Evidence of payments through stamped receipts can effectively discharge liability against unproven claims of defective goods.

JUDGMENT

It is against the decree and judgment of the trial court, the defendants 1 and 2 came up in appeal in a money suit for recovery of an amount of Rs.2,65,279.50 under Exts.A1 (a) and A1(b) invoices on account of supply of timber. The defendants though advanced a case of defective timber pleaded discharge of the liability in installments, for which, Ext.B1 series (29 stamped receipts) were produced and marked. It is signed by Prof.George Thomas, who is the power holder of his mother, the plaintiff. Admittedly, he was doing the business under that guise though he was employed as an Assistant Professor in an aided college. He had given oral evidence as PW1 and admitted that he is the power holder of his mother and marked Ext.A1(a) and A1(b) invoices, besides Exts.A2 and A2(a)

and (b) ledgers showing the alleged transaction. Admittedly, it did not contain any payment schedule or any entry with respect to any payment. On the other hand, Ext.B1 series contains his signature and all are stamped receipts. Except a bare denial, no satisfactory evidence was adduced to show with respect to the similarity of 29 signatures found affixed in the stamped receipts as that of him with the admitted signatures in the written statement and Vakkalath. Further, a mere perusal of the signature would show that it is not an easily imitable one. The defendant had given direct evidence in support of Ext.B2 and Ext.B1 series. Exts.B3 and B3 (a) are the copy of return submitted before the Sales-Tax authorities for the period 1998-1999, wherein there is entry with respect to the abovesaid payment. The application submitted under Order XXI Rule 27 C.P.C. for acceptance of additional evidence cannot be sustained on the reason that what is sought to be produced as additional evidence is the day book alleged to have been kept by the plaintiff in the ordinary course of business and no sufficient reason was advanced for not tendering the abovesaid evidence at the trial stage. The abovesaid document – the day book cannot be accepted in evidence unless proved to be maintained in the ordinary course of business, for which, necessarily, sufficient evidence should be adduced. Further, even if it is found that the said document was kept in the ordinary course of business, that alone cannot be acted upon as sufficient evidence. The legal position has been very much settled by this Court inPankaj Soaps and Detergents (M/S.) v. M/S. Chaithanya Brothers [ 2022 (5) KHC 87 ]. Hence, the application -I.A.No.1/2022 will stand dismissed. The trial court ought to have dismissed the suit based on 29 documents, Ext.B1 series and Ext.B2 and B3 especially when it was subjected to cross-examination through the defendant, who had given direct evidence. Hence, the decree and judgment of the trial court will stand set aside. The suit is dismissed. The parties are directed to suffer their respective costs of the suit and the appeal.

I.A.No.1/2022 will stand dismissed. The appeal will stand allowed accordingly.