Appeal against dismissal of a suit for recovery of money. The plaintiff claimed it had advanced a hand loan; the defendants contended the payment was towards purchase of maize. The High Court, finding the plaintiff's receipts concocted and the defendants' documents clinching, dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RFA.NO.1903 OF 2011 (MON)
BETWEEN:
M/S B S K RICE INDUSTRIES A REGISTERED PARTNERSHIP FIRM HAVING ITS REGD OFFICE AT R.S. NO.40-2B MAHAJANAHALLI HARIHAR-577 601 AND REP. HEREIN BY ITS PARTNERS
1 . SYED KHALEEL SAB B S/O.SYED MAHABOOB SAB AGED ABOUT 54 YEARS
2 . SYED UMAR B S/O.SYED KHALEEL SAB.B. AGED ABOUT 23 YEARS
3 . SHAHEEN BANU W/O.SYED KHALEEL SAB.B. AGED ABOUT 47 YEARS
4 . SUMAYYA BANU D/O.SYED KHALEEL SAB.B. AGED ABOUT 24 YEARS
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ALL ARE RESIDING AT VIDYANAGAR HARIHARA - 577 601
....APPELLANT
(BY SRI. L.M. CHIDANDANANDAYYA, ADVOCATE FOR A1 TO A4)
AND:
1 . M/S CHINMADHU AGRO SALES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT AND HAVING ITS OFFICE AT NO.193/B, ROHINI, FORT, HARIHAR-577 601 AND REP BY ITS MANAGING DIRECTOR DR. RAMPRASAD KULKARNI
2 . DR RAMPRASAD KULKARNI S/O.GURUNATH KULKARNI AGED ABOUT 46 YEARS DIRECTOR, M/S.CHINMADHU AGRO SALES PVT. LTD. NO.193/B, ROHINI, FORT, HARIHAR-577 601
3 . SMT GOWRI RAMPRASAD KULKARNI W/O.DR. RAMPRASAD KULKARNI DIRECTOR, M/S.CHINMADHU AGRO SALES PVT. LTD. NO.193/B, ROHINI FORT HARIHAR-577 601
….RESPONDENTS
(BY SRI. S.V. PRAKASH, ADVOCATE FOR R1 AND R3 SRI. R. GOPAL FOR R2)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:09.08.2011 PASSED IN O.S.29/2009 ON
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THE FILE OF THE SENIOR CIVIL JUDGE, HARIHAR, DISMISSING THE SUIT FOR THE RECOVERY OF MONEY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.10.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT
The captioned appeal is filed by the unsuccessful plaintiff challenging the judgment and decree dated 9.8.2011 passed in O.S.No.29/2009 by the Senior
Civil Judge at Harihar.
are referred to as per their rank before the trial Court.
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defendant namely M/s. Chinmadhu Agro Sales Private Limited, Harihar, is a private limited company and defendants 2 and 3 are its Directors. The plaintiff has further pleaded that the first defendant is carrying on the business on brokerage basis and also supplies cattle and poultry feeds to various clients in and around Harihar and also supplies maize and other ingredients to various customers through their clients. It is also further pleaded that the plaintiff-firm is a family concern with its first partner namely B. Syed Khaleel Sab, who is the father of the second partner B. Syed Umar and fourth partner Sumayya Banu and husband of 3rd partner namely Smt. Shaheen Banu. The plaintiff has also pleaded that Syed Kalil Sab, who is the first partner is also running a Proprietary concern under the name and style of “M/s.Dosthana Traders” at Shimogga Road, Harihar, which is a wholesale dealer and supplier of maize.
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It is further specifically pleaded at Para 8 of the
plaint that the plaintiff’s firm namely M/s. B.S.K. Rice Industries and M/s.Dosthana Traders are totally two different entities and independent concerns and have two separate bank accounts. Further, at Para 9 of the plaint, it is pleaded that Mr.B.Syed Khaleel Sab knew second defendant for last 3 to 4 years and they are business friends and have business dealings.
