M/S Banshidhar Satya Narain vs M/S Moti Lal Shankar Lal
2023 Latest Caselaw 1024 Raj/2

[2023/RJJP/000877]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     S.B. Civil First Appeal No. 213/2003

1.       M/s. Banshidhar Satya Narain, Surajpole Anaj Mandi
         Through Its Proprietor Shri Satya Narain
2.       Satya Narain Parwal S/o Late Shri Ganesh Narain Parwal,
         Plot No. H-3, Parwal Chamber, Todarmal Marg, Banipark,
         Jaipur
                                                       ----Appellants-defendants
                                       Versus
M/s. Moti Lal Shanker Lal, A-5, Suraj Pole, Anaj Mandi, Jaipur
Through Its Proprietor Smt. Manju S. Chitlangia
                                                          ----Respondent-plaintiff

For Appellant(s) : Mr. R.K. Agarwal, Sr. Adv. with Ms. Sunita Pareek For Respondent(s) : Mr. J.P. Goyal, Sr. Adv. with Ms. Manisha Surana & Ms. Sakshi Tiwari

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Order

Order Reserved on :: 24.1.2023 Order Pronounced on :: 31.1.2023

This civil first appeal under Section 96 CPC has been filed by

the appellants-defendants (for short, 'the defendants) against the

judgment and decree dt.5.3.2003 passed by Additional District

Judge No.6 Jaipur City, Jaipur in Civil Suit No.10/1996 titled as

M/s. Moti Lal Shanker vs. M/s. Banshidhar Satya Narain and anr.

whereby respondent-plaintiff's (for short, 'the plaintiff') the

plaintiff suit for recovery of money has been decreed and counter

claim of the defendants has been dismissed.

Plaintiff instituted a suit against the defendants in the Court

of District Judge, Jaipur City, Jaipur on 13.5.1996 for recovery of

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Rs.2,60,375.58 with interest @ 2.5% per mensem w.e.f.

13.3.1993. Plaintiff averred in suit that Manju S. Chitlangia is the

sole proprietor of the plaintiff firm. Defendant No.1 is a

partnership firm and defendant No.2 is a partner of the firm. On

13.3.93 twice the defendants borrowed sugar bags from the

plaintiff under bill valued Rs.1,31,231.76/- and Rs.1,29,183.82/-.

Goods along with bill were sent to the defendants but the

defendants did not pay the amount. In lieu of total outstanding

amount of Rs.2,60,375.58, the defendants gave cheque of

Rs.50,000/- to the plaintiff, which on being presented in the bank,

was returned with remark "insufficent fund". Thereafter, the

defendants again issued two cheques No.058070 dt. 16.4.93 and

cheque No.058072 dt. 1.5.93 against outstanding amount of

Rs.2,60,375.58. On being presented, the said cheques in the

bank, they were again dishonoured. Registered notice

dt.27.5.1993 was sent to the defendants but they did not make

the payment.

The defendants filed their written statement and denied the

averments made in the plaint. It was averred that the defendants

had not borrowed any sugar bag from the plaintiff firm on

13.3.1993 they also denied to have received bills they also

averred that two cheques as aforesaid, were given the plaintiff on

account of necessity of funds shown by the plaintiff. Defendants

further averred in the written statement that current open account

was not settled after 1.4.92.

In the counter claim, the defendants averred that the

plaintiff is required to owe a sum of Rs.1,93,000/- to the

defendants, which were taken on 08.03.1993 due to necessity of

[2023/RJJP/000877] (3 of 8) [CFA-213/2003]

funds. It was also averred that the suit filed by the plaintiff is

barred by limitation.

The plaintiff filed rejoinder to the written statement filed by

the defendants and denied any outstanding amount owed to the

defendants.

The trial court framed the following issues:-

(I) Whether on 13.03.1993 the defendants borrowed sugar from the plaintiff under two bills valuing Rs.2,60,375.50 in aggregate and the plaintiff is entitled to recover this amount from the defendants?

(ii) Whether on the due amount, the plaintiff is entitled to receive interest @ Rs.2.50% per mensen as per the market rate?

(iii) Whether the defendants are entitled for randition of account from the plaintiff in pursuance of Schedule-A?

