PREM PRADHAN Vs. SANTOSH RAI

JUDGEMENT

(1.) The Regular First Appeal (appeal) is directed against the impugned judgment dtd. 30/3/2019 passed by the learned District Judge, Special Division-I, East Sikkim at Gangtok (learned District Judge) in Money Suit No. 22 of 2016. The appellant also preferred an application under Order XLI Rule 27 read with Sec. 151 of the Code of Civil Procedure, 1973 (CPC) for production of additional evidence. This court considered this application and vide judgment dtd. 31/3/2022 allowed it. Pursuant thereto additional evidence has been taken and placed before this court for consideration in the present appeal.

(2.) The case of the appellant in the plaint was that he is the owner and operator of Himalayan Hatcheries located in Duga, Pendam, East Sikkim which deals in the business of poultry farming. The respondent is a poultry farmer from Daragaon, Turuk and the appellant's customer. Since 2014 the respondent purchased day old chicks from the appellant on credit basis for a sum totaling to Rs.17,60,105.00 which liability has been admitted and accepted in writing by him. On 29/11/2014 they signed an agreement in the presence of witnesses in which the respondent accepted the liability, gave the plaintiff four blank cheques bearing No.489729, 489728, 489727 and 489726 to hold until the amount was fully paid. It was also agreed that the payment shall be made in installments and the first by the end of December, 2014. On 30/12/2014 the appellant called the respondent on phone to remind him to make the payment as he had failed to make the first installment. The respondent made up a story of falling in hard times and sought for further time of few months. Even after having waited for a few months the respondent failed to make the payment and in fact avoided receiving calls from the appellant. On 25/7/2016 the appellant tried to encash the cheques which were returned due to insufficient funds. The appellant sent a formal notice on 3/8/2016 requiring the respondent to make the payment. On receipt the respondent came to the appellant and assured him that he would pay back the amount within two months. However, the respondent neglected to make the payment even thereafter. It was also averred that the appellant had to take loan as the respondent failed to make payments and for which he had to take on additional liability to pay back the loan on interest at 4% per month. It was pleaded that the cause of action to file the suit first accrued on 31/12/2014 when the respondent failed to make the first installment towards the payment of liability as per the agreement. The cause of action then accrued on each and every date when the appellant requested the respondent to make the payment of the outstanding amount and then on 3/8/2016 when the appellant sent a legal notice calling upon him to make the payment. The appellant therefore, sought a decree of recovery of Rs.17,60,105.00 along with interest @ 4% per month on the principal amount from the date on which it was due till the end of the suit along with cost.

(3.) In the written statement the respondent did not deny the fact that the appellant was the operator of Himalayan Hatcheries. The respondent also did not deny the fact that he is a poultry farmer from Daragaon, Turuk. According to the respondent he was working as a supplier of the Turuk Poultry Livestock Cooperative Society (the TPLC Society). The respondent denied that he had purchased day old chicks and poultry feed from the appellant on numerous occasions on credit basis for a sum of Rs.17,60,105.00 since 2014. The respondent admitted that he was a customer of the appellant; he had made transaction with the appellant for day old chicks and feeds in the year 2013 and made payments to the appellant for the same in the following manner:-