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2023 DIGILAW 354 (RAJ)

Banshidhar Satya Narain v. Moti Lal Shanker Lal

2023-01-31

NARENDRA SINGH DHADDHA

body2023
ORDER 1. This civil first appeal under Section 96 CPC has been filed by the appellants-defendants (for short, 'the defendants) against the judgment and decree dt.5.3.2003 passed by Additional District Judge No.6 Jaipur City, Jaipur in Civil Suit No.10/1996 titled as M/s. Moti Lal Shanker vs. M/s. Banshidhar Satya Narain and anr. whereby respondent-plaintiff's (for short, 'the plaintiff') the plaintiff suit for recovery of money has been decreed and counter claim of the defendants has been dismissed. 2. Plaintiff instituted a suit against the defendants in the Court of District Judge, Jaipur City, Jaipur on 13.5.1996 for recovery of Rs.2,60,375.58 with interest @ 2.5% per mensem w.e.f. 13.3.1993. Plaintiff averred in suit that Manju S. Chitlangia is the sole proprietor of the plaintiff firm. Defendant No.1 is a partnership firm and defendant No.2 is a partner of the firm. On 13.3.93 twice the defendants borrowed sugar bags from the plaintiff under bill valued Rs.1,31,231.76/- and Rs.1,29,183.82/-. Goods along with bill were sent to the defendants but the defendants did not pay the amount. In lieu of total outstanding amount of Rs.2,60,375.58, the defendants gave cheque of Rs.50,000/- to the plaintiff, which on being presented in the bank, was returned with remark 'insufficent fund'. Thereafter, the defendants again issued two cheques No.058070 dt. 16.4.93 and cheque No.058072 dt. 1.5.93 against outstanding amount of Rs.2,60,375.58. On being presented, the said cheques in the bank, they were again dishonoured. Registered notice dt.27.5.1993 was sent to the defendants but they did not make the payment. 3. The defendants filed their written statement and denied the averments made in the plaint. It was averred that the defendants had not borrowed any sugar bag from the plaintiff firm on 13.3.1993 they also denied to have received bills they also averred that two cheques as aforesaid, were given the plaintiff on account of necessity of funds shown by the plaintiff. Defendants further averred in the written statement that current open account was not settled after 1.4.92. 4. In the counter claim, the defendants averred that the plaintiff is required to owe a sum of Rs.1,93,000/- to the defendants, which were taken on 08.03.1993 due to necessity of funds. It was also averred that the suit filed by the plaintiff is barred by limitation. 5. The plaintiff filed rejoinder to the written statement filed by the defendants and denied any outstanding amount owed to the defendants. 6. It was also averred that the suit filed by the plaintiff is barred by limitation. 5. The plaintiff filed rejoinder to the written statement filed by the defendants and denied any outstanding amount owed to the defendants. 6. The trial court framed the following issues:- (I) Whether on 13.03.1993 the defendants borrowed sugar from the plaintiff under two bills valuing Rs.2,60,375.50 in aggregate and the plaintiff is entitled to recover this amount from the defendants? (ii) Whether on the due amount, the plaintiff is entitled to receive interest @ Rs.2.50% per mensen as per the market rate? (iii) Whether the defendants are entitled for randition of account from the plaintiff in pursuance of Schedule-A? (iv) Whether suit is barred by limitation? (v) Whether Satya Narain received a sum of Rs.1,93,000/- from the defendants in Cash and the defendants are entitled to adjustment of the same? (V-A) whether Smt. Manji S. Chitlangia is the sole proprietor of the plaintiff firm? (V-B) Whether the defendant is a partnership firm and the defendant No.2 is not its sole proprietor? If yes, what is its effect on suit? (VI) Relief. 7. Plaintiff examined PW-1 Manju S. Chitlangia, PW-2 Girdhar Sharda, Pw-3 Gajanand, PW-4 Vasudev, Pw-5 Murari Lal Khandelwal, PW-6 Staya Narain Chitlangia to corroborate the averments made in the plaint and exhibited some documents. Defendants examined DW-1 Satya Narain Parwal, DW-2 Rajendra Modi, DW-3 Jugal Kishore Parwal and got exhibited some documents. 8. Trial court vide its judgment dt. 5.3.2003 decreed the suit of the plaintiff for Rs.2,60,375.58 with interest thereon Rs.1.5 per month w.e.f. 13.3.93 and dismissed the counter claim of the defendants. Hence, this appeal. 