(iv) Whether suit is barred by limitation?

(v) Whether Satya Narain received a sum of Rs.1,93,000/- from the defendants in Cash and the defendants are entitled to adjustment of the same?

(V-A) whether Smt. Manji S. Chitlangia is the sole proprietor of the plaintiff firm?

(V-B) Whether the defendant is a partnership firm and the defendant No.2 is not its sole proprietor? If yes, what is its effect on suit?

(VI) Relief.

Plaintiff examined PW-1 Manju S. Chitlangia, PW-2 Girdhar

Sharda, Pw-3 Gajanand, PW-4 Vasudev, Pw-5 Murari Lal

Khandelwal, PW-6 Staya Narain Chitlangia to corroborate the

averments made in the plaint and exhibited some documents.

Defendants examined DW-1 Satya Narain Parwal, DW-2 Rajendra

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Modi, DW-3 Jugal Kishore Parwal and got exhibited some

documents.

Trial court vide its judgment dt. 5.3.2003 decreed the suit of

the plaintiff for Rs.2,60,375.58 with interest thereon Rs.1.5 per

month w.e.f. 13.3.93 and dismissed the counter claim of the

defendants. Hence, this appeal.

Learned counsel defendants submits that judgment of the

trial court is contrary to law and material available on record

because trial court has failed to appreciate that present suit was

barred by limitation. As per averments made in the plaint, the so

called goods were sold to the defendants on 13.3.1993. As per

Article 14 of the Limitation Act, a suit for recovery of the price of

the goods would be filed within three years from the date of

delivery of goods. The limitation expired on 12.3.1996. Learned

counsel for the defendants also submitted that goods were sold on

credit for a period of 7 days. So, as per Section 15 of the

Limitation Act, suit could be filed upto 20.3.1996 but the said suit

was filed on 13.5.1996. So, the suit was time barred.

Learned counsel for the defendants also submits that learned

trial court had not framed issue No.4 regarding limitation properly

because burden to prove that the suit was within limitation should

be on the plaintiff and not on the defendants. Learned counsel for

the defendants also submits that trial court wrongly considered

the notice for computing limitation which were given for the

outstanding payment. So, issue No.4 regarding limitation be

decided against the defendants.

Learned counsel for the defendants has relied upon the

judgment of the Hon'ble Supreme Court in the case of J.C.

[2023/RJJP/000877] (5 of 8) [CFA-213/2003]

Budhraja vs. Chairman, Orissa Mining Corporation Ltd. and

anr. reported in (2008)2 SCC 444 and Northern Indian

Finance Corporation (P) Ltd. (in liquidation) vs. R.L. Soni

AIR 1973 Punjab and Haryana 35 Punjab and Haryana High

Court (Principal Seat at Chandigarh).

Learned counsel for the plaintiff has opposed the arguments

advanced by learned counsel for the defendants and submitted

that the trial court rightly decided the issue in favour of the

plaintiff because two cheques were given by the defendants and

when the said cheques were dishonoured, notice dt.27.5.1993 was

sent. So, trial court has rightly came to the conclusion that suit is

within time.

Learned counsel for the plaintiff has relied upon the

judgments: (1) Rajpati Prasad Vs. Kaushalya Kuer and Other

reported in AIR 1981 Patna 187; (2) Hindustan Apparel

Industries Vs. Fair Deal Corporation, New Delhi reported in

AIR 2000 Gujarat 261 and (3) Hanuman Mal Vs. Jatan Ma

reported in AIR 2005 Rajasthan 71.

I have considered the arguments advanced by learned

counsel for the defendants as well as counsel for the plaintiff.

Trial court in its judgment clearly mentioned that the plaintiff

had supplied the sugar bags by two bills dt. 13.3.1993 but

defendants had not paid the amount. So, plaintiff firm gave notice

for due amount on 27.5.1993 and filed present suit on 13.5.1996.

So, suit is within limitation. So, in my considered opinion, trial

court has not committed any error in deciding the issue in favour

of the plaintiff.

[2023/RJJP/000877] (6 of 8) [CFA-213/2003]

Learned counsel for the defendants also submitted that trial

court wrongly decided the issues No.1 & 2 in favour of the plaintiff.

