RAMBHAI RANCHHOD AND COMPANY Vs. CHHOTABHAI KHANDUBHAI

JUDGEMENT

(1.) This is the Plaintiff's First Appeal against the judgment and decree dated 12.10.1976 passed by Civil Judge (S.D.), Navsari in Special Civil Suit No.33/75 whereby the Plaintiff's Suit was dismissed. The Plaintiff being a Firm registered under the Indian Partnership Act and engaged in the business of coconut, gur, foodgrains, etc. at village Sonwadi filed Special Civil Suit No.33/75 on 3.5.1975 for recovery of the sum of Rs.16,954-29 Ps. with costs of the Suit and running interest. According to Plaintiff, the Defendants being heirs of Khandubhai Dayabhai (now deceased) were and are living as the members of Joint Hindu Family; that the Defendants used to purchase the goods on credit from the Plaintiff's shop in the name of Khandubhai Dahyabhai and at times were also taking cash, the period of credit agreed to was 30 days and the agreement was that in case the Defendants fail to pay the money within the credit period, interest at the rate of 9% per annum was to be charged; the Defendants did not pay the amount despite repeated demands and it was pleaded that Defendants on Bhadarva Vad I of S.Y.2027 settled the Accounts and acknowledged the debt of Rs.11,987-47 Ps. that was found to be due against the Defendants to the Plaintiff. It was further pleaded that even after the settlement of the accounts, the Defendants used to purchase goods from the Plaintiff's shop and also used to make payment towards the same and so on the date of the Suit, according to the Plaintiff, in all Rs.12,245-87 Ps. were due from the Defendants towards the principal amount and it has been stated that on demand being made, the Defendants acknowledged the debt through a letter by one Shri Lalbhai N.Mehta. The amount due to the Plaintiff was not paid despite notice dated 10.3.1975 and hence the suit for the decretal amount of Rs.12,245-87 Ps. adding Rs.4,708-40 Ps. by way of interest to the principal amount was filed. The Defendants filed a joint written statement and resisted the suit. It was not disputed that the goods used to be purchased on credit from Plaintiff's Shop and it was admitted that Account was settled on Bhadarva Vad I of S.Y.2027. However, it was denied that on the Account being settled, Rs.11,985-47 Ps. were found due from the Defendants and that the same was acknowledged to be due from the Defendants. The Defendants specifically denied to have purchased any goods from the Plaintiff's shop after Bhadarva Vad I of S.Y.2027 and it was also denied that they had acknowledged the debt through letter by one Shri Lalbhai N.Mehta. The factum of the living as Joint Hindu Family members was also denied and the plea was also taken that the Suit was barred by limitation.

(2.) On the basis of the pleading of the parties, the trial court framed following issues:-

(3.) For the purposes of decision of the present Appeal, it is not necessary to go into all the issues inasmuch as this Court finds that this Appeal can be decided only by examining the question as to whether the Plaintiff had failed to prove the transactions after Bhadarva Vad I of S.Y.2027 and in absence of any acknowledgement thereafter within the period of limitation, whether the trial court had rightly dismissed the Suit. So far as the question as to whether there was any transaction after Bhadarva Vad I of S.Y.2027 is concerned, the learned counsel for the Plaintiff has invited the attention of this Court to Paragraphs 29 and 30 of the impugned judgment to evidence the factum of the transaction after Bhadarva Vad I of S.Y.2027 i.e. the date on which the accounts were admittedly settled. Plaintiff's partner Naginbhai was examined, but he failed to give any details about the alleged transaction after Bhadarva Vad I of S.Y.2027. Son of Naginbhai, namely, Ishvarlal Naginbhai was also examined but he too was not able to establish these transactions. Learned counsel for the Plaintiff invited the attention of this Court to Exhs.67 to 70 from the Khatavahi of S.Y.2028 to 2031 and the relevant entries from Udhaar Nondh. I have perused Exhs.67 to 70 and the relevant entries. Even if it is found that on the date when the accounts were settled Rs.11,987-47 Ps. were due against the Plaintiff and the accounts were settled, the factum of continuing transaction after Bhadarva Vad I of S.Y.2027 cannot be said to be established merely on the basis of Exhs.67 to 70 so as to be sufficient to fasten the liability against the Defendants.