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Kelu Sahu and ors. Vs. Hadibandhu Sahu and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 277 of 1964
Judge
Reported inAIR1968Ori18; 33(1967)CLT825
ActsEvidence Act, 1872 - Sections 34
AppellantKelu Sahu and ors.
RespondentHadibandhu Sahu and anr.
Appellant AdvocateDayanidhi Sahu, Adv.
Respondent AdvocateMadhabananda Das, Adv.
DispositionAppeal dismissed
Excerpt:
.....dues of 1958 brought forward to the year 1959. the excess payment corroborates the entry of the balance brought forward from the year 1958. it is open to a court of fact to treat the excess payment as satisfactory evidence corroborating the balance brought forward from the previous year maintained in a khata kept in the regular course of business......used to make payments. defendants' liability was to the tune of rs. 2,236-59 upto the end of the year 1958. defendants took articles on credit to the tune of rs. 1,824-66 from 3-1-59 to 9-6-59 and made payments of rs. 2,55-00 between 3-1-59 and 12-8-59. the suit was for recovery of rs. 1,693-00 inclusive of interest on the basis of khata account. an account was given in the schedule of the plaint stati(sic) therein the dates when articles on credit were taken and when payments were made. defendants case is that defendant no. 1 had a small grocery shop and had transactions with the joint family firm consisting of arjun sahu, father of plaintiff no. 1 and kunja sahu, father of plaintiff no. 2 from 1948 onwards. all the dues have been paid up and there was no outstanding liability......
Judgment:

G.K. Misra, J.

1. Plaintiffs constitute a Joint family. Defdts. nos. 2 to 4 are the sons of defdt. no. 1. They constitute a joint family of which, defdt no. 1 is the Karta. Plaintiffs' case is that the defdts. had a grocery shop and used to purchase articles on credit from the joint family firm of the plaintiffs' father and uncle and used to make payments. Defendants' liability was to the tune of Rs. 2,236-59 upto the end of the year 1958. Defendants took articles on credit to the tune of Rs. 1,824-66 from 3-1-59 to 9-6-59 and made payments of Rs. 2,55-00 between 3-1-59 and 12-8-59. The suit was for recovery of Rs. 1,693-00 inclusive of interest on the basis of khata account. An account was given in the Schedule of the plaint stati(sic) therein the dates when articles on credit were taken and when payments were made. Defendants case is that defendant no. 1 had a small grocery shop and had transactions with the joint family firm consisting of Arjun Sahu, father of plaintiff no. 1 and Kunja Sahu, father of plaintiff no. 2 from 1948 onwards. All the dues have been paid up and there was no outstanding liability. Defendants nos. 2 to 4 have no connection with that shop. Further pleas were also taken that the suit was not maintainable on account of non-joinder of necessary parties and non-registration of the firm under the Indian Partnership Act.

2. The learned Munsiff dismissed the suit holding that the amount of Rs. 2,236.59 shown as balance dues of the year 1958 had not been satisfactorily proved. The learned Lower appellate court rejected the technical objections on the ground of nonjoinder of parties and non-maintain ability of the suit under Section 69 of the Partnership Act. It decreed the plaintiff suit holding that plaintiffs satisfactorily established that there were arrear dues in respect of the transactions of the year 1958. Defendants have filed the second appeal.

3. The only contention advanced by Mr. Sahu is that the plaintiffs have failed to prove that there was a balance of Rs. 2,236-59 p. in respect of credit transaction ending with the year 1958. To appreciate this contention some detailed facts are to be noticed. The accounts furnished by the plaintiffs in the schedule attached to the plaint may be extracted --

1959

1.Brought forward from the year 1958...Rs. 2,236-572.3-1-59 Goods taken on credit...Rs. 535-95

