FA/1614/1981 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1614 of 1981 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 ? ======================================================= PLAZA INDUSTRIAL CORPORATION - Appellant(s) Versus TAXYARN CORPORATION - Defendant(s) ======================================================= Appearance : MR GIRISH D BHATT for Appellant(s) : 1, MR PT JASANI for Defendant(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 24/04/2008 ORAL JUDGMENT 1. By way of this appeal, the original plaintiff has challenged the judgment and order dated 20th November, 1980 passed by the learned FA/1614/1981 2/8 JUDGMENT Judge of Ahmedabad City Civil Court No.16 in Civil Suit No.1008 of 1977 whereby the suit filed by the appellant - original plaintiff, came to be dismissed. 2. The brief facts of the case are that the the appellant- original plaintiff filed the suit for recovery of the amount of Rs.3,303.77 along with the interest @ 9% per annum totaling to Rs.4,114.77 as the appellant- original plaintiff had sold varoius spare parts of the machineries of the factors run by the defendants. 3. After having heard both the sides, the Learned Trial Court has delivered the aforesaid order giving rise to file present First Appeal. 4. Heard the learned counsel for the appellant at length and also considered the documents forming part of the appeal. 5. The Learned Judge has gone through the evidence of Shri Mohanji, Exh.76, who is servant of the defendant. This witness admitted during his cross-examination that FA/1614/1981 3/8 JUDGMENT Exh.48 was never signed by him. He has also admitted that he never takes the delivery of the goods and he also did not take the delivery of the suit goods and the delivery of the goods would be taken by the Clerk of the factory. The Learned Judge has also gone through the evidence of Kalpesh Dhankumar, Exh.45 and Shri Sidhdharthbhai, Exh.68. 6. Over and above, I am of the view that the trial court has in detail discussed the matter while decreeing the suit in paragraphs 9 to 11. In paragraphs 9 to 11 the trial court held as under: 9. I will now turn to the plaintiff's letter Ex.77 dated 15-5-1974, addressed to the defendant's partner Shri Sidhdharthbhai. By this letter, addressed to Shri Sidhdharthbhai, the plaintiff stated that if give therein the details of the bills by which the plaintiff supplied the goods to the defedant in past, as desired by Shri Sidhdharthbhai Ex.58, Before I refer to the details given in this letter Ex.77, I may point out that this letter Ex.77 dated 16-5-1974 does not refer to the consolidated bill dated 29-3-1974. It is also not stated in this letter Ex.77, dated 16-5-1974 that the plaintiff had issued the consolidated bill Ex.52 dated 29-3-1974, as required by Shri Sidhdharthbhai ex.68. It, therefore, clearly goes to show that the consolidated bill Ex.52 dated 29.3.1974 must not have FA/1614/1981 4/8 JUDGMENT been prepared by the plaintiff at all till 16-5-1974, the date of this letter Ex.77, and that the said consolidated bill Ex.52 must have been prepared by the plaintiff subsequently. With a view to have a comparative idea of the details of the amount of different consignments, claimed to have been supplied by the plaintiff, I will give hereunder in a tabular from the amount and date of different consignments as per letter Exh.77 and as per consolidated bill Exh.52. Details as per Ex.77 Details as per Ex.52 (Consolidated Bill) 1. Bill No.2020/2047 23-3-Rs.241-02 ps. 1. Dt.15-2-1974, 234/- 2. Bill N.2035/47, 29.3. Rs.771-26 ps. 2. Dt.9-3-1974, Rs.748-80 ps. 3. Bill N.2038/47, 29.3. Rs.771-26 ps. 3. Dt.1-3-1974, Rs.680/- Rs.66-60 ps. 4. Bill N.2047/47, 24.3. Rs.887-60 ps. 3. Dt.29-3-1974, Rs.415/- Rs.255/- Rs.192/- 5. Bill No.2016/- 11.2, Rs.100-94 ps. ------------ Rs.2591-05 ps. Rs. 77-73 ------------ Total Rs. Rs.2688-78 ps. On a mere perusal of the details given above, it appears that the date of the bills and the amount of the bills shown in Exh.77 and consolidated bill Ex.52 dated 29-3-1974 are totally different. I may point out at this stage that all the details given in letter Ex.77 cannot be said to be totally base-less. In this connection, it is interesting to note that in this letter Exh.77, we find a reference to bill No.2016 dated 11-2-1974 for an amount of Rs.100.94 ps. when we turn to the defendant's Khata Ex.56, got produced by the defendant from the plaintiff's ledger, it will be found that an amount of Rs.100.94 ps. has been debited in the defendant's Khata on 11-2-1974. This means FA/1614/1981 5/8 JUDGMENT that one of the items of the letter Ex.77 has got some basis, but it appears that the plaintiff must have found it impossible to support the other amounts claimed by the letter Exh.77, and plaintiff must have found it impossible to produce the relevant entries from its account books and the carban copies of the bills from its bill book, for the remaining items of Ex.77, and that is why the plaintiff abandoned the claim put forward by letter Exh.77, and tried to justify its claim by making a consolidated bill Ex.52 dated 29-3-1974. However, while given the details of the dates and amounts of the previous bills in the consolidated bill Ex.52, the plaintiff lost sight of its own letter Ex.77 dated 16-5-1974 which was addressed to Sidhdharthbhai. The discrepancy in the amount and the dates of the bills in the consolidated bill Ex.52 and the letter Ex.77, cannot be explained on any