Judgment:
G.C. Jain, J.
(1) Indian Metal Industries, the plaintiff, is a partnership firm registered under the Indian Partnership Act. S/Sh. Surendra Kumar and Virendra Kumar are its partners. It manufactured Pilfer Proof Cape and Tin Containers, Bakelite Caps, Machines and moulds etc. It also dealt in the sale and purchase of aluminium sheets and aluminium foil etc. It had dealings with the defendant, M/s. United Glass Company, a sole proprietorship firm of Sh. Mool Chand. For the goods purchased from the plaintiff and defendant used to make payments in account from time to time. The account commenced from April 10,1957.
(2) On May 17, 1963, Sh. Mool Chand, proprietor of the defendant firm, brought a suit (Suit No. 652/66) for recovery of Rs. 16,286.91 against the plaintiff and its partners. It was alleged that the value of the goods supplied by the present plaintiff was credited and the amounts paid to the plaintiff were debited in its account and in January, 1963 a sum of Rs. 16,286.91 was due from the plaintiff.
(3) The plaintiff resisted the suit. It was admitted that it had dealings with the defendant. It was, however, pleaded that nothing was due from it and on the other hand a huge amount was due to the plaintiff from the defendant.
(4) Sh. Virendra Kumar, one of the partners of the plaintiff, who was defendant No. 3 in the said suit, admitted the claim in suit and consequently a decree for Rs. 16,286.91 with costs and interest at 6/o p.a. from the date of the suit till realisation was passed against him on September 29, 1972. The decretal amount was allegedly paid by the said Sh. Virendra Kumar to Sh. Mool Chand and for that reason the suit was dismissed on February 2, 1973.
(5) On May 18, 1965 the plaintiff brought this suit against the defendant for recovery of Rs. 1,45,000.00 . It was averred that the defendant had dealings with the plaintiff's Delhi office as well as Faridabad office. For the period April 1, 1958 to 25th March, 1963 a sum of Rs. 44,391.17 was due to the plaintiff from the defendant on account of dealings with Delhi office. A sum of Rs. 93,665.41 was due on account of dealings with plaintiff's Faridabad office for the period from 1.11.1962 to 15.2.1963. It was next pleaded that the defendant had not supplied 'C Form' under the Central Sales Tax Act about the goods purchased from the plaintiff's Faridabad office. For that reason the plaintiff bad to pay a sum of Rs. 7089.47 as additional Sales Tax and it was entitled to recover this amount from the defendant.
(6) The defendant resisted the suit. It was pleaded that it had no separate accounts with the plaintiff's Delhi office and Faridabad office. The defendant was having only one account beginning from April 10, 1957. It was next pleaded that the plaintiff on April 19, 1962 had acknowledged that as sum of Rs. 98,070,15 was due to the defendant from the plaintiff and the suit was based on fictitious entries. Nothing was due to the plaintiff and in fact a sum of Rs. 16,286.91 was due to the defendant from the plaintiff.
(7) On the pleadings of the parties following issues were framed : '1. Whether the plaintiff firm is registered under the Indian Partnership Act and Sh. Surendra Kumar is one of its registered partnership 2. Whether the suit of the plaintiff is within time 3. Whether the plaintiff acknowledged a sum of Rs. 98070.15 Ps. due to the defendant from the plaintiff after telling the account with the defendant on 19.4.1962 If so, what is its effect. 4. Of what amount the goods were supplied by the plaintiff to the defendant 5. What payments have been made by the defendant to the plaintiff? 6. What other amount is due to the plaintiff apart from the goods supplied 7. What interest, if any, is the plaintiff entitled 8. Whether the plaintiff is entitled to Rs. 7089.47 from the defendant, as alleged in para 11 of the plaint? 9. Relief.'
