Jamir Ahmad vs Nand Kishore Garg

Bill No.,Dated,"Amount

(Rs.)

1531,27.05.2008,"83,504/-

1640,23.08.2008,"32,022/-

1672,30.09.2008,"86,015/-

1745,08.12.2008,"32,434/-

1811,16.02.2009,"32,938/-

,TOTAL,"2,66,913/-

Carbon copies of Bills bearing Nos.1531 dated 27.05.2008, 1640 dated 23.08.2008, 1672 dated 30.09.2008, 1745 dated 08.12.2008 & 1811 dated",,

16.02.2009 are annexed herewith and marked as ANNEXURES P-2 to P-6 respectively.â€​,,

(ii) Respondent/plaintiff claimed that in spite of acknowledgment of the payment of the amounts due under invoices vide acknowledgments dated,,

1.4.2009, and which were signed by the son of the appellant/defendant no.1 and who was the defendant no.3 and brother of the appellant/defendant",,

no.1 who was defendant no.4, payments were not made. Ultimately the respondent/plaintiff got issued a Legal Notice dated 10.2.2010 and",,

thereafter filed the subject suit for recovery of moneys.,,

As already noted above, the appellant/defendant no.1 has failed to lead the evidence in spite of repeated opportunities, and therefore, there is only",,

the evidence of the respondent/plaintiff.,,

Issues were framed in the suit and evidence was led by the respondent/plaintiff and these aspects are recorded in para 4 of the impugned judgment,,

which reads as under:-,,

“4. On the pleadings of the parties, the court, vide its order dated 10.09.2012, had framed the following issues for trial, reading as under:-",,

Whether the plaintiff is entitled for recovery of Rs.3,65,469/- OPP",,

Whether the plaintiff is entitled for interest? If so, at what rate and for what period? OPP",,

Whether the plaintiff has not approached this court with clean hands? OPD,,

Whether the suit is barred under Section 8 of Arbitration and Conciliation Act, 1996? OPD",,

Relief; And in support of his case the plaintiff has filed evidentiary affidavit of PW-1, Vipin Kumar Garg, proved as Ex.PW1/A, who has also relied",,

on the documents Ex.PW1/1 to Ex.PW1/17 and has reiterated the entire case of the plaintiff therein and it appears that the testimony of this PW has,,

gone on record unchallenged as no cross-examination of this PW has been done and it further, appears that vide order dated 18.12.2014 the",,

opportunity to cross-examine the PW has been closed and though there is a mentioning of tendering in evidence of PW Sh. Vipul Garg on this order,,

but no such affidavit is traceable on record and it seems that the order mentions the name of the witness incorrectly as “Vipul Garg†and the,,

correct name appears to be “Vipin Gargâ€. It also appears on record that vide order dated 25.05.2016, entire P.E. was closed in the matter and as",,

such there is only one PW examined. It is also on record that despite opportunities given vide order dated 25.05.2016 also 20.07.2016, again on",,

24.11.2016 the defendant no.1 and 2 also did not lead any evidence in the matter and therefore, the right of leading defence evidence was closed,",,

accordingly, vide order dated 24.11.2016 and as such there appears to be no evidence available on record on behalf of the defendants.â€​",,

Trial court has held that respondent/plaintiff has proved his case inasmuch as respondent/plaintiff proved the acknowledgment of dues vide.,,

Ex.PW1/7 to Ex.PW1/10 and which were signed by the son of the appellant/defendant no.1 as also the brother of the appellant/defendant, were also",,

conducting the business of the defendant no.2/ proprietorship concern of the appellant/defendant no.1.,,

I have gone through the acknowledgment of dues Ex.PW1/7 to Ex.PW1/10, and these acknowledgment of debts are on the letter heads of the",,

respondent/plaintiff concern, and they bears the signatures of the son and brother of the appellant/defendant no.1 and who were carrying on business",,

for and on behalf of the proprietorship concern of the appellant/defendant no.1. Such persons therefore have rightly been held by the trial court to be,,

duly authorized to acknowledge the dues.,,

Counsel for the appellant/defendant no.1 argued that evidence led in the present case of the son of the respondent/plaintiff, who was the attorney",,

of the respondent/plaintiff, cannot be looked into because an attorney cannot depose, however, this argument urged has no merits because the",,

deposition by the son of the respondent/plaintiff is not only by attorney but by deposing that he was personally aware of the facts and circumstances of,,

the case and hence he was able to depose. I therefore reject this argument urged on behalf of the appellant/defendant no.1.,,

There is no merit in the appeal. Dismissed.,,