Chattisgarh High Court
M/S Kandoi Transport Limited vs Dinesh Kumar Chandravanshi on 24 January, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 248 of 2019
M/s Kandoi Transport Limited Address Kandoi House,
Mathasahi, Chauliaganj, Post College Chowk, District
Cuttack (Odisha) through authorized signatory Subhash
Kumar Kandoi, GM (Commercial) (earlier DGM Accounts)
Kandoi Transport Limited
---- Appellant/plaintiff
Versus
Dinesh Kumar Chandravanshi, son of Dhaniram
Chandravanshi, resident of Ward No.7, G-Shyam Nagar,
Kawardha, District Kabirdham (C.G.).
---- Respondent/Applicant
For Appellant : Mr. Ashish Surana and Mr. Chetan
Singh Chauhan, Advocates.
For Respondent : Mr. Dharmesh Shrivastava,
Advocate
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Smt Justice Rajani Dubey
Order on Board by Goutam Bhaduri, J
24/01/2022
Proceeding through video conferencing.
Heard.
1. Challenge in this First Appeal is to the judgment and
decree dated 20.03.2019 (Annexure A/1) passed in Civil
Suit No.03-B/2016 by the Additional District Judge, FTC,
Kabirdham (C.G.), whereby the suit filed by the
Appellant/Plaintiff for recovery of loan amount of
Rs.16,10,302/- along with interest was dismissed.
2. The case, as pleaded by the appellant/plaintiff, was that
the plaintiff's company was mainly engaged in
transportation of goods and mineral ore material from
Daldal Mines and Mahavir Minerals at Kawardha and
dump it in Bemetara and then to transport this dumped
bauxite ore to Hathband Railway site for Vedanta
Aluminum Limited, LoLanjigarh, District Kalahandi
(Odisha). The Plaintiff pleaded that in order to carry out
such work of transportation, the Plaintiff approached the
truck owners at Kawardha and offered them to deploy
trucks which would be used for transportation after
manufacture and making of truck body to carry such
mineral and for which an amount would be advanced to
the defendant. The defendant, being the President of
Truck Owner Association, on 20.08.2021 accepted such
proposal for preparation of body of truck to carryout the
minerals and an agreement was also executed to this
effect. Subsequently, 14 Trucks were engaged in such
transportation business and it was agreed that in lieu of
advance and transportation as against payment towards
bills an amount of Rs.1,000/- on each trip would be
deducted, which would be adjusted towards the
repayment of the loan. The Plaintiff contended that the
defendant failed to repay the amount as per the
agreement and lastly a payment of Rs.30,000/- was
made on 14.11.2015, thereafter payment was stopped.
Consequently, on 16.03.2016, a demand was made to
repay the loan but despite that the defendant failed to
repay the amount. Hence, the suit was filed for recovery
of Rs.16,10,302.
3. The defendant denied the entire averments of the plaint.
It was alleged that false documents have been prepared
by the Plaintiff and efforts have been made for undue
enrichment. It was further stated that no amount was
deposited by way of repayment and the payment on
14.11.2015 of Rs.30,000/- in cash by defendant was
denied. It was stated that the suit is barred by limitation
and no cause of action accrued in favour of the
Appellant/Plaintiff and prayed for dismissal of the suit.
4. The learned trial Court had framed as many as six
issues. Out of which, issue No.1 pertains to the fact that
whether the defendant had borrowed Rs.17,50,000/-
from the Plaintiff for carrying out transportation work, for
preparation of body and repair of truck, and it was held
that the Plaintiff has failed to prove it. It was further
held by Issue No.2 that Memorandum of Understanding,
which was executed and relied upon by the Plaintiff, has
not been proved and in Issue No.6 which pertains to
limitation, it was held the suit is barred by limitation.
5. Learned counsel for the Appellant/Plaintiff would submit
that as per the Memorandum of Understanding (Ex.P/2),
this fact was proved that Rs.17,50,000/- was made as an
advance to the defendant and the repayment of
Rs.1,000/-, which would be deducted from each trip
payable from 01.02.2011 would be adjusted, and second
part of the payment of Rs.17,50,000/- would be from
February, 2011. He would further submit that the
plaintiff has proved account-sheet which shows that the
payment was made from time-to-time and the last
payment was proved by Ex.P/9, the copy of account. It is
contended that and as per the statement of Subhash
Kandoi (PW/1) and Vinod Sharma (PW/2), the said
amount was deposited in cash by the defendant.
Therefore, the loan having been acknowledged by
repayment, the suit filed on 09.05.2016 would be well
within the limitation as per Section 19 of the Indian
Limitation Act. He would further submit that the account
also shows that from time-to-time the payment was
made, therefore, taking into transaction, the trial Court
should have decreed the suit.
6. Per contra, learned counsel for respondent/defendant
would submit that the Plaintiff has utterly failed to prove
the transaction itself. He would further submit that the
entire written statement, the availing of loan has been
denied, therefore, the finding arrived at by the learned
Court below is well merited, which do not call for any
interference.
