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2021 DIGILAW 816 (HP)

Kiran v. Verma Trading Company

2021-10-20

SANDEEP SHARMA

body2021
JUDGMENT : Sandeep Sharma, J. 1. Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, lays challenge to judgment and decree dated 30.10.2019, passed by learned Additional District Judge-I, Solan, District Solan, Himachal Pradesh in Civil Appeal No. 5-S/13 of 2019, affirming the judgment and decree dated 27.12.2018, passed by learned Civil Judge (Junior Division) Court No. 2, Solan, District Solan, H.P., in Civil Suit No. 153/1 of 2016, titled as M/s. Verma Trading Company versus Kiran, whereby suit having been filed by the respondent (hereinafter referred to as the plaintiff) for recovery of Rs. 72,385/- alongwith future interest at the rate of 18% per annum, came to be decreed. 2. Precisely, the facts of the case as emerge from the record are that the plaintiff filed suit for recovery in the Court of learned Civil Judge, Court No. 2, Solan, District Solan, H.P., against the appellant (hereinafter referred to as the defendant), averring therein that the plaintiff being a firm is dealing in the business of trading building material under the name and style of M/s. Verma Trading Company, near Gurudwara Saproon, Solan sold Steel/Saria worth Rs. 72,385/- on credit basis to the defendant through bill No. 1455, dated 24.08.2013 Ex. PW1/A. As per books maintained by the plaintiff a sum of Rs. 72, 385/- is still outstanding in the name of the defendant. Plaintiff repeatedly requested the defendant to pay the outstanding amount, but since she did not accede to the request of the plaintiff, plaintiff was compelled to serve a legal notice, dated 30.5.2016 upon the defendant. Notice was duly sent through registered post, but defendant despite having received notice ignored request of the plaintiff on one pretext of other and as such, it was compelled to institute the suit for recovery, as detailed hereinabove. 3. Defendant by way of written statement refuted the aforesaid claim of the plaintiff as set up in the plaint and denied that the plaintiff firm is dealing in the business of building materials under the name and style of M/s. Verma Trading Company. Defendant also denied that she being customer of the plaintiff purchased steel/Saria worth Rs. 72,385/- on credit basis through bill No. 1455, dated 24.08.2013. Defendant also denied that she being customer of the plaintiff purchased steel/Saria worth Rs. 72,385/- on credit basis through bill No. 1455, dated 24.08.2013. Defendant also claimed that she did not purchase steel/Saria on credit basis and if there is any such type of bill in possession of plaintiff, it is false and forged. While denying the fact that the plaintiff firm supplied the items in accordance with bill and the entry of the sale duly made in the ledger account of the firm, defendant termed such entries in the ledger to be false, fake and forged. Defendant specifically denied that sum of Rs. 72,385/- is outstanding for the period of 32 months. 4. Learned trial Court on the basis of the pleadings adduced on record by the respective parties framed following issues:- 1. Whether the plaintiff is entitled to recovery of Rs. 72,385/- alongwith interest as alleged? OPP. 2. Whether the suit is not maintainable in its present form? OPD. 3. Whether the plaintiff has no legal cause of action to maintain the present suit? OPD. 4. Whether the plaintiff is estopped by his own act, conduct and acquiescence? OPD. 5. Whether the plaintiff has not come to this Court with clean hands and suppressed the material facts from this Court? OPD. 6. Relief:- 5. Subsequently, on the basis of the pleadings as well as evidence adduced on record by the respective parties, learned trial Court vide judgment dated 27.12.2018, decreed the suit of the plaintiff for a sum of Rs. 72,385/- against the defendant alongwith pendent lite and future interest at the rate of 6% per annum till its realization. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, defendant filed an appeal in the Court of learned Additional District Judge-I, Solan, District Solan, H.P., which also came to be dismissed vide judgment and decree dated 30.10.2019. In the aforesaid background, defendant has approached this Court in the instant appeal, praying therein to dismiss the suit of the plaintiff after setting aside the judgments and decrees impugned in the instant appeal passed by learned Courts below. 6. In the aforesaid background, defendant has approached this Court in the instant appeal, praying therein to dismiss the suit of the plaintiff after setting aside the judgments and decrees impugned in the instant appeal passed by learned Courts below. 