Inderjeet Singh vs Brijpal Singh @ Birjoo
2008 Latest Caselaw 1601 Del

3
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RFA No.356/2007

                             Date of decision: 10th September, 2008
%

INDERJEET SINGH                                 ...Appellant
                             Through:   Mr. Som Dutt Sharma, Adv.

                    Versus

BRIJPAL SINGH @ BIJROO                        ...Respondent
                    Through:            Mr. Vipin Kr. Anand, Adv.


CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?


J.R. MIDHA, J. (Oral)

1. The appellant has assailed the judgment and decree

dated 28th February, 2007 passed by the learned Additional

District Judge, Delhi whereby the suit filed by the appellant for

recovery of Rs.4,18,848/- was dismissed as barred by

limitation.

2. The appellant was running the business of Milk Dairy in

the name and style of 'Bharat Dairy'. The respondent, a

milkman, used to supply milk to the appellant for which the

payment was made by the appellant to the respondent on

weekly basis as per the quality and quantity of the milk

supplied. According to the appellant, he had made advance

payments to the respondent due to which there was a debit

balance of Rs.3,25,000/- in the books of account of the

appellant on 20th April, 1998. The appellant made further

cash payment of Rs.25,000/- to the respondent on 20th April,

1998 and thus, as on 21st April, 1995, the respondent owed a

sum of Rs.3,50,000/- to the appellant. After adjustment of

cost of Rs. 61,139/- towards milk supplied by the respondent,

a sum of Rs.2,88,861/- was claimed by the appellant from the

respondent. It is the case of the appellant that the

respondent acknowledged the liability of Rs.2,88,861/- on 26th

May, 2000 and promised to pay the same. The appellant

claimed 18% interest on the aforesaid amount of

Rs.2,88,861/- and filed the suit for recovery of Rs.4,18,848/-

on 28th November, 2002.

3. The respondent contested the suit of various grounds,

inter alia, that the suit was barred by limitation. It was

contended that no business was done between the parties

after 24th April, 1998 when the appellant closed his dairy and

ran away after usurping money of the respondent and other

milkmen. It was denied that there was any debit balance on

20th April, 1998 as alleged by the appellant. The

acknowledgement dated 26th May, 2000 was specifically

denied by the respondent. According to the respondent, there

was no business after 24th April, 1998 and the respondent

could not even locate the appellate after the said date. The

respondent claimed a sum of Rs.1,71,002.78 from the

appellant by way of counter claim. In the replication to the

written statement, the appellant reiterated the contents of the

plaint. However, the appellant did not deny that no business

was done between the parties after 24th April, 1998.

4. The appellant appeared in the witness box as PW-1 and

produced the books of accounts - Ex.PW-1/1. The appellant

further stated in the evidence that he stopped his business for

about 8-10 months without giving the specific dates. The

appellant further stated that when he again started business,

respondent did not supply the milk whereupon he demanded

balance payment from the respondent who promised to pay

and acknowledged the amount on 26th May, 2000. The

acknowledgement on the books of account was marked as

Ex.PW-1/2. In cross-examination, the appellant admitted that

no milk was supplied by the respondent after 25th April, 1998.

The appellant further admitted that no payment was made

after 20th April, 1998. The appellant also produced Ramanand

as PW-2 who is relation of the appellant. The appellant also

produced a hand-writing expert, PW-3, who gave a report

about the hand-writing of the respondent on the

acknowledgement dated 26th May, 2000.

5. The respondent appeared in the witness box as DW-1

and stated that there was no debit balance of Rs. 3,25,000/- in

the account of the appellant on 21st April,1998. He further

states that he never owed a sum of Rs. 2,88,861/- to the

appellant. DW-3 stated that the defendant was in a marriage

function from 25th May, 2000 to the morning of 27th May,

2000. He further stated that neither appellant nor Ramanand

came at the venue of function to get the account book signed.

The respondent also produced a handwriting expert, DW-5

who deposed that disputed signatures on the

acknowledgment dated 26th May, 2000 were not in the

handwriting of the respondent.

6. From the pleadings and the evidence on record it is

clear that the respondent supplied the milk to the appellant till

24th April, 1998. No supply has been made after the said

date. The appellant had to make the payment for the milk

supplies made by the respondent. According to the appellant,

he had purchased milk worth Rs.61,139/- from the

respondent. According to the appellant, he had given an

advance of Rs.3,50,000/- to the respondent and after

adjusting the payment of Rs.61,139/- towards the milk

purchased, the appellant is entitled to recover Rs.2,88,861/-.

The appellant has neither pleaded nor proved as to when the

advance of Rs.3,50,000/- was given by him to the respondent

and, therefore, this fact has not been proved. The appellant

has based his case on page 97 of the account book - Ex.PW-

1/1. We have perused the same. The said account book does

not prove either the advance of Rs.3,50,000/- alleged to have

been made by the appellant to the respondent or the milk

supply of Rs.61,139/-. There has been no transaction between

the parties after 24th April, 1998. The appellant has filed the

suit on 28th November, 2002 which is clearly beyond the

period of limitation.

7. The appellant has relied upon the acknowledgment

dated 26th May, 2000 - Ex.PW-1/2 in the accounts book,

Ex.PW-1/1. We have seen the said account book and

compared the signatures on the said document with the

admitted signatures of the respondent in the trial court record

and we are of the opinion that the signatures on Ex.PW-1/2

are not of the respondent. We have also seen the reports of

the hand-writing experts. The report of the hand-writing

expert, PW-3 produced by the appellant is not correct and has

been rightly rejected by the learned Trial Court. On the other

hand, the report of DW-5 is correct and we agree with the

findings of the learned Trial Court in this regard. That apart,

the document Ex.PW-1/2 does not constitute a valid

acknowledgment in the eyes of law.

8. The learned Trial Court has rightly dismissed the

appellant's suit as time barred. We are of the view that the

suit as well as the present appeal amounts to gross abuse and

misuse of the process of law. The respondent is an illiterate

and poor milkman who supplied the milk to the appellant.

There is no document whatsoever to show that the appellant

advanced a sum of Rs.2,88,861/- to the respondent over and

above the cost of the milk supplied. No particulars as to the

date and mode of payment have been furnished by the

appellant either in the suit or even in the appeal. The

appellant closed the business on 24th April, 1998 and no

supplies were made by the respondent thereafter. The parties

never dealt with each other thereafter. There was no

occasion for the respondent to acknowledge the liability on

26th May, 2000. The appellant has clearly forged the

signatures of the respondent on the document Ex.PW-1/2 in

order to file a false case against the respondent. We are,

therefore, constrained to impose cost of Rs. 25,000/- on the

appellant.

9. There is no merit or substance in the appeal. We,

therefore, dismiss the same with cost of Rs. 25,000/- to be

paid by the appellant to the respondent.

(J.R. MIDHA) JUDGE

(PRADEEP NANDRAJOG) JUDGE September 10, 2008 s.pal