Punjab-Haryana High Court
Ram Singh vs Rajiv Kumar And Company on 30 May, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.4185 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.4185 of 2011
Date of decision: 30.05.2012
Ram Singh
......Appellant
Vs.
Rajiv Kumar and Company
...Respondent
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. Tribhawan Singla, Advocate for the appellant.
Mr. Ravinder N. Sharma, Advocate for the respondents.
***
Tejinder Singh Dhindsa, J.
Defendant/appellant-Ram Singh is in second appeal before this Court.
Rajiv Kumar and Company through owner Rajiv Kumar/plaintiff filed a suit against the defendant for recovery of Rs.5,01,586/- i.e. Rs.3,79,990/- towards principal amount and Rs.1,21,596/- as interest. It was pleaded that the plaintiff firm was running a commission agency business and the defendant used to sell his agricultural produce to the plaintiff firm. It was also pleaded that the defendant used to borrow cash at different times as per his needs regarding which, entries were duly entered in the entry books/bahis. It was pleaded that upon settlement of the entire account, the defendant had acknowledged an amount of Rs.3,51,600/- due against him on RSA No.4185 of 2011 -2- 21.05.2005 and which entry was duly thumb marked by the defendant in the account books. Thereafter, various amounts were borrowed on different dates towards 04.06.2005 to 03.10.2005 regarding which, entries were also made in the account books, which were being maintained in the ordinary course of business. Plaintiff firm pleaded that after borrowing a total amount of Rs.3,79,990/-, the defendant stopped selling his agricultural produce to the firm and refused to return the amount, accordingly, the suit had been instituted for recovery of principal amount of Rs.3,79,990/- along with interest at the rate of 18% per annum as per the custom prevalent in the market.
The defendant contested the suit stating that the entries in the account books were forged and he denied his thumb impressions against such entries. The defendant also categorically denied that he had never acknowledged an amount of Rs.3,51,600/- that was allegedly due to the plaintiff firm as on 21.05.2005. Defendant also denied his thumb mark against such entry.
Upon the pleadings of the parties, the following issues were struck by the Trial Court:
1.Whether defendant borrowed an amount of Rs.1402/- on 04.06.2005, Rs.1610/- on 17.06.2005, Rs.1547/- on 20.06.2005, Rs.1991/- on 20.06.2005, Rs.1675/- on 01.07.2005, Rs.815/- on 06.07.2005, Rs.1615 on
22.07.2005, Rs.865/- on 23.07.2005, Rs.350/- on 29.07.2005, Rs.555/- on 01.08.2005, Rs.1463/- on 03.08.2005, Rs.200/- on 04.08.2005, Rs.800/- on 06.08.2005, Rs.365/- on 09.08.2005, Rs.500/- on RSA No.4185 of 2011 -3- 13.08.2005, Rs.2690/- on 16.08.2005, Rs.300/- on 22.08.2005, Rs.1190/- on 23.08.2005, Rs.2000/- on 29.08.2005, Rs.330/- on 29.08.2005, Rs.1110/- on 05.09.2005, Rs.2076/- on 08.09.2005, Rs.1430/- on 27.09.2005 and Rs.1511/- on 03.10.2005? OPP
2.Whether the plaintiff is entitled for recovery of the suit amount as prayed for?OPP
3.Whether plaintiff is entitled for interest? If so at what rate? OPP
4.Whether plaintiff has got no locus standi and cause of action to file the present suit? OPD
5.Whether plaintiff is estopped by his act and conduct from filing the present suit? OPD
6.Whether suit is not maintainable? OPD
7.Whether entries in the books are forged and fabricated one and are without consideration and are not bearing signature/thumb impressions of the defendant?OPD
8.Whether suit is barred by time of limitation?OPD
9.Relief.
The Trial Court, while deciding issue No.1, returned the finding that the bahi entries, Ex.P-6 as regards Rs.3,51,600/- was dated 29.04.2004 and as such, held the claim of the plaintiff firm with regard to recovery of the aforesaid amount to be time barred as the suit for recovery has been filed on 22.05.2008 i.e. more than one year after the expiry of the limitation period as regards the amount of Rs.3,51,600/-. However, as regards the other entries, the total of which, came to Rs.28,390/-, the Trial Court decreed the suit vide judgment dated 01.02.2011 for recovery of the aforementioned amount i.e. Rs.28,390/- along with interest at the rate of 9% per annum from 18.05.2008 till the RSA No.4185 of 2011 -4- passing of the judgment and future interest at the rate of 6% per annum till the realization of the decretal amount.
Two civil appeals arose from the judgment dated 01.02.2011 passed by the Trial Court. One civil appeal was filed by the plaintiff firm praying for the suit for recovery to be decreed in toto and the second appeal was filed by the defendant-Ram Singh praying for the dismissal of the suit. Vide impugned judgment dated 03.05.2011, the Additional District Judge, Barnala has dismissed the appeal filed by the defendant-Ram Singh and has accepted the appeal filed by the plaintiff firm and accordingly, has decreed the suit of plaintiff firm for recovery of Rs.3,79,990/- as principal and Rs.90,000/- towards interest i.e. at the rate of 9% per annum from the date when the defendant allegedly borrowed the amount till the filing of the suit. The plaintiff firm was also held entitled to future interest at the rate of 6% per annum from the date of filing of the suit till realization of the principal amount only. Accordingly, defendant/appellant-Ram Singh is in second appeal before this Court impugning the judgments and decrees passed by both the Courts below.
I have heard Mr. Tribhawan Singla, Advocate for the appellant and Mr. Ravinder N. Sharma, Advocate for the respondent at length.
