1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 139/2007 (Radheshyam Chiragilal Agrawal VERSUS Jugalkishor Parashramji Atal) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri A.C. Dharmadhikari, counsel for the appellant. Shri Sarda, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 26, 2008. Heard the learned counsel for the parties. The appellant challenges the judgment passed by the first appellate Court by which the judgment passed by the trial Court was reversed and the suit of the respondent/plaintiff for recovery of amount was decreed. The appellant is the original defendant. A suit was filed by the plaintiff for recovery of amount of Rs.31,951/-. It was the case of the plaintiff that the defendant had offered to purchase six trucks load of cotton seed cakes @ Rs.418/- per Quintal. The defendant received the goods but, failed to make the entire payment. On 21.07.1992, the defendant had paid an amount of Rs.70,000/- by draft and again an amount of Rs.50,000/- was paid by draft. The suit was filed 2 for recovery of the balance amount. It was pleaded by the plaintiff that the contract of sale and purchase had taken place through one mediator Arihant Sales Agency, Akola and the plaintiff also spoke about the same with the defendant on the telephone. The defendant resisted the claim of the plaintiff but, admitted that he had placed the order of cotton seed cakes with the agent of Arihant Sales Agency, Akola. He denied that there was a telephonic talk with the plaintiff. He pleaded that he had never placed an order to supply the cotton seed cakes directly to the plaintiff. In effect, the case of the defendant was that he had not entered into a direct contract with the plaintiff to purchase the cotton seed cakes. It was pleaded by the defendant that after the receipt of the notice, the defendant contacted Arihant Sales Agency, Akola and sought clarification from the agency as to whether the order of purchase was placed with the plaintiff but, the defendant learnt that the agency had not placed any order with the plaintiff. The defendant further pleaded that the suit was bad for non joinder of the mediator, Arihant Sales Agency, Akola, as a necessary party. The defendant sought for the dismissal of the suit. 3 The trial Court framed the issues and after considering the evidence tendered by the parties on record, held that the plaintiff was unsuccessful in proving that he had sold cotton seed cakes to the defendant on 11.07.1992 and that the defendant had paid an amount of Rs.1,20,000/- and the remaining amount of Rs.28,891/- was due. The trial Court held that Arihant Sales Agency, Akola was not a necessary party to the suit. The trial Court dismissed the suit of the plaintiff. The appeal filed by the plaintiff against the judgment of the trial Court was allowed and the suit of the plaintiff was decreed. The first appellate Court reversed the findings recorded by the trial Court to hold that the plaintiff was successful in proving that the plaintiff contracted to sell cotton seed cakes to the defendant through Arihant Sales Agency, Akola. The appellate Court further held that an amount of Rs.28,891/- was due from the defendant to the plaintiff. The finding that the Arihant Sales Agency, Akola was not a necessary party was confirmed by the first appellate Court. The first appellate Court, therefore, granted a decree for an amount of Rs.30,851/- with interest @ 6% per annum from the date of the suit till the realisation. The 4 judgment passed by the first appellate Court is challenged in the instant second appeal. Shri A.C. Dharmadhikari, the learned counsel for the appellant, submitted that the first appellate Court committed a serious error in relying on the books of accounts produced by the plaintiff before the trial Court, as in view of the provisions of Section 34 of the Indian Evidence Act, the entries in the books of accounts are not by themselves, enough to saddle the liability on the defendant. According to the counsel for the appellant, there was no other evidence on record to prove that the defendant had purchased the cotton seed cakes from the plaintiff. According to the counsel for the appellant, the case of the plaintiff that there was contract between the plaintiff and the defendant is not supported by any evidence. Shri Sarda, the learned counsel for the respondent, supported the judgment passed by the first appellate Court and submitted that the findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material evidence on record, and hence, they cannot be interfered with in this second appeal. He sought for the dismissal of the second appeal. 5 I have perused both the judgments in detail. According to me, the findings recorded by the trial Court are perverse and are rightly set aside by the first appellate Court. The trial Court wrongly placed the burden on the plaintiff to examine a competent person from Arihant Sales Agency, Akola when the defendant had not disputed that he had placed the order with Arihant Sales Agency, Akola. In fact, it was necessary for the defendant to examine a competent person from Arihant Sales Agency, Akola because the defendant had categorically pleaded in his written statement that after the plaintiff issued a notice to the defendant, the defendant enquired with Arihant Sales Agency, Akola whether any order was booked by the agency with the plaintiff but, the agency had replied it in the negative. To prove this particular fact, it was necessary for the defendant to have examined a competent person from Arihant Sales Agency, Akola because it was the case of the defendant that the order was placed with Arihant Sales Agency, Akola and Arihant Sales Agency, Akola had informed the defendant that no order was placed with the plaintiff. The trial Court further wrongly discarded the bill Exh.64 though it was 6 issued in the name of R.K. Traders, the firm of the defendant on the ground that the plaintiff had not stated in the bill that it was R.K. Traders from Indore. Though the plaintiff had encashed an amount of Rs.1,20,000/- which was sent by the defendant by Demand Draft, the trial Court, by a curious reasoning, discarded the case of the plaintiff that the Demand Drafts amounting to Rs.1,20,000/- were received by Post, solely on the ground that the plaintiff had not placed the Postal Envelopes on record, in which those drafts were sent to the plaintiff by the defendant. The other material documents which were placed by the plaintiff on record, including the entries of the account book, were also discarded by the trial Court for erroneous reason. The first appellate Court reappreciated the material evidence on record in a judicious manner and reversed the findings of the trial Court and granted a decree in favour of the plaintiff. The submission made on behalf of the appellant that the extract of accounts would not be enough to saddle the liability on a party is, no doubt, true but, in this case, there is ample evidence on record to show that there was a contract between the plaintiff and the defendant and apart from the extract of accounts, the oral evidence of the plaintiff, the bill 7 at Exh.64 and the encashment of two Demand Drafts amounting to Rs.1,20,000/- and the other evidence on record, clearly showed that the first appellate Court did not fasten the liability on the defendant merely on the basis of extract of account books. Since the approach of the trial Court was extremely unreasonable in appreciating the evidence, the first appellate Court rightly reversed the findings recorded by the trial Court. The findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE