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NC: 2024:KHC-D:9909 RSA No. 100027 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF JULY, 2024 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO. 100027 OF 2018 BETWEEN:
NAMA SUNIL S/O LATE N.S.NAGARAJ, AGE: MAJOR, OCC: BUSINESS, R/O. NAMA NAGARAJ & SONS JEWELLERS, M.G. ROAD, CHINTAMANI-563125, CHIKKABALLAPUR DISTRICT. …APPELLANT (BY SRI MAHANTESH R. PATIL, SRI G.A.KORI, SRI SHIVAREDDY, ADVOCATES)
AND:
MAHALASA NARAYANJI JEWELLERS REPRESENTED BY ITS AUTHORISED SIGNATORY, SRI VAIBHAV S. VERNEKAR, AGE: 32 YEARS, OCC: BUSINESS, R/O. HOUSE NO. 319/C, ROY ROAD, TILAKWADI, BELAGAVI. …RESPONDENT (BY SRI KRISHNA KUMAR JOSHI, ADVOCATE FOR SRI SANGRAM S.KULKARNI, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 06.09.2017 PASSED IN R.A.NO.115/2016, BY THE PRINCIPAL DISTRICT JUDGE AT BELAGAVI AND ALSO TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.03.2016 PASSED IN O.S.NO.141/2009, BY THE I ADDITIONAL SENIOR CIVIL JUDGE AT BELAGAVI, IN ORDER TO DISMISSING THE SUIT OF PLAINTIFF, BY ALLOWING THIS APPEAL.
Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the defendant challenging the judgment and decree dated 06.09.2017 passed in R.A.No.115/2016 by the Principal District Judge, Belagavi2 and the judgment and decree dated 10.03.2016 passed in O.S.No.141/2009 by the I Additional Senior Civil Judge and CJM, Belagavi3 whereunder, the suit for recovery of money has been decreed by the Trial Court and the defendant has been directed to pay a sum of ₹3,63,240/- together with interest at 12% p.a. from 08.01.2007 till the date of payment and in the appeal filed by the defendant before the First Appellate Court, the judgment and decree passed by the Trial Court has been affirmed.
1 Hereinafter referred to as the ‘CPC’ 2 Hereinafter referred to as the ‘First Appellate Court’ 3 Hereinafter referred to as the ‘Trial Court’
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The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience. 3. The plaintiff has filed a suit for recovery of a sum of ₹6,87,929/- with interest from the defendant, contending, inter alia, that the plaintiff is a wholesale dealer of gold ornaments carrying on business at Belagavi. That at relevant point of time, the plaintiff-firm was owned by its proprietor Shantaram N Vernekar who died on 15.11.2008 leaving behind two sons and wife who are his legal heirs to run the said business. That they have continued the business in the original name and style as ‘Mahalasa Narayani Jewelers, Belagavi’. 4. It is the further case of the plaintiff that the defendant is its customer who has been purchasing gold ornaments from time to time on credit basis. That the defendant purchased stone-studded gold ornaments from the plaintiff weighing 542.9 grams on 08.01.2007 on credit basis agreeing to make payment within 45 days
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from the date of sale. That the plaintiff has maintained its books of accounts wherein the transactions between the parties is recorded. That the jewelry sold to the defendant at relevant point of time was valued at ₹3,63,240/- and the value as on the date of the suit was ₹6,87,929/-. The defendant having not repaid the amount, as per what was agreed between the parties, the plaintiff both orally as well as vide legal notice dated 04.03.2009 called upon the defendant to clear the dues. The legal notice was served on the defendant on 09.03.2009 despite which the demands made in the notice not having been complied with, the plaintiff has filed the suit. 5. The defendant entered appearance and filed his written statement denying the plaint averments. It is further denied that the defendant purchased gold ornaments weighing 542.9 grams from the plaintiff on 08.01.2008 on credit basis, who agreed to repay the value of the gold from the date of purchase. It is the further contention of the defendant that he has never
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made any dealings with plaintiff and the plaintiff-firm is not at all known to him. The case of the plaintiff has been denied in detail by the defendant. The defendant has also denied receipt of the legal notice. 6. The Trial Court, consequent to the pleadings of the parties, framed the following issues: “1. Whether the plaintiff proves that he is the wholesale dealer of Gold Ornaments? 2. Whether the plaintiff proves that defendant purchased the gold ornaments weighing 542.9 grams from the plaintiff on 08-01-2007 on credit basis & agreed to repay the amount within 45 days? 3. Whether the plaintiff proves that defendant fails to pay the amount as agreed which values Rs.3,63,240/- at the time of sale and now it values Rs.6,87,929? 4) Whether the plaintiff is entitled for interest at the rate of 12% on suit claim? 5) Whether the plaintiff is entitled for alternative relief of return of 542.9 grams gold? OR 6) Whether plaintiff is entitled for Rs.6,87,929/- as prayed?
