'..e1 [ ^ ^-•7 IN THE HIGH COURT OF JUDICATURB AT BILASPUR F.A. 3^ /2006 APPEiLLANT &EFE3NDANT ^1^5 .^i^ •••' rt\<'-'^,l<»' ^•'^y ^y..-- >•••" RESP'ONDENT ^AIBTTIFF ^Habeeb Bhai, ^miniii'^ B-^mrafc Aged about 45 years, S/o. Samiulla Siddhique, R/o. Palace Road, Junapara, Baikunthpur, P.S. and Tah.- Baikunthpur, District Surguja (CG) VERSUS ^- X.K. Choudhari (Krishna Kumar Choudhari), Aged about 52 years, S./o. Nandram Choudhari, Forest Contractor, R/o. Manendragarh Road, Ambikapur, P.S. and Tahsil Ambikapur, District - Surguja (CG) \^' FSRST APPEAL ITNDER SECTION 96 OF CODE OF CIVIL PROCBDURE ^ f^ HIOH COURT OF CHHATnSGARH AT BILA8PXIR FIRST APPBAL No. 34/2006 HabeebBhal Versus K.K. Chondhari POST FOR JUDGMEJ'W ON C»-/ll/200( Sd/- D'iinndraMishr. Judge HICaH COVKf OP CHHATHSGARM AT BILA8PUR KRST APPEAL Ho. 34/2006 HabeebBhai Versas K.K. caiondharl Presenfc Shri Maaoj Paranjpe, Adv. for fhe appcBaat Shri Rajecv Shrivastava, Advocate for rcspoiidcnt JUDGMBNT (DeUvered onOffllfMOG) Per DUrendra Mislira, J. This first appeal under Section 96 of the Code o£ ChnU, Procedure is directed against fhe judgment aad decree dated 31-1- 2006 passed by fhe District Judge, Saiyija (Anibikapui) in Civil Suit No. 5-B/2003 whereby fhe suit oftbe resptxndent for rccoveiy ofthe amoimt has been decreed. (The parties hereinafiter shaU be refexred to as per their descnptfon in fhe judgiaeat of fbie trial Court) 2. The plamtiff filed fhe abowe suit for receweiy of Rs. 1,03,539.40 wifh the avenn.ents fhat he is a fiwest conteactor and he sold centering plates and tunbcr of Rs. 69,506.40 oa credit vide Bfll dated 11-5-2000 aad 20-6-2000. The defeadaut promised that he shaU be repaying the credited ainoiint by Jufy-August, 2000. However, when the defendant <Md not pay the axncnint despite several oral remiaders, a repstered aotice dated 17-6-2002 was sent to him aad dcfendaat afier lecewia^ the said aoti.cc, paid a suin of Rs. 1,500/- on 25-8-2002 and proxnised to pay the rest amount iu the next luonth. It was further pieaded fhat he does not keep any sei®iatecash book and whenever auy custoiner buys, sai endorsement of credit is entered in fhe bfll ttsdf aad wbeo.tver thc paymeat against the credtt bill is received, the saxne ia reoorded oa the back of the credit biB date-wlse. Incoiue Tax is assessed oa the basis of cash niemo. It was ftirther pleaded that fhe dcfisodaat paid Ss. 3,500/- against fhe Bill No. 6 and clauned interest at the rate of 18%> The suit for recovisry wifh fhe aforesaid pleadings was ffled. 3. The defendant iu his written statement denied any puichase of ceatering plate aud sawn timber on credlt vide Bffl No. 6 aad 9. He stated fhat fhe above bffls do not contain hls sigiature. It was also pleaded fhat he had purchased tiiaber on 4 occasioas and the bill issued bears his sigaature and ftie letter dated 25-8-2002 written by fhe defendaut pertains to fhe amount payaMe agauist fhe above bill. Service of legal notice was demed and it was clalmed that the payment against 4 bflls meutioned in fhe writteu stateaaeut has been made. 4. On the basis of the pleadiugs of the respective parties, learned District Judge framed issues and after recordlng of stataaeats offhewitnesses exaxuiaed by fhe respectivs partics, the suit was decreed wifh fhe findiags fhat a suin of Rs. 66,006.40 remauis outstandu^ towards the sold tlmber against £he defendant and fhe plaiutiff is entifled to recover Rs. 37,533.00 by way of interest on thc above amount aud plaiatiff is also entifled for mterest at the rate of 18% per armiun from the date of flling <rf tlie suit aud the suit is not tuue barred and fhe suit was decreed wifh costs. 