Sri Gitam Kataki vs Sri Sardar Servinder Singh Sethi
2021 Latest Caselaw 239 Gua

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GAHC010217902019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : RSA/120/2020

            SRI GITAM KATAKI
            S/O- LATE PULIN KR. KATAKI, PROPRIETOR OF M/S JBS TRADING G.N.B.
            ROAD, NEAR M.L. BARUAH ROAD, SILPUKHURI, GUWAHATI- 781004,
            DIST.- KAMRUP(M), GUWAHATI, ASSAM.



            VERSUS

            SRI SARDAR SERVINDER SINGH SETHI
            S/O- SARDAR UJAGAR SINGH SETHI, SOLE PROPRIETOR OF M/S G.D.
            MOTORS AND M/S S.S. MOTOR WORKS, CHATRIBARI ROAD, GUWAHATI-
            781001, DIST.- KAMRUP(M), ASSAM.



Advocate for the Petitioner   : MR P KATAKI

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 27.01.2021

Heard Mr. P. Kataki, learned counsel for the appellant at the stage of admission under Order XLI, Rule 11 of the CPC.

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2) That the appellant is the defendant in M.S. No. 293/2011, which was filed by the respondent for realization of a sum of Rs.1,04,763.84 with interest @ 21% p.a. from the date of filing of the suit till realization. In brief, the case projected in the plaint was that the respondent had supplied lubricants to the appellant on credit vide six bills for a total sum of Rs.82,410/- and despite sending notice dated 06.08.2011, as no payment was made, the suit was filed for principal with interest till the date of filing of the suit. In his written statement, the appellant had denied receipt of goods and asserted that the claim was false. On contest, the said suit was decreed with cost vide judgment and decree dated 18.03.2017, passed by the Court of learned Munsiff No.2, Kamrup (M), Guwahati. The aggrieved appellant had preferred an appeal, which was registered as Money Appeal No. 1/2017. The said appeal was dismissed by the learned Civil Judge (Senior Division) No.3, Kamrup (M), Guwahati vide judgment and decree dated 13.05.2019. This appeal is directed against concurrent finding of the learned Courts below.

3) The learned counsel for the respondent has submitted that the respondent did not prove goods delivery challan, as such, the learned Courts below had erred in decreeing the suit on the basis of invoices alone. It is also submitted that in his cross examination as DW-1, the appellant had stated that he got his goods from other supplier. It is submitted that the learned Courts below had erred in relying on Ext. nos. 1(1), 1(2), 2(1), 2(2), 3(1), 3(2), 4(1), 4(2), 5(1), 6(1), 7(1), 8(1), 8(2) and 9(1), which were stated to be signatures of the employees of the appellant and/or the respondent, without those persons being examined as witnesses. It is submitted that the respondent had admitted that the bills and challans were made by his employees, who were not examined. Accordingly, it is submitted that following four substantial questions of law arise for determination by this Court, viz., (a) Whether by mere exhibiting a document without formal proof of the signature of the recipient, an inference can be drawn that the recipients has received the goods mentioned in the invoices; (b) Whether the burden of proof upon the plaintiff stands discharge on mere exhibiting a document without proving the signatures of the recipients; (c) Whether Section 114 (g) of Evidence Act attracts when there is specific denial regarding receipts of the goods; and (d) The defendant/ appellant craves the leave of the Hon'ble Court Page No.# 3/6

to take any other substantial question of law as framed by the learned Courts below under facts and circumstances of the case."

4) In support of his contention, the learned counsel for the appellant had cited the following cases, viz., (1) Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Anr., (2003) 8 SCC 745; (2) Nandkishore Lalbhai Mehta Vs. New Era Fabrics Private Ltd. & Anr., (2015) 9 SCC 755.

5) It is seen that in course of trial, the learned trial Court had framed the following issues for trial, viz., (1) Whether there is any cause of action for the suit? (2) Whether the defendant had any transaction with the plaintiff as alleged in the plaint? (3) Whether the plaintiff is liable to pay Rs.1,04,763/84 to the plaintiff? (4) To what other relief(s) the parties are entitled to? On scrutiny of the evidence on record, the issue no.1 was decided in the affirmative and in favour of the respondent by holding that there was cause of action for the suit. As regards issue no.2, the learned trial Court held that exhibit nos. 1 to 6 contained the seal of the firm of the appellant and that while DW-1 denied about the seal in his cross examination, but no steps was taken to establish that the said seal was not of his firm and, as such, it was held that the six invoices had clearly established monetary transaction between the appellant and the respondent. Accordingly, the issue no.2 was decided in the affirmative. Accordingly, the learned trial Court did not accept the plea of the appellant that he purchased goods from another vendor. It was held that the Ext.1 to 4 and 9 contained seal of the firm of the respondent and that Ext.8(1) was seal of the firm of the respondent. It was also held that Ext. nos. 1(2), 2(2), 3(2), 4(2), 5(2) and 6(2) in the invoices were seal of the firm of the appellant and that although the DW-1 had denied the said seal as manufactured and fabricated, but no evidence was adduced in this regard. Adverse note was made of the fact that other witnesses were not examined by the appellant to support his stand. Accordingly, in respect of the issue nos. 3 and 4, the respondent was held entitled to the sum of Rs.1,04,763.84 from the appellant.