It is the specific case of the plaintiff that defendant No.2 approached Syed Khaleel Sab and sought for financial assistance of Rs.50 Lakhs. It is further pleaded at Para 11 of the plaint that in view of the good relationship, the said partner agreed to lend Rs.50 Lakhs financial help to second defendant. The details of transfer of amounts are also narrated at Para 11 of the plaint. The case of the plaintiff is that second defendant being the Director of the first
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defendant-company had received and acknowledged the total loan of Rs.50,83,051/- under three different cheques. The case of the plaintiff is that the demand made by second defendant is in its individual capacity as well as in the capacity of the Director of the first defendant-company.
The plaintiff has further pleaded that second defendant in partial discharge of his promise has repaid a sum of Rs.10 Lakhs under cheque bearing No.947622 dated 4.12.2007 drawn on State Bank of India, Harihar Branch. The grievance of the plaintiff is insofar as balance loan amount of Rs.40,83,051/- is concerned, inspite of repeated requests, the defendants, more particularly the second defendant, failed to repay the loan amount and went on deferring payment on one or the other pretext. Therefore, plaintiff issued a legal notice calling upon the defendants to pay the balance loan amount with
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interest at the rate of 18% p.a. from 3.11.2007. Since the balance amount was disputed by the defendants by way of reply notice, the plaintiffs were constrained to file recovery suit for a sum of Rs.54,05,870/- with interest at the rate of 18% per annum from the date of the suit till its realization.
The defendants on receipt of suit summons contested the proceedings by filing written statement. The defendants have stoutly denied the averments insofar as lending a hand loan of Rs.50,83,051/-. The respondents-defendants at Para 18 of the written statement have set up a defence and have specifically disputed the alleged loan advanced by the plaintifffirm to the tune of Rs.50,83,051/-. At para 18, the defendants have specifically contended that the first partner of the plaintiff-firm namely, Syed Khaleel Sab, who is the proprietor of Dosthana Traders, Harihar, purchased 6099 bags of maize at the rate of
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Rs.711.11/- per quintal from first defendant-company and thereby disputed the contention of the plaintiff insofar as this amount of Rs.40,83,051/- is concerned. It is the specific case of the defendants that first partner of the plaintiff-firm has made a payment of Rs.40,83,051/- towards purchase of maize from the first defendant-company and to corroborate the pleadings the defendants produced the copy of the credit Bill No.119 indicating sale of 6099 bags of maize. The defendants also furnished the copy of the permit issued by the APMC, Harihar to support their contention that first defendant-company has sold 6,099 bags of maize to M/s.Dosthana Traders to which the first partner of the plaintiff-firm Sri.Syed Khaleel Sab.B. is the sole proprietor.
Further, at paragraph 22, the defendants have admitted borrowing of hand loan, but at the same time they have seriously disputed the quantum of
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hand loan. The defendants’ case is that they had borrowed hand loan of Rs.10 lakhs and the same was repaid. The defendants have also specifically contended that they were not aware of existence of M/s.BSK Rice Industry and they came to know only when a sum of Rs.10 lakhs was paid by the plaintifffirm. On these set of facts, the defendants have sought for dismissal of the suit on the ground that plaintiff-firm has come up with a false story of hand loan with a view to make a wrongful gain from defendants.
The defendants have specifically pleaded that some of the partners are facing criminal charges before the learned JMFC in CC.596/2003, 501 and 517/2006.
Based on rival pleadings, the learned trial Judge framed the following issues:
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"1. Does the plaintiffs proves that the defendant No.2 had approached and requested him for a financial assistance of Rs.50,00,000/-?
2. Does the plaintiffs firm proves that it paid the loan of Rs.50,83,051/- to the defendants in the following 3 installments?
i) On 18.10.2007 through cheque No.862007 for Rs.20,83,051/-. ii) On 3.11.2007 through cheque No.862009 for Rs.10,00,000/-. iii) On 15.10.2007 through cheque No.862006 for Rs.20,00,000/-.
3. Does the plaintiffs further proves that the defendants No.2 in partial discharge of loan had paid Rs.10,00,000/- on 4.12.2007 through cheque No.947622?
4. Does the defendants proves that the payment made by the plaintiffs for the tune of Rs.40,83,051/- in two installments i.e. on 18.1-.2007 and on 10.11.2007 was towards value of maize purchased by the plaintiffs from defendants?
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5. Does the defendants proves that the suit is non-maintainable in the present form?