5. Learned counsd for fhe appeUant-defendant submits fhat (a) fhe suit of fhe plaintiff is based on dociuaeut.of Ex. P-2 and P-3 bemg fhe credtt bflls of the sold timber, baweww the aboive bffls do not bear his signature; (b) fhe suit has been decreed by mis- interpretation of Section 34 of fhe Evidence Act and fhe suit cannot be decreed solely on the basis of entries in the Account Books, evea where such books of account are kept ia regular 1 ..^. course of busiaess, except where tfae persons eoB.ca-ned accepts fhe conectness offhe entrics; (c) the plamtiffhas to prove his own case and fhe suit cannot be decreed on. the basis of weakness of the defendant's case; (d) the plainttff has aeither pleaded nor examlned the inaterial witaess being fhe driver of the truck who aUegedly obtained the sold tunber; (e) the plaiutiff has neither pleaded nor ffled the Transit permits necessaay for traasportation of the sold titnber as per Kasth Chiran Adtauayaiu; (^ fhe suit has been deereed on improper appreciation of oral and documentary evidence available ou. record ^aoring the pleadmgs aad evidence adduced by fhe defeudant. 6. ReUance is placed on AIR 1967 SC 1058 (CAandradkan Ooswamt and otherB -v- Crauhati Banfe Ltd.t and 1998(111 M.P.W.N. 187 (SCl (Punjab Urban Maaniae 9t Dewelppment Authoritv -v- B/B. Sbiv Saraswati Iron & Steel Re-roUltUE MUlsl. 7. Oa the other hand, learaed counsel for fhe plaintiff subuaits that ftie impugned decree passed by the Distorict Ju<^e is not solely based on fhc docuiueat of Ex. P-2 and P-3 but the same is alao based on admission of the defendant fhat he made repayiuent agaiast fhe abovc crcdit biUs. It is iurther argued that fliough the Trausit Permits were filed by fhe plaintiff but the saaie was not taken on record. The attested copies of fhe above penaits are available on the reoord and the Couu"t caa take cognizance of the same as per Sectioa 35 of fhe Evidence Act. It is further subnutted fhat the statenient on oath of the plaiatiff r^arding repaymait of fhe loan amount is supported by the statein«nt of P.W. 2 Neeraj Verma aad the statement offhis wituess stands unehalleaged. Reliance is placed on (200515 8CC 784 fUnltect ladia Insurance Co. Ltd. and another ~v- Samir Clandra Chaudharvl, (1998(3 SCC 410 (Central Bureau of InveBtigation -v- V.J 4 Shukla and others) and (1998128CC 192 (Sulzar Ali -v- State of H.P.l. 8. I hawe heard fhe learned counsel for fhe parties. I have perused the pleadings, oral and docum.eutary evideace adduced by fhe respective parties. 9. The suit of the plamtiff is based on flocuuieats of Ex. P-2 and P-3. The plaintiff claimmg Ex. P-2 and P-3 to be Cash xnemo/Credit meano issued duru^ fhe course of busmess bas filed the uistant suit for recovery of the credit amount along wifh, iuterest at the rate of 18% per aumua. The plaiatiff has filed fhe origliial toffl book for the year l-4-2000 to 31-3-2001 wtoioh contai.as the carbon copy afthe credit UU issued to the defendant. He has also filed bffl book for the year l-4-1999 to 31-3-2000 said composite bffi book for thc years 1-4-1997 to 31-3-1998 and 1-4- 1998 to 31-3-1999. Erom the perusal of these biU books, it is evident fhat fhe above books neiftier contaia. printed book nuuiber nor they contain printed bUl nuinba-. There is no certi&catlon to fhe effect that each bill book coutains a particular niuuber of biBs, The plaiatiff has proved the docuineat of Ex. P-2 and P-3. lu his evidence fhrough affidavit, he has reiterated the avCTmcnts of fhe plaint. It is also stated that he had seat a legal notice Ex. P-4 which was returned with the eadorsem.ent that fhe same could not be served as the defendant was not available ia his hcune. He has also proved the letter dated 25-8-2002 writtea by the defendant. By fhis adautted documeat the defendant has seut a sum of Rs. 1,500/- as a part payment wifh a promise to pay further axaouat in fhe nesrt laonth. The plaintiff has examlned PW-2 Neeraj Veriaa in support of his case who has stated