Total...Rs. 2,772-523.3.1-59 paid ... ...... Rs. 425-00

Balance...Rs. 2,347-524.19.2.59 Goods taken on credit...Rs. 549-78

Total... Rs. 2,897-305.19-2-59 paid ......Rs. 470-00

Balance...Rs. 2,427-306.6.3.59 paid...... Rs. 200-00

Balance...Rs. 2,227-307.8.5.59 paid ... ...Rs. 949-00

Balance...Rs. 1,278-308.9 6-59 Goods taken on credit...Rs. 738-98

Total...Rs. 2,017-259.9-6-59 paid ......Rs. 371-00

Balance...Rs. 1,646-2510.12-8-59 paid ......Rs. 40-00

Balance...Rs. 1,606-25

4. Mr. Sahu did not rightly assail the finding of the learned lower appellate court that the accounts of the plaintiffs for the year 1959 excepting the item of the balance brought forward from the year 1958 have been satisfactorily proved. The finding of the learned lower appellate court is based on the accounts, the entries in the credit sale (Ext. 3 series), the credit memos (Ext. 2 series) and the evidence of P.W. 1 (Plaintiff no. 1).

5. Section 34 of the Evidence Act enacts that entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to enquire, but such statement shall not alone be sufficient evidence to charge any person with liability. The entries in the books of accounts (Ext. 3 series) have been regularly kept in the course of business. P W. 1 deposed that in his presence the articles mentioned in those entries were given on credit to the defendants. He also proves the payments made on various dates. If the entries in the account books were the only evidence on record, under this section, they would not be sufficient to charge the defendants with liability. The entries are however, fully corroborated by the evidence of plaintiff No. 1 in whose presence the articles were advanced on credit and by the credit memos (Ext. 2 series) signed by Kelu Sahu (defendant no. 1). All that the law requires is that the entries must be corroborated. Any evidence which is relevant under the Evidence Act would be sufficient for the purpose of corroboration. No particular form of evidence is necessary. The quantum of evidence required for corroboration would vary in each case. The materials for corroboration may be contemporaneous vouchers, receipts or any other documentary evidence or the testimony of witnesses. It is not necessary that independent oral evidence is to be given in each case. Even the evidence of the plaintiff himself may be sufficient for corroboration provided the court accepts the same. Thus no inflexible rule as to the test of corroboration can be prescribed.

6. Mr. Sahu however contends that the balance of Rs. 2,236-59 p. of the year 1958 brought forward to the year 1959 has not been corroborated and a decree in respect of that amount cannot be passed merely on the basis of the entry in the khata account. This contention requires careful examination. It is not disputed by Mr. Das that the individual transactions and payments for the year 1958 have not been proved through P. W. 1. He has no personal knowledge of the advances made in the year 1958. The question for consideration, however, is whether the balance struck out for the year 1958 has been corroborated by any other evidence. The learned lower appellate court has not discussed this aspect of the case and has on the other hand committed an error of record in saying that the defendants admitted this position.

7. I have already stated that law does not prescribe any particular form of corroboration. Any relevant evidence under the Evidence Act, if accepted as true, can corroborate the entry. Ext. 5 is the khata account of the year 1958 The individual entries of credit transactions and payments have not been separately proved, but the balance struck out has been done in the regular course of business and has been merged in the accounts of 1959 The accounts of the year 1959 have been started by bringing forward this balance from the year 1958 to the year 1959. If there is no corroboration evidently plaintiff's suit is liable to be dismissed.

8. It is to be noted that the total credit transactions done by the defendants with the plaintiffs in the year 1959 are Rs. 1,824.66. Defendants however, made a payment of Rs. 2,455-00. Thus there was an excess payment of Rs. 630-34 P. by the defendants in 1959. None was examined on behalf of the defendants to explain how and why this excess payment was made.

Their case in the written statement was that the dues of the plaintiffs had been fully paid up. On the contrary, P. W. 1 clearly explains that this excess payment was towards the balance dues of 1958 brought forward to the year 1959. The excess payment corroborates the entry of the balance brought forward from the year 1958. It is open to a court of fact to treat the excess payment as satisfactory evidence corroborating the balance brought forward from the previous year maintained in a khata kept in the regular course of business. Mr. Sahu was unable to cite a single decision to negative the conclusion that part payments made towards a balance struck cannot be used as corroborative evidence. It is unnecessary to express any view on the application filed by the plaintiffs for adducing additional evidence.

9. In the result the appeal fails and is dismissed with costs.


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