1 S.B. CIVIL SECOND APPEAL NO.117/2008. Hotel Mansarover, Sumerpur Vs. M/s. Vishal Iron Store Date of Order :: 30th April 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. D.K. Sharma, for the appellant. .... BY THE COURT: In this second appeal, the defendant-appellant seeks to assail the judgment and decree dated 15.03.2007 as passed by the District Judge, Sirohi in Civil Appeal (Decree) No. 27/2006 affirming the judgment and decree dated 09.10.2006 as passed by the Civil Judge (Senior Division),Sirohi in Civil Original Suit No. 11/2001 partly decreeing the money recovery suit filed by the plaintiff-respondent. Briefly put, the relevant aspects of the matter are that the plaintiff-respondent M/s. Vishal Iron Store filed the suit aforesaid for recovery of an amount of Rs. 46,642.16 from the defendant-appellant with the submissions, inter alia, that the plaintiff was trading in ply-wood, wooden doors and windows etc.; that the defendant purchased on credit certain goods from the plaintiff under three bills dated 31.03.1998, 2 28.04.1998 and 12.09.1998 in the total value of Rs. 58,228/-; that the defendant made part payments on 28.04.1998, 03.03.1999, 30.03.1999, 31.03.1999 and 28.09.1999, in total of Rs. 28,960/-; and that the remaining amount of Rs. 29,268/- was not paid by the defendant despite notice dated 18.08.2000. The plaintiff claimed a decree in the sum of Rs.46,642.16 comprising of Rs. 29,268/- towards principal and Rs. 17,380.16 towards interest @ 18% per annum. The defendant-appellant, while taking several objections on the frame of the suit, totally denied the plaint averment regarding credit purchases and part payments; and alleged that due to enmity the plaintiff had filed this false suit with fabricated documents. The learned Trial Court put the suit to trial after framing relevant issues. The proprietor of the plaintiff firm Hardev examined himself as PW-1 and produced documentary evidence including the bills, cash book and ledger entries, notice and acknowledgment thereof. In rebuttal, defendant examined DW-1 Man Singh and DW-2 Amrit Lal and produced alleged cash book entries Exs. A/1 to A/6. The learned Trial Court, while rejecting the technical objections against the frame of the suit, proceeded to consider the respective stand of the parties on the merits of the case in issues Nos. 2, 3 and 4; and after thorough appreciation of evidence, while overruling the objections of the defendant 3 against the account books of the plaintiff, found that the plaintiff had been able to prove the transactions and dues as alleged. However, the learned Trial Court found that no rate of interest was agreed between the parties and considered it proper to allow interest from 31.03.2000 @ 6% per annum. Accordingly, the learned Trial Court decreed the suit for the principal sum of Rs. 29,268/- and interest @ 6% per annum from 31.03.2000. Before the learned First Appellate Court, the defendant- appellant primarily put emphasis on the contentions that the books of account of respondent-plaintiff were not maintained regularly; and while pointing out several discrepancies where the transactions were not entered in the account books on the day of corresponding bills and where certain bills were not entered in the books and so also the fact that certain bills in the bill book were left blank, it was contended that the books as produced by the plaintiff were required to be rejected. The learned First Appellate Court has dilated on all the minute details of the so-called discrepancies and has observed that such discrepancies of a day or two or so in the account books in relation to some of the entries of the corresponding bills would not falsify the entire account books; and has also referred to the statements of PW-1 Hardev, who has frankly admitted such discrepancies and explained their reasons too. 4 On the other hand, the learned First Appellate Court has referred to the stand of simple denial of the defendant and has also noticed that the entries as produced by the defendant were not of regularly kept account books but were those scribed in some diary though the defendant stated about his regularly keeping the account books. The learned First Appellate Court has also examined the record of the case in thorough detail and has found that of course the bills in question were not carrying the signatures of the purchaser but looking to the position of the parties and the defendant likely to be a well-known hotel in Sumerpur town, has accepted the possibility that all the purchases were not made by the owner of the hotel and that goods could be delivered on credit to the representative or employee of the hotel without obtaining signatures. The learned First Appellate Court has also noticed the facts that the purchaser's name was stated as “Self” on the bill Ex. 2, and as “Ranawatji” on the bill Ex.6; and that nobody's name was stated in the bill Ex.1. After considering and weighing the evidence available on record in its totality, the learned First Appellate Court has found the approach of the learned Trial Court in believing the case of the plaintiff as correct and not suffering from any illegality or perversity; and has, accordingly, dismissed the 5 appeal preferred by the defendant-appellant. Seeking to assail the judgment and decree aforesaid, learned counsel for the appellant strenuously contended with reference to the decision of the Hon'ble Bombay High Court in Ramaji Batanji Vs. Manohar Chintaman & Ors. : AIR 1961 Bombay 169 that for the admitted discrepancies in the books of accounts of the plaintiff, they were not admissible in evidence under