IN THE HI 224 M/s Deen Day M/s Modern C CORAM: Present:- NIDHI GUPTA, plaintiff is to whereby the annum since 0 dismissed by vide judgment against said ju by the learned dated 18.09.20 2. passing the im have erred in l E HIGH COURT OF PUNJAB AND HA Dayal Jagdish Chand Vs. ern Cloth House HON’BLE MS. JUSTICE NID Mr. Rahul Verma, Advocate Mr. Yagsimant Attri, Advoca for the appellant. Mr. Deepak Balyan, Advoca Mr. Vicky Chauhan, Advoca for the respondent. *** PTA, J. Challenge in the presen s to the concurrent findings retu the suit for recovery of Rs.96,500/ ce 01.04.2010 till its realisation, file by the learned Additional Civil Jud ent and decree 26.11.2012; and a id judgment and decree dated 26.1 rned Additional District Judge, Kaith 9.2014. Learned counsel for the e impugned judgments and decree in law and fact, misread, misconstr D HARYANA AT CHANDIGARH RSA-1414-2015 (O&M) Date of decision: 09.01.2025 ...Appellant(s) ...Respondent(s) NIDHI GUPTA cate vocate vocate with vocate sent appeal preferred by the returned by the Courts below ,500/- with interest @ 15% per filed by the appellant has been l Judge (Senior Division), Kaithal nd appeal filed by the appellant 26.11.2012 has been dismissed aithal vide judgment and decree the appellant contends that in cree, the learned Courts below nstrued and mis-interpreted the 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document pleadings as w as also the ma the learned C appellant-firm the Indian Pa wholesale me customer of appellant on c last 8-9 years 99,000/- due record the clo 2007- 2008, 2 record that a during the a payments dur purchased clo paid only Rs. 9 by the respon the interest @ repeated dem the payment appellant had duly proved o as well as oral and documentary e e mandatory and settled propositio ed Courts below erred in not co firm is a duly registered partnership Partnership Act. The plaintiff-firm merchant at Kaithal. The respo of appellant firm and used to on credit and had running accoun ears. As on 1.4.2007, there was ue against the respondent. The ap e cloth purchased by the responde 8, 2008- 2009 and 2009-2010. Th at against the cloth purchased by e aforesaid financial years, the during the said financial years. Ho loth for Rs. 1,88,597/- during the Rs. 96,600/-; and the amount of Rs. pondent towards the principal am st @ 15% PA, which the responden demands made by the appellant, th ent of the aforesaid amount and had to file suit for recovery. It is r ed on record the amount to be pa ry evidence available on record; sition of law. It is submitted that t considering the fact that the ship firm under the provisions of firm deals in the business of spondent/defendant had been to purchase clothes from the ount with the appellant for the as outstanding amount of Rs. e appellant had duly proved on ndent during the financial year . The appellant also proved on d by the respondent on credit the respondent made certain However, the respondent had the aforesaid financial years and f Rs. 91,997/- was due to be paid amount and Rs. 4503/-towards dent agreed to pay. But despite t, the respondent failed to make and as a result of which the is reiterated that the appellant paid by the respondent to the 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document appellant by w learned court appellant as passed by lear 3. passing the im failed to cons appellant whi which were du the fact that t he knew the a firm; that he k cannot produc testimony of t the responden did not produ appellant. 4. appearing as purchased the account books The appellant respondent w by way of oral as well as docume ourts below ought to have decree as prayed for. As such the impu learned courts below are liable to b Learned counsel for the e impugned judgment and decree consider that the respondent had which is also clear from the tra re duly proved on record. The learne hat the respondent had admitted in he appellant-firm; that he had take he keeps bahis and record of the m oduce the same in the Court. It is s of the respondent as also the writt ndent admitted having purchased c roduce any record with regard to It is argued that on the oth as PW1 clearly proved the bills the cloth from the appellant and ooks from 01.04.2007 to 31.03.201 llant had even proved the ackn t with regard to the outstanding umentary evidence. As such the creed the suit in favour of the pugned judgment and decree to be set aside. the appellant submits