1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL NO. 13 OF 1995 1. Nijamuddin Abdul Aziz Khan ] Age Adult, Occupation-Business. ] ] 2. Hasimuddin Abdul Aziz Khan ] .. Appellants Age Adult, Occupation-Business. ] Both Residents of 51-B, ] Soutar Road, Near Arab Masjid, ] Madanpura, Bombay. ] Vurses Hemant Agencies Firm ] Through its proprietor - ] Shri Nandlal Baqnsilal Karwa, ] .. Respondent Adult, Occupation – Business, ] Resident of Panvel, District – Raigad. ] Mr.Rajiv Patil with Mr.Sachin Punde for the Appellants. Mr.N.V.Walawalkar with Mr.Devidas H.Kelskar for the Respondent. CORAM : S.A. BOBDE & S.J. KATHAWALLA,JJ. DATED : DECEMBER 5, 2009. ORAL JUDGMENT (Per S.A.Bobde, J.) :- This is an Appeal against a Judgment and Decree of the Civil Judge Senior Division, Pune, decreeing the Respondents/Plaintiffs suit in the sum of Rs.12,96,320/- plus 2 notice charges of Rs.250/- and interest @ 18 % p.a. on each bill till the institution of the suit and further interest on Rs. 12,96,320/- @ 9 % p.a. from the date of suit till the realization of the entire amount. 2. In brief the Respondents/Plaintiffs suit for unpaid price of goods delivered to the Appellants. The Appellants is a proprietary concern having a Poultry Farm at Shirdhon and at Sangurli known as Aziz Broiler Farm. The proprietor was one deceased Abdul Aziz used to purchase poultry feed such as maize, wheat, jawar and so on from the Respondent, on credit. The Respondent used to acquire these goods from another supplier and used to supply to the parties like the plaintiffs. 3. The Respondents/Plaintiffs suit is for recovery of the unpaid price for supply of poultry feed worth Rs.13,94,230/- to Aziz Broiler Farm between 28th September, 1991 to 18th February, 1992. The amount having remained unpaid inspite of notice, the present suit was instituted. The Plaintiff examined himself and other witnesses to substantiate the suit claim. Apart from the plaintiff, the other witnesses examined on behalf of the Plaintiffs were Suresh Asthana who served as Manager with the Appellants/Defendant’s Broiler Farm during the period 3 from 1980 to 1993, including the period of the suit transactions. Another witness Anil Nagwekar, an employee of the Abhyuday Co-Operative Bank, Panvel Branch was examined to show that Aziz Broiler Farm was authorized to operate the current account of the farm lying with the Abhyuday Co-Op. Bank, Panvel. The third witness was Mishilal Bhagdia who deposed to the effect that there is prevailing practice in the market to charge interest when the credit facility is given to the customer. The Respondent also produced documentary evidence such as notice, reply to the said notice, verified extracts of accounts and copies of 37 bills and corresponding challans. The Respondent also produced various postal acknowledgments, letter dated 28th February, 1991 authorization of the Appellant authorizing his Manager Suresh Kumar to operate the current account. 4. On going through the entire evidence, the Trial Court found that the bills raised by the Respondent corresponded to the 37 challans which are marked at Exh.26. Further relying on the evidence of Suresh Asthane who was employed by the Appellants, the Trial Court came to the conclusion that poultry feed was supplied and delivered to the Plaintiff on credit. The Trial Court also referred to the reply of 4 the deceased proprietor of the Appellants that he will pay arrears of Rs. 1,00,000/- per quarter by bank draft. Further the Trial Court considered the Respondent’s/Plaintiff’s case was corroborated and thereby proved by the documentary evidence and held that the deceased Abdul Aziz was liable in the sum of Rs.12,96,320/- to the Respondent till 18th February, 1992. 5. Mr.Patil, the learned Advocate for the Appellants submitted that an inference that the goods were supplied on credit could not have been drawn by the learned Trial Court as the evidence in the matter was insufficient to support the said conclusion. According to Mr.Patil, there is no evidence that the deceased proprietor has himself signed on the delivery challans and other related documents. We find that the absence of the signature on the documents is not sufficient to cast a doubt on the Plaintiff’s case which is supported by the delivery challans and the bills. As observed earlier, the Appellants own employee has entered the witness box and stated on oath that during the relevant period goods were purchased on credit from the Respondents/Plaintiffs. Moreover, the deceased Proprietor Abdul Aziz had himself, in reply to the notice Exh.29 stated that he has would to pay arrears at the rate of 1,00,000/- per 5 quarter by bank draft. We have thus no hesitation in accepting the conclusions drawn by the Trial Court. 6. Mr.Patil further contended that the Appellants did not have sufficient opportunity to defend the case since after the demise of Abdul Aziz, the legal representatives were not properly represented in court. There is no merit in this submission in the circumstances of the case since the Appellants Advocate undertook the task of cross examining the Respondents witness and eventually filed a pursis that he did not have sufficient instructions from the Appellants who are not responding to their communication. In these circumstances, we are of the view that the Appellant cannot be allowed to take advantage of their own lapses in instructing their Advocate, if any. In any case, we find on the record that the Respondents suit has been rightly decreed on the basis of cogent and reliable evidence by the Trial Court. There is thus, no merit in the Appeal. The Appeal is therefore dismissed. 6 7. No order as to costs. (S.A. BOBDE, J.) (S.J. KATHAWALLA, J.)