Telangana High Court
M/S.Gopal Roller Flour Mills P.Ltd,Hyd vs Bhagwan Traders, Business, Raigarh on 29 April, 2022
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
C.C.C.A.No.139 of 2002
ORDER :
1. This appeal is filed against the judgment dated 25.04.2002 in O.S.No.806 of 1994 on the file of the Court of I Senior Civil Judge, City Civil Court, Hyderabad.
2. Appellant is the defendant and respondent is the plaintiff before the trial Court. For the sake of convenience, the parties are referred to as the plaintiff and defendant.
3. The facts of the case in nutshell, are that the suit was filed by the plaintiff for recovery of an amount of Rs.1,05,350/- with interest and costs. The averments of the plaint are as under :
The plaintiff, who belongs to Rajgarh District of Madhya Pradesh, deals in food grains business. In the course of his business, he supplied to the defendant 840 quintals of wheat in seven Lorries through M/s.Poolchand Agarwal, a commission agent at Bhopal, during the period from 05.08.1991 to 13.08.1991, for a total amount of Rs.3,06,680/-. Out of the said total amount of Rs.3,06,680/-, the defendant paid only Rs.2,52,568/- through drafts 2 GAC, J CCCA.No.139 of 2002 and cheques and fell due of Rs.54,112/- as on 13.08.1991. In spite of several demands, the defendant did not repay the amount, for which, the plaintiff was constrained to issue legal notice/Ex.A-19, dated 12.02.1992 and the defendant issued reply notice/Ex.A-20, dated 10.03.1992 denying the liability and also putting forward a counter claim of Rs.29,288/-. As no payments are received from the defendant, the plaintiff has filed the suit for recovery of Rs.1,05,350-40 including interest and commission agent charges of Rs.3,360/-.
4. A detailed written statement was filed by the defendant stating that he filed another suit against the plaintiff vide O.S.No.3286 of 1992 on the file of V Assistant Judge, City Civil Court, Hyderabad, admitting the dealings of business with the plaintiff through M/s.Poolchand Agarwal. It is further stated in the written statement that up to 05.08.1991, 840 quintals of wheat was negotiated and delivered through M/s.Naveen Commercial Corporation. Though he ordered for supply of wheat, the plaintiff has given instructions to divert the consignment to Kavali Roller Flour Mill at Kavali and he could not take the supply because of 3 GAC, J CCCA.No.139 of 2002 the delay in sending the consignment, for which, he suffered loss. Therefore, he filed O.S.No.3286 of 1992 for recovery of Rs.29,288/-. Accordingly, he prayed to dismiss the suit.
5. The trial Court, basing on the pleadings of the parties, framed the following issues for trial :
1. Whether the plaintiff is entitled to the suit amount ?
2. Whether the suit claim is barred by limitation ?
3. To what relief ?
6. On behalf of plaintiff, his GPA holder was examined as PW-1 and Exs.A-1 to A-24 were marked. On behalf of defendant, an employee of the defendant was examined as DW-1 and Ex.B-1 was marked.
7. On hearing both sides and considering the oral and documentary evidence, the trial Court has partly decreed the suit for Rs.95,350.40 ps. with future interest at the rate of 6% per annum from the date of suit till the date of realization on principal amount of Rs.54,112/-.
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8. Being aggrieved by the orders of the trial Court, the present appeal is filed by the defendant. It is urged in the grounds of appeal that the judgment passed by the trial Court was based on mere presumptions and the lower Court has wrongly held that the transaction was effected through M/s.Poolchand Agarwal and thereby committed gross illegality in decreeing the suit. It is also urged that the lower Court has totally failed to discuss the evidence of PW-1, which establishes the case of the defendant and disbelieved the evidence of DW-1. It is further urged that the lower Court ought to have seen that the oral contract was performed and acted upon, as such, documentary evidence was not necessary and that it lost sight of important aspects of contract under the Sale of Goods Act.