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6) In appeal, the learned first appellate Court had formulated one point of determination to the effect that whether the plaintiff supplied lubricants to the defendant on credit basis for an amount of Rs.82,410 vide tax invoice nos. 225100005, 225100006, 225100007225100010, TI447 and TI448? In this regard, the learned first appellate Court was of the opinion that the appellant had alleged that the seal and sign appearing in the invoices did not belong to his firm or his employees and that the respondent had manufactured it for illegal gain, but as per section 101 of the Evidence Act, the burden of proof was on the appellant who had alleged mala fide on part of the respondent. As no evidence was adduced, the learned first appellate Court had referred to the provisions of section 114 Ill.(g) of the Evidence Act and drew adverse inference as the appellant had not adduced evidence of his claim and it was concluded that tax invoice was a documentary evidence to prove confirmation that supply of goods and services took place and that the buyer could claim ITC (input tax credit) on the strength of tax invoices. Accordingly, the point of determination was decided against the appellant and it was held that the suit was rightly decreed.

7) Both the cases of Narbada Devi Gupta (supra) and Nandkishore Lalbhai Mehta (supra) were cited to show that mere production and marking of a document as exhibit by the Court cannot be held to be due proof of its contents. In the cited case, the trial Court had decreed the suit for recovery of possession filed by appellant- plaintiff. The Division Bench of Calcutta High Court set aside the judgment by the learned trial Court and by allowing the appeal of the respondent. The civil appeal before the Supreme Court of India was by the appellant- plaintiff. The rent receipt proved by the respondent had contained signatures of the appellant in its back-page and, as such, while rejecting the contention advanced by the appellant, the Supreme Court of India had observed as follows - "... We do not find force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as an admitted document ." The said observations were made because the documents were admitted and then exhibited and the appellant- plaintiff had not disputed his signatures on the back of them and, as such, it was held that there was no further burden Page No.# 5/6

of proof on the respondent- defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady. The facts of the present case are somewhat similar. The respondent had exhibited the six tax invoices, each containing the seal of the firm of the appellant with signature. The appellant failed to disprove the seal to be of his firm. No evidence was led to show that the said seal was manufactured and fabricated. The Ext. nos. 1(2), 2(2), 3(2), 4(2), 5(2) and 6(2) in the invoices were seal of the firm of the appellant, and no objection as made as to their admissibility. Therefore, when the respondent proved the seal of the firm of the appellant, there was no requirement for the respondent to prove the writings in those tax invoices. Therefore, the cited case of Narbada Devi Gupta (supra) does not help the appellant, rather it fortifies the concurrent finding of fact concerning point of determination as framed by the learned first appellate Court.

8) The case of Nandkishore Lalbhai Mehta (supra) , is distinguishable on facts. In the said case, the Supreme Court of India had held that the High Court had given its verdict by forming an opinion that the case of easementary right could be considered even in absence of any pleading or issue relating to an easementary right, as the evidence available was sufficient to make out easementary right over suit property and on such factual matrix it was further observed by the Supreme Court of India that the High Court in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental principles rules of civil procedure. In the present case in hand, the respondent- plaintiff had pleaded in the plaint regarding sale of goods to the appellant through six tax invoices, which were proved by the respondent. Therefore, for the reasons assigned in respect of the case of Narbada Devi Gupta (supra), the cited case of Nandkishore Lalbhai Mehta (supra) also does not help the appellant in any manner.

9) Therefore, in light of the discussions above, the purported substantial questions of law as formulated in the memo of appeal are hit by concurrent finding of facts, all relating to proving of six tax invoices. Accordingly, the Court is constrained to hold that no Page No.# 6/6

substantial questions of law arise for decision in this case. The points agitated by the learned counsel for the appellant is squarely covered by concurrent finding of facts which warrants no interference in exercise of jurisdiction under section 100 CPC. The findings recorded by the learned Courts below are not found to be perverse. This is not a case where the findings have been arrived at by wrongly casting the burden of proof on a wrong party. This is also not a case where any finding recorded by the learned Courts below is contrary to evidence on record or by ignoring material evidence on record. This is also not found to be a case where the Courts below had arrived at a finding despite lack of admissible evidence. This is also not a case where the evidence as a whole, does not lead to preponderance of probability that the respondent had succeeded to show that goods were sold to the appellant vide six tax invoices. The appellant had made an attempt to project that he had purchased the goods from another vendor, but the said plea was not proved. Accordingly, this appeal fails and the same is dismissed without issuing notice on the respondent. The appellant is left to bear his own cost.

10)             Let the decree of dismissal of the appeal be prepared.



11)             The Registry shall notify the dismissal of this appeal to the Court of the

learned Civil Judge No.3, Kamrup (M), Guwahati in connection with Money Appeal No. 1/2017, disposed of vide judgment and decree dated 13.05.2019.

JUDGE

Comparing Assistant