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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 5228 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-

and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA Sd/-
================================================================

1 Whether Reporters of Local Papers may be allowed YES

to see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy NO

of the judgment ?

4 Whether this case involves a substantial question NO

of law as to the interpretation of the Constitution
of India or any order made thereunder ?

CIRCULATE THIS JUDGMENT IN THE SUBORDINATE

JUDICIARY
================================================================
JAY AMBE INDUSTRIES PROPRIETOR SHRI DINESHKUMAR
BAJRANGLAL SOMANI
Versus
GARNET SPECIALTY PAPER LTD.
================================================================
Appearance:
MR. ZALAK B. PIPALIA, ADVOCATE for the Appellant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 1
================================================================

CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

Date : 07/01/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)

1) This first appeal is at the instance of an unsuccessful

plaintiff and is directed against the judgment and decree dated

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18.07.2012 passed by the Principal Senior Civil Judge, Vapi, in

the Special Civil Suit No.62 of 2016 (Old No.72 of 2014), whereby

the suit for recovery of money came to be dismissed.

2) The facts emerging from the records are that the Special

Civil Suit No.62 of 2016 (Old No.72 of 2014) was instituted by

the plaintiff (a proprietory concern) for recovery of an amount of

Rs.29,36,211/- (Rupees Twenty-Nine Lakh Thirty-Six Thousand

Two Hundred Eleven Only) from the respondent-original

defendant with 15% interest. The aforesaid suit was instituted

by the plaintiff through his Power of Attorney Holder.

3) It is the case of the plaintiff that there was a commercial

transaction of sale & purchase between the plaintiff and the

respondent-defendant. The respondent-defendant purchased

papers from the plaintiff to the tune of Rs.42,31,167/- (Rupees

Forty-Two Lakh Thirty-One Thousand One Hundred Sixty-Seven

Only), out of which only Rs.12,64,950/- (Rupees Twelve Lakh

Sixty-Four Thousand Nine Hundred Fifty Only) was paid. Thus,

for the recovery of the balance amount of Rs.29,36,211/-

(Rupees Twenty-Nine Lakh Thirty-Six Thousand Two Hundred

Eleven Only), the aforesaid suit was instituted before the court of

the Principal Senior Civil Judge, Vapi.

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3.1 Despite the service of summons, the respondent-defendant

thought fit not to appear before the trial court. Therefore, the

suit was ordered to be proceeded ex-parte.

3.2 Having regard to the pleadings in the plaint, the trial court

framed the following issues :

(1) Whether the plaintiff proves that, the defendants has

purchased the Ambesize 15 of Rs.42,31,167/- from the

plaintiff?

(2) whether the plaintiff proves that, the Rs.29,36,211/-

is legal and recoverable debt from the Defendants?

(3) Whether the plaintiff is entitled to get interest? If yes,,

at what rate?

(4) Whether the plaintiff is entitled to get reliefs as

prayed?

(5) what order and decree?

3.3 The trial court answered all the aforesaid issues in the

negative and dismissed the suit mainly on the following

grounds :

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(I) The plaintiff failed to prove service of a valid demand

notice to the defendant before the institution of the suit.

The cover containing the demand notice returned unserved

with an endorsement ‘Door Locked’.

(II) No independent witness has been examined so as to

prove the contents and genuineness of the invoices and the

delivery challans.

(III) Out of the total dues of Rs.42,31,167/- (Rupees

Forty- Two Lakh Thirty-One Thousand One Hundred Sixty-

Seven Only), the plaintiff failed to specify how

Rs.12,64,950/- (Rupees Twelve Lakh Sixty-Four Thousand

Nine Hundred Fifty Only) was paid to him and in

connection with which particular invoice. No cogent

evidence to establish and prove that Rs.29,36,211/-

(Rupees Twenty-Nine Lakh Thirty-Six Thousand Two

Hundred Eleven Only) is legally recoverable.

(IV) The suit was instituted through the Power of Attorney

Holder and in the Examination-in-Chief, nothing has been

said by the Power of Attorney Holder as to how he derived

knowledge of the various transactions.

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4) Therefore, being aggrieved by the aforesaid, the plaintiff

has approached this Court by way of this Appeal under Section

96 of the Civil Procedure Code, 1908.

5) It appears that on 12.12.2019, this Court issued notice to

the respondent-defendant, making it returnable on 23.01.2020.

