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Judgment
S. Talapatra, J
[1] This appeal under section 96 of the CPC arises from the judgment and decree dated 26.09.2015 delivered in Money Suit No.06/2011 by the Civil Judge, Senior Division, Gomati District, Udaipur. By the said judgment and decree dated 26.09.2015, the said money suit has been dismissed. Being aggrieved thereby, the plaintiff has preferred this appeal on the grounds that the judgment dated 26.09.2015 is unwarranted in law and facts inasmuch as the findings so recorded in the judgment emanates from non-reading, misreading and erroneous appreciation of the evidence, both oral and documentary. According to the appellant the refusal to admit the copies of challans showing the delivery of bricks and brick bats by the plaintiff to the defendant is unsustainable in law inasmuch as those challans were created in the ordinary course of business. Finally, the appellant has asserted that had there been proper appreciation of the evidence, the suit ought to have been decreed in his favour.
[2] For purpose appreciation of the appeal, the case as projected by the plaintiff and the defendant may briefly be noted. The plaintiff, the appellant herein, owns a brick kiln named and styled as M/S Parul Bricks Industry at Khilpara, Udaipur. In the month of August 2009, the defendant approached him with a proposal "to share some contract works received from the Public Work Department (PWD, in short). For this purpose, the defendant had shown the copies of the work orders for improvement of roads. The plaintiff being attracted by the said proposal purportedly entered in an agreement on 13.08.2009 to share the profits and loss of the contract works by supplying bricks/bats and brick - pickets to be required for execution of the works and also providing cash loan in case of urgent necessity. On the request of the defendant, the plaintiff delivered two signed blank papers to the defendant to meet the necessity for transaction of the said contract work.
[3] It has been apprehended in the plaint that those papers might be misused by the defendant to cause harm to the plaintiff. Within a few days, the plaintiff could learn that such contract was not valid in the eye of law, moreover the agreement so entered into, did not contain the particulars of the work orders. Thus, the plaintiff abandoned the said agreement w.e.f. 30.08.2009. On such abandonment, a new arrangement had been made for supply of brick, brick bats and brick-pickets on credit‟ and the cost of which could be liquidated on receipt of payment of the running bills from time to time in force of execution of those works. It had been, according to the plaintiff further contemplated that for liquidation payment be made from final bills on completion of the works. Even the plaintiff agreed to provide cash loan to meet the urgent necessity. That was an oral‟ agreement and the rate was also agreed thereunder according to the plaintiff. The rate schedule as agreed has been provided in the plaint. The rate-schedule reads as under:
(i) Bricks-bats 1st Class per cum Rs.1,500/-
(ii) Bricks-picket 1st class, per thousand Rs.6,200/-
(iii) Daily hiring charge of vehicle No. TRL 2025 Rs.2,000/-
[4] The plaintiff has claimed that according to the said oral agreement, he had supplied brick materials to the defendant on different dates during the period from 22.08.2009 to 22.10.2009 on issuing challans which were duly received by the agent/ employee of the defendant by putting their signature on behalf of the defendant. In the plaint, the plaintiff has given the quantity of brick pickets and brick bats supplied to the defendant to various worksites. The plaintiff had completed the supply of 1st class brick pickets amounting to Rs.16,24,400/- and 1st class brick bats amounting to Rs.96,286/-. The plaintiff has further claimed the defendant hired the plaintiff‟s vehicle bearing No. TRL 2052 to carry earth and bricks for eight days during the month of September 2009 and October, 2009 on the hire charge at Rs.2000/- per day. On that account, the plaintiff claimed a sum of Rs.16,000/-. Further, the plaintiff has asserted that to meet the urgent requirement, the defendant took loan of Rs.16000 on 24.09.2009 on promise of repaying the same on or before 31.03.2011. The plaintiff thus accounted a sum of Rs.17,56,686/- (Seventeen lakhs fifty six thousand sixty hundred and eighty six) to be liquidated by the defendant. According to the plaintiff, the defendant had paid a sum of Rs.3,00,000/- on 30.10.2009 by a cheque keeping the balance at Rs.14,56,686/- . On persistent demands of the plaintiff, the defendant promised to pay the entire demand by 31.03.2011. But the defendant failed to keep that promise and hence according the plaintiff, the defendant committed breach of the said oral agreement.
