IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.231 OF 2012 BETWEEN:
Sri R.A.Narayan, Aged about 62 years, S/o late R.A.Achar, Proprietor, M/s.Diamond Service, Indian Oil Dealer, Platform Road, Bangalore – 560 020. .. Appellant ( By Sri B.K.Bopanna, Advocate for Sri G.D.Ashwathnarayana, Advocate ) AND:
1. Sri Rajendra S. Major by age, Proprietor, M/s.Poornima Travels, No.18/5, 5th Main Road, Sri Jayadeva Hostel Building Gandhinagar, Bangalore-560 009.
2. Smt.R.Pushpalatha, Aged about 35 years, W/o S.Rajendra, Residing at No.88, 6th Cross, Widia Layout, Vijayanagar, Bangalore-560 040. .. Respondents ( By Sri C.Narasimhachar, Advocate for R-1; Sri H.B.Somapur, Advocate for R-2) This Regular First Appeal is filed under Section 96 of CPC, against the judgment and decree dated 20.09.2011, passed in O.S.No.201/2008, on the file of the XIX Addl. City Civil and Sessions Judge, Bangalore City, dismissing the suit for recovery of money.
This Regular First Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT This is the plaintiff’s appeal. Aggrieved by the judgment and decree dated 20.09.2011, passed in O.S.No.201/2008, by the learned XIX Addl.City Civil & Sessions Judge, Bengaluru City (CCH-18), (hereinafter for brevity referred to as `trial Court’), wherein his suit for recovery for a sum of `1,61,825/- came to be dismissed, the plaintiff has preferred this appeal.
2. The summary of the case of the plaintiff in the trial Court is that the plaintiff is the Proprietor of M/s.Diamond Services, a dealer in the Petroleum products, including petrol, diesel, lubricant oil etc., of M/s.Indian Oil Corporation. The defendant No.1 is the Proprietor of M/s.Poornima Travels, a bus agency. The said defendant used to purchase petrol, diesel and its allied products from the plaintiff’s Petrol Bunk. For the purchase of petrol, diesel and its allied products made by the defendant during the period from January 2006 to March 2006, the defendant was due to the plaintiff in a sum of `1,10,839/-. Though the defendant had assured the plaintiff that he would make prompt payment, but, he never cared to abide by his own words. In spite of several requests and personal visits made by the plaintiff, since the defendant failed to clear the outstanding due, the plaintiff was constrained to issue a legal notice dated 16.2.2007 to the defendants calling upon them to pay the outstanding due of `1,10,839/- together with interest at the rate of 2% per month within fifteen days of the receipt of the legal notice. Despite service of legal notice, the defendants failed to repay the outstanding amount together with interest thereupon. This constrained the plaintiff to institute the original suit against defendant No.1.
During the pendency of the suit, the plaintiff by carrying out an amendment in his plaint, impleaded defendant No.2 stating that she is the wife of defendant No.1 and both the defendants were running the said M/s.Poornima Travels, though it was a Proprietorship concern of the 1st defendant. Some of the busses and vehicles used by M/s.Poornima Travels were registered in the name of defendant No.2 also. As such, the supply of petrol and diesel and its allied products since were to the buses of both the defendants, they are jointly and severally liable to pay the outstanding dues to the plaintiff.
3. In response to the summons served upon them, the defendant No.1 filed his written statement, wherein he admitted that he is the Proprietor of M/s.Poornima Travels and that he was purchasing fuel to some of his busses from the plaintiff. However, he categorically denied that any such fuel purchase transaction was on credit basis. He specifically contended that he was purchasing fuel from various petrol bunks and dealers and that all his transaction with the plaintiff was only through cash. He specifically contended that on any occasion, he has purchased fuel from the plaintiff on credit basis. He also contended that none of the documents produced by the plaintiff in support of his plaint bears his signature, as such, all those documents were fabricated. Though he stated that he received the legal notice sent to him by the plaintiff, but, denied the correctness of the contents of the legal notice and again contended that there was no credit transaction between the plaintiff and the defendant.
