Bangalore District Court
Guards Have Satisfactorily Served The vs The Plaintiff Is Liable To Indemnify The on 4 September, 2019
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 4th day of September, 2019.
O.S.No.8587/2016
Plaintif:- M/s.Elite Detectives Pvt. Ltd.,
Having Office at No.16-A,
1st Floor, 1st Main,
Opp: West of Chord Road Bata Showroom,
Mahalakshimpuram, Bengaluru -560 086.
By its Managing Director
Sri.K.L.Nagaraj,
S/o.late Lenkappa,
Aged about 56 years.
(By Adv. Sitarama.G. Hegde)
v.
Defendant:- Sri.M.R.Kodandaram,
S/o.Kodandaram Ramaiah,
Aged about 57 years,
Gokula House, Gokula,
Bengaluru - 560 054.
(By Adv. G.Sukumaran)
Date of institution of the suit : 16.12.2016
Nature of the suit : Recovery of Money
Date of commencement of : 22.07.2017
Recording of the evidence
Judgment
2 O.S.No.8587/2016
Date on which the Judgment : 04.09.2019
was pronounced
Total Duration : Years Months Days
02 08 18
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
The plaintiff has filed the above suit for recovery of money and costs.
2. The plaintiff's case in brief as under:-
The plaintiff is a private limited company incorporated under the Companies Act and engaged in the business of providing security services to the individual, office, factory etc. The Managing Director of plaintiff's company is the principal officer of the company and acquainted with the facts of the above case. During September 2014, the defendant requested the plaintiff to provide security services to his estate i.e., Nisarga Dhama (Kodandarama Ramaiah Estate), Nelamangala, Bengaluru. As per quotation dated 30.09.2014, defendant placed orders for providing security services of one armed and 6 unarmed guards from 20.10.2014 to his estate and an agreement / work order was entered between the plaintiff and Judgment 3 O.S.No.8587/2016 defendant on 10.10.2014 at Bengaluru. As per agreement / work order, the plaintiff deployed one armed and 6 unarmed guards to defendant's estate from 20.10.2014. As per the terms of the work order dated 10.10.2014, the defendant agreed to pay a sum of Rs.19,000/- per month to the armed security guard and Rs.15,000/- per month each to unarmed security guards. The plaintiffs' guards have satisfactorily served the defendant. The plaintiff has issued monthly bill/ invoice to the defendant for the security charges from October 2014 onwards and the defendant has paid monthly charges regularly from October 2014 to January 2015. From February 2015 onwards, the defendant failed to pay security service charges. The defendant is liable to pay monthly security charges along with Service taxes from February 2015 to May 2015, in all Rs.3,49,997/- to the plaintiff.
Inspite of repeated demands, the defendant failed to pay the said amount to the plaintiff. On 15.05.2015, the defendant informed the plaintiff by a letter that on 17.04.2014 at 1:00 a.m., 12 sandal wood trees aged about 15 years were cut and stolen by the thieves from defendant's estate and as per Clause 7 of the work order / agreement dated 10.10.2014 the plaintiff is liable to settle / compensate the defendant the value of the stolen sandal wood trees. The plaintiff's security persons have not committed any theft hence, plaintiff is not liable to Judgment 4 O.S.No.8587/2016 compensate the defendant. The defendant has failed to pay the monthly security charges to the plaintiff and has caused loss to the plaintiff hence, the defendant is liable to pay interest at the rate of 18% p.a. on the outstanding amount from the date of suit till realization. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, the defendant has appeared before the court through his counsel. In the written statement, the defendant admits execution of agreement dated 10.10.2014. The defendant contends that on 17.04.2015, at 1.00 A.M., 12 sandal wood trees worth Rs.7,20,000/- were cut and stolen from their estate and complaint was lodged with Nelamangala Police Station and theft is due to dereliction of duty of the guards who were deployed at the estate of the defendant. The plaintiff is liable to indemnify the defendant as per Clause 7 of the Agreement. The plaintiff is liable to pay Rs.7,20,000/- i.e., value of stolen sandal wood trees to the defendant. Therefore, plaintiff is not entitle to seek payment of bills for the months from February 2015 to May 2015. In this regard, debit note is issued to the plaintiff by the defendant for Rs.7,20,000/-. The plaintiff is due to the defendant in a sum of Rs.3,70,023/- and defendant is not liable to pay any amount to the plaintiff. There is no cause of action to file the above suit. Hence, prayed that suit may be dismissed with costs.
