{"id":36248,"date":"1953-03-12T00:00:00","date_gmt":"1953-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hiralal-and-others-vs-badkulal-and-others-on-12-march-1953"},"modified":"2018-07-07T18:26:04","modified_gmt":"2018-07-07T12:56:04","slug":"hiralal-and-others-vs-badkulal-and-others-on-12-march-1953","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hiralal-and-others-vs-badkulal-and-others-on-12-march-1953","title":{"rendered":"Hiralal And Others vs Badkulal And Others on 12 March, 1953"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hiralal And Others vs Badkulal And Others on 12 March, 1953<\/div>\n
Equivalent citations: 1953 AIR 225, \t\t 1953 SCR 758<\/div>\n
Author: M C Mahajan<\/div>\n
Bench: Mahajan, Mehr Chand<\/div>\n
           PETITIONER:\nHIRALAL AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nBADKULAL AND OTHERS.\n\nDATE OF JUDGMENT:\n12\/03\/1953\n\nBENCH:\nMAHAJAN, MEHR CHAND\nBENCH:\nMAHAJAN, MEHR CHAND\nBHAGWATI, NATWARLAL H.\n\nCITATION:\n 1953 AIR  225\t\t  1953 SCR  758\n CITATOR INFO :\n R\t    1961 SC1316\t (7)\n\n\nACT:\nAcknowledgment- Whether gives fresh cause of action-Practice\n-Party in possession of documentary evidence-Duty produce.\n\n\n\nHEADNOTE:\n    Where   the\t defendants  who  had  dealings\t  with\t the\nplaintiffs  for several years signed the following entry  in\nthe plaintiffs' account book underneath the earlier entries:\n   \"After  adjusting the accounts Rs. 34,000  found  correct\npayable\n   Held, that this amounted to an unqualified acknowledgment\nof  liability to pay and implied a promise to pay and  could\nbe made the basis of the suit and gave rise to a fresh cause\nof action.\n  Maniram  v. Seth Rup Chand (33 I.A. 165), Fateh  Chand  v.\nGanga Singh (I.L.R. 10 Lah. 745) and Kahan Chand Dularam  v.\nDayalal\t Amritlal  (I.L.R. 10 Lah. 748) relied\ton.   Ghulam\nMurtuza v.     Fasihunnissa (I.L.R. 57 All. 434) overruled.\n   It  is  not a sound practice for those desiring  to\trely\nupon  a\t certain state of facts to withhold from  the  court\nwritten\t evidence which is in their possession\twhich  could\nthrow light upon the issues in controversy and to rely\tupon\nthe mere doctrine of onus of proof.\n   Murugesam  Pillai v. Manickavasaka Pandara (44  I.A.\t 99)\nreferred to.\n759\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 168 of 1952.
\n Appeal\t from a Judgment and Decree dated 23rd July,  1951,
\nof the Court of the Judicial Commissioner, Vindhya  Pradesh,
\nin  Civil  First Appeal No. 26 of 1951 arising\tout  of\t the
\nJudgment and Decree dated 14th March, 1951, of the Court  of
\nthe District Judge, Umaria, in Case No. 32 of 1951.
\n  N.\t S.  Bindra  (S.  L. Chhibber, with  him)  for\tthe
\nappellants.\n<\/p>\n
 S. P.\t Sinha\t (K.   B.  Asthana,  with  him)\t  for\tthe
\nrespondents.\n<\/p>\n
 1953.\tMarch 12.  The Judgment of the Court was  delivered
\nby
\n  MAHAJAN J.-The suit out of which this appeal\tarises\twas
\ninstituted by the plaintiff-respondents in the court of\t the
\ndistrict  judge\t of  Umaria,  for  recovery  of\t Rs.  34,000
\nprincipal,  and\t Rs. 2,626 interest, due on foot  of  mutual
\ndealings.  The suit was dismissed by the district judge\t but
\nwas  decreed  on  appeal by  the  Judicial  Commissioner  of
\nVindhya Pradesh.  A certificate for leave to appeal to\tthis
\nCourt  was granted as the case fulfilled all the  conditions
\nand requirements in force relating to appeals to the Supreme
\nCourt.\n<\/p>\n
 The defendants did not admit the claim and it was  pleaded
\nthat no accounts were explained to them when the  signatures
\nof  Bhaiyalal and Hiralal were obtained in  the\t plaintiffs’
\nledger on 3rd September, 1949, acknowledging the suit amount
\nas due from them.  It was further pleaded that no suit could
\nbe based merely on an acknowledgment of the debt.  In  para-
\ngraph  4  of the written statement it was alleged  that\t the
\nplaintiff  No. 2 Dipchand having threatened to bring a\tsuit
\nagainst defendants I and 2 whose financial position was\t bad
\nand  having represented that plaintiff No. 1 Badkulal  would
\nbe  angry and abuse plaintiff No. 2, and having\t assured  on
\noath by placing his hand on a deity in a temple that no suit
\nshall be
\n760<\/span>
\nbrought, and that amount of interest would be reduced asked
\ndefendants  1 and 2 to sign the khata, who signed  the\tsame
\nwithout\t going through the accounts, on the faith  of  these
\nstatements made by Dipchand and that the defendants were not
\nbound  by these signatures.  In paragraph 9 of\tthe  written
\nstatement  it was alleged that in fact Rs. 15,000 or  16,000
\nas principal sum were due to plaintiffs from defendants\t but
\nthe  suit  had been filed for a much larger  sum  than\tdue.
