Partly allowed

Girraj Prasad S/O Phool Chand v. Smt. Pancham Katta Proprietor Rajasthan Ves Products Industries

Rajasthan HC4 Nov 2022CFA/13/1992

Case brief

AI extract

What is this about?

The High Court dismissed the appeal maintaining the decree for recovery of the principal amount but modified the interest rate from 18% to 6% per annum under Section 34 of the CPC, as the plaintiff failed to adduce evidence for a higher rate.

What did the court decide?

Impugned decree modified; interest reduced from 18% to 6% per annum on principal from date of suit.

Girraj Prasad S/O Phool Chand Vs Smt. Pancham… — Execution and Attachment | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil First Appeal No.13/1992

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Girraj Prasad S/o Phool Chand, Aged About 60 Years, M/s Johri Lal Shyam Lal Katla Prohit Ji, Badi Chopad, Jaipur.

¶4

----Defendant-Appellant

¶5

Versus

¶6

Smt. Pancham Katta, Proprietor Rajasthan Vex Products Industries, D-17, Meera Marg, Bani Park, Jaipur.

¶7

----Plaintiff-Respondent

¶8

For Appellant(s) : Mr. Arvind Gupta For Respondent(s) : None present

¶9

HON'BLE MR. JUSTICE SUDESH BANSAL Judgment JUDGMENT RESERVED ON: November 4th, 2022 JUDGMENT PRONOUNCED ON: November 9th, 2022

¶10

By way of this civil first appeal filed under Section 96 of the CPC, the appellant-defendant has assailed the decree for recovery of money of Rs.15,998/- and interest thereupon Rs.1,723.80/-, totaling Rs.17,721.80, passed in favour of respondent-plaintiff vide judgment dated 12.11.1991 in Civil Suit No.451/1989 by the District Judge, Jaipur City, Jaipur.

¶11

Relevant facts of the case in brief as culled out from the record, are that the respondent-plaintiff instituted a civil suit for recovery of Rs.15,998/- and interest thereupon Rs.1,723.80/-, totaling Rs.17,721.80, alleging inter alia that plaintiff is manufacturer and vendor of the wax candles and does business in the name of Rajasthan Vex Products Industries. Defendant is proprietor of M/s Johri Lal Shyam Lal and used to purchase wax candles from the plaintiff on credit and cash. Before the occasion of Deepawali festival defendant placed an order to purchase 5501

¶12

(2 of 11)

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[CFA-13/1992]

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Kg wax candles and in pursuance thereof, plaintiff sold/supplied wax candles of Rs.2,600/- vide bill No.1550 dated 10.10.1988, Rs.3,960/- vide bill No.1558 dated 11.10.1988 and Rs.9,438 vide bill No.1561 dated 14.10.1988. The defendant was required to pay the cost of purchased wax candles totaling Rs.15,998/- within a period of one week, however, he did not make payment even after Deepawali, despite demands. Thereafter plaintiff served one legal notice dated 25.01.1989, to which defendant replied and contended that he has not purchased any wax candles and declined to owe, Rs.15,998/- towards plaintiff. Therefore, plaintiff instituted the present civil suit for recovery of cost of wax candles weighing 5501 Kg amounting to Rs.15,998/- and interest thereupon @19% per annum as indicated on bills. The present civil suit for recovery of due amount of bills dated 10.10.1988, 11.10.1988 and 14.10.1988 was instituted on 15.05.1989.

¶15

Defendant submitted written statement, wherein he did not dispute the fact that plaintiff indulged in the business of manufacturing and selling of wax items as also admitted that he himself too carried out the business in the name of M/s. Johri Lal Shyam Lal. Defendant categorically denied to purchase wax candles from the plaintiff and contended that indent and receipts bills in the name of defendant, have been prepared forgedly. Defendant accepted to receive notice from the plaintiff and contended to reply the notice by him. On such defence, prayed to dismiss the suit for recovery of cost of wax candles.

¶16

Learned trial court, on the basis of rival pleadings settled six issues including the issue of relief, as under:-

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(3 of 11)

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[CFA-13/1992]

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“Whether plaintiff is proprietor of Rajasthan Vex Products Industries? Whether defendant is proprietor of M/s Johri Lal Shyam Lal? Whether defendant placed order through indent to purchase 5501 Kg wax candles from plaintiff? Issue No.4 is in respect of purchasing of wax candles by the defendant from the plaintiff on 11.10.1988, 14.10.1988 and 10.10.1988 for Rs.3,960 + Rs.9,438 + Rs.2,600? Issue No.5 is whether plaintiff is entitled to recover the cost of wax candles Rs.15,998/and interest @19% per annum thereupon? Issue No.6 is in respect of the relief.”