Judgment 5 O.S.No.8587/2016
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that the defendant herein had availed security services from the Plaintiff-Company @ Rs.1,09,000/- p.m., and entered into an Agreement on 10.10.2014 as alleged in the plaint?
2. Whether the plaintiff proves that the defendant herein failed to pay monthly security service charges including taxes to the plaintiff from February 2015 to May 2015 and further proves that defendant is liable to pay Rs.3,49,977/-
towards arrears of the same?
3. Whether the plaintiff proves that the defendant is liable to pay interest @ 18% p.a. from 01.06.2015 to 14.12.2016?
4. Whether the plaintiff proves that the defendant is liable to pay future interest @ 18% p.a. on the principal amount of Rs.3,49,977/- from the date of the suit till realization?
5. Whether the plaintiff is entitled for the relief claimed?
6. What order or decree?
Judgment 6 O.S.No.8587/2016
5. To prove the case of the plaintiff, PW-1 is examined and got marked Ex.P1 to P13. GPA Holder of the defendant is examined as DW-1 and got marked Ex.D1 to Ex.D4
6. Heard arguments. The learned counsel for plaintiff has relied upon the following citations reported in:-
1. (2005) 2 Supreme Court Cases 217, in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others.
2. ILR 2006 KAR 3129, in the case of Bhimappa and thers v. Allisab and others.
7. My findings on the above said issues are as follows:-
Issue No.1:- In the Affirmative.
Issue No.2:- In the Negative.
Issue No.3:- In the Negative.
Issue No.4:- In the Negative.
Issue No.5:- In the Negative.
Issue No.6:- As per final order.
for the following:-
REASONS
8. Issue Nos.1 to 5:- These issues are taken up
together for consideration to avoid repetition of facts, evidence and convenience.
Judgment 7 O.S.No.8587/2016 PW-1 in his examination-in-chief has stated the plaintiff is a private limited company and PW-1 is the Managing Director and Principal Officer of the company. Advocate for the defendant argued that PW-1 has not produced any document before this court to show that he is authorized to represent and depose on behalf of the plaintiff company therefore, PW-1 is not competent to represent and adduce evidence on behalf of plaintiff company.
PW-1 in his cross-examination has stated as follows:
"£Á£ÀÄ J¯ÉÊmï rmÉÃQÖêïì ¥Éç Ê ªÉÃmï °«ÄmÉqï ªÀiÁå£ÉÃfAUï qÉÊgÉPÀÖgï JAzÀÄ vÉÆÃj¸À®Ä zÁR¯Áw ºÁdgÀÄ ¥Àr¹zÉÝãÉ. £Á£ÀÄ J¯ÉÊmï rmÉÃQÖêïì ¥Éç Ê ªÉÃmï °«ÄmÉqï ªÀiÁå£ÉÃfAUï qÉÊgÉPÀÖgï JAzÀÄ vÉÆÃj¸À®Ä zÁR¯ÁwAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ ¥Àr¹®è ªÀÄvÀÄÛ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÁQë ºÁdgÀÄ ¥Àr¹zÉÝÃ£É JAzÀÄ ºÉüÀÄvÁÛgÉ. ªÁ¢ PÀA¥À¤AiÀÄ°è £Á£ÀÄ ªÀiÁå£ÉÃfAUï qÉÊgÉPÀÖgï ªÀÄvÀÄÛ E§âgÀÄ qÉÊgÉPÀÖgïì EzÁÝgÉ CªÀgÀ ºÉ¸ÀgÀÄ ºÉZï. ¨sÁUÀåªÀÄä ªÀÄvÀÄÛ PÉ.J£À. CdÄð£ï UËqÀ. F PÀA¥À¤ Dgï.N.¹ £À°è jf¸ÀÖgï DVzÉAiÀiÁ JAzÀgÉ ¸ÁQë DVzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. PÀA¥À¤ jf¸ÀÖgï DzÀ §UÉÎ ªÉĪÉÆÃgÉAqÀªÀiï D¥sï DnðPÀ¯ïì£ÀÄß ºÁdgÀÄ ¥Àr¹¢ÝÃgÁ JAzÀgÉ ¸ÁQë D¦üøï£À°è EzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ.....".
