SRIKANT AND CO Vs. VIJAY YARN TRADING COMPANY

JUDGEMENT

(1.) THE defendants are the appellants herein. THE averments in the plaint are as follows: THE respondent/ the plaintiff is a partnership firm doing yarn business. THE appellants 2 and 3 are the partners of the first appellant firm. THE second appellant as the partner of the first appellant purchased certain quantities of yarn on credit from the respondent at Erode on 16.4.1984 for setting right the deficit with Sangili Bank at Coimbatore and Erode. THE appellant took delivery of the yarn, Hence they are liable to pay Rs.93,320. THE second appellant on behalf of himself and appellants 1 and 3 promised to pay the amount within three days from the date of purchase, i.e., 16.4.1984. THEy committed default. As per the business usage and the appellants are liable to pay the interest at 18% per annum. THE suit has been filed for recovery of Rs.1,09,398.20 with interest at 18% per annum.

(2.) WRITTEN statement was filed by the second appellant, which was adopted by the appellants 1 and 3. According to the written statement, the respondent firm is managed by one Thangavelu in the name of his son, who shows as a partner in the cause title, but actually it is the said Thangavelu, who is behind this action. Thangavelu was the agent of one Sri Hari Mills at Erode. The second appellant is the Managing Director of Sri Hari Mills and the third appellant is the Director. As an agent the said Thangavelu had not furnished the correct account. He has also fabricated several accounts to defeat the claim of the said Hari Mills. Therefore, the appellants 2 and 3 on behalf of Sri Hari Mills, wanted to take action against Thangavelu, one of the partners of the respondent and they had also taken a step to verify the account as a counter steps. The said Thangavelu has filed this suit and other suits in O.S.Nos.189 to 191 of 1985. The claim that the appellants purchased yarn on 16.4.1984 as per invoice No.1/40 is false. There were no transactions between the parties at Erode at any time. The entire amount is false. The invoice is not true. The appellant had not authorised any one to purchase the goods on 16.4.1984. The accounts are all forged. Even if, they are found to be true, the price, value, quality and despatch of goods must be proved. The court has no jurisdiction to try the suits. No part of cause of action took place at Erode. Therefore, the suit must be dismissed.

(3.) THE learned counsel also submitted that the Court below had presumed to draw conclusion on surmises by stating that it is not uncommon for a single person to act as a common agent or an employee for the sister concerns in our country. THErefore, the learned Judge had erroneously presumed that merely because the said Doraisamy had signed Ex.A-12, which is a carbon copy of the letter sent by the Erode Sales Depot of Sri Hari Mills in which the defendants were the Managing Director and Director respectively, the same Doraisamy would automatically be an employee of the first appellant firm. As regards the day book, which is Ex.A-9 in which the relating entry is Ex.A-10 would show the purchase of suit item of year and Ex.A-7, the ledger of the plaintiff firm and Ex.A-8 is the relative entry, the learned counsel submitted that these entries have not been proved. THE evidence of P.W.1 is It is also the evidence of P.W.1 that it was only a clerk who made those entries and that clerk was not examined as witness. THErefore, the learned counsel submitted that even if these entries have been made in books of accounts regularly, they automatically cannot be accepted without further proof to fix liability on the appellant. Learned counsel submitted that the Court below while conceding with the clerk, who made the entries had not been examined ought not to have proceeded to conclude that since the transaction has been proved by Ex.A-11 and Ex.A-13, these entries must also be true. THErefore, according to the learned counsel, when the documents do not show that the Doraisamy who received the goods under the suit invoices had anything to do with the appellant and when the books of account and the entries therein have not been proved in accordance with law and when the learned Subordinate Judge come to the conclusion that the defendant had denied that Doraisamy was their employee, no decree ought to have been granted against the appellant.