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2012 Supreme(Gau) 254
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
SWAPAN CHANDRA DAS, J.
Sri Subrata Saha, S/o Sri Satindra Ch. Saha – Appellant
Vs.
Sri Pranab Kr. Saha,S/o Sri Jagadish Saha – Respondent
RSA No. 26 of 2000
Decided On: 23.02.2012
Advocate Appeared
For Appellant/Petitioner/Plaintiff:Mr. S.M. Chakraborty, Sr. Advocate, Mr. B.N. Majumder, Advocate, Mr. A. Dasgupta, Advocate and Ms. P. Chakraborty, Advocate
For Respondents/Defendant:Mr. A.K. Bhowmik, Sr. Advocate, Mr. S.R. Dey, Advocate, Mr. S. Ghosh, Advocate and Mr. R. Datta, Advocate
Headnote:
Civil Procedure Code, 1908 - Section 100 - Indian Evidence Act - Section 34 – Tenant – Evidence – Jurisdiction - Later on defendant stopped purchase of liquor from wholesale shop of plaintiff and plaintiff demanded amount lying due to be paid by defendant but defendant even after repeated demand did not make payment and therefore plaintiff issued notice to defendant to make payment but defendant did not respond – Held, First appellate court dismissed appeal on ground that no objection was raised by defendant when was taken in evidence - Such an inference drawn by first appellate Court is also not tenable in law a document which is not otherwise admissible does not become admissible simply because adverse party did not raise any objection finding of first appellate court is contrary to law settled by apex Court and by this Court - Decision of first appellate Court in taking as evidence and decision of first appellate Court on that point were absolutely wrong and are liable to be interfered -Judgment and decree therefore passed by learned Civil Judge Division and affirmed by learned Addl. District Judge in are set aside and quashed appeal is accordingly allowed but in circumstances without costs - Send back the L.C. records along with copy of the judgment - In case of this Court has held that unbound sheets of papers are not books of account and such sheets of papers cannot be relied particularly when there are interpolations and over writings - Appeal allowed
Hon'ble Mr. Justice S.C. Das
1. This appeal under Section 100 of Civil Procedure Code, 1908 was admitted to decide the following substantial question of law:-
Whether the courts below committed any error of law by admitting inadmissible documents for putting liability upon the defendant-appellant.
2. The fact of the case in a short compass is that the respondent as plaintiff instituted Money Suit No. 09 of 1996 in the Court of Civil Judge, Sr. Division, Court No. 1, West Tripura, Agartala against the defendant-appellant praying for a decree of Rs. 28,383/- with interest thereon. The plaintiff-respondent, inter alia, pleaded that he was a wholesaler of India Made Foreign Liquor(IMFL), having his business at Colonel Chowmuhani, Krishnanagar, Agartala, in the name and style of 'Tripureswari Bonded Warehouse' and he used to sell the foreign liquors to different retailers both on cash and credit. Defendant-appellant was a retailer of the plaintiff and the defendant used to purchase such Indian made foreign liquor from the plaintiff from time to time both on cash and on credit and during the period from 29.01.1993 to 15.04.1993 the defendant-appellant on different dates purchased foreign liquor valued at Rs. 22,382/- and out of it only paid Rs. 2,500/- in cash on 15.04.1993 and the rest of the amount of Rs. 19,882/- was lying due to be paid by the defendant-appellant. Further the defendant appellant took a loan of Rs. 8,501/- from the plaintiff-respondent and all those transactions were entered in the books of account of the plaintiff. Later on, the defendant stopped purchase of liquor from the wholesale shop of the plaintiff and the plaintiff demanded the amount, lying due to be paid by the defendant but the defendant even after repeated demand, did not make payment, and therefore, the plaintiff issued notice to the defendant to make payment but the defendant did not respond. The plaintiff also issued notice through his advocate but the defendant remained silent and under such circumstances the plaintiff instituted the suit for decree directing the defendant to make payment of Rs. 28,383/- with interest thereon.
The defendant-appellant contested the case by filing written statement denying purchase of foreign liquor on credit and further stated that he was a retailer but there was no system of purchase on credit and he never purchased foreign liquor on credit for his shop from plaintiff and no loan was taken by him as claimed by the plaintiff.
3. The trial court formulated four issues, namely-
(1) Whether the suit is maintainable in its present form?
(2) Whether the defendant purchased foreign liquors from the plaintiff on credit and if so whether the defendant paid the price of the foreign liquors to the plaintiff?
(3) Whether the defendant borrowed any amount from the plaintiff for running his business and if so whether he liquidated the loan amount to the plaintiff?
(4) Whether the plaintiff is entitled to any relief and if so upto what extent?
4. In course of trial, plaintiff examined himself as PW.1 and in support of his contention relied on 8(eight) items of documents, which have been marked as Exbts., namely-
Exbt.1. Permit issued by the Superintendent of Excise, dated 8.1.93 with relevant papers.
Exbt.2 Permit and pass issued by the Inspector of Excise on 10-3-93.
Exbt.3 Invoice issued by the plaintiff to the defendant on 27.3.93.
Exbt.4 Copy of money receipt dated 16.4.93 issued in favour of the defendant.
Exbt.5. Copy of ledger containing the Account of the defendant.
Exbt.6. Copy of the demand Notice
Exbt.7. Postal receipts.
Exbt.8. Advocate's notice.
5. The defendant also examined himself as DW.1 but adduced no documentary evidence.
6. I have learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Ms. P. Chakraborty for the appellant and learned senior counsel, Mr. A.K. Bhowmik, assisted by learned counsel, Mr. R. Datta for the respondent.
7. Learned Civil Judge, Sr. Division, decided issue Nos.1, 2 and 4 in favou