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7) What order or decree?”
The authorized representative of the plaintiff was examined as PW.1. Exs.P.1 to P.16 have been marked in evidence. The defendant examined himself as DW.1. No documentary evidence has been adduced. The Trial Court by its judgment and decree dated 10.03.2016 decreed the suit and passed the following order: “Suit of the plaintiff is decreed with costs. It is declared that plaintiff-firm is entitled to recover a sum of Rs.3,63,240/- from the defendant with future interest at the rate of 12% per annum on the aforesaid sum from 08-01-2007 till the final payment. Draw decree accordingly.”
Being aggrieved, the defendant preferred R.A.No.115/2016. The plaintiff entered appearance in the said appeal and contested the same. The First Appellate Court framed the following points for consideration:
“1. Whether the trail Court justified in decreeing the suit of the plaintiff?
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Whether the interference of this Court is necessary? 3. What Order?”
The First Appellate Court by its judgment and decree dated 06.09.2017 dismissed the appeal with cost and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed. 10. It is the contention of the defendant that the plaintiff filed an application before the Trial Court to amend the plaint and also for scientific investigation regarding the signature of the defendant as also for production of income tax returns of the defendant. However, the Trial Court has dismissed the application which was confirmed by the High Court in W.P.No.114174/2015 and W.P.No.100346/2016. That the said application was filed at the time of final hearing of the suit and as per the amendment sought to be made, various lacunas in the case of the plaintiff were sought to
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be filled up, which same was evident from the contradictions in the case put forth by the plaintiff. It is further contended that the documents on the basis of which the plaintiff has relied upon as the basis of their claim are not required to be relied upon since there are interpolations in the said document. That PW.1 was not properly authorized on behalf of the plaintiff to adduce evidence. 11. Per contra, the learned counsel for the plaintiff/ respondent justifies the judgment and decree passed by the Trial Court which has been affirmed by the First Appellate Court and submits that both the Courts having recorded concurrent findings of fact after adequately appreciating and re-appreciating the oral and documentary evidence on record, this Court is not required to interfere with the same in the present second appeal.
