IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 16 of 1997(C)
1. T.N.RAJAN
... Petitioner
Vs
1. T.R.GOPALAKRISHNAN
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.S.VENKATASUBRAMONIA IYER(SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :03/07/2009
O R D E R
A.K.BASHEER & P.S.GOPINATHAN, JJ.
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AS.No. 16 of 1997.
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Dated this the 3rd day of July, 2009.
J U D G M EN T
Basheer, J.
The defendant in a suit for recovery of money is the appellant. The
suit was instituted by the respondent/plaintiff herein claiming a sum of
Rs.1,00,500/- due from the defendant in connection with purchase of Tread
rubber (processed rubber) allegedly on the strength of Exts.A1 to A10
invoices. The court below decreed the suit as prayed for. Hence this
appeal.
2. The plaint averments may be briefly noticed.
3. During 1991-’92 the plaintiff was engaged in the business of
processing and sale of Tread rubber. According to the plaintiff, defendant
had purchased Tread rubber from him on credit on the strength of Exts.A1
to A10 invoices. But the defendant did not discharge the liability though
demands were made. Ultimately a notice was also issued; but the same was
refused to be accepted by the defendant. The suit was instituted thereafter.
4. The defendant in his written statement admitted that he had
business transactions with the plaintiff. But according to him, he had made
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purchases from the plaintiff only on cash payment. He denied the
allegations in the plaint that during 1991-’92 he had made purchase from the
plaintiff on credit basis. While referring to the invoices mentioned in the
plaint it was contended by him that they were not intended to be credit
invoices as alleged in the plaint. They were signed by him only to evidence
purchase. In short, the defendant denied any liability as claimed in the
plaint.
5. The plaintiff got himself examined as Pw1 and Exts.A1 to A14
were marked on his side. Defendant was examined as Dw1 and Ext.B1 was
marked on his side.
6. The court below after evaluating the oral and documentary
evidence available on record held that the plaintiff had established his case
satisfactorily and that the defendant had failed to discharge the liability as
reflected in Ext.A11 ledger and Ext.A12 day book.
7. It may at once be noted that the suit claim is based on Exts.A1
to A10 invoices drawn between April 8, 1991 and December 31, 1991.
Under these invoices different quantities of Tread rubber is seen to have
been sold to M/s.Trust Enterprises of the defendant. These invoices bear
the name of the establishment of the plaintiff namely, M/s.Bartech Rubbers,
Thangalur P.O., Thrissur district. Curiously in Exts.A1 to A8 invoices the
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defendant himself has admittedly signed for M/s.Bartech Rubbers. In the
course of cross-examination of Pw1 he admitted that Dw1 was his
authorised representative before the Sales Tax Department, Central Excise
Department, etc. He further admitted that the defendant was related to him.
It was also admitted by Pw1 that he had got carbon copies of Exts.A1 to
A10 invoices with him. But they were never produced before the court by
him. Though the specific case of the plaintiff was that these invoices were
credit invoices, these documents did not indicate so. Further, in none of
these invoices the defendant had made any endorsement to the effect that
the goods contained therein were purchased by him on credit basis.
8. It may be noticed that the specific case of the defendant was
that he never made any purchase from the plaintiff on credit. We have
referred to this aspect in the evidence of Dw1 only to highlight the fact that
the burden on the plaintiff to show that these purchases were made on credit
basis had not been discharged by him at all. It is true that the defendant had
admitted that he had received the goods indicated in Exts.A1 to A10
invoices. But the said admission, in our view, will not help the plaintiff in
any manner for reasons to be indicated by us shortly.
9. Ext.A11 ledger was pressed into service by the plaintiff in
support of his case. The last page of this ledger relates to M/s.Trust
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Enterprises, Thrissur. It is true that ten entries corresponding to the dates of
Exts.A1 to A10 invoices are seen in this page. The numbers of the invoices
are not mentioned against these entries. But all these entries are seen to
have been made in the same ink and apparently on the same day. In answer
to our query about the genuineness of these entries, the learned counsel for
the plaintiff submits that it may be the usual practice. The Accountant
would come towards the end of the year or some time during the financial
year and make entries in the ledger. He invites our attention to Ext.A12
Day book in this context. He points out that there are entries in relation to
all these entries on the corresponding dates in Ext.A12 Day book. But
curiously, the Day book does not reveal transactions of any significance.
