1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.561 OF 2008 Rupali Silk Mills, Ichalkaranji ..Appellant V/s. Nandkishor Chandmal Kabra & anr. ..Respondents Mr.Rajesh Patil, Advocate, for the appellant Mr.Sajjad Hussain with Mr.Abhijeet Desai, Advocate, for the respondents CORAM : C. L. PANGARKAR, J. DATE : 28TH JANUARY, 2010 P.C. . This is a Second Appeal by the original plaintiff, who has lost in both the Courts below. 2. It is the case of the appellant/original plaintiff that he is manufacturer of the cloth and he had supplied cloth to the defendants in between 2nd April, 2002 to 27th April, 2002 worth Rs.1,28,939/-. The defendants made repayment of Rs.60,000/- towards the costs of the goods supplied but 2 failed to clear the balance. Notice was served on the defendants but the defendants did not clear the amount. Hence, the Suit came to be filed. 3. The defendants had resisted the Suit and raised several defences. According to the defendants, they had never purchased those goods as mentioned in the Suit and the goods had not been delivered to them. 4. The learned Judge of the Trial Court upon consideration of the evidence tendered before him found that the plaintiff had established that the defendants had purchased the goods by credit and they are liable to pay the amount as demanded by the plaintiff and decreed the Suit. 5. The defendants preferred an appeal. The learned Judge of the Appellate Court found that there was no sufficient evidence that the 3 goods were delivered to the defendants and therefore, the defendants are not liable to pay the money. He allowed the Appeal and dismissed the Suit. 6. The learned counsel for the appellant submits that the Appellate Court has wrongly appreciated the evidence in the matter. According to him, the learned Judge should have considered the fact that the defendant was raising an inconsistent plea and in fact, his evidence was inconsistent with the pleadings. 7. He submits that it was not necessary for the original plaintiff/appellant to examine the carrier to show the delivery of the goods since the plaintiff has always been delivering the goods to the defendants even before this incidence and there was no occasion of non-delivery. 4 8. The learned Judge of the First Appellate Court has appreciated the evidence ans has found that the goods in question were never ordered by the defendants. He observes that some employee of the Transport Company to whom the goods were delivered should have been examined to show that the goods were actually delivered to the defendants. I fully agree with the learned Judge of the First Appellate Court that it was incumbent upon the plaintiff to have examined the representative of the Transport Company to show that the goods were actually delivered to the defendants. Since the defendant disputes the receipt of the goods, it was all the more necessary. Mere entry in the books of Accounts and production thereof is not sufficient to prove that the goods were supplied to the defendants. It is not even disputed by the plaintiff that the defendants had pleaded that they had not ordered those goods. I do not find that the learned Judge of the First Appellate Court has 5 wrongly appreciated the evidence and/or the finding recorded by him is in anywhere perverse. 9. In the circumstances, I do not find any substance in the above Second Appeal and which is accordingly dismissed. (C.L.PANGARKAR, J.)