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It is relevant to note the findings recorded by both the Courts. The Trial Court while considering issues framed by it, has recorded the following findings: i) To prove the aspect that the plaintiff is a wholesale dealer of gold ornaments carrying on the sale of gold jewelry in Belagavi, apart from the oral evidence of one of the proprietors of the plaintiff-firm, the plaintiff has produced Ex.P.10 - the registration certificate issued by the competent authority in name of late Shantaram N. Vernekar. It discloses that the plaintiff-firm is registered under the Companies Act; ii) Ex.P.10 is issued by the Assistant Commissioner of Commercial Tax, Belagavi. Ex.P.11 is also a registration certificate issued by the Assistant Director, District Industrial Centre, Belagavi;
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iii) It becomes clear that the plaintiff-firm is dealing with gold jewellery articles as its dealer in the said business; iv) The cross-examination of PW.1 itself is sufficient to indicate that the plaintiff is a wholesale dealer in gold jeweley articles doing its business in the address shown in the cause title of the plaint; v) The defendant has clearly admitted that he is doing business of sale of jewellery in Chintamani of Chikkaballapur District for the last 12 to 14 years; vi) The contention taken by the defendant that the plaintiff-firm is not a firm dealing with gold jewellery business has no basis; 13. While dealing with issue Nos.2 and 3 the Trial Court has recorded the following findings:
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i) PW.1-Vaibhav Vernekar is the son of the original owner of the plaintiff-firm by name Shantaram Vernekar; ii) Ex.P.13 is the authorization letter given by Smt.Radhabai, the prorprietor of M/s.Mahalasa Narayani Jewellers which indicates that she has authorized her son PW.1 to give evidence on behalf of the whole firm. It is dated 30.11.2008 executed much prior to filing of the suit; iii) Ex.P.13 covers even the authority of PW.1 to defend the case of the firm. In my opinion being one of the proprietors of the plaintiff- firm, PW.1 has competency to give evidence on behalf of the firm; iv) It is also not in dispute that at the relevant point of time, PW.1 was working as a Sales Manager of the plaintiff-firm. PW.1 has stated
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that the defendant being the customer of the plaintiff-firm has purchased stone-studded gold ornaments weighing 542.9 gms., on credit basis vide bill No.41 on 08.01.2007; v) Further, it is stated that the plaintiff-firm has maintained books of accounts and as per the same the defendant was liable to pay a sum of ₹3,63,240/- at the time of sale in the year 2007 for supply of the said gold ornaments; vi) According to PW.1 the market value of the said amount of gold as on the date of evidence is ₹6,87,929/-; vii) As the defendant did not make the payment of the amount, the plaintiff-firm issued a legal notice dated 04.03.2009 (Ex.P.1) to the defendant calling upon him to make payment. Despite the receipt of the said notice, as per acknowledgement Ex.P.2, the defendant has
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failed to make payment. Ex.P.2(a) is the signature of the defendant; viii) Ex.P.2 and Ex.P.2(a) falsify the contention of the defendant that no notice was given by the plaintiff-firm prior to filing of the suit and he has not received any such notice; ix) DW.1 has admitted that prior to filing of the suit, the plaintiff has issued him a legal notice (Ex.P1). He further admits that the said notice was served on him at his address M.G.Road, Chintamani and he has signed the postal acknowledgement for having received the said legal notice and his signature is at Ex.P.2(a); x) Ex.P.7–Tax Invoice Register has been marked and the transaction between the parties has been marked as Ex.P.7(a) which also contains the signature of the defendant and also indicates that it is a credit transaction as per
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Ex.P.7(a). The contents of Ex.P7 are pleaded in the plaint; xi) Ex.P.8 is the pass book of the plaintiff-firm and Ex.P.8 is the relevant entry which shows that the cheque issued by defendant bearing No.887565 for ₹4,60,000/- on 02.06.2007 came to be dishonoured for want of funds; xii) Ex.P.14 and Ex.P.15 are cash books of plaintiff- firm. They have been produced to indicate that the transaction has been recorded in the daily cash book maintained by the plaintiff. The relevant entry in Ex.P.14 dated 08.01.2007 indicates that 542.9 gms., of gold worth ₹3,63,240/- has been purchased in the name of M/s.Nama Nagaraj and Sons Jewellery on credit basis. This clearly supports the case of the plaintiff-firm;