other hypothesis. The plaintiff was not at all in a position to explain the discrepancy in these two documents, and hence, Shri Kalpeshbhai Ex.45 simply claimed ignorance about the letter Ex.77. It is also significant to note that the learned advocate for the plaintiff took pains to seek some explanation from Shri Kalpeshbhai Ex.45, and hence, the learned advocate drew the attention of Shri Kalpeshbhai Ex.45, during the examination-in-chief to the letter Exh.87 (Mark 30/1), but Shri Kalpeshbhai simply deposed that he could not recollect whose signature was there on this letter Ex.77. Any way, the fact remains that Kalpeshbhai Ex.45 has not offered any explanation to explain the discrepancy in the details given in letter Ex.77 and the consolidated bill Ex.52. Before parting with the discussion, on this point, I may lastly point out that the details given in letter Ex.77 except regarding bill No.2016 dt-11-4-74 for amount of Rs.100=94 ps., do not seem to be FA/1614/1981 6/8 JUDGMENT prima-facie correct. In this connection, it must be noted that in the letter Ex.77, it has been stated that Bill No.2016 for an amount of Rs.100=94 ps. was dated 11-2- 1974. The next bill in point of time was bill no.2038-47 dated 11-3-1974. Thereafter, the next bill which was in point of time is no.2047 dated 24-3-1974. However, two bills dated 29-3-1974 mentioned in this letter Ex.77 are shown to bear the serial nos.2020 and 2035. This is impossible, because the previous bill of 24-3-1974 bears No.2047. I may lastly point out, in this connection, that the plaintiff has not produced the carban copies of any of the bills referred to in letter Ex.77. As stated earlier, according to the plaintiff, the plaintiff has not prepared any separate bill for the goods supplied to the defendant on 29-3-1974, and, according to him, these goods are included in the consolidated bill Ex.52 dated 29-3-1974. However, as pointed out just above, the plaintiff letter Ex.77, goes to show that two separate bills bearing No.2020 and 2035 both dated 29-3-1974 were issued by the plaintiff. But, the carban copies of these bills are not produced on the record. It must also be noted that as per details given in the letter Ex.77, the plaintiff had supplied to the defendant on 29-3-1974, the goods worth Rs.1012-28 ps. While, as per details given in bills Ex.52, the plaintiff has claimed the total amount of Rs.861-75 ps. for the goods supplied on 29- 3-1974. 10. Looking to the above state of affairs, discussed in detail, I am not at all in a position to rely upon the oral and documentary evidence adduced by the plaintiff in respect of its claim. I have already pointed out that the plaintiff's claim cannot be accepted, simply because, he has prepared the bills Exh.52 and 53 and simply because it has made the entries in FA/1614/1981 7/8 JUDGMENT its accounts-books. What is necessary in such a case is to prove that the goods were purchased by the defendant, and that the same were supplied to the defendant. None of the delivery slips bears the signature of Shri Sidhdharthbhai Ex.68 and even, according to him, he was never present at the time of alleged delivery of any goods. If he was present, he himself would take the delivery slips, as deposed by him. The delivery slips Exh.47 to 51 cannot be said to have been signed by Shri Mohanji Exh.76. The evidence given by Shri Kalpeshbhai Ex.45 and Sidhdharthbhai Ex.68, on this point, is highly unsatisfactory and highly unreliable. Their evidence is also otherwise unreliable, and Sidhdharthbhai Ex.68 appears to have come forward to help the plaintiff on account of his differences with the other partners of the defendant- firm which lead him to retire from that firm. On his own admission, he simply took back his capital invested by him, and he never got any profit and he also never settled the accounts. Under the circumstances, and in view of the above discussions, I am unable to accept the plaintiff's claim and I am also unable to rely upon the evidence, adduced by the plaintiff on this point. I, therefore, decide issue Nos.1 and 2 in the negative. 11. The plaintiff has claimed interest at the rate of Rs.9% per annum as per the agreement as averred in plaint para-3. Kalpeshbhai Ex.45 has not proved any such agreement and he went a step further and deposed that the plaintiff charges interest at the rate of 12% per annum in case of default of payment of the amount of bill of its customer. In this view of the matter, when the plaintiff has not proved the agreement, pleaded by it in the plaint, and when the plaintiff leads the evidence regarding the custom of the trade which is not pleaded in the plaint, the plaintiff FA/1614/1981 8/8 JUDGMENT would not be entitled to charge any interest. Of course, since I have decided issue Nos.1 & 2 in the negative, the plaintiff is not entitled to any interest. I, therefore, decide issue No.3 in the negative. 7. Thus, the appellant has not been able to point out that he has sold various spare parts of the machineries of the factory to the defendant, for which, suit was filed. The trial court has also, in details, discussed the law on the point which cannot be assailed. No evidence is shown to take a different view of the matter. I am, therefore, in complete agreement with the reasoning adopted and findings arrived at by the trial court. There are no merits in the appeal and therefore the appeal is dismissed. No order as to costs. Sd/- (K.S.JHAVERI, J.) /patil