[5] The plaintiff has claimed that he had lodged a complaint to RK Pur Police Station on 16.08.2011 being RK Pur PS case 370/11 under Section 406 and 420 of the IPC. But the plaintiff did not disclose what was the final outcome of the said criminal prosecution. According to the plaintiff, the cause of action fundamentally arose when the last instalment of the brick-materials was supplied on 22.10.2009 and thereafter on 31.03.2011 when the defendant did fail to pay the balance/ outstanding according to his promise.
[6] The defendant has contested the suit seriously and filed the written statement on 27.01.2012 by stating that the agreement that was entered between the plaintiff and the defendant had been cancelled. The defendant did not obtain any signed blank papers from the plaintiff. The defendant has categorically stated that after the written agreement was abandoned or cancelled no oral agreement was entered into, neither did he purchase any brick-pickets etc. from the brick kiln of the plaintiff. The defendant has denied to have borrowed any amount from the plaintiff. The defendant has categorically denied of entering in the oral agreement with the plaintiff for supply of brick-pickets and brick-bats. The defendant has also denied to have hired any vehicle of the plaintiff. The defendant has, in his written statement, categorically stated that the plaintiff did never supply 1st class brick pickets etc as claimed. The plaint is drawn for unlawful gain. The claim of Rs. 16,24,400/- for 1st class brick-pickets and Rs.96,286/- for 1st class bricks-bats has been denied by the defendant. The defendant has further denied that he had taken any cash loan from the plaintiff.
In Para 15 of the written statement the defendant has asserted as under:
"15. That the averments made in Para 10 of the plaint is partly true. The defendant paid Rs.3,00,000/- to the plaintiff for his supply of bricks and bricks bats amounting of 50,000 nos. of quantity out of which 20,000 nos. of bricks was sub-standered i.e. 3rd class bricks for which the defendant compelled to abandoned the written agreement. It is completely false that the defendant made part payment of Rs.3,00,000/- out of total claim of Rs.17,56,686."
[7] The defendant has admitted that a criminal prosecution was launched against him at the instance of the plaintiff. He has also admitted that he got the work orders for improvement of three roads, namely, Noabari Road to Raiamolsom, the road from Jalema (Deep tube well) to Barabhaiya and the road from Kalaban to Guru colony via Molsompathar. The defendant has asserted that it was the plaintiff who approached the defendant after having information that the defendant bagged the work orders, for purchasing brick-picket etc from his brick kiln as the plaintiff had failed to sell out huge quantity of bricks. According to the defendant when the unregistered agreement (in writing) was entered between the plaintiff and defendant, the plaintiff supplied a quantity of 50,000 bricks and pickets to the work site. Against that supply, the defendant paid a sum of Rs.3,00,000/- to the plaintiff. Out of those 50,000 brick and brick-bats 20,000 were rejected by the PWD Engineers on physical inspection being sub-standard (3rd class) and directed to remove those bricks from the work site. The plaintiff was also asked to remove 20,000 bricks as rejected, from the work site. The plaintiff had removed those 20,000 bricks from the work site as was rejected by the PWD Engineers on inspection. For replacement, the plaintiff purchased 12,500 bricks from DBI Brick Industry on 13.10.2009, 21.10.20096 and 29.10.2009. The defendant, thereafter, cancelled the unregistered agreement and asked the plaintiff to refund of Rs.56,750/- which was paid in excess to the plaintiff. It is understood that the said amount had been claimed for the bricks which were removed from the site.
[8] On the basis of the rival pleadings, the following issues were framed by the Civil Judge for adjudication of the suit:
(I) Whether the suit is maintainable in its present form and nature?
(II) Whether there was any oral contract between the plaintiff and the defendant and in pursuance of the said oral contract whether the plaintiff is entitled to get Rs.14,56,686/- only with 15% interest per annum from 01-04-2011 from the defendant till the payment?
(III) Whether the plaintiff is entitled for any other relief or reliefs?