(8) This suit as well as the suit filed earlier by the defendant were both pending before the learned Commercial Judge and were registered as Suit No. 282/65 and Suit No. 263/63 respectively. Both these suits were consolidated by order dated October 25, 1965. It was directed that the proceedings will take place in Suit No. 263/63 i.e. the suit filed by the 'defendant. Later on these suits were transferred to this Court and were numbered as Suit NO. 653/66 and Suit No. 652/66. Part of the evidence is on the file of Suit No. 652/66 which had since been disposed of on February 2, 1973, as noticed earlier. Issue No. 1
(9) Certified copy of the entries in Form A (Ex. Public Witness 1/1) show that the plaintiff firm was duly registered under the Indian Partnership Act and Sh. Surindra Kumar was one of its partners. The issue if, thereforee, decided in favor of the plaintiff. Issue No. 2
(10) Article 1 of the Indian Limitation Act, 1963 provides a period of three years for a suit for the balance due on a mutual, open and current account where there have been reciprocal demands between the parties. Time begins to run from the close of the year in which the last item admitted or proved is entered in the account; such year to be computed as in the account. To attract this Article there must be transactions on each side creating 408 independent obligations on the other tend not merely transaction which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations. In the. present case, plaintiff admittedly sold goods to the defendant. These transactions created obligations on the defendant. The defendant not only discharged the said obligations but paid amount in advance. Sh. Surender Kumar, partner of the plaintiff firm, has admitted in his statement that as on April 23,1962 a sum of Rs.98,539.13 was due to the defendant from the plaintiff. It is, thus, clear that there were reciprocal demands between the parties. The suit was, thereforee, governed by Article 1. The last undisputed entry in the account in the Delhi office is dated March 18, 1963 for Rs. 2248.51 for Bill No 3593. The last undisputed entry in Faridabad account was dated January 13, 1963 for Rs. 303.00 vide invoice No. 248. The suit filed on May, 18, 1965 was within time. As a matter of. fact learned counsel for the defendant did not press this issue. The issue is decided in favor of the plaintiff. Issue No. 3
(11) According to the defendant the parties tallied their accounts on April 19, 1962 and the plaintiff acknowledged that it owed Rs. 98,070.15 on that date to the defendant. To prove this plea the defendant has relied on two documents, both dated 19th April, 1962. By the first document (Ex.P-1). the plaintiff authorised the defendant to purchase raw material on its behalf. The defendant was to get the commission amount paid by the sellers of the said raw material. The defendant was also to sell the goods manufactured by the plaintiff and was entitled to 3% commission on those sales. This document contains a recital that the plaintiff owed a sum of Rs. 98,070.15 to the defendant. The second document (Ex. P-2) is power of attorney. The plaintiff appointed the defendant, Sh. Mool Chand its general attorney to manage the firm. This document also contains a recital that a sum of Rs. 98,070.15 was due to the denedant from the plaintiff. To prove these documents the plaintiff has produced five witnesses. Their evidence is on the file of Suit No. 652/66. Sh. Sumer Chand Jain, petition writer (Public Witness -1) deposed that the documents were scribed by him in his office in court compound. Sh. Mool Chand came there with the executants. After scribing the documents, the documents were entered in his register. The documents were then taken away. Thereafter only Surinder Kumar (one of the partners of the plaintiff firm) came and signed on his register. He admitted that the documents were not signed either by the executants or by the witnesses in his presence. Sh. Sureshwar Dayal (Public Witness -2) stated that he was an attesting witness of these documents and that the partners of the plaintiff firm and Sh. Mool Chand signed on these documents in his presence. Similar statement was made bySb.Mangat Ram(PW-4),the other attesting witness and Sh. Mool Chand, the plaintiff, who appeared as PW-5. The defendant also produced hand writing expert Sh. M.K. Mehta. His examination-in-chief was recorded on 3.10.66. Thereafter he was not examined. In other words the plaintiff had no opportunity to cross-examine him. His evidence, thereforee, cannot be read in evidence.
(12) In rebuttal Sh Surinder Kumar, one of the partners of the plaintiff firm, denied the execution of these documents (Ex. P-1 and P-2).
(13) I have carefully examined the entire evidence. No doubt, there is some contradiction in the evidence of the witnesses examined by the defendant 409 regarding the place where the documents were signed by the partners of the plaintiff. According to Sh. Sureshwar Dayal and Sh. Mangat Ram, these Were signed at the shop of Sh. Sureshwar Dayal. While according to Sh. MoolChand, the same were signed at his (Mool Chand's) shop. This- contradiction, however, is of not much importance in the presence of the other evidence on the record.
