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Gauhati High Court · body

2018 DIGILAW 782 (GAU)

SANGHI TEXTILE LTD v. RAMA WATER AND CO

2018-05-11

MIR ALFAZ ALI

body2018
JUDGMENT/ORDER : 1. This second appeal by the defendant is filed against the judgment and decree dated 31.03.2007 passed by learned Addl. District Judge (FTC), Guwahati in Money Suit No. 15/2006, whereby learned District Judge, reversing the judgment of learned Munsiff No.1, Guwahati in M.S. No. 28/1999, decreed the suit of the plaintiff. 2. The brief facts leading to the present second appeal are that the respondent, as plaintiff, filed a suit for recovery of an amount of Rs. 307528/- from the appellant. The case of the plaintiff was that the plaintiff co. was dealing in M.S. flat, angles, plates, chanels etc. On assurance of the defendant company to make payment, plaintiff sold some goods vide bill Nos. 96-97/2053/17 dated 13.7.96 for an amount of Rs. 3,09,000.00 and bill No. 96-97/2053/20 dated 29.7.96 for an amount of Rs. 2,92,328/-. Out of total amount of Rs. 6,01,328/-, the defendant co. paid Rs. 4 lacs vide cheque No. 232577 dated 03.10.96 and the balance amount remained unpaid. When the defendant co. failed to pay the balance amount, the plaintiff wrote the letter dated 19.11.97 (exhibit-4) to the defendant co. for payment of Rs. 6,01,328/- and the defendant co. reciprocated vide letter dated 10.12.97 (exhibit-5), stating that because of labour problems, the payment could not be made and agreed to take up the matter in due course. As the defendant co. failed to pay the money despite repeated demand, the plaintiff filed the suit for recovery of the amount above mentioned, which included the principal amount of the Rs.2,01,328/- and interest thereon. In the written statement the defendant co. denied the purchase of any article from the plaintiff, however admitted the payment of Rs. 4 lakhs as stated in the plaint with a plea, that such payment of Rs. 4 lakhs to the plaintiff was for some other transactions. On the basis of the above pleadings, the learned Munsiff framed the following issues 1. Is the suit maintainable in its present form ? 2. Is there is any cause of action for the suit ? 3. Is the defendant liable to pay an amount of Rs. 3,07,528/- to the plaintiff ? 4. Is the plaintiff is entitled to a decree as claimed upon ? 3. The plaintiff co. examined one witness and proved certain documents in support of its claim. 2. Is there is any cause of action for the suit ? 3. Is the defendant liable to pay an amount of Rs. 3,07,528/- to the plaintiff ? 4. Is the plaintiff is entitled to a decree as claimed upon ? 3. The plaintiff co. examined one witness and proved certain documents in support of its claim. The defendant did not adduce any witness and after hearing the parties, learned Munsiff dismissed the suit. 4. Aggrieved by the said judgment and decree of the learned Munsiff, the plaintiff preferred an appeal and by the impugned judgment and decree learned Addl. District Judge allowing the appeal decreed the suit of the plaintiff for recovery of the money. 5. Aggrieved, the defendant filed the instant second appeal which was admitted to be heard on the following substantial question of law :- 1. Whether the plaintiffs suit for recovery of the amount claimed on the allegation of supply of goods to the defendant could be decreed in absence of proof of such supply of goods ? 2. Whether the judgment of the learned Lower appellate court was vitiated by wrong interpretation of the basic documents with regard to the claim in the suit ? 6. Heard Mrs. T. Goswami, learned counsel for the appellant. However, none appeared for the respondent. 7. Learned counsel for the appellant submitted that the learned first appellate court wrongly interpreted the exhibit5, the letter written by the defendant as admission in respect of purchase of goods. It is further contended by Ms. T. Goswami, that the learned first appellate court fell in error by taking the bills as challans. 8. Specific case of the plaintiff was that they supplied/sold goods worth Rs. 6,01,328/-vide two bills, which were drawn against the defendant co. The plaintiff also proved the two bills drawn against the defendant as exhibits 2 & 3. Exhibit 2 was for an amount of Rs. 3,09,000/- and exhibit-3 was for amount of Rs. 2,92,328/-. It was also the case of the plaintiff that it received Rs. 4 lacs out of the said amount against selling goods to defendant. The plaintiff proved the letter addressed to the defendant co. demanding payment of the balance amount, as Exhibit-4 and reply thereto by the defendant as Exhibit-5. In exhibit-4 the plaintiff clearly stated regarding supply of goods to the defendant for worth of Rs. 4 lacs out of the said amount against selling goods to defendant. The plaintiff proved the letter addressed to the defendant co. demanding payment of the balance amount, as Exhibit-4 and reply thereto by the defendant as Exhibit-5. In exhibit-4 the plaintiff clearly stated regarding supply of goods to the defendant for worth of Rs. 6,01,328/- and defendant making payment of Rs. 4 lakhs against such supply of goods. Exhibit-5 issued by the defendant demonstrated, that the defendant did not deny the claim of the plaintiff, nor the nature of the claim made in exhibit-4. Rather, the defendant by exhibit-5, informed, that due to labour and other problems, the payment could not be made and undertook to settle the matter. Though the plaintiff specifically mentioned about the exhibit 4 and 5 in the plaint, the defendant, besides, making an evasive denial in the written statement, stated nothing specifically denying the contents of exhibit4 or exhibit5. Learned first appellate court taking note of the pleadings of the parties and also the evidence adduced by the plaintiff, held that the exhibit 5, by which the defendant admitted the claim of the plaintiff having not been specifically denied by the defendant in the written statement, the same (Ext.