The appellant was permitted to serve the said notice directly to

the respondent. The service of notice could not be effected

despite the efforts put-forth by the appellant. It also appears that

as the fresh address of the respondent-defendant could not be

procured, the appellant sought for public notice to be published

in the newspaper. On 12.03.2020, this Court permitted the

appellant to issue public notice in the newspaper ‘Sandesh’,

Surat Edition.

6) It appears that on 21.10.2020, this Court once again

issued notice for final disposal of the Appeal by making it

returnable on 07.12.2020, wherein, the appellant was directed to

serve the notice of the order by publishing the same in the daily

newspaper having wide circulation in the area. Accordingly, once

again the public notice in the newspaper ‘Sandesh’, Surat

Edition came to be published.

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7) On 16.09.2021, this Court admitted the Appeal and further

directed to notify the same on 11.10.2021 for final disposal.

Lastly, this Appeal came up for final hearing on 19.10.2021.

However, on that date also, the defendant failed to appear either

in person and/or through any advocate.

8) In view of the aforesaid, this Court was left with no other

option but to proceed with the matter on merits in absence of the

respondent-original defendant.

9) We have heard Mr.Zalak Pipalia, the learned counsel

appearing for the appellant.

9.1 Mr.Pipalia, the learned counsel appearing for the plaintiff

submitted that the judgment and decree passed by the court

below is erroneous and not sustainable in the eye of law. He

submitted that the trial court committed a serious error in not

looking into the oral as well as the documentary evidence

produced on record.

9.2 Mr.Pipalia submitted that the trial court committed a

serious error in applying the principles of law as laid down in the

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case of Ajay Kiritkant Ghelani and others vs. Mathureshnagar

Co-Operative, reported in 2008(1) GLR 213.

10) We have considered the oral evidence of the plaintiff led on

oath by way of affidavit and have also looked into the relevant

documents such as the Power of Attorney (Exh: 21),

Examination-in-Chief on behalf of the plaintiff (Exh: 19), copy of

the ledger account maintained by the plaintiff (Exh: 156) and

copies of the different invoices along with its delivery chalan

(Exh: 22 to 152).

ANALYSIS :

11) The short question that falls for our consideration is,

whether the trial court was justified in dismissing the suit

instituted by the plaintiff, despite there being no denial and/or

no rebuttal evidence led by the respondent-original defendant.

12) So as to answer the aforesaid question, we should look into

the provisions of Sections 34, 59, 61 and 62 respectively of the

Indian Evidence Act, 1872 :

Section 34. [Entries in books of account including those

maintained in an electronic form] when relevant.—

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[Entries in books of accounts including those maintained in

an electronic form], regularly kept in the course of business,
are relevant whenever they refer to a matter into which the
Court has to inquire, but such statements shall not alone be
sufficient evidence to charge any person with liability.

Section 59: Proof of facts by oral evidence.—All facts, except

the [contents of documents or electronic records], may be
proved by oral evidence.—All facts, except the [contents of
documents or electronic records], may be proved by oral
evidence.

Section 61: Proof of contents of documents.—The contents of

documents may be proved either by primary or by
secondary evidence.

Section 62: Primary evidence.—Primary evidence means the

document itself produced for the inspection of the Court.

Explanation 1.—Where a document is executed in several

parts, each part is primary evidence of the document;

Where a document is executed in counterpart, each

counterpart being executed by one or some of the parties
only, each counterpart is primary evidence as against the
parties executing it.

Explanation 2.—Where a number of documents are all made

by one uniform process, as in the case of printing,
lithography, or photography, each is primary evidence of the

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contents of the rest; but, where they are all copies of a

common original, they are not primary evidence of the
contents of the original. Illustration A person is shown to
have been in possession of a number of placards, all printed
at one time from one original. Any one of the placards is
primary evidence of the contents of any other, but no one of
them is primary evidence of the contents of the original.

13) It is also profitable to refer to the provisions of Order VIII

Rules 1, 3, 4 and 5 as well as Order XII (2-A) of the CPC, which

are reproduced as under:-

ORDER-VIII

(1) WRITTEN STATEMENT : The defendant shall, at or

before the first hearing or within such time as the Court may
permit, present a written statement of his defence.

