JUDGMENT
V.K. Shrivastava, J.
1. This is an appeal directed against the judgment and decree dated 17-8-1999 passed by VII Additional District Judge, Raipur, in Civil Suit No. 61-B/95, whereby decreeing the suit for recovery of Rs. 17,252/- along with interest in favour of pLalntiff/respondent.
2. Facts in brief as unfolded before the Lower Court are that the pLalntiff/respondent filed a suit against the defendant/appellant for recovery of Rs. 17,252/- averring that he is consigning and forwarding agent of Birla Tyres with whom defendant/appellant who is dealer of Birla Tyres purchased tyres vide Invoice Nos. 575,581 and 582 total costing Rs. 1,82,550/-. Consignment was sent to him on 8-9-1993 and the goods were received by defendant/appellant on 10-9-1993. According to sale agreement defendant/appellant was required to make payment within sixty days, but he did not pay the same within stipulated period, therefore, the security deposit of Rs. 50,000/-, credit note in his favour for Rs. 29,359/- and Rs. 28,939/- towards replacement of tyres were adjusted against the balance amount and after adjustment for remaining amount, Claim notice was served on him, but was not acted upon by the appellant/defendant.
3. Defendant/appellant contested the Claim inter alia pleading that he has no business relation with pLalntiff/respondent, he deals with Birla Tyres, with whom he deposited security amount and as per term, he was entitled for commission and replacement Claim. His Claims towards commission and replacement of tyres are not yet settled. No amount is payable to the pLalntiff/ respondent. PLalntiff/respondent has no right to institute the suit and the suit is time barred.
4. Both the parties in support of their case adduced oral and documentary evidence. Learned Lower Court after appreciation of evidence held that pLalntiff/respondent in the capacity of agent of Birla Tyres was doing his business of selling tyres in the name of M/s. Vijay Traders Raipur, an amount of Rs. 74,252/- being cost of tyres was due against defendant/appellant for payment to pLalntiff/respondent. Suit is time barred it could not be proved.
5. Learned Counsel for the parties are heard, record of Lower Court perused.
6. PLalntiff/respondent in Para 5 of the pLalnt gave description of each invoice, cost of tyres and the amount adjusted against the cost of those tyres and further pleaded that after adjustment Rs. 74,252/- was balance for recovery against defendant/appellant. Defendant/appellant in his written statement did not deny the details as stated in Para 5 of the pLalnt, but pleaded that the amount has been incorrectly shown in Invoice No. 582, dated 31-8-1993. He further stated that so far as Invoice No. 581 is concerned, pLalntiff has not paid the Claim against replacement of tyres and turn over discount @ 5% for the years 1991-92 and 1993-94 and on calculation Rs. 70,010/- stands payable to him by Birla Tyres.
7. Appellant’s contention is that in accordance with Section 230 of the Indian Contract Act, pLalntiff/respondent is not a legally authorized person to institute the suit for recovery of Claims on behalf of Birla Tyres. His further contention is that pLalntiff/respondent failed to prove that defendant/appellant received tyres sold to him under Invoice Nos. 575, 581 and 582. On the other hand, pLalntiff/respondent urged that defendant/appellant did not specifically deny the pLalnt averment. He was duly authorized by Birla Tyres under Power of Attorney, Le., Exh. P/1-C.
8. Exh. P/1-C is the Power of Attorney issued in favour of the pLalntiff for doing various acts relating to business and affairs of Birla Tyres. Vide Power of Attorney at Serial No. 10, pLalntiff/respondent has been authorized to Claim, demand, sue for and realize of outstanding Claims and dues of Birla Tyres relating to the said sales and grant valid receipt and discharge therefor.
9. Shailesh Singhaniya (P.W. 1) in his statement deposed that he is Clearing and Forwarding Agent of Birla Tyres, power of attorney has been issued by Birla Tyres, i.e., Exh. P/1-C. Agreement which took place with Birla Tyres is Exh. P/2-C. He is the whole-seller of Tubes and Tyres. Since 1991 he has business relation with defendant/appellant who deposited Rs. 50,000/- for dealership, issued a blank cheque towards security. His account is being maintained by them. In the year 1993 under invoice Nos. 575, 581 and 582 he purchased tyres costing of Rs. 1,82,000/-, but did not pay the sale amount, therefore, the dealership amount of Rs. 50,000/- discount credit in his favour and the amount towards replacement of tyres were adjusted and thereafter an amount of Rs. 74,252/- was found outstanding to be recovered from defendant/ appellant. The Account if Exh. P/27-C. In his cross-examination nothing has been elicited so as to discredit his version. On the contrary, Exh. D-1 document proved by defendant/appellant himself corroborates the statement of Shailesh Singhaniya. In document Exh. D-l, defendant/appellant has accepted that he has business relations with pLalntiff/respondent. Towards dealership, he issued blank cheque.
10. The statement of Shailesh Singhaniya is duly corroborated with documentary evidence, Le., Exhs. P-4 to P-6 and account maintained by the pLalntiff/respondent which is Exh. P/27-C. On the other hand, Kesharilal Jain who is defendant/appellant in his statement stated that he has no business relation with Shailesh Singhaniya and he did not purchase any tyres from him. The tyres said to be transported to him under three consignments were not received by him. In his cross-examination he admitted that he maintained account, but to support his version he did not file his account book, even his oral statement is contradictory to his own document (Exh. D-l). Therefore, his statement was not reliable, even otherwise, in absence of specific denial; the provisions of Order 8 Rule 5 of the Code of Civil Procedure apply which contemplates that if any pLalnt averment has not been specifically denied, it will be deemed to be admitted.
11. The evidence of Shailesh Singhaniya was trustworthy and from his statement, it was established that towards sale of tyres an amount of Rs. 74,252/- was outstanding against appellant/defendant. PLalntiff/respondent was Clearing and Forwarding Agent of Birla Tyres who under Power of Attorney was authorized by Birla Tyres to enforce the Claim for recovery of sale amount of Birla Tyres. The transaction took place in August, 1993 and the suit was filed on 12-7-1995 that itself shows that the Claim is not time barred.
12. No other contentions have been raised by the parties during the, course of arguments.
13. In the result, the appeal is devoid of substance, therefore, the I judgment and decree passed by the Trial Court is sustained and the appeal is dismissed.
14. Appellant shall bear his own costs and shall pay the cost of respondent.