\nIssue I framed by the district judge was in these terms :  ”
\nDid  the  defendants Hiralal and Bhaiyala I sign  on  Bhadon
\nSudi  11 Samvat 2006 in the capacity of manager and head  of
\nthe   family,  on  the\tkhata  of,  the\t  plaintiffs   after
\nunderstanding  the debit and credit accounts  and  accepting
\nRs. 34,000 as the correct balance due to the plaintiffs.”
\nIt  would have been more correct had a separate\t issue\tbeen
\nframed\ton  the\t two points compositely\t mentioned  in\tthis
\nissue.\t Be that as it may, the form in which the issue\t was
\nframed\tis  not\t material for the decision  of\tthe  appeal.
\nIssue 7 was in these terms :\n<\/p>\n
 ”  Did\t the  plaintiff Dipchand obtain\t the  signature\t of
\ndefendants  1  and  2, in their bahi  under  the  threat  of
\ninstituting  a\tsuit and giving the assurance  of  the\tsuit
\nbeing not filed and leaving the interest which is  incorrect
\nand very much exaggerated, by saying that Badkulal shall  be
\nvery angry with him…”.\n<\/p>\n
 The  frame  of the issue shows that the learned  judge\t at
\nthis  stage  made no effort to ascertain  or  apprehend\t the
\nnature of the plea taken in the written statement.  He seems
\nto  have acted more as an automaton than as a judge  in\t the
\ndischarge  of  his responsible duties.\t Before\t framing  an
\nissue  like this it was his duty to examine the parties\t and
\nto  find out the precise nature of the plea involved  within
\nthese facts ; in other words, whether the defendants  wished
\nto  plead in defence fraud, coercion, undue influence  or  a
\nmistake of fact entitling them to reopen the accounts.\t Mr.
\nBindra for the appellants was unable to tell us
\n761<\/span>
\nwhat  real plea was involved in the facts stated under\tthis
\nissue.\n<\/p>\n
 The  manner  in which the learned judge  dealt\t with  this
\nissue  lends  support  to our view that he did\tnot  at\t all
\napprehend  what\t he  had to decide.  It was  held  that\t the
\ndefendants  did\t not  sign the\tentry  after  understanding,
\nsettling, and adjusting of the accounts, but that  plaintiff
\nDipchand  obtained their signatures without  explaining\t the
\naccounts to them.\n<\/p>\n
 The fact that the entry was signed by both the\t defendants
\nwho  represented  their\t family was  not  denied.   Hiralal,
\ndefendant,  in the witness box admitted that the  defendants
\ndeal  in gold, silver and kirana and maintain regular  books
\nof account.  It was also admitted that two or three  muneems
\nare  in\t their employ for maintaining regular books  of\t the
\nbusiness dealings.  Hiralal was questioned ” How much  money
\nwas  due  from\tthe defendants-firm to\tthe  plaintiffs”  He
\ncouldn’t firm?”.  The answer was evasive, viz., say how much
\nwas  due”.  When questioned about his accounts,\t he  replied
\nthat  he  had  not filed them as he  was  ill.\t He  further
\ndeposed that he had looked into his accounts and Rs.  10,000
\nto  Rs.\t 15,000 as principal and interest were\tdue  but  he
\ncould  not  say\t what was the correct  amount.\t When  asked
\nwhether on the date of signing the acknowledgment he  looked
\ninto  the  books to see what amount was due  from  him,\t his
\nanswer was in the negative.  He further said that even after
\nreceiving  notice he did not look into his own\taccounts  to
\ncheck  as  to  what  the correct  balance  was.\t  A  leading
\nquestion  was  put to him Whether on Bhadon Sudi  11  Samvat
\n2006  there  Was an entry of Rs. 34,000 in  the\t defendants’
\nkhata as being the balance due from them to the\t plaintiffs.
