M S YESUVADIYAN Vs. PSASUBBA NAICKER

JUDGEMENT

(1.) The appeal arises in a suit to recover sums of money amounting to Rs. 8,000 from the defendant on the basis of certain dealings. The plaintiff is a dealer in cotton and had been doing business with Messrs. Giddam & Co. and afterwards with the New Berar Company. supplying therewith cotton. The defendant was at first a writer employed in Gaddam & Co. s office and afterwards did business as a broker. Admittedly the defendant had dealings with the plaintiff; he used to pay moneys to the plaintiff by way of deposit and drew moneys from time to time. The dealings out of which this suit has arisen covered a period of 5 or 6 years, and the claim of the plaintiff is that, on taking accounts, he was entitled to the sum which he has claimed. The defendant s case, on the other hand, is that he was entitled to R3. 7,000 and odd and not that he owed anything to the plaintiff. The mode of dealings between the parties was of an extremely lax character. The defendant paying in sums of money from time to time never asked for any receipt or voucher for them. According to the case of the plaintiff the defendant drew sums of money daring the last 5 or 6 years on different dates; on some occasions he sent round chits to the plaintiff on which payments were made, but on the majority of occasions, payments were made on the defendant s personal request, there being no chits from the defendant authorising those payments. The learned Subordinate Judge has given a decree to the plaintiff as asked for in the plaint. The evidence in the case consists mainly of entries in the plaintiff s books of account. The defendant has not produced any accounts whatever, and the suggestion of the plaintiff is that he has accounts but has wilfully withheld them. The defendant denies that he has accounts but, he says, with reference to about 29 or 30 out of about 200 items, that he did draw those sums and that he recollected having done so, although he has no accounts or other records with which he could refresh his memory. The accounts filed by the plaintiff have been impeached by the defendant as fabrications. The accounts consist of ledgers and day-books. They are properly bound books and from outward appearance the books seem to be regularly kept. The parties fell out sometime in December 1915. Before that, admittedly, they were good friends and there cannot be the slightest doubt that they trusted each other. The case of the defence, if true, would mean that these account-books, covering a period of 6 years and containing accounts of the dealings not only of the defendant but of various other persons, have all been fabricated. It would also mean, on the admitted facts of the case,. that if they were fabricated it was done after the parties fell out, that is, after December 1915. Without saying that it is impossible, I should regard it as extremely improbable that books such as we have before us, have been paged, especially, without any sort of internal evidence whatever in the books themselves to bear out the defendant s suggestion that they have been concocted for the purpose of this case. No attempt was, in fact, made in the Court of trial, nor was any serious attempt made before me by Mr. T. Rangachariar who opened the case of the defendant (appellant) to show, from the character of the books or the entries, that the entries were either interpolated or that pages had been removed and new pages containing fresh entries has been substituted. There are, on the other hand, circumstances which would show that there is no substantial reason for doubting the garnishees and the bona fides of these books of account. They had been filed previously in connection with Other suits in other Courts, And the nature of the entries relating to the dealings between the plaintiff and the defendant would in itself make it extremely difficult for the plaintiff to get up false entries to support his case. There are only two entries with respect to which any attempt has been made by the defendant to contradict the plaintiff s books. I shall deal with them later and point out that no good arguments can be based on these two items. It has to be pointed out that the case was not satisfactorily conducted for either party in the lower Court, and the procedure adopted for proving the entries was not strictly in accordance with what the law required. The plaintiff s evidence is that he made all these payments with which the defendant is charged; whether he made payments with his own hand or through clerks or writers who made payments on his orders would not make any difference. He apparently attended to his business himself. He used to be present at the shop, except when he was away to some other place of business and plaintiff knew the way in which entries used to be made in the books of account by the different writers and accountants. In his examination-in-chief, in addition to the general statement that all the payments were made as entered and that he made the payments himself, he speaks to a large number of specific items of which he has personal recollection independently of the entries in the books; most of those items are of large amounts and he deals with them in detail in his examination- in-chief. While he was cross-examined with reference to these specific items, it does not appear that any attempt was made by the Pleader for the defendant to make out that as regards other items he could have had no personal knowledge or means of speaking to them in the way he did in his esamina-tion-in chief. No doubt it would have bean more in accordance with the proper practice for the Pleader for the plaintiff having asked him specifically about the items of which he had independent recollection, to have questioned him about the other items, which he said were actually paid to the defendant hut with reference to which he bad no independent recollection allowing him to refresh his memory with the entries in the books according to the provisions of Sections 159 and 160 of the Evidence Act. But no objection was apparently taken to the form of the question or the answer with reference to these latter items. We may take it, therefore, that the plaintiff purported to speak not only to the specific items mentioned by him but also to the other payments entered in the bock as having been made within his knowledge. We have also the evidence of two of the writers of the books and in their case we find that they were asked to. speak to the way in which the books were kept and not to the items specifically. I should have been disposed to take a more serious view of this mode of proving the entries but for the fact that the defendant s Pleader made no objection. Further the plaintiff has with the plaint filed a list of the items with respect to which the defendant is charged, that list being simply a copy of the entries in the books of account, so that the defendant has ample notice of the items to which the plaintiff and his witnesses must have been referring as. relating to the defendant s transactions in the Exhibits A and B series.