6. Does the plaintiffs proves that they are entitled to recover a sum of Rs.40,83,051/from the defendants?
7.Does the plaintiffs are entitled for the interest at the rate of 18% per annum?
8.What order of decree?"
The plaintiff-firm in support of their contention examined first partner of the plaintiff-firm as P.W.1
and produced documentary evidence vide Exs.P1 to P50. The defendants in support of their contentions, examined second respondent as D.W.1 and two independent witnesses as D.Ws.2 and 3 and by way of rebuttal evidence, the defendants have produced documentary evidence vide Exs.D1 to D20.
The trial Court having appreciated the oral and documentary evidence has while examining the
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specific pleas of the plaintiff-firm at para 11 found that though defendant No.2 requested for hand loan of Rs.50 lakhs, but plaintiff-firm has lent a loan of Rs.50,83,051/- and the learned Judge was of the view that the hand loan lent was in excess of demand and there is no explanation offered by plaintiff-firm in this regard. The trial Court was also of the view that when the hand loan of Rs.50 lakhs was demanded by the defendants why additional sum of Rs.83,051/- was lent appears to be unusual and that the figures seem to be abnormal. Probably in this background, the learned trial Judge was of the view that a prudent man would not demand loan in odd figures. The learned Judge has also taken note of the fact that the plaintiff’s firm namely M/s.Dosthana Traders and first defendant-company had loan transactions and both the firms are into trading. When a firm advances loan, it is natural to expect to secure collateral
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security from the loanee. The learned Judge was of the view that in ordinary course it cannot be expected from a partnership firm to advance loan without accepting security from the borrower.
The trial Court with the above said observations has proceeded to examine the documents. The learned Judge having meticulously examined Ex.D8 which is the Bill bearing No.119 dated 11.10.2007 has come to the conclusion that the first defendant - company has sold 6099 bags of maize at the rate of Rs.711.11 totally amounting to Rs.40,83,051/- in favour of M/s. Dosthana Traders, Harihar. The learned Judge having perused Ex.D9 which is a permit bearing No.9556 issued by the APMC, Harihar, has come to the conclusion that the first defendant obtained permission for sale of maize to M/s. Dosthana Traders. The learned Judge has also taken note of Ex.D13 which is a permit issued by the APMC,
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Harihar, bearing No.10314 in favour of M/s.Dosthana Traders and as per Ex.D13, M/s. Dosthana Traders in turn has sold maize to Pioneer Feeds and Poultry Products, Pongalore. To counter the defence of defendants, the plaintiff-firm has come up with a case that M/s.Dosthana Traders had purchased maize from farmers and has relied on the bills bearing Nos.817 to 844. The learned Judge has disbelieved the bills produced by plaintiff-firm under Bill Nos.817 to 844 and has negatived the contention of the plaintiff-firm wherein the plaintiff-firm has tried to make out a case that this quantity of maize was never purchased from defendants but was purchased from farmers. While examining the authenticity of the bills the learned Judge has also taken note of Exs.D17 and 18 wherein APMC has issued notice to the plaintiff-firm calling upon them to offer explanation for using the same receipts for two transactions.
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The learned Judge has drawn adverse inference against plaintiff’s-firm for withholding books of accounts and having accepted the rebuttal evidence has come to the conclusion that plaintiff-firm has failed to establish that first partner of plaintiff-firm had lent a hand loan of Rs.50,83,051/- to first defendant-company. On these set of reasoning, the learned Judge has proceeded to dismiss the suit holding that the plaintiff-firm has failed to establish lending of hand loan of Rs.50,83,051/-.
Being aggrieved by the dismissal of the suit, the plaintiff is before this Court.
