HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 551 of 2000 & CO No.203 of 2001. Decided on: 20.10.2011. M/s Chaudhary Bakery ……Appellant/defendant. Versus M/s Garg Roller and Flour Mill Pvt. Ltd. ………Respondent/plaintiff. Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Karan Singh Kanwar, Advocate. For the respondent: Mr.Ramakant Sharma, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant/defendant under Section 100 CPC against the judgment and decree, dated 5.7.2000, passed by the learned Additional District Judge, Solan, H.P., whereby he affirmed the judgment and decree, dated 14.10.1999, passed by the learned Senior Sub Judge, Solan, as also modified the same. 2. Briefly stated, the facts of the case are that the respondent (hereinafter referred to as the plaintiff) filed a suit for recovery of `17,569/- against the ________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - appellant (hereinafter referred to as the defendant). The allegations made by the plaintiff were that the defendant used to purchase items form the firm of the plaintiff on different occasions and running account was being maintained by the plaintiff in that regard. The plaintiff claimed that a sum of `14,000/- was outstanding towards the defendant up to 31.3.1992, which was not paid by the defendant in spite of the reminder and notice and thus the plaintiff had claimed the principal sum of `14,000/- plus interest at the rate of 24% per annum and in all `17569/- and filed the suit for the recovery of the amount. The defendant denied the allegations and took up all preliminary objections which could be available to him regarding cause of action, non-joinder, limitation etc. 3. On the pleadings of the parties, six issues were framed by the learned trial Court. It is not necessary to reproduce all the issues. The main issue is Issue No.1, which reads as under: “Whether the plaintiff is entitled to the amount as claimed? OPP” 4. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiff was entitled to the principal sum to the tune of ` 14,400/- plus ` 3100/- as interest at the rate of 24% upto 31.3.1992 and decreed the suit alongwith interest. 5. On appeal, the learned Appellate Court vide its impugned judgment upheld the findings of the learned - 3 - trial Court in regard to decreeing the suit of the plaintiff for principal amount, but modified the judgment to the extent that the rate of interest was reduced from 24% to 12% per annum, till realization. 6. An appeal was preferred by the defendant against the judgment and decree of the court of the learned Additional District Judge, Solan. Cross Objections were also filed by the plaintiff against the modification of the interest from 24% to 12% by the learned First Appellate Court. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The appeal was admitted on the following substantial questions of law: 1. Whether part payments relied by plaintiff for bringing the suit within limitation are in accordance with Section 19 of the Limitation Act, 1963, when there is no acknowledgement in writing by defendant to such part payments and thus the suit is within limitation? 2. Whether plaintiff which is not carrying on the business of Banking is covered by the Banker’s Books Evidence Act, 1891 for purpose of its books of account and whether learned Additional District Judge has erred in relying Ext.P2 to Ext.P4 books of account of plaintiff which are inadmissible in evidence for want of - 4 - proof and otherwise lack evidentiary value for want of proof of contents thereof? 3. Whether plaintiff is entitled to 24% interest per annum included in the suit amount of ` 17,568/- and thereafter whether plaintiff is entitled to 12% interest per annum on the suit amount without there being any agreement to pay interest and in absence of proof of mercantile practice of payment of 12% interest per annum? 9. On the first substantial question of law, the submissions made by the learned counsel for the appellant were that the past transactions in between the parties will show that the defendant had been making payments of the amounts of ` 1,000/- or above, but for the last three transactions, it was shown that the amount was received as ` 300/-, `200/- and `500/-, which clearly suggests that these entries were made so as to bring the suit within the period of limitation. Under Issue No.5, the learned trial Court had only observed that the suit was filed after notice and it shall be deemed to have been filed within the period of limitation though he did not make any particular reference to the part payments made by the defendant, on which date and how the suit was held to be within time. The learned Additional District Jude in para 16-A of the judgment had rejected the contentions of the appellant that the entry of payment of - 5 - ` 200, ` 300/- and ` 500/- written in the ledger was self prepared in order to bring the suit within limitation. The submissions made by the learned counsel for the appellant were that the suit for recovery of the amount was filed on 7.5.1994, whereas the last purchase was shown as of 5.8.1990. In the books of account, the last transaction has been shown of ` 500/- for 5.8.1990. A perusal of Ext.P-2, copy of the ledger shows that the last deposit is of ` 200/-, which is of 8.1.1994 and previous to this, there are two entries of 9.9.1994 for `200/-, and that of 23.9.1994 for `300/-. This clearly shows that prior to filing of the suit on 7.5.1994, these payments had been made by the defendant which have been duly entered in the ledgers maintained by the plaintiff. These books of account were being maintained regularly and under Section 34 of the Evidence Act, these copies are admissible in evidence and once they had been admitted in evidence without any objection, no such plea can be taken that these are incorrect. Moreover, once prior to the filing of the suit, these amounts were received on behalf of the defendant and had been duly acknowledged in books of account, it gives a further cause of action to the plaintiff to file the suit within a period of 3 years from the date of last payment. No submissions were made by the learned counsel for the appellant on the substantial question of law on which the appeal was admitted that as to whether these entries can be relied upon since there was no acknowledgement in - 6 - writing by the defendant on such part payments. Once no submissions were made in that regard and the learned counsel for the appellant has not been able to show that these entries cannot be relied upon, it leads to the inference that the findings of both the courts below in regard to limitation are liable to be affirmed. 10. The learned Additional District Judge had also referred to the provisions of Section 34 of the Evidence Act and had clearly observed that the entries in ledger Exts.P-2 to P-4 have been prepared in ordinary course of business and are admissible in evidence and in spite of notice, the defendant had not repaid the amount or replied to the notice and had accordingly concluded that these entries have been duly proved and can be relied upon and this finding of fact does not involve any substantial question of law to make out a case for reappraisal of the evidence. These entries were proved by the employee of the plaintiff and as such were admitted in evidence without any objection and can be legally read in evidence. This finding of fact by the learned trial Court holding that a sum of `14,400/- is due to the plaintiff from the defendant is liable to be affirmed. 11. Coming to the question as to whether the interest was rightly reduced by the learned appellate Court, the learned trial Court had granted interest at the rate of 24%, though there was no specific evidence on record to show that this was the rate of interest - 7 - prevalent in the market at that time and, therefore, the learned Appellate court had rightly reduced it to 12% per annum, which was the normal rate in regard to commercial transactions and since the transaction was commercial, this rate of interest was rightly awarded by the learned Appellate court. 12. In view of the above discussion, the findings recorded by the learned Appellate Court do not call for an interference by this Court. Consequently, the appeal is liable to be dismissed, which is dismissed alongwith costs. The Cross Objections also stand dismissed. 13. The appeal as also the Cross Objections stand disposed of accordingly. October 20, 2011 (V.K. Ahuja), (tilak) Judge.