Civil Revision No.4071 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.4071 of 2011 Date of Decision: September 13, 2011 M/s Sita Ram and another .......Petitioners Versus Ms/ B.S.Mill Store & another .......Respondents CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present: Mr.Sandeep K.Sharma, Advocate for the petitioners. <><><> AJAY KUMAR MITTAL, J (Oral) This revision petition has been filed on behalf of the unsuccessful plaintiff, M/s. Sita Ram and sons, Jalandhar whose suit for recovery of Rs 14197/-, i.e Rs 12907/- as principal and Rs 1290/- as interest, had been decreed by the trial Court, vide judgment and decree dated 26.09.2007 but on appeal at the instance of the defendant the same was dismissed by the lower Appellate Court, by judgment and decree dated 4.8.2010. 2. Briefly noticed, the facts of the case are that the plaintiff supplied certain hardware goods worth Rs 12907/- which were delivered to the defendant, vide bill no. 690 dated 26.2.2004. The defendant, however, as per the case of the plaintiff, did not pay the said amount to the plaintiff inspite of demand made on numerous occasions. The failure of the Civil Revision No.4071 of 2011 2 defendant to make payment led to the filing of the suit for the recovery of the aforesaid amount along with interest at the rate of 12 % per annum from 26.2.2004 to 20.1.2005 and future interest @ 12% per annum from the date of the institution of the suit till realisation. The defendant contested the suit and the rival pleadings of the parties gave rise to the following issues:- 1. Whether the plaintiff is entitled for recovery of principal amount of Rs 12,907/- as being prayed for? OPP 2. Whether the plaintiff is entitled to claim interest on the principal amount, if so, at what rate? OPP 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Whether civil court at Jalandhar has got no jurisdiction to try the present suit? OPD 5. Relief. 3. The trial court after appreciating oral as well as documentary evidence produced by both the parties and especially, on the basis of bill no. 690 dated 26.02.2004, Ex.P1 and consignment no. 7186, Ex.P2 of the same date vide which the goods were despatched, decreed the suit. However, on appeal, the lower Appellate Court reversed the findings of the trial Court and dismissed the suit filed by the petitioner-concern. Hence the revision petition. 4. Learned counsel for the petitioners submitted that the defendant in his cross-examination had admitted that there were business dealings between the plaintiff-firm and the defendant and, therefore, presumption arose that the goods were purchased by the defendant and it was on the defendant to establish that the payment had been made to the plaintiff in respect of the goods. Civil Revision No.4071 of 2011 3 5. I have heard the learned counsel for the petitioners and have gone through the record. 6. I find no merit in the submissions of the learned counsel for the plaintiff-petitioners. 7. Learned counsel for the petitioners was not able to show that bill, Exhibit P1, and the consignment receipt, Exihibit P2, bore the signatures of the defendant or any of its representatives acknowledging the receipt of the goods supplied by the plaintiff. Once the defendant had categorically denied having received the goods from the plaintiff, the onus was on the plaintiff to prove that the goods had, in fact, been supplied to the defendant. The finding recorded by the Appellate Court depicts that the plaintiff had failed to discharge the burden of proof in that behalf. Learned Appellate Court while considering this aspect has held as under:- “14. It has been submitted by the learned counsel for the respondent that there is clear cut admission of the defendant in cross-examination of PW1 that he had been dealing with the plaintiff firm and purchasing goods and therefore, it has to be presumed that such goods were purchased by the defendant and onus was upon the defendant to prove that payment of such goods was made. This submission of counsel for the respondent does not hold any water. Onus was very heavy upon the plaintiff to prove purchase and delivery of goods by way authentic evidence. Mere admission of the defendant that he had been purchasing goods from the defendant cannot be made ground to burden him with the amount in question. The goods in question were shown to have been purchased and delivered Civil Revision No.4071 of 2011 4 to the defendant in February 2004 where as such admission of the defendant of having purchased certain goods from the defendant is pertaining to the year 2003. It was categorically deposed by the defendant that he has been purchasing the goods from the defendant that he has been purchasing the goods from the defendant that he has been purchasing the goods from the defendant prior to Diwali festival of 2003. Even otherwise such admission is ambiguous and is not specific qua the goods in question. 15. It is admitted case of the plaintiff that he is running the business of sale of such goods and therefore, he must be maintaining account books. Those account books were the best available piece of evidence with the plaintiff to prove such transaction with the defendant. However no such account book was produced. Even the original biil book from which bill Ex.P1 was shown to have been issued was also not produced. 16. According to counsel for the plaintiff, the defendant did not challenge the authenticity and genuineness of such bill in the cross-examination of the plaintiff and therefore, such documents are required to be read in evidence. Although no suggestion was put to the witness of the plaintiff regarding the genuineness and authenticity of such documents but such lapse on the part of the defendant does not absolve the plaintiff to prove the same according to the law of evidence. While stepping into the witness box the defendant had denied the purchase of goods vide such bill and also having received Civil Revision No.4071 of 2011 5 delivery on the basis of delivery note Exhibit P2 and that was the only minimum requirement for him to evade the liability on the basis of such weak evidence of the plaintiff.” 8. No perversity or error of law could be pointed out by the learned counsel for the petitioners to persuade this Court to interfere with the impugned judgment and decree passed by the Appellate Court. Accordingly the revision petition is dismissed. 9. Since the revision petition has been dismissed on merits, no specific orders have been passed on the application for condonation of delay in filing and re-filing of this revision petition. ( AJAY KUMAR MITTAL ) September 13, 2011 JUDGE SRM Note: Whether to be referred to reporter? Yes/No