Defendant No.2 also filed her written statement denying the plaint averments. She specifically stated that no legal notice was sent to her by the plaintiff and that there is no privity of contract between the plaintiff and herself.
4. Based on the pleadings of the parties, the trial Court framed the following issues and additional issues on 21.6.2008 and 1.7.2010 respectfully :
1. Whether the plaintiff proves that defendant purchased petrol, diesel and other allied products from plaintiff on credit basis from January 2006 to March 2006 to the tune of `1,10,839?
2. Whether plaintiff proves that defendant is liable to pay suit claim?
3. Whether plaintiff proves there is cause of action?
4. Whether the defendant proves that suit is bad as pleaded in para 5 of the written statement?
5. Whether the plaintiff is entitled for the decree sought?
6. What order or decree?
Additional issues :
1. Whether the plaintiff proves that the defendant No.1 and 2 are jointly and severally liable to pay the suit claim?
2. Whether the 2nd defendant proves that there is no privity of contract between herself and the plaintiff?
3. Whether the plaintiff is entitled for the judgment and decree against the 2nd defendant also?
In support of his contention, the plaintiff got himself examined as PW-1 and got examined one Sri C.S.Srinivas, his Chartered Accountant as PW-2 and got marked documents at Exs.P-1 to P-30. Defendant Nos.1 and 2 got themselves examined as DW-1 and DW-2 and got marked documents from Exs.D-1 to D-24.
After hearing both side, the trial Court by its judgment and decree dated 20.9.2011, answering Issue Nos.1, 2, 3 and 5 and additional Issue Nos.1 and 3 in the negative, issue No.4 as does not survive for consideration and additional issue No.2 in the affirmative in respect of defendant No.2, dismissed the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred this appeal.
5. The respondents are being represented by their learned counsel.
6. Lower Court records were called for and the same are placed before this Court.
7. Heard the learned counsel for the appellant.
The respondents’ counsel has remained absent, as such, he has not addressed his arguments.
Perused the materials placed before this Court, including the memorandum of appeal and the impugned judgment.
8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
9. In the light of the above, the points that arise for my consideration are :
1) Whether the plaintiff has proved that the defendants have purchased the petrol, diesel and other allied products from him on credit basis and that they were due to him in a sum of `1,10,839/-?
2) Whether the trial Court judgment deserves any interference at the hands of this Court?
10. PW-1 in his affidavit evidence has reiterated the contentions taken up by him in his plaint. He has stated that the defendants being the owners of the buses, were purchasing fuel and other allied products from his Petrol Bunk on credit basis, for which, directly he has raised credit bills. Since they have failed to pay the due amount, he was constrained to issue a legal notice against them. Despite receipt of legal notice, since the defendants have not paid the amount demanded in the legal notice, he was constrained to institute the suit. In order to support his contention, the plaintiff got marked twentyone original alleged credit bills of his Petrol Bunk from Exs.P-1 to P-21. He has got produced copy of the legal notice at Ex.P-22.
He was subjected to a detailed cross-examination, wherein he adhered to his original version. In his cross- examination, he stated that in none of the credit bills, there is signature of defendant No.2.
11. PW-2 – C.S.Srinivas, has stated that he is the Chartered Accountant of the plaintiff’s establishment i.e., M/s.Diamond Services and he has prepared the Balance Sheet for the year ending 2005-06 and 2006-07. He got them produced and marked at Exs.P-29 and P-30.
12. The defendants in their respective examination-in-chief as DW-1 and DW-2 have reiterated their contentions taken up by them in their written statement. Though DW-1 has stated that he was purchasing fuel from the plaintiff, but, specifically contended that, none of the transactions were on credit basis. Whenever he has purchased fuel from the plaintiff, it was only against cash payment. He has specifically denied that any of the exhibits from Exs.P-1 to P-21 bears his signature. He stated that his wife i.e., defendant No.2 also owns two busses with registration No.KA-02-AD-4949 and No.KA-02-AC-4949. He has stated that he was having three buses with registration No.KA-02-AC-9449, No.KA-02-C-9349 and No.KA-02-C- 9394.
