TMI Blog1985 (11) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... emuneration for the work The plaintiff produced along with the plaint a tehrir (amanati chithi) said to have been executed by the defendants under which they had acknowledged the receipt of the said quantity of gold which was of 99.45 fineness. The plaintiff alleged that after receiving the above gold the defendants neither carried it to Bombay nor returned it to him at Barmer. He further alleged that on 27.7 1960 he had sent a registered notice calling upon the defendants to return the gold and as they had failed to comply with his demand, he had instituted the above suit. This suit was filed on October 5, 1960 for recovery of the gold or its value which he estimated at ₹ 34,000/-The defendants are brothers They were all employees of the Government. The first defendant Ganga Bishan was working as the Head Constable in the Police Department since 1940 at Barmer The second defendant Ram Pratap was then working in the Railway Police. The third defendant Bhanwar Lal was also working in the Police Department since October 1, 1951 and at the time of the suit he was working as a Head Constable at Barmer. The fourth defendant Ram Chandra was working as a teacher. All the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to interfere with the concurrent findings of fact of the High Court and of the Trial Court under Article 136 of the Constitution. He relied upon Govind Prasad and Ors. v. Kunwarani Bala Kumvar and Ors. A I.R. 1934 P.C. 12 Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy and Ors. 73 I.A. 246 Dinabandhu Sahu v. Jadumoni Mangaraj and Ors. (1958) 1 S.C.R. 140 and some other decisions in support of his contention that this Court should not interfere with the findings on facts recorded concurrently by the Trial Court and the High Court. We have duly considered the said decisions. It is true that ordinarily this Court is averse to interfere under Article 136 of the Constitution with the concurrent findings of fact recorded by the High Court and the Trial Court. But where there are material irregularities affecting the said findings or where the Court feels that justice has failed and the findings are likely to result in unduly excessive hardship, this Court cannot decline to interfere merely on the ground that the findings in question are findings of fact. 5. It is relevant to refer here to the observations of the Judicial Committee of the Privy Council in Srimati Bibhabati Devi v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to his transactions. He did not also remember how much income he used to derive from that business. He was not an assessee under the Indian Income Tax Act. As regards the gold in question, his oral evidence was that he had purchased the said gold from a firm called Motilal Brij Bhusan Co. of Bombay and he did not remember how much amount he had actually paid for it. But he said that it was a little more than ₹ 25,000/- but less than ₹ 26,000/-. He further stated that he had also purchased on that same date gold weighing about 100 tolas from one Maganlal Manakmal of Bombay. He stated that he had carried from Barmer to Bombay a sum of ₹ 40,000/- when he went to purchase the gold in question and the said ₹ 40,000/- was a part of the amount lying in his house. The said amount, according to him, comprised of the earnings of his father, his uncle and of himself and there was some more money still left in the house. The entire amount was lying in his house for about 15 years. He further stated that he had taken along with him his sister's son Ram Bhajan when he purchased the gold at Bombay and that one Bhuralalji Sha of Bhilwara who lived in Bombay h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument Exhibit-1 which is styled as the tehrir, stated to have been executed by the defendants on December 25, 1957 acknowledging the receipt of the gold. Ram Jiwan, P.W.2, stated to be the writer of the tehrir. Govined Ram, P.W.3 and Bhagwan Das, P.W. 5, claim to be the attestors of the tehrir. All of them say that the tehrir had been signed by the defendants. Ram Jiwan says that the plaintiff handed over 250 tolas of gold to the four defendants and that it bore the mark of 99.45. He further says that he had handled the gold bar by his hand and that it did not bear the name of any company or firm. Govind Ram, P.W.3, also says that the plaintiff entrusted 250 tolas of gold to the defendants, which was of 99.45 fineness. He denies having seen any mark on the gold. The evidence of Bhagwan Das, P.W.5, also is to the same effect but he adds that the words '250 tolas' had been written in English on it. He said that it was agreed that it should be carried on the same day. He stated that he did not enquire why the gold was being sent through the defendants instead of being carried by the plaintiff himself. As regards the subsequent events and his own conduct the plaintiff stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f had to mortgage his house for a loan which was outstanding for a long time and the mortgagee had obtained a decree for nearly ₹ 20,000/- against the plaintiff on the foot of the said mortgage. This fact belies the story that a large sum was lying in the house of the plaintiff. Although the plaintiff claims to be a dealer in forward contracts in gold, silver and cotton he has not maintained any account books. The plaintiff has also not examined his sister's son who had accompanied him to Bombay when he purchased the gold in question, nor Bhuralalji Sha who assisted him in purchasing it. It is strange that the plaintiff who claimed to have brought the gold in question from Bombay to Banner about fifteen months earlier was afraid of carrying it himself from Barmer to Bombay back on account of the fear of a possible search by the Customs authorities and that he had thought of entrusting it to the defendants who were Government officials, who were not being searched by the Customs authorities. If in fact he possessed the cash bill under which he had purchased the gold there was no need to resort to this mode of carriage of gold. Curiously the tehrir recites that the cash bil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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