\nThe  answer  was again evasive.\t He said ” I could  not\t say
\nwhether\t there\twas any such entry in his books.”  In  these
\ncircumstances  there was no justification for  throwing\t out
\nthe  plaintiffs’ suit on the ground that the  accounts\twere
\nnot  explained\tto the defendants by  the  plaintiffs.\t The
\ndefendants had written the accounts in their own books\tfrom
\nwhich the true balance could
\n762<\/span>
\nbe ascertained.\t An inference from the statement of  Hiralal
\ncan  easily be raised that the balance entry of\t Rs.  34,000
\nalso existed in his own books.\tMr. Bindra tried to get\t out
\nof  this  situation  by urging that it was no  part  of\t the
\ndefendants’  duty  to  produce the books  unless  they\twere
\ncalled\tupon to do so and the onus rested on the  plaintiffs
\nto  prove their case.  This argument has to be negatived  in
\nview  of  the observations of their Lordships of  the  Privy
\nCouncil\t in  Murugesam Pillai v.  Manickavasaka\t Pandara(1),
\nwhich  appositely apply here.  This is what their  Lordships
\nobserved:\n<\/p>\n
 “A  practice has grown up in Indian procedure of those\t in
\npossession  of important documents or information lying\t by,
\ntrusting to the abstract doctrine of the onus of proof,\t and
\nfailing,  accordingly,\tto furnish to the  courts  the\tbest
\nmaterial  for  its decision.  With regard to  third  parties
\nthis may be right enough they have no responsibility for the
\nconduct\t of the suit; but with regard to the parties to\t the
\nsuit  it  is, in their Lordships’ opinion, an  inversion  of
\nsound  practice\t for those desiring to rely upon  a  certain
\nstate  of  facts  to withhold from  the\t court\tthe  written
\nevidence  in their possession which would throw\t light\tupon
\nthe proposition.”\n<\/p>\n
 This rule was again reiterated in Rameshwar Singh v. Rajit
\nLal Pathak(2).\n<\/p>\n
 On  the  evidence  of the parties it is  clear\t that  both
\nparties are businessmen and each party has been\t maintaining
\naccounts  of  their  mutual dealings, and they\tmet  on\t 3rd
\nSeptember and in the plaintiffs’ book the defendants  signed
\nan entry on page 58 of the ledger which runs thus: –
\n“  Rs. 34,000 balance due to be received up to Bhadon\tSudi
\n11  Samvat 2006 made by check and understanding of  accounts
\nwith Hiralalji’s books.”\n<\/p>\n
 This  acknowledgment  was made below a number\tof  entries
\nmade  in  this khats, on the credit and debit side  and\t the
\nmutual dealings had continued since
\n(1) (1917) 44 I-A. 99.\t (2) A.I.R. 1929 P.C. 95,
\n763<\/span>
\nseveral years.\tThe acknowledgment is signed by Hiralal\t and
\nBhaiyalal, with the following endorsement:
\n  “After  adjusting the accounts Rs. 34,000  found  correct
\npayable.”\n<\/p>\n
In  these  circumstances we are not able to  understand\t the
\nview  of the district judge that it was not proved that\t the
\naccounts  were explained to the defendants by Dipchand.\t  It
\nwas  unnecessary to do so because the defendants  themselves
\nwere  keeping  accounts and they would not have\t signed\t the
\nbalance\t for  Rs. 34,000 with the endorsement  above  cited,
\nwithout\t reference  to\ttheir own books\t or  in\t the  manner
\nsuggested  in the written statement.  Plaintiff Dipchand  in
\nthe  witness box supported the plaintiffs’ case as  laid  in
\nthe  plaint.  He deposed that ” This accounting was done  by
\nmy    muneem   Puranlal\t  and\tRam   Prasad,\tmuneem\t  of
\nHiralal…………  Muneems  explained and  Hiralal  signed
\nafter  understanding it.” In cross-examination he said\tthat
\nmuneems were checking the accounts and when both the muneems
\nsaid  that so much was the balance, Hiralal then signed\t and
\nthat  Hiralal  and Bhaiyalal themselves did  not  check\t any
\naccount.    The\t learned  district  judge  and\tMr.   Bindra
\ncriticized  the\t evidence of this witness and it  was  urged
\nthat he had made false and highly improbable statements with
\nregard\tto the manner and circumstances in which  the  entry
\nwas  signed.  The discrepancies in the statement  relate  to
\nmatters\t of  no consequence.  In our opinion,  his  evidence
\nalong with the entry was sufficient to hold the\t plaintiffs’
\ncase  proved  when the best evidence of their own  books  to
\ndisprove  the  plaintiffs’  case had been  withheld  by\t the
\ndefendants.  No satisfactory explanation had been given\t for
\nthe  non-production  of\t the  defendants’  books,  and\t the
\nevidence given by Hiralal does not do much credit to him.
