BAIJNATH PROSAD SHAH Vs. GAJANAND AGARWALLA

JUDGEMENT

(1.) This is an appeal by the defendant. The plaintiff respondent (hereinafter called the plaintiff) instituted a suit, being M. S. No. 9/1971 of the Court of learned Subordinate Judge at Malda, claiming a sum of Rs. 12,259,17 allegedly due to him on khata account. Both the plaintiff and the defendant are traders having business in grocery. The plaintiff has a wholesale business and the defendant, who ts a retailer had credit transactions with the plaintiff. There is no dispute with regard to this. The plaintiff however alleged that during the period from 20.5.68 to 11.8.68, the defendant had purchased articles from the plaintiff of the total value of Rs. 2l,889,17 out of which a sum of Rs. 9,630.00only had been repaid on different dates between 29.5.68 to 11.8.68, leaving a balance of 12,259.17. It is also averred in plaint that prior to the institution of the suit there was, by common consent a reference to arbitration and the arbitrators made an award in favour of the plaintiff for a sum of Rs. 11,277.59p and directed the defendant to pay the sum in three instalments. The defendant not having accepted the award and not having paid any sum in terms thereof, the plaintiff instituted the suit founding his claim on the original demand.

(2.) The defendant resisted the claim on two-fold grounds- Firstly, while admitting that he had business dealings with the plaintiff on credit, he contended that upto the end of 1375 B.S., the total dues as per the defendant's own accounts, came to Rs. 2491-3 pies and that after payment to the plaintiff in instalments in 1376 B.S., there was only a balance of Rs. 657/- which sum too was paid on 14.7.1969. On receipt of the said amount, the plaintiff granted a clear receipt to the defendant Besides this plea of payment, the defendant also took an objection as to the maintainability of the suit itself. It was pleaded that since the award was not filed in Court and made a rule of the Court, the suit founded on the original demand is not maintainable.

(3.) It will be relevant to mention here that the defendant has set up the award as a bar, his own case with regard to the award is that the arbitrators did not look into his account papers, and that the arbitrators in making the award have acted in a most arbitrary fashion and with a positive bias for the plaintiff.