Delhi District Court
M/S. Anchor Daewoo Industries Ltd vs M/S. S.M.G. Sales Pvt. Ltd on 28 August, 2015
IN THE COURT OF SH. VINOD KUMAR MEENA,
CIVIL JUDGE 13 (CENTRAL), TIS HAZARI COURTS, DELHI
CS No. 246/14
Unique I.D. no.02401C1147802005
M/s. Anchor Daewoo Industries Ltd.,
A36, Swasthya Vihar,
Delhi. .... Plaintiff
VERSUS
1. M/s. S.M.G. Sales Pvt. Ltd.,
HS14, Kailash Colony Market,
New Delhi 110048.
2. Mr. M. K. Gandhi,
Director M/s S. M. G. Sales Pvt. Ltd.,
H16 , Lajpat NagarIII,
New Delhi110024. ....Defendants
SUIT FOR RECOVERY OF RS. 2,73,439/.
Date of institution of the case : 31.10.2003
Date of institution of case
after remand back of the case
from the Ld. Appellate Court : 01.12.2005
Reserved for judgment : 21.08.2015
Date of pronouncement of judgment : 28.08.2015
CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 1 of 18
JUDGEMENT
1 By this order, I shall dispose off the present suit bearing no. 246/14 filed by the plaintiff against the defendant for recovery of Rs. 2,73, 439/.
PLEADINGS OF PLAINTIFF 2 It is case of the plaintiff that the plaintiff company is dealing with electronic goods viz. Color T.V., Refrigerators, washing machines etc. and the defendant was appointed as dealer of Daewoo Range of products in the year 1997. It is further averred by the plaintiff in the plaint that plaintiff company supplied various electronic goods to the defendant company through invoices from time to time. It is further averred by the plaintiff in the plaint that the on account of supply as made by the plaintiff company to the defendants, the defendant did not come to make the payment of Rs. 2,31,727.50/ which was pending as on 31.12.2002. It is further averred by the plaintiff in the plaint that despite several reminders, the defendants have not made the payment. Accordingly, the present suit has been filed for recovery of sum of Rs. 2,73,439/.
PLEADINGS OF DEFENDANT 3 The defendants contested the suit and filed written statement wherein it was contended by the defendants that the CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 2 of 18 plaintiff has filed the present suit on the basis of false and forged documents and the plaintiff has not approached the court with clean hands. It is further contended by the defendants that the suit is barred by law of limitation. Defendants have also filed the amended written statement wherein it was contended by the defendants that after appointment of defendant no.1 as a dealer of the plaintiff, the plaintiff used to raise invoices and the payment was made by the defendants after adjusting the credit note against each invoices. It is further contended by the defendants that no running and current account has been maintained by the defendants. Other contents of the plaint were denied by or on behalf of the defendants.
4 Replication was also filed to WS of defendants wherein the contents of the WS have been denied except the admissions made and the contents of plaint have been reiterated.
ISSUES 5 After the completion of pleadings, following issues were framed on 17.02.2004.
(i) Whether the plaintiff is entitled for decree for recovery of Rs. 2,73,439/ against the defendant? (OPP)
(ii) Whether plaintiff is entitled for pendentelite and future interest against the defendant? If so at what rate? (OPP) CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 3 of 18
(iii) Whether proper court fees has not been paid on the suit? (OPD)
(iv) Whether this court has no jurisdiction to try this suit? (OPD)
(v) Whether the suit is barred by law of limitation? (OPD) PLAINTIFF'S EVIDENCE 6 In support of his case, plaintiff has examined Sh. Rajeev Bhatnagar, Sr. Executive of the plaintiff company as PW1. PW1 has led his evidence by way of affidavit wherein he reiterated the contents of the plaint on oath. PW1 was cross examined in details on 01.07.2013, 13.11.2013 and 08.07.2014 and the plaintiff's evidence was closed vide order dated 24.02.2015.
7 On 07.04.2015 vide separate statement of the defendant no.2 on his behalf as well as on behalf of the defendant no.1, defendants' evidence was closed and matter was fixed for final arguments.
