Balaram Paul vs Gobinda Paul

1) Heard Mr. S.M. Chakraborty, learned Sr. counsel assisted by Mr. P. Chakraborty, learned counsel appearing for the plaintiff-appellant as well as Mr. S. Lodh, learned counsel appearing for the defendant-respondent.

2) This second appeal has been filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 18.05.2016 passed by the learned Addl. District Judge, Court No.4, West Tripura, Agartala in Title Appeal No.17 of 2014 affirming the original judgment and decree dated 07.03.2014 passed by the learned Civil Judge, Jr. Division, Court No.1, Agartala, West Tripura in Title Suit No.66 of 2012.

3) This Court vide order dated 06.09.2016 has formulated the following substantial question of law:-

"Whether the judgment & decree passed by the Appellate Court, affirming the judgment & decree passed by the Trial Court, suffers from perversity for non-consideration of the pleadings & evidence on record."

4) It was also observed that any other substantial question of law may be formulated at the time of hearing of the second appeal.

5) Before advancing to the merit of the case, shorn of unnecessary details, I propose to reproduce the following facts:-

6) The plaintiff-appellant had filed a suit for rendition of accounts and for dissolution of partnership before the learned Civil Judge, Jr. Division against the defendant-respondent herein. Both the appellant and the defendant are the full blooded brothers. They entered into an unregistered partnership agreement on 01.04.2007 under the name and style 'M/S Joyram Trade and Transport' having its place of business in Sidhi Ashram, Agartala for carrying transport and other business within or out of Tripura. As per the said agreement, the plaintiff-appellant is entitled to 45 per-cent of profit and loss of business and the defendant-respondent is entitled to 55 per-cent of profit and loss and, accordingly, the plaintiff-appellant invested Rs.1,10,000/- in the business.

7) It is the case of the plaintiff that with the capital investment of both the parties, three Cranes bearing No. TR-01Q-0451, TR-01R-0491 and TR-01M-5158 were purchased by the parties. Out of these Cranes, first two Cranes were purchased in the name of both the parties and third one was purchased by the defendant-respondent in his own name though with the capital of the partnership.

8) Under Clause No.16 of the said Deed of Partnership both the parties are equally responsible for looking after the affairs of the business but all the Cranes are in exclusive custody of the defendant-respondent and he is doing business with the Cranes and the defendant-respondent does not provide profit and loss accounts of the business to the plaintiff-appellant and enjoys himself the entire profit of the business.

9) It is the further case of the plaintiff-appellant that in terms of the partnership agreement dated 01.04.2007, the plaintiff-appellant approached before the Sole Arbitrator on 01.07.2012, but the defendant-respondent did not respond, hence the original suit.

10) The defendant contested the suit by filing written statement and he has specifically denied the contentions of the plaintiff that the Cranes were purchased in terms of the Partnership Clauses mentioned in the deed. It is also the case of the defendant that the two Cranes bearing Nos. TR-01Q-0451 and TR-01R-0491 were purchased outside the State of Tripura as second hand vehicle, prior to the execution of the Partnership Deed and in no way related to the business of the partnership firm. It has been stated in the written statement as well as in the evidence that the answering defendant has no knowledge about the ownership of the Cranes bearing No. TR-01-M-5158 and TR-01-M-5758.

11) The defendant has tried to establish his case that the plaintiff has not approached the learned Court with clean hands. However, the matter was referred to the Sole Arbitrator in terms of the relevant Clause of Arbitration dated 01.04.2007. But on receipt of the notice from the Sole Arbitrator, the defendant did not appear and, accordingly, the arbitration proceeding was dropped with the advice to the parties to take recourse in accordance with law. Thereafter, the plaintiff-appellant filed the instant suit for rendition of accounts before the learned Civil Judge, Jr. Division.

12) The learned Trial Court in course of the trial has farmed the following issues:-

" (i) Whether the suit is maintainable?

(ii) Whether the plaintiff and defendant have been carrying partnership business under the name and style M/S. Joyram Trade and Transport under the terms of deed of partnership dated 1st April 2007?