¶20

In evidence, from the side of plaintiff, Banwari Lal, who is son of plaintiff and manage the business at plaintiff’s firm appeared as PW-1, Mohan Lal who delivered goods at the shop of defendant appeared as PW-2 and the plaintiff Smt. Pancham Katta herself appeared as PW-3.

¶21

5.1 Document of indent, through which defendant placed order to purchase the wax candles was produced as Ex.1, carbon copy of two receipts dated 10.10.1988 and 14.10.1988 through which the goods were supplied to defendant and were received by defendant’s son Vishnu were exhibited as Ex.2 and Ex.3. Carbon copy of three bills, Ex.4 dated 10.10.1988 for Rs.2,600/-, Ex.5 dated 11.10.1988 for Rs.3,960/- and Ex.6 dated 14.10.1988 for Rs.9,438/- were also produced. Carbon copy of notice and reply notice of defendant were exhibited as Ex.7 and Ex/8.

¶22

5.2 In rebuttal, defendant Girraj Prasad only examined himself as DW-1 and did not produce any other evidence.

¶23

Learned trial court on appreciation of evidence decided all issues in favour of plaintiff and passed the decree for recovery of

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(4 of 11)

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[CFA-13/1992]

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cost of wax candles, sold by plaintiff to defendant amounting to Rs.15,998/-. Trial court also awarded interest @18% per annum, which is to the tune of Rs.1723.80/- thus decree for recovery of Rs.17,721.80/- has been passed in favour of the plaintiff and against the defendant, and further the plaintiff has been held entitled to get 18% interest on the principal sum i.e. Rs.15,998/from the date of filing the suit i.e. 15.05.1989, till its actual payment.

¶27

Perusal of order-sheets of the file of first appeal go to show that show cause notice to respondent was issued vide order dated 28.01.1992 and after service of notice on behalf of respondent Advocate Shri Dharam Chand Sharma put in appearance.

¶28

7.1 Perusal of order-sheet dated 01.09.1992 on the stay application shows that on the statement of counsel for appellant that appellant has furnished a bank guarantee of the decreetal amount in issue on 27.05.1992, the stay application was disposed of.

¶29

7.2 In the application No.1/2020, dated 17.03.2020, filed by appellant, it has been stated that appellant has deposited an amount of Rs.27,000/- as bank guarantee which is lying in FDR.

¶30

Record of the trial court has been summoned.

¶31

No one has appeared on behalf of the respondent-plaintiff therefore, arguments of counsel for appellant have been heard.

¶32

Counsel for appellant-defendant has argued that indent Ex.1 is undated. There is variance between the pleadings and proof and further the indent Ex.1, receipts Ex.2 and Ex.3 and the bills Ex.4,

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(5 of 11)

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[CFA-13/1992]

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Ex.5 and Ex.6 are not signed by the defendant. He submitted that the trial court has committed error of fact and law in passing the decree for recovery of money on the basis of such documents which are not proved. He submits that no receipt of goods alleged to be sold through bill Ex.5 for Rs.3,960/- dated 11.10.1988 has been produced. He submits that in pleadings, there is no reference that the Mohan Lal PW-2 supplied the goods at the shop of defendant and defendant’s son Vishnu received these goods. He submits that the plaintiff has miserably failed to prove the pleadings that defendant placed any order to purchase the wax candles amounting to Rs.15,998/- and such goods were delivered by the plaintiff to defendant. Therefore, the trial court has committed illegality in decreeing the plaintiff’s suit for recovery of Rs.15,998/-. He further submits that awarding of interest @18% per annum on this amount is arbitrary and too excessive which is not proved. Thus, the impugned judgment and decree deserves to be quashed and set aside.

¶36

Heard counsel for appellant and perused the impugned judgment and record.

¶37

Issue No.1 & 2

¶38

In respect of issue No.1, the plaintiff has produced evidence that, Smt. Pancham Katta is proprietor of Rajasthan Vex Products Industries to which there is no counter evidence of defendant, and in respect of issue No.2, defendant admits that he is the proprietor of M/s Johri Lal, Shyam Lal. Therefore, it is not in dispute that plaintiff is proprietor of Rajasthan Vex Products Industries and defendant is the proprietor of M/s Johri Lal Shyam Lal, therefore

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(6 of 11)

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[CFA-13/1992]

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both these issues have been decided rightly in favour of plaintiff.

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Learned counsel for appellant has not argued on findings of issue Nos.1 & 2. Accordingly, findings of trial court in respect of both the issues are hereby affirmed.

