Author of Account Books not examined.

S.K. Krishnan.J.

Aggrieved by the judgment and decree passed by the learned Single Judge of this Court in C.S.No.1014 of 1994, dated 14.1.2000, the plaintiff has preferred this Original Side Appeal.

2. The facts leading to the filing of this appeal are as follows:

a. On 3.4.1992 the defendant placed orders with the plaintiff, who is the dealer in stainless steel and manufacturer of alloy and special steel bright bars, for the supply of 11700 kgms of S.S.Pipes. The plaintiff accepted the said orders at its Madras office and agreed to supply the same through its Non-Residential Office at Bombay. Thereafter, the plaintiff delivered the goods to the defendant on credit for Rs.14,18,625/- under invoice No.DO.1/1/92-93, dated 3.4.1992. The defendant also agreed to pay interest at 22.5% after 60 days. The defendant acknowledged the receipt of the goods and agreed to pay the amount after adjusting the advance of Rs.7 lakhs paid to its sister concern M/s. Metal Processing Industries P. Ltd. and the defendant also agreed to sent Form XIV. Despite repeated demands, the defendant has not paid the balance of Rs.7,18,623/- and interest. However, on 6.8.1994, the plaintiff sent a letter, but the defendant has not paid the amount. Hence the above suit.

3. Denying the averments made in the plaint, the defendant filed the Written Statement.

4. The learned Judge of this Court considering the oral and documentary evidence, dismissed the suit on the ground that the plaintiff failed to establish with any unimpeachable evidence that the plaintiff is entitled to claim the suit amount from the defendant. Hence, the present Original Side Appeal.

5. Heard both sides.

6. The point for consideration is whether the judgment and decree passed by the learned Judge of this Court in C.S.No.1014 of 1994, dated 14.1.2000, is sustainable under law and on facts.

7. The plaintiff is the appellant herein. The plaintiff is a registered partnership firm and doing metal business at No.50, SIDCO, Industrial Estate, Ambattur, Madras-98. The plaintiff is having offices both at Bombay and Madras.

8. It is the case of the appellant/plaintiff that the respondent/defendant is carrying on business in the name and style of M/s. Meena Metals at No.74, C.P. Tank Road, Bombay. The respondent/defendant purchased the goods from the plaintiff on credit basis for Rs.14,18,625/- under invoice No.DO.1/1/92-93, dated 3.4.1992.

9. It is the case of the plaintiff that the defendant also agreed to pay interest at the rate of 22.5% after 60 days. Further, the defendant handed over a letter, dated 10.4.1992, acknowledging the transaction effected between the appellant/plaintiff and the respondent/defendant, to the plaintiff. After adjusting the advance amount of Rs.7,00,000/-, the plaintiff issued a legal notice to the defendant asking him to pay the balance amount of Rs.7,18,625/-. Since the respondent/defendant failed to pay the said amount, the appellant/plaintiff instituted the suit against the defendant for the recovery of the said amount.

10. The learned counsel appearing for the appellant would submit that the respondent/defendant after receiving the goods, from the plaintiff firm acknowledged the said transaction under Ex.P.2, dated 10.4.1992. This fact has been established by the appellant/plaintiff by way of adducing satisfactory evidence before the learned Judge of this Court. The evidence of the plaintiff is not only supported by Ex.P.2 but also corroborated by the evidence of P.W.2.

11. In such circumstances, the learned Judge concluded that Ex.P.2 is a fabricated document and no reliance could be placed on it. Further, the learned Judge observed that the appellant/plaintiff failed to take steps to compare the signature of the defendant by an handwriting expert.

12. In such circumstances, it is pointed out that the learned Judge without appreciating the oral as well as the documentary evidence produced on the side of the appellant/plaintiff to establish the transaction ef