M/S Deen Dayal Jagdish Chand vs M/S Modern Cloth House
2025 Latest Caselaw 674 P&H

Punjab-Haryana High Court

M/S Deen Dayal Jagdish Chand vs M/S Modern Cloth House on 9 January, 2025

                                   Neutral Citation No:=2025:PHHC:002619




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    IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
 224                                      RSA-1414-2015 (O&M)
                                     Date of decision: 09.01.2025

M/s Deen Dayal Jagdish Chand
                                                               ...Appellant(s)
                                        Vs.
M/s Modern Cloth House
                                                             ...Respondent(s)
CORAM:              HON'BLE MS. JUSTICE NIDHI GUPTA

Present:-           Mr. Rahul Verma,, Advocate
                    Mr. Yagsimant Attri, Advocate
                    for the appellant.

                    Mr. Deepak Balyan, Advocate with
                    Mr. Vicky Chauhan, Advocate
                    for the respondent.

                    ***
NIDHI GUPTA, J.

Challenge in the present appeal preferred by the

plaintiff is to the concurrent findings returned by the Courts below

whereby the suit for recovery of Rs.96,500/ Rs.96,500/- with interest @ 15% per

annum since 01.04.2010 01.04.20 till its realisation, filed by the aappellant has been

dismissed by the learned Additional Civil Judge (Senior Division), Kaithal

vide judgment and decree 26.11.2012; and appeal filed by the appellant

against said judgment and decree dated 26.11.2012 has been dismissed

by the learned Additional Additional District Judge, Kaithal vide judgment and decree

dated 18.09.2014.

2. Learned counsel for the appellant contends that in

passing the impugned judgments and decree, the learned Courts below

have erred in law and fact, misread, misconstrued and mis mis-interpreted the

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pleadings as well as oral and documentary evidence available on record;

as also the mandatory and settled proposition of law. It is submitted that

the learned Courts below erred in not considering the fact that the

appellant-firm firm is a duly registered registered partnership firm under the provisions of

the Indian Partnership Act. The plaintiff-firm plaintiff firm deals in the business of

wholesale merchant at Kaithal. The respondent/defendant had been

customer of appellant firm and used to purchase clothes from the

appellant on credit and had running account with the appellant for the

last 8-9 9 years. As on 1.4.2007, there was outstanding amount of Rs.

99,000/- due against the respondent. The appellant had duly proved on

record the cloth purchased by the respondent respondent during the financial year

2007- 2008, 2008- 2008 2009 and 2009-2010.

2010. The appellant also proved on

record that against the cloth purchased by the respondent on credit

during the aforesaid financial years, the respondent made certain

payments during the said s financial years. However, the respondent had

purchased cloth loth for Rs. 1,88,597/- during the aforesaid financial years and

paid only Rs. 96,600/-;

96,600/ and the amount of Rs. 91,997/ 91,997/- was due to be paid

by the respondent towards the principal amount and Rs. 4503/-towards

the interest @ 15% PA, which the respondent agreed to pay pay. But despite

repeated demands made by the appellant, the respondent failed to make

the payment of the aforesaid amount and as a result of which the

appellant had to file suit for recovery.

recov It is reiterated that the appellant

duly proved on record the amount to be paid by the respondent to the

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appellant by way of oral as well as documentary evidence. As such the

learned courts below ought to have decreed the suit in favour of the

appellant as prayed for. As such the impugned judgment and decree

passed by learned courts below are liable to be set aside.

3. Learned counsel for the appellant submits that in

passing the impugned judgment and decree, the learned Courts below

failed to o consider that the respondent had a running account with the

appellant which is also clear from the transactions w.e.f. 05.04.2007

which were duly proved on record. The learned Courts below also ignored

the fact that the respondent had admitted in his cro cross-examination that

he knew the appellant-firm;

appellant firm; that he had taken cloth from the appellant appellant-

firm; that he keeps bahis and record of the material sold by him, but he

cannot produce the same in the Court. It is submitted that from the said

testimony of the respondent respondent as also the written statement, it is clear that

the respondent admitted having purchased cloth from the appellant but

did not produce any record with regard to the payments made to the

appellant.

4. It is argued that on the other hand, the appellant while

appearing as PW1 clearly proved the bills vide which the respondent

purchased the cloth from the appellant and had also produced original

account books from 01.04.2007 to 31.03.2011 and other relevant record.

The appellant had even proved the the acknowledgment given by the

respondent with regard to the outstanding amount by executing the

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writing dated 31.03.2010 whereby the respondent agreed to pay

Rs.96,500/- to the appellant. It is submitted that in view of the above

facts, there was no ground groun to non-suit suit the appellant. The learned Courts

below have also wrongly ignored the extract of account of respondent

maintained by the appellant and proved on record Ex.P76.

