Om Prakash vs M/S Narayan Electrical & ...
2011 Latest Caselaw 2471 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of judgment: 09.5.2011


+                  R.S.A.No.243/2007


OM PRAKASH                           ...........Appellants
                         Through:    Mr.Daljinder Singh, Advocate.

                   Versus

M/S NARAYAN ELECTRICAL & MECHANICAL WORKS
                           ..........Respondent
                  Through: Mr.R.P.S.Sirohi, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

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

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

14.22007 which had reserved the finding of the trial judge dated

28.4.2005 whereby the suit filed by the plaintiff Om Prakash

seeking recovery of money had been decreed for a sum of

Rs.41,680.68 along with interest at 9% per annum. Impugned

judgment had reversed this finding. Suit of the plaintiff stood

dismissed.

2. Plaintiff is the proprietor of M/s Pawan Iron & Steel Store;

he had supplied steel pipes to the defendant. Payments were

being made by the defendant. A running account was maintained.

It had been agreed that the defendant would make payment

against each bill within seven days from the receipt of the goods

otherwise interest would be chargeable at the rate of 24 % per

month. Despite demands this amount was not paid. Suit was filed

claiming a sum of Rs.41,680.68 for which Rs.36561.88 comprised

of the principal and the balance was the interest @ 24% per

annum w.e.f. 01.5.1999 to 30.11.1999; interest quotient was

Rs.5119/-.

3. Defendant contested the suit. It was denied that any

amount of payable by the defendant much less than the interest

amount.

4. From the pleadings of the parties the following four issues

were framed:

"1.Wheher the suit of the plaintiff is not maintainable in the present form? OPD

2.Whether the plaintiff is entitled to the decree of amount claimed in the suit? OPP

3.Whether the plaintiff is entitled to any interest on the amount so claimed and if yes at what rate and for what period? OPP

4.Relief."

5. Oral and documentary evidence was led. The invoices/bills

were proved as Ex.PW-1/1 to Ex.PW-1/18; statement of account

was proved as Ex.PW-1/23. The trial judge on the basis of the oral

and documentary evidence held that the plaintiff is entitled to the

decree of the aforenoted amount. Suit was accordingly decreed.

6. Impugned judgment had reserved this finding. The first

appellate court had held that the statement of account was by

itself was not sufficient to establish the claim of the plaintiff; no

sales tax receipt, balance sheet, ledger book or account books

have been proved by the plaintiff; the extraction from the account

books does not fulfill the requirement of law. Section 34 of the

Evidence Act had been adverted to. It was noted that the

document Ex.PW-1/20 to Ex.PW-1/23 are loose sheets of paper

and do not fall within the definition of books of account. Suit of

the plaintiff was accordingly dismissed.

7. This is a second appeal. It has been admitted and on

03.8.2010 the following substantial question of law was

formulated:

"Whether the first Appellate court has illegally ignored the documentary evidence adduced by the plaintiff, if so, its effect? "

8. On behalf of the appellant, it has been urged that the

judgment of the trial court is illegal and perverse; it had not

appreciated the fact that the original record of the Ex.PW-1/1 to

Ex.PW-1/18 and Ex.PW-1/23 had been brought to the Court and

this is evident from the testimony of PW-1. A notice (Ex.PW-1/20)

under Order 12 Rule 8 of the Code of Civil Procedure had also

been issued to the defendant asking him to produce the original

documents but no reply had been furnished to the said notice.

Attention has been drawn to the testimony of DW-1 wherein in his

cross-examination he had admitted that he had given a reply to

Ex.PW-1/20 but the same is not on record. It is pointed out that

the impugned judgment dismissing the suit of the plaintiff is an

illegality; it is liable to be set aside.

9. Arguments have been countered. It is pointed out that the

findings of fact have been correctly appreciated by the court

below and the impugned judgment calls for no interference.

10. Perusal of the record shows that the suit had been dismissed

primarily on two counts. The impugned judgment had noted that

Ex.PW-1/23 which is the statement of account are mere loose

sheets of paper and under Section 34 of the Indian Evidence Act

entries on the books of account unless properly proved cannot be

a piece of evidence. It was noted that these entries in the books

of account were not regularly kept in the course of the business of

the plaintiff. This finding suffers from a perversity. PW-1 had

stepped into the witness box and in his affidavit by way of

evidence (Ex.P) he had proved Ex.PW-1/23. He had deposed that

the parties were maintaining a running account and the statement

of account maintained by the plaintiff regularly in the ordinary

course of business which is correct in terms of the cash book and

ledger of the company is Ex.PW-1/23. He had brought the original

ledger and cash book and this is evident from his testimony dated

21.9.2004; the original invoices had also been brought on that

date. Trial judge had noted that the invoices Ex.PW-1/1 to Ex.PW-

1/18 are only photocopies of the carbon copies maintained by the

plaintiff; originals have not been produced. The case of the

plaintiff is that the originals of these documents were lying with

the defendant and notice under Order 12 Rule 8 of the Code

(Ex.PW-1/20) had been served upon the defendant asking him to

produce these originals. As per the court record no reply had

been furnished to this notice. DW-1 in his cross-examination had

however admitted that he had sent a reply to the notice Ex.PW-

1/19 ( u/O 12 Rule 2 of the Code ) and Ex.PW-1/20 (u/O 12 Rule 8

of the Code); these replies are not on the court file as the same

had not been filed. This is a clear and categorical admission of

the defendant. DW-1 had further in his cross-examination

admitted :

"All the bills through which I had purchased the goods from the plaintiff firm are also in my power and possession till today."

11. This admission of the defendant clearly establishes that the

impugned judgment rejecting the bills Ex.PW-1/1 to Ex.PW-1/18

for the reason that the originals have not been produced is clearly

a perversity; it is liable to be set aside. This finding is accordingly

set aside.

12. Ex.PW-1/23 the statement of account was maintained by the

plaintiff in his regular course of business; as per testimony of PW1

the original cash book and ledger account on the basis of which

this statement account had been prepared had been tendered in

the court. Not a single suggestion has been given to the PW-1

that this document is forged or fabricated. Finding of the trial

judge rejecting Ex.PW-1/23 for the reason that they are loose

sheets of paper and original had not been produced is again a

perversity. This judgment is also set aside.

13. Result is that the plaintiff has been able to prove that he had

through the aforenoted bills (Ex.PW-1/1 to Ex.PW-1/18) supplied

goods to the defendant; defendant had not denied his business

transactions with the plaintiff. The discussion noted supra

establishes and proves the case of the plaintiff. The appellate

court had illegally ignored the evidence. Substantial question of

law is answered in favour of the appellant and against the

respondent. Appeal is allowed. Suit of the plaintiff is decreed.

INDERMEET KAUR, J.

MAY 9, 2011 nandan