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xiii) From a reading of Section 34 of the Indian Evidence Act, it becomes clear that entries made in the books of accounts which are kept regularly in the course of business are having relevancy. A reading of Section 34 indicates that the entries in he books of accounts have no conclusive proof and they are to be considered along with the other relevant corroborative evidence; xiv) There is no dispute that Ex.P.14 and Ex.P.15 are entries made in the books of accounts regularly kept by the plaintiff-firm in the course of its business. The other corroborative evidence given in the form of evidence of PW.1 and documentary evidence Ex.P.1, Ex.P.2 and Ex.P.7. Ex.P1 has sufficiently spoken about the entries and there is also a clear pleading in the plaint;
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xv) The defendant has admitted the signature on Ex.P.7 which is a tax invoice indicating the credit sale transaction; xvi) If we look at the contents of Ex.P.14 in light of the aforesaid evidence, its contents sufficiently corroborate the other evidence on record; xvii) The contention of the defendant that the plaintiff has not pleaded anything about Ex.P.14 to Ex.P.16 and Ex.P.7 does not find merit, since there are sufficient pleadings available with regard to the books of accounts, tax invoice and evidence of the plaintiff; xviii) Though the defendant is examined in this regard, his evidence is total denial but has not produced any other document to falsify the case of the plaintiff. On the other hand, he has admitted the receipt of Ex.P.1 and legal notice where there is a clear allegation of the suit
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transaction and the liability to pay the amount claimed by the plaintiff. If at all he had not done the sale transaction with the plaintiff-firm, he ought to have given his reply to Ex.P.1–legal notice; xix) Though, it is the contention of the plaintiff that the value of 524.9 gms., of gold was at ₹3,63,240/- in the year 2007 which was valued at ₹6,87,929/- as on the date of the suit, except pleading of the plaintiff, no iota of evidence is produced to prove the same. Hence, the plaintiff has failed to prove that the value of said gold was ₹6,87,929/- as on the date of the presentation of the plaint. 14. The Trial Court while answering issue No.4 to 6 has held issue No.4 in the affirmative, issue No.5 in the negative and issue No.6 partly in the affirmative holding that the plaintiff firm is entitled to recovery of
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₹3,63,240/- together with interest at 12% p.a., from the defendant. 15. The First Appellate Court while considering the appeal filed by the defendant and the points framed for consideration has recorded the following findings: i) Ex.P.10 and Ex.P.11 sufficiently establish that one Shantaram N. Vernekar was the proprietor of the plaintiff-firm; ii) Ex.P.9 and Ex.P.12 disclose that the proprietor of the firm Sri.Shantaram N. Vernekar died on 15.11.2008 and hence, the Trial Court has recorded a finding that the said Shantaram was the proprietor of the plaintiff-firm at the time of the transaction under consideration dated 08.01.2007; iii) Ex.P.3–survivorship certificate shows that Radhabai (wife) as well as Vaibhav and Sameer
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(sons) are the survivors of the deceased Shantaram Vernekar; iv) Ex.P.13 authorization discloses that the present proprietor Radhabai has authorized her sons Vaibhav and Sameer to represent her before the Courts and statutory authorities; v) On the basis of Ex.P.13, it can be safely held that Vaibhav is sufficiently authorized to represent the proprietor of the firm before the Court of law. 16. The First Appellate Court while noticing Ex.P.7(a) has recorded the following findings: i) Coming to Ex.P.7(a), there are auditor’s marks by the left side of the figures ‘359644, 3596, 363240’ in the said document; ii) There is a writing ‘credit’ above the words ‘Sale Bill’. Added to that in Ex.P.6 Audit Report, at page 88 there are ‘Schedules forming part of
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Balance Sheet as on 31.03.2007’. Out of this, Schedule ‘G’: Sundry Debtors show the balance of ₹3,63,240/- against the name of the defendant-firm ‘M/s Nama Nagraj Jewellers’; iii) Further, Ex.P.16 the true copy of the ledger account opened in the name of defendant firm shows the same balance as on 31.03.2007; iv) There are all being the books of accounts audited by Chartered Accountants, absolutely there are no reasons to suspect the evidentiary value of these materials. 17. The First Appellate Court noticing Ex.P.8–bank pass book has noticed the entries dated 01.06.2007 and 02.06.2007 which shows that cheque No.887565 issued by the defendant came to be dishonoured. It further held that the admissions of DW.1 and the entries in Ex.P.8 cumulatively establish the fact that there was a transaction between the plaintiff and the defendant during