9. Heard both sides and perused the record.
10. It is urged by the learned counsel for defendant that the plaintiff cannot rest on the averments made in the written statement filed by him and it is for plaintiff to show that the suit was filed within the period of limitation. It is urged that as the cheques, 5 GAC, J CCCA.No.139 of 2002 invoices and bills are of different dates, the suit is barred by limitation. In this regard, he placed reliance on a judgment of this Court in M/s.Sumeet Steel Traders v. M/s.Surendra Enterprises & another1. In paras 9 and 10 of the said judgment, it is held that;
"9. ......In our view, the plaintiff cannot rest his case on the written statement filed by the defendants. The onus is on him to show that the suit filed by him was within limitation and in the plaint he has specifically mentioned the different dates and the bills and according to the plaintiff, the cause of action for filing the suit arose on 31-8-1985 when the plaintiff and the defendant agreed through a written understanding for supply and receipt of material, on all dates when supplies made by the plaintiff and received by the defendant, on all dates when the amount became due and payable to the plaintiff. Under Article 14 of the Limitation Act the period of limitation is three years and the period starts from the date of delivery of the goods for recovery of price of goods sold and delivered where no fixed period of credit is agreed upon and under Article 15 of the limitation runs from the date when the period of credit expires where there is a fixed period of credit.
10. On the other hand, Mr.Vilas, learned counsel wants this Court to believe that although the suit was not 1 AIR 2005 AP 345 6 GAC, J CCCA.No.139 of 2002 correctly framed, the defendants cannot non-suit the plaintiff, as it is a suit based on accounts. Only P.W.1 was examined as a witness. No book of accounts was produced before the Court and only invoices were produced before the Court. Therefore this argument has to fail. We agree with the trial Court that the amounts covered by Exs.A3 and A23 were barred by limitation and the suit with regard to only a sum of Rs.3,58,008.18 was within time."
11. Per contra, it is submitted by the learned counsel for plaintiff that the suit is not based on cheques, bills or invoices but it is filed for recovery of total outstanding amount after deducting the payments made by the defendant. Therefore, the above judgment relied on by the learned counsel for defendant is not applicable to the facts of the present case.
12. It is the admitted case of both parties that counter claim was made by the defendant by way of filing another suit i.e. O.S.No.3286 of 1992 and no counter claim is made before this Court under Order 8 of CPC. The trial Court, after considering the entire material on record, has come to the conclusion that the suit claim was not barred by limitation.
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13. On perusal of the record, the contents of the plaint itself disclose that 840 quintals of wheat in total was supplied from 05.08.1991 to 13.08.1991 for a total amount of Rs.3,06,680/-. Exs.A-3 to A-17 are the certified copies of the bills. The pleadings further disclose that out of the total amount of Rs.3,06,680/-, the defendant has paid only an amount of Rs.2,52,568/- through different drafts and cheques and the amount due as on 13.08.1991 was Rs.54,112/-, for recovery of which, the suit has been filed. So, it can be construed that the suit is not filed basing on the cheques, bills or invoices, but it is filed for recovery of outstanding amount after deducting the payments made by the defendant. Therefore, the argument of the learned counsel for defendant as to the limitation aspect, fails and the suit is maintainable.
14. The further contention of the defendant is that the GPA is of the year 1994, whereas, the transaction took place in the year 1991, and therefore, the GPA cannot depose on behalf of plaintiff. In this connection, he relied on the judgment of Hon'ble Supreme Court in 8 GAC, J CCCA.No.139 of 2002 Mohinder Kaur v. Sant Paul Singh2. In para 7 of the judgment, it is held:
"7. In Janki Vashdeo3, it is held that a power-of-attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power-of-attorney holder. Likewise, the power-of-attoenry holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In ouropinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows:
"15. Apart from what has been stated, this Court in Vidhyadhar v. Manikrao4, observed that:
'17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.....""2
(2019) 9 SCC 358 3 (2005) 2 SCC 217 4 (1999) 3 SCC 573 9 GAC, J CCCA.No.139 of 2002
15. On the other hand, it is urged by the learned counsel for plaintiff that as the GPA has not deposed about the cheques, bills or invoices on his personal knowledge, but deposed basing on the records available. It is further urged that Exs.A-21 and A-22 clearly disclose that the suit i.e. O.S.No.3286 of 1992 filed by the defendant was dismissed on 16.08.2001. Further, DW-1 was examined as GPA holder of defendant, but the said witness was not having personal knowledge of the case facts. Therefore, the defendant cannot raise such an objection at this juncture saying that the plaintiff alone has to depose and the evidence of GPA holder cannot be considered.
16. On perusal of the record, it is evident that on behalf of the plaintiff, GPA holder was examined as PW-1 and on behalf of the defendant, an employee of the defendant was examined as DW-1.
