1. Cm No. 5719/2019 (recalling of order dated 22.11.2018)
This application is allowed and the appeal is restored to its original number.
CM stands disposed of.
RFA No. 479/2017
2. This appeal which was dismissed in default vide order dated 22.11.2018, has been restored today, and I have heard the counsel for the appellant/defendant on merits.
3. I may note that the respondent/plaintiff has already in execution of the impugned judgment and decree which is a money decree, received the entire amount of the money decree.
4. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment of the trial court dated 29.08.2014 by which the trial court has decreed the suit filed by the respondent/plaintiff for a sum of Rs. 8,65,520/- along with interest at 6% per annum simple. The suit has been decreed for the amount due to the respondent/plaintiff for the goods supplied by the respondent/plaintiff to the appellant/defendant being Polyurethane foam.
5. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that the appellant/defendant was bound to pay an amount of Rs. 8,65,520/- with respect to Bill No. 1028 issued against the appellant/defendant as the material under the same was supplied to the appellant/defendant through Jain Transport Service vide G.R. No. 1235, dated 03.10.2007. Since the payment of this bill was not made, the subject suit was filed after serving a Legal Notice dated 01.09.2010.
6. The appellant/defendant contested the suit and pleaded that subject Bill no. 1028 for a sum of Rs. 8,65,520/- was paid in terms of cheque no. 307300 dated 05.11.2007 (wrongly typed in the written statement as 05.11.2010) for an amount of Rs. 7,92,349/-. It was pleaded that instead of Rs. 8,65,520/- which was the amount of Bill No. 1028, the amount paid was Rs. 7,92,349/-, inasmuch as goods worth Rs. 73,171/- were rejected. Accordingly, it was contended by the appellant/defendant that the subject bill was paid, and therefore, the suit was liable to be dismissed.
7. Trial court framed the following issues:
"Issue no. 1: Whether the plaintiff is entitled to a decree for a sum of Rs. 12,55,000/- alongwith interest @ 15% p.a. from the date of filing of the suit? OPP.
Issue no. 2: Whether the defendant had paid by way of cheque no. 307300, dtd. 5.11.2010, a sum of Rs. 7,92,349/- to the plaintiff against bill no. 1028, dtd. 03.10.2007? OPD
Issue no. 3: Relief."
8. Both the parties led evidence of one witness each in support of their case. Sh. Gyan Chand Jain deposed for the respondent/plaintiff and Sh. Indresh Kumar Mishra deposed for the appellant/defendant company.
9. The trial court has decreed the suit by rejecting the defence of the appellant/defendant that cheque dated 05.11.2007 for Rs. 7,92,349/- was in payment of Bill No. 1028 for a sum of Rs. 8,65,520/- inasmuch as firstly, if the goods worth Rs. 73,171/- were rejected then some documents ought to have been filed by the appellant/defendant to show rejection of the goods in the form of a debit note or a notice of rejection of the goods, but admittedly no such documents were filed. The appellant/defendant had not even issued any debit note or issued any notice of rejection of goods. Secondly, the trial court has held that if the appellant's/defendant's defence was correct, then, there is no reason why the appellant/defendant would not have filed its own statement of account to show that in its books of accounts, no other amount was due for previous dealings and that the cheque for Rs. 7,92,349/- given by it to the respondent/plaintiff was for the Bill No. 1028, but, the appellant/defendant did not file its statement of account to show that the cheque for Rs. 7,92,349/- for the Bill No. 1028 was not with respect to any prior balance, and which was the case of the respondent/plaintiff that this cheque of Rs. 7,92,349/- was not towards the subject Bill No. 1028.
10. In my opinion, no fault can be found with the reasoning and conclusions of the trial court because the best way for the appellant/defendant to prove that there was no balance due prior to Bill No. 1028 because all payments due towards prior transactions were cleared by the appellant/defendant and the same would have been proved if the appellant/defendant would have filed its statement of account to show such a position but the appellant/defendant did not do so. In fact, from the statement of account it also would have been made clear that the cheque no. 307300 issued by the appellant/ defendant was towards Bill No. 1028 and not for any other earlier outstanding, but since the statement of account would have gone against the appellant/defendant, the appellant/defendant did not file its statement of account. Courts in such circumstances are entitled draw an adverse presumption against a person who must file the necessary documents but does not file the same, in view of Section 114 of the Indian Evidence Act, 1872.
11. The ld. counsel for the appellant/defendant sought to place reliance upon a de-exhibited document being a voucher in support of the subject cheque no. 307300, and by referring to this unproved document it was argued that this voucher showed that payment of amount of Rs. 7,92,349/- was for the Bill No. 1028, however, in my opinion, this argument is misconceived because not only unproved documents cannot be referred to in an appeal against a judgment of the trial court, but even if this document is referred to, then in my opinion this document has no credibility because the credibility as regards to the validity of the content of this vouche
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r would have been clear only in case the appellant/defendant would have filed its statement of account, and this statement of account was to be necessarily filed to show that all transactions prior to the subject Bill No. 1028 were duly accounted and paid for and that the subject cheque no. 307300 for Rs. 7,92,349/- was towards Bill No. 1028, but obviously and as stated above, the appellant/defendant has failed to file its statement of account, and this is for the reason that the statement of account would have gone against the appellant/defendant. 12. In view of the aforesaid discussion, there is no merit in the appeal. Dismissed.