8 Final arguments have been heard on behalf of defendants and the pleadings as well as evidence and all the annexed & exhibited documents and record carefully perused and all the issues are decided as follows: CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 4 of 18 ISSUEWISE FINDINGS 9 Before proceeding ahead with deciding the issues, the Court deem it fit to mention here that the plaintiff has produced only one witness i.e. PW1 and he was partly cross examined on 01.07.2013, 13.11.2013 and 08.07.2014 and thereafter he has not appeared, accordingly he is not fully cross examined and plaintiff's evidence was closed vide order dated 24.02.2015. Defendants have not produced even a single evidence. At the outset, the court deem it fit to mention here that nobody had appeared on behalf of plaintiff to adduce the final arguments and the Ld. Counsel for defendant has not argued the matter on merits and has argued that the evidence adduced by the plaintiff through PW1 cannot be read into evidence, as PW1 has not been fully cross examined and the plaintiff evidence thereafter closed.
Ld. Counsel for defendant relied upon the observations made in Ripen Kumar vs Department of Custom 2000 VII AD(Delhi) 862, it is contented by the Ld. Counsel for defendants if a witness is not subjected to the cross examination then his evidence cannot be read into for deciding a particular case. Ld. Counsel for defendants have relied upon in para no. 9 of the observations made in Ripen Kumar(supra). The relevant para is quoted here as under
for the sake of clarity:CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 5 of 18
"9. By the impugned order the learned Additional Sessions Judge surprisingly came to the conclusion that even the said incomplete statement of PW1 should have been read in evidence. It ought to have been looked into as a supporting evidence to the statement recorded under Section 108 of the Customs Act. This observation of the learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements" include the examinationinchief as well as the cross examination and subject to the permission reexamination also. It is only when the witness is permitted to be crossexamined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross examined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be crossexamined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part crossexamination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examinationinchief and crossexamination. That statement alone will form evidence. In the present case petitioner had been deprived to crossexamine PW1 thereby dislodge his testimony. Hence incomplete statement of PW1 in the absence of crossexamination could not be treated as evidence nor the same could be relied upon. Therefore the observation of learned ASJ that incomplete statement could have been the basis of deciding the question of charge is contrary to law. Part statement of PW1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under Section 108 of the Customs Act stood proved."CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 6 of 18
After going through the abovementioned observations and after applying the same to the factual matrix of the present suit, the court found that the facts and circumstances of the present suit as well as the nature of the case is different from the case Ripen Kumar(supra). Firstly, the present case is a civil suit; In civil suit, the case can be proved or decided on the basis of balance of probabilities whereas in a criminal case, the case has to be proved on the facts and evidence which are beyond the reasonable doubts. Moreover in the case Ripen Kumar (supra), the witness was not cross examined whereas in the present suit witness is cross examined in detail at 3 occasions and the cross examination is running into 10 pages. It is again pertinent to mention here that the present suit is for recovery and the PW1 has cross examined in detail on 3 dates of hearings and the cross examination is running into 10 pages and the same gave a prima facie indication that the PW1 has been cross examined of sufficient materials/points.
The Court deem it fit to quote here the relevant observations made in Hon'ble Superior Court in Dever Park Builders Pvt. Ltd. & Ors vs Smt. Madhuri Jalan & Ors AIR 2002 Cal 281, wherein it was observed by the Court that the points which have been stated in examination in chief and on which cross examination has been conducted can be taken into consideration for deciding a particular CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 7 of 18 suit and the same are admissible in evidence and the whole of the evidence of a particular witness which has been partly cross examined cannot be ignored altogether. The relevant para are quoted here as under for the sake of clarity: "...10. In this case there is one and singular stage in the proceedings. Therefore. Section 33 of the Evidence Act will not at all be helpful nor it is applicable here. The issue is whether the testimony of the deceased defendant with unfinished crossexamination will be admissible or be considered at the time of hearing or rendering judgment in this case or not. Under the provisions of Section 138 of the Evidence Act order of examination of witness is provided. It appears therefrom the witness shall be first examinedin chief by the party who has called him and then if the adverse party so desires may crossexamine and thereafter if the party calling so desires may reexamine. Upon careful reading of the said Section it would be apparent that the crossexamination is not a must nor as a matter course, or without the same the evidence given in examinationinchief cannot be rejected nor expunged. However, if the adverse party opts, for, certainly, the crossexamination is a must. There is substance in submission of Mr. Bimal Chatterjee that there is no provision under law if the witness is not cross examined either in full or part his evidence would be absolutely rendered inadmissible. In absence of this provision, problem of this nature can be addressed by the help the judicial pronouncements that will certainly be guiding factor.
