RSA No.2394 of 2005 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2394 of 2005 Date of Decision: 6.11.2008 Malkiat Inder Singh & others ..Appellants. Vs. M/s Om Parkash Rakesh Kumar ..Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Rakesh Gupta, Advocate for the appellants. Mr.Deepak Manchanda, Advocate for the respondent. RAKESH KUMAR JAIN, J. The defendants have come up in appeal against the judgment and decree of both the Courts below whereby suit of the plaintiff for recovery has been decreed to the effect that the plaintiff is entitled to recover the interest @ 9% per annum on Rs.5,90,093.98 paise from 31.3.1998 to 17.4.1998. Thereafter, interest of remaining amount i.e. Rs.5,90,093.98 minus Rs.2,50,000/- paid by defendants on 17.4.1998, i.e. Rs.3,40,093.98 plus interest from 31.3.98 @ 9% per annum and interest @ 6% per annum till its realisation. The plaintiff works as a commission agent for the sale and purchase of food grains at Pehowa, District Kurukshetra. Defendant No.1 is also a partnership firm comprised of the partners, namely, Jagdish Singh, Malkiat Inder Singh and Sukhwinder Singh, which is engaged in shelling paddy at village Chopri near Taraori, District Karnal. The defendant purchased paddy from the plaintiff at Pehowa in the financial year 1997-98 RSA No.2394 of 2005 -2 - for a sum of Rs.12,04,093.98 paise. The details of the purchases are as follows : “Date Amount Bill No. 15.11.1997 2,11,695.07 94 17.11.1997 2,49,079.01 96 17.11.1997 35,909.96 97 18.11.1997 2,05,342.81 97 21.11.1997 2,60,727.67 100 22.11.1997 2,41,339.46 101” During the said financial year, the defendant made payment to the plaintiff firm, which is detailed as under : “Amount Date 50,000.00 3.12.1997 1,00,000.00 29.12.1997 2,00,000.00 28.02.1998 3,00,000.00 31.03.1998” As per the custom and usage of Pehowa Mandi, the defendants were liable to pay interest to the plaintiff @ of Rs.1.70% per month till 31.3.1998 and thereafter @ of Rs.1.80% per month. The defendants had used the money of the plaintiff, which was calculated at the aforesaid rate and the defendants were liable to pay to the plaintiff to the tune of Rs.58,508/- as interest. After adjusting the amount received from the defendants in the financial year 1997-98, a sum of Rs.6,12,601.98 paise was left to be paid by the defendants as on 31.3.1998. This amount was inclusive of interest up to the said date. Defendants paid a sum of Rs.2,50,000/- to the plaintiff on 17.4.1998 vide a demand draft and a sum of Rs.3,62,601.98 RSA No.2394 of 2005 -3 - paise remained due from the defendants to the plaintiff. The defendants did not pay the amount. The amount in question remained entered in the account books of the plaintiff, which are kept regularly in the ordinary course of business. Since the defendants did not pay the amount despite repeated demands, the plaintiff filed the present suit for recovery. Defendants No.1 and 3 were proceeded against ex parte before the trial Court but defendant No.3 appeared on 9.6.2003 and filed an application for setting aside the ex parte proceedings. Written statement was filed by defendants No.2 and 3. Defendant No.2 while taking preliminary objections questioned the competency of Rakesh Kumar to file the suit and denied all the averments made by the plaintiff in his pleadings. In the written statement filed by defendant No.3, which had undergone an amendment, preliminary objections were taken to the effect that he was a student in the year 1997-98 and was sleeping partner in the firm. One Balwinder Singh was the managing partner of the firm who died on 13.12.1997 and after his death, the rice shelling business was stopped by the defendant firm and rice mill was given on lease on yearly basis to the other persons. It was denied that defendants had ever ordered the plaintiff firm to purchase Basmati and alleged that entries in the books of account of the plaintiff firm are incorrect and false. In reply on merits, besides repeating the denial of competence of Rakesh Kumar to file the suit, it was admitted that defendant No.2 is a partner of defendant No.1. The plaintiff filed replication controverting the averments made by the defendants in the written statement and reiterated the stand taken in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court: RSA No.2394 of 2005 -4 - 1. Whether the plaintiff is entitled to recover the suit amount along with interest as claimed i.e. to the tune of Rs.1,80 per month per hundred? OPP. 2. Whether the suit of the plaintiff is time barred ? OPD. 3. Whether the plaintiff has no cause of action to file the present suit? OPD. 4. Whether