DW-2 in her cross-examination has admitted that she has got two busses in her name bearing registration No.KA-02-AD-4949 and No.KA-02-AC-4949.
13. In the light of the above evidence of the witnesses, the first point of argument of learned counsel for the appellant was that the defendants have admitted about they purchasing fuel from the plaintiff, as such, it proved the transaction between the parties. As second and the last point of argument was that the credit bills produced by the plaintiff at Exs.P-1 to P-21 bears the registration numbers of the busses, as such, when the transaction is admitted and the credit bills bear the registration number of the busses, the suit transaction is established. As such, the suit ought to have been decreed in his favour.
As observed above, the learned counsel for respondents has not addressed his arguments.
14. A careful perusal of the pleading and the evidence in this appeal clearly go to show that the defendants have admitted that the plaintiff was running a Petrol Bunk with the name M/s.Diamond Services and that he was the dealer in Indian Oil. The defendants have admitted that they were owning five busses, three in the name of the 1st defendant and two in the name of the 2nd defendant. They have given registration numbers of their vehicles also. The only documents upon which the plaintiff relies upon as the documents for the alleged suit transaction are the alleged credit bills from Exs.P-1 to P-21. Those documents are shown to be the credit bills for the months of January, February and March 2006. Each of the credit bills bears the name of the purchaser as `Poornima’ and it also bears the registration number of the vehicle. Admittedly, the 1st defendant was the owner of M/s.Poornima Travels and the 2nd defendant is the wife of the 1st defendant. Thus, the busses of both the husband and wife were being run with the name and style of M/s.Poornima Travels. Undisputedly, the vehicle registration numbers shown in all these twentyone alleged credit bills bears the registration numbers of the busses owned and run by defendant Nos.1 and 2. All the twentyone bills from Exs.P-1 to P-21 shows that some quantum of diesel were sold through those bills and the amount has also been mentioned in those bills. However, a mere production of those bills with the name of the operating bus and its registration number by itself would not establish the case of the plaintiff since the defendants have categorically denied of having purchased the diesel under those alleged credit bills for their busses. In such a case, the plaintiff through cogent evidence has to establish that the supply of the diesel shown in those bills were supplied to the defendants, that too, on credit basis.
15. It is in that regard, the plaintiff’s first attempt was to say that all the bills bears the signatures of the defendants. However, subsequently, he confined in his evidence by stating that Exs.P-4, P-5, P-7, P-9, P-10, P-12, P-13, P-14, P-15, P-16, P-17, P-19, P-20 and P-21 bears the signature of defendant No.1. However, the said statement made by PW-1 has been specifically denied from the defendants’ side in the very same cross-examination of PW-1. Thus, merely because the plaintiff has stated that those alleged credit bills bears the signature of defendant No.1, by that itself, it cannot be taken that they are the signatures of defendant No.1 in the light of the categorical denial made by the defendants.
In that regard, in order to establish that those signatures were that of DW-1, the plaintiff ought to have confronted those signatures in the cross-examination of DW-1. However, the plaintiff, for the reasons best known to him has not confronted any of those alleged signatures on those exhibits to DW-1 in his cross- examination.
16. When in the cross examination of PW-1 it was clearly suggested to the witness that his statement that Exs.P4, P5, P7, P9, P10, P12, P13, P14, P15, P16, P17, P19, P20 and P21 were signed by the defendant is not correct and when the plaintiff solely relies upon those documents to prove the alleged due of payment by the defendants, then it was incumbent upon the plaintiff to establish that those credit bills were signed by none else than the defendant No.1 or on his behalf. For the said purpose, those signatures should have been confronted to DW-1 in his cross examination. Interestingly, instead of plaintiff confronting those signatures to DW-1 in his cross examination, the defendant himself in his further examination in chief has stated that he has not put his signatures on Exs.P2 to P21. Even at least thereafter also no attempt was made from the plaintiff’s side to confront those signatures to the defendant witnesses and to elicit a favourable statement from them. As such, the signatures on Exs.P1 to P21 have not been proved as that of either of defendants or that of their employees or servants.
