Gujarat High Court
Patel Rameshchandra Hiralal Through ... vs Urvashiben Pravinchandra Patel on 17 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025
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Reserved On : 24/04/2025
Pronounced On : 17/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2104 of 2022
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 2 of 2023
In R/FIRST APPEAL NO. 2104 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✔
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PATEL RAMESHCHANDRA HIRALAL THROUGH PARTNER JASMIT
NATUBHAI PATEL & ORS.
Versus
URVASHIBEN PRAVINCHANDRA PATEL & ORS.
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Appearance:
MR SALIL M THAKORE(5821) for the Appellant(s) No. 1,2,3,4
MR VIRAT G POPAT(3710) for the Defendant(s) No. 1,2.1,2.2,2.3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)
1. Present Appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as Page 1 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined 'CPC' for short) by the original defendant being aggrieved and dissatisfied by the judgment and order passed by the Judge, Commercial Court, Ahmedabad (hereinafter referred to as 'the learned Commercial Court' for short) in Commercial Civil Suit No. 359 of 2021.
2. The appellant is the original defendant in the Civil Suit whereas respondent is the original plaintiff. For sake of brevity, the parties are referred to as per the cause- title of the Civil Suit.
3. The controversy which has resulted in filing of the present appeal is that an oral contract was entered into in the year 1987 between the plaintiff and the defendant qua purchase of Isabgul. The goods were to be purchased through the defendant. The terms of the oral contract indicated that 25% of the purchase value of Isabgul had to be paid by the plaintiff and the rest of the amount, i.e. 75% was to be invested by the defendant for which the plaintiff was liable to pay interest at the rate of 18% per annum. Further, it was agreed between plaintiff and the Page 2 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined defendant to store Isabgul (hereinafter referred to as 'the goods' for short) from time to time in defendant's godown in Unjha and plaintiff had agreed to pay rent for the same at the end of each year. In total, 5239 bags of Isabgul were purchased. It was further agreed that the defendant will charge commission from the plaintiff for such purchases. It was the case of the plaintiff that the defendant had agreed and were duty bound to store and continue to store the goods in their godown till the plaintiff desired. As per plaintiff, the defendant had categorically agreed for the same. It was the case of the defendant that they had sent demand for various amounts as payment to the defendant upto 31.3.1990. The amount were towards 25% of the purchase price, godown rent, interest and commission. It was the case of the plaintiff that they had paid in total an amount of Rs.49,10,026.79 paise to the defendant.
4. It was the case of the plaintiff that the goods purchased were stored in the godown of the defendant from 1987 onwards. Time and again, the plaintiff had Page 3 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined made payment for the same and the last payment was made in April, 1990, which was acknowledged by the defendant.
5. However, in the year 1993, the defendant raised some dispute with regard to the percentage of price of payment to be made by the plaintiff to the defendant. In wake of such controversy, the defendant sold the goods stored in the godown in the year 1993. The defendant intimated the plaintiff by way of communication dated 9.7.1993 and 10.7.1993, informing the plaintiff that they had sold 3089 bags of goods as well as another set of 2190 bags of goods at the rate of Rs.190/- per 20 kg.
6. It was the case of the plaintiff that the sale made by the defendant was illegal and void. The defendant had sold the goods without the permission of the plaintiff dehors the contractual obligation and with an ulterior motive. It was the case of the plaintiff that the defendant had no authority or right to sell the goods and the action of the defendant was without the consent of the plaintiff Page 4 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined and hence was illegal, arbitrary and unjust. It was further the case of the plaintiff that they had made payment of almost Rs.49 lakh, which was not disputed by the defendant. Despite such payment, the goods were illegally sold out by the defendant.
7. Being aggrieved by the action taken by the defendant, the plaintiff instituted a Suit before the Commercial Court on 27.7.1993, which came to be numbered as Civil Suit No. 3702 of 1993. The prayer made in the Suit was for recovery of Rs. 1.00 Crore being the amount of goods sold. Pursuant to the initiation of the proceedings under the Commercial Courts Act, the suit came to be renumbered as Commercial Civil Suit No. 359 of 2021. The learned Commercial Court, by way of the judgment and order dated 21.10.2021 allowed the suit partly declaring that the act of the defendant in selling out the goods without prior permission of the plaintiff was clearly in breach of the contract and thereby the defendant was ordered to refund the amount of Rs. 49,10,026.79 ps along with interest at the rate of 9% per Page 5 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined annum from the date of filing of the suit till its realization. The amount of Rs.49.10 lakh was arrived as actual payment being made to the defendant. Being aggrieved by the judgment and order passed by the learned Commercial Court, the original defendant has preferred the present First Appeal.