From the submissions made by the respective counsels and from a perusal of the paper book, the following substantial questions of law arises for consideration in the present second appeal: RSA No.4185 of 2011 -5-
(i)Whether a suit for recovery could be decreed only on the basis of entries in the account books without any independent corroboration in support thereof?
(ii)Whether the entries in question in the account books/bahis were proved in accordance with law so as to fastening the liability upon the present appellant?
Respective counsel for the parties have addressed submissions with regard to both the questions of law formulated hereinabove. Both the questions are inter-related and are being taken up for consideration together.
Mr. Tribhawan Singla, learned counsel for the appellant submitted at the very outset that the Courts below have erred in decreeing the suit for recovery on the basis of account statements (bahi entries) without the same having been produced in original on the first date of hearing, when the suit was filed and as such, the entries were inadmissible in evidence. Learned counsel would further contend that the bahi entries/account statements were not proved in accordance with law as the only statement was that of the respondent/plaintiff and no corroborative evidence has been led in the nature of income tax returns etc. and as such, both the Courts below had erred in decreeing the suit for recovery and thereby, fastening the liability upon the present appellant.
On the other hand, Mr. Ravinder N. Sharma, learned counsel appearing for the plaintiff/respondent has relied upon a RSA No.4185 of 2011 -6- judgment of this Court in Smt. Sushil Rani Vs. Attam Parkash 2007 (3) RCR (Civil) 396 to contend that even if, there be non production of the original bahi entries, no right of the appellant had been infringed. Counsel would contend that the provisions of Order 7 Rule 17 of the Code of Civil Procedure was a rule of procedure and when the photocopies thereof, were duly adduced on record, no objection had been raised on behalf of the defendant/appellant and as such, such a question was not open to be raised at the stage of second appeal before the High Court. In this regard, learned counsel appearing for the respondent, also placed reliance upon a judgment in Smt. Joginder Kaur and others Vs. Amrik Singh 2009 (4) RCR (Civil) 82.
I have given my thoughtful consideration to the respective submissions advanced and have minutely perused the record.
The question that would require examination is, as to whether the bahi entries had been proved in accordance with law. Clearly, if the answer to such question is in the affirmative that the findings of the Courts below would not warrant any interference but on the other hand, if, the conclusions is otherwise, then the suit of the respondents would necessarily have to fail.
Order 7 Rule 17 of the Code of Civil Procedure reads as under:
"Production of shop-books.-(1) Save in so far as is otherwise provided by the Bankers' Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in a shop-book or other account in RSA No.4185 of 2011 -7- his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.
(2)Original entry to be marked and returned.- The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and, after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed."
The provisions of Order 7 Rule 17 of the Code of Civil Procedure are enabling provisions, by which a document can be brought on record but the standard of proof can not be dispensed with and such document has to be necessarily proved in accordance with law. Bringing on record documents in the shape of bahi entries and exhibiting the same does not mean that the standard and manner of proof as required to prove a document under the provisions of Section 62 of the Indian Evidence Act can be dispensed with.
In the facts of the present case, the plaintiff/respondent had relied upon the entry, Ex.P-6 pertaining to amount of Rs.3,51,600/- as also entries Ex.P-1 to Ex.P-5 for the remaining amount. The present appellant had categorically denied his thumb impressions on such bahi entries and had taken a specific stand that such entries were forged. Upon such specific and categoric stand having been taken, the onus clearly shifted back to the plaintiff/respondent to have proved such entries by getting the alleged thumb impressions of the appellant upon such entries examined by adducing expert evidence in the shape of a RSA No.4185 of 2011 -8- document or finger expert opinion. Admittedly, the plaintiff/respondent has failed to discharge such onus. The Courts below have erred in taking a view that since the defendant i.e. the present appellant had denied his thumb impressions on the bahi entries as such, it was for him to prove such entries to be fabricated and forged.
Even otherwise, the bahi entries in question and photocopies thereof, adduced on record have been held to be proved only upon the statement of the proprietor of the firm, Rajiv Kumar, who appeared as PW-1. The mere marking of an exhibit would not dispense with a proof of the document. The name of the author of such entries was neither forthcoming nor had been examined in support of such bahi entries. There was no corroborative evidence led by the plaintiff/respondent in the nature of income tax returns etc. so as to prove such bahi entries on the basis of which, the suit had been decreed.
The Hon'ble Supreme Court in Chandra Dhar Goswami and others Vs. Gowahati Bank Limited AIR 1962 SC 1058 has held 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. It was held that there has to be further evidence to prove payment of money, which may be in the books of accounts so that a person may be charged with liability thereunder. The only exception to such proposition would be, when a person fastening the liability accepts the correctness of the books of RSA No.4185 of 2011 -9- accounts and does not challenge them. It was accordingly held by the Apex Court that even though entries in the books of accounts regularly kept in the course of business are relevant but mere production and proof of these entries would not by themselves be seen to charge any person with liability and there has to be some independent evidence to prove the transaction.
For the reasons recorded above, I answer both the questions of law as formulated hereinabove in favour of the present appellant. The alleged entries in the account books/bahis were not proved in accordance with law and in the absence of any independent and corroborative evidence having been adduced on record in support of the transaction of money as per such alleged entries, the suit for recovery filed by the plaintiff/respondent could not have been decreed by the Courts below.
Accordingly, the present second appeal is accepted and the impugned judgments and decrees i.e. dated 01.02.2011 passed by the Trial Court as also dated 03.05.2011 passed by the Lower Appellate Court are set aside and the suit for recovery filed by the plaintiff/respondent stands dismissed.
Appeal allowed, accordingly.
May 30, 2012 (TEJINDER SINGH DHINDSA)
harjeet JUDGE
Note: Whether to be reported? Yes
RSA No.4185 of 2011 -10-