(14) Sh. Surinder Kumar, partner of the plaintiff firm, as PW-1 admitted in cross-examination that he bad filed the document Ex. P-1 before the Income Tax Authorities. Ordinarily he Was not expected to do so if it was a forged document. Sh. Surinder Kumar explained that he filed the document to prove that the claim made by the defendant was false. This Explanationn is most unsatisfactory. He was not expected to rely on an alleged forged document in support of his plea.
(15) The plaintiff admittedly filed an appeal before the appellate Assessment Commissioner. Ex. D-1 is its copy. In the last para it was stated '......... In this connection we may mention that the financial control during this year was entirely in the hands of Mr. Mool Chand, proprietor United Glass Company and every month whenever the wages were to be dispersed the amount was advanced by United Glass Company only. This is established beyond doubt in view of the transaction entered into with the appellant firm and the firm managed by Sh Mool Chand.........' Sh. Surinder Kumar, partner of the plaintiff, has admitted in.cross-examination that he had filed this document before the Income Tax Auhorities. It is clear from the grounds of appeal that the plaintiff relied on these documents for the purpose of income tax assessment. This document proves that the control of the plaintiff was with the defendant. This is very important evidence to prove the genuineness of the two documents.
(16) Sh Mool Chand, defendant, in his statement deposed that after the execution of these two documents he went to the factory. Sh. Surinder Kumar, partner of the plaintiff firm got a notice (copy of which is Ex. P-14) typed and the same was put on the notice board. In the notice it was stated that Sh. Mool Chand Rastogi had taken over complete charge of sheet, metal Section and Printing Department with effect from 19th April, 1962. Sb. Mool Chand Rastogi also produced an order (Ex. P-15) dated 25 April, 1962 showing that he was managing the plaintiff firm. He also produced (Ex. P-16) notice issued by the plaintiff to the defendant terminating the agreement in question and its reply (Ex. P-l 7) sent to the plaintiff. Correctness of these documents was not denied by the plaintiff Sh. Surinder Kumar in his evidence. This evidence proves that Ex. P-1 and P-2 were genuine.
(17) The plaintiff has filed a copy of the entries in his account books relating to the account of the defendant. These show that on April 1, 1962 a sum of Rs. 58,190.31 was due to the defendant from the plaintiff. A sum of Rs. 1839.47, Rs. 1476.84, Rs. 7325.54 and Rs. 19.40 were debited in the account of the defendant, on 5th, 11th 18th and 18th April, 1962 respectively. Thus according to the account books a sum of Rs. 47,529.06 only was due to the defendant from plaintiff No. 1. It was argued that there was no reason to disbelieve these entries and in the presence of these entries the correctness of the documents Ex P-l and Ex. P-2 containing the acknowledgement that a sum of Rs. 98,070.15 was due to the defendant could not be believed, find no merit in this contention. No. doubt on 1.4.1962 according to the plaintiff's statement of 'account (Public Witness 1/2) a sum of 410 Rs 58,190-31was due to the defendant On 5th,11th, 18th. and 18th April, 1962 a sum of Rs. 1839.47, Rs. 1476.84, Rs. 7325.54 and Rs. 19.40 was debited. However, on 20th, 21st and 23rd April, 1962 Rs. 200.00 , Rs. 500.00 , Rs. 45.750.24, Rs. 50.00 , Rs. 65.00 and Rs. 3414.90 had been credited in the account of the defendant. There are no such corresponding entries in the. statement of account filed by the defendant in the case filed by him i.e. Suit No. 652/66. This shows that these amounts were accounted for while arriving at the balance of Rs. 98,07015. If we taken into consideration the above debit and credit entries the amount would come to Rs. 97,394.20. There is difference of Rs. 675,95. It may be due to debit and credit of one or two other entries. In any case the difference is of no importance and does not affect the genuineness of the two documents Ex. P-1 and P-2.
