Sukhchain Singh and Ors. Vs M/S Harbans Lal Sanjay Kumar and Ors.

As pleaded, respondent No.1, which is a partnership concern, is doing the business of commission agency at Abohar and maintaining its account books truly and properly. As per the further averments, appellant No.1 had a current and running account with the respondent1Firm. He had also instructed the respondent1Firm to advance amounts to defendants No.2 to 5 (i.e. appellants No. 2 and 3 and proforma respondents No.2 and 3) and thus, defendants No.2 to 5 were operating the account of defendant1appellant No.1 under his

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instructions and were borrowing the amounts in his account. It is the further case of the plaintiff1respondent No.1 that the defendants had borrowed various amounts as per the account books and as reflected in the suit. The amounts deposited/repaid by the defendants were duly adjusted and thereafter, an amount of �5,94,967.14 was due in the account of the defendants to which they were legally, jointly and severally liable to pay and the respondent1Firm was entitled to recover the same. Since the defendants failed to pay the said amount despite repeated requests, the respondent1Firm filed the instant suit for recovery through one of its partners.

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Upon notice, the defendants appeared and filed written statement raising various preliminary objections stating that balance in the account books of the plaintiff1Firm was not struck daily and the entries made in the name of the defendants were wrong, false, forged and fraudulent and were not binding upon their rights. It was further alleged that the plaintiff1Firm has not complied with the provisions of Order VII Rule 17 CPC and Arun Kumar was not the registered partner of the plaintiff1Firm. It was further stated that defendant No.1 never opened any current and regular account with the plaintiff1Firm and never borrowed any amount as alleged. There was no custom prevalent in Mandi Abohar to charge interest by the commission agents from their customers. The plaintiff has concealed material facts from the Court. The suit was not maintainable in the present form and was liable to be dismissed.

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Replication was filed controverting the averments made in the written statement and on the basis of the pleadings of the parties,

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the following issues were framed by the trial Court:

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Whether the plaintiffs are entitled to recover the suit amount? OPP

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Whether plaintiffs are entitled to recover the interest if so at what rate? OPP

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Whether the suit is within limitation? OPP

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Whether the plaintiffs have no cause of action to file the present suit? OPD

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Whether the suit is not maintainable in the present form? OPD

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Whether the suit of plaintiff is liable to be dismissed with special costs? OPD

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Relief.

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Parties led evidence in support of their respective claims. After hearing learned counsel for the parties, the trial Court vide its judgment and decree dated 12.05.2010 partly decreed the suit of the respondent1Firm with proportionate costs for recovery of �3,45,047.14 along with interest @ 12% per annum from the date of last transaction till filing of the suit, 9% per annum from the date of filing of the suit till decree and 6% per annum from the date of decree till its actual realization.

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Aggrieved from the aforesaid judgment and decree of the trial Court, defendants No.1, 3 and 4 filed an appeal, which was also

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dismissed by the first appellate Court vide its judgment and decree dated 05.10.2011. While dismissing the appeal and affirming the findings of the trial Court, the lower appellate Court observed as under:

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Still not satisfied, defendants No.1, 3 and 4 have filed the instant appeal submitting that the following substantial questions of law arise in this appeal:

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(a) Whether the sole evidence of account books entries could have been relied upon though the original account books were not produced in the Court at the time of filing of the plaint in violation of mandatory provisions of Order 7 Rule 17 CPC?

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(b) Whether the approach of the ld. Courts below to decree plaintiff1respondent’s suit solely relying upon uncorroborated account books is not violative of Section 34 of the Evidence Act?

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(c) Whether the account book entries allegedly signed by the defendants No.1 and 2, which were not put to said witnesses during their cross1examination even when they termed the same to be forged in their examination in chief, can be said to be proved?

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(d) Whether a decree with joint and several liability against all the defendants could have been passed when it is proved that defendants No.1 and 2 were having separate accounts with plaintiff1respondent and when there is no evidence or any instructions by defendant No.1 to advance amounts to other defendants from his account and when different amounts are shown to have been taken by different defendants?

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(e) Whether the findings of the ld. Courts below are perverse and a result of mis1reading and non1reading

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of the oral as well as documentary evidence on the file?

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On 22.02.2012, after noticing the contentions raised on

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behalf of the appellants, this Court passed the following order:

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“Heard.

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Thereafter, service was completed.

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Learned counsel for the appellants has vehemently argued that as per the provisions of Order VII Rule 17 CPC, it was incumbent upon the plaintiff to have produced the original account books at the time of filing of the plaint. Since original account books were not produced, it cannot be said that the entries in the account books are proved in accordance with law and thus, the courts below erred at law while decreeing the suit merely on the basis of exhibition of the photostat copies of the said entries on record.

