Sham Lal vs Kashmiri Lal and Sons and Others

Valmiki J Mehta, J.

C.M. No.7987/2012(restoration)

There is no opposition to this application. The appeal is therefore restored to its original number.

Application stands disposed of.

RFA No.797/2010

The challenge by means of this Regular First Appeal filed u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 6.11.2009 dismissing the suit filed by the appellant/plaintiff for recovery of moneys claimed on account of commission due for selling the fruits to the defendants. The facts of the case are that the appellant/plaintiff claimed that the amount in the suit being the principal amount of Rs. 3,82,130.61/- alongwith interest @ 24% per annum totaling to Rs. 4,53,436.06/- is due as per statement of account and therefore the defendants are liable to make the payment.

The defendants contested the suit and denied that defendant Nos.1 and 2 had ever any contractual relations with the plaintiff. It was further pleaded that the defendant No.3 had on certain occasions purchased fruits from the appellant/plaintiff, however, with respect to those transactions, the commission had been paid and nothing was due.

After completion of pleadings, the trial Court framed the following issues:-

Whether the suit is bad for lack of cause of action? (OPD)

Whether the suit is hit by Section 69 of Indian Partnership Act? (OPD)

Whether the suit is barred by limitation? (OPD)

Whether the plaintiff is entitled for the decree of the suit amount? If so, to what sum? (OPP)

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

Relief.

Trial Court dismissed the suit by observing that the appellant/plaintiff had failed to prove his case because he had only filed the ledger account as Ex.PW1/1, and which in itself was not sufficient in law to fasten liability upon the respondents/defendants.

I completely agree with the conclusions of the trial Court inasmuch as Section 34 of the Evidence Act, 1872 specifically provides that on the basis of a statement of account alone, no liability can be fastened on a person and the entries in the statement of account have to be substantiated by means of documents/vouchers of the transactions. Admittedly, in the present case, appellant/plaintiff failed to prove that what were the invoices with respect to which commission was claimed, and whether fruits on the basis of such invoices were delivered to the respondents/defendants. That being so, trial Court has rightly held that the appellant/plaintiff failed to prove his case and therefore the suit is liable to be dismissed.

An appellate Court will not interfere with the findings of the trial Court unless the findings are illegal or perverse. I do not find any illegality or perversity in the impugned judgment which calls for interference in this appeal. In view of the above, appeal is accordingly dismissed, leaving the parties to bear their own costs. Trial Court record be sent back.