… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 2 OF 2001 M/s. Ramnath Saw Mill, a partnership firm, duly registered under the Partnership Act, 1932, represented by its partner Shri Shripad Yesso Naik, resident of Sao Pedro Ilhas, Goa. .. Appellant/ Original plaintiff Vs. Shri M. R. Shenvi, major, resident of c/o. Sunrise Building, Governor Pastana Road, Panaji, Goa. .. Respondent/ Original defendant Mr. V. P. Thali, Advocate for the appellant. Respondent though served, absent. CORAM :- A. P. LAVANDE, J. Reserved on : 30 th September, 2010. Dictated on : 27 th October, 2010. JUDGMENT : By this appeal, the appellant takes exception to the judgment and decree dated 22nd June, 2000 passed by the IInd Additional District Judge, Panaji in Regular Civil Appeal no.60/1999 allowing the appeal filed against the judgment and decree dated 7th May, 1999 passed by the Civil Judge, … 2 … Senior Division, Panaji in Special Civil Suit no.150/1985. 2. The appellant is the plaintiff and the respondent is the defendant in the above suit filed for recovery of an amount of Rs.25,946.20 with interest @ 18 % p.a. from 15th November, 1985 till actual payment. The parties shall hereinafter be referred to as per their status before the trial Court. 3. The plaintiff filed the above suit for recovery of money on the ground that in October/ November, 1983, the defendant had purchased on credit timber from him on six different occasions for total consideration of Rs.21,744.20p., which was agreed to be paid by the defendant by the end of November, 1983. According to the plaintiff, the defendant had paid Rs. 2,500/- towards part payment of the amount due. However, the balance amount was not paid inspite of notice dated 24th June, 1985. The defence of the defendant was that he had not purchased any timber from the plaintiff and the timber was purchased by one Chatu, who was a contractor engaged by the defendant, to whom the defendant had given a contract for construction at hotel Fort Aguada at Calangute. The defendant claimed that he had paid an … 3 … amount of Rs.2,500/- since it was his moral responsibility although he was not liable to make any payment. On the basis of the pleading of the parties, the following issues were framed : 1. Whether the plaintiff proves that in the month of October – November, 1983, the defendant on 6 different occasions namely 3/10/83, 27/10/83, 12/11/83, 11/11/83, 14/11/83 and 15/11/83 purchased timber from plaintiff on credit for total amount of Rs.21,744:20p ? 2. Whether the plaintiff proves that the defendant by his letter dated 31.3.84 acknowledged that he was due and owing to the plaintiff the said amount of Rs.21,744:20p ? 3. Whether the plaintiff proves that the defendant is due and owing to him the amount of Rs.25,946/- being Rs.19,244.20p towards the timber supplied, Rs.800/- towards transportation charges and Rs.5902/- being interest on the outstanding balance of Rs.19,244.20 from 15-11- 83 till date of the filing of the suit ? 4. Whether the plaintiff proves that the defendant received the notice dated 24.6.85 sent by plaintiff's advocate ? … 4 … 5. Whether the defendant proves that the suit is bad for non-joinder of all the partners to the firm ? 4. In the suit, the plaintiff examined three witnesses namely Shripad Naik-PW1 – the partner of the plaintiff firm, Maria Mendonsa-PW2 and Digambar Tari-PW3. The defendant examined himself. The Trial Court by judgment and decree dated 7th May, 1999 decreed the suit. The Lower Appellate Court by judgment and decree dated 22nd June, 2000 allowed the appeal and consequently, dismissed the suit filed by the plaintiff. 5. Mr. Thali, learned Counsel appearing for the appellant, in support of the appeal, urged as under : (i) The Lower Appellate Court could not have disturbed the finding of fact arrived at after appreciation of the evidence without holding that the findings were erroneous, contrary to well established principles of law. (ii) On the touchstone of probability, the Trial Court having found the case of the plaintiff more probable than that of the defendant, the Lower Appellate Court … 5 … sitting in appeal, could not have substituted its own findings for those of the Trial Court. (iii) The findings given by the Trial Court while decreeing the suit were based on correct appreciation of the evidence led by the parties and, therefore, the Appellate Court could not have interfered in appeal. (iv) The evidence led by the plaintiff as well as the defendant clearly established that the defendant had purchased timber from the plaintiff. (v) The letter dated 31st March, 1984- exhibit PW1/A which has been admitted to have been addressed by the defendant to the plaintiff clearly establishes the liability of the defendant towards the purchase of timber from the plaintiff. In support of his submissions, Mr. Thali relied upon the following judgments : (i) The Printers (Mysore) Private Ltd. Vs. Pothan Joseph; AIR 1960 SC 1156. (ii) The Dollar Company Vs. Collector of Madras; (1975) 2 SCC 730. (iii) S. V. R. Mudaliar Vs. Rajabu F. Buhari; (1995)4 SCC 15. … 6 … (iv) Jagdish Singh Vs. Madhuri Devi; (2008)10 SCC 497. (v) Kashi Nath Vs. Jaganath; (2003)8 SCC 740. 