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the relevant point of time. Hence, it recorded a finding rejecting the challenge made by the defendant assailing the validity of Ex.P.7(a). 18. The First Appellate Court has, upon re- appreciation of the oral and documentary evidence, recorded a finding that there was a cogent material to establish the defendant’s liability to pay the suit claim amount to the plaintiff. It was further held that the silence of the defendant even after due service of legal notice (Ex.P.1) certainly warrants an adverse inference against him and the learned trial Judge was justified in drawing an adverse inference against the defendant for not having replied to the legal notice. 19. That Section 34 of the Indian Evidence Act, requires the books of accounts to be corroborated by some other materials and Ex.P.7(a) is the corroborative piece of evidence. The First Appellate Court has also noticed the fact that IA.6 and 7 for amendment of the pleadings was filed describing the minute details of the
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transaction in question and to recall PW.1 to mark some documents. The same was rejected by the Trial Court on the ground that at the belated stage, the plaintiff cannot be allowed to amend the plaint, which order was upheld in writ petition. That no adverse inference can be drawn against the plaintiff with regard to the dismissal of the application. 20. It is forthcoming from the aforementioned that the Trial Court, upon a detailed appreciation of the oral and documentary evidence has considered the various contentions taken by the defendant in opposition to the suit filed by the plaintiff. Noticing that PW.1 was the son of the deceased proprietor of the plaintiff-firm and noticing that the wife and two sons of the deceased proprietor were the partners of the plaintiff-firm and further noticing that the mother has authorized the two sons vide Ex.P.13 to represent the plaintiff-firm, the Trial Court held that PW.1 was entitled to give evidence on behalf of the firm.
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Further, the Trial Court has noticed that despite a complete denial of the case of the plaintiff, it was forthcoming that the plaintiff issued a legal notice (Ex.P1) which was received by the defendant as is forthcoming from the postal acknowledgement card (Ex.P.2) and the signature of the defendant on Ex.P.2 was marked as Ex.P.2(a). It is further noticed that the defendant did not reply to the said legal notice. 22. It was further noticed that the defendant had issued a cheque bearing No.887565 for ₹4,60,000/- drawn on Karur Vysya Bank which was dishonored on 02.06.2007 and the said aspect is forthcoming from the pass books of the plaintiff-firm (Ex.P.8) and the relevant entry recording dishonor is marked as Ex.P.8(a). 23. It has been further noticed by the Trial Court that the plaintiff has satisfied the stipulation contained under Section 34 of the Indian Evidence Act and a finding is recorded that various documents produced by the plaintiff have been maintained in the usual course of its
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business. The Trial Court has granted the decree of the suit for a sum of ₹3,63,240/- and rejected the claim made regarding the market value of the gold at ₹6,87,929/-. 24. The First Appellate Court has adequately re- appreciated the oral and documentary evidence and has recorded a finding that PW.1 was duly authorized to represent the plaintiff-firm. Further, noticing the documents produced by the plaintiff to prove its claim has noticed the cash book of the plaintiff (Ex.P.7) as well as the various other documents while affirming the findings recorded by the Trial Court. 25. It is forthcoming that although the defendant is seeking to put forth various contentions, it is relevant to note that both the Courts have recorded concurrent findings that the plaintiff has proved the transaction as averred in the plaint, the fact that the defendant, even after receipt of the legal notice (Ex.P.1) has not replied to the same as also the fact that the defendant has issued a cheque for ₹4,60,000/- which was dishonored on
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02.06.2007 as forthcoming from the pass book of the plaintiff-firm (Ex.P.8), is a circumstance that would go against the case of the defendant, since although the defendant had put forth a case of bare denial the documents on record itself would indicate that he had transaction with the plaintiff-firm. 26. Further, the plaintiff has produced documents to demonstrate that the defendant has purchased the gold on credit basis and the date of the said transaction is also forthcoming from the documents of the plaintiff-firm which are maintained in the usual course of business. 27. Both the Courts having recorded a concurrent findings and having decreed the suit, the defendant has failed in demonstrating that the said concurrent findings have been recorded contrary to any specific oral or documentary evidence on record. The defendant has failed in demonstrating that any substantial question of law arises for consideration in the present appeal. Hence,
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the above appeal is dismissed as being devoid of merit at the stage of admission itself. 28. Since the appeal has been dismissed, IA.1/2018 for stay is also dismissed.
Sd/- JUDGE
SH upto para 11 Pj, CT:GSM List No.: 1 Sl No.: 31