\nMr.  Bindra  contended that it should have  been  held\tthat
\nBhaiyalal  did not sign at the same time when the entry\t was
\nwritten\t but  he  signed later on.  On\tthis  point  Hiralal
\ndeposed that when be signed Bhaiyalal
\n99<\/span>
\n764<\/span>
\nwas  not  present,  that he signed  afterwards,\t that  Kulai
\nmuneem came with, the bahi saying that Badkulal and Dipchand
\nhad  quarrelled among themselves that there should  also  be
\nthe signature of Bhaiyalal, that Bhaiyalal questioned him as
\nto why the witness had signed, that he replied that Dipchand
\nhad  told  him after pointing his hand towards God  that  he
\nwould  take  no action so long as he lived, so\the  did\t not
\ncheck, nor any one explained him the accounts, that on\tthis
\nhe asked Bhaiyalal to sign and on his asking he signed.\t  It
\nwas for Bhaiyalal to explain his signature by going into the
\nwitness\t box  but he did not give evidence in the  case\t and
\nthere is no explanation why he did not do so.  Mr.  Bindra’s
\ncontention  therefore that it should be held that  Bhaiyalal
\nwas not present when the acknowledgment was signed cannot be
\nsustained.\n<\/p>\n
The defendants tried to support their case by the statements
\nof  Kulai  Prasad,  muneem, and the other  two\tmuneems\t Ram
\nPrasad\tand Puranlal.  So far as Kulai Prasad is  concerned,
\nhe  was\t in  the plaintiffs’ service and  was  dismissed  by
\nBadkulal,  plaintiff,  on 31st March, 1950.   Much  reliance
\ncannot\tbe  placed  on\tthe statement  of  a  dismissed\t and
\ndisgruntled  employee.\tHe stated that Hiralal was not\tmade
\nto understand any accounts and Dipchand assured him on\toath
\nthat  he  would raise no trouble during his life  and  asked
\nHiralal\t to  sign and that Bhaiyalal signed on\ta  different
\ndate.\tThis  evidence\tis of a partisan  character  and  no
\nreliance can be placed on it.\n<\/p>\n
Rain Prasad stated that he did not check the accounts of the
\nplaintiffs from Bhadon Samvat 2006 and that Hiralal did\t not
\nsign in his presence.  In cross-examination he admitted that
\nthere  were  mutual dealings between the  parties  and\tthat
\nHiralal\t might\thave signed after accounting was  done.\t  He
\npretended ignorance of what happened on Bhadon Samvat 2006.
\nAs  regards Puranlal, he stated that after looking into\t the
\naccounts and after mutual talk, Exhibit P-1
\n765<\/span>
\nwas written on Dip Chand’s asking, that accounts might\thave
\nbeen told by Dipchand on the basis of the statement which he
\nhad  with him, that no accounts were explained.\t He  further
\nstated\tthat  Hiralal said to Dipchand “Please see  me”,  on
\nwhich  Dipchand replied after raising his hand\ttowards\t the
\ntemple ” I shall not do anything unfair in my lifetime.”  In
\ncross-examination he admitted that the words ” signed Bhurey
\nNaik Raghunandan Prasad Bakalam Hira Lal “, and the words  ”
\nafter  adjusting  the accounts Rs.  34,000  found  correctly
\npayable\t signed Hiralal ” were written by  Hiralal  himself.