[9] It appears from the records that the plaintiff adduced five witnesses and a series of documents in support of his pleaded case, whereas the defendant adduced five witnesses and a few documents. It may be noted that one of the witnesses (DW-3) was not cross-examined by the plaintiff. After considering the oral argument as well as the written note of argument as placed by the plaintiff, the Civil Judge dismissed the suit holding that (a) it is clear before the court that even if there is any oral contract but conditions of that contract are yet to be fulfilled and time is not expired for taking action against the defendant and (b) as the existence of the oral contact has not been proved by the plaintiff and as such, no breach of contract can be held to have been proved. Moreover, no cause of action arose for filing the suit.
[10] Mr. S. Deb, learned senior counsel appearing for the appellant has submitted that the inference drawn on the oral contact emanates from misreading of the evidence. Mr. Deb learned senior counsel in sequel has submitted that the order dated 08.02.2003 as passed in the money suit is of relevance. It has been observed therein that under Section 62, explanation 2 of the Indian Evidence Act, the carbon copy of the original document forms the primary evidence. But as the plaintiff did not prove that the original challans were lying in the custody of the defendant and on the face of denial by the defendant of any transaction, the challans were not admitted in the evidence under explanation 2 of the Indian Evidence Act. The Civil Judge in this regard has observed as follows:
"Whereas in our present case the fact involved is some how different as the carbon copy of challans are not admitted by the defendant's side. Moreover, the plaintiff's side has failed to prove that the original copy of the challans are lying with the defendant's side by adducing cogent and reliable evidence except those 20 number of challans which the defendant's side submitted later on. Moreover, in this present case the petition filed by the plaintiff's side for exhibiting those carbon copies of the challans is made at a time when the evidence of both the sides is closed. The plaintiff's side failed to bring anything in the cross-examination of the defendant side's witnesses from which it can be inferred that the original copies of the challans are lying with the defendant's side. The witness, P.W. No.5 namely, Md. Jahadul Miah stated that he was the Manager of the defendant's Firm and he put his signature in the original copy and the carbon of the challans but the said witness failed to show any document in support of the fact that he was ever the Manager of the Firm of the defendant's side. Mere saying by the P.W. No.5 that he was the Manager and he received bricks on behalf of the defendant's side will not help the plaintiff's case as the said witness did not adduce any documentary evidence in support of his claim that he was the Manager of the defendant's Firm and he received bricks from the plaintiff's side on behalf of the defendant.
The other two witnesses of the plaintiff's side, i.e. P.W. No. 3 and P.W. No.4 who as per the plaintiff's side were the drivers engaged by the plaintiff's side for delivery of the bricks to the defendant's side in the cross-examination could not say that on which day, month and year they supplied bricks to whom. This also makes the plaintiff's case weak."
[11] It appears from the record that the plaintiff had challenged the order dated 08.03.2013, whereby the challans were not admitted as those documents were not considered as the primary evidence under explanation 2 of Section 2 of the Evidence Act. This court by the judgment and order dated 09.04.2015 delivered in CRP 16 of 2013 where the said order was challenged had observed as follows:
"In view of the above discussion, I am of the view that the plaintiff should not be penalized for the fault of his counsel. As such, the order of the leaned trial Court is set aside and the plaintiff is given one opportunity to prove his case. This will be subject to the following conditions:-
(I) The plaintiff shall pay to the defendant costs of Rs.5,000/- on or before the next date of hearing fixed i.e. 20th May, 2015;
(II) In case, costs are not paid on or before the said date, then this petition shall be deemed to have been dismissed;
(III) In case, costs are paid then the learned Court below shall grant one date only to the plaintiff to examine his witnesses to prove these documents;
(IV) It shall be the responsibility of the plaintiff to bring all the witnesses to Court on the date so fixed so that they can be examined and cross-examined on the same date;
(V) The defendant shall be entitled to urge that the documents are not admissible in evidence;
(VI) That in case, the plaintiff leads evidence to prove the documents, then the defendant shall also be permitted two opportunities to lead counter evidence, if they so want. Thereafter, the case shall be decided on merits."
[12] From the records, it further appears that PWs-1 and 2 were re-examined by the plaintiff and cross-examined by the defendant in terms of the said order of this court. But the defendant did not adduce any fresh evidence contending that he did not require to adduce any further evidence [see the order dated 04.08.2015].
