THAKKAR LILADHAR VAGHJIBHAI Vs. JAMNAGAR JILLA SAHAKARI KHARID VECHAN SANGH LIMITED

JUDGEMENT

(1.) * * * *

(2.) The second importance circumstance to be noted in this connection is that the defendant has taken this case almost very lightly. No office bearer of the Society has stepped into the witness-box. The Rules and Regulations known as bye-laws of the Society and also the certificate of registration of the Society are not at all produced. As held by the Division Bench of this Court consisting of M. P. Thakkar J. (as he then was) and M. C. Trivedi J. in the first Appeal No. 514 or 1971 decided by the Bench on 12-10-1978 whether the defendant So- ciety carrying on business or not is a question of fact and if a Society does not produce its documents it can be said that that may be the business of the Society. The only witness that was examined in this case was the driver of the truck which had been responsible for the unfortunate mishap. His evidence on the contrary very clearly shows that this Society in all probabilities carried on the said business. T4e witness stated that he had gone to Ahmedabad in July 1967 with oil tins loaded therein because the defendant-Society had to transport bags of fertilizers from Ahmedabad for Jamnagar and he was ordered to load the tins in the truck. The witness however stated that the truck was mostly used for the goods of the defendant only. This statement necessarily means that occasionally the defendant-Society did use the truck for the purpose of carrying goods of others. One more important circumstance also to be noted. If the defendant-Society did not carry on this transport activity as a part of its routine business there was nothing to prevent the defendant-Society from producing its account- books to show that there was no credit entry in respect of charges for transport. Blissfully the office bearers of the defendent-Seciety remained behind the curtain and instructed their Advocate to take advantage of the technical point which cannot be permitted when the defendant-Society did not specifically deny the case of the plaintiff.

(3.) There is also evidence of the plaintiffs witness Shri Suryakant Ratilal from Jamnagar Ex. 69. He states that in his presence the partner of Kushal and Company (the plaintiffs sellers) had hired the truck of the defendant-Society by fixing the cartage at 7 annas per tin. In the course of his cross-examination by the defendants Advocate noth- ing fruitful could be elicited. He was asked whether he had seen the bye-laws of the defendant-Society. He was asked whether the truck was a private carrier or a public carrier. If it was the case of the defendant Society that it was a private carrier nothing prevented the defendant from producing the certificate of registration issued by the transport authorities. It is because of these circumstances that the defendant-Society blissfully avoided active participation in the trial having their eyes fixed on the technicality which they successfully did as far as the Trial court is concerned.