Dismissed

Babu Lal v. Ram Sahay

Rajasthan HC5 Feb 2016CFA/77/1995

Case brief

AI extract

What is this about?

In a civil first appeal regarding damages for non-delivery of goods, the High Court of Rajasthan dismissed the appeal against a decree. The challenger, an appellant-defendant, argued that a carbon copy Goods Receipt was inadmissible and forged. The court relied on the defendant's earlier representation of liability in a reply to notice to uphold the trial court's finding of liability.

What did the court decide?

The appeal was dismissed, and the decree of the trial court was affirmed.

Babu Lal Vs Ram Sahay — Contract and Commercial Disputes | Rajasthan HC (2016)

¶1

1/6

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

¶3

ORDER

¶4

S.B. Civil First Appeal No. 77/1995 Babulal vs. Ram Sahay

¶5

Date of Order: 5^th February, 2016

¶6

HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

¶7

Mr. S.C. Goyal with Ms. Sukirti Singh, for the appellant. Mr. S.R. Surana Sr. Counsel with

¶8

Mr. Rakesh Trivedi, for the respondent.

¶9

The present first appeal has been filed by the appellantdefendant, challenging the judgment and decree dated 23.12.1994 passed by the court of Additional District Judge, Malpura (hereinafter referred to as “the trial court”) in Civil Suit No.10/93 (89/91 and 71/92), whereby the suit filed by the plaintiff-respondent was decreed against the defendant-appellant.

¶10

Ram Sahay, the plaintiff-respondent was having a firm under name and style of Anandilal Tikam Chand. The defendant-appellant was having a firm called Agarwal Transport Company. The plaintiffrespondent had set out a case that he had entrusted 105 gunny bags of mustard seeds weighing 89 quintal and 25 kg to the appellant-defendant. It was further pleaded in the plaint that the appellant had issued a bilty (Goods Receipt), carbon copy of which has been exhibited as Exhibit-1. The goods entrusted had not reached the consignee. Since goods had not reached at the destination, on 16.8.1992 vide Exhibit-6, the plaintiffrespondent had issued a notice through his counsel. The said notice on 28.8.1991 was replied on behalf of the appellant-defendant by Mr. Phool Chand Gupta Advocate. In the reply, Mr. Phool Chand Gupta on behalf of

¶11

2/6

¶12

the appellant-defendant admitted issuance of Goods Receipt (G.R.) but refused that he is liable to pay Rs.96,532.80/- as damages.

¶13

Narrating the above facts, the plaintiff-respondent filed a suit seeking damages to the extent of Rs.96.532.80/-. In the written statement filed, all the facts pleaded in the plaint were denied. The entrustment of 105 gunny bags of mustard was also denied. After conclusion of pleadings, the trial court had formulated following issues:-

¶14

1- कय� व�द� म��प�र� म� आ�नद�� ट��मचनद � ��म स व�प�र �रत� ह#?

¶15

2- कय� पनतव�द� म��प�र� म� अगव�� ट��सप�ट' �मप�� म स म�� क�र�य पर म�� द)सर� जगह पह�च�� ट��सप�ट' �� धनध� �रत� ह#? -व�द�

¶16

3- कय� व�द� � पनतव�द� �� कद. 20.06.91 �� व�द �� कम स�0 3 म� वर.त म�� व�द �� कम स�0 4 म� वर.त ग�य� आय� एण1 द�� नम� जयप�र �� न1��वर �र� ह त� कदय� इस� एवज म� पनतव�द� � व�द� �� अप�� दसत��त� न4लट� स�0 1647 पद�� ।

¶17

4- कय� पनतव�द� � उक म�� त� जयप�र ग�य� आय� एण1 द�� नम� पर न1��वर क�य� और � ह� व�द� �� न1��वर क�य�? -व�द�

¶18

5- कय� व�द� � रनजसट1' ��टटस कद0 16-8-91 �� ग�त जव�4 पनतव�द� � कदय�?

