The respondent was a trader in kopra at Vadakara. The appellant, who is a company in Bombay used to purchase kopra from the respondent. In the suit filed by it the respondent claimed that the appellant failed to make payments for some purchases and it prayed for recovery of Rs.47,779.35 with interest at 12% per annum. The appellant does not dispute receipt of the goods. Its contention is that there was a shortage in the goods and the percentage of moisture was high and it deducted certain amounts according to the practice and the amount already paid by it is in excess of the amount due to the respondent by Rs.18,614/-. 2. The suit was decreed. In A.S.138/98 it was remanded. After the remand the respondent amended the plaint. The appellant filed an additional written statement. But no fresh evidence was adduced on either side. The lower court accepted the respondent's case and decreed the suit. The decree is challenged by the appellant.
3. The suit is based on accounts. It is framed as if the accounts between the parties is mutual, open and current. The account is really a running account. Article 1 of the Limitation Act is not applicable, but Article 14 is applicable. The relevant transactions took place within three years of the institution of the suit. There were three purchases during this period.
4. Since the appellant has admitted that it received the goods covered by the invoices relied on by the respondent the burden is on the former to prove that it was entitled to deduct certain amounts and it did so.
5. The respondent raised a contention that there was no practice of making any deductions for shortage of goods and high percentage of moisture. But Ext.A6 account books produced by it indicates that there was such a practice. But that alone will not help the appellant to succeed.
6. The appellant produced Ext.B1 accounts in support of its case. It is a copy of a computer print out. It is not relevant under Section 34 of the Evidence Act or admissible. Moreover, no attempt was made to prove any of the entries in it. The lower court rightly refused to take it into account.
7. The appellant relies on Ext.B2 series debit notes to prove that it had deducted amounts towards shortage of goods and high percentage of moisture in the goods. If these documents are acceptable, it will prove that the appellant deducted Rs.64,046.35 towards the above items and its contention that not only no amount is due to the respondent but it is entitled to get a certain amount from the respondent is true.
8. DW2 has admitted that he only produced Ext.B2 series debit notes. He is not competent to prove it and the appellant did not make any attempt to prove the contents of the debit notes.
9. It has come out in the evidence of DW1 and DW2 that there was a practice of sending debit notes to the respondent. DW1 has deposed to the practice: the Quality Control Department of the appellant company would check the goods and if there was any shortage or presence of high percentage of moisture, deductions would be made and debit notes would be prepared and sent to the respondent; the respondent would send a credit note to the appellant on the receipt of the debit notes. In this case, there is no evidence to prove that Ext.B2 debit notes were sent to the respondent or the appellant received any credit notes from the respondent.
10. Ext.B2 debit notes bear the signature of a person, who prepared it, but they have not been signed by the accountant or any other person competent to sign it.
11. Thus there is a total lack of evidence to prove that there was a shortage in the goods or there was presence of high percentage of moisture and the appellant made deductions towards those items and communicated it to the respondent. The respondent has failed to discharge its burden. The total amount covered by the debit notes is Rs.64,046/-. The amount sought to be recovered is only Rs.47,779/-. The trial court rightly came to the conclusion that the respondent is entitled to the amount claimed in the suit. No interference is called for.
In the result, this appeal is dismissed with costs.
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K. ABRAHAM MATHEW JUDGE //True copy// P.A. TO JUDGE shg/