on oath that ffae plnintiff requested him to contact the defendant who omes him soiae araount on credit and to bring whatever am.oiu'Bt is gwaa by him. He hauded over a lettar of fhe plaintiff to fhe defeadaat whereupon- a sum of Rs. 1,000/- was given by amount shaU toe seat later on. stajtmg that rest of the 10. Apart from rdying upon the dociunents of Ex.P/2 and P/3 and fhe credit bitls issued to the defendant, fhe l^al notice datcd 17.6.3002 (Ex.P/4) and letter of fhe defendaut (Ex.P/6), learned counset for the plaintiff has poiuted out towards the documeats of Ex.D/3 filed by the defendaat which bears his signattire and submitted fhat carboa copy of the Ex.D/3 adnutted by fbe defendant does not bear fhe signature of the defendant and thus, the defcndaat has tried to inislead fhe Court by puttir^ his signature over the docuxueuts ofEx.D/3 after the samewas Issiied by the plaintiff. Further refaTing the Ex.P/ 8 it i& argued that fhis is also a credit bill in the naine of fhe defendant which do^ not toear his signature, however, fhe defeadaut has ghren ev&swe reply ia his cross examiaatiMi regarding presence of signd-ure of his driver. Further pointing out towards the conduct of the defeudant iu a'vDiding recdpt of l^al notice of Ex.P/ 4 and also avoidu^ the seruice of suiumons issued by the Court, it is subnutted fhat the defendaut has not come up with true facts. The detaadant has also not produced £herdevant account booka maaitained by h4m to prove the purchase made by him from the plaintiff froni time to time and the nature of transaction, ftierefore, the defendaat has suppressed the same and adverse uiference has already been drawn .against lum. 11. It is true fhat from the abbve conduct of fhe defaidaiat it is appareo.t fhat he has not revealed fhe truth beforc the Court aad his conduct is not fair. Neverthdess, it is settled positien of law that fhe plaiatiff has to prove his case to fhe satisfaction of the Court and he caxuiot take advastaye fram fhe weakness of fh.e defeadaat's case to get a decree as is hdd in the inatter c£Pnajab. Urban Plannlng & Development Aathority (supra). F 12. Now it is to be seen whether fhe plaintiff has been able to prove his case by leadmg rdiable aad cogeat evidence. Prom close scrutmy of pleadii^s of fhe plaiutiff, documeutary and oral evidence adduced by hun during trial, the following facts for conaideration; (a) fhat relying upon the credit bffls of Ex.P/2 and Ex.P/ 3, it has been plcaded by the plaintiff that he does not keep auy cash book or le<^er exoept the toill books for ruiming his business. Whaiever thc tunber is puichased on cash a bffl is issued to such purchaser and when ftie traasaction is on credit an endorsemeut of credit is niade on ftie bill itsdf and whaiever payment against the credit biU vs received the same is eatered date wise on fhe back of the credit biU and this is the practice adopted by fhe plauitiffto conduct his business and as per ttus practice ffae dcfendantwas suppUed timber on credit. (b) That fh.e assessment for fhe purpose of sales tax and income tax is done on the basis ofbfll. (c) That when fhe defendant avuided payment a^aiast the credit, a l%al notice of Ex.P/4 dated 17.6.2002 was sent aud fhe defendant after receipt of the; said notice sait a sum of Rs. 1,500/ - fhrou^ti Kutub Bhai. (d) That the payment by the defendaat against fhc bitl No, 6 was recordcd on fhe back of Bx.P/3. (e) That legal notice of Sx.P/4 is composite notice against bffi dated 8.1.2000 for Rs. 20,300/-, biU No. 6 dated 11.5.2000 for Rs. 42,445/- and bffl No. 9 dated 20.6.2000 for Rs. 27061/-, for a total sum of Rs. 89,806.40 plus interest. In ftie cross exanunation the plamtiff has admitted that ia fhe notice of dcmand of Ex.P/4 amount outstandiag against Ex.D/4 was also iacluded, howevier, he has denied fhe su^estion fhst- letter of Ex.P/ 6 by thc defendant is in coanection wifh Ex.D/ I to Ex.D/4. He has also denied fhM payment against Ex.D/ 1 to D/4 was not recewed tiU 36.6.2002 and the date of payuient ^atast Ex.D/4 has wrongly been meationed. 