(18) In any case Sh. Surinder Kumar, partner of the plaintiff firm (DW-1) in cross-examination admitted that according to the entries in his account books a sum of Rs. 98,539.13 was due to the defendant from the plaintiff on 23rd April, 1962. Accepting this admission as correct I hold that a sum of Rs. 98,539.15 was due to the defendant from the plaintiff on 23rd April, 1962. The issue is decided accordingly. Issues No 4, 5 and 6
(19) From April, 24, 1962 to March 25, 1963 as p;r statement of account (Ex.PW1/2) a sum of Rs 4,21,964.24 was debited in the account of the defendant. A sum of Rs. 1,21,745.11 was debited in the Faridabad account (Ex. Public Witness 1/3). Total debit amount comes to Rs. 5,43,709.35. A sum of Rs. 2,78,873.94 was credited in Delhi account and a sum of Rs 28,079.70 in Faridabad account. Total credit amount comes to Rs. 3,06,953.64. The balance comes to Rs. 2,36,755.71. After adjusting Rs. 98,539.15 which was admittedly due to the defendant as on April, 1962, a sum ofRs. 1,38,216.56 remained payable to the plaintiff by the defendant in case all the entries in the statements Public Witness 1/2 and Public Witness 1/3 were found correct.
(20) On September 20, 1962 the plaintiff raised 29 debit entries in the account of the defendant on account of 'the amount wrongly credited'. The total amount of these entries comes to Rs. 66,911.29. There is no evidence on record to show how the - errors crept in. Sh. Surinder Kumar, partner of the plaintiff, has not explained these reverse entries. In his statement he simply stated 'In the year 1960-61 some wrong entries were made in our books and these entries were made by reversing those wrong entries. He however, nowhere explained how the alleged error crept in. In the absence of satisfactory evidence the amount of these debit entries cannot be allowed. A sum of Rs. 66, 911.29, thereforee, has to be disallowed.
(21) At page 5 of the statement of account filed by the plaintiff along with the written statement, defendant denied th(r) receipt of goods under follow- in bills:- Bill No Amount 3352 Rs. 608.38 3368 75.54 3504 . 810.51. 3526 434.34 411 Bill No. Amounts 3481 68266 3492 1037.90 3495 2160.69 3496 3928.50 3499 11227.75 3593 2248.51 Inv. No. 822 3783.80 852 1287.75 859 8080.00 39,966.33
(22) To prove that the goods were supplied under these bills the plaintiff has produced bills Ex. Public Witness 1/268, Public Witness 1/270, Public Witness 1/271, Public Witness 1/272, Public Witness 1/274, Pw 1/276, Public Witness 1/277, Public Witness 1/281 and Public Witness 1/282. These bills do not bear the signatures of the defendant or its employee. These are on plain papers. The bill book containing the duplicate from which these plain papers have been prepared have not been produced. Cash book or the ledger in which the entries in the regard to these bills must have been made, have not been produced. Even copy of the bill No. 3593 has not been produced. These bills, thereforee, are of no consequence.
(23) The plaintiff has produced certain sales tax declaration forms showing that the goods under these bills have been supplied. These are Ex. Public Witness 1/55, Public Witness 1/58, Public Witness 1/59, Public Witness 1/60, Public Witness 1/61, Public Witness 1/62, PW1/63, Pw 1/64 and Public Witness 1/56. All these declaration forms purport to have been signed by Sh. B.D. Tawakli, admittedly an employee of the defendant in those days. The contention of the defendant, however, is that B.D. Twakali had been dismissed from the service and the plaintiff got his signatures later on. To prove these declaration forms the best witness was Sh. B.D. Tawakli. He, however, has not been examined. In the absence of this witness I do not find it safe to rely on these declaration forms The possibility that his signatures were obtained later on cannot be ruled out. It is also to be kept in mind that the duplicate copies maintained in the bill books, cash book and ledger have not been produced.
(24) To prove that the goods under bill No. 3352 3526, and 3496 were supplied the plaintiff also produced goods receipts Ex. Public Witness 1/267, Public Witness 1/266, and Public Witness 1/260. I find it very difficult to connect Gr Public Witness 1/267 with bill No. 3352. The said bill is dated 12.5.1962 while the Gr 1/267 is dated 24th April, 1962. The said bill relates to P P Capes while this Gr is for aluminium corks. The next goods receipt Public Witness 1/266, it is stated, relates to bill No. 3526. Gr is dated 1st September, 1962. The bill is, however, dated 3rd September, 1962. Gr Ex. Public Witness 1/260 is dated 17th May. 1962 while the bill No 3496 to which it allegedly relates is dated 20th December, 1962. It cannot be said that this Gr relates to the said bill. In view of the above discussion the plaintiff has failed to prove that the goods for these bills were supplied.