11. I find Madras High Court in case of Maharaja of Kolapur v. S. Sunderam Ayyar held amongst other where witness was examined in chief, however, there was hardly any crossexamination and before it could be concluded the witness died, still the unfinished testimony of the deceased witness was not rejected or held to be CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 8 of 18 inadmissible. It was held amongst others there in at page 538 Column 1 that the evidence is admissible but the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is either evidence on record, its probative value may be very small and may even be disregarded. In that case though the learned Judges did not attach any weight to the evidence of the deceased witness who was not cross examined in full. However, the principle is very clear for guidance.
12. In a judgment of the Allahabad High Court in case of Ahmad Ali v. Joti Prasad , it was held amongst other that there is certainly no provision in the Evidence Act that evidence of a witness who has been examined by the Court upon oath shall be excluded because it has not been possible for the other party to crossexamine him. Difference between getting evidence on the ground it is legally, inadmissible and ignoring it upon the ground that it should not be believed may often be of very little importance. But the distinction is important in principle because if the evidence is inadmissible the Court is not entitled to consider it at all, whereas if it is admissible the Court must decide on the circumstances of each cast whether any weight should be attached to it or not.
13. I hold that the provision of Indian Evidence Act would support the proposition that evidence of Wazir in these circumstances is admissible, but the Judge who is dealing with it must decide whether he believes the facts stated or does not believe them.
14. In a decision of the Patna High Court in case of Mr. Horli Kumar v. Rajab Ali reported in AIR 1936 Pat 34 it was held amongst other that the weight to be attached to the evidence of the witness who died before he could be crossexamined in commission, would depend upon the circumstances and the Court should look at the evidence carefully to see whether there are indications on cross examination the testimony of the witness was likely to be CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 9 of 18 settled.
15. In a decision of the Calcutta High Court (W. Stewart v. The New Zealand Ins. Co. Ltd.) reported in 16 CWN 991 it was held that the evidence of a witness in examinationin chief was accepted in view of the fact that the plaintiff allowed the witness to go uncrossexamined in the hope of getting his evidence rejected as in examinationinchief the testimony of that particular witness was against the plaintiff.
16. The following judgments that were rendered in the criminal cases and wherein the evidence of a witness whose crossexamination remained unfinished was admitted by the learned Judges.
17. In the case of Mangal Sen v. Emperor reported in AIR 1929 Lahore 840, the Lahore High Court held that such case is admissible but the weight to be attached to it depend upon the circumstances of each case.
18. In another decision of the Lahore High Court (Diwan Singh v. The Emperor) reported in AIR 1933 Lahore 561 it was held amongst other that the evidence of the witness who left before his cross examination could be completed was made admissible. There are other number of decisions wherein the evidences of the witnesses in criminal trial under the old Criminal Procedure Code were not accepted as at the committal stage they could not be crossexamined or they could not be found. The decisions cited by Mr. Dutt in the cases of the Criminal Sessions Trial under the provisions of the old Code whereunder there were scope for examining and crossexamining the witness in two different stages and the provisions of Section 33 of the Evidence Act was applicable. Those cases are not really helpful in this case.
