HIRA LAL Vs. RAM RAKHA

JUDGEMENT

(1.) This is an appeal by the Plaintiffs against the judgment and decree of the District Judge Barnala, dated 11-6-2006 dismissing their suit for the recovery of Rs. 13,000/- against the defendants. The Plaintiffs Hira Lal and Sekhar Chandar are the proprietors of the firm 'Hari Chand Hira Lal' carrying on business at Nahan (Himachal Pradesh) and the defendants Ram Rakha and Dev Raj carry on commission agency business at Barnala under the name of Patram Mehar Chand. The Plaintiffs had been purchasing and selling various commodities including cotton and grains through the defendants and their account with the latter showed a credit balance of Rs. 2,285/- on Magha Badi 12,1999. The Plaintiffs on Magh Badi 12,1999 purchased through the defendants 110 bales of cotton to be weighed in January 1943 at the rule of Rs. 17/8/21 per maund and the total outlay came to Rs. 10,310/9/6. A part payment of the price, in addition to Rs. 2,285/- outstanding to their credit, Rs. 4,000/- were paid in cash by the Plaintiffs thus making a total advance of -Rs. 6,285/- and leaving a balance of Rs. 4,025/9/6 due by them. During the time that this cotton remained unsold there were various other transactions between the parties and except with regard to Rs. 1,136/14/- with which the account of the Plaintiffs was debited on Katik Shudi 7,2000 there is no dispute between them regarding the correctness of the entries in the books of account of the defendants. The Plaintiffs alleged that the defendants without any authority from them dishonestly and in order to make wrongful gain had sold their cotton (110 bales) on 25-11-1944 for Rs. 6,296/10/9 at the rate of Rs. 8/8/- per maund and thereby represented that a loss of Rs. 4013/15/- had been sustained. The defendants, on the other hand, urged that the price of cotton had considerably fallen and had a downward tendency and that as there was no margin money with them with which the impending risk could be covered; they notified to the Plaintiffs that unless some more money was sent to them for covering the apprehended loss, their cotton would be sold. They added that as the Plaintiffs failed to remit the money as demanded, and there was a sharp decline in prices, they had no alternative but to sell the cotton at the Plaintiff's risk. The amount realised by the sale was credited to Plaintiff's account which thus showed a debit balance of Rs. 348/14/- on the date of the sale, After some heated correspondence in which each side tried to justify its stand and claim, the defendants were the first to rush to the Court and they instituted a suit on 15-12-01 in the Court of the Sub-Judge 2nd Class Barnala for the recovery of Rs. 348/14/- stated to be due to them. The suit was dismissed and an appeal against that decree also remained unsuccessful. The defendants have now moved this Court on the revision side. The Plaintiffs on the other hand filed a complaint in the first instance under Sections 409 and 420, I.P.C. against the defendants on 26-10-2001 but that charge failed and the accused were acquitted. They then filed the present suit on 19-12-2003 for the recovery of Rs. 13,800/- giving details of how the amount became due to them. It was alleged by them that the rate of cotton prevailing on the date of the institution of the suit was Rs. 35/- per maund and that at that rate the price of the cotton in dispute and the interest on that price after making certain deductions came to Rs. 13,800/-, which they were entitled to recover from the defendants.

(2.) Several issues were framed by the trial Judge but those that have been contested be-, fore us and which have been decided in favour of the defendants are the following :