8. Heard Mr. Salil Thakore, learned advocate for the Appellant and Mr. Virat Popat, learned advocate for the defendants. It was vehemently submitted by Mr. Thakore that the learned Commercial Court has misconstrued the oral evidence. The learned Commercial Court has erred in holding that the plaintiff has paid the entire purchase amount of the goods that they were required to pay. The conclusion drawn by the learned Commercial Court from the oral evidence is incorrect. It was further submitted that the learned Commercial Court has failed to appreciate that the defendant firm has every right to sell of the goods in order to recover its cost and losses considering that the plaintiff trust has failed to discharge its obligation of paying the balance consideration and the Page 6 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined expenses considering that the price of the goods had fallen. The learned Commercial Court has failed to appreciate that the sale was not at all wrongful but was necessary so that the defendant could recover its losses/ cost that had occasioned because of non-payment by the plaintiff of money that it was required to pay.
9. It was further submitted by Mr. Thakore that the learned Commercial Court has erred in not appreciating the fact that the plaintiff was negligent in payment of substantial portion of the purchase amount. A huge sum of money which was due and payable by the plaintiff to the defendant towards godown rent and other ancillary expenses were required to be recovered from the plaintiff. The learned Commercial Court failed to appreciate that even after recovery of money by selling goods, an additional amount was required to be paid by the plaintiff to the defendant. In wake of such submissions, Mr. Thakore has contended that the learned Commercial Court has failed to appreciate that it is the plaintiff who has breached the terms of agreement and Page 7 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined the defendant has acted as per law.
10. It was further submitted by Mr. Thakore that the appellant- original defendant had never accepted any averment mentioned in the plaint relating to oral evidence. However, the learned Commercial Court has erred in holding that the defendants have admitted to such averment. It was further submitted by Mr. Thakore that the plaintiff has produced their Books of account, which clearly reflect that the plaintiff owed money to the defendant and such admission made by the plaintiff is a clear proof by itself that they have not paid the due amount. Further, when the ledger balance produced by the plaintiff itself shows that the amount was due to be paid by the plaintiff to the defendant. The learned Commercial Court ought to have accepted the same in evidence to hold that it was the plaintiff who owe money to the defendant and not the other way round.
11. Mr. Thakore further relied on the deposition of Pravinchandra Patel, i.e. plaintiff witness No.2 and Mr. Page 8 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined Jayantilal Jivanlal Patel, defendant witness at Exh-122. It was submitted by Mr. Thakore that on a bare reading of the deposition of the witnesses of the defendants, it can be seen that the plaintiff owed money to the defendant and the defendant was very much within his right to sell the goods.
12. It was further submitted by Mr. Thakore that the defendants are creditors and not debtors. The amount owned by the defendant was specifically mentioned in the letters dated 9.7.1993 and 10.7.1993. This aspect was not responded by the plaintiff. The defendant being agent was entitled to sell the goods and recover of the cost of goods which were purchased by the defendant.
13. Apart from the issues on merits, further contention raised by Mr. Thakore was that the suit has been filed by a Private Trust without bringing the resolution of the Trust which would substantiate the authentication to the person who filed suit on behalf of the trust. In absence of the same, the suit would not be maintainable. The Page 9 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined judgment and order passed by the learned Commercial Court, is, thus, to be set aside on this ground alone.
14. Per contra, Mr. Virat Popat, learned advocate for the respondent- original plaintiff has submitted that the defendants have sold the goods for wrongful gains and to cause wrongful loss to the plaintiff. The details of the sale are not put on record. The sale made by the defendants are to the persons who were known to the defendants and who were in collusion with the defendant to cause loss to the plaintiff. The defendant has not placed on record any factual aspect with regard to the sale transaction, had the goods been sold in the open market, the plaintiff would have received an amount of Rs.90 lakh and odd and if at all there were investments made by the defendant, that would have been recovered from such amount. It was further submitted that the defendant has wrongfully charged commission without any basis. The plaintiff was duty bound to recover such amount. The plaintiff had produced on record the Books of account with regard to the amount paid to the defendant. Despite the legitimate Page 10 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined amount being paid to the defendant, the goods were sold by the defendant in breach of the oral agreement. In wake of such submissions, Mr. Popat has contended that the first appeal is meritless and the judgment and order passed by the learned Commercial Court is just and proper.