that in cree, the learned Courts below ad a running account with the transactions w.e.f. 05.04.2007 arned Courts below also ignored ed in his cross-examination that taken cloth from the appellant- the material sold by him, but he is submitted that from the said ritten statement, it is clear that ed cloth from the appellant but to the payments made to the other hand, the appellant while ills vide which the respondent and had also produced original .2011 and other relevant record. acknowledgment given by the ding amount by executing the 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document writing dated Rs.96,500/- to facts, there w below have a maintained by 5. defendant wa defendant use cash and no contended tha payment of Rs 10 and there i against the de any account b period. Learne P80 has also n present suit be 6. 7. perused the ca 8. recovery was defendant int ated 31.03.2010 whereby the r to the appellant. It is submitted e was no ground to non-suit the ap ve also wrongly ignored the extrac d by the appellant and proved on re Learned counsel for the was having no running account used to purchase the clothes from no amount is outstanding agains that plaintiff himself had admitted of Rs.96,600/- in the financial year ere is no evidence on the file to pro e defendant on 01.04.2007 as plaint nt books for the financial 2006-07 arned counsel for the defendant has lso not been proved on the file. Acc it be dismissed with cost. No other argument is raise I have heard learned cou e case file in great detail. Brief facts of the case ar was instituted by the appellant- inter alia on the allegations th e respondent agreed to pay itted that in view of the above e appellant. The learned Courts tract of account of respondent n record Ex.P76. the respondent submits that unt with the plaintiff firm and rom the plaintiff firms by paying ainst the defendant. It is also itted that defendant had made a ear 2007-08, 2008-09 and 2009- o prove that Rs.99000/- was due laintiff has not placed on the file 07 or daily Rokar Bahi of that t has also argued that writing Ex. Accordingly, it is prayed that the aised on behalf of the appellant. counsel for the appellant and e are that the present suit for -plaintiff against respondent- s that plaintiff is a registered 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document partnership fi Partnership Ac partner. Plain Chhotti Mand and used to running accou financial years the clothes f outstanding am 9. numerous fin respondent in account books the appellant of Rs.96,500/ realisation. 10. written statem that the app respondent; a appellant-firm reiterating the following issue ip firm, duly registered under th ip Act and Sh. Sat Parkash son of Sh laintiff firm deals in the business andi, Kaithal. The defendant had be to purchase the clothes from pla ccount with the plaintiff firm for th ears 2007-08, 2008-09 and 2009- s from plaintiff on credit. On g amount of Rs.99,000/- due agains As per the pleaded case o financial transactions between t in respect of which entries we ooks of the appellant in regular cou ant filed the present suit against the 00/- with interest @ 15% per ann Upon notice, the defenda atement raising preliminary objec appellant had borrowed amou t; and that the respondent had nev firm on credit. Appellant had the claims made in the plaint. issues were framed: - the provisions of the Indian f Sh. Deen Dayal is its registered ness of wholesale merchant at d been customer of plaintiff firm plaintiff on credit and had a or the last 8-9 years. During the -10, the defendant purchased On 01.04.2007, there was an ainst the defendant. se of the appellant, there were een the appellant and the s were duly maintained in the course of business. Accordingly, t the defendant seeking recovery annum since 01.04.2010 till its endant had appeared and filed bjections while also submitting ounts on interest from the never purchased cloth from the ad duly filed the replication . On the basis of pleadings, 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document 11. 