Second appeal by the defendant against concurrent decrees ordering payment for gold ornaments purchased on credit from a jeweller. Both courts relied on books of accounts, tax invoice, legal notice and a dishonoured cheque. The High Court found no substantial question of law and dismissed the appeal at admission stage.
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.
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100027 OF 2018
BETWEEN:
NAMA SUNIL S/O LATE N.S.NAGARAJ, AGE: MAJOR, OCC: BUSINESS, R/O. NAMA NAGARAJ & SONS JEWELLERS, M.G. ROAD, CHINTAMANI-563125, CHIKKABALLAPUR DISTRICT.
…APPELLANT
(BY SRI MAHANTESH R. PATIL, SRI G.A.KORI, SRI SHIVAREDDY, ADVOCATES)
AND:
Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
MAHALASA NARAYANJI JEWELLERS REPRESENTED BY ITS AUTHORISED SIGNATORY, SRI VAIBHAV S. VERNEKAR, AGE: 32 YEARS, OCC: BUSINESS, R/O. HOUSE NO. 319/C, ROY ROAD, TILAKWADI, BELAGAVI.
…RESPONDENT (BY SRI KRISHNA KUMAR JOSHI, ADVOCATE FOR SRI SANGRAM S.KULKARNI, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 06.09.2017 PASSED IN R.A.NO.115/2016, BY THE PRINCIPAL DISTRICT JUDGE AT BELAGAVI AND ALSO TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.03.2016 PASSED IN O.S.NO.141/2009, BY THE I ADDITIONAL SENIOR CIVIL JUDGE AT BELAGAVI, IN ORDER TO DISMISSING THE SUIT OF PLAINTIFF, BY ALLOWING THIS APPEAL.
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the defendant challenging the judgment and decree dated 06.09.2017 passed in R.A.No.115/2016 by the Principal District Judge, Belagavi2 and the judgment and decree dated 10.03.2016 passed in O.S.No.141/2009 by the I Additional Senior Civil Judge and CJM, Belagavi3 whereunder, the suit for recovery of money has been decreed by the Trial Court and the defendant has been directed to pay a sum of ₹3,63,240/- together with interest at 12% p.a. from 08.01.2007 till the date of payment and in the appeal filed by the defendant before the First Appellate Court, the judgment and decree passed by the Trial Court has been affirmed.
1 Hereinafter referred to as the ‘CPC’
2 Hereinafter referred to as the ‘First Appellate Court’
3 Hereinafter referred to as the ‘Trial Court’
from the date of sale. That the plaintiff has maintained its
books of accounts wherein the transactions between the parties is recorded. That the jewelry sold to the defendant at relevant point of time was valued at ₹3,63,240/- and the value as on the date of the suit was ₹6,87,929/-. The defendant having not repaid the amount, as per what was
agreed between the parties, the plaintiff both orally as well as vide legal notice dated 04.03.2009 called upon the defendant to clear the dues. The legal notice was served on the defendant on 09.03.2009 despite which the demands made in the notice not having been complied with, the plaintiff has filed the suit.
value of the gold from the date of purchase. It is the further contention of the defendant that he has never
made any dealings with plaintiff and the plaintiff-firm is not at all known to him. The case of the plaintiff has been
denied in detail by the defendant. The defendant has also denied receipt of the legal notice.
2. Whether the plaintiff proves that defendant purchased the gold ornaments weighing 542.9 grams from the plaintiff on 08-01-2007 on credit basis & agreed to repay the amount within 45 days?
3. Whether the plaintiff proves that defendant fails to pay the amount as agreed which values Rs.3,63,240/- at the time of sale and now it values Rs.6,87,929?
7) What order or decree?”
was examined as PW.1. Exs.P.1 to P.16 have been marked in evidence. The defendant examined himself as DW.1. No documentary evidence has been adduced. The Trial Court by its judgment and decree dated 10.03.2016 decreed the suit and passed the following order:
“Suit of the plaintiff is decreed with costs.
It is declared that plaintiff-firm is entitled to recover a sum of Rs.3,63,240/- from the defendant with future interest at the rate of 12% per annum on the aforesaid sum from 08-01-2007 till the final payment.
Draw decree accordingly.”
said appeal and contested the same. The First Appellate Court framed the following points for consideration:
2. Whether the interference of this Court is necessary?
3. What Order?”
said application was filed at the time of final hearing of the suit and as per the amendment sought to be made, various lacunas in the case of the plaintiff were sought to
be filled up, which same was evident from the contradictions in the case put forth by the plaintiff. It is further contended that the documents on the basis of which the plaintiff has relied upon as the basis of their claim are not required to be relied upon since there are interpolations in the said document. That PW.1 was not properly authorized on behalf of the plaintiff to adduce evidence.