6. Though, today matter was ordered to be listed for admission, but during the proceedings of the case learned Senior counsel representing the plaintiff-respondent vehemently argued that no question of law muchless substantial arises in the instant proceedings, enabling this Court to admit the instant Regular Second Appeal and as such, this Court heard the matter finally at the admission stage with the consent of learned counsel for the parties. 7. Ms. Meera Devi, learned counsel representing the defendant-appellant vehemently argued that since entire suit of the plaintiff was based upon the entries made in the ledger, learned courts below ought not have entertained the suit of the plaintiff without there being production of account books. While referring to provisions of Order 7 Rule 17 CPC, Ms. Meera vehemently argued that otherwise also suit for recovery based upon entries in the account books could not be decreed without there being production of account books by the plaintiff. She further argued that since there is total non-compliance of provisions of 7 Rule 17 CPC, judgments and decrees passed by learned courts below are not sustainable in the eyes of law. Since both the courts below have totally ignored the provisions of Order 7 Rule 17 CPC, which is mandatory and in the absence of same suit could not be entertained/decreed by the courts below as such, substantial question of law arises for consideration of this Court. 8. Learned Senior Counsel representing the plaintiff-respondent vehemently argued that once factum with regard to purchase of the steel/Saria has been duly admitted by the defendant in her cross-examination and she has been not able to dispute the bill adduced on record by the plaintiff qua purchase made by her, non production, if any, of account books could not be made basis for dismissing the suit of the plaintiff by the courts below. While referring to the record, learned Senior Counsel representing the plaintiff-respondent further argued that plaintiff filed suit against the defendant on the basis of bill Ex. PW1/A and ledger entry Ex. PW1/B. Learned trial Court at the time of evidence of the plaintiff allowed the plaintiff to produce bill Ex. While referring to the record, learned Senior Counsel representing the plaintiff-respondent further argued that plaintiff filed suit against the defendant on the basis of bill Ex. PW1/A and ledger entry Ex. PW1/B. Learned trial Court at the time of evidence of the plaintiff allowed the plaintiff to produce bill Ex. PW1/A and ledger entry Ex. PW1/B and as such, documents were produced by PW-1, Sh. Ramesh Verma, proprietor of M/s. Verma Trading Company, but at no point of time objection, if any, ever came to be raised on behalf of the defendant qua production and exhibition of aforesaid documents and as such, at this stage defendant cannot be allowed to raise the plea that there is no compliance of provision contained in Order 7 Rule 17 CPC. 9. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that vide bill Ex. PW1/A Steel/Saria came to be sold by the plaintiff to the defendant for a sum of Rs. 72,385/- on credit basis. Learned counsel representing the appellant-defendant while referring to aforesaid documents vehemently argued that bare perusal of aforesaid documents suggests that the plaintiff firstly ticked the column of cash, but subsequently cut the same and ticked column of credit. However, having carefully perused the aforesaid document, this Court finds that plaintiff has clearly cut the column of cash and ticked the column of credit, meaning thereby Saria/Steel was sold to defendant on credit basis. 10. Interestingly, in the case at hand though defendant has claimed that the provisions of Order 7 Rule 17 CPC have not been complied with but existence of bill Ex. PW1/A has been not disputed. Defendant in her cross-examination admitted that she purchased Steel/Saria from the plaintiff vide bill Ex. PW1/A. There is no dispute with regard to purchase of Steel/Saria from the plaintiff firm, but only dispute is with regard to payment. As per defendant she made payment in cash, whereas as per the plaintiff Steel/Saria was sold on credit basis to the defendant. In her cross-examination, defendant made altogether new plea by stating that she made payment in cash, which is otherwise totally contrary to her pleadings. In her pleadings, she nowhere stated that sum of Rs. 72,385/- was paid by cash. Since, it is specific case of the defendant that she made payment in cash, onus was upon her to prove such transaction. In her pleadings, she nowhere stated that sum of Rs. 72,385/- was paid by cash. Since, it is specific case of the defendant that she made payment in cash, onus was upon her to prove such transaction. However, in the instant case there is no evidence, worth credence, available on record suggestive of the fact that sum of Rs. 72,385/- ever came to be paid to the plaintiff firm in cash by the defendant. Defendant in her cross-examination categorically admitted that she cannot produce any evidence to show cash payment in respect of the bill amount. 