-5) could be deemed to be admission of the claim of the plaintiff by the defendant. Learned counsel, Ms. Goswami contented that exhibit 5 could not be taken as an admission of the defendant as observed by the first appellate court. I am unable to accept the contention of Mrs. Goswami, reason being that by the exhibit 5 the defendant, on the one hand did not deny the claim made in the Ext-4 and on the other hand undertook to settle the claim made therein by the plaintiff, which certainly amounted to admission of the claim of the plaintiff. This apart, despite specific pleading, in the plaint with regard to exhibits 4 & 5, the defendant did not deny the contents of Exhibits 4 & 5 specifically either in pleadings or by adducing evidence. Therefore, exhibit 5 can very well be accepted as admission u/s 18 and 21 of the Evidence Act. The Apex Court, in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati reported in AIR 1965 SC 364 held, that statement of a party in letters written by him or her can be used against him or her as admission. 9. Therefore, exhibit 5 can very well be accepted as admission u/s 18 and 21 of the Evidence Act. The Apex Court, in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati reported in AIR 1965 SC 364 held, that statement of a party in letters written by him or her can be used against him or her as admission. 9. When the defendant admitted the payment of Rs. 4 lakhs and tried to set up a new case of his own, that it was paid for some other purpose, burden stood shifted to the defendant u/s 106 of the Evidence Act to establish that Rs. 4 lakhs was paid for some other purpose and not towards the payment against purchase of goods, more particularly, when the defendant admitted the claim of the plaintiff by issuing exhibit-5, which was never specifically denied by the defendant. However, the defendant avoided the witness-box and failed to prove its plea, that Rs. 4 lakhs was paid for some other purpose. The failure of the defendant to come to the witness-box and state his case raises an adverse presumption against the defendant u/s 114 illustration-g of the Evidence Act. Dealing with the consequence of avoiding the witness-box by a party to the suit, the Apex Court in Vidhyadhar vs. Manik Rao & Anr. reported in (1999) 3 SCC 573 held as under :- Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh V. Gurdial Singh. The was followed by the Lahore High court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Padesh High Court in Gula Kharagjit Carpenter v. Narsingh Mandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. The Madhya Padesh High Court in Gula Kharagjit Carpenter v. Narsingh Mandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box. 10. It is pertinent to mention, that the observation of the learned Munsiff to the effect that the plaintiff admitted the payment of Rs. 4 lakh by the defendant for some other purpose and not against the claim of the plaintiff for supply/sale of goods was perverse, for being against the evidence and pleadings. 11. Plaintiff co. specifically mentioned in the pleadings that it sold/supplied goods to the defendant for an amount of Rs. 6,01,328/- and two bills were drawn. It was also specifically averred in the pleadings, that the plaintiff wrote letter dt. 19.11.97 (exhibit 4) specifically mentioning, that the defendant paid Rs. 4 lakhs against such supply of goods and the balance amount of Rs. 2,01,325 was still due and by issuing the letter dtd. 10/12/1997 (exhibit-5), the defendant did not specifically deny the above letters (exhibits 4 & 5), rather took the path of evasive denial by stating that he paid Rs. 4 lakhs for some other purpose, without stating anything, as to for what purpose Rs. 4 lakhs was paid. Failure of the defendant to deny the claim of the plaintiff specifically mentioned in exhibit 4, admission by way of issuing exhibit-5 and evasive denial of specific allegation as indicated above, amounted to admission in view of Order VIII Rule 3, 4 & 5 of the CPC. 12. In view of the pleadings and evidence brought on record as discussed hereinbefore, the learned appellate court did not commit any error by holding the exhibit 5 as admission on the part of the defendant in respect of the claim of the plaintiff. 12. In view of the pleadings and evidence brought on record as discussed hereinbefore, the learned appellate court did not commit any error by holding the exhibit 5 as admission on the part of the defendant in respect of the claim of the plaintiff. The contention of the learned counsel for the appellant that learned appellate court wrongly appreciated the exhibits 2 & 3 is also not acceptable, inasmuch as, the claim in exhibits 2 & 3 has been corroborated by exhibits 4 & 5 as well as the evasive pleadings of the defendant which amounted to admission. It is the established principle as to appreciation of evidence in a civil suit, that court has to weigh the evidence in the touchstone of preponderance of probability and not beyond reasonable doubt. In the present case, the plaintiff has successfully proved, that he sold the goods to the defendant for worth of Rs. 6,01,328/- and against such sale/purchase an amount of Rs. 4 lakhs was paid and the balance amount remained unpaid by the defendant. 13. In view of clear pleadings and evidence of the plaintiff as well as admission of the defendant, there is no reason for holding that the learned appellate court wrongly interpreted the documents proved by the plaintiff, and as such, both the substantial questions of law is answered accordingly in favour of the plaintiff/respondent or against the defendant/appellant. 14. The plaintiff, having successfully proved the claim both by oral and documentary evidence, as discussed hereinbefore, learned first appellate court rightly decreed the suit of the plaintiff by reversing the judgment and decree passed by the learned Munsiff, which was apparently based on perverse finding, and as such, the second appeal is without merit. 15. For the reasons stated above, the appeal stands dismissed. Parties to bear their cost. 16. Send back the LCR.