(iii) Whether the Cranes No.(i) TR-01Q 0451 II) TR 01R-0491 and (iii) TR-01M 5158 AND (iv) TR-01M 5758 are property of partnership firm namely " M/S. Joyram Trade & Transport?"

(iv) Whether the suit is properly valued?

(v) Whether plaintiff is entitled to the decree as prayed for an or any other relief or reliefs in this suit?"

13) While deciding the issue No.2, which is relevant to decide the second appeal, the learned Trial Court has found that though it is an admitted position that both the plaintiff and the defendant being brothers in relation entered into agreement to start a transportation business under the name and style, 'M/S Joyram Trade and Transport' but the said business was not at all started at any point of time after the execution of the said partnership deed.

14) The learned Court further found that the plaintiff claimed that he initially paid Rs.1,10,000/- as capital investment but according to the trial Court, the plaintiff could not justify or substantiate such claim. The learned first appellate Court also came to the finding that there is no such evidence wherefrom it would be revealed that the plaintiff had invested the sum of Rs.1,10,000/- as capital investment to start the business of the firm under the name and style 'M/S Joyram Trade and Transport'. Moreover, both the learned Courts below after appreciating the evidence on record came to the finding that the investment of the plaintiff-appellant to the tune of Rs.1,10,000/- is not well founded. During his cross-examination, the plaintiff-appellant has stated that the cost of the said three Cranes would be approximately Rs.12,00,000/-(Rupees twelve lakhs). So, the difference is discernable which creates natural suspicion about the truthfulness of the statements of the plaintiff-appellant.

15) However, to substantiate his claim, the plaintiff in course of trial had introduced his income tax return and one income tax officer was also called upon in the witness box. Though the income tax return was put into evidence and exhibited as Exbt. No.4, but an objection was raised at that stage itself since there was no reference of Exbt-4 either in the pleading nor it was placed at the time of filing of the plaint. That objection also was recorded by learned Trial Court.

16) After hearing the parties, both the Courts below came to the finding that objection raised by the defendant against the admissibility of Exbt.4 is in accordance with law. The document itself was taken by surprise by the defendant. It was neither pleaded nor was it enclosed or introduced along with the plaint. As such, according to me, this document is not at all admissible in evidence. Order VII Rule 14 of the CPC speaks of the law that a document which ought to be produced in Court by the plaintiff when the pliant is presented, or to be entered in the list to be added or annexed to the plaint, but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the stage of recording evidence in the suit.

In my considered view, there is no illegality in arriving at the finding that Exbt-4, i.e., the certificate of income tax return is not admissible in evidence.

17) Further, the plaintiff ought to have introduced the Books of Accounts in compliance with the provisions of Order VII Rule 17 of the CPC, 1908, which reads as under:-

"Production of shop-book.- (1) Save in so far as is otherwise provided by the Banker' Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.

(2) Original entry to be marked and returned.- The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and, after examining and comparing the copy with the original shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed"

18) In furtherance thereof, though, the provisions as stated above are not mandatory but directive in nature, but, when such document would be introduced at a later stage, then, a definite obligation is cast upon the introducer of such document to give reasonable explanation as to why he could not submit the document at the time of filing of the pliant.

19) In the instant case, the plaintiff also did not feel it necessary to take leave of the Court for introduction of such document, and only in course of adducing evidence, he introduced the said document without any prior notice of the defendant. According to me, the view taken by both the Courts below in respect of the fact that the said document i.e., Exbt.4 is not admissible in evidence is correct and is in accordance with law.

20) Mr. Chakraborty, learned Sr. counsel assisted by Mr. P. Chakraborty, learned counsel appearing for the plaintiff-appellant has strenuously argued that this Court also may formulate another substantial question of law in regard to applicability of Section 9 of the Indian Partnership Act 1932. Mr. Chakraborty, learned Sr. counsel has laboured heavily to persuade this Court that Section 9 obligates the party concerned to furnish and render the accounts to the other partners in the deed. But according to Mr. Chakraborty, learned Sr. counsel, that obligation was not followed by the defendant.

