JUDGMENT
A.K. Shrivastava, J.
1. This appeal under Section 96 of the Code of Civil Procedure, 1908 has been filed by the defendant against the impugned and decree dated 1-5-1997 passed by learned 5th Additional District Judge, Bhopal in Civil Suit No. 93-B/1997 whereby the suit of plaintiff/respondent has been decreed upto the extent of Rs. 80,254/-with interest at the rate of 6% per annum.
2. A suit for realization of Rs. 1,26,225.00 has been filed by plaintiff/respondent on the averment that plaintiff-firm is carrying on business of wholesale of English liquor, which is being carried under the supervision of Excise Inspector and who supervises every account of plaintiff and also supervises the liquor which is being purchase by retail shopkeepers. The said Excise Inspector also supervise that how much of the English liquor is being sold to the retailer by the plaintiff-firm. Without obtaining permission from the Excise department the plaintiff cannot run the said business of wholesale of English liquor. Similarly, every retail shopkeeper is also obliged to obtain permit from the Excise department to purchase the English liquor.
3. In Para 3 of the plaint, it has been pleaded that English liquor is being sold by plaintiff-firm to retailer according to the permit. The delivery challan is being kept in three copies. The first copy is being given to the purchaser, on second copy receipt of retailer is obtained and the third copy is being kept by the plaintiff. Thereafter plaintiff firm gives bill to the purchaser against which the purchaser pays the amount of bill. If amount of bill is paid by the purchaser, a receipt is issued to him.
4. It is the further case of the plaintiff that in case the payment is not made by retailer within 5 days, he is obliged to pay interest at the rate of 18% per annum and this condition has also been printed and embodied in the bill which is given to the retailer.
5. According to Para 5 of the plaint, the Excise department has given licence to sell the English liquor and on the basis of said licence the defendant happens to purchase the English liquor from plaintiff-firm. From 22-5-1984 to 15-6-1987 the defendant purchased the liquor from plaintiff-firm, the cost of which is Rs. 1,26,225.00 along with interest. This amount includes Rs. 80,254.00 principal amount and Rs. 45,971/- as the amount of interest at the rate of 18% per annum. The said amount has not been paid by the defendant to the plaintiff-firm. The details of account has been given in Annexures A, B, C, D filed along with plaint. According to the plaintiff, plaintiff-firm keeps regular accounts.
6. The defendant did not pay the suit amount despite several request was made by the plaintiff. Hence the plaintiff has filed the present suit for realization of the said amount.
7. The defendant by filing written statement denied the plaint averments. It has been specifically denied in Para 5 of the written statement that from 22-5-1984 to 15-6-1987 a sum of Rs. 1,26,225/- is outstanding towards defendant towards principal and interest. According to defendant, whenever the liquor was purchased by defendant, its payment was made to the plaintiff.
8. The Trial Court framed the following issues:
(i) Whether the defendant had purchased the liquor of Rs. 80,254/- from plaintiff-firm in between 22-5-1984 to 15-6-1987 ?
(ii) Whether plaintiff is entitled to realize interest at the rate of 18% per annum from defendant ?
(b) Whether plaintiff is entitled to recover an amount of Rs. 45,971/- towards interest from the defendant ?
(iii) Whether the suit of plaintiff is barred by time ?
(iv) Relief and cost ?
9. The plaintiff thereafter adduced its evidence and examined one Vishnu Kumar Jaiswal (P.W. 1), Manager of its firm. On behalf of defendant, Jethanand (D.W. 1) was examined who is the partner of the defendant company.
10. The Trial Court on the basis of the pleadings and the evidence placed on record came to hold that defendant purchased the liquor of Rs. 80,254/- in between 22-5-1984 to 15-6-1987 from plaintiff-firm and did not pay the amount but defendant is entitled to pay interest only at the rate of Rs. 6% per annum. The Trial Court further came to hold that the suit is not time barred. The suit of plaintiff has been partly decreed.
11. Feeling aggrieved by the impugned judgment and decree of the Trial Court, this appeal has been filed by the defendant.