(3) DENIAL TO BE SPECIFIC : It shall not be sufficient for a

defendant in his written statement to deny generally the
grounds alleged by the plaintiff, but the defendant must
deal specifically with each allegation of fact of which he
does not admit the truth, except damages.(4) EVASIVE
DENIAL : Where a defendant denies an allegation of fact in
the plaint, he must not do so evasively, but answer the point
of substance, Thus, if it is alleged that he received a certain
sum of money, it shall not be sufficient to deny that he
received that particular amount, but he must deny that he
received that sum or any part thereof, or else set out how

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much he received. And if an allegation is made with diverse

circumstances, it shall not be sufficient to deny it along with
those circumstances.

(5) SPECIFIC DENIAL : Every allegation of fact in the plaint,

if not denied specifically or by necessary implication, or
stated to be not admitted in the pleading of the defendant,
shall be taken to be admitted except as against a person
under disability:

Provided that the Court may in it discretion require any fact

so admitted to be proved otherwise than by such
admission.”

ORDER XII RULE- 2A. DOCUMENT TO BE DEEMED TO BE

ADMITTED IF NOT DISPUTED AFTER SERVICE OF NOTICE
TO ADMIT DOCUMENTS : (1) Every document which a party
is called upon to admit, if not denied specifically or by
necessary implication, or stated to be not admitted in the
pleading of that party or in his reply to the notice to admit
documents, shall be deemed to be admitted except as
against a person under a disability:

Provided that the Court may, in its discretion and for

reasons to be recorded, require any document so admitted to
be proved otherwise than by such admission.

(2) Where a party unreasonably neglects or refuses to admit

a document after the service on him of the notice to admit

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documents, the Court may direct him to pay costs to the

other party by way of compensation.

14) At the outset we may take notice of the fact that the

respondent-original defendant had not appeared before the trial

court as well as before this Court so as to put-forth his defense.

In other words, the pleadings of the plaint and evidence so

adduced remained uncontroverted all throughout. Thus, the suit

for recovery of dues based on documentary evidence such as

invoices, duly signed and acknowledged delivery chalan and

ledger account, has not been disputed by the respondent-

defendant.

PRINCIPLES OF LAW APPLICABLE TO THE PRESENT CASE :

15) In Chandi Ram vs. Jamind Kanta Deka, reported in AIR

1952 Assam 92, the Assam High Court held that if a ledger is

not supported by any Day-book or Roznama, it would not fulfill

the requirement of Section 34 of the Evidence Act and cannot be

regarded relevant under that section. In the opinion of the

Assam High Court there is no daily opening or closing balance in

the ledger accounts which is maintained in some other books

and ledger can be prepared at any time. Therefore, it cannot be

regarded as relevant.

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16) In Hira Meher vs. Birbal Prasad Agarwal, reported in AIR

1958 Orissa 4, the Orissa High Court held that if the plaintiff

relies on the entries in his credit ledger which he himself has

scribed out, the plaintiff does not assert that the transaction on

credit took place actually the credit register cannot be relied

upon because there will be no corroboration of the entries made

therein.

17) In Sohan Lal vs. Gulab Chand, reported in AIR 1966 Raj.

229, the Rajasthan High Court held that Bahi Khata is an

account book if maintained in regular course of business and

entries therein are not admissible if not supported by

corresponding entries on Rokam or Nagal Behi.

18) In Zehna Sorabji vs. Mirabella Hoter Col. (Pvt.) Ltd.,

reported in AIR 1981 Bom 446, the Bombay High Court held

that a ledger by itself cannot be a book of account of the

character contemplated by Section 34 of the Evidence Act unless

it is corroborated by the entries in the cash-book.

19) In Beni vs. Bisan Dayal, reported in AIR 1925 Nag. 445,

the Nagpur High Court held that, the entries in the books of

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account by itself are not sufficient to charge any person with

liability unless there is independent evidence of the transaction

to which the entries relate.

20) The proposition laid down in the above referred authorities

about the admissibility of ledger without the corroborative

evidence being led in support of the entries in the ledger cannot

be disputed. It is well settled that a ledger, though an account

book, has no evidenciary value unless the entries made therein

are proved by independent evidence which, in other words,

would mean that there must be corroboration of entries which

corroboration can be supplied by proving the transaction or by

proving the entries in the Daily cash book or Roznama. Without

corroboration, entries in the ledger cannot be brought within the

purview of Section 34 of the Evidence Act. In the instant case, it

is, therefore, to be seen, whether apart from the entries in the

ledger, there was corroborative evidence in support of the entries

in the ledger. This matter would largely depend on the facts of

each case.