None of the parties have raised any objection before the trial Court for such examination of GPA holders. Further, no issue was framed by the trial Court to that effect. Ex.A-21/plaint in O.S.No.3286 of 1992 shows that the said suit was filed by the defendant before the Court of VII Junior Civil Judge, City Civil 10 GAC, J CCCA.No.139 of 2002 Court, Hyderabad, for recovery of Rs.29,288/- along with interest and it was filed against the plaintiff and also against Naveen Commercial Corporation, who alleged to have diverted the consignment. The trial Court, after considering the evidence on record, dismissed the said suit holding that the defendant was not entitled for the suit claim. Ex.A-24 is the deposition of PW-1 in O.S.No.3286 of 1992, who is defendant in the present suit. In O.S.No.3286 of 1992, the trial Court, after considering the evidence of GPA i.e. PW-1 and also Exs.A-3 to A-17, held that the consignment was supplied to the defendant through M/s.Poolchand Agarwal, but not by Naveen Commercial Corporation as contended by the defendant and the defendant failed to prove about diverting of material to Kavali Roller Flour Mill at Kavali either at the instance of the plaintiff or by the Commission Agent. Ex.B-1 is the GPA, dated 12.12.2001 executed by Sri R.N.Gupta in favour of DW-1. Admittedly, both the parties have nominated their GPAs. to depose before the Court. So, the contention of the learned counsel for appellant has no relevance.
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17. In the judgment of Hon'ble Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd.5, it is held that a power-of-attorney holder, who acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined.
18. In the present case, PW-1 has deposed on behalf of plaintiff basing on the documents available within the business and not with the documents, of which, the plaintiff alone has personal knowledge. In his chief-examination, PW-1 deposed that he had personal knowledge of the facts deposed by him.
19. In P.Venkata Narsireddy, died per LRs. v. M.Venkata Narasamma & 2 others6, this Court held as under : 5
(2005) 2 SCC 217 6 A.S.No.1142 of 1998, dt.19.12.2018 12 GAC, J CCCA.No.139 of 2002 "In view of the later development of law, the judgment in Podelly Chinna Chinnanna v. Bandari Pedda Bhumanna [2004 (1) ALT 585] may not be very relevant, but even the Division Bench clearly held that the competency of the witness should be distinguished from his knowledge of the facts of the case. The Division Bench also held that the power of attorney holder and a spouse of a party as per Section 120 of the Evidence Act are competent witness.
However, the relevancy of the evidence has to be appreciated on the basis of the facts of each case. The extent of personal knowledge is a matter to be seen on a case to case basis. The fact, however, remains that a general power of attorney holder cannot give evidence "in place" of plaintiff. He can only depose of the facts which are within his knowledge and of his actions as a general power of attorney holder. A reading of the cross- examination reveals that he has no personal knowledge of what is asserted. Therefore, this Court holds that the plaintiff has not discharged the burden cast upon her to prove her case."
20. In the judgment in Ram Nitish Kotak v. Arif Buhary Rahman7, it is held by the Madras High Court that, "It is well settled proposition of law, therefore, that the Power of Attorney can give evidence on his own of the facts which he was made 7 Crl.R.C.No.211 of 2019, dt.28.02.2019 13 GAC, J CCCA.No.139 of 2002 aware, but cannot give evidence about the facts which are only within the exclusive knowledge of the principal".
21. In the case of Smt. Asha Devi Jindal v. Power Grid Corporation of India8, it is held by the Gauhati High Court that, "In respect to the judgment of the Apex Court in Janki Vashdeo Bhojwani and Anr. V. Industrial Bank Ltd. & Ors, the Apex Court has held in para 18 that the Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. The power of attorney holder of a party can appear only as a witness in his personal capacity, but he cannot appear as a witness on behalf of the principal."
22. In the course of business, documents speak about the transactions. Sections 91 and 92 of the Indian Evidence Act deal with exclusion of oral by documentary evidence. In the present case, exhibits/documentary evidence speaks about the transactions which took place between the parties. PW-1 deposed before the Court basing on the documents/exhibits. Hence, it can be held that 8 RFA.55 of 2013, dt.22.10.2019 14 GAC, J CCCA.No.139 of 2002 the plaintiff has proved his case as documentary evidence corroborated with the oral evidence of PW-1.
23. As discussed supra, this Court does not find any error or irregularity in the judgment of the trial Court. Accordingly, this appeal is dismissed, confirming the judgment, dated 25.04.2002 in O.S.No.806 of 1994 on the file of the Court of I Senior Civil Judge, City Civil Court, Hyderabad. No order as to costs.
24. Pending miscellaneous applications, if any, shall stand closed.
_________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 29.04.2022 ajr