appearing for the appellant-plaintiff would vehemently argue and contend that the learned Judge has totally misread the clinching evidence adduced by appellant. The grievance of the appellant before this Court is that
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the learned Judge has proceeded to dismiss the suit by relying upon irrelevant and inadmissible evidence. The learned counsel would contend that the learned trial Judge has misread the entire evidence and drawn adverse inference against the appellant, which is not sustainable and the consequent conclusion arrived at, suffers from serious infirmities. The learned counsel for appellant would contend that paragraphs 18 and 19 of the written statement, if examined meticulously, it is forthcoming that respondents-defendants have virtually admitted the entire claim of appellant. Hence, in this context, he would submit that heavy burden would lie on the respondents to prove and establish the plea taken at Paragraphs 18 and 19 of the written statement. He would further contend that respondents have taken a specific defence that a sum of Rs.40,81,051/- received by the respondents is towards sale of maize is not at all substantiated by
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leading any cogent and convincing evidence. In the absence of any rebuttal clinching evidence, the learned trial Judge has committed a grave error in dismissing the suit of the appellant. The learned counsel by taking this Court to Ex.D8 would vehemently argue and contend that the prize of maize fixed at Rs.711.11/- is deliberately mentioned by the respondents only to arrive at a figure of Rs.40,83,051/-. He would also submit to this Court that the learned Judge erred in taking note of Ex.D9 and that no credence can be attached to Ex.D9 since the author is not examined. Relying on Ex.P18 the learned counsel for the appellant would submit that the appellant has been successful in establishing the purchase of maize from the farmers and not from the respondents. By taking this Court to Ex.P18 he would contend that the appellant has purchased a portion of the quantity from farmers and not from the
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respondents and thereafter has proceeded to sell the same to Pioneer Feeds Poultry Products Private Limited, Pongalore, and that the above said document would clinch the issue. Hence, the defence set up by the respondents that they have sold 6,099 bags of maize to M/s.Dosthana Traders cannot be believed.
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amounts in two installments, which is payment towards purchase of maize. The learned counsel would also submit that in the same paragraph lending of hand loan of Rs.10,00,000/- is admitted, but there is a specific statement in the reply notice that the said amount is repaid. The learned counsel would further submit that it is the appellant who has come to the Court by specifically contending that the respondents have availed hand loan of Rs. 50,83,051/-. If the evidence lead in by the appellant is examined, it is clear that the appellant has miserably failed to discharge its burden. He would further submit that the respondents have succeeded in establishing that the payment made by the appellant to the tune of Rs.40,83,051/- is towards purchase of maize. To demonstrate the said issue in controversy, the learned counsel for respondents would take us to Ex.D8 and contend that the same would clinch the issue. To
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corroborate the purchase of maize by the appellant, he would rely on Ex.D9, which is the permit issued by the Agricultural Produce Market Committee, Harihara. The learned counsel would further take this Court to Ex.D15 to demonstrate that 6,099 bags of maize was transported through various lorries, the details of which are also furnished therein. He would submit that if these three documents are examined together, it would clearly demonstrate that respondents have succeeded in establishing that the payment made by the appellant to the tune of Rs.40,83,051/- was only towards purchase of maize.
Further, the learned counsel would vehemently argue and submit that a false claim is laid by the appellant in respect of a sum of Rs.40,83,051/-. To buttress his arguments, he would submit that the contention of the appellant that maize was never purchased from respondents-first defendant-company,
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but it was purchased from individual farmers is totally false and the said averment is not at all corroborated by cogent and clinching evidence. On the contrary, the learned counsel would submit the appellant has created documents. To substantiate his contention, he would take this Court to the receipts relied on by the appellant-plaintiff vide Exs.P19 to P46 and would challenge the very authenticity of the receipts and would request this Court to examine the signatures of seller and purchaser on the receipts. Though the receipts are pertaining to different persons, however, he would submit that the initials of buyer and purchasers on all the receipts are same. In this background, he would submit to this Court that no credibility can be attached to the receipts.
Learned counsel would further submit to this
Court that Ex.P19 to P46 receipts are used for two transactions and when a complaint was lodged with
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the authority, the APMC, Harihar, has issued notice as per Ex.D17.