21) The plaintiff led oral evidence on oath by way of affidavit

through his Power of Attorney. The Power of Attorney, in his oral

evidence, has stated that the plaintiff-firm had supplied goods in

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the form of papers to the defendant for an amount mentioned in

the plaint; out of which, part payment was made by the

defendant and part payment was due from him on account of

supply of those goods. There is no rebuttal by the defendant with

respect to the statement given by the plaintiff. This, in our

opinion, would constitute sufficient corroboration within the

meaning of law about the entries made in the ledger.

22) In Balmukand vs. Jagan Nath, reported in AIR 1963 Raj.

212, the Rajasthan High Court that Section 34 of the Evidence

Act does not require any particular form of corroborative

evidence. Even a witness, in support of entries made in the

books of account, would be sufficient compliance with Section 34

of the Evidence Act. In Balmukand (supra), the Rajasthan High

Court relied on AIR 1938 All. 353 (Narain Das and others vs.

Firm Ghasi Ram Gojar Mal and others), wherein the Allahabad

High Court held that a single witness can corroborate the entries

made in the books of account.

23) In Gopasunder Sabathao vs. Chunilal, reported in AIR

1955 Orissa 6, the Orissa High Court held that the evidence of a

party himself was substantial compliance with the provisions of

Section 34 of the Evidence Act in so far as corroboration of the

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entries in the account book were concerned. These authorities do

not dispute the proposition of law laid down by the authorities

submitted by the learned counsel for the appellant.

24) After scrutinising the law on the point, it is to be held :

i) that ledger by itself may not be the proof of

transaction and no liability can be fastened on the basis of

an entry in the ledger alone unless it is corroborated by

some other evidence;

ii) ledger can be taken into consideration and would

become relevant u/s 34 of the Evidence Act only when

there is corroborative evidence on record in support of the

entries made therein or in support of the transaction

between the parties;

iii) that what form of evidence is to be led to corroborate

the entries in the ledger would largely depend on the facts

of each case. If the entries in the ledger are not denied by

the defendant, it may not require any corroboration.

Therefore the nature of proof would vary from case to case.

25) The Allahabad High Court decision in the case of Narain

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Das (supra) should be considered closely by us. We quote the

relevant observations made in paragraphs 4, 5 and 6 therein :

“4. The next question argued by learned Counsel for the

appellants is that the plain, tiff entirely failed to prove the
amount of damages suffered by him. It is contended that the
plaintiff merely produced the ‘bahis’ of his firm and did not
produce any corroborative evidence of the relevant entries
proving the claim of the plaintiff. Under Section 34, Evidence
Act entries in books of account regularly kept in the course
of business are relevant but such statements shall not alone
be sufficient evidence to charge any person with liability. It
is obvious that it was the duty of the plaintiff to have
produced corroborative evidence in support of the entries in
his account books. Legislature however does not require any
particular form of evidence in addition to entries in books of
account and any relevant fact which can be treated as
evidence within the meaning of the Evidence Act would be
sufficient corroborative evidence furnished by the entries in
books of account if true. The question is whether in the
present case there is any such corroboration. On behalf of
the plaintiff, Kishan Gopal has been produced to corroborate
the entries in the account books. This witness is employed
as 'munim' of the plaintiff's firm. He proved the entries in the
account books and stated that the plaintiff had spent Rs.
1982-1-3 on account of the defendants in the purchase of
Bejhar and shop rent, etc. Out of this amount, the witness
stated that the defendants had paid only Rs.400. No cross-
examination has been directed on behalf of the defendants
to question the accuracy of this statement. It is perfectly true

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that this witness does not say in so many words that he

has personal knowledge of what he states but it appears
that the parties were satisfied with the statement made by
this witness and the defendants did not consider it
necessary to pursue the matter further and cross-examine
this witness with respect to his personal knowledge of the
facts he was stating.