[13] Mr. Deb, learned senior counsel has stated that the challans of M/S Durga Brick Industry and cash memos of Associated Brick Industries were admitted in the evidence having been marked as Exbt-A series, whereas the delivery challans of Parul Bricks Industry were admitted and marked Exbt- 4 series Exbt- 5 series and Exbt-6 series in terms of the said order of this court. In the course of his submission, Mr. Deb, learned senior counsel has also drawn over attention, the observation of the trial judge in the impugned judgment where it has been observed that there cannot be any hesitation to hold that existence of the carbon copies, Exbt-6 series as well as Exbt-A series are the primary evidence and so there is no bar in admitting those documents in the evidence. But Mr. Deb learned senior counsel has continued to contend that the civil judge did not rely on those documentary evidence (Exbt- 6 series and Exbt 8 series) on the reason that the agreement has not been proved and for the further reason that the register, in respect of supply of bricks etc. has not been produced to prove the supply to the defendant. According to Mr. Deb, learned senior counsel, such rejection is grossly impermissible in law. The purported reasons provided by the civil judge are visited by non-appreciation of the evidence as led by the plaintiff. The civil judge has even though observed that the defendant has failed to justify‟ the purchase of Rs.8,50,000/-from the other brick kilns (AVI and DBI) by producing all the challans. Mr. Deb, learned senior counsel has submitted that when the civil judge has assumed to hold that there had been no cause of action as the contractual works were not completed on the day of filing suit. He did not appreciate the statement that there had been a further agreement of making payment of the supplied materials by 31.03.2011.
[14] According to Mr. Deb, the plaintiff has abundantly proved the oral agreement that was struck after 31.08.2009 meaning in the wake of abandonment of "written agreement dated 31.08.2009 (Exbt-2). But the civil judge has mechanically returned the finding that the oral agreement has not been proved by the plaintiff and hence there cannot be any claim on breach of the contract. Mr. Deb, learned senior counsel has therefore urged this court to appreciate the documentary evidence and to reverse the finding returned by the civil judge.
[15] In reply, Mr. S M Chakraborty, learned senior counsel has sought to defend the findings returned by the civil judge contending that the plaintiff has claimed relief on the basis of the oral agreement. But, there is no pleading in the plaint on which date the said oral agreement was struck and in presence of whom, such oral agreement was struck. A distinction can be made between the sale or supply on the basis of oral agreement and the sale simpliciter, if any. The plaintiff has totally structured his claim on the basis of the oral agreement.
[16] Further, Mr. S. M. Chakraborty, learned senior counsel has pointed out that the defendant has admitted that he had purchased 50000 brick/brick-bats etc., but out of which, 20000 brick/brick-bats were declared sub-standard and as a result, the plaintiff was asked to remove those materials inasmuch the defendant had asked the plaintiff to supply 1st class brick/brick-bats for the reconstruction of the roads as recorded above. The defendant has stated that the sale did take place much before the purported oral agreement.
[17] Mr. Chakraborty learned senior counsel has contended that the plaintiff has failed to discharge the fundamental burden of proof that there existed any agreement after the abandonment of the "written agreement" by the parties either for supply in respect of the works as the defendant was supposed to implement or in respect of making payment by 31.03.2011. The finding of the civil judge is based on the appropriate appreciation of the evidence. Mr. Chakraborty has submitted in the written statement, the following statement was made by the defendant:
"On 23.10.2009 the answering defendant by finding the ill motive of the plaintiff cancelled the oral agreement which was made on 13.08.2009. Thereafter, there was no agreement and contract was made by the defendant with the plaintiff in respect of mentioned work order. The answering defendant by finding the ill motive of the plaintiff compelled to purchase bricks and pickets from DURGA Bricks Industries (D.B.I) by taking all bricks and pickets from Durga Bricks Industries and Associated Bricks Industries at Rajdharnagar Jamjuri, Udaipur and completed the road constructions work."
