 7. During trial, the parties had adduced evidence in support of their respective cases. The plaintiff had placed heavy reliance on a document marked as Ext. 1 which is the carbon copy of a account statement prepared by the plaintiff. The signature of the defendant appearing on the said document was relied upon by the plaintiff to contend that the same was the defendant's acknowledgment of the liability of Rs. 1,11,305/- towards the plaintiff and, therefore, a money decree be passed on the basis of the said document. 8. On appreciation of the evidence available on record, the learned trial Court had held that the plaintiff has failed to establish the fact that the defendant had carried on with any tea business with the plaintiff and that he has also failed to prove the fact of having any balance amount remaining due and payable by the defendant. The learned trial Court has also found fault with the plaintiff for his inability to produce the books of account maintained in due course of his business, thereby, holding that the plaintiff's suit was bad for non compliance of the provisions of Order 7 Rule 17 of the CPC. Consequently, the suit was dismissed. 9. Being aggrieved by the judgment and decree dated 22/08/2003 passed in Money Suit No. 9/1995, the plaintiff, as appellant, had preferred Money Appeal No. 9/2006, which was also dismissed by the learned District Judge, Karimganj by the impugned judgment and decree dated 12/07/2007. Hence, this appeal. 10. The second appeal was admitted to be heard on the following substantial questions of law :- "Whether on the face of filing of the suit on the basis of the acknowledgment in writing dated 24.3.94, Exbt-1, the learned court below as justified in rejecting the claim of the appellant for failure to produce the books of accounts." 11. Ms. Sarkar, learned counsel for the appellant has forcefully argued that the defendant having failed to raise any objection at the time of introduction of the document Ext.1 and he having admitted his signature in the said document, the entries made therein would have to be taken to be correct and the contents thereof as admissible in evidence. Ms. Sarkar, learned counsel for the appellant has forcefully argued that the defendant having failed to raise any objection at the time of introduction of the document Ext.1 and he having admitted his signature in the said document, the entries made therein would have to be taken to be correct and the contents thereof as admissible in evidence. Therefore, the learned Court below was not correct in the eye of law in dismissing the plaintiff's suit merely on account of the fact that the books of account maintained by the plaintiff during the course of his business was not exhibited before the Court. In support of her aforesaid contention, Ms. Sarkar has placed reliance on a decision of the Supreme Court rendered in the case of Food Corporation of India Vs. Assam State Cooperative Marketing and Consumer Federation Ltd. and others, (2004) 12 SCC 360 to contend that the learned Court below has committed illegality in ignoring the evidential value of Ext. 1. 12. I have considered the submissions of the appellant's counsel and have gone through the materials available on record. 13. As noted above, the plaintiff's suit is one for a money decree based on the plea that a sum of Rs. 1,11,305/- was due and recoverable from the defendant being the outstanding dues on account of tea price supplied to him. But from a careful scrutiny of the materials on record, I find that there is no cogent evidence brought on record to show that the defendant was in fact engaged in tea business with the plaintiff or that there was financial transactions by and between the parties on such count. There is no averment in the plaint that the plaintiff had ever issued a demand notice for recovery of the aforesaid amount from the defendant. In the absence of such demand notice, there is a serious doubt on the maintainability of the Money Suit. However, since such a plea was not raised by the defendant before the Court below, this Court need not be detained on the said aspect of the matter. 14. As mentioned above, the sole basis of the claim of the plaintiff is the Ext. 1 document which is nothing but a carbon copy of a statement containing some figures which, however, bears the signature of the defendant. 14. As mentioned above, the sole basis of the claim of the plaintiff is the Ext. 1 document which is nothing but a carbon copy of a statement containing some figures which, however, bears the signature of the defendant. Be that as it may, if the claim of the plaintiff is for recovery of money from the defendant, the said claim ought to have been established on the basis of proper pleadings supported by cogent evidence brought on record. In the present case, save and except making a vague statement that the plaintiff was engaged in tea business with the defendant, no other particular of such business has been furnished in the plaint. 15. Order 7 Rule 17 casts a duty upon the plaintiff to produce shop book or other account in his possession if the plaintiff sues on the basis of such document. Order 7 Rule 17 of the CPC reads as follows :- "17. Production of shop-book (1) Save in so far as in other wise provided by the bankers' Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. (2) Original entry to be marked and returned The Court or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed." 16. In the present case, it is not in dispute that the plaintiff has not produced the original books of account before the Court at any point of time although his suit is based on Ext-1. If that be the case, then there was total non-compliance of the provisions of Order 7 Rule 17 of the CPC in this case. From a reading of the document Ext. 1, this Court is of the opinion that the said document cannot be treated as an acknowledgment of any debt. It is to be noted that the defendant has disputed the entries made in Ext-1. From a reading of the document Ext. 1, this Court is of the opinion that the said document cannot be treated as an acknowledgment of any debt. It is to be noted that the defendant has disputed the entries made in Ext-1. That apart, the defendant has also explained Ext. 1 so as to show that the same is not an extract of accounts maintained by the plaintiff with regard to any tea business conducted by and between the parties. The plaintiff has however, failed to adduce evidence in rebuttal thereof so as to displace the aforesaid plea of the defendant. Under the circumstances, I am of the view that the document Ext. 1, even if it contains the signature of the defendant, would not be an admissible piece of evidence for the purpose of establishing the claim of the plaintiff for issuance of a money decree in the suit. 17. In the case of Food Corporation of India, relied upon by Ms. Sarkar, the Supreme Court has observed that a party cannot object to the admissibility of the document once the same is properly admitted and the contents of the document are also admitted in evidence, though those contents may not be conclusive evidence. What must be noted herein is that the said observation of the Supreme Court was in the context of interpretation of Section 18 of the Limitation Act, whereby an acknowledgment of liability made in writing in respect of any right claimed by the opposite party and signed by the other party, was taken note of for commencing a fresh period of limitation from the date on which such acknowledgment was signed. But in the present case the contents of Ext. 1 does not in any manner indicate any liability on the part of the defendant. Therefore, even if the entries in Ext. 1 are taken in their face value, even then, the same would not afford any reasonable basis for the Civil Court to pass a money decree in favour of the plaintiff. 18. For the reasons stated above, the substantial question of law framed in the second appeal stands answered against the appellant and in favour of the respondent. Consequently, the second appeal is held to be devoid of any merit and is accordingly dismissed.