11. To the contrary, plaintiff firm successfully proved on record by placing on record bill Ex. PW1/A and ledger entry Ex. PW1/B that it had sold Steel/Saria worth Rs. 72,385/- to the defendant on credit basis and such amount is still outstanding in the ledger Ex. PW1/B. There is yet another aspect of the matter, that plaintiff firm issued legal notice Ex. PW1/D calling upon the defendant to make the payment but she after having received the legal notice never bothered to reply the same. If nothing was payable by the defendant, it is not understood that what prevented defendant from replying the legal notice Ex. PW1/D. In her cross-examination, defendant admitted that she received legal notice and she also admitted that she did not reply the legal notice. True, it is that as per provisions contained in Order 7 Rule 17 CPC, a documents on which plaintiff sues, if is an entry in the shop book or other account in his possession or power, he/she shall produce the book or account at the time of filing of the plaint, together with a copy of the entry on which he relies. But, in the case at hand, though plaintiff not produced the accounts book at the time of filing of the plaint, but during trial he besides producing bill Ex. PW1A qua the sale made in favour of the defendant also produce ledger entry Ex. PW1/B, which at no point of time ever came to be disputed by the defendant. Record of the court below clearly reveals that learned trial court allowed the plaintiff to produce the bill Ex. PW1/A and ledger entry Ex. PW1/B at the time of examination of PW-1, Sh. PW1/B, which at no point of time ever came to be disputed by the defendant. Record of the court below clearly reveals that learned trial court allowed the plaintiff to produce the bill Ex. PW1/A and ledger entry Ex. PW1/B at the time of examination of PW-1, Sh. Ramesh Verma, proprietor M/s. Verma Trading Company, but at no point of time objection, if any, qua the exhibition of aforesaid documents ever came to be raised on behalf of the defendant. Moreover, once there is no dispute with regard to issuance of bill Ex. PW1/A qua the sale made in favour of the defendant by plaintiff, non-production of account books otherwise has lost its relevance in the instant case. Once defendant herself admitted the factum with regard to purchase of Steel/Saria and took the specific stand that she had made payment in cash, onus was upon her to prove the mode and source of the payment, especially when such fact was seriously disputed by the defendant by placing heavy reliance on ledger entry Ex. PW1/B, wherein sum of Rs. 72,385/- was shown to be outstanding against the defendant. 12. Having perused the material available on record, this Court is fully satisfied and convinced that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. No question of law muchless substantial arises in the instant case for adjudication. Besides above, this Court sees no reason to interfere in the concurrent finding of facts and law recorded by the court below, especially when learned counsel representing the appellant has been not able to point out any perversity in the findings recorded by the Court below. 13. Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , it has been held as under: "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269) 14. Aforesaid exposition of law clearly suggests that High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless the same are shown to be perverse. In the case at hand, this Court while examining the correctness and genuineness of submissions having been made by the parties, has carefully perused evidence led on record by the respective parties, perusal whereof certainly suggests that the Courts below have appreciated the evidence in its right perspective and there is no perversity, as such, in the impugned judgments and decrees passed by both the Courts below. Moreover, learned counsel representing the appellants was unable to point out perversity, if any, in the impugned judgments and decrees passed by both the Courts below and as such, same do not call for any interference. 15. Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the impugned judgments and decrees passed by courts below which otherwise appear to be based upon proper appreciation of evidence and as such, same are upheld. The present appeal fails and same is accordingly dismissed. Interim directions, if any, are vacated. All miscellaneous applications are disposed of.