(3.) The Plaintiffs as observed above do not dispute the correctness of this account except) with regard to Rs. 1136/14/- which is item No. 10 of the debit side and pertains to the loss alleged to have been suffered by the Plaintiffs on Katik Shudi 7, 2000 in respect of cotton November transactions. This item does not find place in the books of the Plaintiffs. According to the defendants and the statement of account mentioned above, Rs. 8206/11/- stood to the credit of the Plaintiffs on 25-11-1944, whereas their liability extended to Rs. 13,852/- leaving a debit balance of Rs. 5,645/5/6. The price of the cotton in dispute calculated at the rate said to be prevailing on 25-11-1944 came to Rs. 6296/10/6. In order to see whether the defendant's version that on the date of the sale of the cotton, they had no money of the Plaintiffs left with them, which they called margin money, their account needs be referred to. It would show that if the disputed debit entry of Rs. 1136/14/- were not found to be genuine, the defendants had no cause to be perturbed by the fall in the price of 110 bales (sic) was to be calculated at the rate of Rs. 8/8/- per maund, there was still something more in the hands of the defendants as assurance money than what they claimed to be due to them on the running account. Fifty five bales of cotton at prices ranging between Rs. 18/14/- and Rs. 19/- per maund are alleged to have been sold by the Plaintiffs on Bhadon Badi 12,2000 and these were all November 1943 contracts. These contracts are alleged to have been settled on Assauj Shudi 11, 2000/9-10-1943 at Rs. 21/- per maund, as there was a Government Notification on 7-10-1943 that forward transactions in cotton must come to an end and no such transactions would be considered to be valid in future. The existing contracts in which the cotton was actually to be delivered at some future date were directed to be. settled at the market rate. It is stated by the defendants that the traders of Barnala called a Panchayat for the purpose and that Panchayat fixed the rate of cotton at Rs. 21/- per maund for settling up those transactions in which were included the contracts relating to the 55 bales of the Plaintiffs sold on Bhadon Badi 12, 2000. To prove the relevant contracts by the Plaintiffs on that date the defendants have produced their books of account and examined one Jagan Nath of M/s Sadhu Ram Shiv Ram of Barnala. The transactions were seven in number and the entries in respect of them have not been individually proved by any evidence whatsoever. The name of the scribe of those entries has not been disclosed. Ram Rakha Defendant when he appeared as his own witness did not allege that the Plaintiff Hira Lal had entered into those transactions, regarding November cotton or some of them with Jagan Nath. Jagan Nath has on the contrary stated that Hira Lal had on Bhadon Badi 12, 2000/27-8-1943 sold eight teeps of cotton (one teep is equal to 24 maunds) to him at different rates. In his own books of account, however, the name of the Plaintiffs as sellers, does not appear nor do they indicate that the transactions had been entered into directly with him. There is no separate entry in his Bahis about the eight teeps of cotton alleged to have been purchased by him from Hira Lal Plaintiff. His evidence makes it clear that in the year 1943 he had dealings with the defendants with respect to 29 teeps and the eight teeps regarding the November cotton alleged to have been sold to him by the Plaintiff are included in those 29 teeps. He has further stated that he could not say whether the remaining 21 teeps were sold and purchased ,by the defendants for themselves or for somebody else. The evidence of Jagan Nath instead of supporting Ram Rakha Defendant is in conflict with the position-taken up by the latter. Ram Rakha has stated that on Magh Badi 12, 2000 only 10 bales of cotton were sold by the plain tiff to Sadhu Ram Shiv Ram of which firm Jagan Nath is a partner at Rs. 18/14/9 per maund. Jagan Nath, on the other hand, he stated that the eight teeps of cotton were purchased by him at various rates ranging from Rs. 18/14/9 to Rs. 19/-. The conflict in the statements of Rama Rakha and Jagan Nath, is so prominent that it is rot possible to accept the entries in the books of account of the defendants with regard to the November cotton transactions to be correct. No authority from the Plaintiffs to sell this cotton has been produced nor was any invoice regarding the transactions sent to the Plaintiffs. Before settling the transactions on Assauj Shudi 11, 2000 no notice of the contemplated settlement was given to the Plaintiffs and their concurrence obtained. It may also be mentioned here that the entries in the Plaintiffs' books with regard to other transactions that they had with the defendants completely agree with those present in the defendant's account books. The defendants do not accuse the Plaintiffs of having behaved dishonestly on any other occasion or with regard, to any other transaction. It is difficult to think, therefore, that the Plaintiffs had not entered the November cotton transactions in their books to evade liability for the alleged loss.