(2.) Then we have a number of items which has been clearly proved by evidence other than the entries by means of vouchers or chits, in addition to the oral testimony of the plaintiff. On the other hand, it is difficult to accept the defendant s statement that he kept no accounts whatever. He is a broker and had dealings not only with the plaintiff but with other persons, and it i& unlikely that he did not keep any accounts or any records of the transactions into which he entered as broker or of his other dealings. His case strikes me as somewhat extraordinary. He professes to remember 29 or 30 items extending over a number of years and ignores all the other transactions alleged by the plaintiff. All that he appears to have done was to pick out certain items which he felt could not possibly be resisted and about which no decent show of objection could be advanced by him and admitted them, not because he had any recollection whatever of these items. His case is that he never drew money, except on chits. On this point the evidence is absolutely clear to my mind that he used to ask the plaintiff to make payments on his account or get money from him himself without any sort of voucher whatever. There are several instances of that sort proved by evidence independently of the entries. The nature of his drawings would also suggest that he could not have been sending chits for every payment. We find, for instance, entries relating to small amounts like Rs. 2, Rs. 3 and Rs. 5, and there are entries to show that payments were made through himself or through other persons, some of whom were apparently peons employed in the office of Gaddam & Co. If there were chits in connection with those payments then the entries relating to them would not have appeared in the form in which they are made. The entries mention the names of persons through whom payments were made at the instance of and on behalf of the defendant. If the defence of the defendant was true he could easily have called those persons and shown that the entries were false. He has made no such attempt except in the two oases above mentioned but which I shall show do not bear out the suggestion of the defendant. It was strongly pressed upon us by Mr. T. Rangachariar that the plaintiff ought to have asked, for some voucher whenever he made payments, or that he ought to have taken the signature of the defendant whenever payments were made to him. And it was pointed out to us that the plaintiff did keep books for taking signatures of persons. As regards these books the evidence is not at all clear as to the nature of the transactions with respect to which the signature of parties used to be taken. That the plaintiff and the defendant, until they fell oat, reposed confidence in each other is abundantly clear. As already mentioned, the defendant does not declare that he obtained any receipts or vouchers for the amounts paid in by him from time to time. He must have trusted not only the plaintiff but mast have relied upon the mode in which the plaintiff kept his bocks of account and did business. And if the defendant trusted the plaintiff in that way, it does not surprise me in the least that the plaintiff should have made payments without insisting on vouchera on each occasion. I may here mention some of the larger items which must be taken to be proved by evidence independently of the entries, for instance the item of Rs. 1,391.8.53. The case of the plaintiff is that he borrowed from the office of Messrs. Gaddam & (Jo. Rs. 1,500, and out of that amount gave this sum to the defendant. It was suggested by Mr. T. Rangachariar that it is a false story that he borrowed any money from Messrs. Gaddam & Co. If there was any foundation for this suggestion nothing was easier for the defendant than to produce the books of his employees and to prove the falsity of the plaintiff s case.

(3.) As regards the transaction relating to mortgage Exhibit E with respect to which a sum of Rs. 496 was paid by the plaintiff, the case of the defendant is that, it was paid not to him but to his brother. This payment is supported by the receipt Exhibit D.1] the payments being made at the shop of one Ambalavana Pillai, and P. W. No. 5 proves the handwriting of this man in Exhibit D. If the payment was not made at the instance of the defendant, and it was a dealing directly between the plaintiff and the plaintiff s brother, one would have expected the defendant to examine his brother and prove the falsity of the plaintiff s case. No such attempt has, however, been made. I might refer to the transaction evidenced by Ex-hibit A as showing that it is unlikely that the plaintiff owed large sums of money to the defendant in 1915 or thereabout as related by him. The defendant obtained from the plaintiff assignment of an other for Rs. 4,000 and he paid down Rs. 1,000 and agreed to pay the balance of Rs. 3,000 before the Sub-Registrar. As he failed to pay the balance, the transaction fell through and the plaintiff had to refund Rs. l.000 to the defendant If the defendant s case ware true, it was not likely that he would pay Rs. 1,000 if as a matter of fact Rs. 6,000 or Rs. 7,000 were owing to the plaintiff.