[18] Mr. Chakraborty, learned senior counsel has submitted that the word oral‟ agreement appearing in the extract should read as "the written agreement" dated 13.08.2009. It is an apparent mistake. Mr. Chakraborty has thus contended that a finding in this regard, as returned by the civil judge has not been questioned by the appellant as well. Finally, Mr. Chakraborty has contended that those challans are all manufactured‟ and that is the reason why the register of delivery by the plaintiff has not been produced in the trial. According to Mr. Chakraborty, learned senior counsel, it has not been proved that original challans were in the custody of the defendant. In this perspective, submission of so called challans (photo copies) has created serious doubt in respect of their authenticity. Mr. Chakrabrty, learned senior counsel has also drawn attention of the court to part of the testimony of PW-1, Birendra Chandra Biswas (PW-1) which reads as under:
"I have submitted 112 copy of delivery challan (carbon copy)."
[19] Out of three copies challans, (the original) was handed over to the purchaser and the rest copies were lying with the plaintiff. In such challan, the person who received the materials ordinarily would put his signature. Moreover, PW-1 has stated that he did not state in his examination-in-chief that the defendant or his authorised agents put their signature on those 112 challans. Mr. Chakraborty, learned senior counsel has submitted that the carbon copies of those challans [Exbt-6 series] had been admitted in the evidence with objection from the defendant. Even though, the plaintiff has claimed in his examination-in-chief that one Gopilal Sutradhar and Afjal Miah Palwan were engaged by him as the managers of his brick kiln. PW-1 (the plaintiff) has also clarified that Afjal Miah Palawan tendered his resignation from his brick kiln. Most interestingly, PW-1 has stated that one Jahadul Miah had received the brick and brick bats on signing over the delivery challans. In absence of Jahadul Miah, one Sagar Dhar had received the brick materials by putting his signature on the challan. PW-1 was unambiguous in stating that the challans were filled up by those managers namely Gopilal Sutradhar and Afjal Miah Palwan.
In the cross examination PW-1 has admitted as follows:
"I did not submit the sale register and stock register relating to my brick kiln and selling of bricks relating to the year, I filed the suit."
[20] In the cross-examination that had taken place on 15.07.2015, PW-1 has categorically stated that he had not submitted any document to show that Jahadul Miah was an employee serving under the defendant of the suit namely Ratan Chandra Dhar. He did not mention in his claim that Jahadul Miah was an employee of Ratan Chandra Dhar. Mr. Chakraborty learned senior counsel has submitted that Jahadul was examined by the plaintiff and he has surprisingly stated that he had worked as the manager under the defendant for about three months without mentioning any period. Further, he has bluntly stated that he had received various brick and brick-bats from Parul Bricks Industry. Thereafter, he has made the statement that he used to put signature on the challan. One original challan was given to the person who was supplied with but he did not mention during which period he had received the brick materials. Even, he did mention whose signature was on Exbt-5 series. However, he has stated that he has not produced any document in support of engagement as the manager of the defendant. He has also stated that he worked under the different contractors. He had identified his signature on Exbt-5 series challans. Mr. Chakraborty learned senior counsel has submitted that the Exbt-5 series signed by Jahadul was manufactured. Even PW-1 did not ask any question to the defendant (DW-1), whether Jahadul Miah was his manger at any point of time.
[21] At the instance of DW-2 (Sahadat Miah) who styled himself as the manager of D.B.I and A.B.I. Brick Field Exbt A series challans were admitted in the evidence. But he has denied that the challan submitted by the defendant were created as per the instruction of the defendant.
[22] DW-3 (Manik Sarkar) was also the manger of A.B.I and D.B.I for some time. Both DWs 2 and 3 have testified in the trial that the defendant had purchased bricks and brick-bats for re-construction of three roads as mentioned above.
[23] DW-4 Manjil Miah, a driver of the vehicle has stated that he had received the bricks only from D.B.I and A.B.I by putting his signature on the challans for re-construction of those three roads. He has also supported case of the defendant that initially the plaintiff had supplied 50,000 bricks and brick-bats and for declaring 20,000 brick and brick-bats as sub-standard, out of that supply the plaintiff had removed those objected brick and brick-bats from the worksites. In the cross-examination, he had firmly held what he had stated during the examination-in-chief.
