Bakshish Singh alias Shisha Singh v. Nar Singh Dass Gupta

With regard to question No.(iii), learned counsel has vehemently argued that even in the evidence, the respondent did not prove the previous outstanding balance with reference to the earlier entries. He has, thus, contended that in the absence of any proof with regard to alleged previous balance, the suit could not have been decreed. In this regard, reliance has been placed upon the case of Jangir Singh Vs. Firm Hari Chand Om Parkash, Arhati, Budhlada, 2000 (2) PLR 740, wherein this Court held as follows:- “Until a due execution of a document is established no adverse inference can be drawn against a person who simply puts a signature or thumb-impression on a document. It is the common cases of the parties that in the present case Shri Jangir Singh defendant was a simpleton agriculturist. It was obligatory upon the RSA No.807 of 2009 (O & M) ::3:: plaintiff to prove the due execution and payment of consideration. On both these counts, the plaintiff has failed and the payment of Rs.5300/- on the basis of bahi entry P.1 is not proved”. Further reliance has been placed upon the case of M/s Hada Steel Products Limited (In Liquidation) Vs. M/s Emjay Engineering Enterprises, Bombay, 1995 (3) PLR 254, this Court held as follows:- “5. The sole question to be determined in this case is as to whether the goods were received by the respondent and whether payments of those goods was made to the Company. The respondent has admitted the receipt of goods as per invoices Exhibits PW2/1 to PW2/9. A perusal of the statement of accounts produced by the Company makes it quite clear that the price of these goods was paid to the Company and the same stands reflected in that statement. In this view of the matter, it has to be held that the goods received by the respondent in terms of the aforesaid ivnvoices have been paid for and no amount was due to the Company from the respondent. As regards the goods said to have been sent to the respondent through invoice Exhibit PW2/10, the receipt of the same has been denied by it. There is not even an iot6a of evidence on the record to show that the goods mentioned in this invoice (Exhibit PW2/10) were ever received by the respondent. The liability for the payment of those goods is sought to be fastened on the respondent solely on the basis of entries in the books of account which have been produced on the record. It is a settled principle of law that no person can be charged with liability merely on the basis of entries in the books of account even where such books of account are kept in regular course of business. There has to be further evidence to prove the receipt of goods by the person who is sought to be made liable for payment. Besides, RSA No.807 of 2009 (O & M) ::4:: a mere look at the statement of account produced by the Official Liquidator shows that the same is not correct as it contains a large number of arithmetical/clerical errors. In the absence of any evidence to show that goods mentioned in Exhibit PW2/10 were ever received by the respondent, it cannot be made liable for their payment”. Learned counsel for the appellant further relied upon the judgment laid down in M.Venkataraman Hebbar (Dead) by LRs Vs. M.Rajagopal Hebbar & Ors., 2007 (2) PLJ 176, wherein it was held as follows:- “13. Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved”. On the strength of these judgments, learned counsel has argued that the present was a case where it was not shown that there was an agreement between the parties that the appellant is to take over the loan account of his father. In this connection, he has relied upon the statement of PW-2-Balbir Gupta, who is the son of the respondent, who has stated in his cross-examination that no agreement took place in his presence. He has further argued that in the response to the written statement filed by the appellant, with regard to the plea that the respondent had used blank signed papers there was no specific denial. In these circumstances, he has prayed that the appeal should be accepted and the suit is dismissed. Learned counsel for the respondent on the other hand has relied upon Jagat Ram Vs. Hawa Singh, 2001 (2) Apex Court Journal 245 (S.C.), wherein the Hon'ble Supreme Court held as follows:- “10. We have perused the judgment of the First RSA No.807 of 2009 (O & M) ::5:: Appellate Court in para 10 whereof the entry in the account book “Bahi Entry” is quoted verbatim. On the plain reading of the said entry it is clear to us that the respondent has acknowledged receipt of the sum of Rs.15,000/- as loan with interest at the rate of Rs.1.50 per month and with the further stipulation that the amount shall be returned by Ist January, 1986. The finding of the First Appellate Court that in the entry the past transactions between the parties amounting to Rs.15,000/- to be paid by the respondent which does not show passing of consideration on the date of the entry is clearly based on the misreading and misconstruction of the entry. The respondent as noted earlier admitted his signature on the account book. He made a bare denial of receipt of the amount on the plea that he might have been in a drunken state at the time of making the entry. Such a bare denial in the circumstances of the case is not sufficient to rebut the presumption under Section 118 of the Negotiable Instruments Act, 1881. The position was accepted by this Court in the case of Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payarelal JT (1999) SC 576. Learned counsel has argued that in his desposition, the appellant had admitted that the signatures were his. He further argued that the scribe as well as the respondent had given all the relevant details about the agreement between the parties. With regard to Balbir Gupta, Learned counsel has stated that in his Affidavit-in-chief, the said Balbir Gupta had reitereated that the appellant had signed the Bahi entry and therefore, even if the settlement had not taken place in his presence, that would not have the effect of washing away the agreement . Apart from this, learned counsel have also shown me a copy of the Bahi entry. A bare perusal makes it clear that the signatures are those of the appellant. Apart from that, just below the signatures, the appellant has himself written in Hindi that the total amount is Rs.8 Lacs. In my opinion, the said hand- RSA No.807 of 2009 (O & M) ::6:: writing is also that of the appelant. As regards the judgments cited by the learned counsel for the appellant, it may be noticed that once the appellant is not in a position to dispute his signautres, then, keeping in view the judgment of the Hon'ble Supreme Court in Jagat Ram (supra), it has to be held that a mere bare denial is not sufficient to represent the presumption under Section 118 of the Negotiable Instruments Act. Further, as regards the judgment of this Court in (a) Jangir Singh (supra), (b) M/s Hada Steel Products Limited (In Liquidation) (supra), the present is not a case, where only Bahi entries have been pressed into service; rather the respondent himself has deposed about the same. Consequently,question No.(iii) has to be held against the appellant. As regards, questions No.(i) and (ii), learned counsel has taken me through the findings of the learned lower Appellate Court recorded thereon but has not been able to persuade me that the said findings are either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. Accordingly, the present appeal is dismissed. No costs. Since the present appeal is decided, the stay application along with Civil Miscellaneous Application, if any, stands disposed of accordingly. March 11, 2010 Sukhpreet (AJAY TEWARI) JUDGE