IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 114 of 1998 Reserved on: 11.03.2010 Date of decision: 26.03.2010 H.P. State Cooperative Marketing … Appellant & Consumers Federation Versus M/S Mohan Meakin Brewery Limited ... Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Neeraj Gupta, Advocate. For the respondent: Mr. Rajnish K. Lal vice Mr. K.D. Sood, Advocate. V.K. Ahuja, J. : This is a Regular First Appeal filed by the appellant under Section 96 C.P.C. against the judgment of the Court of learned Additional District Judge, Solan, dated 31.12.1997, vide which the suit of the respondent for recovery of Rs.2,06,623/- alongwith cost and interest was decreed as against the appellant. Briefly stated, the facts of the case are that the respondent, hereinafter referred to as ‘the plaintiff’ filed a suit for recovery of the amount as against the appellant, hereinafter referred to as ‘the defendant’. It was alleged that the plaintiff company is engaged in the manufacture and sale of Indian Made Foreign Liquor and Beer etc. The company has its various 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 units including one at Solan. The defendant is a Society registered under the Cooperative Societies Act and it is engaged in the purchase and sale of various articles including sale of liquor through various retail vends in H.P. The defendant has been purchasing Indian Made Foreign Liquor and beer from the plaintiff company’s wholesale depot at Shimla in the years 1987- 88 and 1988-89 and purchases were made by means of various invoices. It was alleged that the plaintiff was having a mutual open current and running account with the defendant in respect of purchases made from time to time and payments made by the defendant for the supplies made. It was further alleged that after adjusting various payments made, a sum of Rs.1,34,185/- is due to the plaintiff on account of principal and Rs.72,438/- on account of interest and thus, a sum of Rs.2,06,623/- is due from the defendant to the plaintiff, but the defendant has failed to pay this amount inspite of notice. It was also alleged that since the prices of the goods supplied by the plaintiff to the defendant was not paid in time, the plaintiff is also entitled to interest at the rate of 18% per annum. The defendant admitted the fact that there was a mutual, open current and running account in between the parties for the purchases made by the defendant from the plaintiff from time to time. It was denied that a sum of Rs.1,34,185/- is due from the defendant to the plaintiff. It was alleged that the defendant has paid the entire amount due and payable to the plaintiff for the goods received from the plaintiff. It was also alleged that the plaintiff used to give 1% discount to the defendant for the payments made as per the practice in between the parties. It 3 was alleged that the correctness of the plaintiff’s account was not admitted. It was alleged that the plaintiff used to send monthly statement of account depicting therein all the bill numbers with details, but in the statement of account there is no mention of three bills and as such, these bills were alleged to be false and forged since they do not find mention in the monthly statement of account submitted by the plaintiff company. The defendant also pleaded that they have never received any goods mentioned in these three bills and as such, the defendant is not liable to pay the amount for these three bills, which comes to Rs.74,265.40. It was pleaded by the defendant that the interest charges is excessive and the plaintiff is not entitled to the same. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether Shri H.N. Handa is competent to institute the suit and sign and verify the plaint on behalf of plaintiff? O.P.P. 2. Whether there was any arrangement amongst the parties for giving discount of 1% to the defendant on the amounts of supply made by plaintiff to the defendant? O.P.D. 3. To what amount the plaintiff is entitled to recover from the defendant? O.P.P. 4. Whether the suit is within the period of limitation? O.P.P. 5. Whether the plaintiff is entitled to interest, if so, at what rate and from which date? O.P.P. 6. Whether the defendant is entitled to special costs? O.P.D. 7. Relief. 4 Parties led their evidence and the learned trial Court vide its impugned judgment decided Issues No.1, 3, 4, 5 and 6 in favour of the plaintiff and against the defendant and consequently decreed the suit of the plaintiff for the full amount alongwith interest. I have heard learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the appellant had disputed the receipt of the goods vide these three bills in the written statement itself and the plaintiff had failed to prove the evidence that any goods were supplied vide these three bills and the amount of these bills were reflected in the statement of the account earlier submitted to the defendant. It was submitted that there is no proof of receipt of any of the goods vide these three bills and the plaintiff was to prove that the goods were sent through these bills and they had been duly delivered to the defendant in which they had failed. It was also submitted that before these goods were received by the defendant, the excise permit was required to be sent by the defendant and until and unless that was received by the plaintiff, no goods could be dispatched to them. Therefore, the excise permits submitted by the defendant, if any, with regard to these three bills were required to be produced in evidence by the plaintiff, in which they have failed and as such, the defendant was not liable. It was also submitted that the evidence on record suggest that the amount of these three bills were included wrongly by the plaintiff in the statement of account, to which they were not entitled in the absence of proof of sending of the goods 5 and as such, the findings to the contrary of the learned trial Court are liable to be reversed. A perusal of the written statement filed by the defendant shows that they had specifically pleaded in the written statement that these three bills mentioned there in are false and forged and no goods were received vide these three bills. The details of these bills are as under: Sr. No. Bill No. Date Amount 1. 35850 15.5.1987 Rs.12,625.50 2. 14792 17.8.1989 Rs.22,440.00 3. 