i) To prove the aspect that the plaintiff is a wholesale dealer of gold ornaments carrying on the sale of gold jewelry in Belagavi, apart from the oral evidence of one of the proprietors of the plaintiff-firm, the plaintiff has produced Ex.P.10 - the registration certificate issued by the competent authority in name of late Shantaram N. Vernekar. It discloses that the plaintiff-firm is registered under the Companies Act;
ii) Ex.P.10 is issued by the Assistant Commissioner of Commercial Tax, Belagavi. Ex.P.11 is also a registration certificate issued by the Assistant Director, District Industrial Centre, Belagavi;
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
Court has recorded the following findings:
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
that the defendant being the customer of the plaintiff-firm has purchased stone-studded gold ornaments weighing 542.9 gms., on credit basis vide bill No.41 on 08.01.2007;
vii) As the defendant did not make the payment of the amount, the plaintiff-firm issued a legal notice dated 04.03.2009 (Ex.P.1) to the defendant calling upon him to make payment. Despite the receipt of the said notice, as per acknowledgement Ex.P.2, the defendant has
failed to make payment. Ex.P.2(a) is the signature of the defendant;
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
Ex.P.7(a). The contents of Ex.P7 are pleaded in the plaint;
xi) Ex.P.8 is the pass book of the plaintiff-firm and Ex.P.8 is the relevant entry which shows that the cheque issued by defendant bearing No.887565 for ₹4,60,000/- on 02.06.2007 came to be dishonoured for want of funds;
xii) Ex.P.14 and Ex.P.15 are cash books of plaintifffirm. They have been produced to indicate that the transaction has been recorded in the daily cash book maintained by the plaintiff. The relevant entry in Ex.P.14 dated 08.01.2007 indicates that 542.9 gms., of gold worth ₹3,63,240/- has been purchased in the name of M/s.Nama Nagaraj and Sons Jewellery on credit basis. This clearly supports the case of the plaintiff-firm;
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
xiii) From a reading of Section 34 of the Indian Evidence Act, it becomes clear that entries made in the books of accounts which are kept regularly in the course of business are having relevancy. A reading of Section 34 indicates that the entries in he books of accounts have no conclusive proof and they are to be considered along with the other relevant corroborative evidence;
plaint;
transaction and the liability to pay the amount claimed by the plaintiff. If at all he had not done the sale transaction with the plaintiff-firm, he ought to have given his reply to Ex.P.1–legal notice;
xix) Though, it is the contention of the plaintiff that the value of 524.9 gms., of gold was at ₹3,63,240/- in the year 2007 which was valued at ₹6,87,929/- as on the date of the suit, except pleading of the plaintiff, no iota of evidence is produced to prove the same. Hence, the plaintiff has failed to prove that the value of said gold was ₹6,87,929/- as on the date of the presentation of the plaint.
has held issue No.4 in the affirmative, issue No.5 in the negative and issue No.6 partly in the affirmative holding that the plaintiff firm is entitled to recovery of
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
₹3,63,240/- together with interest at 12% p.a., from the defendant.
i) Ex.P.10 and Ex.P.11 sufficiently establish that one Shantaram N. Vernekar was the proprietor of the plaintiff-firm;
ii) Ex.P.9 and Ex.P.12 disclose that the proprietor of the firm Sri.Shantaram N. Vernekar died on 15.11.2008 and hence, the Trial Court has recorded a finding that the said Shantaram was the proprietor of the plaintiff-firm at the time of the transaction under consideration dated 08.01.2007;
iii) Ex.P.3–survivorship certificate shows that Radhabai (wife) as well as Vaibhav and Sameer
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
(sons) are the survivors of the deceased Shantaram Vernekar;
Balance Sheet as on 31.03.2007’. Out of this, Schedule ‘G’: Sundry Debtors show the balance of ₹3,63,240/- against the name of the defendant-firm ‘M/s Nama Nagraj Jewellers’;
the relevant point of time. Hence, it recorded a finding rejecting the challenge made by the defendant assailing the validity of Ex.P.7(a).
transaction in question and to recall PW.1 to mark some documents. The same was rejected by the Trial Court on the ground that at the belated stage, the plaintiff cannot be allowed to amend the plaint, which order was upheld in writ petition. That no adverse inference can be drawn against the plaintiff with regard to the dismissal of the application.
business. The Trial Court has granted the decree of the suit for a sum of ₹3,63,240/- and rejected the claim made regarding the market value of the gold at ₹6,87,929/-.
02.06.2007 as forthcoming from the pass book of the plaintiff-firm (Ex.P.8), is a circumstance that would go against the case of the defendant, since although the defendant had put forth a case of bare denial the documents on record itself would indicate that he had transaction with the plaintiff-firm.
NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
the above appeal is dismissed as being devoid of merit at
the stage of admission itself.
for stay is also dismissed .
Sd/JUDGE
SH upto para 11 Pj, CT:GSM List No.: 1 Sl No.: 31
1 issue framed by the court
Whether the concurrent findings of the trial and first appellate courts on the credit sale of gold and the defendant's liability could be disturbed in a second appeal under Section 100 CPC?
2 provisions across 2 enactments
Nama Sunil
Mahalasa Narayanji Jewellers represented by its authorised signatory Vaibhav S. Vernekar
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