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Issue Nos.3 and 4

¶44

Both issues are inter-connected hence are being decided together. As per evidence, PW-1 Banwari Lal, who happens to be the power of attorney holder of the plaintiff (Ex.9) and being son of plaintiff and manager of Rajasthan Vex Products Industries, has deposed that defendant placed order to purchase 5501 Kg wax candles to him through indent (Ex.1). Thereafter, goods were supplied to the defendant of which receipts dated 10.10.1988 (Ex.2) and 14.10.1988 (Ex.3), which are in his own hand writing. He deposed that Vishnu, who happens to be the son of defendant Girraj Prasad, received these goods. He further deposed that bills (Ex.4, Ex.5 and Ex.6) are in his hand writing and it is not in practice to get the signatures of the purchaser on the bills. He deposed that as per the prevailing rate of interest in the market, in case of non-payment of bill amount within a period of seven days, the defendant is liable to pay interest @19% per annum on the cost of goods. In cross-examination, PW-1 remained firm and unshaken and his statements in chief did not collapse. PW-2 Mohan Lal clearly adduced the evidence that on instructions of plaintiff, he carried goods of wax candles on his pulling rickshaw and delivered at the shop of defendant. He deposed that he delivered the wax candles goods supplied by the plaintiff at the defendant firm M/s Johri Lal Shyam Lal but he does not recognize

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(7 of 11)

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[CFA-13/1992]

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that the person who received the goods, is Vishnu. In his crossexamination, his evidence remained static. PW-3 Smt. Pancham Katta, who is the plaintiff, has appeared and proved her power of attorney Ex.9, issued in favour of her son Banwari Lal (PW-1).

¶48

13.1 In rebuttal, defendant Girraj Prasad (DW-1) denied the indent Ex.1 and receipts Ex.2 and Ex.3 as also the bills Ex.4, Ex.5 and Ex.6. In cross-examination he admitted that he runs stationery business in his shop M/s Johri Lal Shyam Lal and at season, he also runs business of selling the wax candles, rakhis etc. He admitted that Vishnu is his son. DW-1 expressed his ignorance about signatures of Vishnu on the receipt Ex.2 and Ex.3.

¶49

13.2 From perusal of plaintiff’s evidence, it appears that plaintiff discharged his onus to prove that through indent (Ex.1), the defendant placed order to purchase 5501 Kg wax candles and through receipts (Ex.2 and Ex.3), goods were delivered at the defendant’s shop. Plaintiff had also proved bills of sold goods Ex.4, Ex.5 and Ex.6. Mere denial by defendant is not suffice to disbelieve statements of PW-1 and PW-2. The plaintiff has adduced evidence to deliver goods at the shop of defendant, and in support thereof PW-1, Banwari Lal, has also been produced, who stated that he delivered goods on his rickshaw. Plaintiff has produced evidence that goods were received by Vishnu, son of defendant, whose signatures are available on receipts Ex.2 and Ex.3. This Court finds that the onus has been shifted on the defendant to disprove that goods were not received at defendant’s shop by his son Vishnu. It is not in dispute that Vishnu is son of defendant. There is no reason that why defendant did not produce

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(8 of 11)

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[CFA-13/1992]

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his son Vishnu in evidence, if he did not receive supplied goods. Defendant (DW-1) could not dare to deny signatures of his son Vishnu on receipts Ex.2 and Ex.3. It is common practice of commercial transaction that on bills issued by the seller, signatures of purchaser are usually not attained. On bills Ex.4, Ex.5 and Ex.6, absence of signatures of defendant is not fatal. PW-1 has clearly proved these three bills by his evidence. There is no counter evidence from the side of defendant that indent Ex.1, Ex.2 and Ex.3 and bills Ex.4, Ex.5 and Ex.6 are forged documents.

¶53

13.3 The evidence adduced by plaintiff can not be said to be contradictory or at variance to pleadings. In pleadings, plaintiff has clearly pleaded that defendant, through indent placed order for 5501 Kg wax candles and which were supplied at defendant’s shop. The details of bills with their date and amount is also pleaded. Merely, non-mentioning of the name of plaintiff’s son or the person, who delivered goods is not sufficient to disbelieve the evidence of PW-1 and PW-2, nor their evidence can be treated at variance with pleadings.