Judgment 8 O.S.No.8587/2016 "......F PÉùUÀÆ £À£ÀUÀÆ ¸ÀA§AzÀs E®è ªÀÄvÀÄÛ F PÉù£À°è ¸ÁQë £ÀÄrAiÀÄ®Ä ¤ªÀÄUÉ AiÀiÁªÀÅzÉà C¢üPÁgÀ E®è ªÀÄvÀÄÛ ¤ÃªÀÅ AiÀiÁªÀÅzÉà qÉÊgÉPÀÖgï DVgÀĪÀÅ¢®è ªÀÄvÀÄÛ ¤ÃªÀÅ mÉÆÃl¯ï ¸ÉÖçÃAdgï DVgÀÄwÛÃgÁ JAzÀgÉ ¸ÁQë CzÀÄ ¤ÃªÀÅ w½zÀÄPÉÆAr¢ÝÃgÁ JAzÀÄ ºÉüÀÄvÁÛgÉ."
PW-1 in his cross-examination admits that plaintiff's company is incorporated under the Companies Act. PW-1 states that he has produced documents before this court to substantiate that he is the Managing Director and authorized to depose on behalf of the company. For the reasons best known to PW-1, PW-1 has not produced any documentary evidence before this court to show that he is the Managing Director of plaintiff's company and authorized by the plaintiff's company to represent and depose on behalf of the plaintiff company.
9. In 2013 SCC OnLine Kar 10450, in the case of Canara Workshops Ltd. v. Mantesh, wherein the lordships have held as follows:
This appeal is filed by the complainant, who had alleged an offence punishable under Section, 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for brevity), against the respondent.
2. The appellant is a company incorporated under the Companies Act, 1956. It is engaged in Judgment 9 O.S.No.8587/2016 the business of manufacturing automobile spring leaves in the name and style of M/s. Canara Springs. Its Head Office is at Mangalore and one of its branch offices is at Hubli. The respondent-
accused was said to be a dealer in automobile spare parts, having his place of business at Athani and was purchasing the goods manufactured by the appellant on credit basis. That as per the books of account maintained by the appellant, the accused was said to be due in a sum of Rs.70,294/- payable towards the credit purchases, as on 31.08.2004. Since there was delay in making payments, the complainant had issued a notice seeking-prompt payment. It transpires that a part payment was made in cash and the respondent had issued a cheque for the balance amount of Rs.65,294/- in discharge of the amount outstanding; The cheque when presented for collection was dishonoured for want of funds. When the respondent was informed of the same, he had requested for time to pay the amount and ultimately issued a cheque endorsed in blank with instructions to the appellant to present the same for collection in the third week of February, with due information to the respondent. Therefore, the same was presented as per the instructions of the respondent while indicating the date of the cheque as 22.2.2006 and presented the same through the appellant's Banker and the same was dishonoured. Therefore, a notice was issued in terms of Section 138 of the N.I.Act within the time Judgment 10 O.S.No.8587/2016 prescribed and since there was non-compliance with the demand, a complaint was filed. The same was contested.
3. One of the objections raised was that the complaint was not brought be an authorized person to represent the company and therefore the complaint could not be entertained apart from raising contentions as to the validity of the transaction, etc. ................
19. It may also be seen that even in respect of civil suits, under Order 29 Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as the 'CPC', for brevity), in a suit by a Corporation, any pleading may be signed and verified on behalf of the Corporation by the Secretary or by a Director or other principal officer of the Corporation, who is able to depose to the facts of the case. This would indicate that the said provision merely prescribes that any pleading on behalf of a Corporation may be signed and verified by its Secretary or by its Director or by any other principal officer, who is able to depose to all the facts of the case. It does not empower such a officer to conduct the case on behalf of the Corporation, for which, such officer must be authorized by the Board of Directors by a resolution or must be empowered under the Memorandum and Articles of Association to bring a suit".
Judgment 11 O.S.No.8587/2016 From the above citation it is clear that in order to give evidence on behalf of the company PW-1 is required to produce resolution before the court to show that he is authorized on behalf of the company. In the present case, inspite of specific denial by the defendant, PW-1 has not produced any resolution before the court to show that he is authorized to represent and depose on behalf of plaintiff's company. Therefore, adverse inference has to be drawn against the plaintiff. Hence, contention of the defendant that PW-1 is not authorized to represent and depose on behalf of the company has to be accepted.