19. Therefore, from the aforesaid catena of decisions which are rendered in Civil cases and from the discussion reached by me hereinabove I hold that the testimony of the CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 10 of 18 deceased defendant is admissible and the Court is bound to consider its weight to be attached for deciding this matter. Each and every proof in examination in chief does not require being crossexamined. There are cases where no crossexamination is really required. I find here a portion of the examinationinchief has been cross examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit. Crossexamination is essentially needed to bring out the truth of the oral testimony, but in case of documentary evidence where there is no suggestion or pleading as to fraud and forgery the crossexamination hardly matters..." (underline added) Similar was also reiterated by the Hon'ble High Court of Delhi in Tinkuram vs. State, CRL Appeal No. 841/11 decided on 14.09.2011.
The Hon'ble Supreme Court in Satnam Singh vs. Sadhu Singh, JT 2001(suppl.1) SC 545 also reiterated the same.
So, after going through the observations in Dever Park Builders(supra) and in Tinkuram(supra), the Court is of the view that the testimony once admissible at the time of its recording should not be made inadmissible, however, its probative value should depend upon the nature of witness and the circumstances like CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 11 of 18 chance of shacking of credibility of witness by cross examination etc. After going through the abovementioned observations as made by the Hon'ble Superior Court in Dever Park Builders Pvt. Ltd. & Ors (supra) and in Tinku Ram (supra), the court left with no doubt that the points which has been ascertained in examination in chief and on which the cross examination has been conducted has to be taken into consideration at the time of deciding a particular suit and the same are admissible in evidence.
So from the abovementioned discussions, it is clear that the contentions raised by the Ld. Counsel for defendants that the evidence of the plaintiff must not be read into evidence as the only plaintiff's witness i.e. PW1 has not been fully cross examined, is not tenable and the facts which has been ascertained by the plaintiff through his examination in chief and which has been controverted through cross examination by the defendant can surely be taken into account and the same are admissible in evidence.
At this stage, the Court deem it fit to mention here that the Ld. Counsel for defendants has not averred as to what are the points which remained to be controverted in cross examination. It is also pertinent to mention here that Ld. Counsel for defendants has not CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 12 of 18 argued on merits and has simply argued that evidence of PW1 cannot be read into evidence as PW1 has not been fully cross examined. As discussed above the contentions of the defendants does not hold water and the suit has to be decided on the basis of pleadings, documents and facts which has been ascertained in examination of chief and have been cross examined.
Issue no. 1, 2 and 5. (i) Whether the plaintiff is entitled for decree for recovery of Rs. 2,73,439/ against the defendant? (OPP), issue no. (ii) Whether plaintiff is entitled for pendentelite and future interest against the defendant? If so at what rate? (OPP) and issue no. (v) Whether the suit is barred by law of limitation? (OPD).
10 As far as issue no. 1, 2 & 5 are concerned, these issues are decided together as these issues involve interconnected question of facts and law. As far as issue no.1 is concerned, it was incumbent upon plaintiff to prove that the plaintiff is entitled for recovery of sum of Rs. 2,73,439/ from the defendants. It is pertinent to mention here that nobody has appeared on behalf of plaintiff to adduce any final arguments and the Ld. Counsel for defendants has not argued on merits so these issues can be decided on the basis of pleadings and documents which is available on records. It is observed by the Court CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 13 of 18 that the plaintiff has not mentioned as to what was the particular transactions for which the recovery is being sought. The plaintiff through his plaint as well as through evidence by way of affidavit has only mentioned that in the statement of account as on 31.12.2002 debit balance of Rs. 2,31,727.50 is shown and accordingly, the present suit is filed for recovery of the same. So, the main basis for recovery is the statement of account. The statement of account has been exhibited as Ex. PW1/9. Perusal of the statement of account, it is revealed that it is nothing but computer generated document. Now the question arises as to whether the statement of account Ex. PW1/9 which is nothing but computer generated document can be read into evidence.
To this, it is pertinent to mention here that it is specifically mentioned in the Section 65B of the Indian Evidence Act that the computer generated documents can not be relied upon into evidence unless and untill same is accompanied with certificate under Section 65B of Indian Evidence Act. It is pertinent to mention here that no certificate under Section 65B of the Indian Evidence Act has been tendered and exhibited by the plaintiff in the present suit.
