FA/1215/1980 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1215 of 1980 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= RAMKRUSHNA ROLLER FLOUR MILLS - Appellant(s) Versus BALDEVBHAI DOSABHAI'S FIRM - Defendant(s) ======================================================= Appearance : MR BG PATEL for Appellant(s) : 1 - 5. NOTICE SERVED for Defendant(s) : 1 - 2. ======================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 24/04/2008 ORAL JUDGMENT 1.0 The present appeal under Section 96 of the Code of Civil Procedure has been preferred by the appellant-original defendant nos.1 to 5 against the FA/1215/1980 2/13 JUDGMENT Judgment dated 24.07.1979 passed by the Hon'ble City Civil Court, Ahmedabad, Court No.12 in Summary Suit No.2708/1973. 2.0 The facts leading to the present appeal are as under :- 2.1 The plaintiff is a registered partnership firm dealing in wholesale business of grain and working as a commission agent also. The original defendant nos.2, 3, and 5 are the partners of the firm of the original defendant no.2, who is doing business in the name and style of original defendant no.1 and the original defendant nos.2 to 5 are the owners of the defendant no.1 business, who are dealing in grain and a flour of grain. The original defendants opened their account with the plaintiff and used to sell their goods on commission basis through the plaintiff. The price of the goods sent by the original defendants for sale on commission went paid by Hundis etc., by the plaintiff. Accordingly, an amount of Rs.1020179-89 ps. were found due from the original defendants in the books of accounts of the plaintiff for the period of 12th April, 1972 to 5th November, 1972. The value of the goods debited in the account of the defendants, which came to be FA/1215/1980 3/13 JUDGMENT Rs.1012336-69 ps. and at the foot of the account of the S.Y. 2028 Rs.16843-12 ps. were found due from the defendants. The said amount was carried forward in the year 2029 in the account of the original defendants. The plaintiff has paid Rs.41342-45 ps. on behalf of the original defendants by way of Hundis etc. during the period 13th November, 1972 to 17th January, 1973 and the said amount is debited in their account. The original defendants have borrowed Rs.1,35,000/- (on 2nd December, 1972) by cheques and the said amount is also debited in the account of the original defendants and in all, an amount of Rs.1,93,175-57 ps. are found due from the defendants upto 17th January, 1973 in the year 2029. Against the said amount after giving credit of Rs.86,938/- an amount of Rs.1,06,227.57 ps. are found due from the defendants. Despite repeated demands, the same is not paid. According to the agreement, defendants are bound to pay interest at the rate of 12%. The defendants were served with a notice of demand on 26th July, 1973. Even then, the amount is not paid. The defendants have closed their business. Therefore, the suit came to be filed for the recovery of the said amount with FA/1215/1980 4/13 JUDGMENT interest as claimed above. 2.2 Against the abovesaid suit, the defendant no.1 has filed the written statement at Exh.53 and the defendant nos.2 to 5 have filed purshis adopting the written statement of the defendant no.1. 2.3 After having heard both the sides, the Learned Trial Court has delivered the aforesaid order giving rise to file present First Appeal. 3.0 Heard learned counsel appearing for the respective parties. 4.0 Learned counsel for the appellant, Mr.B.G. Patel has submitted that the judgment and decree passed by the Learned Trial Court is against the law and evidence on record. 4.1 It is also submitted that the Learned Trial Court ought to have held that the plaintiffs were not entitled to commission as claimed by them in the plaint as the plaintiffs were working under specific arrangement between the parties as contended by the defendants in their written statement. 4.2 It is also submitted that the Learned Trial Court ought to have taken into consideration the statement produced at Exhs.76 to 103, which do not FA/1215/1980 5/13 JUDGMENT establish that the plaintiffs were entitled to commission as claimed by them. 4.3 Raising the abovesaid contention, Mr.Patel has submitted that the judgment and decree passed by the Learned Trial Court is required to be quashed and set aside and the present appeal deserves to be allowed. 5.0 I have gone through the impugned delivered by the Learned Trial Court and the evidence on record. 