01.04.2007, R to 06.11.2007 for Rs.37,390 defendant had entire evidenc whether plain the documen cloths worth R Rs.40,555/- in this amount, the plaintiff ha However, the there was no against the de relied upon Rs.99,000/- w the same cou “1. Whether the plaintiff is entitle along with interest @ 15% per ann 2. Whether the suit is not maintai 3. Whether the plaintiff has no loc to file the present suit? OPD. 4. Relief.” It has been alleged by 7, Rs.99,000/- was due against defe 007 cloth worth 11,150 was bough ,390/-; and in 2009-2010 for Rs. had paid Rs.96,600/-. After apprai dence on record, the learned trial c laintiff entitled for recovery, return ents it was proved (at page 29) rth Rs.11,155 in year 2007-08; Rs.3 in year 2009-10 coming out to the nt, the defendant has paid Rs.96,6 iff had to prove that on 01.04.2007 the record reveals that except for no evidence on file to prove the e defendant. In attempting to prov on extract of account of defen was carried forward in accounts could not be relied upon this in th ntitled for recovery of Rs.96500/- r annum? OPP. intainable? OPD. o locus standi or cause of action by the plaintiff that as on defendant; and from 05.11.2007 ught by the defendant; in 2008 Rs.40,512/-. Against this, the praisal and consideration of the ial court in regard to Issue No.1 turned the findings that: a) From 29) that defendant purchased Rs.37,390/- in year 2008-09 and o the total of Rs.89,010/-. Out of .96,600/- to plaintiff-firm. Thus, 007 sum of Rs.99,000/- was due. t for the oral evidence of PW1, the alleged outstanding amount prove his case, the Plaintiff had fendant-firm Ex.P76 in which nts of defendant-firm. However, in the absence of previous Bahi 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document entries or any was in custod had not placed 12. signed by pro Rs.96,500/- evidence was Ex.P80 was ma his cross-exam signature of th 13. entire evidenc vide judgmen appellant, and any receipt for the said amount. As stody of Bahi entries even for perio laced and/or proved the same on rec The plaintiff had also plac proprietor of defendant-firm wh was due against plaintiff as on was brought on record by the plaint s made by the defendant. Even the examination and no efforts were of the defendant on Ex.P80. Thus, after exhaustive and dence adduced on record by the pa ment and decree dated 26.11.201 and gave the following findings: - “14...In the present case as discu books are in the possession of th that account books and Bahi entr not produced by the plaintiff firm itself fail to produce the materia therefore, adverse inference is plaintiff. Although defendant has in the account book even though his cross-examination that defe account book in regular course o above initially onus is on the plain was due against the defendan producing the account book and period.” t. As per the record, Plaintiff firm eriod prior to 01.04.2007 but it n record. placed on file Ex.P80, a writing where it was mentioned that s on 31.03.2010. However, no laintiff to prove that said writing the same was denied by DW1 in ere made by plaintiff to prove and detailed examination of the e parties, the learned trial Court .2012 dismissed the suit of the discussed above all the account of the plaintiff firms but despite i entries prior to 01.4.2007 were f firm and thus plaintiff firm has aterial evidence on the file and e is to be drawn against the has also not produce on the file ough DW1 Ajay Kumar stated in defendant firm maintained his rse of his business but as stated plaintiff to prove that Rs.99000/- ndant firm as 01.09.2007 by and Rokar Bahi for the relevant 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document 14. challenged by judgment and was dismissed was affirmed. kept in view indicate that a respondent; t respondent ha many times an also made to testimony tha was such that extracted. In f in between. In raised that it The learned Co stand of the re the appellant made cash pa lower Appellat The said judgment and de by the appellant by way of Civ and decree dated 18.9.2014, the a issed, and the judgment and decre ed. In doing so, the learned Addi iew the fact that there was no ev at as on 01.04.2007 amount of Rs.9 t; that the appellant had also faile t had purchased clothes from the a es and how much payments were m e to statement of PW1-Satparkash that the bahi entries were not pag that the leaves in between could In fact, it was even admitted that th n. In view of this fact, it was held t it/ the financial record/Bahi had d Courts below also took note of th he respondent/defendant that he di ant on credit basis and whenever clo h payments in respect thereof. Rele ellate Court are as under:- “14. In view of above discussion the case file, this Court is of the co as the present appeal is concerne