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1974 Supreme(Del) 217
High Court Of Delhi
BANSIBHAR GANGA PERSHAD AGENCY - Appellant
Versus
CHANAN LAL - Respondent
Regular Second AppeaL 1 of 1967
Decided On : 10/31/1974
Chaman Lal, SULTAN SINGH
In a suit for the recovery of the balance price of goods sold and delivered, the onus of proof lies on the defendant to prove that he has made the payments claimed, and failure to produce the best evidence and withholding of relevant account books can lead to an adverse inference being drawn against the defendant.
Headnote:
SALE OF GOODS - BALANCE PRICE - PAYMENT - ONUS OF PROOF - ADVERSE INFERENCE - ACCOUNT BOOKS - RECEIPTS - PRODUCTION - FAILURE - EFFECT.
Fact of the Case:
Plaintiff-appellant, a wool dealer, sued defendant-respondent, also a wool dealer, for the recovery of Rs. 6692.96, being the balance price of goods sold and delivered. The respondent admitted purchasing goods worth Rs. 14,209.67 and claimed to have made payments of Rs. 13,146.60, leaving a balance of Rs. 1063.07. The main controversy was whether the respondent had made additional payments of Rs. 4475.00, which the appellant disputed.
Finding of the Court:
The trial court and the lower appellate court found that the respondent had made the payment of Rs. 13,146.60 and decreed the suit for Rs. 1063.07 with interest. The appellant challenged this finding in second appeal.
Issues: 1. Whether the respondent had made additional payments of Rs. 4475.00 over and above the admitted payments? 2. Whether the onus of proof lay on the respondent to prove such payments?
Ratio Decidendi: 1. Onus of Proof: The court held that the onus of proof lay on the respondent to prove that he had made the additional payments of Rs. 4475.00. The respondent failed to discharge this onus by not producing the best evidence, namely, the receipts issued for the payments, and by withholding his account books of dealings with the appellant's sister concern. 2. Adverse Inference: The court drew an adverse inference against the respondent for failing to produce the receipts and account books, which could have corroborated his claim of payments. The court held that if these documents had been produced, they would have gone against the respondent's case. 3. Concurrent Findings of Fact: The court held that the concurrent findings of fact by the lower courts on the issue of payment were erroneous as they were based on a wrong approach to the onus of proof and a failure to consider the adverse inference arising from the respondent's failure to produce crucial evidence.
Final Decision: The appeal was allowed. The decrees of the lower courts were set aside, and a decree was passed in favor of the appellant for Rs. 5,983.07, including interest up to the date of the suit, with interest at 6% per annum from the date of the suit till payment and costs throughout.
( 1 ) ON 20th August, 1963, M/s. Bansi Dhar Ganga. Pershad Agency, plaintiff-appellant instituted a suit against Chanan Lal, proprietor of Jawahar Wool Store for the recovery of Rs. 6692. 96 p. on account of balance price of goods sold and delivered. The appellant s case was that during the period 13th September, 1962 to Ist April, 1963, Bansi Dhar Ganga Pershad Agency (the Agency) had supplied goods to the defendant-respondent of the valueof Rs. 14,771. 27 p. The appellants arc dealers in wool. So is the respondent. The respondent purchased wool of that value. The appellant further alleged that the respondent had paid Rs. 8671. 60 p. towards the price of the goods. A balance of Rs. 6099. 67 p. was claimed to be due. Interest was also claimed at the rate of 12 per cent. This amounted to Rs. 593. 29 p. In all a decree for Rs. 6692. 96 p. was claimed.
( 2 ) THE respondent in his defence stated that he had purchased goods worth Rs. 14,209. 67 p. and not Rs. 14,771. 27 p. as alleged by the appellant. The next important defence which he raised was that he had made payment of Rs. 13,146. 60 p. to the appellant and only a balance of Rs. 1063. 07 p. remained due from him which, however, he was prepared to pay. The respondent denied that he had merely paid Rs. 8671. 60 p. as was alleged by the appellant. A further payment of Rs. 4475. 00 was alleged by the respondent which the appellant disputed. This was, in fact. the main controversy between the parties.
( 3 ) THE trial court framed the following issues :
(1) Is the plaintiff firm registered under the Indian Partnership Act and Ajay Kumar is its registered partner ? (2) Did the defendants purchase goods worth Rs. 15,771. 27 from 1-10-1992 to 27-3-1963? (3) Whether the defendants have made any payments over and above the admitted ones ? (4) To what interest if any, is the plantiff entitled ? (5) Whether the plaint has been properly presented? (6) Is the plaint properly stamped? (7) Relief.
( 4 ) N this appeal only two issues, namely, issues No. 2 and 3 have been canvassed.
( 5 ) ON issue No. 2 the trial court came to the conclusion that the appellant had supplied goods worth only Rs. 14,209. 67 p. as was the case of the resopndent. On issue No. 3, it returned the finding that the respondent had made the payment of Rs. 13,146. 60 p. In a word the defence of the respondent was accepted and the trial court by order dated 31st May 1965 passed a decree for Rs. 1063. 07 p. and interest amounting to Rs. 112. 50 p. at the rate of 9 per cent. Proportinate costs were also awarded.
( 6 ) DISSATISFIED with the decree of the trial Court the appellant Agent went in appeal to the Additional District Judge. The Additional District Judge confirmed the decree of the trial Court, and dismissed the appellant s appeal on 29th of August, 1966. The appellant appeals to this court under Section 100 of the Code of Civil Procedure.
( 7 ) ON issue No. 2, the appellant s case is that the goods of the value of Rs. 14,771. 27 p. were sold and delivered to the respondent. The respondent denied that he received the goods of the bill of Rs. 561. 61 p. (P. 21 ). As regards this issue this was the only question in dispute between the parties. The bill of Rs. 561. 61 p. was alleged to have been signed by one Sant Lal, brother-in-law of the respondent. The respondent denied that Sant Lal was his brother-in-law or that he ever purchased the goods of this bill. The courts below on an examination of the evidence of this issue found that there was no cogent proof that Sant Lal had purchased the goods on behalf of the respond. ent. They also held that it had not been proved that Sant Lal was the brother-in-law of the respondent. Both the courts, therefore,held that the appellant had failed to prove that goods of this bill (P. 21) were supplied to the respondent. The result was that this issue was decided against the appellant. This is a concurrent finding of fact. I cannot interfere in second appeal. I t
