Rodi Lal Nagda vs Kanhaiya Lal
2021 Latest Caselaw 1120 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Misc. Appeal No. 504/2020

Rodi Lal Nagda S/o Shri Chunni Lal Nagda, Aged About 64 Years, Proprietor Firm Rodilal Chunnilal Nagda, Near Hanuman Ji Mandir, Dhan Mandi, Udaipur (Raj.)

----Appellant Versus Kanhaiya Lal S/o Shri Babu Lal Dhabai, R/o Chilalwas, Tehsil Badgaon, District Udaipur (Raj.)

----Respondent

For Appellant(s) : Mr. Muktesh Maheshwari.

For Respondent(s)           :



           HON'BLE MR. JUSTICE SANGEET LODHA
           HON'BLE MR. JUSTICE ARUN BHANSALI

                                   Judgment

15/01/2021

This appeal under Section 13 of the Commercial Courts Act

read with Section 96 CPC is directed against judgment and decree

dated 08.11.2019 passed by Commercial Court, Udaipur, whereby

the suit filed by the appellant-plaintiff for recovery of a sum of

Rs.5,17,286/-, has been dismissed.

The suit was filed by the plaintiff, inter alia, with the

submissions that the plaintiff-firm was a proprietorship concern

and was involved in business of sale of cattle feed; the defendant

was dealing with the plaintiff-firm since 2012, he always

purchased the goods on credit, for which, bills were issued and the

same were entered into the account in defendant's name in the

ledger maintained by the plaintiff, which contains all the details

pertaining to purchases made by the defendant and the amount

(2 of 7) [CMA-504/2020]

paid. It was claimed that the defendant made last purchase on

29.06.2015 and also paid Rs.30,000/- towards the previous

outstandings and on the said date, a sum of Rs.3,67,286/- was

outstanding. Despite repeated reminders, the outstandings were

not paid and the defendant stopped purchasing goods and visiting

the plaintiff-firm.

A notice dated 26.05.2017 was sent, which was refused. It

was further reiterated in the suit that the account of the defendant

was being maintained in the ledger, which shows outstanding of

Rs.3,67,286/- and in terms of the indications made in the bills, for

the delayed payment, the plaintiff was entitled to interest @ 2%

and, therefore, from 29.06.2015 till the date of issuing notice, the

amount of interest comes to Rs. 1,50,000/-, as such a total sum

of Rs. 5,17,286/- has been outstanding.

Based on the above submissions, it was prayed that the

decree for a sum of Rs. 5,17,286/- be granted alongwith

contractual interest.

After service, written statement was filed by the defendant

denying the averments contained in the plaint. It was contended

that no goods were purchased on credit and all the goods were

purchased in cash.

Further submissions were made that all the bills have been

paid and no amount is outstanding. Ultimately, it was prayed that

the suit be dismissed.

The commercial court framed three issues. On behalf of the

plaintiff, Proprietor-Rodi Lal Nagda was examined as PW-1 and he

exhibited 34 documents. On behalf of the defendant, sole

(3 of 7) [CMA-504/2020]

defendant-Kanhaiya Lal was examined, however, he did not

produce any documentary evidence.

After hearing the parties, the commercial court came to the

conclusion that the suit was based on the bills (Exhibits- 6 to 34)

and the ledger (Exhibit-4), Exhibits-6 to 34 i.e. the bills did not

contain any signatures of the person, who had prepared the bill,

proprietor of the firm or the plaintiff, except for four bills, none of

the bills contained, signatures of the defendant or his

representative. The court also noticed that the fact that the

amount being outstanding against the defendant, the said aspect

was not reflected in the returns filed with the Income-tax

Department despite the plaintiff being an income-tax payer, the

ledger account produced was found suspicious and as the petty

cash book, cash book and various vouchers, which formed the

basis for the entries in the ledger were not produced, the entries

were found to be unreliable.

The commercial court also noticed the contradictions in the

statement of the plaintiff regarding the entries made in the ledger

and found that the ledger (Exhibit-4) was nothing more than a

waste paper and, consequently, decided the issue No.1 against the

plaintiff.

The issue No.2 pertaining to lack of cause of action was

decided against the defendant and in view of its finding on issue

No.1, the suit was dismissed.

Learned counsel for the appellant made vehement

submissions that the commercial court was not justified in

dismissing the suit based on the findings recorded by it.

(4 of 7) [CMA-504/2020]

Submissions were made that there were contradictions in the

pleadings and proof on part of the defendant, inasmuch as, while

in the written statement, it was denied that any goods were

purchased on credit, in the affidavit in relation to admission-denial

of the documents, he indicated that if the goods were purchased

on credit, the payment was made in a day or two and in the

affidavit in evidence again reiterated that no goods were

purchased on credit, which clearly indicates his vacillating stand.