¶19

6- कय� व�द �� कम स�0 3 म� वर.त म�� मत 96532=80 प#स ह�त ह; और इस पर बय�ज एव� हज�'� �� र�न= 1447=20 प#स ह�त� ह#? -व�द�

¶20

3/6

¶21

7- कय� आ�नद�� ट��मचनद 4�न�ग ह# और ववस�य उस� �� ह# व व�द� इस फम' �� प�ट'�र ह#, यह प�ट'�रन=प अ�रनजसट1' ह# इसन�ए यह व�द च�� य�गय �ह@ ह#?

¶22

8- कय� अ� � व�द� �� व�द प = �र� �� अनध��र �ह@ ह# और आ�नद�� ट��मचनद इस व�द म� आवशय� पक��र ह;।

¶23

9- अ��त�ष

¶24

��ट :- त�� स�खय� 5 �� न�रसत �र� उस� सE�� पर न�मन�न�त त�� 4��ई ह# :-

¶25

5- व�द� � अप� अनधवक� � जटरय पनतव�द� �� कद�� 16.08.91 �� नवव�दगसत म�� 4�4त ��टटस पद='-6 कदय� और पनतव�द� � इस�� जव�4 जटरय अनधवक� पद='-8 कद�� 28-891 व�द� � अनधवक� श� ��ढ� �� भ ज�र उसम� नवव�दगसत म�� न4लट� द� पनतयJ म� 4��र व�द� �� स�प�द' �र�� सव��र क�य� ह#। ज� पनतव�द� द�र� ट�नसप�ट' �� ववस�य �र�� द=�'त� ह# और पनतव�द� उक सव��र�नक स प�4नद ह#।

¶26

कय� जव�4 द�व �� चर. स�खय� 7 म� वर.त तर�� स व�द� � पद='-1 (तE��नEत न4लट�) म� म ट टरय� एलट =� क�य� ह#? यकद ह�� त� इस�� व�द पर कय� असर ह#?”

¶27

All the issues were decided against the appellant-defendant and the suit of the plaintiff was decreed and the appellant-defendant was held liable to pay Rs.97,980/- to the plaintiff-respondent along with 6% interest.

¶28

4/6

¶29

Heard Mr. S.C. Goyal assisted by Ms. Sukirti Singh counsel for the appellant and Mr. S.R. Surana the learned Senior Counsel assisted by Mr. Rakesh Trivedi, appearing for the respondent.

¶30

The learned counsel for the appellant has submitted that document which is Goods Receipt/bilty is a carbon copy and the same is not admissible in evidence, as no prayer was made before the court to lead secondary evidence. It is further contended that even for the sake of assumption if document i.e. bilty/G.R. is taken into consideration, no effort has been made by the plaintiff-respondent to prove handwriting of the appellant-defendant thereupon. The learned counsel for the appellant has contended that procedure laid in Section 73 of the Indian Evidence Act to prove handwriting of the appellant-defendant on the document has not been followed. It is further contended that besides above two legal submissions, for appreciation of evidence, it is required to be noted that in normal business practice original Goods Receipt/bilty is handed over to consignor. In the present case there was no necessity to make departure from the well settled norms and therefore, this Court has to infer that the document Exhibit-1 is a forged and fabricated document.

¶31

Referring to the cross-examination of plaintiff Ram Sahay, who appeared as P.W.1, the learned counsel for the appellant has submitted that witness miserably failed to prove source from which he acquired 105 gunny bags. He has referred to the cross-examination, where he admitted that he had purchased the goods from Mandi (Grain Market) but from whom he had purchased, the witness was not able to disclose. The learned counsel for the appellant has further submitted that the witness admitted that as and when any truck leave agricultural market (Krishi Mandi), then entry is made at the out-gate of Mandi. In the present case, no such document was proved. The learned counsel for the appellant has further referred to the cross-examination of Ram Sahay (P.W.1) and urged that his testimony should be discarded, as Ram Sahay has admitted that when bilty was drawn, he was sitting outside shop

¶32

5/6

¶33

taking his tea. Therefore, he cannot say in definite terms whether same was drawn by the appellant-defendant or his son.