21) On the other hand, Mr. S. Lodh, learned counsel appearing for the defendant-respondent has submitted that when the business of the firm was not started at all, there was no entry in the books of account and it is well within the knowledge of the plaintiff-appellant. It is the settled law that in a civil case, the plaintiff is to prove his case. The burden entirely lies upon him to substantiate his claim by way of adducing oral as well as introducing documentary evidence. But surprisingly, the plaintiff has miserably failed to justify his claim that the business of the firm was at all started and the Cranes were purchased in the name of the Partnership firm. On the contrary, the defendant has been able to prove that the two Cranes bearing Nos. TR.01Q-0451 and TR.01R-0491 were purchased in the name of the defendant-respondent himself and those were purchased before the execution of the partnership deed on 01.04.2007. Defendant also has proved this fact by way of producing documentary evidence i.e., the registration certificate (smart card).

22) Another important aspect was dealt with by both the Courts below in regard to the determination of the valuation of the suit. In the case in hand, the valuation of the suit was determined as Rs.100/- for the purpose of pecuniary jurisdiction of the Court and Court fees. The plaintiff has himself stated in the suit that he invested Rs.1,10,000/-. In my opinion, the suit should be valued at least @ Rs,1,10,000/- for the purpose of pecuniary jurisdiction. Even the plaintiff-appellant might not have any knowledge about the actual status of the accounts. In my opinion, further the plaintiff has arbitrarily and whimsically determined the valuation of the suit as Rs.100/- for the purpose of pecuniary jurisdiction and deciding the Court fees. There is no dispute in the Bar that the discretion lies upon the plaintiff-appellant to determine the valuation of the suit under the relevant Court Fees Act, but, that discretion cannot be exercised capriciously which will tantamount to abuse of process of law.

23) The learned Trial Court has relied upon the decision of the Hon'ble Supreme Court in Abdul Hamid Shamsi Vs. Abdul Majid, reported in AIR 1988 SC 1150, equivalent citation (1988) 2 SCC 575, wherein the Supreme Court has held thus:-

" It is true that in a suit for accounts the correct amount payable by one party to the other can be ascertained only when the accounts are examined and it is not possible to give an accurate valuation of the claim at the inception of the suit. The plaintiff is, therefore, allowed to give his own tentative valuation. Ordinarily the Court shall not examine the correctness of the valuation chosen, but the plaintiff cannot act arbitrarily in the this matter. If a plaintiff chooses whimsically a ridiculous figure it is tantamount to not exercising his right in this regard. In such a case it is not only open to the Court but its duty to reject such a valuation. The cases of some of the High Courts which have taken a different view must be held to be incorrectly decided."

24) The learned Trial Court, in my considered view, could not read and interpret the aforesaid principle in its findings that the Court did not find any force on the contention of the learned counsel of the defendant that the plaintiff has undervalued the suit and his valuation was not proper.

25) Noticeably, according to the plaintiff, the partnership business was started just after execution of the partnership deed i.e., on 01.04.2007. But, I did not find any such document where he raised his demand to the defendant-respondent for furnishing profit and loss accounts before him. Only it is revealed that the plaintiff approached the arbitrator on 1st July 2012, but, before approaching to the arbitrator, he never felt it necessary to take up the matter with the defendant-respondent to have the profit and loss accounts. This conduct of the plaintiff-appellant is not appreciable and raises serious doubt about genuinety of filing of the suit.

26) I have taken note of all the submissions of Mr. Chakraborty, learned Sr. counsel appearing for the plaintiff-appellant. According to me, Section 9 of the Partnership Act will apply and will obligate a party to furnish the accounts only when the business is started and book of accounts are prepared, but, when business is not at all started as I said earlier and the plaintiff- appellant could not justify that the business was started at all and books of accounts was prepared, in my view, in that case the applicability of Section 9 of the Partnership Act would be a futile exercise. As such, I repel the submissions of the learned Sr. counsel appearing for the appellant in this regard.

27) Accordingly, in the light of the aforesaid discussions, I don't find any perversity in the judgment of both the Courts below and in my opinion, there is no substantial question of law involved in this appeal to call for interference with the concurrent findings of the Courts below. Consequently, the instant second appeal, fails and thus, dismissed.

L.C.R is returned back.