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Haribux Gouri Sankar Firm and ors. Vs. Subhakaran Tulsiram and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 82 of 1962
Judge
Reported inAIR1965Ori211
ActsEvidence Act, 1872 - Sections 34; Code of Civil Procedure (CPC) , 1908 - Sections 35
AppellantHaribux Gouri Sankar Firm and ors.
RespondentSubhakaran Tulsiram and ors.
Appellant AdvocateL.K. Das Gupta and ;J.N. Mitra, Advs.
Respondent AdvocateM.N. Das, ;S.C. Ray and ;S.B. Nanda, Advs.
DispositionAppeal dismissed
Excerpt:
.....practice followed. even so, the plaintiffs failed to explain how the entries have been made in the regular course of business on the basis of alleged forward contracts. we fail to appreciate how the entry ext. we hold that the plaintiffs have failed to establish that the books produced in court had been kept in the regular course of business. it is unintelligible why in this particular transaction with the defendants the plaintiffs did not take the precaution of having the signature of the defendants particularly when it is alleged that there was bad feeling between the parties by reason of pending litigation between them. 10. in the ultimate analysis, therefore, we are not satisfied that the plaintiffs have been able to prove their alleged claim against the defendants under the..........1955 after giving notice. in support of the plaintiff's claim they relied on certain entries in jama bahi ext. 1 and ledger, ext. 2. in defence the plaintiffs' alleged claim was denied. it is alleged that the suit was filed out of enmity due to litigation between the parties with which back-ground we are not directly concerned for the purpose of deciding this case. the learned trial court dismissed the plaintiffs' suit mainly on the ground that the books of account on which the plaintiffs mainly relied were not regularly kept in the course of business and accordingly no reliance can be placed on them.2. the entry in jama bahi dated february 29, 1952 in hindi as translated in english supplied by the party is this :jama bahi page 4.rs. 5,318-15-0credited in the khata relating to.....
Judgment:

Barman, J.

1. This appeal arises out of a suit filed by the plaintiffs appellants for recovery of Rs. 5,318-15-9 as price of 200 tins of groundnut oil alleged to have been supplied on February 29, 1952 on credit to defendant No. 1 Messrs. Subhakaran Tulsiram a firm of which defendant No. 2 Tulsiram is said to be the managing proprietor. The plaintiffs also claimed Rs. 1,436-0-3 as interest, the total amount claimed in the suit being Rs. 6,755/-. The suit was filed on February 28, 1955 after giving notice. In support of the plaintiff's claim they relied on certain entries in Jama Bahi Ext. 1 and Ledger, Ext. 2. In defence the plaintiffs' alleged claim was denied. It is alleged that the suit was filed out of enmity due to litigation between the parties with which back-ground we are not directly concerned for the purpose of deciding this case. The learned trial Court dismissed the plaintiffs' suit mainly on the ground that the books of account on which the plaintiffs mainly relied were not regularly Kept in the course of business and accordingly no reliance can be placed on them.

2. The entry in Jama Bahi dated February 29, 1952 in Hindi as translated in English supplied by the party is this :

Jama Bahi Page 4.

Rs. 5,318-15-0Credited in the khata relating to Groundnut oil. Month of Falgun right fortnight 4th. 29-2-52.

Rs. 5,318-15-0In the name of SubhakaranTulsi-ram Month o Falgun, bright fortnight 4th. 29-2-52, Sales Tax No.3694. Khata (Ledger) page No.14.

Rs. 5,318-15-9200 tins of groundnut oil 88 Mds, 241/2 srs. Less 5 mds. tor the tins. Net weight 63 mds. 241/2 seers Price Rs. 83/- per md.Total Price...Rs. 5,279-13-3Price of empty tins...Rs. 37-9-0For Gosala...Rs. 1-10-6

Grand Total...Rs. 5,818-15-9

The corresponding entry in the ledger in Hindi as translated in English (supply by the party) read thus:

'Ledger page 14.Subhakuran Tulsiram account.

Rs. 5,318-15-9 Jama page 7 carried over to new book.Rs. 5,318.15-9Jama page 4 month of Falgun bright Fortnight 4th 29-2-52

Rs. 5,318-15-9

Rs. 5,318-15-9.

'

3. The plaintiffs' case is that these entries in the books of account were regularly kept in the course of business. In support of their case they examined their accountant P. W. 1 and their weighman P. W. 6. One of the plaintiffs being plaintiff No. 2 was also examined as P.W. 4. The accountant P.W. 1 said that defendant No. 2 Tulsiram took on credit 200 tins of groundnut oil from the plaintiffs and that the same were delivered to him; he (P. W. 1) was present at the time of the said transaction, that he got the tins weighed; it was noted in the Account book (Zama Bahi) which is kept in due and regular course of business. The witness also said that the Khata is in his handwriting and that the entry in Jama Bahi Ext. 1 is in his handwriting. The witness further said that the corresponding entry in the Ledger is also in his handwriting and the Ledger is also kept in due and regular course of business. The evidence of the other witnesses examined on behalf of the plaintiffs is also to the same effect.

4. The plaintiffs' case as pleaded in paragraph 3 of the plaint is that for giving delivery or groundnut oil to M/s. Raghunath Hargobind of Station Dock Yards, Cuttack the then Commission Agents of the defendants' firm, the defendants were in need of 200 tins of groundnut oil and so on 29-2-52 the defendants' firm took groundnut oil on credit from the plaintiffs' firm valued at Rs. 5,318-15-9. In support of this the plaintiffs relied on an entry in the defendants' Account Book Ext. AA.

'DR.

Raghunath Hargobind Dr. 497 tins

G. N. oil kept (Jima) for sale on

commission 29-2-52.'

