IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SECOND DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO. 1856 OF 1993 Between : Andhra Pradesh Fisheries Corporation Ltd., Rep.by its Secretary. ... APPELLANT A N D Yella Rama Murthy …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU APPEAL SUIT NO. 1856 OF 1993 JUDGMENT: This Appeal Suit, under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 25.01.1993 in O.S. No.131 of 1987 on the file of the Principal Subordinate Judge, Kakinada, whereunder and whereby, the suit filed for recovery of an amount of Rs.84,211/- beng the amount due on hire purchase agreement dated 06.01.1981 by the defendant and subsequent interest thereon, was dismissed. 2. The brief facts that are necessary for disposal of the appeal suit may be stated as follows: The defendant purchased Royya Motor Boat under hire purchase agreement dated 06.01.1981 from the plaintiff Corporation for an amount of Rs.1,31,681/- and took delivery of the boat on the even date. The terms and conditions were incorporated in the said agreement enabling the defendant to make down payment of Rs.23,632.96 ps and to pay Rs.1,837.14 ps. along with interest at 11% per annum that accrued on the amount of the balance of cash price by the date of payment of each installment and the amount has to be paid in 60 monthly installments. In case of failure of any installment, the plaintiff corporation has got power to seize and take away the boat for recovery of the arrears of due amount from the defendant. After taking delivery of the said boat, the defendant was irregular in payment of installments and also failed to deliver the batch of prawns as undertaken by him. From 06.01.1981 the defendant paid only 28 installments as shown in Ex.A.2 statement of account. In spite of repeated demands, the defendant did not pay any amount and after issuing a notice, the plaintiff corporation seized the boat from the defendant on 31.08.1985. By that date the arrears of amount along with interest was an amount of Rs.1,13,910.41 ps. The plaintiff corporation got issued a notice to the defendant to pay the amount. But the defendant refused to receive the notice. Hence the suit. 3. The defendant filed written statement contending that the boat was delivered to him on 21.01.1981 but not on 06.01.1981. The plaintiff instead of giving a new boat given the old boat after some repairs and the life of the said boat is five years. The boat was built in the year 1974. The payments shown in Ex.A.2 statement of account are not correct and he made the total payment of Rs.72,003.00. Every year, a period of 3 ½ months is unseason for fishing and the plaintiff corporation has no right to collect interest for that period. The plaintiff never informed the defendant about the seizure of the boat and the arrears claimed by the plaintiff by the date of seizure is not at all correct. The plaintiff showed the value of the boat as on the date of seizure at Rs.42,017.51 ps. and that amount is absolutely incorrect and there is no basis for such estimate or value. By the date of seizure, the boat costs about Rs.1,40,000/-. The plaintiff did not explain how he arrived at Rs.42,017.51 ps. as stated by the plaintiff. The claim of plaintiff for Rs.83,685.22 ps. is not correct and it has no basis for the same. After seizure of the boat, the plaintiff Corporation earned considerable money giving hire to the Port Department and that amount was not mentioned and the same was not deducted from the loan due by the defendant. The plaintiff is bound to give back the boat to the defendant, who is the owner of the boat. The value of the boat as well as the earnings after its seizure is sufficient and more than the value of the boat was claimed by the plaintiff and the defendant is not liable to pay any amount and wanted to dismiss the suit. 4. Basing on the above pleadings, the following issues have been settled by the trial court for trial: 1. Whether the appropriations of various repayments made by the defendant, are correct, valid and legal? 2. Whether the defendant is liable to pay any money to the plaintiff, and, if so, to what amount? 3. Whether the suit is not maintainable at law? 4. To what relief ? 5. On behalf of the plaintiff Corporation B.Koteswara Rao, the Accounts Officer was examined as P.W.1 and Exs.A.1 to A.8 were marked. On behalf of defendant, he himself examined as D.W.1 and Exs.B.1 to B.6 were marked. 6. The trial court after considering the evidence available on record came to the conclusion that the plaintiff corporation after selling the boat in the public auction no notice was issued to the defendant pointing out the balance amount payable by the defendant, and hence, the suit is dismissed. 7. Now the point for determination is whether the plaintiff corporation is entitled to the relief as claimed. 8. Learned counsel appearing for the appellant contended that the boat was purchased under Ex.A.1 i.e., hire purchase agreement dated 06.01.1981, executed in between the plaintiff and defendant; that as per the said agreement the defendant paid 28 installments, thereafter committed default; therefore, the plaintiff corporation sold the boat in- question in public auction and for the remaining amount the plaintiff corporation filed the suit. 9. None appears for the respondent in spite of service of notice. 10. The factual matrix is not in dispute. The defendant purchased a motor boat under Ex.A.1 hire purchase agreement. As per Ex.A.2 statement of account maintained by the appellant, the defendant paid 28 installments. Thereafter, he committed default in payment of installments and fell due to a tune of Rs.1,13,910.00, towards loan and interest. 11. The respondent who is examined as D.W.1 did not dispute about the correctness or otherwise of Ex.A.2 statement of account. Therefore, Ex.A.2 statement of account is not disputed or denied by the defendant and so, the contents therein can safely be taken as a correct amount payable by the defendant. Though the defendant pleaded that he made certain payments he failed to produce any document to show that he made certain payments to the plaintiff corporation. It is also not in dispute before this Court that when the defendant committed default in paying the installments, the plaintiff corporation seized the boat and conducted a public auction for selling the boat. The crucial aspect is what was the amount fetched when the boat was sold in the public auction. Unless that amount fetched after selling the boat is brought in evidence, it is not possible for the Court to direct the defendant to pay the balance amount. If the amount fetched in the public auction in selling the boat is sufficient to meet the loan amount, then there is no question of paying any amount to the plaintiff. The plaintiff corporation, being instrumentality of State, is supposed to produce the document showing the amount fetched in auction of boat, which was in their custody. There is no documentary evidence produced to show that when the boat is sold in the public auction what amount was fetched. The evidence is entirely within the custody of the plaintiff corporation and purposefully the plaintiff has wantonly evaded to produce the said evidence before this Court. In such a case, the presumption under Section 114(g) of Indian Evidence Act,1872 can be drawn. If it is drawn the presumption is that the plaintiff corporation purposefully evaded to produce the best available evidence. In the absence of any evidence as to what amount the boat fetched, when it was sold in the public auction, it is not possible to ascertain the amount due to the appellant. Therefore, the trial Court rightly dismissed the suit and there are no grounds to interfere with the impugned judgment. Hence, the appeal is devoid of merits and is liable to be dismissed. 12. Accordingly, the Appeal Suit is dismissed. There shall be no order as to costs. ______________ K.C.BHANU. J NOVEMBER 02, 2010. YVL