Section 34 of the Evidence Act and ought to have been removed out of consideration and the suit ought to have been dismissed. Learned counsel further contended that the plaintiff has failed to establish credit sales to the defendant-appellant when there is no evidence of delivery of goods as stated in the disputed bills. Learned counsel also submitted that though the plaintiff alleged the goods in a disputed bill having been delivered to one “Ranawatji”, such a person was not produced in evidence by the plaintiff and the claim being not supported by relevant evidence, ought to have been rejected. Having given a thoughtful consideration to the submissions made on behalf of the appellant and having examined the impugned judgment and decree, this Court is satisfied that the matter stands concluded with the findings on facts validly arrived at by the learned subordinate Courts after thorough appreciation of the evidence available on record and 6 this second appeal does not involve any substantial question of law. The contention put in the forefront in this second appeal, as was pressed before the learned First Appellate Court too, about the discrepancies in the account books of the plaintiff, is neither of any substance nor of avail. Under Section 34 of the Evidence Act, entries in the books of account that are regularly kept in the course of business, are relevant whenever they refer to a matter subject to inquiry; but such entries alone are not sufficient to charge any person with liability. In the context of the said provision, dealing with the relevancy of the statements made under the special circumstances, and such entries being essentially in the nature of corroborative evidence, the expression “regularly kept” for the books of accounts as occurring in Section 34 of the Evidence Act is not synonymous with “correctly kept”; but only refer to the account books that are kept in accordance with certain method or form related with the system of book-keeping. Section 34 is not concerned with correctness or otherwise of the entries; and taking an extreme case, even incorrectness of an entry could only affect the evidentiary value of the account book but not its admissibility. Again, the time or date of making of the entries may or may not have bearing on their probative value depending on the overall facts and surrounding circumstances, 7 but they are not rendered irrelevant if not made on day-to-day basis. The decision of the Hon'ble Bombay High Court in Ramaji Batanji's case (supra) has no bearing on the present case. In the said case an entry made in the books of account in the year 1917 was not treated relevant on the question relating to a loan transaction alleged to be of the month of July 1916. Even in that relation, the Hon'ble Bombay High Court observed that the value of such entry was “very little”. Probative value of a particular entry is obviously to be considered in the totality of the facts and circumstances of the case. The said decision of the Hon'ble Bombay High Court cannot be read as an authority for the proposition that a day's delay in an entry in the books of account or a few discrepancies here and there would render them inadmissible for the purpose of Section 34 of the Evidence Act. In the fact situation of the present case, even the fishing inquiry that the learned First Appellate Court has gone into in view of the contentions urged by the appellant was, in the opinion of this Court, unnecessary. Though the learned First Appellate Court has pointed out and accepted the explanation offered by PW-1 Hardev about such discrepancies where the dates of bills and the dates of corresponding entries in the books do not tally, the fundamental aspect of the matter 8 remains that taken as a whole, the books of accounts could not have been thrown out as irrelevant as the learned subordinate Courts were satisfied that they were the books of accounts regularly kept in the course of the business of the plaintiff. Substance of the matter remains that the learned subordinate Courts have returned the findings based on an overall comprehension of the oral and documentary evidence on record that the goods in question as stated in the three bills were sold on credit and delivered to the defendant who made part payment in their relation. The findings being essentially the conclusions available in the preponderance of evidence do not appear suffering from any error of law. A feeble suggestion made about the plaintiff not producing “Ranawatji” as referred in one of the bills is of no substance. The learned Trial Court has specifically referred to the statement of the plaintiff in this regard that he was not in know of the name and address of “Ranawatji” who took delivery of goods on behalf of the defendant. It cannot be accepted as an absolute proposition that the plaintiff is always obliged to examine the person to whom goods are delivered for or on behalf of the defendant. Again, the matter rests on preponderance of evidence and merely for the plaintiff not being in a position to identify or produce “Rajawatji”, the entire 9 suit could not have dismissed on that count alone. Noteworthy it is that the defendant suggested in his written statement that the plaintiff has filed this false suit for a so-called enmity but then, admitted in his cross-examination that there was no enmity with the proprietor of the plaintiff firm. In an overall comprehension of the matter, this Court is unable to find any substantial question of law worth consideration in this second appeal. The appeal fails and is, therefore, dismissed summarily. (DINESH MAHESHWARI), J. Mohan/