6. The respondent inspite of service, has chosen not to put in appearance. 7. I have considered the submissions made by Mr. Thali, learned Counsel for the appellant and perused the record and the judgments relied upon. 8. The appeal was admitted on the following substantial question of law : “Whether the finding of the Appellate Court that the letter dated 31st March, 1984 cannot be construed as admission of liability on the respondent, is perverse ?” 9. The Trial Court upon appreciation of the evidence led by the plaintiff and defendant rendered the following findings : (i) Non-production of delivery challans by the plaintiff was not fatal to the case of the plaintiff. Moreover, no attempt was made by the defendant to … 7 … get the said challans produced on record through the plaintiff. (ii) The letter dated 31st March, 1984- exhibit PW1/A which has been signed by the defendant, which has been admitted by the defendant clearly establishes that the supply of timber mentioned therein was made to the defendant and the contention of the defendant that it was subject to verification by Chatu was difficult to be accepted. (iii) Issuance of cheque of Rs.2,500/- dated 12th December, 1984 to the plaintiff lends assurance to the case of the plaintiff. Moreover, issuance of cheque for Rs. 1,000/- dated 6th June, 1985, which was not signed by the defendant also lends assurance to the case of the plaintiff. (iv) The document exhibit DW1/A dated 15th October, 1984, which the defendant claimed to have written to M/s. Vee Gee constructions of Shri Chatu, was not genuine document. (v) The plaintiff had proved that he had issued notice dated 24th June, 1985-exhibit PW1/C colly to the defendant though the said fact was denied by the defendant. … 8 … (vi) The admission of the defendant that he had taken contract of hotel at Fort Aguada in 1984 clearly goes against the case of the defendant that the supply of timber was made to Chatu for construction of hotel Fort Aguada since the bills were of the period October/ November, 1983. 10. The Lower Appellate Court reversed the judgment and decree of the Trial Court primarily on the following grounds : (i) The plaintiff had not disputed that one person by name Chatu was coming to him for delivery of the timber. (ii) The evidence on record suggested that delivery of timber was effected at Taj hotel on some occasions and on some occasion, the defendant had collected material, which was contrary to the specific plea taken by the plaintiff that timber was delivered near water tank at Porvorim. (iii) Non-production of delivery challans by the plaintiff, was fatal to the case of the plaintiff. (iv) On account of non-production of invoices, … 9 … adverse inference has to be drawn against the plaintiff. (v) The letter dated 31st March, 1984 was given by the defendant since the plaintiff insisted that such a letter be given as he required the same to be produced to the bank as his cash credit limit was exceeding and there was accumulation of interest. 11. It was the case of the plaintiff that the timber worth Rs. 21,744.20p. was supplied to the defendant in October/ November, 1983 and six bills of different amounts were issued to the defendant. The defendant in his evidence has not seriously disputed that the said bills were received by him and does not dispute his signature on the letter dated 31st March,1984. The said letter reads thus : “M. R. Shenvi To M/s. Ramnath Saw Mill, SAO Pedro- Goa. Dear Sir, This is to certify that the following billed amounts as raised by M/s. Ramnath Saw Mill is due from our end subject to verification. … 10 … Bill No. Date Amount 459 03/10/83 1979.20 477 27/10/83 6886.40 488 11/11/83 4959.60 484 12/11/83 3985.80 486 14.11.83 2270.80 488 15.11.83 1662.40 21744.20 Yours faithfully, sd/- (M. R. Shenvi)” 12. It is the case of the defendant that he had issued the said letter at the request of the plaintiff since he required the same to be produced to the bank which fact the plaintiff himself has admitted. However, it is the case of the defendant that the words subject to verification mentioned in the said letter meant subject to verification by Mr. Chatu. 13. I find it difficult to accept the defence taken by the defendant since if really such was the case, the defendant in the said letter would have mentioned so. The use of words 'due from our end' supports the case of the plaintiff that the defendant owed the amounts mentioned in the said letter to the plaintiff. Moreover, the defendant in his evidence has … 11 … clearly admitted that he had issued two cheques one for Rs.2,500/-, which was honoured and another for Rs.1,000/-, which was not signed. The explanation given by the defendant is that it was his moral responsibility to pay the said amount since it was at his instance, supply was made by the plaintiff to Mr. Chatu is difficult to be accepted. If the supply was made by the plaintiff to Mr. Chatu, in the ordinary course of business, the defendant would have never issued any cheque to the plaintiff towards the liability of Mr. Chatu. Similarly, the defendant would not have issued the cheque of Rs.1,000/- on the very same ground. Issuance of two cheques by the defendant to the plaintiff also supports the case of the plaintiff that the supply of timber was made by the plaintiff to the defendant. 