It is also pertinent to mention here that in order to prove the computer generated documents the requirement of section 65B of CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 14 of 18 Indian Evidence Act has to be duly proved. The court deem it fit to mention here the judgment titled as State Vs. Mohd. Afzal and Ors 2003 IV AD (cr) 205, which was delivered in the month of October, 2003 and which clarified the law explaining section 65B of the Evidence Act as to how electronic record has to be proved. Further in Devesh Kumar Vs. State Cr. Appeal No. 793/2004 decided on 10.02.2010, it was observed that if neither a certification from a responsible officer of the company having control over the computer or authorized to generate a printout from the computer was proved nor was anybody from the company examined to State that computer generated sheets were generated through the computers storing the information and the information generated was stored in the ordinary course of witness of the service provider, then it is not admitted in evidence as the conditions under Section 65B not fulfilled.
After going through the abovementioned, the Court left with no doubt that the statement of account Ex. PW1/9 cannot be read into evidence as the same is nothing but computer generated documents and the same is not accompanied with certificate under Section 65B of Indian Evidence Act. It is also pertinent to mention here that nobody from the company appeared to aver anything specific about the Ex. PW1/9, accordingly, the same cannot be read into evidence.
CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 15 of 18It is also observed by the court that the plaintiff has also relied upon carbon copy of invoices and tendered the same as Ex. PW1/6. Perusal of the same, it is revealed that last invoice is dated 25.11.1999 and all other invoices are pertaining to the period prior to 25.11.1999. So, even if the limitation period is counted/started from 25.11.1999, then too the limitation period for recovery of last invoices expired on 25.11.2002 and the present suit has admittedly filed in the year 2003. So, the present suit even for recovery of sum as mentioned in the last invoice dated 25.11.1999 is barred by limitation. Once it is clear that even the last invoice in itself is barred by limitation then how the recovery can be sought for invoice which are prior the last invoice dated 25.11.1999.
The plaintiff has filed certain copy of letters, however, these can be of no benefit to the plaintiff, as it is trite now that the letters by the plaintiff himself cannot extend the limitation. It is pertinent to mention here that neither in plaint nor in the evidence by way of affidavit Ex. PW1/A, there has been any mentioned as to whether there has been any acknowledgment on the part of the defendants. Accordingly, in the absence of any averments or evidence to that effect, the contentions of extension of limitation period due to acknowledgement also falls flats.
CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 16 of 18In view of the abovementioned, the Court left with no doubt that the present suit has been filed without any basis and after expiry of limitation period. In view of the abovementioned, the issues no.1 is decided against the plaintiff. Issue no. 2 is dependent on issue no.
1. Once the issue no.1 is decided against the plaintiff, no questions arises for issue no.2. Accordingly, the issue no.2 is also decided against the plaintiff. Issue no.5 is decided in favour of defendant.
Issue no. 3 and 4 (iii) Whether proper court fees has not been paid on the suit? (OPD) and issue no. (iv) Whether this court has no jurisdiction to try this suit? (OPD) 11 As far as issue no. 3 & 4 are concerned, it was incumbent upon the defendant to prove these issues, however, there is not even a single document to substantiate the abovementioned issues. No evidence has been adduced in this behalf nor same has been pressed for. Accordingly, keeping in mind the fact that no evidence has been adduced by the defendant to substantiate these issues, accordingly, the issue no. 3 & 4 are decided against the defendant in the absence of any evidence.
CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 17 of 18RELIEF 12 In view of my findings on issues, the suit of the plaintiff is disposed of as dismissed. No order as to cost. Applications, if any, which are pending in the present judicial file and have not been pressed for by the parties are also disposed of as dismissed as not pressed.
13 Decree Sheet be drawn accordingly. File be consigned to Record Room.
Announced in the open Court
on 28.08.2015 (Vinod Kumar Meena)
(Total pages 1 to 18) CJ13 (Central)/28.08.2015
CS No.246/14 M/s. Anchor Daewoo Industries Ltd., vs M/s. S.M.G sales Pvt. Ltd. Page 18 of 18