10. PW-1 in his examination-in-chief has stated that during September 2014, the defendant requested the plaintiff to provide security services to his estate i.e., Nisarga Dhama (Kodandarama Ramaiah Estate), Nelamangala, Bengaluru. As per quotation dated 30.09.2014, defendant placed orders for providing security services of one armed and 6 unarmed guards from 20.10.2014 to his estate and an agreement / work order was entered between the plaintiff and defendant on 10.10.2014 at Bengaluru. As per agreement / work order, the plaintiff deployed one armed and 6 unarmed guards to defendant's estate from 20.10.2014. As per the terms of the work order dated 10.10.2014, the defendant agreed to pay a sum of Rs.19,000/- per month to the armed security guard and Judgment 12 O.S.No.8587/2016 Rs.15,000/- per month each to unarmed security guards. The plaintiffs' guards have satisfactorily served the defendant. The plaintiff has issued monthly bill/ invoice to the defendant for the security charges from October 2014 onwards. The defendant paid monthly charges regularly from October 2014 to January 2015. From February 2015 onwards, the defendant failed to pay monthly security service charges. The defendant is liable to pay monthly security charges along with Service taxes from February 2015 to May 2015, in all Rs.3,49,997/- to the plaintiff and inspite of repeated demands, the defendant failed to pay the said amount to the plaintiff.
DW-1 in his cross-examination has stated as follows:
"¤¦.1gÀ°è £À£Àß ¸À» EgÀĪÀÅ¢®è. ¤¦.1gÀ ¥ÀæPÁgÀ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢ £ÀqÀÄªÉ DzÀ mÁæ£ÁìPÀë£ïì §UÉÎ ¤ªÀÄUÉ UÉÆwÛ®è JAzÀgÉ ¸ÁQë UÉÆwÛzÉ J£ÀÄßvÁÛgÉ. ¤¦.1gÀ ¥ÀæPÁgÀ PÉÆÃzÀAqÀgÁªÀÄ gÁªÀÄAiÀÄå M§â DªÀiïðØ UÁqïð ªÀÄvÀÄÛ 6 d£À C£ïDªÀiïðØ UÁqïðUÀ¼À ¸À«ðÃ¸ï ¥ÀqÉAiÀÄ®Ä CVæªÉÄAmï ªÀiÁrPÉÆArzÁÝgÉAzÀgÉ ¸Àj. ¤¦.1gÀ ¥ÀæPÁgÀ DªÀiïðØ UÁqïðUÉ wAUÀ½UÉ 19 ¸Á«gÀ ªÀÄvÀÄÛ M§â C£ïDªÀiïðØ UÁqïðUÉ wAUÀ½UÉ 15¸Á«gÀ gÉÃmï ªÀiÁvÀÄPÀvÉAiÀiÁVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. ¤¦.1gÀ°ègÀĪÀ PÀArõÀ£ïì£ÀÄß £À£Àß ¸ÀªÀÄPÀëªÀÄzÀ°è §gÉ¢®è JAzÀgÉ ¸Àj. £É®ªÀÄAUÀ®zÀ°ègÀĪÀÀ DAiÀÄgïzsÁªÀÄPÉÌ ¸ÉPÀÄåjn ¸À«ðøÀ¸ï Judgment 13 O.S.No.8587/2016 PÉÆqÀ®Ä CVæªÉÄAmï DVzÉ. ¤¦.1 CVæªÉÄAmï£À°è PÁè¸ï 7gÀ°è C£ï lÄ ªÀqïð E¤ìqÀAmï CAzÀgÉ K£ÀÄ CAzÀgÉ ¸ÁQë PÀ¼ÀîvÀ£À ªÀÄvÀÄÛ ¸ÉPÀÄåjnAiÀĪÀgÉ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ C£ï lÄ ªÀqïð E¤ìqÉAmï JAzÀÄ ºÉüÀÄvÁÛgÉ. CzÉà jÃw «Ä¸ïºÁåAqï°AUï JAzÀgÉ K£ÀÄ JAzÀgÉ ¸ÁQë ¸ÉPÀÄåjnAiÀĪÀjAzÀ £ÉVèeÉ£ïì JAzÀÄ ºÉüÀÄvÁÛgÉ. ¤¦.3gÀ ¥ÀæPÁgÀ £ÁªÀÅ £ÉVèeÉ£ïì EAzÀ C£ïlĪÀqïð E¤ìqÉAmï DVgÀÄvÀÛzÉ JAzÀÄ £ÁªÀÅ ªÁ¢UÉ w½¹gÀÄvÉÛêÉ. ¸ÉPÀÄåjn ¸À«ðøÀ¸ï£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀ £ÀAvÀgÀ ¤¦.2gÀ ¥ÀæPÁgÀ CPÉÆÖçgï 2014, £ÀªÉA§gï 2014, r¸ÉA§gï 2014 ªÀÄvÀÄÛ d£ÀªÀj 2015 wAUÀ¼À ¸ÉPÀÄåjn ¸À«ðøï ZÁdð¸ï£ÀÄß ¥ÁªÀw¹zÉÝãÉ".