15. Having heard learned counsels for the parties and perused the judgment of the learned Commercial Court as well as the evidence on record, the primary point of determination in the present first appeal would be:
i. Whether the Commercial Court was justified in coming to the conclusion that the plaintiff was entitled to recover the amount that was paid to the defendant?
Before determining the point, it is necessary to go through the issues that were framed before the learned Commercial Court, which are as under:
Issue No. 1. Whether the plaintiff No.1 prove that the goods sold i.e. 239 bags weighing 30292 kg of Page 11 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined Isabgul were stored in the godown of the defendants?
Issue No. 2. Whether the plaintiffs prove that they entered into contract, showing with the terms and conditions in the year 1987, with the defendants as stated in para. 3 of the plaint?
Issue No. 3. Whether the plaintiffs prove that they paid the amount of Rs.49,10,026.79 ps. to the defendants as stated in para.3 of the plaint?
Issue No. 4. Whether the defendants prove that the plaintiffs have committed breach of contract?
5. Whether the plaintiffs are entitled to recover Rs.1,00,63,199.70ps. with interest @18% from the defendants?
6. Whether the plaintiffs are entitled for the relief as prayed for?
7. As per order passed below Exh.139 following issue is added, Whether the plaintiff proves that it do not require any prior permission from the respective charity commissioner to file and prosecute present suit?Page 12 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025
NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined It is worthwhile to note that Mr. Thakore has not raised any controversy or dispute with regard to the findings of the trial Court on issue Nos. 1, 2 and 3. Therefore, it is not in dispute that there was an oral contract between the parties and the plaintiff had made payment of Rs. 49,10,026.79 ps to the defendant. Therefore, the fulcrum of controversy would be the findings and observations made on issue Nos.4 and 5. To discuss on the findings of issue Nos. 4 and 5 as well as to determine the point framed in the present appeal, it would be necessary to go through the documentary and oral evidences that were produced before the learned Commercial Court, which are as under:
ORAL EVIDENCE OF PLAINTIFF:
Sr. No. Exhibit Particulars
Number
1. 46 Deposition of witness No.1 of plaintiff Mr.Pravinchandra Baldevbhai Patel on affidavit.
2. 125 & 131 Deposition of witness No.2 of plaintiff Mr. Shaileshbhai Balmukund Bhavsar on affidavit and additional affidavit.Page 13 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025
NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined DOCUMENTARY EVIDENCE OF PLAINTIFF:
Sr. No. Exhibit Particulars
Number
1. 57 & 58 Copy of debit note regarding interest,
60 TO 66 rent, labour charges, dalali, godown
rent, telephone charges etc.
2. 59 Copy of credit note.
3. 67 Copy of statement
4. 68 Copy of account regarding to amount
of interest, godown, labour charges
etc.
5. 69 Copy of debit note.
6. 70 Copy of letter dated 31.03.1992
7. 71 Copy of letter dated 22.05.1992
8. 72 Copy of credit note
9. 73 TO 77 Copy of debit note
10. 78 Copy of books of account.
11. 85 Copy of letter dated 23.04.1990
12. 86 Copy of letter dated 24.04.1990.
13. 87 Copy of letter dated 01.06.1993
14. 88 Copy of acknowledge receipt
15. 89 Copy of letter book
16. 90 Copy of letter dated 14.06.1993
17. 91 Copy of letter dated 09.07.1993
18. 92 Copy of letter dated 10.07.1993
19. 93 Copy of Trust Deed
20. 156 Copy of letter dated 23.04.1990
21. 157 Copy of letter dated 24.04.1990.
22. 158 Copy of letter dated 01.06.1993
23. 159 Copy of acknowledgment receipt.
24. 160 Copy of letter dated 21.06.1993.
25. 161 Copy of letter dated 14.06.1993.
26. 162 Copy of letter dated 09.07.1993. Page 14 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025
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27. 163 Copy of letter dated 10.07.1993.
28. 164 & 165 Copy of books of account
29. 166 Copy of letter dated 22.10.1987.
30. 167 TO 169 Copy of books of account.
ORAL EVIDENCE OF DEFENDANT:
1. 122 Deposition of defendants No.3 of Mr. Jayantilal Jivanlal Patel on affidavit.
DOCUMENTARY EVIDENCE OF DEFENDANT:
--NIL--
16. To determine this point, the first aspect would be to go through the evidence that has been produced. The plaintiff has produced the Books of account at Exh-78.
Even the defendant has not disputed the fact that an amount of Rs.49.10 lakh was paid by the plaintiff to the defendant.
