ARAKKAN NARAYANAN Vs. INDIAN HANDLOOM TRADERS

JUDGEMENT

(1.) This appeal is filed against the judgment and decree in O.S. No. 18 of 1989 on the file of the Principal Sub Court, Tellicherry. The plaintiff is the appellant. The plaintiff is the proprietor of Wardha Textiles, Chirackal, Cannanore. The first defendant is M/s. Indian Handloom Traders. According to the plaintiff he has been dealing in textile goods in Cannanore. The defendants are textile agents and their centre of activities is mainly in New Delhi. The defendants used to book orders. As per those orders, goods were delivered to the defendants. According to the plaintiff, goods were delivered to the defendants between 5.11.1985 and 16.9.1987. The plaintiff has been keeping an account of the amount due from the defendants as well as the amount received from the defendants. The case of the plaintiff is that as on 20.1.1988, there is a balance of Rs. 86,271/- due from the first defendant. On 30.10.1987, the first defendant issued a cheque for Rs. 20,000/- in favour of the plaintiff. But that cheque was dishonoured. Thereafter the plaintiff preferred a complaint to the police. After the complaint was filed, the defendants made a payment of Rs.40,000/- in cash on 2.11.1988. On3.3.1988 goods covered by invoice Nos. 503, 505 and 506 were returned to the plaintiff. The value of these goods is Rs. 53,990/-. Thus according to the plaintiff, on that day that is on 3.3.1988 the defendants made a further payment of Rs.15,040/- in cash and there was a balance of Rs.16,239.50 due to the defendants.

(2.) Another case of the plaintiff is that the goods returned by the defendants were sold by the plaintiff in open market. By that sale the plaintiff suffered a loss of Rs. 13603.30. Thus the suit is filed for the amount due to the plaintiff under the above head. A joint written statement was filed by defendants 1 and 2. The defendants admitted that the first defendant has transaction with plaintiff and that the plaintiff used to supply handloom goods. But the allegation of the plaintiff that on 20.1.1988 there was a balance of Rs. 86,271/- is not admitted. According to the defendants the plaintiff has sent the goods without orders being received from the defendants. The issue of the cheque in favour of the first defendant on 30.10.1987 is admitted. The complaint filed by the plaintiff to the police is also admitted. The case of the defendant is that on the interference of the police, 13 bales of textile goods were returned to the plaintiff, and the matter was compromised by paying an amount of Rs. 16040/-. It is further stated that the plaintiff issued a receipt for the amount of Rs. 16040/- in which he had stated that the entire matter has been settled. The defendants denied that an amount of Rs. 40,000/- was paid on 2.11.1988. The defendants also disputed their liability to pay the difference in amount. On the above pleadings the Court below raised five issues on behalf of the plaintiff Exts. A1 to A8(a) were marked and PW 1 and 2 were examined. On behalf of the defendants Exts. B1 to B3 were marked and DWs. 1 and 2 were examined. The Court below after appreciating the evidence adduced by both the parties came to the conclusion that the plaintiff has failed to prove the correctness of the accounts kept by him. The court took the view that no decree can be granted on the basis of Exts. A5 and A6. It also held that the plaintiff is not entitled to loss suffered by him on the re-sale of the returned goods. It is against that this Appeal has been filed.

(3.) Learned counsel for the appellant Sri. Alex contended that the court below has not properly appreciated the contention of the parties. He further submitted that the appellant has produced Exts. A4 and A6 account books, which will show that the balance claimed by the appellant was correct. Further, according to him, PW 2 has been examined to prove Exts. A5 and A6 account books. The lower court itself has not held that the burden was on the defendants to prove that the statement in Ext. B1 was correct. The burden has not been discharged. In any event, the appellant is entitled to the reliefs prayed for in the plaint.