The learned counsel in support of his contentions, has relied on the judgment rendered by the Hon’ble Apex Court in Vijay .vs. Laxman and another reported in 2013(3) Crimes 246(SC) and would submit to this Court that the appellant-firm having issued a cheque for a sum of Rs.40,83,051/cannot contend that the cheque was not issued for discharge of any debt or liability and a presumption would arise against the drawer of the cheque unless the same is rebutted by producing cogent and clinching evidence to prove that the cheque was not issued towards discharge of lawful debt. He has also relied on the judgment of this Court in Sangappa Basappa .vs. Chidananda Basawantraya reported in [1980(2) Kar.L.J. 202] and would submit that a cheque drawn, presented and paid is by itself no
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evidence of money lent or advanced by the drawer to the payee. Relying on these two judgments, he would submit that a mere issue of a cheque in favour of the payee by itself would not be evidence of a loan, unless the drawer of the cheque establishes by clinching evidence that the cheque was infact loaned to the payee. Relying on these judgments, the learned counsel submits the appellant-plaintiff has miserably failed to prove the initial burden of payment of Rs.40,83,051/-was towards loan. He would further rely on the judgment of the Hon’ble Apex Court in
Gopal Krishnaji Ketkar .vs. Mohamed Haji Latif
and others reported in AIR 1968 SC 1413 and would submit that appellant-firm is a registered partnership firm and hence, ought to have produced the accounts maintained by the partnership firm. Had the appellant-firm produced the relevant books of accounts to justify its contention that Rs.40,83,051/-
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was paid as hand loan and not towards purchase of maize, the said document would have effectively adjudicated the controversy between the parties and would contend that appellant-plaintiff has deliberately withheld the account-books of the firm and accordingly, an adverse inference needs to be drawn.
“1. Whether the finding of the trial Court that the appellants-plaintiff have failed to establish lending of hand loan of Rs.50,83,051/to the respondentsdefendants is perverse and contrary to evidence on record?
2. Whether the finding of the Court below that respondents-defendants have proved
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that payment of Rs.40,83,051/- by the appellant was towards purchase of 6,099 bags of maize and not towards hand loan as alleged by the appellant-plaintiff is erroneous?”
3. What order?"
parties and we have reassessed the entire oral and documentary evidence.
9. FINDINGS ON POINT Nos.1 and 2:
The appellant- firm has filed the present suit for recovery of money by specifically contending that Syed Khaleel Sab.B., who is the first partner of the appellant-firm is also running a proprietary concern under the name and style of “M/s. Dosthana Traders" at Shimoga Road, Harihara. It is specifically contended that the proprietary firm of the first partner of the plaintiff-firm is into wholesale dealer and supplier of
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maize. The appellant-firm has also contended that the said Syed Khaleel Sab has good relationship with respondent No.2-defendant No.2. The appellant-firm has further averred that second respondent-defendant No.2 approached for financial help for a sum of Rs.50,00,000/-. Their further case is that in view of the good relationship, the first partner of the plaintifffirm had lent a hand loan of Rs.50,83,051/-. It is the specific case of the appellant-firm that though defendant No.2 in partial discharge of loan has repaid Rs.10,00,000/-, the balance amount of Rs.40,83,051/- is not repaid by the respondentsdefendants inspite of repeated requests. This compelled the appellant-firm to issue legal notice. The appellant-firm has further contended that instead of discharging the balance loan amount, the respondents-defendants have come up with a frivolous notice as per Ex.P16 and have taken a defence that a
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sum of Rs.40,83,051/- was paid by appellant-firm towards purchase of maize. Hence, the appellant was compelled to file the present suit for recovery of the amount. The defendants though admit for having availed hand loan but however, what is disputed is the quantum. The defendants have assertively stated in their reply notice as well as written statement that only a sum of Rs.10,00,000/- was borrowed from the appellant-firm and the same is discharged. In so far as Rs.40,83,051/- is concerned, the defendants have seriously disputed the alleged loan transaction and contended that the same was towards purchase of maize.
The appellant having filed recovery suit and the same being seriously disputed by the defendants, the question of lending hand loan to defendants is at issue and the burden of proof is on the plaintiff-firm. Since plaintiff-firm is asserting that the defendants have
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availed loan, we have examined the documentary evidence produced by the appellant-firm. To counter the allegations made by the defendants in reply notice, at para 9(a), the appellant-firm has made an attempt to make out a case that M/s.Dosthana Traders, Harihara, has not at all purchased maize from defendants. To counter the defence of defendants, the appellant-firm has relied on Exs.P19 to P46-receipts. On careful examination of the said receipts, it is clearly forthcoming that on all the receipts, same initials of purchaser and buyers are found. It is not the case of the appellant-firm that the entire quantity of maize was purchased by a individual farmer. It is their specific case that it was purchased from various persons. To corroborate this contention, they have produced receipts at Ex.P19 to 46. If maize is purchased by the appellant-firm from various farmers, the initials of seller invariably cannot be the
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same. The buyer being the sole proprietor firm, that the initial obviously has to be identical in all the receipts. So far as sellers are concerned, the signatures need to be of every individual who has offered to sell the maize. In this background, we are of the firm view that the receipts as per Exs.P19 to 46 are set up by the appellant-firm and are concocted and no credence can be attached to these receipts.
