LAWS(GAU)-2015-6-120

EASTERN ENTERPRISE Vs. DIGANTA SAIKIA

Decided On June 11, 2015
Eastern Enterprise Appellant
V/S
Diganta Saikia Respondents

JUDGEMENT

(1.) This first appeal at the instance of the plaintiff has been instituted against judgment and decree dated 19.12.2008 whereby learned trial court had dismissed the suit of the plaintiff. Present appellant is a firm known as M/s. The Eastern Enterprise. The pleaded case of the plaintiff is that defendant was a regular customer of the plaintiff and used to purchase the I.M.F.L. & M. BEER from the plaintiff. In course of regular business defendant purchased I.M.F.L. of Rs. 1,11,567/ - on 21.05.2001 and Rs. 30,687/ - on 11.06.2001. Invoices and transit passes were prepared in the name of the defendant. Similarly, invoice dated 13.07.2001 reveals sale of Rs. 1,24,750/ -. All these sales are projected in the Books of Accounts of the plaintiff against the ledger maintained in the name of the defendant. According to the plaintiff, since 2004 it has been maintaining accounts in computer. The defendant did not make payment of the aforesaid amounts but made a part payment of Rs. 500/ - on 15.12.2006. As the defendant did not make any further payment thereafter the plaintiff served a pleader's notice on the defendant through Mr. K. Bhuyan, Advocate on 12.11.2007 demanding the amount along with interest at the rate of 18% per annum within 10 days. The defendant replied to the notice on 05.12.2007 through his Advocate but failed to furnish any authentic document/money receipt to prove that it had cleared its dues in any point of time. Under such circumstances, filing of the suit became necessary. Plaintiff stated that cause of action of the suit arose on 21.05.2001, 11.06.2001 and 13.07.2001 on which dates bills were raised and on 15.12.2006 when last payment was made by the defendant. According to the plaintiff, cause of action also arose on 12.11.2007 when the plaintiff made demand by serving pleader's notice on the defendant. Plaintiff has prayed for decree for realisation of Rs. 2,54,119/ - along with interest at the rate of 18% per annum on the aforesaid amount. The defendant did not appear even after service of notice and so learned trial court proceeded ex -parte against the defendant. No issue was framed and plaintiff submitted examination in chief in the form of an affidavit under Order XVIII Rule 4 of the Code of Civil Procedure through its Accountant, namely, Pulak Roy on 04.06.2008 to prove prima facie that the plaintiff was entitled to the amount. PW 1 exhibited as many as 7 documents. Ext. 1 is an authority letter issued in favour of Pulak Roy who presented the plaint and deposed as PW 1. Ext. 1(a) is the signature of one P.K. Banerjee who described himself as a partner of the plaintiff firm. This authority letter was issued on 2.1.2008 in favour of Pulak Roy authorising him to institute the suit against the defendant. Ext. 2 is the office copy of Transit Pass on the letter head of the plaintiff and signed by Officer In -charge of the Excise Department. However, the said Officer has not been examined to prove his signature. There is an endorsement on the body of this exhibit showing that someone had received the contents. But plaintiff has not led any evidence to disclose the identity of the person who allegedly received the goods mentioned in the Transit Pass. Ext. 2(a) is a print out of a bill understandably an office copy issued on 21.5.2001. This bill was raised for a sum of Rs. 1,11,567/ -. Ext. 3 is yet another Transit Pass dated 08.06.2001. The two signatures appearing on the said transit pass were also not proved by the plaintiff. Ext. 3(a) is an invoice dated 11.06.2001 for Rs. 30,687/ - drawn against the defendant but this is also an office copy which appears to have been received by someone, the signature of whom was not proved. Ext. 4 is office copy of transit pass issued on 10.07.2001. The signatures appearing on this transit pass were also not proved. Ext. 4(a) is the bill dated 13.07.2001 which is an office copy of the bill allegedly raised against the defendant. Ext. 5 is the photocopy of the Ledger Book of the year 2001. It appears to have been proved as original and the person who made the entries in the Ledger Book has neither been examined nor the entries have been proved to show that these entries were made in regular business to make the document an admissible one within the meaning of Sec. 34 of the Evidence Act. Be that as it may, all the entries made therein are of the year 2001. Ext. 6 is one page document claimed to be the computer printout of ledger account of Diganta Saikia maintained by the plaintiff. This shows receipt of Rs. 500/ - by cash but the person making the entry has not been examined to establish that such a cash receipt was made on that day. Ext. 7 is the pleader's notice dated 12.11.2007 whereby plaintiff made demand of Rs. 2,54,119/ - from the defendant. Although, it is pleaded in the plaint that defendant gave reply to this notice but no such notice was produced or exhibited by the plaintiff in course of evidence.

(2.) Upon consideration of the aforesaid evidence placed by the plaintiff, the learned trial court held that plaintiff failed to prove delivery of the goods to the defendant. All the exhibits brought on record by the plaintiff are their own documents and they do not make out that defendant had received the quantity of I.M.F.L. and M. BEER on particular dates. Accordingly, after considering the exhibits and the examination in chief of PW 1, learned trial court by his judgment and decree dated 19.12.2008 dismissed the suit in entirety. It is this judgment which has been brought under challenge in the present appeal.

(3.) I have heard Mr. K Bhuyan, learned counsel for the appellant. It appears from the order sheet that notice tendered to the sole respondent was refused by him and so this court by order dated 30.07.2013 accepted service on the respondent and decided to proceed ex -parte against the respondent. Ultimately, after perusal of the evidence led by the plaintiff the learned trial court passed the impugned judgment and decree dated 19.12.2008 holding that plaintiff is not entitled to any relief as it could not prove delivery of goods to the defendant by leading cogent evidence. The dismissal of the suit by the learned trial court has been challenged in the present appeal.