Learned counsel for the defendants submits that in plaint no bill

number was mentioned by which sugar was supplied. Learned

counsel for the defendants submits that PW-4 Vasudev who was

Commission Agent in its evidence clearly stated that he was not

present at the time of sending the goods. Learned counsel for the

defendants also submits that trial court wrongly relied on the

account sheet (Ex.22) in which 2 entries of 13.3.1993 have been

made after making entry of 17.3.1993 followed by entry of

31.1.1993. Learned counsel for the defendants submits that no bill

book was presented during evidence and plaintiff failed to produce

any general ledger or Khatuni. Defendants in their written

statement clearly denied for receiving the goods. Learned counsel

for the defendants also submits that plaintiff had filed an

application under Order 41 Rule 27 CPC for taking bill book and

nakal bahi on record. After delay of 22 years, these documents

are created for filling up lacuna. So, these documents cannot be

taken into consideration. Learned counsel for the defendants

submits that accounts exhibited during evidence are not of regular

course of business. So, these documents cannot be taken into

consideration. Learned counsel for the defendants submits that

trial court wrongly came to the conclusion for giving cheques for

outstanding amount. Learned counsel for the defendants also

submits that trial court wrongly awarded the interest of Rs.1.5 per

month. So, findings on these issues are liable to be set aside.

Learned counsel for the defendants has relied upon following

judgments : (1) Iswar Dass Jain (Dead) through Lrs Vs.

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Sohal Lal (Dead) by Lrs reported in (2000) 1 SCC 434; (2)

Uttaradi Mutt Vs. Raghavendra Swamy Mutt reported in

(2018) 10 SCC 484; (3) State Of Gujrat & Anr. Vs.

Mahendra Kumar Parshottambhai Desai (Dead) by Lrs.

Reported in (2006) 9 SCC 772; (4) Union Of India Vs.

Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148 and (5)

Disha Constructions & Others Vs. State Of Goa & Anr.

reported in (2012) 1 SCC 690.

Learned counsel for the plaintiff has opposed the arguments

advanced by learned counsel for the defendants and submitted

that the trial court rightly decided these issues in favour of the

plaintiff because plaintiff by way of evidence clearly proved

account sheet (exhibit-22) and notice given to the defendants for

recovery. Learned counsel for the plaintiff also submits that if

there was no dues then there was no occasion for giving two

cheques by the defendants. So, trial court rightly came to the

conclusion that defendants have not paid the due amount to the

plaintiff. Learned counsel for the plaintiff also submits that plaintiff

has filed an application under Order 41 Rule 27 CPC for taking on

record the bill as well as Khata bahi. These documents are

genuine. So, all these documents also proved that plaintiff had

supplied sugar to the defendants on 13.3.1993 of

Rs.2,60,375.58. So, findings of the trial court regarding two issues

be affirmed.

Learned counsel for the plaintiff has relied upon the following

judgments : (1) Mangi Lal Vs. Mool Chand reported in 1988

(1) RLW 288 and (2) Fateh Lal Vs. Bhagwati Lal reported in

2008(6) WLC 376.

[2023/RJJP/000877] (8 of 8) [CFA-213/2003]

I have considered the arguments advanced by learned

counsel for the defendants as well as learned counsel for the

plaintiff.

While deciding issues No.1 & 2, trial court clearly stated that

plaintiff had supplied the sugar and proved the documents exhibit-

22. Plaintiff also filed an application under Order 41 Rule 27 CPC

in which plaintiff submitted the bill book and nakal bahi. There is

no evidence that these documents are forged. Trial court in its

judgment also mentioned that defendants have given two cheques

of Rs.50,000/-. If no amount was due with the defendants, then

there was no occasion for giving these cheques. Plaintiff had also

given notice (exhibit-23) for recovery of these amounts. So, in my

considered opinion, trial court has not committed any error in

deciding issues no.1 & 2 in favour of the plaintiff and against

defendants.

Therefore, the present appeal being devoid of merit is liable

to be dismissed which stands dismissed accordingly.

All pending applications also stand dismissed.

(NARENDRA SINGH DHADDHA),J

Brijesh 82.

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