the defendants never entered into an agreement for purchasing Basmati and no paddy was received by the defendants? OPD. 5. Whether the suit of the plaintiff is liable to be dismissed for non production of original books of account under Order 7 Rules 14 and 17 of CPC for the perusal of the Court ? OPD. 6. Whether the suit is filed by an unauthorised person? OPD. 7. Relief.” The trial Court decreed the suit vide its judgment and decree dated 13.9.2003. Issues No.1 and 4, which were material issues, were taken up together and it was found that plaintiff firm is entitled to recover Rs.3,40,093.98 paise along with interest at the rate of 9% per annum on Rs.5,90,098.98 paise w.e.f. 31.3.1998 to 17.4.1998 and even thereafter, till the date of decree and interest at the rate of 6% per annum till its realisation. Under issue No.2, the suit was found to be within limitation whereas issues No.3 and 5 were not pressed at the time of arguments. While deciding issue No.6, it was found by the trial Court that the suit has been filed by a duly authorized person. In the first appeal, the respondent-plaintiff also filed Cross Objections questioning the rate of interest allowed by the trial Court. It was claimed that interest should have been allowed at the rate of 18% per annum according to the custom prevailing in the grain merit of Pehowa. While assailing the judgment and decree of the trial Court, it was argued by the learned counsel for the defendants-appellants before the first Appellate RSA No.2394 of 2005 -5 - Court that claim for recovery of the plaintiff is based on form ST-15 and bahi entries of the plaintiff. According to him, ST-15 forms are required in law to be got printed by the State whereas forms ST-15 available on record as Ex.P5/1 to Ex.P9/1 have been got printed privately. It was further submitted that they are not signed by the defendants or any one duly authorised by them. In respect of Bahi entries, counsel for the appellants submitted before the first Appellate Court that Bahi entries did not carry presumption of correctness. After considering all the arguments raised by the counsel for the appellants, the learned first Appellate Court dismissed the appeal while observing as under : “Learned counsel for the respondent has further submitted that by way of additional evidence, the plaintiff has examined one Pardeep Sharma, an officer of Income Tax Office Karnal as PW6, who had brought income tax return record of M/s Guru Nanak Rice Mills, Taraori (Chopri), for the financial years 1997-98 and 1998-99. According to him, this witness has clearly stated that firm M/s Guru Nanak Rice Mills, Chopri has shown in its balance sheet that it owed a sum of Rs.8,12,601/- to M/s Om Parkash Rakesh Kumar, as on 31.3.1998. This amount was shown at Rs.5,62,601/- as on 31.3.1999. Name of M/s Om Parkash Rakesh Kumar is mentioned by the defendant firm in the list of sundry creditors. The Income tax return and the accompanying documents were signed by Malkiat Inder Singh as partner of M/s Guru Nanak Rice Mills. Learned counsel for the respondents has contended that this evidence clearly proved that the defendants had been admitting their liability to the plaintiff firm.” RSA No.2394 of 2005 -6 - Sh.Rakesh Gupta, Advocate, learned counsel for the appellants has repeated the same arguments which were taken up by the counsel for the defendants-appellants before the first Appellate Court in respect of Form ST-15 and correctness of the Bahi entry. But faced with the findings of the learned first Appellate Court, he could not raise any further contention because in the income tax return M/s Guru Nanak Rice Mills Taraori (Chopri) for the financial years 1997-98 and 1998-99, the defendant-firm has clearly shown that it owed a sum of Rs.8,12,601/- to M/s Om Parkash Rakesh Kumar as on 31.3.1999. This amount was shown at Rs.5,62,601/- as on 31.3.1999. Moreover, the name of M/s Om Parkash is mentioned by the defendant firm in the list of sundry creditors. The income tax return and the accompanying documents were signed by Malkiat Inder Singh as partner of M/s Guru Nanak Rice Mills. There was no scope for the defendants- appellants to wriggle out of this admission based upon the documentary evidence. In view of the above firm finding of fact recorded by the Court below, I do not find any merit in the present appeal nor any question of law much less substantial has been raised by the counsel for the appellants for consideration of this Court. In view of the above, the present appeal is found to be devoid of any merit and is thus, hereby dismissed. (Rakesh Kumar Jain) 6.11.2008 Judge Meenu