Case: Madan Gopal Kanodia Vs. Mamraj Maniram and Othersand Vice Versa

The High Court itself observed in its judgment that the original khata and the original rokar Exhibits 30 and 31 respectively relating to Samavat Years 2004 to 2007 had been filed by the plaintiff along with the plaint. The entries contained in the Nakal Bahis were merely reproduction of the entries mentioned in Ext. 30. Therefore, the question of the entries in Nakal Bahis being fabricated or spurious could not arise. The Nakal Bahis merely give further particulars or details of the entries already mentioned in the ledger or the khata. If in these circumstances, therefore, the court exercised its direction under Order 13, Rule 2, C.P.C. to condone the delay and allowed the plaintiff to produce the documents we do not see any error at all which could have been committed by the trial Court. In fact the High Court has completely overlooked the facts mentioned by us and which are contained in the order-sheet of the trial Court. Thus to begin with, the entire approach of the High Court to the case of the plaintiff and the evidence led by him was absolutely wrong. 15. This brings us now to the question as to whether or not the plaintiff has proved that the 21 bales of cloth which were undoubtedly entrusted to the defendants for being deposited in their godown were sold by the defendants and the sale proceeds paid to the plaintiff. Once it is proved that the defendants were in possession of the 21 bales of the cloth which formed part of the 200 bales of cloth, it was the duty of the defendants to account for the same, and excepting a bare denial the defendants have given no other explanation. On the other hand, the plaintiff has produced both oral and documentary evidence to prove that these goods were sold by the defendants and that the sale proceeds were not given to the plaintiff as a result of which he had to make debit entries even at the instance of the defendants. The trial Court considered this matter at great length but the High Court appears to have overlooked this aspect of the case. (The Court considered the plaintiffs evidence.) 16. On a careful consideration of the oral and documentary evidence produced by the plaintiff on this point we are satisfied that the plaintiffs claim with this regard to item (a) of the plaint, namely, the price of 21 bales of cloth which had been sold by the defendants firm and whose sale proceeds were not paid to the plaintiff has been proved to our satisfaction. The High Court was, therefore, wrong in disallowing this claim. The total claim of the plaintiff as regards this item comes to Rs. 21, 686/11/3 which may be rounded off to Rs. 21, 686. 17. We now come to item (b) of the plaint which is the claim of the plaintiff for an amount of Rs. 8824-8-3 which may be rounded off to Rs. 8824. This claim is on account of the price of the goods sent by the plaintiff to the defendants for retail sale and which having been sold the price thereof was not paid to the plaintiff. The trial Court accepted the claim of the plaintiff, but the High Court disallowed this claim after finding that the plaintiff had not been able to prove this part of the claim. After having gone through the evidence we find ourselves in agreement with the finding of the High Court on this point.* * * 18. The last item consists of a sum of Rs. 3819/14/6 which may be rounded off to Rs. 3820 on account of the cash borrowings by the defendants. This item was not seriously pressed by the learned Counsel for the plaintiff/appellant before us, nor has any evidence been produced by the plaintiff in support of his claim. In these circumstances, therefore, the High Court was fully justified in disallowing this claim also. 19. Thus on the evidence led by the plaintiff he has been able to prove only item (a) of the plaint amounting to Rs. 21, 686 being the price of 21 bales of cloth which was sold by the defendants. The defendants have pointed out in their written statement that they had paid a sum of Rs. 10, 000 by cheque to the plaintiff which has not been accounted for and the plaintiff at once agreed to give a credit of this amount by subtracting it from the claim put forward by him in the present suit. This shows that bona fides of the plaintiff. But the manner in which the credit of Rs. 10, 000 has been given by the plaintiff is not legally correct. If the plaintiff has proved his claim to the extent of Rs. 21, 686/11/3, he must first subtract Rs. 10, 000 from this amount before adding interest on his claim. Thus after giving credit of Rs. 10, 000 the claim of the plaintiff would be Rs. 11, 686/11/3 which may be rounded off at Rs. 11, 686. The plaintiff has claimed interest at the rate of 10 annas per cent, per month which appears to us to be too high. We would, therefore, allow the claim for interest to the extent of 6 per cent, per annum for three years. This will come to about Rs. 700 per year. The interest for three years would be Rs. 2100. Thus in view of our finding, the plaintiff is entitled to the item relating to the cost of 21 bales of cloth sold by the defendants to a decree for Rs. 13, 786 which includes interest upto the date of the suit, after giving, credit for the amount of Rs. 10, 000 which he admittedly received from the defendants. Since the amount of Rs. 10, 000 claimed by the defendants has been duly credited by the plaintiff and his claim has been reduced by Rs. 10, 000 the appeal of the defendants is disposed of on full satisfaction.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. The last item consists of a sum of Rs. 3819/14/6 which may be rounded off to Rs. 3820 on account of the cash borrowings by the defendants. This item was not seriously pressed by the learned Counsel for the plaintiff/appellant before us, nor has any evidence been produced by the plaintiff in support of his claim. In these circumstances, therefore, the High Court was fully justified in disallowing this claim also19. Thus on the evidence led by the plaintiff he has been able to prove only item (a) of the plaint amounting to Rs. 21, 686 being the price of 21 bales of cloth which was sold by the defendants. The defendants have pointed out in their written statement that they had paid a sum of Rs. 10, 000 by cheque to the plaintiff which has not been accounted for and the plaintiff at once agreed to give a credit of this amount by subtracting it from the claim put forward by him in the present suit. This shows that bona fides of the plaintiff. But the manner in which the credit of Rs. 10, 000 has been given by the plaintiff is not legally correct. If the plaintiff has proved his claim to the extent of Rs. 21, 686/11/3, he must first subtract Rs. 10, 000 from this amount before adding interest on his claim. Thus after giving credit of Rs. 10, 000 the claim of the plaintiff would be Rs. 11, 686/11/3 which may be rounded off at Rs. 11, 686. The plaintiff has claimed interest at the rate of 10 annas per cent, per month which appears to us to be too high. We would, therefore, allow the claim for interest to the extent of 6 per cent, per annum for three years. This will come to about Rs. 700 per year. The interest for three years would be Rs. 2100. Thus in view of our finding, the plaintiff is entitled to the item relating to the cost of 21 bales of cloth sold by the defendants to a decree for Rs. 13, 786 which includes interest upto the date of the suit, after giving, credit for the amount of Rs. 10, 000 which he admittedly received from the defendants. Since the amount of Rs. 10, 000 claimed by the defendants has been duly credited by the plaintiff and his claim has been reduced by Rs. 10, 000 the appeal of the defendants is disposed of on full satisfaction13. In the written statement filed by the plaintiff under Order 6, Rule 4 Code of Civil Procedure, the particulars and essential details of the 21 bales of cloth were clearly mentioned in paragraph 1(b). Further more, counsel for the plaintiff gave a statement before the trial Court on September 5, 1952 where also all the essential details regarding the 200 bales of cloth were given. In the statement the counsel for the plaintiff admitted that the plaintiff had received the sale proceeds of 179 bales of cloth and that 21 bales of cloth remained unaccounted for. In the evidence also the plaintiff has sought to prove the very case set up in the plaint as also in the written statement filed later under orders of the Court. We are unable to see any substantial variation between the pleadings of the plaintiff and the evidence led by him at the trial. It isd that the pleadings are loosely drafted in the courts, and the courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. In our opinion, the finding of the High Court that there was wide gap between the pleadings and the proof is not at all borne out from the record of the present case.