12. It has been argued by learned Counsel for the appellant that since the transaction of purchasing the liquor for Rs. 80,254/- has been denied by the defendant, it was incumbent upon the plaintiff to prove that defendant has purchased the liquor w.e.f 22-5-1984 to 15-6-1987 of Rs. 80,254/- and as no document of proof of purchase has been filed by the plaintiff, therefore, the suit of plaintiff cannot be decreed. The contention of learned Counsel is that as per own showing of plaintiff in Para 3 of the plaint that delivery challan is being kept in three copies, the first copy is being given to the purchaser and on second copy the receipt of purchaser is being taken and the third copy is being kept by the plaintiff, but no delivery challan bearing signature of defendant has been filed nor any counter file has been produced in the evidence. It has also been argue by learned Counsel that as per plaintiffs own case plaintiff-firm keeps regular accounts but no such account has been proved.
13. By inviting my attention to the evidence of Vishnu Kumar Jaiswal (P.W. 1), it has been argued that as per this witness he was not having any personal knowledge about the transaction that the goods were sold to defendant and the plaintiff-firm did not examine any of its partner having personal knowledge about the transaction and delivery of goods to the defendant and its non-payment and, therefore, an adverse inference should have been drawn against the plaintiff. By placing reliance on the decision of Supreme Court Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. 2005(1) MPLJ 421, it has been submitted that Vishnu Kumar Jaiswal is only the power of attorney holder of plaintiff- firm, but he cannot appear as a witness on behalf of the party in the capacity of that party. By inviting the attention of this Court to Section 34 of the Evidence Act, it has been contended that plaintiff-firm was obliged to produce and prove the accounts but the accounts are not filed and proved, therefore, the suit of plaintiff cannot be decreed. In support of his contention, learned Counsel has placed reliance on two decisions of the Supreme Court, they are Chandradhar Goswami and Ors. v. Gauhati Bank Ltd., MR 1967 SC1058 and Central Bureau of Investigation v. V.C. Shukla and Ors. . On these premised submissions, it has been argued that since the plaintiff has failed to prove its case, the suit be dismissed.
14. On the other hand, Shri Vikram Singh, learned Counsel for the respondent, argued in support of the impugned judgment.
15. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
16. In the present case, one Vishnu Kumar Jaiswal has been examined by plaintiff-firm as P.W. 1. This witness is also the power of attorney holder of plaintiff. The special power of attorney is Exh. P-2/C. By this power of attorney, Manager Vishnu Kumar Jaiswal has been authorised to do all the legal activities on behalf of plaintiff-firm in the suit filed by plaintiff. According to Vishnu Kumar Jaiswal (P.W. 1) at present he is serving as Manager in the plaintiff company though he is employed w.e.f. 1982. According to him, from 1984 to 1985 one N.K. Dubey was the Manager of the plaintiff-firm. It is pertinent to mention that this witness was not the Manager w.e.f. 1984 to 1985 and one N.K. Dubey was the Manager but he has not been examined. In cross-examination, this witness has admitted that during the disputed period V.D. Adwani was the accountant in the firm. However, the said Adwani has not been examined. This witness has further admitted that the delivery challan Exhs. P-10 to P-51 have not been issued by him nor they bear his signatures. In Para 7 of his testimony this witness has admitted that an officer of Excise Department also sits in plaintiff-firm and in his supervision the goods were being sold. But no such employee of Excise Department has been examined nor this witness has named the said employee of Excise Department in whose presence the goods were sold to the defendant. In Para 8 of his deposition he has specifically admitted that no receipt of delivery of goods was obtained on the delivery challan from the defendant. On the basis of challan the bill is prepared and the counter file is being kept by the plaintiff-firm, but he has not brought the counter file. In Para 9, he has stated that entry in the ledger book is being made by verifying the cash book but the cash books of the year 1984,1985 and 1986 have not been brought by him. This witness has further admitted that the ledger which he has brought, has not been written by him nor the ledger book contains any signature of him.