merit and the rulings as relied up d decree dated 26.11.2012 was Civil Appeal No.98/2014. Vide he appeal of the appellant firm ecree of the learned trial court dditional District Judge, Kaithal o evidence of the appellant to Rs.99,000/- was due against the failed to prove as to when the he appellant and when and how re made by him. Reference was kash who had admitted in his page-numbered nor the binding ould not have been inserted or at there were many blank leaves that no presumption could be had been correctly maintained. of the fact that it was the specific e did not purchase clothes from cloths were purchased, he had Relevant findings of the learned sion and after careful perusal of he considered opinion that so far cerned, it is totally devoid of any d upon by the Id. Counsel for the 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document 15. although the p but no docum between parti acknowledgem appellant-plaintiff have no app circumstances of the present cas appellant-plaintiff was require 01.04.2007, Rs.99,000/- were du defendant. Merely from the fact shown as due against responde presumption can be raised that bahies of the relevant period hav case file. The bahies which have are also of such nature from whic and added later on. There was n bahies. It is not explained by the plaintiff, why the previous bahies appellant-plaintiff. If the intentio would have been clear then even moved an application for additio previous bahies. 15…..Much reliance has been pla the acknowledgement Ex. P80 bu has denied his signatures ove circumstances, it was the bound plaintiff to examine some handwr signatures over this document, w of respondent-defendant but it contention of the Id. Counsel for the Court can examine the defendant is not tenable one substitute its opinion with Expert…..There is nothing on t appellant- plaintiff why expert has The ld. First Appellate Co the plaintiff had claimed interest at cument was brought on record to s parties; b) Respondent/defendant h gement (Ex.P80) and plaintiff was u applicability to the facts and t case. In the present case, the uired to prove that as on re due against the respondent- fact that this amount has been ondent-defendant in Bahies, no that it was so due because the have not been produced on the ave been produced in the Court which, pages could be extracted as no page numbering on these the Id. Counsel for the appellant- ahies have been withheld by the ention of the appellant-plaintiff even in this court, he could have ditional evidence to produce the n placed upon the document i.e. 0 but the respondent-defendant over the same and in such ounden duty of the appellant- ndwriting expert to compare the nt, with the admitted signatures t it has not been done so this l for the appellant-plaintiff that he signatures of respondent- one because the Court cannot ith the opinion of qualified on the record, shown by the rt has not been examined.” e Court further found that: a) st at the rate of 15% per annum to show that this was ever fixed nt has denied his signatures on as under duty to examine some 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document handwriting e nothing on rec The Documen used by petiti other persons “it cannot be st 16. dispute or con Courts below. 17. appeal is of th learned coun 31.08.2022 an appellant on 2 18. 19. 09.01.2025 Sunena Whether spea Whether repo ng expert to compare the signature n record to indicate as to why exper ment (Ex.P80) appears to be a cyc etitioner after filling in the blanks sons also. As such, the learned Co be stated that the said document is Learned counsel for the a r controvert the above said concur low. Before parting, it may be p f the year 2015 and the same has b ounsel for the appellant on 13 2 and on account of non-appearanc on 25.01.2019. In view of the above prese Pending application(s) if an peaking/reasoned: Yes/No eportable: Yes/No tures on document; c) there was xpert has not been examined; d) cyclostyled document which is nks and which was used against Courts below correctly held that nt is proved.” he appellant is unable to deny, ncurrent findings of the learned be pointed out that the present as been adjourned at request of 13.07.2015, 22.07.2016 and rance of learned counsel for the resent appeal is dismissed. if any also stand(s) disposed of. (Nidhi Gupta) Judge 10 SUNENA 2025.01.13 18:19 I attest to the accuracy and integrity of this document