13. Froai carbon copy of Ex.D/4 available on record it is observed that against the total credlt amount of Rs. 30,300/-, Rs. 12,800/- was already paid up to 05,02.2002 and on the date of legal notice oiily Rs, 7,800/- was reuwining outstanding which are shown to be paid by fhe defendant on 26.6.2002 through Habib Bhai and accordingly there is an eudorsenient that total aiuount ^ainst biU Ho. 13 stands paid. The above entry ia fhe carbon copy of Ex.D/ 4 stands falsified by the l^al notice of Bx.P/ 4 as weU as by ffae statemeut of (he plamtiff on oaffa aa whicb fhe demaad for a sum of Rs. 20,300/- has beea made against bIU No. 13 ds^ed 8.1.2000 and the plamtiff has stated that the defendant tumsdf paid the amount against ttds bill on 26.6.3002. 14. The plamtiff rdymg upon flaie credit mauo aud entries r^arding repaymeat avex back of the same, has argued fhat the documeuts of Ex.P/ 2 and P/ 3 are in fa.ct fhe docuaients of accoiuit whlch is mamtained by fhe plaintiffia his usual course ofbusiaess and as sueh the same are admissible. However, from. close scrutiny of fhe bffl boolcs it is observed fhat the practice adopted by the plaiatiff during fhe course of his business was aot regular whereas against the bffl No. 2 deposits arc AOTPTI on foiu" occasions and the credit stands repaid but the same has not been added whereas in fhe case of present transaction •wde Bx.P/2 details of payment ia three occasions have beea added. Siuular is the situation with credit bUl No. 8 dated 11.6.2000 and credit bfU No. 11 dated 22.12.2000 wherein the siun deposited or added ouly after the credit staads discharged. Thus no uniform practicc making eatry of repayment on fhe back of the adopted. memo 13 15. Ia both the documents of Ex.P/2 and P/3 a aigiature against column for purchase's a^nature is present. The plaintafF has not pleaded about fhesame, however, in his aross exanunation he has stated that the above siguature is of lus drivcr Matkesh Sin^i who took the consignmcat from huu iu Us own truck. Malkesh Singh has not been estamiaed as a witness. la par^raph 3 of his cross examinatian he has adniitted that he has Uceuce of saw mffl, fhe biUs were issued after the tunber wece sawn, the forest departBaeat issues transit pass after sale on fheir application and in fhis case, translt pass has been issucd and (he sajne is sent fhrough vehicle and he shaB be filing the same afta- obtaiaing it froia the forest departtuent. 16. The above documetit has not bcea exhibited diuing trial, however, learned couiisd for the plaintiff submits fhat since the docu-men.ts are the attested copies of the transit passes acad fhe sam.e were issued by a Govt. Department, cogmzance of the same can be takea as per Section 35 of the Eviden.cc Act. 17. There is no pleading in the plaint i-egardmg issuance of traasit permit by the forest department, howevcr, attcsted cojaes of the traiisit permits dated 11.5.2000 i»Ud up to 13.5.2000 and 20.6.2000 vaUd up to 22 .6.2000, go to show that tiie plantiff ia the owner of fhe consigmnent wluch was to be transportcd froni Ambikapur to Bhamshajhar, Surqpur, Balkundpur, Katghodi. This pertains to 210 pieces of centering plate and other sawn tipiber of 145 pieces. In both fhese documents name of the Wl1~ defeudant is meationed whereas fhe bflls of Ex.P/2 and P/3 are issued in the fiame of defendant resident of Junapara, Baikuntinir. 