5. In Dwarka Das v. Sant Baksh, (1895) 18 All 92, the facts

were very much similar. In this case the plaintiff sued for
the recovery of money due on a running account and
produced his account books, which were found to be books
regularly kept in the course of business in support of his
claim. One of the plaintiffs gave evidence as to the entries in
the account books but in such a manner that it was not clear
whether he spoke from his personal knowledge of the
transactions entered in the books, the entries in which were
largely in his own hand-writing, or simply as one describing
the state of affairs that was shown by the books. He was
cross, examined but no questions were asked him to show
that he was not speaking as to his personal knowledge. On
these facts it was held that:

The evidence given as above should be interpreted in the

manner most favourable to the plaintiff and might be
accepted in support of the entries in the plaintiffs' account
books which by themselves would not have been
sufficient to charge the defendants with liability. [Head
note of 18 All 98.]

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6. It may be noted that in the present case also, the

defendants did not choose to cross-examine the plaintiff.
The fact that he was the ‘munim’ of the plaintiff's firm was
not questioned nor was his knowledge of the facts tested in
cross-examination. Under these circumstances, I see no
reason to differ from the learned Civil Judge in holding that
the plaintiff has succeeded in establishing his claim with
regard to the amount of money invested by him on be-half of
the defendants. Learned Counsel for the appellants has
relied on Khunni Mal Narain vs. Dwarka Das Baijnath,
(1930) 17 AIR All. 710. The facts of this case appear to be
entirely distinguishable. In this case the oral evidence
produced by the plaintiff consisted mainly of his own
statement and that of his ‘munim’. The Court below had
reasons for rejecting the statements of these witnesses. The
learned Judges in deciding this case did not examine the
evidence but accepted the view expressed by the lower
Appellate Court. Eliminating the oral evidence, there was
nothing left but the bare entries in the account books in
support of the plaintiff's case which under Section 34,
Evidence Act, were considered insufficient to base a decree
upon it. There is nothing in this case which runs counter to
the opinion expressed in the case reported in Dwarka Das
vs. Sant Baksh, (1895) 18 All 92, mentioned above. Having
regard to all the circumstances in my judgment there is
sufficient evidence on the record to corroborate the entries in
the account books.”

26) One more infirmity we have noticed in the impugned

judgment of the trial court is with regard to the notice issued by

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the plaintiff demanding the requisite amount prior to the

institution of the suit. The trial court has taken the view that

such demand notice issued by the plaintiff has not been proved

in accordance with law. The question is, is it mandatory for a

plaintiff to first issue a demand notice and only thereafter file a

suit for recovery of money ? We may clarify that there is no

such law which obliges the plaintiff to first issue a demand

notice and only thereafter institute a suit for recovery of money.

Ordinarily, such notice is issued only for the purpose of

limitation. If the plaintiff is apprehensive about the issue of

limitation that may be raised by the defendant before the trial

court, in the facts and circumstances of the case, only with a

view to meet with such contingencies, the plaintiff would first

issue a notice and then institute the suit. Demand notice is

mandatory only under Sections 12(3)(a) and 12(3)(b) respectively

of the Bombay Rent Act, or if it is a suit against the State, in

such circumstances, notice under Section 80 of the CPC is

required.

27) It appears that the trial court proceeded on the footing that

since the plaintiff has not examined any independent witness so

as to prove the demand notice served upon the defendant and

the delivery chalans, the respondent could not be said to have

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received the goods, and accordingly is not entitled to recover the

amount towards the sale transaction with the defendant.

28) To hold that a particular document is not admissible for

proof of its contents unless the writer is called, is to denude the

documentary evidence of all its value and is clearly contrary to

certain express statutory provisions to be found in the Evidence

Act, more particularly, Section 59 of the Evidence Act. In our

opinion, the documentary evidence becomes meaningless if to

prove it in every case by way of oral evidence of its contents. If

that is the position, it would mean that, in the ultimate, the

analysis of the evidence must be oral and that the oral evidence

would virtually be the only kind of evidence recognized by law,

however, that is not the position under the Evidence Act. The

definition of the term ‘evidence’ in Section 3 of the Evidence Act

lays down that evidence means and includes statements made

by the witnesses, which are called oral evidence, and documents

produced before the court, which are called documentary

evidence. A bare perusal of Section 59 of the Evidence Act states

that all facts, except the ‘contents’ of documents, may be proved

by oral evidence. Needless to say, that once the documents is

proved in the manner provided under the provisions of the

Evidence Act, the contents of that documents are also proved. It

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is for that reason that the Evidence Act advisedly lays down that