7. We have heard learned counsel for the parties and
perused the documents available on record.
8. According to the Plaintiff, the defendant being the
President of Truck Owner Association agreed to avail the
loan and further agreed to deduct the amount of loan @
Rs.1,000/- per trip towards freight charges. The plaintiff
had examined Subhash Kumar Kandoi as PW/1, Vinod
Kumar Sharma as PW/2 and Virendra Singh Thakur as
PW/3. PW/1 was working as DGM (Accounts) in the
company of the Plaintiff and PW/3 as Site Incharge at
Kawardha, respectively. In order to prove the initial loan
transaction, document (Ex.P/2) has been relied upon and
the same got exhibited by Subhash Kandoi (PW/1). The
entire statement of Subhash Kandoi (PW/1) does not
show the fact that Ex.P/2 also bears the signature of
defendant Dinesh Chandravanshi. No statements have
been made to recognize his signature. This witness
(PW/1) has only proved his signature as 'A to A' on
document Ex.P/2. The defendant Dinesh Chandravanshi
has completely disowned any such transaction or
agreement. Therefore, in order to establish the fact
whether such agreement Ex.P/2, which is the genesis of
starting point of a loan transaction and the defendant
agreed to pay the amount after availing the loan, has
not been proved by the Plaintiff. The Appellant/Plaintiff
also did not make any effort to serve the notice to admit
document to defendant or to call for witness to confront
his signature with document Ex.P/2. It is the sole
testimony of Subhash Kandoi (PW/1) on which the
reliance was placed by the Plaintiff's company.
Therefore, the very existence of Ex.P/2, an Agreement of
Loan transaction, was not proved as required under the
law to accept that as a proof of transaction. The cross-
examination of Virendra Singh Thakur (PW/3), who was a
local resident of Kawardha, when was confronted with
Ex.P/2, he too admitted that his signature is not scribed.
The witness PW/2 has not made any reference to this
agreement.
9. Further, the Plaintiff, in order to prove the loan
transaction, has relied on the account statements
exhibited as Ex.P/3, P/4, P/5, P/6, P/7, P/8 and P/9. The
repayment of loan is said to be by deduction of amount
@ Rs.1,000/- from each trip for payment of
transportation charges. There is no document on record
except the account-sheet to fortify and support the
repayment to establish as to who had made such
repayment and by whom it was paid. Therefore, only by
placing on record the account sheet cannot be presumed
that repayment was made by the defendant. Perusal of
statement of Subhash Kandoi (PW/1) shows that he has
only exhibited the document Ex.P/3 to P/9, being the
copy of ledger account statement. The said statements
of account were not verified from the original account
which was maintained in regular course of business.
Therefore, the question of admissibility of tose extract
copy of sheets of account cannot be accepted as
conclusive proof of fact that they are the true copy of
account sheet, which were in possession of the Plaintiff.
It is trite law that only by putting an exhibit mark on
document it cannot ipso facto be made admissible in
evidence. The solitary statement on behalf of Subhash
Kandoi (PW/1), therefore, cannot be accepted as a
proved statement of fact in absence of any further
supportive or corroborative piece of evidence.
10. The suit was filed on 09.05.2016. Lastly, the Plaintiff has
made averments to bring the suit within limitation on
the ground that an amount of Rs.30,000/- was deposited
by the defendant on 14.11.2015 by cash. The statement
of Subhash Kandoi (PW/1) would show that he is not the
primary witness to said deposit whether it was done by
the defendant or not. Likewise, Vinod Sharma (PW/2)
only made a general statement that on 14.11.2015 a
consolidated amount of repayment of Rs.30,000/- was
made. Who has deposited such amount, whether it was
the defendant or any agent of the Plaintiff, is not clear.
Likewise, the statement of Virendra Singh Thakur (PW/3)
similar statement comes on record i.e. on 14.11.2015
Rs.30,000/- was deposited. It is for the Plaintiff to prove
his case. He cannot stand on the weakness of the
defendant. The defendant in this case could have been
confronted with such facts whether the deposit was
made by him or not but the Plaintiff relied on the
hearsay evidence of Subhash Kandoi (PW/1), Vinod
Sharma (PW/2) and Virendra Singh Thakur (PW/3)
instead of bringing primary evidence/witness on record.
Consequently, the payment which is alleged to have
been made by the defendant on 14.11.2015 also not
proved that it was by the defendant so as to bring it
within the limitation as per Article 19 and 21 of the
Indian Limitation Act, 1963.
11. In view of aforesaid discussion, we are of the considered
opinion that the learned Court below has appreciated
the evidence in its correct perspective which do not call
for any interference by this Court being illegal.
12. Consequently, the appeal has no merit and accordingly it
is dismissed.
13. Let decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
pekde
