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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, NIRAL R. MEHTA, JJ.
JAY AMBE INDUSTRIES PROPRIETOR SHRI DINESHKUMAR BAJRANGLAL SOMANI - APPELLANT
Versus
GARNET SPECIALTY PAPER LTD. - RESPONDENT
FIRST APPEAL NO. 5228 of 2019
Decided On : 07-01-2022
Civil Procedure Code, 1908 - Section 96 - Indian Evidence Act, 1872 - Sections 34, 59, 61 and 62 - Proof of facts by oral evidence - Civil Suit - Suit for recovery of money – Dismissed - First appeal - Documentary Evidence - Power of Attorney - Whether the trial court was justified in dismissing suit instituted by plaintiff, despite there being no denial and/or no rebuttal evidence led by respondent-original defendant - Case of plaintiff that there was a commercial transaction of sale & purchase between plaintiff and respondent-defendant - Respondent-defendant purchased papers from the plaintiff to tune of Rs.42,31,167/-, out of which only Rs.12,64,950/- was paid. Thus, for recovery of the balance amount of Rs.29,36,211/-, aforesaid suit was instituted before court of Principal Senior Civil Judge - Held, It is well settled that a ledger, though an account book, has no evidenciary value unless entries made therein are proved by independent evidence which, in other words, would mean that there must be corroboration of entries which corroboration can be supplied by proving the transaction or by proving entries in Daily cash book or Roznama - Court opinion and even as per Section 34 of the Act, 1872, plaintiff could be said to have complied with requirements of producing other evidence to substantiate ledger account. The trial court has committed serious error in holding that the plaintiff has failed to establish that a sum of Rs.29,36,211/- is due and recoverable from defendant out of total dues of Rs.42,31,167/- Trial court ought not have ignored the evidence led by plaintiff through his Power of Attorney. Court view, Power of Attorney Holder certainly can depose in the proceedings to extent of his personal knowledge about transactions - The defendant has to confront the Power of Attorney as regards his personal knowledge. Thus, there is no dispute about his personal knowledge - Appeal allowed.
Key Points: - It is well settled that a ledger has no evidentiary value unless entries are proved by independent evidence, such as corroboration via Daily cash book or Roznama, to satisfy Section 34 of the Evidence Act (!) (!) (!) . - The trial court committed a serious error in dismissing the suit despite the lack of denial or rebuttal evidence from the defendant, as undisputed documentary evidence and oral testimony by the plaintiff's agent constituted sufficient proof (!) (!) (!) . - A Power of Attorney holder can depose regarding transactions to the extent of their personal knowledge, and the absence of cross-examination disputing this knowledge validates their testimony (!) (!) (!) . - There is no general law mandating a prior demand notice for suits for recovery of money, except under specific statutes like the Bombay Rent Act or Section 80 of the CPC for suits against the State (!) (!) . - The trial court erred in ignoring invoices and delivery challans signed by the defendant, as the initial burden of proof was discharged by the plaintiff, and the defendant failed to rebut this evidence (!) (!) (!) . - The appeal was allowed, the impugned judgment and decree were quashed, and the defendant was directed to pay the outstanding amount of Rs.29,36,211/- with 6% per annum interest (!) (!) .
JUDGMENT :
NIRAL R. MEHTA, J.
1. This first appeal is at the instance of an unsuccessful plaintiff and is directed against the judgment and decree dated 18.07.2012 passed by the Principal Senior Civil Judge, Vapi, in the Special Civil Suit No.62 of 2016 (Old No.72 of 2014), whereby the suit for recovery of money came to be dismissed.
2. The facts emerging from the records are that the Special Civil Suit No.62 of 2016 (Old No.72 of 2014) was instituted by the plaintiff (a proprietory concern) for recovery of an amount of Rs.29,36,211/- (Rupees Twenty-Nine Lakh Thirty-Six Thousand Two Hundred Eleven Only) from the respondent-original defendant with 15% interest. The aforesaid suit was instituted by the plaintiff through his Power of Attorney Holder.
3. It is the case of the plaintiff that there was a commercial transaction of sale & purchase between the plaintiff and the respondent-defendant. The respondent-defendant purchased papers from the plaintiff to the tune of Rs.42,31,167/- (Rupees Forty-Two Lakh Thirty-One Thousand One Hundred Sixty-Seven Only), out of which only Rs.12,64,950/- (Rupees Twelve Lakh Sixty-Four Thousand Nine Hundred Fifty Only) was paid. Thus, for the recovery of the balance amount of Rs.29,36,211/- (Rupees Twenty-Nine Lakh Thirty-Six Thousand Two Hundred Eleven Only), the aforesaid suit was instituted before the court of the Principal Senior Civil Judge, Vapi.
3.1 Despite the service of summons, the respondent-defendant thought fit not to appear before the trial court. Therefore, the suit was ordered to be proceeded ex-parte.
3.2 Having regard to the pleadings in the plaint, the trial court framed the following issues :
(2) whether the plaintiff proves that, the Rs.29,36,211/- is legal and recoverable debt from the Defendants?
(3) Whether the plaintiff is entitled to get interest? If yes,, at what rate?
(4) Whether the plaintiff is entitled to get reliefs as prayed?
(5) what order and decree?
3.3 The trial court answered all the aforesaid issues in the negative and dismissed the suit mainly on the following grounds :
(II) No independent witness has been examined so as to prove the contents and genuineness of the invoices and the delivery challans.
(III) Out of the total dues of Rs.42,31,167/- (Rupees Forty- Two Lakh Thirty-One Thousand One Hundred Sixty- Seven Only), the plaintiff failed to specify how Rs.12,64,950/- (Rupees Twelve Lakh Sixty-Four Thousand Nine Hundred Fifty Only) was paid to him and in connection with which particular invoice. No cogent evidence to establish and prove that Rs.29,36,211/- (Rupees Twenty-Nine Lakh Thirty-Six Thousand Two Hundred Eleven Only) is legally recoverable.
(IV) The suit was instituted through the Power of Attorney Holder and in the Examination-in-Chief, nothing has been said by the Power of Attorney Holder as to how he derived knowledge of the various transactions.
4. Therefore, being aggrieved by the aforesaid, the plaintiff has approached this Court by way of this Appeal under Section 96 of the Civil Procedure Code, 1908.
5. It appears that on 12.12.2019, this Court issued notice to the respondent-defendant, making it returnable on 23.01.2020. The appellant was permitted to serve the said notice directly to the respondent. The service of notice could not be effected despite the efforts put-forth by the appellant. It also appears that as the fresh address of the respondent-defendant could not be procured, the appellant sought for public notice to be published in the newspaper. On 12.03.2020, this Court permitted the appellant to issue public notice in the newspaper ‘Sandesh’, Surat Edition.
6. It appears that on 21.10.2020, this Court once again issu
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