The plaintiffs' case is that this is a piece of corroborative evidence of their having supplied 200 tins of groundnut oil on February 29, 1952.

5. Apart from the entries in the plaintiffs' Jama Bahi and the Ledger and the evidence of their Accountant and plaintiff No. 2 there is no receipt nor any writing given by the defendants acknowledging this 'transaction.

6. Section 34 of the Evidence Act is that-

'Entries in books of account regularly kept in the course of business, are relevant when they refer to a matter into which the Court has to enquire, but such statements shall not alone be sufficient evidence to charge any person with liability.'

The question here is : Were the entries in the Jama Bahi and the Ledger on which the plaintiffs rely regularly kept in the course of business The defendants rightly commented on the factual position that the plaintiffs did not produce in Court the English translations of the Marwari documents in full. It is only an entry in the Jama Bahi Ext. 1 and an entry in the Ledger Ext. 2 which were produced. These by themselves cannot fasten the defendants with liability. It was fairly conceded on behalf of the plaintiff's that it was their duty to supply all the accounts in chronological order. In this context the evidence of one at the plaintiffs (plaintiff No. 2) examined as P. W. 4 shows that the books do not appear to have been kept in the usual course of business. The relevant portions of his evidence are these :

'The entry Ext. 2 (Jama Bahi) does not contain the date 10-1-1953. Exhibit F was made on 8-1-1952. The Khata started on 15-4-1951. There was transaction from 15-4-1951 to 8-1-1952 in my Mal-Godown branch. The transactions are in the khata. At the time of transactions, the entries in respect of the transaction from 15-4-1951 to April 1952 were made in this Khata at the time when those transactions took place. Exhibit 1 was written on 29-2-1952. Exhibit G was written on 20-1-1952. Exhibit E was written on 18-1-1952. Exhibit 1 was written on 1-2-1952.

X XX X X

All the transactions at Mal-godown have been noted in the Jama book date by date. The Jama book will not show that on 7-2-1952 the firm had transaction with V, Suryanarayan. The detail weighment is not noted in each case in the khata. There is no reason why this fact is not noted in the Khata.'

7. On careful scrutiny of the relevant entries we are satisfied that the entries were not made in the usual course of business. The plaintiffs failed to explain to Court on what system these entries were made. The plaintiffs failed to explain the practice followed. It was sought to be argued that this relates to forward contracts. Even so, the plaintiffs failed to explain how the entries have been made in the regular course of business on the basis of alleged forward contracts. We fail to appreciate how the entry Ext. G dated January 20, 1952 came to be entered at page 4 of the Jama Bahi while the entry in respect of an earlier date namely Ext. H dated January 18, 1952 came to be entered in a later page being at page 5 of the Jama Bahi. Similarly it is not understandable how the relevant entry in suit Ext. 1 dated February 29,1952 quoted above came to be entered at page 4 of the Jama Bahi while the entries of earlier dates namely Ext. H dated January 18, 1952 and Ext. I dated February 1, 1952 could be entered at a later page being page 5 of Jama Bahi. In fact the unsatisfactory replies of P. W. 4 (plaintiff-2) when confronted with the relevant entries in the books of account completely demolishes the plaintiffs' case. We hold that the plaintiffs have failed to establish that the books produced in Court had been kept in the regular course of business.

8. That apart, Ext. T series show that in respect of plaintiffs' transactions with other ustomers, the plaintiffs' Gumasta used to take signatures of their customers on the letter pad of the plaintiffs' Firm Haribux Gouri Shankar Firm. On this point the evidence of plaintiff No. 2, as P. W. 4 when confronted with these documents is this :

'Exhibit T and T-1 are the signatures of Bhagirathi Mal my (plaintiffs') Gumasta. Exhibit T-2 and Ext. T-3 are in his handwriting. Exhibit 2 and Ext. 3 are my (plaintiff Haribux Gourishankar's) letter pad. The exhibits will show that there was sale of groundnut oil to V. Suryanarayan and Sons dated 7-2-52 and 27-2-52. The transaction of 27-2-1952 was mentioned in the ledger.'

It is thus evident from the plaintiffs' own evidence that the plaintiffs' Gumasta used to take signatures of the customers on the plaintiffs' letter pad. It is unintelligible why in this particular transaction with the defendants the plaintiffs did not take the precaution of having the signature of the defendants particularly when it is alleged that there was bad feeling between the parties by reason of pending litigation between them.

9. As regards the entry in Ext. AA quoted above purporting to show that the defendants commission agents Messrs. Raghunath Hargovind had kept 497 tins of G. N. oil for sale on February 29, 1952, this entry by itself is not clinching; this cannot be connected with the alleged transaction with the defendants which was in respect of 200 tins only. No explanation is forthcoming for the balance 297 tins; there is no evidence that 497 tins included 200 tins in suit. The entry in Ext. AA does not therefore improve the plaintiffs' case.

10. In the ultimate analysis, therefore, we are not satisfied that the plaintiffs have been able to prove their alleged claim against the defendants under the transaction in question. The plaintiffs' claim must therefore fail.

11. There is no (also ?) cross appeal by the defendants against the order of the trial Court regarding costs. The trial Court ordered that as the parties are related to each other they are directed to bear their respective costs of the suit. In our opinion this order as to costs is not justified. Normally the costs should follow the event. The plaintiffs' claim having failed the defendants are entitled to costs.

12. The decision of the learned trial Court dismissing the plaintiffs' suit is upheld. The order of the learned trial Court disallowing costs cannot be sustained. The defendants are entitled to costs. The plaintiffs' suit is therefore dismissed with costs throughout. In the result, therefore, the plaintiffs' appeal is dismissed and the defendants' cross appeal for costs is allowed.

Misra, J.

13. I agree.


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