[24] DW-5, Gurudas Das, the labour sardar (the leader of labourers) has supported the supply of 50,000 of brick and brick-bats by the plaintiff (the owner of the Parul Brick Industry) and out of those 50,000 bricks and brick-bats, 20,000 brick and brick-bats had been removed by the plaintiff after the PWD Engineers declared those 20,000 brick and brick-bats as sub-standard. Later on, all the brick and brick-bats were purchased from A.B.I and D.B.I Brick Industries.
In the cross-examination, he admitted that he did not adduce any record to show that he was working as the labour-sardar.
[25] Having appreciated the pleadings, the evidence led by the parties (as a whole) and the submissions as advanced by the learned counsel for the parties, two pertinent points have surfaced for determination in this appeal viz:
(1) Whether there is any legal proof that after "abandonment" or "cancellation" of the contract in writing (Exbt-2) on 13.08.2009, the parties entered into an oral agreement in respect of supply of brick and brick-bats of the specified quality for construction of three road by virtue of the work order issued by the PWD, Govt. of Tripura and
(2) Whether the civil judge has committed any error in appreciating the challans issued by the Parul Brick Industry (Exbt 4 series, 5 series and 6 series Or whether it has been established by the defendant that those challan were manufactured?
[26] For purpose of finding out that there was an oral agreement between the parties after their abandonment or cancellation of the earlier agreement in writing (Exbt-2), this court has meticulously scrutinized the evidence of PW-1, the plaintiff. True it is that there is no specific pleading in the plaint how the oral agreement was formed or whether any person was present there. Only statement that has been made by the plaintiff in this regard is available in the paragraph 4. According to the plaintiff, the defendant had proposed to get supply of brick-bats, brick-pickets from his brick kiln and also to make transportation of those brick and brick-bats etc to his work site. The said agreement was accepted by the plaintiff. As stated by the plaintiff, the cost of brick-bats, brick-pickets and daily hire charge of the vehicle were determined and thereafter in terms of the said agreement between the period from 22.08.2009 to 22.10.2009, the brick and brick-bats were supplied by the plaintiff for an amount of Rs.16,24,400/- (1st class brick pickets) and Rs.96,286/- (1st class brick bats).
[27] The plaintiff has categorically stated that the payment was agreed to be made on receipt of the payment of running bills and from final bill on completion of the work. There is no averments whether on the day of filing of the suit whether the assigned work was executed by the plaintiff or the defendant had received payment against the running bills or the final bill. In this regard, the plaintiff has observed a complete silence. The plaintiff has adduced as many as 5 witnesses but except the plaintiff (PW-7), none of the witnesses has testified in respect of the said oral agreement. Even though PW-2 claimed to be the manager of the plaintiff but he has not stated of the oral agreement or in respect of materials for proving existence of oral agreement. In his deposition, he has contended that it is for the instruction of the plaintiff, he and Afjal Miah Palwan supplied brick bats and brick pickets during the period from 22.08.2009 to 22.10.2009 by issuing challans. All the vehicles which carried those brick materials according to him, were the vehicles of the plaintiff, except one vehicle. According to him, Manjil Miah, the driver of the vehicle bearing No.TRL 6004 had signed lot of delivery challans. As stated earlier, in respect of existence of the oral agreement, we have to fall back to the testimony of the plaintiff. The plaintiff, however, has stated that there was a previous written agreement dated 13.08.2009 and the same was abandoned by him on the ground of illegality.
[28] Afterwards, according to him, the defendant had proposed to supply brick, brick-bats and brick-pickets providing goods carrying vehicle for transportation of earth and bricks on hire, cost of which would be liquidated on receipt of payment of running bills in course of the execution of the work and the final bill on completion of the works. In the course, the rate of brick-bats, brick-pickets, daily hiring of the vehicle (TRL 2025) was determined. During the period from 22.08.2009 to 22.10.2009, the supply was caused to the worksite by issuing delivery challans which were duly signed by the persons who had received those deliveries for the defendant.
[29] For purpose of reference, the account of the supply of brick pickets and brick-bats as accounted by the plaintiff in the examination in chief, is reproduced below:
Name of work site
1st class brick-pickets
1st class brick bats
Quantity in numbers
Price (Rs.)
Quantity in cum
Price (Rs.)
