T.N.RAJAN v. T.R.GOPALAKRISHNAN

The defendant in a suit for recovery of money is the appellant. The suit was instituted by the respondent/plaintiff herein claiming a sum of Rs.1,00,500/- due from the defendant in connection with purchase of Tread rubber (processed rubber) allegedly on the strength of Exts.A1 to A10 invoices. The court below decreed the suit as prayed for. Hence this appeal.

3. The plaint averments may be briefly noticed. During 1991-'92 the plaintiff was engaged in the business of processing and sale of Tread rubber. According to the plaintiff, defendant had purchased Tread rubber from him on credit on the strength of Exts.A1 to A10 invoices. But the defendant did not discharge the liability though demands were made. Ultimately a notice was also issued; but the same was refused to be accepted by the defendant. The suit was instituted thereafter.

4. The defendant in his written statement admitted that he had business transactions with the plaintiff. But according to him, he had made AS.No. 16 of 1997. -: 2 :- purchases from the plaintiff only on cash payment. He denied the allegations in the plaint that during 1991-'92 he had made purchase from the plaintiff on credit basis. While referring to the invoices mentioned in the plaint it was contended by him that they were not intended to be credit invoices as alleged in the plaint. They were signed by him only to evidence purchase. In short, the defendant denied any liability as claimed in the plaint.

5. The plaintiff got himself examined as Pw1 and Exts.A1 to A14 were marked on his side. Defendant was examined as Dw1 and Ext.B1 was marked on his side.

6. The court below after evaluating the oral and documentary evidence available on record held that the plaintiff had established his case satisfactorily and that the defendant had failed to discharge the liability as reflected in Ext.A11 ledger and Ext.A12 day book.

7. It may at once be noted that the suit claim is based on Exts.A1 to A10 invoices drawn between April 8, 1991 and December 31, 1991. Under these invoices different quantities of Tread rubber is seen to have been sold to M/s.Trust Enterprises of the defendant. These invoices bear the name of the establishment of the plaintiff namely, M/s.Bartech Rubbers, Thangalur P.O., Thrissur district. Curiously in Exts.A1 to A8 invoices the AS.No. 16 of 1997. -: 3 :- defendant himself has admittedly signed for M/s.Bartech Rubbers. In the course of cross-examination of Pw1 he admitted that Dw1 was his authorised representative before the Sales Tax Department, Central Excise Department, etc. He further admitted that the defendant was related to him. It was also admitted by Pw1 that he had got carbon copies of Exts.A1 to A10 invoices with him. But they were never produced before the court by him. Though the specific case of the plaintiff was that these invoices were credit invoices, these documents did not indicate so. Further, in none of these invoices the defendant had made any endorsement to the effect that the goods contained therein were purchased by him on credit basis.

8. It may be noticed that the specific case of the defendant was that he never made any purchase from the plaintiff on credit. We have referred to this aspect in the evidence of Dw1 only to highlight the fact that the burden on the plaintiff to show that these purchases were made on credit basis had not been discharged by him at all. It is true that the defendant had admitted that he had received the goods indicated in Exts.A1 to A10 invoices. But the said admission, in our view, will not help the plaintiff in any manner for reasons to be indicated by us shortly.

9. Ext.A11 ledger was pressed into service by the plaintiff in support of his case. The last page of this ledger relates to M/s.Trust AS.No. 16 of 1997. -: 4 :- Enterprises, Thrissur. It is true that ten entries corresponding to the dates of Exts.A1 to A10 invoices are seen in this page. The numbers of the invoices are not mentioned against these entries. But all these entries are seen to have been made in the same ink and apparently on the same day. In answer to our query about the genuineness of these entries, the learned counsel for the plaintiff submits that it may be the usual practice. The Accountant would come towards the end of the year or some time during the financial year and make entries in the ledger. He invites our attention to Ext.A12 Day book in this context. He points out that there are entries in relation to all these entries on the corresponding dates in Ext.A12 Day book. But curiously, the Day book does not reveal transactions of any significance. Most of the entries are relating to purchase of chemicals, repair charge, miscellaneous expenses, etc. etc. Yet again we do not propose to make any comment on this Day book especially since the author of this Day book has not been examined. There is no explanation from the plaintiff as to why the Accountant or the author of the Day book was not examined. We may only say that the Day book does not inspire any confidence.

10. There is yet another aspect of the matter. It is admitted by Pw1 that the statement of accounts of the establishment for the relevant year was available with him. We are convinced that the amount receivable from the AS.No. 16 of 1997. -: 5 :- plaintiff would have been reflected in the statement of accounts. But the said document never saw the light of the day. There is no explanation from the plaintiff for the non-production of this document before this court.

11. In this context we may also noticed that Exts.A11 and A12 Ledger and Day book were produced before the court only at the time of the trial and that too when the case was taken up for trial ie. nearly two years after the institution of the suit. This also indicates that there is some force in the contention raised by the defendant that Exts.A11 and A12 were looked up by the plaintiff for the purpose of this case. Further, Exts.A11 and A12 will not show that these registers were produced before any statutory authority for inspection.

12. Learned counsel for the plaintiff has vehemently contended before us that the admission made by the defendant in the case would be sufficient to grant a decree in favour of the plaintiff. He points out that the defendant unambiguously admitted that he had made purchase of Tread rubber from the plaintiff under Exts.A1 to A8 invoices. It is true that the defendant when he was examined in the Court admitted that Exts.A1 to A8 invoices contained his signature. But he insisted that whenever he purchased Tread rubber it was against cash payment. The case of the defendant was that the Invoices were signed by him as acknowledgement of AS.No. 16 of 1997. credit purchase. -: 6 :-

13. We have already noticed that in Exts.A1 to A8 invoices, strangely, the defendant had put his signature for and on behalf of the establishment of the plaintiff himself. It could have been understood if the invoices were signed by the plaintiff himself or by some of his authorised signatories and that the defendant had, in his capacity as the purchaser, made an endorsement and put his signature indicating that the goods were delivered to him on credit basis. The mere fact that Exts.A1 to A8 invoices contained the signature of the defendant and also the fact that he admitted that the goods contained in those invoices were, in fact, purchased by him will not absolve the plaintiff from the burden of proving his case.

14. Having carefully perused the materials available on record, we are not at all satisfied that the plaintiff has succeeded in proving his case. The plaintiff cannot pick holes in the defence case and contend for the position that the suit is liable to be decreed. The documents produced by the plaintiff will not show that there was any credit transaction between him and the defendant. As stated by us earlier, Exts.A11 and A12 do not inspire any evidence. In our view no reliance can be placed on these two documents. Moreover, Exts.A1 to A10 also will not help the plaintiff in any manner. These are all loose sheets admittedly pulled out from a book with AS.No. 16 of 1997. counter-foils. -: 7 :-

15. We have tried to correlate Exts.A1 to A10 invoices with the other few entries available in the day book. There is nothing on record to show that during the relevant period some other so called invoice books were being used by the plaintiff in his establishment.

16. On an anxious consideration of the materials available on record, we are not satisfied that the plaintiff is entitled to get a decree. The court below, in our view, was not justified in decreeing the suit as prayed for.

17. Therefore, the decree and judgment passed by the court below are set aside. The appeal is allowed. However, in the peculiar facts and circumstances of the case, there will be no order as to costs. A.K.BASHEER, JUDGE . P.S.GOPINATHAN, JUDGE. kvs/- AS.No. 16 of 1997. -: 8 :- A.K.BASHEER & P.S.GOPINATHAN, JJ. ================ AS.No. 16 of 1997. ================ JUDGMENT 3rd July, 2009.