NAVIN CHANDRA SHARMA, J. - (1.) THIS is an appeal by the defendant against the appellate decree of District Judge, Bhilwara dated November 5, 1976 reversing the decree of Civil Judge, Bhilwara of dismissal of the plaintiff's suit passed on November 21, 1973 and decreeing the suit as against the appellant for Rs. 3426. 02 together with pendente lite and future interest at 6% per annum and proportionate costs.
(2.) FACTS, in brief, are that on February 8, 1971, the plaintiff-respondent instituted Civil Suit No. 2 of 1971 as against the appellant in the Court of the Civil Judge, Bhilwara for the recovery of Rs. 4051. 02 as principal and Rs. 1397. 48 as interest, in all for Rs. 5448. 50, as due against the appellant on the basis of an alleged mutual, open and current account between the parlies commercing on Miti Mingsir Budi 1 samvat 2022 and ending on Miti Chait Budi 15, Samvat 2024 and leaving the balance against the appellant as mentioned above. During this period, it was alleged that both the sides sent cash and goods to each other and from time to time, there was shifting balance of the amount due between the parties. The entries of Khata of the appellant were annexed as Annexures (a) (b), and (c) to the plaint. The appellant, in his written statement, denied that there was mutual, open and current account between the parties. It was pleaded that the defendant no doubt got sold five or seven carts of cotton through the plaintiff and that no other transactions took place between them. During Samvat year 2022 and 2023, the defendants had got sold 15 carts of cotton in the commission agency of the plaintiff and he took their sale-proceeds from the plaintiff in time. It was also pleaded that the plaintiff was not the sole proprietor of M/s Mool Chand Shanti Lal Jain but this concern was a partnership firm of which Moolchand, Shanti Lal and Haraklal were partners. Since the said firm was unregistered the suit was not maintainable. The plaintiff's suit was also stated to be barred by limitation. Civil Judge, Bhilwara framed following six issues in the suit:- 1. Was there a mutual, open and current account between the parties? 2. Whether an amount of Rs. 4051. 02 remained outstanding against the defendant on 8. 2. 71? 3. Was the plaintiff entitled to recover interest at the rate of 1% per month according to market usage? 4. Whether the plaintiff is entitled to get Rs. 5448. 50? 5. Whether the plaintiff firm was unregistered and is the suit not maintainable for that reason? 6. Relief? The learned Civil Judge decided issue No. 1 against the plaintiff. On issues Nos. 2, 3 and 4, the Civil Judge held that mere entries Ex. 1 to Ex. 68 not supported by any evidence except the bald statement of the plaintiff could not fasten any liability to pay on the defendant who had already denied the correctness of the entries. The suit of the plaintiff was, therefore, dismissed leaving the parties to bear their own costs. Aggrieved by the decree of the Civil Judge, Bhilwara dated November 21, 1973, the plaintiff filed Civil First Appeal No. 4 of 1974 before the District Judge, Bhilwara which was allowed by the latter on November 5, 1976. The District Judge held that the defendant had himself admitted in the written statement that he had got sold cotton in the commission agency of the plaintiff during Samvat year 2022 and 2023. In Samvat 2 021, there was only one credit entry of Rs. 530. 89 about the sale proceeds of maize sold in plaintiff's 'arat' and about two bags of pulses and some cash amount taken by the defendant. The District Judge further held that the plaintiff maintained regular and correct account books in the ordinary course of his business and the same were admissible in evidence under section 34 of the Evidence Act. The plaintiff's statement supported the entries in the account books and it was sufficient to fasten the defendant with liability for the amount due. The account was also held to be mutual, open and current between the parties. The District Judge further held that the firm M/s Mool Chand Shantilal Jain was a joint Hindu family firm and the plaintiff as Karta of the family was competent to file the suit. However, the District Judge held that the plaintiff has not established in the case that there was an agreement between the parties to pay interest at Rs. 1% per month on the amount due against each other or that there was any market usage to that effect. He, therefore, disallowed the amounts of Rs. 200/- and Rs. 425/- debited in Khata entries Ex. 2 and Ex. 3 from the principal amount claimed and decreed the suit of the plaintiff for Rs. 3426. 02 against the appellant with pendente lite and future interest at 6% per annum and proportionate costs. The defendant has come in second appeal to this Court. It may be mentioned here that the substantial question of law on which this appeal was admitted by this Court on July 5, 1977 was whether the entries made in the account books of the plaintiff-respondent have been proved in accordance with law.
(3.) MR. Rajendra Mehta, appearing for the defendant-appellant, contended that the plaintiff in the present case did not even state in his deposition that entries of the rokar bahi Ex. 4 to Ex. 68 were in his handwriting or were made by him or under his supervision. The plaintiff also did not depose that the entries were made when the transaction took place and also about the nature of the transaction pertaining to each entry. According to MR. Mehta, entries Ex. 4 to Ex. 68 were not duly proved by the plaintiff and no decree could be based on them. In order to properly appreciate the contention of the learned counsel for the defendant-appellant, it would be useful to summarise the gist of the statement given by the plaintiff in the trial court. The plaintiff deposed that transactions between the parties started from Samvat 2022. He then referred to the amounts credited and debited in khata entries Ex. 1, Ex. 2 and Ex. 3. The plaintiff further deposed that Ex. 4 to Ex. 6 were the corresponding debit entries of Khata Ex. 1 and Ex. 7 and Ex. 8 were the corresponding credit entries of the said Khata. Ex. 9 to Ex. 21 and 31 to 52 were the debit entries and Ex. 22 to 30 and 53 to 61 were the credit entries pertaining to Khata Ex. 2. Then Ex. 62 to Ex. 66 and 68 were the debit entries and Ex. 67 was the credit entry pertaining to the entires in khata Ex. 3. In cross-examination the plaintiff was asked particularly about credit entry of an amount of Rs. 37, 648. 43 and the plaintiff stated that 87 bales of cotton of the defendant were lying in Mahadev Ginning Factory and the plaintiff got them bailed in his arat. The plaintiff also stated that he used to draw rokar balance some time daily, some times in two days and some time in 5 or 7 days. Further cross-examination on behalf of the defendant was in relation to particular entries and particular transactions and the plaintiff gave particulars of the transactions on which he was specifically questioned. So far as the defendant is concerned, he deposed that he never instructed the plaintiff to purchase the goods mentioned in Ex. 1 to Ex. 3 and he also did not deposit any amount in cash with the plaintiff. He had only given to the plaintiff ten carts load of cotton which belonged to him and his friends. The defendant stated that as the plaintiff was subject to income-tax and; therefore, in order to evade that the latter made entries in his account books in defendant's name. This ten carts load of cotton was sent to the plaintiff in instalments for sale in plaintiff's arat. ;