Nijamuddin Abdul Aziz Khan vs Through Its Proprietor -
2009 Latest Caselaw 4 Bom

                                         1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL  APPELLATE  JURISDICTION




                                                                           
                           APPEAL NO. 13 OF 1995




                                                   
     1.    Nijamuddin Abdul Aziz Khan              ]
           Age Adult, Occupation-Business.         ]
                                                   ]




                                                  
     2.    Hasimuddin Abdul Aziz Khan              ]   .. Appellants
           Age Adult, Occupation-Business.         ]
           Both Residents of 51-B,                 ]
           Soutar Road, Near Arab Masjid,          ]




                                      
           Madanpura, Bombay.                      ]

                  Vurses
                       
     Hemant Agencies Firm                          ]
                      
     Through its proprietor -                      ]
     Shri Nandlal Baqnsilal Karwa,                 ]    .. Respondent
     Adult, Occupation - Business,                 ]
     Resident of Panvel, District - Raigad.        ]
      
   



     Mr.Rajiv Patil with Mr.Sachin Punde  for the Appellants.
     Mr.N.V.Walawalkar   with   Mr.Devidas   H.Kelskar   for   the 
     Respondent.





                                      CORAM : S.A. BOBDE  &
                                                 S.J. KATHAWALLA,JJ.

DATED : DECEMBER 5, 2009.

ORAL JUDGMENT (Per S.A.Bobde, J.) :-

This is an Appeal against a Judgment and Decree of

the Civil Judge Senior Division, Pune, decreeing the

Respondents/Plaintiffs suit in the sum of Rs.12,96,320/- plus

notice charges of Rs.250/- and interest @ 18 % p.a. on each bill

till the institution of the suit and further interest on Rs.

12,96,320/- @ 9 % p.a. from the date of suit till the realization

of the entire amount.

2. In brief the Respondents/Plaintiffs suit for unpaid

price of goods delivered to the Appellants. The Appellants is a

proprietary concern having a Poultry Farm at Shirdhon and at

Sangurli known as Aziz Broiler Farm. The proprietor was one

deceased Abdul Aziz used to purchase poultry feed such as

maize, wheat, jawar and so on from the Respondent, on credit.

The Respondent used to acquire these goods from another

supplier and used to supply to the parties like the plaintiffs.

3. The Respondents/Plaintiffs suit is for recovery of the

unpaid price for supply of poultry feed worth Rs.13,94,230/- to

Aziz Broiler Farm between 28th September, 1991 to 18th

February, 1992. The amount having remained unpaid inspite of

notice, the present suit was instituted. The Plaintiff examined

himself and other witnesses to substantiate the suit claim.

Apart from the plaintiff, the other witnesses examined on behalf

of the Plaintiffs were Suresh Asthana who served as Manager

with the Appellants/Defendant's Broiler Farm during the period

from 1980 to 1993, including the period of the suit transactions.

Another witness Anil Nagwekar, an employee of the Abhyuday

Co-Operative Bank, Panvel Branch was examined to show that

Aziz Broiler Farm was authorized to operate the current account

of the farm lying with the Abhyuday Co-Op. Bank, Panvel. The

third witness was Mishilal Bhagdia who deposed to the effect

that there is prevailing practice in the market to charge interest

when the credit facility is given to the customer. The

Respondent also produced documentary evidence such as

notice, reply to the said notice, verified extracts of accounts and

copies of 37 bills and corresponding challans. The Respondent

also produced various postal acknowledgments, letter dated 28th

February, 1991 authorization of the Appellant authorizing his

Manager Suresh Kumar to operate the current account.

4. On going through the entire evidence, the Trial

Court found that the bills raised by the Respondent

corresponded to the 37 challans which are marked at Exh.26.

Further relying on the evidence of Suresh Asthane who was

employed by the Appellants, the Trial Court came to the

conclusion that poultry feed was supplied and delivered to the

Plaintiff on credit. The Trial Court also referred to the reply of

the deceased proprietor of the Appellants that he will pay

arrears of Rs. 1,00,000/- per quarter by bank draft. Further the

Trial Court considered the Respondent's/Plaintiff's case was

corroborated and thereby proved by the documentary evidence

and held that the deceased Abdul Aziz was liable in the sum of

Rs.12,96,320/- to the Respondent till 18th February, 1992.

5. Mr.Patil, the learned Advocate for the Appellants

submitted that an inference that the goods were supplied on

credit could not have been drawn by the learned Trial Court as

the evidence in the matter was insufficient to support the said

conclusion. According to Mr.Patil, there is no evidence that the

deceased proprietor has himself signed on the delivery challans

and other related documents. We find that the absence of the

signature on the documents is not sufficient to cast a doubt on

the Plaintiff's case which is supported by the delivery challans

and the bills. As observed earlier, the Appellants own employee

has entered the witness box and stated on oath that during the

relevant period goods were purchased on credit from the

Respondents/Plaintiffs. Moreover, the deceased Proprietor

Abdul Aziz had himself, in reply to the notice Exh.29 stated that

he has would to pay arrears at the rate of 1,00,000/- per

quarter by bank draft. We have thus no hesitation in accepting

the conclusions drawn by the Trial Court.

6. Mr.Patil further contended that the Appellants did

not have sufficient opportunity to defend the case since after

the demise of Abdul Aziz, the legal representatives were not

properly represented in court. There is no merit in this

submission in the circumstances of the case since the Appellants

Advocate undertook the task of cross examining the

Respondents witness and eventually filed a pursis that he did

not have sufficient instructions from the Appellants who are not

responding to their communication.

In these circumstances, we are of the view that the

Appellant cannot be allowed to take advantage of their own

lapses in instructing their Advocate, if any. In any case, we find

on the record that the Respondents suit has been rightly

decreed on the basis of cogent and reliable evidence by the Trial

Court. There is thus, no merit in the Appeal. The Appeal is

therefore dismissed.

7. No order as to costs.

(S.A. BOBDE, J.)

(S.J. KATHAWALLA, J.)