17. The first contention of the defendant is that there were other dues over and above Rs.49.10 lakh to be paid by the plaintiff to the defendant, due to non-payment of which the goods were sold. To justify this aspect, the Page 15 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined defendant has not produced their Books of account. The defendant has also not produced on record any proof of the the sale transactions which were made by them in open market. The defendant has not produced a single piece of evidence or information with regard to what was additional dues that they were demanding from the plaintiff and what would be the adjustment after the goods were sold in the open market. Merely making bald allegation that they were supposed to get an additional amount over and above Rs.49.10 lakh paid by the plaintiff, would not justify the demands of the defendant. To add to this factual aspect, a recovery suit was preferred by the defendant. The said suit is already dismissed and there is no appeal preferred by the defendant. Therefore, the assertion made by the defendant that they had legitimate right of selling the goods, due to the legitimate demand of pending dues over and above Rs.49.10 lakh, cannot be justified by any evidence on record. Therefore, the primary contention of the appellant-original defendant with regard to any Page 16 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined additional dues in favour of the defendant, cannot be substantiated.
18. Another point with regard to the very same argument raised by Mr. Thakore is that the plaintiff has produced his Books of account. According to Mr. Thakore, the ledger account of the defendant in the Books of account of the plaintiff is self-explanatory and once the plaintiff has recorded that some amount was due to the defendant, the dues to be paid by the plaintiff to the defendant cannot be controverted. Unfortunately, this argument of Mr. Thakore cannot be countenanced for variety of reasons. The defendant has not produced on record the audited Books of their accounts. The defendant has also not produced on record any details quantifying the amount recovered through the sale of goods.
19. The initial contract during purchase of goods was payment in the ratio of 25:75. Further, the plaintiff was also required to pay interest and the godown rent. Page 17 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025
NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined Therefore, during the recording of initial transaction, the plaintiff would definitely show such amount as credit balance in their ledger accounts. Further, the reconciliation of the payment can only be ascertained from the Books of account of the defendant which has not been produced. Further, from the Books of account of the plaintiff, the actual payment of Rs.49.10 lakh is not disputed by the defendant. Therefore, the defendant was required to give his version of the Books of account showcasing the transaction of sales of goods and the balance effect thereafter which may be deficient or surplus in favour of the defendant. Once this is so done, the demand by the defendant would be completely malafide and the amount paid by the plaintiff would be subject matter of recovery. No infirmity, therefore, can be attached to the order passed by the learned Commercial Court.
20. Mr. Thakore has further placed strong reliance on the deposition of two witnesses, i.e. the plaintiff witness No.2- Shaileshbhai Balmukund Bhavsar as well as the Page 18 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined defendant witness No.3 Jayantilal Jivanlal Patel. As mentioned hereinabove, a strong objection was raised by the defendant counsel to the communication dated 23.4.1990 wherein condition of the transaction was communicated by the plaintiff to the defendant. It was mentioned therein that the defendants were not supposed to sell the goods in question. An issue has been raised by Mr. Thakore that the receipt of this communication is not on record and it is a highly disputed document. However, this argument of Mr. Thakore cannot be countenanced, inasmuch as, in the examination-in-chief of the plaintiff witness, the document has been categorically referred to and proved by the witness, the defendant, however, has not cross-examined the witness on the said aspect. The document has, thus, been proved by the plaintiff's witness. Therefore, the argument that the plaintiff has not communicated to the defendant vis-à-vis the transaction, is baseless and cannot be accepted.
21. The further issue agitated by Mr. Thakore is that the Page 19 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined defendant was an agent and the admission in the Books of account of the plaintiff are admission against the maker of the document. Mr. Thakore has placed heavy reliance on the documents produced by the plaintiff and particularly the ledger account. It is the case of the defendant that when the ledger account of the plaintiff itself shows an amount to be credited in favour of the defendant, they are the admission by the plaintiff with regard to amount due to the defendant. For this aspect, the deposition of defendant witness Mr. Jayantilal Patel becomes very important. It is noteworthy that the plaintiff has adduced oral evidence and documentary evidence both. However, the defendant has adduced only one oral evidence, i.e. the testimony of Mr. Jayantilal, which is at Exh-122. This testimony finds place at Page-'205' of the paper-book. In the examination-in-chief, it has been categorically accepted by Mr. Jayantilal on behalf of the defendant that amount of Rs.49.10 lakh was paid by the plaintiff to the defendant. In the cross-examination, at question Nos. 10 to 14, particular questions were put to Page 20 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined Mr. Jayantilal, who has categorically accepted that the goods were purchased were by them and the bills with regard to such purchases were available with them and they will produce the same on record. Despite this statement, the purchase bills by the defendants are not produced on record.