¶34

All above arguments raised on behalf of appellant-defendant pale into insignificance if reply to the notice Exhibit-8 is perused.

¶35

It is a case of the respondent-plaintiff that he had sent notice Exhibit-6 through his counsel Sujan Mal Lodha and reply to the notice Exhibit-8 was given by Mr. Phool Chand Gupta Advocate at Tonk on behalf of the appellant-defendant. It will be pertinent to reproduce following portion of reply to the notice Exhibit-8, as under:

¶36

“आप� ववह�र� � नवश�स पर न4लट� ��ट �र ज#स� उस� �ह� उस� प��र � म�� वह ट� �� हव�� द �र न4लट� 4��द� E�, द� ��नपय�� न4लट� �� आप� ववह�र� � स�प�द' �र द�, आप� ववह�र� उस वक न4लट� �टव�� ट� � ड�ईवर �� स�E � �र आय� E�, नजस� हसत�कर च�� म� म र ववह�र� � प�प क�य ह;, म र ववह�र� �� आप� ” ववह�र� � व�सतनव� रप स ��ई म�� ह@ स�भ��य� ह#।

¶37

Finding himself on uneven turf, in view of above portion of reply to the notice Exhibit-P/8, Mr. S.C. Goyal, the learned counsel for the appellant has urged that it has been consistent stand of the defendant-appellant that he never engaged Mr. Phool Chand Gupta and he was never instructed to reply to the notice and hence, reply to the notice proved as Exhibit-8 be ignored. The learned counsel for the appellant has submitted that in the initial suit filed, no averment was made regarding reply received. After the defendant-appellant had filed the written statement, amendment of the plaint was sought and Para-5A was incorporated in the amended plaint wherein it was stated that Sujan Mal Lodha counsel for the appellant had received reply from Phool Chand Gupta counsel for the defendant-appellant.

¶38

It is urged that Phool Chand Gupta was never engaged as a

¶39

counsel.

¶40

6/6

¶41

The argument raised is not acceptable. The argument has only been raised by the defendant who was in the mode of denial. Phool Chand Gupta expired during the pendency of the trial. His Junior Chhote Lal Solanki (P.W.7) appeared in the court as he had practised as junior to Phool Chand Gupta from 1978 to 1985. At the very first instance, when the defendant-appellant learnt about reply of the notice given on his behalf, he has not raised any hue and cry. No complaint was filed against Phool Chand Gupta. Phool Chand Gupta admittedly has been a counsel of standing in the district Tonk. It is unbelievable that he himself will reply to the notice received by the defendant-appellant. It is too late in the day for the defendant-appellant to wriggle out of the averment made in the reply to the notice Exhibit-8. In fact, reply to the notice is a crucial document, which seal fate of the defendant-appellant otherwise he would have succeeded by raising legal issues that a document should be proved to the hilt by the party who relies on it.

¶42

Taking totality of circumstances, this Court is of the view that no case is made out to cause interference in the impugned judgment. Hence, by affirming the finding given by the trial court, the present appeal being devoid of merit is hereby, dismissed.

¶43

(KANWALJIT SINGH AHLUWALIA), J.

¶44

Mak/56

¶45

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” Anil Makawana P.A.

Babu Lal v. Ram Sahay

Case brief

What is this about?

What did the court decide?

Babu Lal v. Ram Sahay

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ishwar Singh andANR Vs State Finance Department andANR

Amti Sharma andORS Vs State of Raj and Ors.

Pappu Vs State of Rajasthan through Pp

Meena Rawat Vs State Medical and Healthors

Bhupendra Vs State of Rajasthan through Pp

Om Prakash Dhanwani Vs Union of India