KUSHALBHAI MAHOJIBHAI PATEL versus FIRM OF MOHMADHUSSAIN RAHIMBUX

Citation: [1980] 3 S.C.R. 22 · Decided: 11-03-1980 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

.A 
B 
. E 
F 
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22 
KUSHALBHAI MAHOJIBHAI PATEL 
v. 
A FIRM OF MOHMADHUSSAIN RAHIMBUX 
March 11, 1980 
[S. MURTAZA FAZAL ALI AND A. D. KOSHAL, JJ.] 
Prlvity of Contract-Supply made by appellant Plaintiff to respondent de}eti· 
dant of 268 Bengali Maunds of Tobacco and accepted by the larrer-Pour 
cheques issued by the latter covering th£ value bumped-No document was 
executed to evidence the contract-Whether suit for recovery of n1oney is main· 
tainable, for want of privity of contract ?-Onus of proof is on the defendant 
in such cases by producing best evidence like Books of Accounts. 
In the money suit filed by the appellant-plaintiff to recover the value of 
tobacoo, sold to respondent-defendant after the four cheques covering the· value 
of tobacco and issued by latter bumpe<l, the defendant took a plea 
of non-
existence of privity of contract and while admitting both the receipt of the 
tobacco from and issuance of cheques to plaintiff, explained the tobacco bad 
been supplied to defendant by the plaintiff at the instaru:e of another Firm 
R. K. Patel with whom the defendant had placed the order for the supply 
of the tobacco and, that the four 
cheques were issued in favour of plainlllf 
at the instance of Firm ''R. K. Patel", in respect of another tr<tnsaction for 
the supply by that Firm of 900 bags of tobacco, which transaction later 
failed . 
The Trial Court decreed the suit after rejecting the evidence and plead· 
ings of the defendant 
In appeal the High Court reversed the judgment and 
set a')idc decree of the trial Court. 
Allowing the appeal by certificate, the Court 
HEW : Supply of the goods by the plaintiff to the defendant and the 
issuance of. cheques by the latter ill favour of the former shifted the onus of 
proof on the point of privity of contract to the defendant. The fact that the 
goods had been sent to the defendant by the plaintiff and had been receivro 
by the former was admitted on all hands and was sufficient to raise a pre-
sumption, till the contrary wa& proved, that an order had been placed for 
the supply of the goods with the plaintiff by the defendant firm. The plaintiff 
could thus bank on the said fact for the purpose of discharging t!ji> initial 
onus Which lay on him to prove> the privity of contract between the parties 
and it \Vas for the defendant to rebut the presumption which the fact 
raised. [27 G-H, 28 Al 
(ii) Tue books of account maintained by the defendant being 
the 
best 
evidence available in proof of the stand of the defendant firm that no order 
had been placed by it with the plaintiff the failure of the defendant to 
place on record those books is a clincher. 
Non production of these books 
by the defendant raises a presumption against it that if such evidence had been 
produced, the same would have gone against the case propounded by it, more 
I 
_l;,. 
, 
./ 
T 
K. M. PATEL v. FIRM OF MOHAMAD l!USS~IN (Koshal, J.) 
23 
1 
••o when the defendant fail• to bring witnesses to the transactions set up, by it 
A 
foto witness-box and examine them. 
l28 A-C, 29 A-El 
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CVllL APPELLATE JURISDICTION : Civil Appeal No. 1376 of 1970. 
From the Judgment and Decree dated 29th/30th October, 1969 
of the Gujarat High Court in Appeal No. 795/61. 
D. V. Patel, T. U. Mehta and M. V. Goswami for the Appellant. 
Dr. W. S. Barlingay and A. G. Ratnaparkhi for the Respondent. 
The Judgment of the Court was delivered by 
KosHAL, J -This appeal by certificate granted by the High Court 
·of Gujarat under sub-clause (a) of clause (I) of Article 133 of the Consti-
1ution of India is directed against its judgment dated the 29th/30th 
October, 1969, accepting a first appeal preferred by the defendant firm 
10 it and dismissing the plaintiff's suit which had been decreed by the 
>trial court. 
2. The said suit was filed on the 24th November, 1958, in the 
·court of the Civil Judge, Senior Division, Nadiad, by one K. M. Patel 
for the recovery of Rs. 38,718/- from the defendant firm on account of 
·the price of 225 bags of tobacco weighing 268 Bengali matmds at the 
irate of Rs. 112/- per such maund and interest thereon. The case set 
·<>Ut in the plaint was that the tobacco in question had been purchased 
1>y the defendant firm on the 28th of November, 1955, that the same 
was despatched to the defendant firm by train from Anklav railway 
station on the !st of December, 1955, on which date a bill for Rs. 
30,523/- covering the price of the goods and incidental expenses was 
·

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