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IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
R. Sureshchandra Co.... Plaintiff.
Versus
Vadnere Chemical Works others... Respondents.
Suit No. 1142 of 1975, decided on 25-4-1990.
Advocates appeared :
Talegaonkar i/by Bhaishankar, Kanga Girdharlal, for plaintiff.
Ms. Madon i/by Wadia, Gandhi Co., for defendants.
Held-Such admission amounts to promise within meaning of Section 25 (3) and suit would be within time.
Sections 3 and 34-Evidence-Entries in account books-Person can not be charged milk liability on basis of these entries-But when claim is on basis of only those entries then account book entry becomes relevant proof.
It will first be necessary to get a clear picture of the accounts of plaintiff. PW 1 deposes that plaintiffs accounts are kept in the regular course of business and that entries therein are made as and when any transaction takes place. Ex. B is an extract from plaintiffs ledger book relating to it. dealings with defendant 1. Witnesses has been cross-examined at great length and has explained each entry. True copies of invoices to cannot some of these entries and the bank statement have been tendered by witness in response to a request made by the Advocate for the defendants. That a person cannot be charged writ liability on the basis of mere entries in books of accounts is clear from Section 3. of the Evidence Act. That secondary evidence can be adduced only upon proof of the non-availability of the original, is equality elementary. The invoices tendered by PW I are not carbon copies and PW 1 has not explained how they came to be prepared. But against these shortcomings is the omission of the defendants to come into the witness box. It is not as if they have nothing to explain. If nothing else PW 1s evidence shows that parties has been dealing with each other as far back as 1966, that a record of transactions between them was made that a mutual accounting took place and that as 13.11.1974 defendant 1 through partner defendant 3, acknowledged the existence of its liability to the extent of Rs. 3,40,673,00. The question as to whether the acknowledgement was made within limitation or not, may be kept aside for the moment. By itself the acknowledgement bears out the correctness of Ex. B which explains show defendant 1 became Indebted to plaintiff to the extent acknowledged. Therefore it is not as if the plaintiffs claim rests on nothing more substantial than mere entries in an account book. Taken together with the ill-concealed avoidance of the witness box by defendants, the sure conclusion is that plaintiff has proved issues Nos. 2, 3 and 4. Nothing much turns upon whether or not an accounting did or did not take place in June 1972.
2. Plaintiff, a firm registered under the Partnership Act, claims that it started dealing with defendants in 1966. Defendants 2 3 are partners doing business in the name and style of defendant 1. Plaintiff was supplying chemicals and advancing money to defendant 1. Defendant 1 supplied manufactured goods. An account of the transanctions was maintained and this showed a debit of Rs. 6,20,623.40 ps. Defendant 1 had supplied goods worth Rs. 2,79,965.14 ps. leaving outstanding a balance of Rs. 3,40,658.26 ps. The accounts were gone into and defendants had admitted the above position. In their balance sheet issued on 13-11-1974, defendants had acknowledged the above liability. Despite demand the dues plus interest @ 21% per annum, the acknowledgement brought the suit within limitation.
3. Defendants denied the averments summarised above. Defendant 1 had once purchased goods worth Rs. 14,620.60 ps. and the price had been paid in full. There was no accounting or settlement of accounts. Plaintiff's accounts were not regularly maintained nor reliable. Plaintiff's suit deserved to be dismissed with costs.
4. Pleadings aforestated have occasioned the following issues. These are given below with my findings recorded against them.
ISSUES FINDINGS
1. Does plaintiff prove that it was and is a
firm registered under the Indian Partne-
rship Act ? Yes.
2. Does plaintiff prove that as from 1966 onw-
ards it sold goods and advanced monies to
the defendants and that the total thereof
comes to Rs. 6,20,623.40 ps. ? Yes.
3. Does plaintiff prove that defendants made Yes.
4. Does plaintiff prove an outstanding of Rs.
3,40,658.26 ps. from defendants ? Yes.
5. Whether plaintiff establishes a mutual
accounting between it and defendants in
about June 1972 wherein defendants Does not survive.
admitted their being liable to the
plaintiff to the extent of Rs. 3,40,573.00 ?
6. Did defendants in their balance sheet dt.
13-11-1974 acknowledge the aforemen-
tioned liability and whether this acknow- Yes.
ledgement brings the plaintiff's claim with-
in limitation ?
6-A. What interest-if-any--is the plaintiff entitled
to ? Rs. 13,413.00
7. Relief and costs ? See para 13.
REASONS
5. P.W. 1 who is an Accountant of the plaintiff firm with a standing of 26 years has produced the certificate Ex. G. This document establishes the registration of plaintiff firm under the Partnership Act. Issue 1 has thus to be answered as 'yes'.
6. Having regard to the pleadings it becomes necessary to discuss Issue No. 2 to 6 bar, the factor of limitation-collectively. The plaintiff's stand is that it had dealings with defendants since 1966 and that in the course thereof, the latter became indebted to it to the extent of Rs. 3,40,658.26 ps. This was so admitted in the reckoning which took place in June 1972. In their balance-sheet dt. 13-11-1974 defendants acknowledged the existence of this liability. The written statement is a total denial of defendants having had any dealings with plaintiff except for an one-time cash purchase of goods worth Rs. 14,620.60 ps. Defendants have said nothing in relation to the acknowledgement, except that it was not made within the period of limitation of the original debt. The only witness examined at the trial is plaintiff's Accountant. Adjournments have been sought to examine defendant 2 and when an order was passed that he be examined on Commission, the plea was that this could not be done because of his physical condition. The medical certificate tendered showed that defendant 2 has some throat ailment which causes a difficulty in swallowing. At the Bar it was stated that defendant 2 is 100 years old. Statements made at hte Bar are not proof unless admitted by the other side. That apart, it is not as if defendant 2 is the only person who could ha
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