In support of plaintiff's case, the plaintiff has produced work order / agreement dated 10.10.2014 at Ex.P1. DW-1 in his cross- examination admits Ex.P1. Hence, this court can rely upon Ex.P1. From the recitals of Ex.P1, it discloses that defendant had agreed to avail security services of one armed and six unarmed security guards to his estate. Further, from the recitals of Ex.P1, it discloses that defendant had agreed to pay Rs.19,000/- per month to the armed guard and Rs.15,000/- per month for each of unarmed security guards, in total Rs.1,09,000/- per month to the plaintiff company. DW-1 in his cross-examination admits the Judgment 14 O.S.No.8587/2016 above said payment rates to the plaintiff's company. Therefore, from the evidence of DW-1 and Ex.P1 it can be inferred that defendant had availed security services from the plaintiff company and agreed to pay Rs.1,09,000/- per month to the plaintiff's company. From the recitals of Ex.P1, it goes to show that the said security services was availed from October 2014. PW-1 in his evidence has categorically stated that the defendant has paid monthly charges from October 2014 till January 2015. DW-1 in his cross-examination admits payment of monthly charges for the period from October 2014 to January 2015. Both parties admit payment of amount for the period October 2014 to January 2015.
11. PW-1 has stated that from February 2015 till May 2015 the defendant has not paid monthly security charges to the tune of Rs.3,49,977/- and he had raised / issued monthly bill / invoice to the defendant. The plaintiff has not produced any documentary evidence before this court to show rate of service tax payable by the defendant. As per Ex.P1, the defendant is liable to pay Rs.1,09,000/- towards security charges. The plaintiff in his evidence says that he has issued monthly bills to the defendant. Per contra, the plaintiff has not produced copies of the said monthly bills / invoices for the period from February 2015 to May 2015 before this court. No explanation is given by Judgment 15 O.S.No.8587/2016 the plaintiff for non-production of above said material documents before this court. Therefore, adverse inference has to be drawn against the plaintiff. As per Ex.P.1, the defendant is liable to pay 4 months monthly charges at the rate of Rs.1,09,000/- per month to the plaintiff. Therefore, the total amount due will be Rs.1,09,000/- x 4 months = Rs.4,36,000/-. But, in the plaint the plaintiff claims that the defendant is liable to pay Rs.3,49,997/- towards 4 months arrears of security service charges. The plaintiff has not provided detail calculation regarding how he has arrived at Rs.3,49,997/- amount. The plaintiff has not given any explanation in his evidence regarding the above said discrepancy. In support of plaintiff's contention, the plaintiff has produced one statement containing bill details and receipt at Ex.P2. Ex.P2 reads as follows:
Bill Details Receipt
Amount Dedu-
Month Dated Ch.No. Dated Amount
Billed ction
Oct-14 31.10.2014 42,194 170544 28.11.2014 3,879 38,315
Nov-14 30.11.2014 93,000 386068 22.12.2014 4,727 91,140
Dec-14 31.12.2014 93,774 022731 16.02.2015 1,875 91,899
Jan-15 31.01.2015 92,516 632833 16.02.2015 1,851 90,665
Feb-15 28.02.2015 96,106
Mar-15 31.03.2015 90,806
Apr-15 30.04.2015 83,600
May-15 31.05.2015 70,000
Total 661,996 12,332 312,019
Total Outstanding Amount is Rs.3,49,977/-
Judgment 16 O.S.No.8587/2016 This is to certify that the true and correct statement has been feeded by me I nthe computer system and the true printout has taken from the same and the said statement are true and correct.
Sd/-
Ex.P2 is not a monthly bill and it is only a statement containing bill details. In Ex.P2 it is stated that the said document is a true computer printout. It is pertinent to note that, Ex.P2 doesn't contain the name and designation of the person who has taken the printout and signed Ex.P2. Ex.P2 is not the original and it is a secondary evidence.
In (2017) 1 Supreme Court Cases 734, in the case of Harpal Singh Alias Chhota v. State of Punjab, wherein the lordships have held as under:
"Evidence Act, 1872
- S.65 B - Electronic evidence - Requirements for admissibility of - Principles reiterated - Held, electronic evidence in nature of secondary evidence cannot be admitted unless requirements of S.65-B are satisfied - In present case evidence of incriminating call details (relating to case of conspiracy to kidnap for ransom) were sought to be proved by evidence of PWs.24, 25, 26 and 27 on basis of printed copy of computer generated call details but prosecution failed to adduce certificate relatable thereto as required under Judgment 17 O.S.No.8587/2016 S.65-B(4) - Said call details, held, inadmissible - Though conviction was upheld on basis of other evidence - Criminal Law - Criminal Trial - Proof - Electronic evidence - Criminal Law - Criminal Trial
- Clues and Tell-Table Signs/Forensics - Mobile phone/satellite phone/GPS data".