17. On going through the special power of attorney Exh. P-2/C it is gathered that the same has been executed in favour of Vishnu Kumar Jaiswal on 11-3-1995 though the suit was filed on 15-6-1987. P.W. 1 Vishnu Kumar Jaiswal in Para 10 of his deposition has stated that special power of attorney Exh. P-2/C has been given by Smt. Sunita Arora who has come in the Court. However, Smt. Sunita Arora who is said to be the partner of the plaintiff firm has not been examined though she was present in the Court.
18. P.W. 1 – Vishnu Kumar Jaiswal is not having personal knowledge about the transaction as he himself has admitted that one N.K. Dubey was the Manager at the relevant point of time. Under Sections 101 and 102 of the Evidence Act the burden of proof that defendant obtained the liquor from the plaintiff and did not pay the amount is on the plaintiff but on behalf of plaintiff-firm nobody has been examined having personal knowledge about the transaction. The delivery challan on which it is said that signature of defendant is there, has not been filed and the documents which are filed, does not bear the signature of the defendant. V.D. Adwani who, at the relevant point of time, was Accountant, has also not been examined. The delivery challan Exhs. P-10 to P-51 were not issued by this witness nor they bear his signatures. The cash books have not been filed, has been proved in the evidence. The ledger which was brought by this witness is not under his handwriting nor it bears his signature. Thus, the view of this Court is that plaintiff has failed to discharge its burden. The suit of plaintiff is not at all proved by the evidence of Vishnu Kumar Jaiswal (P.W. 1) because he has not having any personal knowledge about the transaction. The material documents which are mentioned herein above have not been filed by the plaintiff. Said Vishnu Kumar Jaiswal is only the power of attorney holder. The Supreme Court in the case of Janki Vashdeo (supra), has specifically held that the power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. The Supreme Court further held that if the plaintiff is unable to appear in the Court, a commission for recording his evidence may be issued under the relevant provision of Civil Procedure Code. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such act, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. Since the transaction is not in personal knowledge of Vishnu Kumar Jaiswal and it is in the knowledge of plaintiff and as no partner of the plaintiff firm who has personal knowledge, has been examined, the view of this Court is that the burden has not been discharged by the plaintiff and the suit must fail.
19. The Supreme Court in the case of Chandradhar Goswami (supra), has specifically held that no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. The Supreme Court has further laid down the law that there has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. In the present case, the cash book has not all been proved nor there is any evidence that entries in books of account are regularly kept in the course of business. In order to attract Section 34 of the Evidence Act it should come in the evidence that entries in the books of account are regularly kept in the course of business. This has not at all been stated by said Vishnu Kumar Jaiswal in his evidence nor the cash book has been proved and marked as exhibit in the Trial Court by providing opportunity of cross-examination to the defendant. I may further add that such entries cannot by itself be sufficient for fastening liability on any person. P.W. 1-Vishnu Kumar Jaiswal, the sole witness, is not having any personal knowledge about the transaction embodied in the ledgers. The account books are not in themselves proved the liability and the liability was required to be proved by other evidence also. The entries in books of account regularly kept in the course of business though relevant are corroborative evidence and mere production and proof of these entries is not by itself sufficient to charge any one with liability and there must be some other independent evidence to prove the transaction, therefore, no reliance could be placed on these entries. Since there is no corroborative evidence and the entries are also not proved by examining the person who is acquainted or under whose handwriting such entries were made, I am of the view that plaintiff’s suit cannot be decreed.
20. On behalf of defendant the partner of the company Jethanand has been examined and he has specifically stated that whatever the goods he purchased, he has paid the amount to the plaintiff. Since the initial burden was on the plaintiff and the plaintiff failed to discharge the said burden, I am of the view that learned Trial Court has erred in decreeing the suit of plaintiff.
21. Resultantly, this appeal succeeds and is hereby allowed the suit of plaintiff is hereby dismissed. However, looking to the facts and circumstances, the parties are directed to bear their own costs. Counsel fee according to the Schedule, if pre-certified.