(25) To prove that the goods under Invoice No. 822, 852 and 859 were supplied to the defendant the plaintiff has produced bills Ex. Public Witness 1/538, Pw 1/285 and Public Witness 1/286 respectively. Bills Public Witness 1/285 and Public Witness 1/286 are on plain papers. The duplicate copy in the bill book etc. have not been produced. The plaintiff has also relied on goods receipt Public Witness 1/261 to prove the supply of goods under invoice No. 859. The goods under bill Ex. Public Witness 1/286 weighed 1000 Kg. G.R. is however for6maundsonly. It is not possible to connect the Gr with the said bill. The plaintiff also produced the alleged acknowledgment Ex. Public Witness 1/561 regarding the receipt of goods vide invoice No. 859. This is again signed by Sh. B.D. Tawakli. For the reasons already explained it is not safe to rely on this acknowledgment.
(26) The invoice 822, Ex. Public Witness 1/538 is signed by Sh. B.D. Tawakli. For reasons already given I do not consider it safe to rely on this document. The plaintiff, in my view, has failed to prove that goods under the said invoices were supplied to the defendant. The amount of these bills and invoices comes to Rs. 39,966.33.
(27) The defendant, it is pleaded, supplied goods worth Rs. 12,966.35 on different dates to the plaintiff but the said amount had not been credited by the plaintiff in the account. To prove this contention the defendant has produced on record bills dated 22.9.62 (Ex. P-21); 27.9.62 (Ex.P-10);3.1062 (Ex. P-9): 9.11.62 (Ex. P-22); 19.11.62 (Ex. P-19); and 22.11.62 (Ex.P-18) for Rs. 681.75; Rs. 2928.45; Rs. 2906.90; Rs. 154343: Rs 2426.93 and Rs. 2478.89 respectively. Sh. Mool Chand Rastogi stated that the bills Ex. P-9 and P-10 were signed by Kailash Chand Rastogi, bills P-21 and P-22 by Sh. Virender Kumar, partner of the plaintiff, and Ex. P-18andP-19by Sh. Surinder Kumar Rastogi, the other partner. Sh. Kailash Chand Rastogi (Ex. PW-3). accountant of the plaintiff, admitted his signatures on bills and P-10. This evidence proves that the goods under bills Ex. P-9 and P-10 were duty supplied. The evidence of Sh. Hira Lal (Public Witness 12) a railway broker, proves that the delivery of the goods under some of these bills was taken by him on behalf of the plaintiff Mr. Virender Kumar has not been examined. Statement of Sh. Surinder Kumar Rastogi that the bills in question were not signed by him cannot be believed in the presence of evidence on record. I consequently hold that the defendant had supplied goods worth Rs. 12,966.35 to the plaintiff and was entitled to the credit for this amount.
(28) Along with the written statement the defendant filed a statement of account (Schedule A). At page 6 be claimed a credit of Rs. 47,024.85 on account of the amount paid by the defendant to the plaintiff but not credited by the plaintiff in its statement. The details of these payments are as under : 413 Date Amount 16.7.62 Rs. 441.45 25.7.62 100.00 6.8.62 45.00 22.9.62 681.75 22.9.62 106.74 24.9.62 203.00 27.9.62 2928.45 29.9.62 2921.91 3.10-62 2906.90 11.10.62 450.00 12.10.62 1000.00 24.10.62 6934.80 31.10.62 500.00 9.11.62 1543.43 19.11.62 2426.93 22.11.62 2478.89 27.11.62 4569.06 6.12.62 17.41 8.12.62 12665.53 11.12.62 465.75 17.12.62 57.60 17.12.62 66.85 17.12.62 500.00 17.12.62 500.00 17.12.62 1000.00 22.12.62 105.00 24.12.62 , 11840 29.12.62 700.00 29.12.62 500.00 47024.85
(29) Learned counsel for the defendant contended that in the suit (Suit No. 652/66) filed by Sh. Moot Chand Rastogi, proprietor of the defendant, against the plaintiff, Mool Chand had filed a statement of account. In this statement he had debited Rs. 441.25, Rs. 100.00, Rs. 45.00, Rs. 203-00, Rs 450.00, Rs. 1000.00 , Rs 500.00 and Rs. 17.41 on 16.7.62,25.7.62,6.8.62, 24.962, 11.1062, 12.1062, 31.10.62and 6.12.62 respectively. The correctness of these entries was not disputed. These amounts have not been credited in the statement of account filed by the plaintiff in the present case and thereforee the defendant was entitled to the credit for these amounts. I find merit in 414 this contention. In the written statement filed by the present plaintiff in the suit filed by Sh. Mool Chand he had disputed the correctness of various amounts in sub paras.(a) to (in) of para 5. Correctness of the above, amounts however, was not disputed. The defendant was, thereforee, entitled to the credit of these amounts. The total comes to Rs, 2856.66.