Further submissions were made that no material was

produced by the defendant to prove his case that he had

purchased the goods in cash though he claimed that the bills of

having purchase the goods in cash were available with him.

It was emphasized that as the plaintiff had produced

sufficient documentary evidence in support of his claim regarding

the outstanding, the commercial court despite lack of any

documentary evidence on part of the defendant, was not justified

in dismissing the suit and, therefore, the findings on issue No.1

being vitiated, the judgment impugned requires interference by

this Court.

We have considered the submissions made by learned

counsel for the appellant and have perused the record as

summoned from the commercial court.

A perusal of the suit, written statement and the evidence

produced, clearly brings out that the entire suit is based on the

documents (Exhibits-6 to 34) which are bills pertaining to the

sales made by the plaintiff and Exhibit-4, the ledger account,

which besides reflecting the sales made indicates the amount

(5 of 7) [CMA-504/2020]

received and at the end indicates the outstanding of Rs.3,67,286/-

as on 29.06.2015.

Section 34 of the Evidence Act deals with the relevance of

entries in books of account, which reads as under:-

"34. Entries in books of account when relevant. - Entries in books of account, including those maintained in an electronic from, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."

A perusal of the above provision reveals that entries in books

of account, which have been regularly kept in the course of

business are relevant, but such statements alone are not sufficient

to charge any person with liability.

A perusal of the ledger account (Exhibit-4) produced by the

plaintiff, indicates that the same only contains the dates and the

amounts under the debit, credit and balance columns i.e. the

same does not contain anything in the 'particular' column. There is

no reference to the bill nos. or the nature of amount received.

A close scrutiny of the said ledger account, also reveals that

the same apparently contains dates in wholly haphazard manner,

inasmuch as, the date 16.04.2013 is followed by 16.03.2013,

06.05.2013 is followed by 16.04.2013, 30.09.2013 is followed by

28.09.2013, 12.02.2015 is followed by 25.12.2014, 15.03.2015 is

followed by 26.02.2015 and 14.04.2015 is followed by

05.04.2015, such ledger, which as noticed hereinbefore does not

contain any particular, clearly give rise to suspicion. In any case it

cannot be said that the same was kept regularly in course of

business.

(6 of 7) [CMA-504/2020]

Further while the plaintiff clearly indicated in his cross-

examination that the bills as produced do not contain the

indication that the sale was on credit and that the cash received is

recorded in the cash book. However, in support of the entries

made in the ledger, the cash book was not produced.

Besides the above, the claim was made that the Exhibit-4,

the ledger was prepared by plaintiff's Accountant (Munim) and by

plaintiff himself, indicated name of his Munim as Shilpa Madam,

however, indicated that he cannot say that which entries were

made by him in Exhibit-4 and which were made by Shilpa Madam,

then on his own indicated that on all the pages of Exhibit-4, the

entries were in his hand and went on to indicate that his

Chartered Accountant is Shilpa Madam.

The said statement also indicates the fact that the plaintiff

failed to substantiate the entries made in the ledger even orally by

taking vacillating stand about its author and claimed Shilpa

Madam as Munim as well as Chartered Accountant in the same

breath, which also reflects that the entries made in Exhibit-4,

were not supported by any material so as to prove the

outstanding as contained therein.

Qua the bills (Exhibits-6 to 34) also, the plaintiff claimed that

he was maintaining separate bill books for goods sold on credit

and goods sold for cash, however, as to whether the said bills

pertained to credit sales was not indicated on the bills, which

further puts the material produced in support of the ledger

account in jeopardy.

The commercial court has besides the above aspect, also

rightly come to the conclusion that except for the four bills, which

(7 of 7) [CMA-504/2020]

contains signatures of the defendant, none of the other bills

contain any signatures either of the plaintiff or of the defendant,

which does not prove the fact of sale of goods on credit to the

defendant.

So far as the submissions made by learned counsel for the

appellant in relation to the so called contradictions in the pleading

and the statement made by the defendant pertaining to the fact of

purchase of goods on credit and the fact that he did not produce

any material in support of his contention of having purchased the

goods for cash only is concerned, the minor contradictions pointed

out by the counsel, that also only in the affidavit pertaining to

admission-denial of the documents cannot by itself prove the case

of the plaintiff, which he has miserably failed to substantiate for

lack of any material and mainly relying on a self-serving ledger

account (Exhibit-4).

Even otherwise, it is well settled that a plaintiff is required to

stand on his own legs and cannot rely on the lack of and/or

weakness of the defendant.

In view thereof, the finding recorded by the commercial

court on issue No.1, cannot be faulted.

In view of the above discussion, there is no substance in the

appeal, the same is, therefore, dismissed in limine.

                                   (ARUN BHANSALI),J                                      (SANGEET LODHA),J

                                    9-PKS/-









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