18. On fhe other hand, defeudant has filed conszuner sales certificate for the purpose of transportmg timber within district^f. r^ Sarguja issued by the plaintiff. F'roin fhe above documeat it is euident that the plninttff was required to issue consuxners aaies certt&cateat the tiiae of seB of consigmaent through Bx.P/2 and P/3 also. Hcwever, the plamtifE has not cared to plaad or prove any such document toy filing fhe same to cstabUsh the credlt transaction. 19. Section 34 of the Evideace Act is beuig reproduced hereunder; 34. Entries la books of accounte when relevant.-Entries in books of accoiuit, [incbuSng thoae mcwstedned in an electmruc form], regularfy kept in fh.e course ofbusiaess, are rdevant wheneva- thcy refer to a matter toto which fhe Court has to iaquire, but such statement shall not alone be sufficleat evidencc to charge any persoawifh Uabltity. It is settled law that fhe principle of this Section is to admit only such statements recorded by a party in his own behalf as by fheir nature and circuiustancee are ordinarily beyond his power to taxuper with, undiscovered for ftie purpose of a particular oase. Therefore, wheu an entry of that Mad is teadered, it must be shown- (a) to be ia a book, (b) that book raust be a boolc of accouat, and (c) that account must be one r^ularly kept iu the course of business. These essentials require to be carefuUy observed. The term 'Books" in this Section may properly be taken to sigiufy, ordinarily, (i) coUections of sheets of paper bound together, (ii) with the uitention that such buiding shall be permaneat and the papers used collectrvely ia one volufflie. —-- ^: 10 20. In the matter of Central Bureau of Invectigatioa (supra), fhe Supreme Court while considerfng the rueaning of book of account under Section 34 of the Evidence Act in paragraph 26 has hdd as under; "26. Iu Muk-undram. aS.et dealing with the word "book" (to which we have earlier referred) the Court proceeded to consider what is meant by a "boolc of account" Tinder Section 34 and stated as under: 'To account is to reckon, and I am unable to conceive any accounting which does not iEtVDlve eifher addition or subtracdon or bofh of fhese operations of aritfametic. A book which contains succesave erstries ofitems may be a good memorandum book; bvt latfsl Owse entries are totalled or bcdanced, or bofh, as the case may be, ffliefe is no rechorang and no acoount. In fhe luaking of totals and stnking of balances froni time to time lies fhe chief safeguard under wliich books of account have beeu distmguished from. ofher private records as capable of contaitung substantwc evidence on which rdiance uiay be placed." 21. Iftheabove definitionis adopted iatti.epreseut set offacts, I have no hesitation in reaching to the conclusion that the documents of Ex.P/2 aud P/3 together wlfh fhe endorsemcnt on fhe back of these docuinents cannot be considered to be a botflc of account as fhere is no totaMng or balanciug or both and as such fhere is uo reckoning and no account. In orda- to make the docuuient ia question adaussible, the same have to be regularly kept during the course ofbusiness. 22. As has already beea pointed out ia the earlica- paragraphs that there is no regularity ia makmg entries of the amount^ 11 deposited towards the credit of the plajatiff aad as such the dociunent does not satisfy fhe reqiiirement of "regularly kepf so as to satlsfy the last requirement under Section 34 to be admissible m evidence as a relevant fact. 23. It is settled law that entnes iu the books of account are not by fhemsdves sufficient to charge any person with Uahitity, the reasou beu^ that a man cannot be aUow^cd to niake euidence for hitusetf by what he chooses to write in his own books bdtund fhe back of the parties. There must be m.dcpendent ewdea.ee of fhe traasaction to which the eatries relate and in abseuce of such evideuce no relief caa be grven to the party who rdies upon such entries to support his clafcm. against another. In the instant case fhe dispute between the plaiutiff