(30) The next dispute is amount Rs. 12,665.55 alleged to have been paid by the defendant to M/s. Indian Foils Ltd. on behalf of the plaintiff..It has not been disputed that the goods were being purchased from M/s. Indian Foils Ltd. by the plaintiff. It is .also not in dispute that the defendant had been making payments to Indian .Foils Ltd. on behalf of the plaintiff. This is otherwise clear from cheques dated 20th October. 1962 and 7th December, 1962 for Rs. 14,519.62 and Rs. 2706.81 (Ex. PW3/D-4 and Ex. PW5/D-3). Both these cheques were issued by the defendant in favor of the Indian Foils Ltd.The plaintiff admittedly has given credit for Rs. 14,519.00 in his account books, as is clear from the statement of account Ex. PW1/2. However, no credit has been given for Rs.2706.81.This payment,it appears,has been given towards the bill Marked D for Rs. 12,665.55. In this bill adjustment for Rs. 9958.72 has been given, towards commission The contention of the plaintiff is that the defendant was not entitled to this commission. This contention cannot be accepted in view of the terms of the agreement Ex.P-1. It was agreed that whatever commission was received on purchase of raw material will be payable to the defendant. The defendant was, thereforee, entitled to the credit of this amount of Rs. 12,665.55.
(31) It was contended that the defendant was entitled to the credit of Rs. 106.74 on account of railway freight deducted in various invoices as the price relating to those invoices was for. destination. This contention stands proved from the letter dated September 22,1962 Ex. P-12.Jt contains an endorsement in the hand of Sh. Kailash Chand Rastogi reading 'Received the original copy and checked'. The defendant examined Sh. Kailash Chand, accountant of the plaintiff. He admitted that this debit note contained his signatures. I see no reason to disbelieve the correctness of this document. I, thereforee, hold that the defendant was entitled to the credit of Rs. 106.74.
(32) The next entry is dated 29th September, 1962 for Rs. 2921.91. To prove this payment the defendant produced (Ex. P-29). voucher dated 29th September 1962. It shows that a sum of Rs. 2921,91. was paid by the defendant on behalf of the plaintiff to Indian Cork Mills, Bombay. The signatures of the partner of the plaintiff were admitted on this document. Ex. P-164 is receipt for his amount. The defendant has also produced on record cheque dated 29th September, 1962 in favor of M/s Indian Cork Mills for Rs 2921.91. This cheque was issued by the defendant and was duly encased by the payee. The defendant was entitled to the credit of this amount.
(33) The next entry is for Rs. 6934.80 dated 25th October, 1962. To prove this payment the defendant produced voucher Ex. P-7. It shows that a sum of Rs. 6934.80 was paid to Sh. Surinder Kumar Rastogi, partner of Indian Metal Industries for Indian Foils Ltd. Sh. Kailash Chand, the accountant of the plaintiff, has admitted his signatures on this voucher. Kailash Chand has, no doubt, admitted that he had no authority to receive money incash, It.was also admitted.that he has been dismissed from service. However, it would not make much difference. Ordinarily he must have signed on the voucher under instructions. From the agreement Ex.P-1 and the 415 admitted facts that the defendant had been making payment to several parties on behalf of the plaintiff, it is clear that plaintiff was in financial difficulty. This circumstance supports the correctness of this voucher. The defendant was entitled to the credit of this amount also
(34) The next entry is dated 27.11.62 for Rs. 4559.06. To prove this item the defendant relied on voucher dated 27.11.62Ex.P-4.Accordingto this voucher a sum of Rs. 4559.06 was paid to Sh. Surinder Kumar in cash. Sh. Kailash Chand Rastogi, PW-3, has admitted his signatures on this voucher. I find no justification to doubt the genuineness of this document. I, consequently hold that this payment was made by the defendant to the plaintiff and the defendant was entitled to the credit for this amount.