If these receipts are removed, there is absolutely
no evidence available on record to establish two material facts. One, that the appellant-firm has lent a hand loan of Rs.50,83,051/- and second one is that appellant-firm has not purchased any maize from defendants-company at the relevant point of time relating to the controversy between the parties. If appellant–firm has lent the hand loan of Rs.50,83,051/then it was incumbent on the appellant-firm to produce the book of accounts and
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audits, which could have clearly reflected the lending of hand loan to the respondents. The appellant–firm is into the manufacturing of rice and is into trading. If the general business of the appellant-firm is not of accepting and disbursal of loans, they do not stand a good ground of lending any loan. Even the tax returns of the appellant-firm would have been the best evidence. If plaintiff-firm has maintained and saved documents relating to firm's business, the same ought to have been produced. It can also be gathered from the documents placed on record that the appellantfirm and respondent-company are probably having a flourishing business. In this background, an inference has to be drawn that if the appellant-firm is capable of lending a loan of Rs.50,00,000/- without interest, probably, it would indicate that the total sales of appellant-firm cannot be less than a crore in a financial year. This would invariably call for an audit.
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All these material documents are not placed on record. In this background, the judgments relied on by the learned counsel for defendants rendered in Gopal Krishnaji Ketkar's case supra would squarely apply to the case on hand. An adverse inference has to be drawn against the appellant-firm for withholding all documents relating to the firm’s business transaction. The plaintiff-firm is asserting that defendants have availed loan. If books of accounts were produced, that would have clinched the issue. Withholding of original documents pertaining to firm's accounts, casts reflection on the veracity of the appellant's case.
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issued by them. The defendants have specifically stated that they have supplied 6,099 bags of maize and this payment is towards purchase of said 6,099 bags of maize. To corroborate this material aspect, the respondents would rely on Ex.D8. Ex.D8 relied on by the defendants indicates that the first partner of the plaintiff-firm namely B. Syed Kaleel Sab, who is the sole proprietor of M/s.Dosthana Traders, Harihara, has purchased 6,099 bags of maize at the rate of Rs.711.11. Ex.D9 is the permit bearing No.9556 issued by the Agricultural Marketing Department, Harihara. The permit clearly indicates that respondents-company has transported 6,099 bags totally weighing 5,74,180 Kgs. The said permit also indicates that the respondent-company has paid market fee and there is also reference to Bill No.119. The bill No.119 referred to at Ex.D9 tallies with the cash credit bill issued by the first respondent-company
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under which 6,099 bags of maize was sold to the plaintiff's first partner's proprietary firm namely M/s. Dosthana Traders. The purchase amount is mentioned as Rs.40,83,051/-. On perusal of Ex.D10, which is the letter of APMC, it is clearly evident that M/s.Dosthana Traders, has purchased 5741 quintals of
maize from respondents-defendants. In the said endorsement at column No.2 there is a reference to purchase made by M/s.Dosthana Traders from respondents-company, the quantity is shown as 5741 quintals and the purchase amount is shown as Rs.40,83,051/-. In Ex.D10 there is a reference to permit number and also the bill number 119 dated 11.10.2007. Though during trial the plaintiff-firm has tried to make out a case that the prevailing price of maize was Rs.550, however, the said contention stands falsified as per Ex.D2. In Ex.D2 it is forthcoming that appellant-firm having purchased
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maize from respondents-company as well as from other farmers has proceeded to sell the same to M/s.Pioneer Feeds and Poultry Products Private Limited, Pongaluru. On perusal of Ex.D2, it is clearly evident that appellant-firm has sold maize at the rate of Rs.761.11/-. Hence, the contention of the appellant-firm that the prevailing price of maize was Rs.550/- per quintal cannot be believed. Infact the prevailing rate as per Ex.D8, where it is shown as Rs.711.11/- per quintal appears to be more probable. The appellant-plaintiff and respondents-defendants are dealing in wholesale business of agricultural products and in such business, there cannot be such a huge margin. Even otherwise, this Court has already held that the receipts produced by the appellantplaintiff as per Ex.P19 to 46 are concocted and cannot be looked into at all. On perusal of Ex.D14 it is also forthcoming that M/s.Dosthana Traders has received
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6,099 bags of maize from the respondent-company which was transported through trucks and M/s.Dosthana Traders in turn has transported the same through Wagon. Even in Ex.D14, it is forthcoming that the quantity supplied is 6,099 bags. Even if the receipts relied on by the appellantplaintiff as per Exs.P19 to 46 are taken into consideration, the said receipts still would not come to the aid of the appellant-plaintiff in disproving the supply of maize by respondent-company as per Ex.D8. The appellant might have purchased maize from other parties but the same will not disprove the fact of sale of 6,099 bags of maize by first respondent-company to appellant-firm at the rate of Rs.711.11/- per quintal. Even on this count, we are of the view that the appellant firm would fail and suit is liable to be dismissed.