the contents of a document can be proved by proving the

document in the usual manner, a proposition that emerges

unequivocally from a combined reading of Sections 59, 61 and

62 of that Act. Thus, according to us, the trial court should have

believed the documents of invoices, such as invoices of the

delivery chalan and ledger account, in absence of any dispute or

rebuttal evidence submitted by the respondent-original

defendant. Once the document has been exhibited, the initial

burden of proof could be said to have been discharged by the

original plaintiff. The original defendant was expected to deny

the same with cogent rebuttal evidence, but having failed in

submitting the rebuttal evidence, the trial court could not have

ignored the exhibited evidence/undisputed evidence merely

because there was no oral evidence in the form of examination of

any evidence by the witness in support of the documentary

evidence.

29) In our view, when the appellant-original plaintiff has

produced the copies of the invoices and the delivery chalans duly

stamped and signed by the respondent-defendant, more

particularly, when there is no denial whatsoever on behalf of the

respondent-original defendant, in view of Section 59 of the Act,

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1872, the trial court should not have held that no oral evidence

in the form of examining any evidence about the delivery of

goods should have been made. When the initial burden of proof

has been discharged by the plaintiff, it is for the respondent-

defendant to rebut such evidence.

30) The trial court only kept one thing in mind, i.e. the

provisions of 34 of the Act, 1872, which says that, the statement

made during the course of business shall not alone be sufficient

evidence to charge the person with any liability. This means that

the production of only a ledger account would not be sufficient to

establish the case. Some corroborative material should be

adduced in support of such documents. The trial court should

not have been oblivious of the evidence, such as, the statement

at Exhibit 156 read with the documents produced at Exhibits 22

to 152, i.e. the invoices and the delivery chalans, which are

undisputed.

31) In view of the aforesaid facts and circumstances of the

case, in our considered opinion and even as per Section 34 of the

Act, 1872, the plaintiff could be said to have complied with the

requirements of producing the other evidence to substantiate the

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ledger account. The trial court has committed serious error in

holding that the plaintiff has failed to establish that a sum of

Rs.29,36,211/- (Rupees Twenty-Nine Lakh Thirty-Six Thousand

Two Hundred Eleven Only) is due and recoverable from the

defendant out of the total dues of Rs.42,31,167/- (Rupees Forty-

Two Lakh Thirty-One Thousand One Hundred Sixty Seven Only).

32) According to us, the trial court ought not have ignored the

evidence led by the plaintiff through his Power of Attorney. In

our view, the Power of Attorney Holder certainly can depose in

the proceedings to the extent of his personal knowledge about

the transactions. In the instant case, the date of the Power of

Attorney is 15.07.2011 and this Power of Attorney was executed

for a special reason to institute legal proceedings on behalf of the

firm. The Power of Attorney Holder appears to have been acting

on behalf of the firm since long and thereby it would not be

appropriate to presume that the Power of Attorney Holder has no

personal knowledge as regards the transactions in question,

more so, when there was no cross examination of the Power of

Attorney Holder disputing, inter-alia, his personal knowledge of

the transaction in question. Thus, in our considered opinion, the

view taken by the trial court as regards not having personal

knowledge is erroneous. We say so because there cannot be any

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general presumption that the Power of Attorney Holder would

not possess any personal knowledge. The defendant has to

confront the Power of Attorney as regards his personal

knowledge. However, in the instant case, as noted above, the

Power of Attorney Holder was not cross-examined. Thus, there is

no dispute about his personal knowledge.

33) In the result, this Appeal succeeds and is hereby allowed.

The impugned judgment and decree passed by the Principal

Senior Civil Judge, Vapi, dated 18.07.2012, in the Special Civil

Suit No.62 of 2016 (Old No.72 of 2014) is hereby quashed and

set-aside. The Special Civil Suit No.62 of 2016 (Old No.72 of

2014) is hereby allowed. The defendant is directed to pay an

amount of Rs.29,36,211/- (Rupees Twenty-Nine Lakh Thirty-Six

Thousand Two Hundred Eleven Only) with running interest @

6% per annum from the date of the institution of the suit.

34) Registry to draw the decree accordingly.

(J. B. PARDIWALA, J.)

(NIRAL R. MEHTA, J.)

/MOINUDDIN

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