Kalaban Road
72500
Rs.4,49,500/-
19.194
Rs.28,791/-
Noabari Road
50000
Rs.3,10,000/-
28.791
Rs.43,186/-
Jalema to Barabhaiya Road
139500
Rs.8,64,900/-
16.206
Rs.24,309
Total
Rs.16,24,400/-
Rs.96,286/-
[30] That apart, hiring charges of vehicle and the refund of the cash loan have been added to the claim. It was never the claim of the plaintiff that on credit the supply was made and the defendant was under obligation to make payment as and when it would be demanded. His entire claim was on the basis of the "oral agreement". The defendant has categorically denied the formation of such oral agreement. Hence, the plaintiff has taken robust initiative to prove the transaction between the period from 22.08.2009 to 22.10.2009 and for this purpose he had completely relied on challans at Exbt-5 series and Exbt-6 series. No documentary evidence except those challans have been produced, despite of acknowledgement of the fact that there was sale register and register of delivery by the vehicles were maintained by the plaintiff‟s brick kiln, the said registers were not produced in the trial. The sale register is the primary evidence of sale nor the challans. If any delivery is made on credit either there shall be credit note or it shall be reflected in the sale-register.
[31] Now, let us examine the veracity of the challans as aforestated as questioned by the defendant labeling those as manufactured‟. The delivery challan is the document preserved by the supplier and as such the original copy was supposed to be retained by the plaintiff. However, the plaintiff has made an endeavour to prove that in his brick kiln, the original delivery challan is handed over to the recipient. Such statement is really hard to believe. Further, except PW-5, no attempt was made by the plaintiff to prove the signature on the delivery challans. It is a specific case of the plaintiff that one Manjil Miah (DW-4) was the driver of the vehicle of the defendant who had received the delivery on signing on the delivery challan. But his signature on those challan were not tested, but DW-4 has made the following statement, which itself stands to contradict the veracity of the delivery challans signed by him (Exbt- 6 series). DW-4 duirng the cross-examination has stated as follows:
"I have carried on number of occasions brick materials for the defendant from the brick kiln of the plaintiff. I brought the brick etc. by the vehicle of the defendant bearing TRL-6004. I have put my signature in the challan. I put my signature in the original copy of the challan. I handed over the original copy of the challan to the defendant."
[32] So the involvement of DW-4 is for one delivery challan. He has not been shown the numerous documents claimed to have been signed by him under Exbt-6 series. If the documents are carefully scrutinized, it would be seen that delivery challans do not bear any number but there is a serial number printed thereon. Having randomly selected a few of the challans, singed by Jahidul Miah(PW-5), this court finds serious discrepancies with the number and the date. At page- 166 of the paperbook, there is one challan having serial number 1716 dated 02.09.2009 and on the same date, another challan with that serial number 1463 was issued, both the challans were signed by Jahadul Miah. The delivery challan number in the former case is 179 and in the later case delivery challan no is 170. One challan having SL No. 1463 dated 02.09.2009 had the delivery challan no 177. Similar challans have been admitted. As such, the delivery challans as marked as Exbt-5 in series at the instance of Jahadul Miah (PW-5) are highly doubtful. Moreover, he has failed to produce any record to show that at the relevant period he was working under the defendant.
[33] Thus, this court does not have any difficulty in holding that there is no evidence of formation of any oral agreement, in terms of Section 2(3) of the Indian Contract Act, 1972. On the face of such highly doubtful‟ formation of agreement, the burden of proving such agreement was heavy on the plaintiff. Evidently the plaintiff has failed to discharge that burden. On that solitary ground, the suit was liable to be dismissed and rightly, the civil judge has dismissed the suit.
A hypothetical discourse has been critically examined by the civil judge assuming the entire case of the plaintiff as correct. In that event, in terms of the assumed oral agreement the plaintiff could only sue the defendant after showing that the running bills or the final bills were paid to the defendant but the defendant had not defrayed the credit. The plaintiff has not stated or placed any evidence in respect of such payment to the defendant and hence, there had been even hypothetically no obligation saddled with the defendant to liquidate the amount of consideration for sale and service. This court does not find any infirmity in the finding. That there had been no cause of action, at the threshold, to institute the suit.
Having observed thus, we do not find any merit in this appeal and hence, the same is dismissed.
Draw the decree accordingly.
Send down the LCRs thereafter.