5.1 The Learned Trial Court has discussed in para no.14 that it is the contention of the defendants' advocate Mr.Patel that the plaintiff's claim consists of two items namely, a amount of commission and an amount of loan advanced to the defendants. Now, when the question is put by the defendants' advocate to the plaintiff when he was in the box as to why the amount of Rs.1,35,000 was advanced to the defendants by the plaintiff, the plaintiff has replied that the defendants promised that they would supply goods of thousand begs of the value of Rs.135/- per quintal. The said goods were not supplied and the amount remained with the defendants which they are bound to pay back. In view of this reply in the cross-examination by the FA/1215/1980 6/13 JUDGMENT plaintiff, Mr.Patel has contended that if this was the fact, when the same is not stated in the plaint? and secondly that Ankadas are not prepared for the same and thirdly that though an Ankadas was prepared, the same is cancelled by the plaintiff. It was, therefore, contended by Mr.Patel that the amount of Rs.1,35,000/- were not received by the defendants, but a signature was obtained on the reverse of the cheque by the plaintiff and were paid by them to some third party. Therefore, the amount of the cheque was not received by the defendants. It is true that there is no averment in the plaint that the cheque of Rs.1,35,000/- were paid as the defendants promised to supply the goods but it is treated as a loan in the plaint. But after S.Y. 2028 there were some new transactions and the amounts received by the plaintiff for the sale of the goods of the defendants which was lying with them at the end of S.Y. 2028 the credit is given of the sale price against the amount advanced and the suit claim is arrived at. It is contended by Mr.Patel that in view of this fact, if the loan of Rs.1,35,000/- was advanced, then it must have been incorporated in the Ankadas. But non-mention FA/1215/1980 7/13 JUDGMENT of the same is only with a view to keep the defendants in dark about what happened to those cheques. The plaintiff in cross-examination has specifically stated that Anakadas are given only with respect to the goods received from the defendants and sold on their behalf and with respect to the cash amounts. It was challenged by Mr.Patel that there was no cash dealing with the defendants by the plaintiff and relied on an entry of Rs.30,000/- paid to the defendant in the beginning, and the same was taken by the defendant for the purchase of goods. 5.2 The Learned Trial Court has discussed in para no.15 that it is contended by Mr.Patel that when the consideration is denied by the defendants, it is for the plaintiff to establish the consideration of the cheques. Now when the defendants received these two cheques for which a receipt is passed, Exh.110, it is an admitted that they have received two cheques. There is no dispute that the cheques were crossed cheques. Now, if the defendants admitted to have received the cheques, they ought to have in formed the drawer that he has some doubt about the disbursement of those cheques and the FA/1215/1980 8/13 JUDGMENT payment of the cheques be stopped. But instead of that, they are stating for the first time in this Court that they have not received the consideration of those cheques. The defendants have produced a statement of accounts of the plaintiff from the Bank of India along with a cheque of Rs.75,000/- which are at Exhs.171 and 172. Te cheques alleged to have been given by the plaintiff to the defendants are encashed and paid from the account of the plaintiff. It seems from these cheques, which are on record that the amount is paid to one Raju Trading Co. Now, it is no where contended by the defendants that they had no dues of Raju Trading Co. nor have agreed that the amount should be paid to Raju Trading Co. and it was the plaintiff who directly made the payments which was not due from the defendants to Raju Trading Co. No attempt has been made to examine Raju Trading Co. On the contrary, in the written statement, he has stated that they had dues of Raju Trading Co. by way of Hawali. So, it is proved by receipt that the cheques were received by the defendants from the plaintiff and it is proved by Exh.171 that the cheques are encashed in the account of the drawer FA/1215/1980 9/13 JUDGMENT and then in that case, the burden is on the defendants to establish that they have not received the consideration as prima-facie the presumption has arisen in favour of the plaintiff which is not rebutted by the defendants. 