9. Learned counsel defendants submits that judgment of the trial court is contrary to law and material available on record because trial court has failed to appreciate that present suit was barred by limitation. As per averments made in the plaint, the so called goods were sold to the defendants on 13.3.1993. As per Article 14 of the Limitation Act, a suit for recovery of the price of the goods would be filed within three years from the date of delivery of goods. The limitation expired on 12.3.1996. Learned counsel for the defendants also submitted that goods were sold on credit for a period of 7 days. As per Article 14 of the Limitation Act, a suit for recovery of the price of the goods would be filed within three years from the date of delivery of goods. The limitation expired on 12.3.1996. Learned counsel for the defendants also submitted that goods were sold on credit for a period of 7 days. So, as per Section 15 of the Limitation Act, suit could be filed upto 20.3.1996 but the said suit was filed on 13.5.1996. So, the suit was time barred. 10. Learned counsel for the defendants also submits that learned trial court had not framed issue No.4 regarding limitation properly because burden to prove that the suit was within limitation should be on the plaintiff and not on the defendants. Learned counsel for the defendants also submits that trial court wrongly considered the notice for computing limitation which were given for the outstanding payment. So, issue No.4 regarding limitation be decided against the defendants. 11. Learned counsel for the defendants has relied upon the judgment of the Hon'ble Supreme Court in the case of J.C. Budhraja vs. Chairman, Orissa Mining Corporation Ltd. and anr. reported in (2008)2 SCC 444 and Northern Indian Finance Corporation (P) Ltd. (in liquidation) vs. R.L. Soni AIR 1973 Punjab and Haryana 35 Punjab and Haryana High Court (Principal Seat at Chandigarh). 12. Learned counsel for the plaintiff has opposed the arguments advanced by learned counsel for the defendants and submitted that the trial court rightly decided the issue in favour of the plaintiff because two cheques were given by the defendants and when the said cheques were dishonoured, notice dt.27.5.1993 was sent. So, trial court has rightly came to the conclusion that suit is within time. 13. Learned counsel for the plaintiff has relied upon the judgments: (1) Rajpati Prasad Vs. Kaushalya Kuer and Other reported in AIR 1981 Patna 187; (2) Hindustan Apparel Industries Vs. Fair Deal Corporation, New Delhi reported in AIR 2000 Gujarat 261 and (3) Hanuman Mal Vs. Jatan Ma reported in AIR 2005 Rajasthan 71. 14. I have considered the arguments advanced by learned counsel for the defendants as well as counsel for the plaintiff. 15. Trial court in its judgment clearly mentioned that the plaintiff had supplied the sugar bags by two bills dt. 13.3.1993 but defendants had not paid the amount. Jatan Ma reported in AIR 2005 Rajasthan 71. 14. I have considered the arguments advanced by learned counsel for the defendants as well as counsel for the plaintiff. 15. Trial court in its judgment clearly mentioned that the plaintiff had supplied the sugar bags by two bills dt. 13.3.1993 but defendants had not paid the amount. So, plaintiff firm gave notice for due amount on 27.5.1993 and filed present suit on 13.5.1996. So, suit is within limitation. So, in my considered opinion, trial court has not committed any error in deciding the issue in favour of the plaintiff. 16. Learned counsel for the defendants also submitted that trial court wrongly decided the issues No.1 & 2 in favour of the plaintiff. Learned counsel for the defendants submits that in plaint no bill number was mentioned by which sugar was supplied. Learned counsel for the defendants submits that PW-4 Vasudev who was Commission Agent in its evidence clearly stated that he was not present at the time of sending the goods. Learned counsel for the defendants also submits that trial court wrongly relied on the account sheet (Ex.22) in which 2 entries of 13.3.1993 have been made after making entry of 17.3.1993 followed by entry of 31.1.1993. Learned counsel for the defendants submits that