and fhe defeadant is re^ardn^ transaction vide docum.ents of Ex.P/2 and P/3 which do not bear the signature of the defendaB.t. The Coiirt below tias based its judginent on fhe above documents considering the saine to be a books of accoiint r^ularly kept duru^; the course of fhe business and further consideriug fhe letter dated 25.8.2000 as an admisslon on fhe part of fhe dcfendaat of his Uabillty, has decreed fhe suit. Thus, plausible defence of the defeudant that the abave letter refers to the transaction vide Bx.D/ 1 to D/4 and paymcut was against fhose documents, has been disbelleved. 24. I have ateeady poiated out ia the for%om.g paragraphs that the genuinencss of fhe entries made by the plaintiiff in the earbon copy of Ex.D/4 is doubtfiil and in view ofthe fact tbat a composite legal notice of deanand of Bx.P/4 was iu rdation to laU Wo. 13 dated 8.1.2000 also, the probabiltty ofthe defendant's paying the admltted sum on 25.8.2000 caunot be ruled out. The plaiatiffwas required to prove his case by thc best evidence which was in hls possession such as by eieaminuig fhe drwer of the truek who has sigued the above dociuneats as purchaser and as per case of the plaintiff the consigmnent was deliwered to tfae defcndait Uu-ough 12 his own truck bv the said driver. ta viewr of fhe fact ttaat the defeadant has categoricaUy denied any transactiwi vid< Ex.P/2 and P/3 and also in vievf of the fact that the c<msumer sales certificate is issued by the retailer who eEFects sale (plaintiff in tfae present case) which has not been disputed by the plaintiff ia his cross examiuation, the non-filing of copy of such certificate by the plaintiff which must be in his possession, inakes the case of the plaintiff doubtfal. 25. So far as fhe law laid down by the Apex Court in the matter of Gulzar Ali Vs. State of H.P. (supra) is concemed, referring to paragraph 9 of fhe above judgment leamed counsel for the respandent has argued that handwriting of the driver Malkesh Sia^. can be estabUshed by two ofher tuodes also and therefore, non-examination of Matkesh Singh w»s not fatal. In the instant case, fhe signature of Matkesh Singh has not been disputed, the onJy thing for consideration was fhe fact fhat fhe Matkesh Singh received the consigiunent froni the pledntiff to delhrer the saiae through truck ofthe plaintiff to fhe defendant and accordiiigly, fhe sam.e was ddlvered to the defendant can be establisdied only by examimng Malkesh Singh. 26. Iu fhe matter of United India Insarance Company (supra) the Supreme Court considering the admission of tfae resptaideat m his application for clahn as also the adniission of brotha- of fhe respondaut that fhe vehicle ih question was damaged as a braach of eucalyptus tree fetl on tiie vehide, has held that fhc fonuus below were not justified to aUow the daniages to fhe respoadcnts ignoring thdr admission. Ih the instant case the admissi&n is enly to the effect that the payment was made -uide documeat dated 25.8.2002, however, fhe same pertained to another tratisaction and fherefore, the sanie caanot be considered as admlssion ofthe defendant of his liability arlsiag out of credit biUs of Ex.P/2 ani P/3. 13 27. On the basis of aforesald discussions, fhis Court is of fhe considered view that the plauitiff has falled to prove fts case by leading cogent and reliable evidence and fhe fiadiug <rf leamed District Jud^e decreemg the suit of fhe plaintiff, is errMieous aud is liable to be set aside. Accordingly, the appeal is aUowed. Judgment and decree passed in favour ofthe respondent/platntiff is set aside, consequently the suit preferred by the responden.t/plauiti£f is dismissed. However, taking into consideration. fhe facts and circumstaaces of fhe case it is directed that parties shaU bear fheir own costs. ~- ,——— Sd/- Dhirendra Mishra Judge r\v VA-'