5.3 The Learned Trial Court has discussed in para no.16 that it is contended by Mr.Patel that looking and verifying the Ankadas in Exh.76 to 103, there is mistake of 11 bags of grain. It is alleged that 2nd Vaisakh Sud Eleven of S.Y.2028, the plaintiffs have received 446 bas of grain and 436 bags of grain are sold on that very day. I am unable to accept that there is mistake of 10 bags of grain. All these entries of Exh.76 & 103 are posted by the defendants in their books of accounts. I accept the finding of Learned Trial Court that the accounts have been settled between the parties. So, the circumstances with respect to the debit of certain dues also suggest that the account was settled. Now, if there was a mistake, it ought to have cropped in the mind of the defendants from the very beginning, and then it was open for the defendants to come forward with a way that on 2nd Vaishakh Sud Eleven of S.Y. 2028 they have purchased 446 bags FA/1215/1980 10/13 JUDGMENT and not 436 bags. They could have produced the evidence for the same but the same is not produced. In that case, they should thank themselves. Therefore, I am satisfied that there is no mistake but apparently it seems in Exh.92 that instead of 150 bags, 150 bags are shown. Therefore, there is no mistake of 10 bags as alleged by the defendants. Now, when the receipt of having received the cheque is admitted and there is presumption in favour of the plaintiff as to the consideration and when the defendants have failed to rebut the same, there is a proof that the defendants have withdrawn Rs.1,35,000/- from the plaintiff. Some variance in the deposition are bound to vary in view of the fact that the transactions are of 1972 and the witness is deposing in the year 1979, if the said variation is important and have bearing on the case against the defendants an insolvency petition is filed wherein they were supposed to produce a book of account of S.Y. 2028 but they have not produced the same. The case of the defendants as to the book of account of S.Y.2029 is that they are not found. The story of the defendants as to the non availability of those books of accounts of S.Y. FA/1215/1980 11/13 JUDGMENT 2029 is not believable in their evidence. As the defendants' witness has deposed, “It is true that when we used to run mills there was a turnover of about 10 to 12 lakhs. We had dealing during that time with Bankers and businessman. I maintain regular book of accounts and debit notes. I have not in my possession the books of accounts of S.Y. 2029. It is true that the same were written. There was only a day book and ledger in that year. Inventory was carried out by the order of the Insolvency Court. I do not know whether the books of accounts of S.Y. 2029 are found therein or not. Normally, the books of accounts were lying in the mills. The books of accounts of S.Y 2029 were written by accountant Mansukhram. Books of accounts of S.Y. 2028 were kept with me and that of with Mehtaji despite that year being over when the mill premises were sealed, it was in possession of police, part of the mill premises is mortgaged with possession to Babubhai Manilal and one Mr.Chokshi Office premises of the mill are sold to the above named persons. The road portion is sold out to one Shardaben, wife of Babubhai. It is not true that Babubhai and Chokshi and myself were represented by FA/1215/1980 12/13 JUDGMENT the same lawyer in Criminal Proceedings. I do not know whether the police took inventory of the things lying in the premises before sealing the same as I was not present. It is not true that I have taken away my articles when I executed a document in favour of Babubhai and Chokshi, I have not inquired till today and to what happened to my books of accounts. It is not true that I am intentionally not producing the books of accounts of S.Y. 2029 as they are against me. I have in my possession only two books of S.Y. 2028. I do not know what happened to credit and debit notes of S.Y.2028.” From this evidence, it becomes clear that when according to the defendants books of account were lying in the mills premises, the said premises were sealed by the police and then an inventory was taken by the order of the insolvency. Court Books of S.Y. 2029 are neither found in the inventory note thereafter from the premises and the defendants have not agreed to enquire about the same till today. Therefore, the Trial Court has not believed that the books of account of the year S.Y. 2029 are not found and the defendants are not in know of the whereabouts of the same. Therefore, the FA/1215/1980 13/13 JUDGMENT Trial Court has held that they are in possession of the same, they are not producing the same as all these entries as claimed by the plaintiff would be there in the books of accounts. The Trial Court has, therefore, hold that the defendants have withdrawn Rs.1,35,000/- from the plaintiff. 5.4 In view of the above, the Learned Trial Court, after appreciating the oral as well as documentary evidence, has dismissed the suit on merits. I am in complete agreement with the reasonings and findings of the Learned Trial Court. The learned counsel for the appellant has failed to establish any error committed by the trial Court. 6.0 In the result, the appeal fails. It is hereby dismissed with no order as to cost. Sd/- (K.S.JHAVERI, J.) /patil