(35) The next item is for Rs. 465.75 dated 11.12.62. It was sought to be proved by voucher dated 11.12.f2 Ex. P-30. This amount was raised on account of costs of 81 empty cases paid to Qiamuddin by cheque. Kailash Chand admitted his signatures on this voucher Cheque for this amount which was issued by the defendant in favor of Qiamuddin had been produced. The cheque was encased by Qiamuddin. The defendant was entitled to the credit of this amount as well.
(36) The next two items are for Rs. 57.60 and Rs. 66.85 both dated 17th December, 1962. These payments were made to State Bank of India by means of cheques of the same date which have been produced on record. I allow these items as well.
(37) The next entry is for Rs. 500.00 dated 17th December, 1962. The defendant has produced voucher Ex. P-25 to prove the payment of this amount. This shows that this amount was paid by cheque to M/s. Blundle Emote Paints Ltd. This payment has been proved by the statement of PW-9 Sh. S.P. Jain, an employee of the said concern. The cheque has also been produced. The defendant was, thereforee entitled to credit for this amount.
(38) The next item is again for Rs. 500.00 dated 17th December, 1962. To prove this payment the defendant produced voucher Ex. P-26, According to this voucher this payment was made to Standard Type Foundary This fact has been proved from the evidence of Sh. Sat Dev Chauban, an employee of the said concern. The cheque in favor of Standard Type Foundary has also been produced. This payment stands proved.
(39) The next entry is for RS.1000.00 dated 17th December, 1962. To prove this payment the defendant produced voucher Ex. P-24, which shows that this amount was paid to Industrial Plastic Corporation Ltd., Bombay. Signatures on the voucher have been admitted by the plaintiff. The cheque for this payment has also been produced. I find no reason to disbelieve this payment. The defendant was entitled to credit for this amount.
(40) The next item is for Rs.105.00 dated 22.12.62. To prove this payment the defendant produced a debit note dated 21st December, 1962, Ex. P-31. It shows that this amount was paid by the defendant in the account of the plaintiff on account of 2% commission paid to the broker. This was proved by Sh. Mool Chand, proprietor of the plaintiff in his statement recorded on 6th June, 1964. I see no reason to disbelieve him. The payment stands proved. 416
(41) The next item is for Rs. 118.40 dated 24.12.62. To prove this entry the defendant produced voucher Ex. P-27. It shows that the amount was paid to Oriental Electric Company on behalf of the plaintiff. Signatures on this voucher were not admitted but this stands proved by cheque dated 24.12.1962 in favor of M/s. Oriental Electric Co. issued by the defendant which has been produced on the record. The defendant was entitled to credit for this amount.
(42) The next entry is for Rs. 700.00 dated 29.12.62. To prove this entry the defendant produced voucher Ex P-8. It shows this amount was paid in cash to the plaintiff. Sh. Kailash Chand Rastogi admitted his signatures. I see no reason to disbelieve his statement. This payment stands proved.
(43) The last entry is for Rs. 500.00 dated 29th December, 1962. The defendant produced voucher Ex.P-28. Signatures on this voucher have not been denied on behalf of the plaintiff. This voucher was proved by Sh. Mool Chand. I see no reason to disbelieve the genuineness of this document. This payment stands proved.
(44) I, consequently, hold that the defendant was entitled to the credit of Rs. 47,024.85.
(45) The total of the debits disallowed and credits allowed comes to Rs. 1,53,902.47. This amount is more than the amount in suit. I, thereforee, need not go into the other entries.
(46) I consequently hold that nothing is due to the plaintiff from the defendant. Issues No. 7 & 8
(47) In view of my findings on issues No. 4 to 6 I need not go into these issues.
(48) In view of my above findings the suit is dismissed. Parties are, however, left to bear their own costs.