TMI Blog2017 (8) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant/defendant no.1 had purchased fuel on credit basis. Once two possible views arise as per the record of the trial court, and the trial court has taken one possible and acceptable view, unless such a view is illegal or perverse this Court will not interfere with the said findings and conclusion of the trial court. We cannot agree with the arguments urged on behalf of the appellant/defendant no.1 because invoices Ex.PW1/2 to Ex.PW1/9 are in the nature of serialized details of invoices, however, these documents Ex.PW1/2 to Ex.PW1/9 are definitely the copies of the bill books maintained by the respondent/plaintiff and which is typical of petrol pump business. Slips of payment with respect to petrol purchase are issued but thereafter the bills are reflected in a bill book containing the details of the invoices issued and therefore do not find any illegality in the conclusion of the trial court holding that Ex. PW1/2 to Ex.PW1/9 are the unpaid invoices i.e serialized details of the unpaid invoices. The appellant/defendant no.1 is in transportation business and whose trucks took fuel from the respondent/plaintiff, which was not paid for and therefore the respondent/plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given by the appellant/defendant no. 1 cheque as security and which was to be used and encashed in case there were defaults in clearing of the outstanding amount. It is then pleaded in the plaint that the history of defaults in payments continued and last supply was drawn by the appellant/defendant no. 1 in November 2005. It was pleaded that in September 2006 the outstanding amount came to ₹ 7,91,776/-. It is then pleaded in the plaint that when the respondent/plaintiff deposited the cheque for recovery of the outstanding amount, the same was dishonored and therefore not only the subject suit was filed but a complaint under Section 138 of the Negotiable Instruments Act, 1881 was also filed and which is pending disposal before the concerned court of Metropolitan Magistrate. 3. Appellant/defendant no. 1 contested the suit and pleaded that the suit is barred by limitation. It was also pleaded that the security cheque which was claimed by the respondent/plaintiff was of a period prior to three years prior to the date of filing of the suit. It was further pleaded that the security cheque was a blank cheque which did not bear any date or amount. Appellant/defendant no. 1, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect to alleged discrepancies in the bills because of inflation of the bills on the ground that litres said to be filled in the trucks were less than actually what was filled in. The trial court relied upon the invoices Ex.PW1/2 to Ex.PW1/9 and held that amounts were due to the respondent/plaintiff for the unpaid bills and for which security cheque was deposited. Trial court has held that the security cheque cannot be said to have been misutilized by the respondent/plaintiff because the cheque admittedly is of the bank account of the appellant/defendant no. 1 and also it bears the signatures of the appellant/defendant no. 1. On preponderance of probabilities, trial court has held that the cheque was good for encashment for lawful liability. Trial court also noticed that the respondent/plaintiff served a legal notice Ex.PW1/14 to the appellant/defendant no. 1 and though DW-1 denies giving reply to any such notice but DW-1 conceded in his cross-examination when confronted with the complaint Ex.DW1/P-1 where DW-1 himself has stated that he had sent a reply in response to the legal notice sent by the respondent/plaintiff. (ii) The aforesaid conclusions have been arrived at by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has failed to establish that cheque was not meant for encashment or that it was given only as security . Defendant to my conclusion has failed to rebut the presumption under section 139 / 118 of NI Act and has failed to establish that cheque was misused by the plaintiff firm . xxxxx xxxxx xxxxx 29 . In the present case, if we take into consideration the account statement Ex . PW1 / 10, wherein all the entries of credit sale of fuel, by plaintiff firm to defendants have been reflected along with different payments received by the plaintiff from time to time, along with the dishonored cheque No . 907997 of Rs . 7,91,776 / , one can easily conclude that suit is within limitation because all the transactions regarding different payments made from time to time as well as issuance of different cheques including cheque No . 907997, were carried out within the three years period of accrual of cause of action . xxxxx xxxxx xxxxx 34 . Now, if we c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estified these facts, but in his crossexamination DW1 had admitted that he used to take fuel from plaintiff sometimes on credit basis also . DW1 has also admitted that his transactions with plaintiff firm continued in cash or by way of cheque or on credit in year 200506 . DW1 further admits that he had never given any notice or letter to plaintiff regarding discrepancies in quantity of liters supplied to the trucks of defendant as mentioned in para 10 of his affidavit . Thus, it is clear that nothing could come out in the evidence of DW1 or DW2 Dilbag Singh to establish that plaintiff had inflated their claim by falsely showing larger quantity of liters of fuel supplied than actual supply . xxxxx xxxxx xxxxx 38 . Now, if we consider the above said evidence of DW1 and DW2, first of all it is testified by DW1 that he had never taken fuel from plaintiff on credit . But, at the same time, DW1 in his cross - examination has admitted that he had dealing with plaintiff firm for purchasing fuel even on credit basis . Thus, if we read the evidence of DW1 in totalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 had purchased fuel on credit basis. Once two possible views arise as per the record of the trial court, and the trial court has taken one possible and acceptable view, unless such a view is illegal or perverse this Court will not interfere with the said findings and conclusion of the trial court. 8. Learned counsel for the appellant/defendant no.1 argued that the so called invoices Ex.PW1/2 to Ex.PW1/9 are not invoices but simply entries in the bill book and therefore it could not be held that the invoices are proved more so because these invoices as per the argument of the appellant/defendant no.1 are not found in the statement of account marked X-1 which is filed by the respondent/plaintiff in the trial court. It is also argued on behalf of the appellant/defendant no.1 that the respondent/plaintiff admitted that the subject cheque was given earlier in the middle of the year 2005 as security and not for encashment and which was dishonored as per the respondent/plaintiff when the same was presented on account of non-payment of outstanding dues. 9.(i) I cannot agree with the arguments urged on behalf of the appellant/defendant no.1 because invoices Ex.PW1/2 to Ex.PW1/9 are i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
