R. S. A. No. 1370 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1370 of 2010 (O&M) Date of Decision : July 28, 2010 Rajiv Kumar .... Appellant Vs. M/s Gurbachan Singh and sons and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. V. K. Sandhir, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 4074-C of 2010 : For reasons mentioned in the application, delay of 44 days in re-filing the appeal is condoned. C. M. No. 4075-C of 2010 : Allowed as prayed for, subject to all just exceptions. C. M. No. 4076-C of 2010 : Allowed as prayed for, subject to all just exceptions. Main Appeal : Defendant no.3 Rajiv Kumar has filed the instant second R. S. A. No. 1370 of 2010 (O&M) 2 appeal. Suit was filed by respondent no.1 – M/s Gurbachan Singh and sons against proforma respondents no.2 and 3 (defendants no.1 and 2) and the appellant (defendant no.3). The plaintiff alleged that it is a registered partnership firm. Defendant no.1 is also a partnership firm with defendants no.2 and 3 (father and son) being its partners. Plaintiff supplied paddy to defendant no.1 firm, which was running a Sheller/Rice Mill. From 02.09.1998 to 13.10.1998, the plaintiff supplied paddy worth Rs.29,57,819/- to the defendants, who made payment of Rs.23,25,000/- against the said price of the paddy through cheques from 09.09.1998 to 18.08.1999. Accordingly, a sum of Rs.6,32,819.99 paise remained due from the defendants as on 18.08.1999. The plaintiff also claimed interest amount of Rs.1,13,800/- thereon till filing of suit @ 18% per annum as per prevailing rate of interest in the market. Accordingly, plaintiff filed suit for recovery of Rs.7,46,619.99 paise. The defendants inter alia pleaded that they had already made payment of whatsoever goods were purchased by them from the plaintiff and no amount remained outstanding against the defendants. Transactions of supply of paddy and payments made by the defendants to the plaintiff, as pleaded in the plaint, were, however, controverted. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Amritsar, R. S. A. No. 1370 of 2010 (O&M) 3 vide judgment and decree dated 13.03.2007, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Amritsar, vide judgment and decree dated 26.03.2009 and thereby, suit filed by plaintiff-respondent no.1 has been decreed with costs for recovery of Rs.6,32,819.99 paise with interest thereon @ 9% per annum w.e.f. 18.08.1999 till realization of decretal amount. Feeling aggrieved, defendant no.3 only has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that defendant no.3-appellant was not partner of defendant no.1/respondent no.2 firm and had no dealing with the plaintiff-respondent. The contention cannot be accepted. Plaintiff specifically pleaded in the plaint that defendants no.2 and 3 are partners of defendant no.1 firm, but in the written statement, the defendants did not plead that defendant no.3 is not partner of defendant no.1 firm. Defendants have rather pleaded in the written statement that they have made payment of whatever goods were purchased by them from the plaintiff. Consequently, it stands admitted by the defendants that there were transactions between the parties and the plaintiff had supplied paddy to the defendants. It would also depict that defendants no.2 and 3 are partners of defendant no.1 firm, which fact also impliedly stands admitted by not denying the said plea of the plaintiff. R. S. A. No. 1370 of 2010 (O&M) 4 Learned counsel for the appellant next contended that plaintiff's case is not proved as the plaintiff alleged that defendants had made payment till 18.08.1999, but copy of ledger account Ex.PW-1/1 revealed that no payment was entered therein after 19.03.1999 and therefore, the plaintiff's version is not reliable. The contention, although apparently attractive, is devoid of substance. Ledger account Ex.PW-1/1 appears to be for the financial year 1998-99 and consequently, payment made after 31.03.1999 till 18.08.1999 could not be reflected or depicted therein. On the other hand, in first appeal, the plaintiff produced by way of additional evidence document Ex.C-3 from his account book depicting the due amount as on 18.08.1999, as pleaded in the plaint. Consequently, the aforesaid contention raised on behalf of the appellant cannot be accepted. The plaintiff has led cogent evidence to prove its case. The most significant piece of evidence is that the plaintiff examined Ravi Sharma – official of Income Tax Department as PW-2. He brought income tax return furnished by the defendants through Chartered Accountant and list of sundry creditors Ex.PW-2/1 was proved by this witness. Defendants themselves have shown in the said list that a sum of Rs.10,56,919.99 paise was outstanding against the defendants towards the plaintiff as on 31.03.1999. This evidence led by the plaintiff fully strengthens the plaintiff's case and corroborates the other evidence led by the plaintiff. Certain payments appear to have been made by the defendant during the next financial year till 18.08.1999 leaving R. S. A. No. 1370 of 2010 (O&M) 5 behind balance of Rs.6,32,819.99 paise as on 18.08.1999. In addition to the aforesaid, there is another significant aspect of the matter. The defendants were running a Rice Mill. Apparently, they were maintaining account books also. They were having bank account also and made various payments to plaintiff through cheques. However, the defendants have intentionally withheld their account books. Consequently, very strong presumption arises against the defendants for withholding the said material evidence. It is correct that onus was on the plaintiff to prove its case. However, if the defendants withhold the best evidence available with them, adverse inference would arise against the defendants, notwithstanding the fact that initial onus was on the plaintiff. In the instant case, there is no explanation as to why the defendants withheld their own account books. Consequently, very strong inference has to be drawn against the defendants. Learned counsel for the appellant also contended that there was no bill in the bill book issued after 28.11.1998, as the remaining bills were lying blank. It was also pointed out that market committee license dated 31.03.2000 had been written on the bills, whereas the bills were of the year 1998. However, merely because of the license number of the year 2000 being written on the bills, the plaintiff's whole case cannot be thrown out, when the plaintiff has led cogent evidence. Bills may be lying blank after 28.11.1998 as paddy season might R. S. A. No. 1370 of 2010 (O&M) 6 have been over by then. Lower appellate court is the final court of fact. In the instant case, lower appellate court has analyzed and appreciated the evidence in detail and has come to finding of fact against the defendants that the suit amount is due from the defendants to the plaintiff. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. The said finding is not based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. July 28, 2010 ( L. N. MITTAL ) monika JUDGE