11314 30.3.1988 Rs.39,199.90 They had specifically pleaded that in the first bill no destination has been given. In the second bill, destination shown is L-2 Vend, Sungra, but it is not mentioned in any of the monthly statement of account. In regard to third bill, it was pleaded that the destination has been shown as L-2 Vend, Mall Road, Shimla, which is also false. It is, therefore, clear that the defendant had specifically taken the plea that the goods were not received vide these three bills, whose amount has been shown in the statement of account submitted by the plaintiff. Thus, the onus was upon the plaintiff to show that these three bills were sent by them and the goods were also dispatched by them vide these three bills. There was no difficulty for the plaintiff to have proved that these bills were sent to the defendant for the goods sent by them to different destinations. They could have produced their record vide which the goods were sent through these bills, the destination to which these were sent and the signatures of the official of the defendant, who had received the articles at these three places. It has also 6 come up in evidence that the excise permit was required before these goods were dispatched to the defendant, which permit was required to be submitted as per the statement of PW-1 H.N. Handa by the defendant an those permits must be in the record of the plaintiff, which they failed to produce on record. These permits once produced would have given credence to the goods of the plaintiff that the defendant had obtained the excise permits and thereafter, the goods were dispatched to them, but both these type of evidence is missing from the side of the plaintiff. Coming to the evidence led by the plaintiff PW-1 H.N. Handa and Incharge of the plaintiff company has admitted that the record is available with the Excise Department of the goods sent to L-2 Vend. He further admitted that it may be correct that these three bills were not reflected in the monthly statement. He admitted that there may be of mistake in preparation of the monthly statement. He also admitted that the accounts are reconciled on closure of the account, but he cannot say if any reconciliation of account took place in regard to these or not. PW-2 Arjun Dev, Accounts Officer of the plaintiff, had admitted that they did not give in writing to the defendant as to how much amount was due from them, but has stated that they had been orally telling the defendant. He denied the suggestion that after the filing of the written statement, they were aware of the dispute as to which bills these pertained. However, he stated that he is not aware as to the dispute in regard to the bills. He is Accounts Officer of the company and once he was appearing and deposing for the plaintiff, it was for him to have proved that the dispute was 7 in regard to these three bills, about which the evidence should have been led. To rebut the above evidence, the defendant had examined DW-1 Ramesh Behak, Marketing Manager, who has given the details of these three bills and has stated that the goods vide these three bills were received by them nor these have been entered in the stock. He stated that the company used to send monthly statement in regard to the goods supplied to them, which was being checked by them. He stated that both these bills were not included in the statement submitted by them nor these are entered in their record to show that these goods were received. From the above discussion, it is clear that the defendant from the very first day raised the dispute in regard to the bills, their dates and their amounts. The plaintiff was required to produce evidence on record to prove that these goods were sent by them vide these three bills and thus they are entitled to the amount in which they have failed. The mere fact that these amounts were reflected in the monthly statement of account is not a proof of amount due to the plaintiff from the defendant. Once the amount has been disputed by the defendant that they never received these goods, it was for the plaintiff to have produced the evidence to show that the goods were sent to them vide these three bills and these were received by the defendant, in which the plaintiff company ha failed miserably. The fact that the amount of these bills were shown in the statement of account has not been disputed by the plaintiff, but there is no complete proof of the bills produced by the plaintiff to prove that these goods were sent to the defendant. 8 From the above discussion, it follows that the plaintiff had failed to prove that they had sent the goods to the defendant vide these three bills amount to Rs.74,265.40 a pleaded by them in their written statement. However, the defendant has not claimed that they are not liable to pay the balance principal amount amounting to Rs.1,34,185.00 - Rs.74,265.40 = Rs.59,919.60 in these three bills comes to Rs.74,265.40. Thus, the defendant has not disputed the payment of the balance amount of Rs.59,919.60 to which they are liable. However, there is nothing on record to show that the plaintiff was entitled to interest at the rate of 18% and since a dispute had arisen between the parties which was not settled at any time, the plaintiff cannot be held entitled to interest at the rate of 18% claimed by them amounting to Rs.72438/-. Insofar a the claim is concerned that the defendant was not entitled to 1% discount. Once the amount as per the statement of account has not been paid, the defendant was not entitled to any discount as per practice prevalent, if any, until and unless the amount had been paid by them. Thus, the plaintiff is not entitled to these bills amounting to Rs.74,265.40 out of the total principal amount Rs.1,34,185/-. But since there is no dispute in regard to the remaining principal amount as claimed by the defendant, they are liable to pay Rs. 59,919.60, which shall be payable by them. In case, the amount is not paid within a period of sixty days, the plaintiff is also held entitled to interest at the rate of 9% per annum from the date of filing of suit till the date of deposit by the defendant. The appeal filed by the appellant is allowed and the defendant is held liable to pay a sum of Rs.59,919.60 only alongwith interest, as detailed above. The parties are left to bear their own costs. The 9 plaintiff is also held entitled to proportionate cost of this amount. Decree sheet be prepared accordingly. ( V.K. Ahuja ), March 26, 2010 Judge (BSS)