17. In addition to the above, the plaintiff himself has shown that the alleged signatures of defendant are not uniform in the documents including his written statement and vakalat. He has also suggested to DW-1 in his cross examination that the witness was in a habit of changing his signatures according to his convenience. The said witness has not admitted the said suggestion as true. However, by making the said suggestion, the plaintiff has shown that he has all the belief that there will be no consistency in the signatures of the defendant No.1. In such a circumstance, it is not safe for a court to take the task of comparing signatures by itself by exercising its power under Section 73 of the Evidence Act. It is in the said circumstance, had there been availability of an expert’s opinion with respect to those disputed signatures, considering the same would have been a safe way to decide the question. However, for the reasons best known to him, the plaintiff did not make use of referring the disputed signatures and the specimen or admitted signatures to any handwriting expert. As such, the very necessary and important ingredient that the signatures on the disputed credit bills were not established as that of the defendant.
18. With respect to the signatures on other credit bills i.e., Exs.P1, P2, P3, P6, P8, P11 and P18 are concerned, admittedly those signatures are not of the defendants. Had those signatures been of any of the staff or employees of the defendants then the same were also required to be established by the plaintiff. Interestingly, nothing has been elicited in the cross examination of DW-1 or DW-2 regarding the identity of those signatures or its authorship. As such those exhibits also prove to be not safe to rely upon.
19. The other avenue through which the plaintiff tries to take the Court through is by examination of a chartered accountant i.e., PW-2 – Sri C.S. Srinivas. The said witness except stating that, he as a chartered accountant, has prepared the balance sheet for two years i.e., 2005 to 2007 has not stated anything about the alleged transaction. Even as a chartered accountant also he could not say as to whose signatures those Exs.P1 to P21 bear. What are all the inputs that have been furnished to him, as a professionalist he has prepared the balance sheet on that basis. As such, if the plaintiff himself has produced some bills, then as a professional chartered accountant, it is expected of him to consider the same as a part of the business transaction and to proceed. But when those credit bills themselves are in dispute, it is through cogent and reliable evidence the plaintiff should have established them. One such avenue was by proving the signatures on those credit bills which, as already observed above, the plaintiff could not able to establish.
20. Lastly PW-1 in his cross examination has stated that he has been maintaining a log book about regular customers who purchase petrol and diesel on credit basis. He also stated that every month he submits returns to sales tax authorities. Every month he tenders income tax returns to Department. He further stated that he uses to mention the credit supplied to the customers in those returns. If that were to be the case, the plaintiff could have produced his log book and should have shown with evidence that details of every transaction was maintained by him in the normal course of business and established the transaction which according to him was a credit transaction with the defendants. The said attempt was also not made by him. Had the plaintiff really reflected the alleged credit transaction even in his sales and income-tax returns, as contended by him, he would have furnished the copies and the acknowledgements in his returns said to have been filed by him with the taxation authorities, giving the details of the creditors, which also he has not done. In this way, when it was the burden of the plaintiff to prove his case that he had supplied fuel to the defendants on credit basis which according to him amounted to an outstanding due of Rs.1,10,839/-, then it was for him to establish the same. Since the plaintiff has not established the same, the Trial Court considering the evidence, analysing them in its proper perspective has rightly pronounced the Judgment of dismissal of the suit as devoid of merit. I do not find any reason to interfere with it.
Accordingly, I proceed to pass the following:
ORDER The appeal is dismissed.
The Judgment and Decree dated 20.09.2011 passed by the learned XIX Addl. City Civil & Sessions Judge, Bengaluru City, in O.S. No.201 of 2008 is confirmed.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
Sd/- JUDGE bk/SAC