5. Learned counsel for the respondent submits that

defendant was having no running running account with the plaintiff firm and

defendant used to purchase the clothes cloth s from the plaintiff firms by paying

cash and no amount is outstanding against the defendant. It is also

contended that plaintiff himself had admitted that defendant had made a

payment yment of Rs.96,600/-

Rs.96,600/ in the financial year 2007 2007-08, 2008-09 and 2009-

10 and there is no evidence on the file to prove that Rs.99000/ Rs.99000/- was due

against the defendant on 01.04.2007 as plaintiff has not placed on the file

any account books for the financial 2006-07 20 07 or daily Rokar Bahi of that

period. Learned counsel for the defendant has also argued that writing Ex.

P80 has also not been proved on the file. Accordingly, it is prayed that the

present suit be dismissed with cost.

6. No other argument is raised on behalf of the appellant.

7. I have heard learned counsel for the appellant and

perused the case file in great detail.

8. Brief facts of the case are that the present suit for

recovery was instituted by the appellant--plaintiff against respondent-

defendant inter alia on the allegations that plaintiff is a registered

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partnership firm, duly registered under the provisions of the Indian

Partnership Act and Sh. Sat Parkash son of Sh. Deen Dayal is its registered

partner. Plaintiff firm deals in the business business of wholesale merchant at

Chhotti Mandi, Kaithal. The defendant had been customer of plaintiff firm

and used to purchase the clothes cloth s from plaintiff on credit and had a

running account with the plaintiff firm for the last 88-9 years. During the

financiall years 2007-08, 2007 2008-09 and 2009--10, the defendant purchased

the clothess from plaintiff on credit. On 01.04.2007, there was an

outstanding amount of Rs.99,000/-

Rs.99,000/ due against the defendan defendant.

9. As per the pleaded case of the appellant, there were

numerous financial transactions between the appellant and the

respondent in respect of which entries were duly maintained in the

account books of the appellant in regular course of business. Accordingly,

the appellant filed the present suit against the defendant seeking recovery

of Rs.96,500/-

Rs.96,500/ with interest @ 15% per annum since 01.04.2010 till its

realisation.

10. Upon notice, the defendant had appeared and filed

written statement raising preliminary objections objections while also submitting

that the appellant had borrowed amounts on interest from the

respondent; and that the respondent had never purchased cloth from the

appellant-firm firm on credit. Appellant had duly filed the replication

reiterating the claims made ma in the plaint.. On the basis of pleadings,

following issues were framed: -

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"1. Whether the plaintiff is entitled for recovery of Rs.96500/ Rs.96500/-

along with interest @ 15% per annum? OPP.

2. Whether the suit is not maintainable? OPD.

3. Whether the plaintiff has as no locus standi or cause of action to file the present suit? OPD.

4. Relief."

11. It has been alleged by the plaintiff that as on

01.04.2007, Rs.99,000/-

Rs.99,000/ was due against defendant; and from 05.11.2007

to 06.11.2007 cloth worth 11,150 was bought by the defendant; in 2008

for Rs.37,390/-;

Rs.37,390/ and in 2009-2010 for Rs.40,512/ Rs.40,512/-. Against this, the

defendant had paid Rs.96,600/-.

Rs.96,600/ After appraisal and consideration of the

entire evidence on record, the learned trial court in regard to Issue No.1

whether plaintiff plaintif entitled for recovery, returned the findings that: a) From

the documents it was proved (at page 29) that defendant purchased

cloths worth Rs.11,155 in year 2007-08;

2007 08; Rs.37,390/ Rs.37,390/- in year 2008-09 and

Rs.40,555/- in year 2009-10 2009 10 coming out to the total of Rs.89,010/-. Out of

this amount, the defendant has paid Rs.96,600/ Rs.96,600/- to plaintiff-firm. Thus,

the plaintiff had ha to prove that on 01.04.2007 sum of Rs.99,000/ Rs.99,000/- was due.

However, the record reveals that except for the oral evidence of PW1,

there was no evidence on file to prove the alleged outstanding amount

against the defendant. In attempting to prove his case, the Plaintiff had

relied upon extract of account of defendant defendant-firm Ex.P76 in which

Rs.99,000/- was carried forward in accounts of defendant defendant-firm. However,

the same could not be relied upon on this in the absence of previous Bahi

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entries or any receipt for the said amount. As per the record, Plaintiff firm

was in custody of Bahi entries even for period prior to 01.04.2007 but it

had not placed and/or and proved the same on record.

12. The plaintiff had also placed on file Ex.P80, a writing

signed by proprietor of defendant-firm defendant firm where it was mentioned that

Rs.96,500/- was due against plaintiff as on 31.03.2010 31.03.2010. However, no

evidence was brought on record by the plaintiff to prove that said writing

Ex.P80 was made by the defendant.. Even the same was denied by DW1 in

his cross-examination examination and no efforts were made by plaintiff to prove

signature of the defendant on Ex.P80.