22. Further, at question Nos. 17 and 19, defendant's witness accepted that partial payment as admitted in the oral contract, was made by the plaintiff. At question No.22, the witness has categorically accepted that the delivery challans of the goods which were in the godown are not with the defendant. From question Nos. 27 to 33, categorical query with regard to the godown, it is to be noted that it has been accepted by the witness that the godown in which the goods were stored did not belong to the defendants. Further, they did not have any evidence with regard to the payment made towards rent of the godown where goods were allegedly stored. Page 21 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025
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23. Further, from question Nos. 59 to 64, it can be seen that it has been accepted by the defendant witness that the payments made by the defendants to the purchasers of Isabgul were by cheques. However, the details of the cheques are not available with them and have not been produced on record. It was further stated by the witness that the goods were purchased from various parties and the names of such parties are not readily available with the defendant. It was further accepted by the witness at question Nos. 76 and 77 that the plaintiff has made their part of the payment. However, the details of the total payment having been made towards the godown rent has not been provided to the plaintiff in writing by the defendant.
24. Therefore, on overall consideration of the testimony of the defendant's witness, it is clearly established that the plaintiff had made the payments as per the oral contract. The defendant though claims to have made the payment to satisfy their promise under the oral contract, Page 22 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined but has failed to place on record anything that transpires the fact that the defendant had purchased the goods or the defendant had made the payment towards the purchase of those goods.
25. Therefore, considering the evidence on record as well as the testimony of the defendant's witness, it is clearly established that the learned Commercial Court has correctly appreciated the evidence to answer the issue No.4 against the defendant and in favour of the plaintiff. The learned Commercial Court has categorically observed that the defendant has not produced the Books of accounts and any documentary evidence to prove the issue raised by them. Admittedly, apart from the oral deposition, no other evidence has been produced. However, the deposition of the witness of the defendant rather goes in favour of the plaintiff and against the defendants. The defendants did not produce documents to establish its defence, and also has failed to produce original records. Generally, it is the duty of the party to Page 23 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined lead the best evidence in his possession, which could throw light on the issue in controversy and, in case, such material evidence is withheld, the case may go against such party. In the present case, there has been categorical admission of the witness of the defendant that certain documents were available with them to establish their defence, however, they have not produced them to showcase their case with regard to issue No.4. It is a settled law that no party can be permitted to travel beyond its pleadings and all necessary material facts should be pleaded and proved by the parties in support of the case set-up by it. In the instant case, the defendant accepted that an amount under the contract was paid by the plaintiff and suggested to make recovery from the plaintiff. Such an artificial argument cannot be accepted. There is no material on record of the case. In view of the same, the findings given by the learned Commercial Court cannot be said to be erroneous either in law or on facts. The appeal deserves to be dismissed, accordingly. Page 24 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025
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26. The last feeble attempt made by Mr. Thakore is to raise an issue to the maintainability of the suit. It was submitted by Mr. Thakore that in absence of resolution of the Trust, the suit was not maintainable. It was further argued that if the Trust stood dissolved, it must be considered as a dead person and no decree can be passed against a dead person. However, it has to be understood that the issue of maintainability was never pleaded nor got framed before the learned Commercial Court in the suit. The defendant cannot be permitted to raise the same at this juncture as the contention raised by Mr. Thakore would require a factual inquiry and it is not an pure issue of jurisdiction. This contention raised by Mr. Thakore is nothing but an afterthought, which cannot be permitted to be raised in the facts of the present case. The argument canvassed by Mr. Thakore with regard to maintainability is, thus, baseless and required to be rejected outrightly.
27. In view of the above discussion, the point framed in Page 25 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025 NEUTRAL CITATION C/FA/2104/2022 CAV JUDGMENT DATED: 17/07/2025 undefined this appeal is determined in favour of the plaintiff and against the defendant. The First Appeal preferred by the defendant is meritless and is dismissed, accordingly. No order as to costs.
All the connected Civil Applications, if pending, also stand disposed of, accordingly.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) SAJ GEORGE FURTHER ORDERS Mr.Himanshu Shah, the learned advocate on behalf of Mr.Salil M. Thakore requests for grant of stay of the order. Considering the facts of the case, the request made by the learned advocate for the defendant is denied.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) SAJ GEORGE Page 26 of 26 Uploaded by SAJ GEORGE(HC01069) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:13:46 IST 2025