From the above judgment of the Supreme Court, it is clear that electronic evidence in nature of secondary evidence cannot be admitted unless requirements of S.65-B are satisfied. Ex.P2 is a secondary evidence and plaintiff is bound to produce certificate under Section 65-B of Evidence Act. In the present case, the plaintiff has failed to produce certificate under Section 65-B of the Evidence Act. Therefore, Ex.P2 is inadmissible and cannot be relied upon by this court. It is also pertinent to note that, in Ex.P2 total outstanding amount is mentioned as Rs.3,49,977/-. Per contra, if the amounts shown in Ex.P2 for the period February 2015 to May 2015 are added, total amount will be Rs.3,40,512/-. No explanation is given by the plaintiff for the above said discrepancy. Hence, on the said ground also Ex.P2 cannot be relied upon. The plaintiff has failed to prove that defendant is liable to pay Rs.3,49,977/- as contended in the plaint. Consequently, interest claimed by the plaintiff in the plaint doesn't survive for consideration. Hence, plaintiff is not entitle for any interest as claimed in the plaint.
Judgment 18 O.S.No.8587/2016
12. The defendant has contended that on account of negligence on the part of plaintiff's security guards 12 sandal wood trees worth Rs.7,20,000/- were stolen from the defendant's estate and plaintiff is liable to compensate and pay a sum of Rs.7,20,000/- to the defendant herein. It is pertinent to note that, the defendant has not claimed any set off or counter claim in the above case. No independent witnesses are examined by the defendant to show that on account of negligence of plaintiff's security persons 12 sandal wood trees were stolen. The defendant says that security guards had acknowledged their negligence but, the defendant has not produced the said document before the court. Therefore, adverse inference has to be drawn against the defendant herein. The defendant has produced letter issued by Sandalwood Society of India at Ex.D3, to show the value of 12 sandalwood trees as Rs.7,20,000/-. The defendant has not examined author of Ex.D3 before this court hence, Ex.D3 cannot be relied upon. The defendant has produced letter and debit note at Ex.D2 and D4. The plaintiff has denied receipt of said debit note. The defendant has not produced any material evidence to show that debit note was served on the plaintiff. The defendant has failed to produce material evidence to prove negligence on the part of the plaintiff's security guards. The Judgment 19 O.S.No.8587/2016 learned counsel for the plaintiff has relied upon the citations repeated in (2005) 2 Supreme Court Cases 217 & ILR 2006 KAR 3129. The above citations are not applicable to the facts and circumstances of the present case. In the light of the above discussion, I answer Issue No.1 in the Affirmative and Issue Nos.2 to 5 in the Negative.
13. Issue No.6:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed with costs. Draw decree accordingly. (Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 4th day of September, 2019) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.K.L.Nagaraj
(b) Defendants' side:
Judgment 20 O.S.No.8587/2016 DW.1 - Sri.Venkataramani II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Agreement / Work Order dated
10.10.2014
Ex.P2 : Statement of Account dated
30.06.2015
Ex.P3 : Letter dated 15.05.2015
Ex.P4 : Police Acknowledgement
Ex.P5 : Letter dated 25.05.2015
Ex.P6 : Postal Receipt
Ex.P7 : Letter dated 05.06.2015
Ex.P8 : Letter dated 09.06.2015
Ex.P9 : Postal Acknowledgement
Ex.P10 : Legal Notice dated 29.08.2016
Ex.P11 : Postal Receipt
Ex.P12 : Postal Acknowledgement
Ex.P13 : Reply Notice dated 23.06.2016
(b) Defendants' side:
Ex.D1 : General Power of Attorney
Ex.D2 : Letter dated 22.05.2015
Ex.D3 : Letter dated 20.05.2015
Ex.D4 : Debit Note
XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
Digitally signed by SRINIVASA DN: cn=SRINIVASA,ou=HIGH COURT OF
SRINIVASA KARNATAKA,o=GOVERNMENT OF KARNATAKA,st=Karnataka,c=IN Date: 2019.09.06 11:08:56 IST Judgment