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On perusal of Exs.D16 and D17 and 18, it is
clearly evident that appellant-firm has indulged in creating concocted receipts and the competent authority had issued a notice calling upon the appellant-firm to furnish the details of the business transactions for the relevant period and is also called upon to pay the market fee. The competent authority has also come to the conclusion that the appellantfirm has indulged in using the same receipts for different transactions.
The appellant-plaintiff except bald assertion in the plaint that respondent-company had availed hand loan of Rs.50,83,051/-, there is absolutely no evidence on record to establish the claim. Per contra, respondents-Defendants have placed on record and produced clinching evidence. The plaintiff-appellant having filed the recovery suit is bound to prove the case as alleged by them in the plaint. Having regard
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to the magnitude of amount involved in the case, the plaintiff-firm have not chosen to produce the relevant accounts to establish the alleged payment of loan of Rs.50,83,051/-. We would not hesitate to hold that the conduct of the appellant in withholding evidence may be attributed to a supposed consciousness, that the evidence, if produced, would go against them. According to Wigmore on Evidence, the inference to be drawn is that tenor of such evidence not produced is unfavourable to the plaintiff's case and when best evidence is withheld, adverse inference needs to be drawn. Exs.D9 and D10 are public documents and have got probative values and the respondents have succeeded in corroborating the same with other clinching evidence that the payments made by the appellant-plaintiff is towards purchase of maize. In this background, the contention raised by the counsel for the appellant-plaintiff that the respondents-
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defendants have not examined the author of the documents issued as per Exs.D9 and D10 is not sustainable. The above said documents are public documents and fall squarely under Section 79 of the Indian Evidence Act. The law does not insist on the maker of the evidence to examine the witness. We are of the view that plaintiff has failed to establish the payment of loan as alleged and there is no iota of evidence on this disputed question.
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the tune of Rs.40,83,051/- is towards purchase of maize. The clinching rebuttal evidence adduced by respondents needs to be accepted and the same appears not only to be correct version based on preponderance of probabilities but the same would indicate and enable this Court in arriving at a definite conclusion.
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raised in the appeal memo questioning the findings of the trial Court are not sustainable.
the points formulated by this Court are answered in the negative.
Sd/JUDGE
Sd/JUDGE
ALB
2 issues framed by the court
Whether the trial court's finding that the appellants-plaintiff failed to establish lending of a hand loan of Rs.50,83,051/- to the respondents-defendants is perverse and contrary to evidence on recor
Whether the finding that the payment of Rs.40,83,051/- by the appellant was towards purchase of 6,099 bags of maize and not towards hand loan, as alleged, is erroneous?
Colour shows how this judgement treated each authority
Vijay .vs. Laxman and anotherReferred¶5
2013(3) Crimes 246(SC)
Sangappa Basappa .vs. Chidananda BasawantrayaReferred¶5
[1980(2) Kar.L.J. 202]
Gopal Krishnaji Ketkar .vs. Mohamed Haji Latif and othersApplied¶9
AIR 1968 SC 1413 · Who else cites this
2 provisions across 2 enactments
M/s B S K Rice Industries
M/s Chinmadhu Agro Sales Private Limited
Dr Ramprasad Kulkarni
Smt Gowri Ramprasad Kulkarni
S.Sujatha
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