¶54

13.4 In civil cases, the principle of preponderance of probability is a well known principle of law, and in totality of pleadings and evidence available on record, this Court finds that plaintiff’s case is genuine and mere denial by the defendant is not suffice to demolish plaintiff’s case. It is not a case of defendant that the cost of wax candles amounting to Rs.15,998/-, as claimed by plaintiff is beyond the weight of 5501 Kg wax candles, for which the defendant placed order through indent Ex.1. All three bills dated 10.10.1988, 11.10.1988 and 14.10.1988 bears signatures of PW-1

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(9 of 11)

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[CFA-13/1992]

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and corroborate with the order placed by defendant through indent Ex.1. Merely because the indent Ex.1 is undated, the same cannot be treated as forged, when it is duly signed by the defendant. The trial court has matched signatures of defendant on indent Ex.1, with admitted signatures of defendant on his vakalatnama and his written statement. PW-1 has also adduced evidence about signatures of defendant on indent Ex.1. Defendant admitted that he runs the business of selling the wax candles at the occasion of festival season. It is not in dispute that the wax candles were alleged to be sold at the occasion of just before Deepawali in the year 1988. Thus, totality of circumstances and evidence on record, proves that the preponderance of probability lies in favour of the plaintiff. If signature of defendant on indent Ex.1 was false, and if the signature of defendant’s son Vishnu, on receipt Ex.2 and Ex.3, were false, the defendant could have produced any reliable evidence, except the denial, to show that signature on Ex.1 are forged. No counter evidence like expert evidence or to prove that signatures on Ex.1 are different from his admitted signatures as available on vakalatnama and written statement was adduced. Defendant’s son Vishnu, did not appear to deny his signatures on receipts Ex.2 and Ex.3. The defendant did not discharge his onus, shifted on him after plaintiff’s evidence.

¶58

13.5 Learned trial court, on appreciation of all such evidence of plaintiff and defendant and considering facts and circumstances as also placing reliance on the principle of preponderance of probability, has decided issue Nos.3 and 4 in favour of plaintiff.

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(10 of 11)

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[CFA-13/1992]

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13.6 This Court, on re-appreciation of evidence, concurred with fact findings, recorded by the trial court on issue Nos.3 and 4 as recorded by the trial court in favour of plaintiff and the same are hereby affirmed.

¶62

Issue No.5.

¶63

This issue is in respect of claiming interest by the plaintiff @19% on the due amount of costs of wax candles Rs.15,998/-. The trial court has awarded interest @18% per annum, from the date of bills up to the date of filing of the suit i.e. 15.05.1989 and Rs.1,723.80/- as interest on the cost of Rs.15,998/- has also been decreed. The trial court has also awarded interest @18% on the principal sum of Rs.15,998/- from the date of filing of the suit i.e. 15.05.1989 till actual payment.

¶64

14.1 This Court finds that though on bills Ex.4, Ex.5 and Ex.6, it is indicated that in case of non-payment, interest will be charged @19% per annum. But no independent evidence to prove such prevailing interest has been adduced by the plaintiff. Trial court assumed that 18% interest annually is prevailing in the market as well as in the nationalized bank, whereas there is no evidence on record to corroborate such rate of interest. Thus, the interest @18% has been awarded by the trial court on the basis of assumption.

¶65

14.2 Section 34 of the Code of Civil Procedure envisage that in case of decree for payment of money, the court may order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of suit to the date of decree and from the date of decree to the date of payment. Therefore,

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(11 of 11)

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[CFA-13/1992]

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this Court exercising its discretionary powers modify the rate of interest from @18% to @6% per annum from the date of filing the suit till payment of the principal sum of Rs.15,998/-. Thus, the issue No.5 is decided in the manner that plaintiff shall be entitled for interest @6% per annum on principal sum of Rs.15,998/- from the date of filing the suit till its payment.

¶69

As a result, the first appeal is partially allowed. The impugned decree for Rs.17,721.80/- (principal sum Rs.15,998/- + interest amount Rs.1723.80/-) is maintained and plaintiff will be entitled for interest @6% per annum on principal sum of Rs.15,998/- from the date of filing of the suit i.e. 15.05.1989 till actual payment. Parties will bear their own costs.

¶70

Decree dated 12.11.1991 stands modified accordingly.

¶71

It is made clear that plaintiff will be entitled to recover the decreetal amount from the bank guarantee alleged to be deposited by the defendant in the form of FDR as stated by the appellant and after adjustment of decreetal amount, if bank guarantee is found of excess amount, the same may be released in favour of appellant.

¶72

17.1 Since no one has put in appearance on behalf of respondent, Registry is directed to send a copy of this judgment to respondent-plaintiff.

¶73

Record be sent back.

¶74

All pending application(s), if any, stand(s) disposed of.

¶75

(SUDESH BANSAL),J

¶76

SAURABH/

Girraj Prasad S/O Phool Chand v. Smt. Pancham Katta Proprietor Rajasthan Ves Products Industries

Case brief

What is this about?

What did the court decide?

Girraj Prasad S/O Phool Chand v. Smt. Pancham Katta Proprietor Rajasthan Ves Products Industries

Case brief

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What did the court decide?

What the court decided

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