\nIt  was\t further  elicited  in\tcross-examination  that\t the
\nwitness had forged a receipt and for forging that receipt he
\nwas sentenced to one year’s imprisonment in a criminal\tcase
\nstarted\t by Badkulal, plaintiffs This evidence therefore  is
\nnot of much consequence in this case.\n<\/p>\n
 In these circumstances we are satisfied that the  district
\njudge  not only approached the decision of the case from  an
\nerroneous point of view but he also incorrectly\t appreciated
\nthe   material\t on  the  record.   The\t  learned   Judicial
\nCommissioner was therefore perfectly justified in  reversing
\nhis  decision and. in holding that on 3rd  September,  1949,
\nthere  was  an adjustment of accounts actually done  by\t the
\nmuneems\t and  accepted by the principals and  the  story  of
\ncoercion and misrepresentation was false.
\n Mr.  Bindra  next urged that the plaintiff’s  suit  should
\nhave  been  dismissed  because it could\t not  be  maintained
\nmerely on the basis of an acknowledgment of liability,\tthat
\nsuch an acknowledgment could only save limitation but  could
\nnot  furnish  a\t cause of action on which a  suit  could  be
\nmaintained.  The Judicial Commissioner took the view that an
\nunqualified acknowledgment like the one in the suit, and the
\nstatement  of  the account under which the  entry  had\tbeen
\nmade,  were sufficient to furnish a cause of action  to\t the
\nplaintiffs  for\t maintaining  the  present  suit.   We\t are
\nsatisfied that no exception can be taken to this conclusion.
\nIt was held by the Privy Council in
\n766<\/span>
\nManiram\t  v.   Seth  Rupchand(1),  that\t  an   unconditional
\nacknowledgment implies a promise to ‘pay because that is the
\nnatural inference if nothing is said to the contrary.  It is
\nwhat  every honest man would mean to do. In Fateh  Chand  v.
\nGanga Singh(2) the same view was taken.\t It was held that  a
\nsuit on the basis of a balance was competent.  In Kahanchand
\nDularam\t v. Dayaram Amritlal(3) the same view was  expressed
\nand it Was observed that the three expressions “balance\t due
\n“, ” account adjusted ” and “balance struck” must mean\tthat
\nthe  parties  had been through the account.   The  defendant
\nthere  accepted\t the statement of account contained  in\t the
\nplaintiff’s account book, and made it his own by signing  it
\nand it thus amounted to an ” accounts stated between them  ”
\nin  the language of article 64 of the Limitation  Act.\t The
\nsame happened in the present case.  The acknowledgment which
\nforms  the basis of the suit was made in the ledger  of\t the
\nplaintiffs in which earlier mutual accounts had been entered
\nand  truly speaking, the suit was not based merely  on\tthis
\nacknowledgment but was based on the mutual dealings and\t the
\naccounts   stated   between  them  and\twas   thus   clearly
\nmaintainable.\n<\/p>\n
Mr. Bindra drew our attention to a decision of the Allahabad
\nHigh Court in Ghulam Murtuza v. Fasihunnissa(4) , wherein it
\nwas held that even if an acknowledgment implies a promise to
\npay  it\t cannot\t be made the basis of suit  and\t treated  as
\ngiving\trise to a fresh cause of action.  We  have  examined
\nthe decision and we are satisfied that it does not lay\tdown
\ngood law.\n<\/p>\n
 For the reasons stated above this appeal has no merits and
\nwe accordingly dismiss it with costs.\n<\/p>\n
\t\t\t\t     Appeal dismissed’.\n<\/p>\n
Agent for the appellants: Govind Saran Singh.,
\nAgent for the respondents : A. D. Mathur.\n<\/p>\n
CO 2,0.3\n<\/p>\n
(i)  (1906) 33 I.A. 165.\n<\/p>\n
(2)  (1929) I.L.R. Io Lab- 748.\n<\/p>\n
(3) (1929) I.L.R. to Lah. 745.\n<\/p>\n
(4) (1935) I.L.R. 57 All- 434.\n<\/p>\n
767<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hiralal And Others vs Badkulal And Others on 12 March, 1953 Equivalent citations: 1953 AIR 225, 1953 SCR 758 Author: M C Mahajan Bench: Mahajan, Mehr Chand PETITIONER: HIRALAL AND OTHERS Vs. RESPONDENT: BADKULAL AND OTHERS. DATE OF JUDGMENT: 12\/03\/1953 BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND BHAGWATI, NATWARLAL H. 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