ORDER

Date : 27.01.2021 Heard Mr. P. Kataki, learned counsel for the appellant at the stage of admission under Order XLI, Rule 11 of the CPC.

2) That the appellant is the defendant in M.S. No. 293/2011, which was filed by the respondent for realization of a sum of Rs.1,04,763.84 with interest @ 21% p.a. from the date of filing of the suit till realization. In brief, the case projected in the plaint was that the respondent had supplied lubricants to the appellant on credit vide six bills for a total sum of Rs.82,410/- and despite sending notice dated 06.08.2011, as no payment was made, the suit was filed for principal with interest till the date of filing of the suit. In his written statement, the appellant had denied receipt of goods and asserted that the claim was false. On contest, the said suit was decreed with cost vide judgment and decree dated 18.03.2017, passed by the Court of learned Munsiff No.2, Kamrup (M), Guwahati. The aggrieved appellant had preferred an appeal, which was registered as Money Appeal No. 1/2017. The said appeal was dismissed by the learned Civil Judge (Senior Division) No.3, Kamrup (M), Guwahati vide judgment and decree dated 13.05.2019. This appeal is directed against concurrent finding of the learned Courts below.

3) The learned counsel for the respondent has submitted that the respondent did not prove goods delivery challan, as such, the learned Courts below had erred in decreeing the suit on the basis of invoices alone. It is also submitted that in his cross examination as DW-1, the appellant had stated that he got his goods from other supplier. It is submitted that the learned Courts below had erred in relying on Ext. nos. 1(1), 1(2), 2(1), 2(2), 3(1), 3(2), 4(1), 4(2), 5(1), 6(1), 7(1), 8(1), 8(2) and 9(1), which were stated to be signatures of the employees of the appellant and/or the respondent, without those persons being examined as witnesses. It is submitted that the respondent had admitted that the bills and challans were made by his employees, who were not examined. Accordingly, it is submitted that following four substantial questions of law arise for determination by this Court, viz., (a) Whether by mere exhibiting a document without formal proof of the signature of the recipient, an inference can be drawn that the recipients has received the goods mentioned in the invoices; (b) Whether the burden of proof upon the plaintiff stands discharge on mere exhibiting a document without proving the signatures of the recipients; (c) Whether Section 114 (g) of Evidence Act attracts when there is specific denial regarding receipts of the goods; and (d) The defendant/ appellant craves the leave of the Hon’ble Court to take any other substantial question of law as framed by the learned Courts below under facts and circumstances of the case.”

4) In support of his contention, the learned counsel for the appellant had cited the following cases, viz., (1) Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Anr., (2003) 8 SCC 745; (2) Nandkishore Lalbhai Mehta Vs. New Era Fabrics Private Ltd. & Anr., (2015) 9 SCC 755.

5) It is seen that in course of trial, the learned trial Court had framed the following issues for trial, viz., (1) Whether there is any cause of action for the suit? (2) Whether the defendant had any transaction with the plaintiff as alleged in the plaint? (3) Whether the plaintiff is liable to pay Rs.1,04,763/84 to the plaintiff? (4) To what other relief(s) the parties are entitled to? On scrutiny of the evidence on record, the issue no.1 was decided in the affirmative and in favour of the respondent by holding that there was cause of action for the suit. As regards issue no.2, the learned trial Court held that exhibit nos. 1 to 6 contained the seal of the firm of the appellant and that while DW-1 denied about the seal in his cross examination, but no steps was taken to establish that the said seal was not of his firm and, as such, it was held that the six invoices had clearly established monet