RSA No. 1625 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1625 of 2008 Decided on :28 -04-2009 M/s Mohindera Cotton Company, Veer Colony Bathinda and another ....Appellants VERSUS M/s Mahavir Cotton Factory Uchana, Tehsil Narwana, District Jind through Pawan Kumar Partner of firm ....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Pankaj Katia, Advocate for Mr. Sanjiv Bansal, Advocate for the appellants. Mr. Amit Kumar Jain, Advocate for the respondent MAHESH GROVER, J This is defendants' appeal directed against the judgments of the learned Trial Court dated 15.2.2006 and that of the learned First Appellate Court dated 17.3.2008 whereby the suit for recovery of Rs.3,66,348.79 Paisa was decreed. The plaintiff-respondent filed a suit for recovery of Rs.4,50,000/- pertaining to an account which was maintained by it during the course of business transactions between the appellants and the respondent. It was the pleaded case that the plaintiff-respondent is a registered firm was engaged in the sale and purchase of raw cotton and the appellants are also engaged in the business of sale and purchase of cotton at Sirsa and Bathinda. Regarding the transactions which were entered into between the appellants and the respondent, the aforesaid amount was stated RSA No. 1625 of 2008 2 to be due which was also reflected in the account book of the appellants which was regularly maintained during the course of business. An amount of Rs. 3,66,348.79 Paisa was pleaded to be due at the time of filing which was prayed to be recovered alongwith interest at the rate of 1.80/- per hundred per month. The appellants-defendants contested the suit and pleaded that the suit is barred by limitation and barred under Order 7 Rule 11 CPC & for concealment of material facts. On merits it was pleaded that it was admitted that the respondent was running a cotton factory but denied the remaining averments and denied the account books to be bogus and fabricated. It was pleaded that entry of amount of Rs.5,00,000/- on 24.10.1997 has been entered into only to bring the suit within limitation. It was next pleaded that following transactions took place:- “As per defendants, 950 cotton bales amounting to Rs.7570731.11/-from 19.6.95 to 5.10.95 xxxx and the carrier charges of the goods are Rs.108404.30/-. Hence, the total purchase value of cotton bales was RS.7679135.41/-. For the said purchase defendant paid Rs.35,00,000/- on 29.6.95 Rs. 943689.12/- on 4.7.95, Rs.16,00,000/- on 29.7.95 Rs.769103/- on 4.10.95 vide demand drafts. Hence, defendant paid Rs. 6812786.62/- from 19.6.95 to 4.10.95 a balance payment of Rs.866348.79/- remained due against the defendants.” It was next pleaded that about 110 cotton bales amounting to Rs. 8,66,348.79/- were returned because they were defective. In this manner it was pleaded that no amount was due. It was also pleaded that RSA No. 1625 of 2008 3 amount was always paid by the defendants by way of demand drafts and only this amount was shown to be paid in cash implying thereby that the entry was not correct. Both the parties went to trial on the following issues:- 1) Whether plaintiff firm is entitled to a decree for recovery of Rs.4,50,000/- as prayed for ?OPP. 2) Whether suit of the plaintiff is barred under Order 7 Rule 11 CPC? OPD. 3) Whether suit of the plaintiff is barred by the period of limitation?OPD. 4) Whether the plaintiff has concealed material facts from the Court?OPD. 5) Relief. Both the Courts concluded on the basis of evidence before them that the plaintiff-respondent had been able to establish his case and decreed the suit for recovery of Rs. 3,66,348.79/- alongwith interest at the rate of 9% per annum pendente lite and future interest at the rate of Rs. 6% per annum from the date of filing of the suit till its realisation. The findings of both the Courts below have been assailed by way of the present regular second appeal and it has been contended by the learned counsel for the appellants that the respondent has failed to establish his case by leading any cogent evidence. It was pleaded that books of account were forged and entry of Rs.5,00,000/- shown to be paid in cash could not be believed as earlier payments made by the appellants were by way of demand drafts. On the other hand, learned counsel for the respondent RSA No. 1625 of 2008 4 contended that the findings of both the Courts below are correct and cannot be faulted with. It is pleaded that the appellants had raised a specific plea regarding return of 110 bales of cotton and this consignment was worth Rs.8,66,348.79/- but failed to establish the same by way of any evidence. Appellants did not testify before the Courts below for which an adverse inference can be drawn against them. I have heard learned counsel for the appellants and have perused the impugned judgements. The appellants have denied the existence of business transactions with the plaintiff-respondent in their written statement. They have also denied the various transactions which according to respondent had been transacted from 19.6.95 to 4.10.95 but at the same time they pleaded that 110 bales of cotton were returned which were of value Rs.8,66,348.79/-. It was for the appellants to prove this fact once they had raised this plea regarding the return of such bales of cotton but they miserably failed to do so. They even did not testify before the learned Trial Court. In this view of the matter, the plea is to be noticed only to be rejected. It has been contended by the learned counsel for the appellants that the amount of Rs.5,00,000/- was entered in the account books only to bring the suit within limitation. The plea is obviously a failing one. If the respondent was to make such a fictitious entry he did not have to create an entry of Rs.5,00,000/- for bringing the suit within limitation as he could create an entry of a lessor amount also. Account books were duly produced and proved by the plaintiff-respondent. No infirmity could be shown by the appellants in the same. RSA No. 1625 of 2008 5 In this view of the matter, there is hardly any evidence on the basis of which the Court can conclude that the findings recorded by the Courts below are perverse so as to warrant interference in regular second appeal. No substantial question of law has been shown to have arisen in the present appeal and the same being devoid of any merit is hereby dismissed. April 28, 2009 (Mahesh Grover) rekha Judge