13. Thus, after exhaustive and detailed examination of the

entire evidence adduced on record by the parties, the learned trial Court

vide judgment and decree dated 26.11.2012 dismissed the suit of the

appellant, and gave the following findings: -

"14...In In the present case as discussed above all the account books are in the possession of the plaintiff firms but despite that account books and Bahi entries prior to 01.4.2007 were not produced by the plaintiff firm and thus plaintiff firm has itself fail to produce the material evidence on the file and therefore, adverse inference is to be drawn against the plaintiff. Although defendant has also not produce on the file in the account book even though DW1 Ajay Kumar stated in his cross-examination examination that defenda defendant firm maintained his account book in regular course of his business but as stated above initially onus is on the plaintiff to prove that Rs.99000/ Rs.99000/-

was due against the defendant firm as 01.09.2007 by producing the account book and Ro Rokar Bahi for the relevant period."

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14. The said judgment and decree dated 26.11.2012 was

challenged by the appellant by way of Civil Appeal No.98/2014 No.98/2014. Vide

judgment and decree dated 18.9.2014, the appeal of the appellant firm

was dismissed, and the judgment and decree of tthe learned trial court

was affirmed. In doing so, the learned Additional District Judge, Kaithal

kept in view the fact that there was no evidence of the appellant to

indicate that as on 01.04.2007 amount of Rs.99,000/ Rs.99,000/- was due against the

respondent; that the appellant had also failed to prove as to when the

respondent had purchased clothes from the appellant and when and how

many times and how much payments were made by him. Reference was

also made to statement of PW1-Satparkash PW1 Satparkash who had admitted in his

testimony timony that the bahi entries were not page page-numbered nor the binding

was such that the leaves in between could not have been inserted or

extracted. In fact, it was even admitted that there were many blank leaves

in between. In view of this fact, fact it was held that no presumption could be

raised that it/ it the financial record/Bahi had been correctly maintained.

The learned Courts below also took note of the fact that it was the specific

stand of the respondent/defendant that he did not purchase cloth clothes from

the appellant on credit basis and whenever cloth cloths were purchased, he had

made cash payments in respect thereof. Relevant findings of the learned

lower Appellate Court are as under:-

under:

"14. In view of above discussion and after careful perusal of the case file, this his Court is of the considered opinion that so far as the present appeal is concerned, it is totally devoid of any merit and the rulings as relied upon by the Id. Counsel for the

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appellant-plaintiff plaintiff have no applicability to the facts and circumstances of the he present case. In the present case, the appellant-plaintiff plaintiff was required to prove that as on 01.04.2007, Rs.99,000/- were due against the respondent respondent-

defendant. Merely from the fact that this amount has been shown as due against respondent respondent-defendant in Bahies, no presumption can be raised that it was so due because the bahies of the relevant period have not been produced on the case file. The bahies which have been produced in the Court are also of such nature from which, pages could be extracted and added later on. There was no page numbering on these bahies. It is not explained by the Id. Counsel for the appellant- plaintiff, why the previous bahies have been withheld by the appellant-plaintiff. If the intention tention of the appellant appellant-plaintiff would have been clear lear then even in this court, he could have moved an application for additional evidence to produce the previous bahies.

15.....Much Much reliance has been placed upon the document i.e. the acknowledgement Ex. P80 but the respondent respondent-defendant has denied his signaturesatures over the same and in such circumstances, it was the bounden duty of the appellant appellant- plaintiff to examine some handwriting expert to compare the signatures over this document, with the admitted signatures of respondent-defendant defendant but it has not been don done so this contention of the Id. Counsel for the appellant appellant-plaintiff that the Courtt can examine the signatures of respondent respondent- defendant is not tenable one because the Court cannot substitute its opinion with tthe opinion of qualified Expert.....There is nothing on the record, shown by the appellant- plaintiff why expert has not been examined.

examined."

15. The ld. First Appellate Court further found that: a)

although the plaintiff had claimed interest at the rate of 15 15% per annum

but no document was brought on record to show that this was ever fixed

between parties;

parties b) Respondent/defendant has denied his signatures on

acknowledgement (Ex.P80) and plaintiff was under duty to examine some

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handwriting expert to compare the signatures on document document; c) there was

nothing on record to indicate as to why expert has not been examined examined; d)

The Document (Ex.P80) appears to be a cyclostyled document which is

used by petitioner after filling in the blanks and which was used against

other persons also. As such, the learned Co Courts below correctly held that

"it cannot be stated that the said document is proved."

16. Learned counsel for the appellant is unable to deny,

dispute or controvert the above said concurrent findings of the learned

Courts below.

17. Before parting, itt may be pointed out that the p present

appeal is of the year 2015 and the same has been adjourned at request of

learned counsel for the appellant on 13.07.2015, 22.07.2016 and

31.08.2022 and on account of non-appearance appearance of learned counsel for the

appellant on 25.01.2019.

18. resent appeal is dismissed.

In view of the above present

19. Pending application(s) if any also stand(s) disposed of.

09.01.2025                                                    (Nidhi Gupta)
Sunena                                                        Judge

 Whether speaking/reasoned:       Yes/No
 Whether reportable:              Yes/No




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