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To support his arguments, learned counsel for the appellants has relied upon a judgment of Allahabad High Court in $�%&%'��%()��&%�!%+�,��"')%-�!%+��).-*�!%+�%-/��()0&' � AIR 1965 Allahabad 189 (V 52 C 50) to contend that it was imperative on the plaintiff1respondent to produce original account books at the time of filing of the suit. However, at this stage the following paragraph of the aforesaid judgment, as relied by learned counsel for the appellants, may be perused, which reads thus:

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However, it is not in dispute that the plaintiff1respondent had enclosed the photostat copies of the entries of its account books along with the plaint. This fact also finds mention in the plaint. Even in the list of documents attached with the plaint, which is on record of the trial Court, this fact finds mention. It may further be noticed that the appellants had made an application on 18.10.2005 seeking a direction to the plaintiff1respondent to produce the account books. The trial Court passed the following order on 22.10.2005 on the aforesaid application:

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At this stage, the order dated 18.11.2005 passed by the trial Court may also be noticed, which reads thus:

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Thus, the plaintiff1respondent had produced the account books which were seen and returned by the Court and the application filed on behalf of the appellants was disposed of. Not only this, the appellants further filed an application on 14.02.2006 seeking direction from the Court to the plaintiff1respondent to produce its account books with respect to the dealings of the defendant No.2. The said application was allowed vide order dated 10.03.2006 and the plaintiff1 Firm was directed to produce individual account of defendant No.2 for the period with effect from 1999 till filing of the suit i.e. 14.05.2003. The G�� order dated 30.03.2006 further shows that requisite account books were produced, seen and returned by the Court. It is further a matter of record that the photostat copies of the account books, which were attached with the plaint, were duly exhibited on record of the case and were duly tendered into evidence.

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From a perusal of the facts of the instant case, it emerges that the requirement of Order VII Rule 17 CPC and Order XIII Rule 4 CPC, as explained in �%&%'��%()��*&%�!%+ '�1%'0� (supra), has been duly fulfilled in the instant case. In the aforesaid judgment, it is not held that production of original account books is necessary at the time of filing of the suit. Thus, this Court is of the opinion that due compliance of Order VII Rule 17 CPC has been made in the case.

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Faced with this, learned counsel for the appellants has further argued that mode of proof is not dispensed with by merely exhibiting the documents. According to the learned counsel for the appellants, the account books as produced on record by the plaintiff1

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respondent remained unproved and thus, the same cannot be relied upon against the appellants. According to him, the entries of the account books have not been proved by their author as PW11 appearing on behalf of the plaintiff1respondent has admitted that he has not written the account books.

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At this stage, it may further be noticed that the entries of the account books also bear signatures of defendant No.1 yet the appellants have not specifically denied signatures of defendant1 appellant No.1 on these entries. Though in the pleadings it has been asserted on behalf of the appellants that entries in the account books (which bear signatures of defendant No.1 acknowledging such entries) are false and forged; yet they made no attempt to get compared the signatures of defendant No.1 in the account books with his standard signatures.

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Thus, the argument raised is misconceived as admittedly the entries in the account books have been signed by the appellants. Though it has been stated that the aforesaid entries are forged and fabricated, yet no effort has been made on behalf of the appellants to prove this assertion to the aforesaid effect. There is not an iota of evidence to prove that the aforesaid entries are forged and fabricated. It may further be noticed that appellant No.1 has not denied his signatures on the entries of account books acknowledging the said record. Even he has not made any attempt to get his signatures on the accounts compared with his standard signatures and in view of the implied admission on the part of the appellants with regard to

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accounts, it cannot be said that the same have remained un1 corroborated.

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Learned counsel for the appellants has further relied upon a judgment of Hon’ble the Supreme Court in $�)%-/&%��)%&� ��'2%3*�,��2%)%(*��%-4�!3(0/ AIR 1962 SC 1058 to contend that no person can be charged with a liability merely on the basis of entries in books of accounts even though, such books of accounts may have been kept in the regular course of business and the same can be relied upon only if there is further evidence to corroborate such evidence.

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There is no dispute with the proposition of law as settled by Hon’ble the Apex Court in the aforesaid judgment. However, it may be noticed at this stage that in the aforesaid judgment, Hon’ble the Supreme Court has further opined that when a person fastening the liability accepts the correctness of the books of accounts and does not challenge them, no further independent evidence is required to prove such transactions. In the instant case, appellant No.1 has impliedly accepted the correctness of books of accounts as neither in his pleadings nor in his evidence he had denied his signatures on the entries in the books of accounts. Though the appellants have pleaded that the entries in the books of accounts are forged and fabricated but again it is a matter of record that despite raising such an assertion, the appellants have failed to prove the same by leading any evidence. They have even failed to get signatures of appellant No.1 on the books of accounts compared with his standard signatures and in view

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thereof, no exception can be taken to the concurrent findings returned by the courts below.

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No other argument has been raised.

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Thus, the substantial questions of law, as raised, do not

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arise at all in this appeal.

No merit.

Dismissed.

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Sukhchain Singh and Ors. v. M/S Harbans Lal Sanjay Kumar and Ors.

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Sukhchain Singh and Ors. v. M/S Harbans Lal Sanjay Kumar and Ors.

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