Delhi High Court
Sham Lal vs Kashmiri Lal & Sons & Ors. on 17 May, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.797/2010
% May 17, 2012
SHAM LAL ...... Appellant
Through: Mr. R.K. Rathore, Advocate.
VERSUS
KASHMIRI LAL & SONS & ORS. ...... Respondents
Through: Mr. Himanshu Gupta, Advocate for
respondent Nos.2 and 3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.7987/2012(restoration)
There is no opposition to this application. The appeal is therefore
restored to its original number.
Application stands disposed of.
+ RFA No.797/2010
1. The challenge by means of this Regular First Appeal filed under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned
RFA No.797/2010 Page 1 of 4
judgment of the trial Court dated 6.11.2009 dismissing the suit filed by the
appellant/plaintiff for recovery of moneys claimed on account of commission
due for selling the fruits to the defendants.
2. The facts of the case are that the appellant/plaintiff claimed that
the amount in the suit being the principal amount of Rs. 3,82,130.61/-
alongwith interest @ 24% per annum totaling to Rs. 4,53,436.06/- is due as
per statement of account and therefore the defendants are liable to make the
payment.
3. The defendants contested the suit and denied that defendant
Nos.1 and 2 had ever any contractual relations with the plaintiff. It was
further pleaded that the defendant No.3 had on certain occasions purchased
fruits from the appellant/plaintiff, however, with respect to those transactions,
the commission had been paid and nothing was due.
4. After completion of pleadings, the trial Court framed the
following issues:-
"1. Whether the suit is bad for lack of cause of action? (OPD)
2. Whether the suit is hit by Section 69 of Indian Partnership
Act? (OPD)
3. Whether the suit is barred by limitation? (OPD)
4. Whether the plaintiff is entitled for the decree of the suit
amount? If so, to what sum? (OPP)
5. Whether the plaintiff is entitled for interest? If so, at what
RFA No.797/2010 Page 2 of 4
rate and for which period? (OPP)
6. Relief."
5. Trial Court dismissed the suit by observing that the
appellant/plaintiff had failed to prove his case because he had only filed the
ledger account as Ex.PW1/1, and which in itself was not sufficient in law to
fasten liability upon the respondents/defendants.
6. I completely agree with the conclusions of the trial Court
inasmuch as Section 34 of the Evidence Act, 1872 specifically provides that
on the basis of a statement of account alone, no liability can be fastened on a
person and the entries in the statement of account have to be substantiated by
means of documents/vouchers of the transactions. Admittedly, in the present
case, appellant/plaintiff failed to prove that what were the invoices with
respect to which commission was claimed, and whether fruits on the basis of
such invoices were delivered to the respondents/defendants. That being so,
trial Court has rightly held that the appellant/plaintiff failed to prove his case
and therefore the suit is liable to be dismissed.
7. An appellate Court will not interfere with the findings of the trial
Court unless the findings are illegal or perverse. I do not find any illegality or
perversity in the impugned judgment which calls for interference in this
RFA No.797/2010 Page 3 of 4
appeal.
8. In view of the above, appeal is accordingly dismissed, leaving the
parties to bear their own costs. Trial Court record be sent back.
MAY 17, 2012 VALMIKI J. MEHTA, J.
Ne
