9911796707
TMI Blog2013 (1) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... @18% per annum. It was the case of the plaintiffs that plaintiff No. 1 is a registered partnership firm carrying the business of commission agent for sale and purchase of food grains in Shop No. 69, New Green Market at Anaj Mandi in Pehowa and plaintiff No. 2 is the partner of the said partnership firm. The plaintiff firm advances money to the agriculturists and charges commission on the sale price of the agricultural produce sold as determined by the market committee. For the aforesaid purpose, it has been maintaining the books of accounts in the regular course of business. The respondent- defendant (hereinafter referred to as "the defendant") had been maintaining regular and long standing current account with the plaintiffs. The defendant had taken advance from time to time from the plaintiffs which he had promised to return at the shop of the plaintiffs. All the transactions between the parties were entered in the books of accounts which reflected that as on 30.4.2002, a sum of Rs.5,80,000/- stood in the name of the defendant towards outstanding balance and he had acknowledged the same under his signature in the corresponding account entry in the account books of the plaintiffs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned and 13 documents, namely, copy of ledger, bahi, copy of ledger of S.T./C.S.T., copy of Form-A, Form-C, copy of resolution dated 31.10.1993 and copy of the certificate dated 28.07.2005 were brought in the evidence and marked as exhibits. The defendant examined himself as DW-1 and did not produce any documentary evidence. 7. The learned trial Judge, considering the evidence on record, came to hold that the plaintiffs had been able to establish that the firm was engaged in the business of a commission agent which lends money to the agriculturists; that the business transaction with the plaintiff's firm had not been denied by the defendant; that the bahi entries had been produced on record by the plaintiffs to show that the amount was advanced to the defendant and the said entries had the stamp and signatures of the defendant; that the plea of the defendant that his signatures on the bahi entries were fraudulently obtained had not been substantiated; that the transactions in dispute were numerous and extended over a number of years and there was no reason not to lend credence to the genuineness of the books of accounts; that the plaintiffs had the locus standi to file the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the pleadings and evidence led by the plaintiffs were at substantial variance; (ii) whether the plaintiffs could be said to have established its case, particularly when the defendant had denied the factum of borrowing any sum and the signatures on the cash book and no evidence including document/finger print expert was led by the plaintiffs to establish the signatures of the defendant in the account books; (iii) whether it was obligatory on the part of the plaintiff to prove the alleged signatures of the defendant in the cash book when they had been disputed; and (iv) whether the admission of the defendant could be assumed in the absence of clear and unambiguous admission of the party to the litigation. 12. The High Court referred to paragraphs 6 and 7 of the plaint and Exhibits P-1, P-2, P-3, P-7, P-9 and P-10 and noticed the variance of the amounts mentioned therein and further opined that when the signatures had been denied, the onus was on the plaintiffs to examine a handwriting expert to establish the veracity of the signatures to bring home the plea set up by the plaintiffs in the plaint. It also ruled that the courts below had fallen into error in holding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DW-1 and had only stated that he had no dealings with the plaintiffs but his father was a customer of the firm. He had disputed to have signed any entries. In the cross-examination, he has admitted his signatures on the written statement and stated that he did not remember whether at the time of purchase, his signatures were taken or not. 16. As noticed earlier, the High Court has held that the fora below erroneously placed the onus on the defendant to disprove his signatures. On a careful scrutiny of the evidence, it is manifest that the signatures are proven by the witnesses and they have been marked as exhibits without any objection. It is interesting to note that in paragraphs 6 and 7 of the plaint, it was averred that the defendant had given the acknowledgement of amount under his signature in the corresponding entry in the books of accounts. While replying to the same, the defendant has said that the arguments in para 6 of the plaint are wrong and denied in view of the preliminary objections. It is apt to note that the preliminary objections pertained to bald denial of liability, lack of locus standi to file the suit, non- joinder of parties and lack of cause of action. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence." 21. The present case is not one such case where the plaintiffs have chosen not to adduce any evidence. They have examined witnesses, proven entries in the books of accounts and also proven the acknowledgements duly signed by the defendant. The defendant, on the contrary, except making a bald denial of the averments, had not stated anything else. That apart, nothing was put to the witnesses in the cross-examination when the documents were exhibited. He only came with a spacious plea in his evidence which was not pleaded. Thus, we have no hesitation in holding that the High Court has fallen into error in holding that it was obligatory on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l principles as contained in Order 8 Rule 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidence adduced on behalf of the appellant in this behalf in detail but merely rejected the same summarily stating that vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid." 25. We may state with profit that in the said case, reliance was placed on Badat and Co. v. East India Trading Co. (supra). 26. Scrutinized thus, the irresistible conclusion would be that the defendants could not have been permitted to lead any evidence when nothing was stated in the pleadings. The courts below had correctly rested the burden of proof on the defendant but the High Court, in an erroneous impression, has overturned the said finding. 27. Another aspect which impressed the High Court was the variance in the pleadings in the plaint and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