no bill book was presented during evidence and plaintiff failed to produce any general ledger or Khatuni. Defendants in their written statement clearly denied for receiving the goods. Learned counsel for the defendants also submits that plaintiff had filed an application under Order 41 Rule 27 CPC for taking bill book and nakal bahi on record. After delay of 22 years, these documents are created for filling up lacuna. So, these documents cannot be taken into consideration. Learned counsel for the defendants submits that accounts exhibited during evidence are not of regular course of business. So, these documents cannot be taken into consideration. Learned counsel for the defendants submits that trial court wrongly came to the conclusion for giving cheques for outstanding amount. Learned counsel for the defendants also submits that trial court wrongly awarded the interest of Rs.1.5 per month. So, findings on these issues are liable to be set aside. 17. Learned counsel for the defendants has relied upon following judgments : (1) Iswar Dass Jain (Dead) through Lrs Vs. Learned counsel for the defendants also submits that trial court wrongly awarded the interest of Rs.1.5 per month. So, findings on these issues are liable to be set aside. 17. Learned counsel for the defendants has relied upon following judgments : (1) Iswar Dass Jain (Dead) through Lrs Vs. Sohal Lal (Dead) by Lrs reported in (2000) 1 SCC 434 ; (2) Uttaradi Mutt Vs. Raghavendra Swamy Mutt reported in (2018) 10 SCC 484 ; (3) State Of Gujrat & Anr. Vs. Mahendra Kumar Parshottambhai Desai (Dead) by Lrs. Reported in (2006) 9 SCC 772 ; (4) Union Of India Vs. Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148 and (5) Disha Constructions & Others Vs. State Of Goa & Anr. reported in (2012) 1 SCC 690 . 18. Learned counsel for the plaintiff has opposed the arguments advanced by learned counsel for the defendants and submitted that the trial court rightly decided these issues in favour of the plaintiff because plaintiff by way of evidence clearly proved account sheet (exhibit-22) and notice given to the defendants for recovery. Learned counsel for the plaintiff also submits that if there was no dues then there was no occasion for giving two cheques by the defendants. So, trial court rightly came to the conclusion that defendants have not paid the due amount to the plaintiff. Learned counsel for the plaintiff also submits that plaintiff has filed an application under Order 41 Rule 27 CPC for taking on record the bill as well as Khata bahi. These documents are genuine. So, all these documents also proved that plaintiff had supplied sugar to the defendants on 13.3.1993 of Rs.2,60,375.58. So, findings of the trial court regarding two issues be affirmed. 19. Learned counsel for the plaintiff has relied upon the following judgments : (1) Mangi Lal Vs. Mool Chand reported in 1988 (1) RLW 288 and (2) Fateh Lal Vs. Bhagwati Lal reported in 2008(6) WLC 376. 20. I have considered the arguments advanced by learned counsel for the defendants as well as learned counsel for the plaintiff. 21. While deciding issues No.1 & 2, trial court clearly stated that plaintiff had supplied the sugar and proved the documents exhibit-22. Plaintiff also filed an application under Order 41 Rule 27 CPC in which plaintiff submitted the bill book and nakal bahi. There is no evidence that these documents are forged. 21. While deciding issues No.1 & 2, trial court clearly stated that plaintiff had supplied the sugar and proved the documents exhibit-22. Plaintiff also filed an application under Order 41 Rule 27 CPC in which plaintiff submitted the bill book and nakal bahi. There is no evidence that these documents are forged. Trial court in its judgment also mentioned that defendants have given two cheques of Rs.50,000/-. If no amount was due with the defendants, then there was no occasion for giving these cheques. Plaintiff had also given notice (exhibit-23) for recovery of these amounts. So, in my considered opinion, trial court has not committed any error in deciding issues no.1 & 2 in favour of the plaintiff and against defendants. 22. Therefore, the present appeal being devoid of merit is liable to be dismissed which stands dismissed accordingly. 23. All pending applications also stand dismissed.