14. In so far as the letter dated 15th October, 1984- DW1/A by which the defendant claimed to have called upon M/s. Vee Gee Constructions to pay an amount of Rs. 22,000/- to M/s. Ramnath Saw Mill- plaintiff is concerned, the same also does not advance the case of the defendant. Firstly, the plaintiff in his cross-examination has denied the receipt of this letter although the defendant claimed that such a letter was sent to M/s. Vee Gee Constructions. The defendant has … 12 … not been able to establish that in fact he had sent such letter to M/s. Vee Gee Constructions. Therefore, the finding of the Trial Court that the said document appears to have been got up to support the defence, cannot be said to be perverse. 15. There is one more important aspect, which needs to be noted is that in the cross-examination, the defendant stated that he had taken contract of hotel Fort Aguada in 1984 and whoever had purchased material from the plaintiff might have used the same partially for hotel Fort Aguada. Admittedly, the bills have been issued in October/ November, 1983. As such, the same could not have been towards the supply of material to M/s.Vee Gee Construction of Mr. Chatu. In addition, the defendant in his evidence stated that the said bills were never handed over to him by the plaintiff. However, when he was confronted with the written statement in which he clearly stated that the bills dated 3.10.83, 27.10.83, 12.11.83, 11.11.83, 14.11.83 and 15.11.83 were given to him, he admitted that he had stated so in his written statement. However, he qualified that he did not mention in letter-exhibit PW1/A that the bills were subject to verification of Mr. Chatu. … 13 … 16. In so far as the finding given by the Lower Appellate Court that on account of non-production of invoices and delivery challans adverse inference has to be drawn against the plaintiff is concerned, I find that the approach of the Lower Appellate Court is patently unsustainable in law. The plaintiff relied upon the bills which were admittedly received by the defendant. No doubt, production of invoices and delivery challans would have corroborated the case of the plaintiff about the supply of the timber, but the non- production of the same would not be fatal to the case of the plaintiff. Moreover, when the defendants stepped in the box, the delivery challans were sought to be produced through him, which were rightly rejected by the Trial Court. The Trial Court was right in holding that the plaintiff ought to have produced the said documents through his witnesses and not during the course of the cross-examination of the defendant. However, the fact remains that the plaintiff did not withhold the delivery challans from the Court although he did not produce the same in accordance with the procedure established under the law. Therefore, it cannot be said that the plaintiff withheld relevant documents from the Court. 17. The evidence of Maria Mendonsa-PW2 and … 14 … Digambar Tari- PW3 is not of much help to the plaintiff. 18. In view of the above discussion, I find that the Lower Appellate Court has not exercised jurisdiction in accordance with the settled principles laid down by the Apex Court in the case of Jagdish Singh (supra), in which the Apex Court has held that when the finding of fact is recorded by the Trial Court, it cannot be lightly disturbed unless the approach of the Trial Court in appraisal of the evidence is erroneous or contrary to the well established principles of law or unreasonable. In my considered opinion, the findings recorded by the Trial Court, cannot be said to be unreasonable or against the settled principles of law. Therefore, the Lower Appellate Court could not have disturbed the said findings although it had jurisdiction to reappreciate the entire evidence led by the Trial Court. 19. In view of the above discussion, I hold that the plaintiff has proved that he was entitled to recover from the defendant an amount of Rs.19,244.20p towards supply of timber. However, in my opinion, the interest awarded by the Trial Court @ 18 % p.a. is highly excessive. In my opinion, the plaintiff is entitled to interest @ 9 % p.a. from 15th … 15 … November, 1983 till the date of payment. 20. In the result, therefore, the appeal is partly allowed. The defendant / respondent is ordered to pay an amount of Rs. 19,244.20p. along with interest thereon @ 9 % p.a. from 15th November, 1983 till payment. 21. The appeal stands disposed of in aforesaid terms with costs, which are quantified at Rs.1,500/-. A. P. LAVANDE, J. SMA