Most of the entries are relating to purchase of chemicals, repair charge,
miscellaneous expenses, etc. etc. Yet again we do not propose to make any
comment on this Day book especially since the author of this Day book has
not been examined. There is no explanation from the plaintiff as to why the
Accountant or the author of the Day book was not examined. We may only
say that the Day book does not inspire any confidence.
10. There is yet another aspect of the matter. It is admitted by Pw1
that the statement of accounts of the establishment for the relevant year was
available with him. We are convinced that the amount receivable from the
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plaintiff would have been reflected in the statement of accounts. But the
said document never saw the light of the day. There is no explanation from
the plaintiff for the non-production of this document before this court.
11. In this context we may also noticed that Exts.A11 and A12
Ledger and Day book were produced before the court only at the time of the
trial and that too when the case was taken up for trial ie. nearly two years
after the institution of the suit. This also indicates that there is some force
in the contention raised by the defendant that Exts.A11 and A12 were
looked up by the plaintiff for the purpose of this case. Further, Exts.A11
and A12 will not show that these registers were produced before any
statutory authority for inspection.
12. Learned counsel for the plaintiff has vehemently contended
before us that the admission made by the defendant in the case would be
sufficient to grant a decree in favour of the plaintiff. He points out that the
defendant unambiguously admitted that he had made purchase of Tread
rubber from the plaintiff under Exts.A1 to A8 invoices. It is true that the
defendant when he was examined in the Court admitted that Exts.A1 to A8
invoices contained his signature. But he insisted that whenever he
purchased Tread rubber it was against cash payment. The case of the
defendant was that the Invoices were signed by him as acknowledgement of
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credit purchase.
13. We have already noticed that in Exts.A1 to A8 invoices,
strangely, the defendant had put his signature for and on behalf of the
establishment of the plaintiff himself. It could have been understood if the
invoices were signed by the plaintiff himself or by some of his authorised
signatories and that the defendant had, in his capacity as the purchaser,
made an endorsement and put his signature indicating that the goods were
delivered to him on credit basis. The mere fact that Exts.A1 to A8 invoices
contained the signature of the defendant and also the fact that he admitted
that the goods contained in those invoices were, in fact, purchased by him
will not absolve the plaintiff from the burden of proving his case.
14. Having carefully perused the materials available on record, we
are not at all satisfied that the plaintiff has succeeded in proving his case.
The plaintiff cannot pick holes in the defence case and contend for the
position that the suit is liable to be decreed. The documents produced by
the plaintiff will not show that there was any credit transaction between him
and the defendant. As stated by us earlier, Exts.A11 and A12 do not inspire
any evidence. In our view no reliance can be placed on these two
documents. Moreover, Exts.A1 to A10 also will not help the plaintiff in any
manner. These are all loose sheets admittedly pulled out from a book with
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counter-foils.
15. We have tried to correlate Exts.A1 to A10 invoices with the
other few entries available in the day book. There is nothing on record to
show that during the relevant period some other so called invoice books
were being used by the plaintiff in his establishment.
16. On an anxious consideration of the materials available on
record, we are not satisfied that the plaintiff is entitled to get a decree. The
court below, in our view, was not justified in decreeing the suit as prayed
for.
17. Therefore, the decree and judgment passed by the court below
are set aside. The appeal is allowed. However, in the peculiar facts and
circumstances of the case, there will be no order as to costs.
A.K.BASHEER, JUDGE .
P.S.GOPINATHAN, JUDGE.
kvs/-
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A.K.BASHEER
&
P.S.GOPINATHAN, JJ.
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AS.No. 16 of 1997.
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JUDGMENT
3rd July, 2009.