Delhi High Court
Rajinder Bajaj vs The Indian Tanning Industries And Ors. on 17 December, 2007
Equivalent citations: AIR2008DELHI62, AIR 2008 DELHI 62, 2008 (2) AJHAR (NOC) 404 (DEL), 2008 (3) AIR KAR R 388, 2008 A I H C (NOC) 313 (DEL)
Author: Manmohan Sarin
Bench: Manmohan Sarin, Sudershan Kumar Misra
JUDGMENT Manmohan Sarin, J.
1. This Regular First Appeal has been preferred by appellant against the judgment and decree dated 18.1.2005, passed by Mr. Mahabir Singal, Additional District Judge, Delhi. Learned Judge dismissing the suit of appellant/plaintiff for recovery of Rs. 7,57,130.32/- (Rs. Seven Lac Fifty Seven Thousand One Hundred Thirty and Thirty Two Paise only) inclusive of Rs. 2,60,651.44/- (Rs. Two Lac Sixty Thousand Six Hundred and Fifty One and Forty Four Paise only) as interest. The Trial Court held that appellant /plaintiff failed to prove his appointment as commission agent by defendants/respondents for marketing of their finished leather products for Delhi and Agra territories. Hence he was not entitled to the suit amount claimed as commission.
2. Before considering the grounds urged by the appellant in the present appeal, relevant facts culminating in the passing of the impugned judgment may be noted.
i) Appellant/Plaintiff's claims to have functioned as a commission agent of respondent No. 1, Indian Tanning Industries of which Respondent No. 2 is a registered partner. As per the appellant, respondent No. 2 appointed him as an authorized commission agent of respondent No. 1 for their finished leather products for Agra and Delhi territory w.e.f. 3.3.1990. vide letter of the same date. Appellant was to be paid commission @ 2% of the total value of business/orders secured from Delhi and Agra region.
ii) Appellant claims that during the period March 1991 to November 1993, appellant had collected various orders from Tej Group of Agra (U.P.) which were transmitted to the respondents for supplies to 1) Tej Enterprises, Agra 2) Tej Sales, Agra 3) Tej Shoe Factory, Agra and 4) Tej International Pvt. Ltd., Agra. Further as per the account books maintained by Tej Group, Agra, respondent had made supplies to all the concerns of Tej Group, Agra to the tune of Rs. 2,55,23,944/- during the aforesaid period.
3. It is the appellants case that as per the terms of letter of appointment, the commission of the appellant was fixed at 2% of total turnover which comes to Rs. 5,01,478.88/- (Rs. Five Lac One Thousand Four Hundred Seventy Eight and eighty eight Paise only). Appellant averred in the plaint that that he had withdrawn a small amount of Rs. 5000/- on 19.8.1993, from respondent's account with Tej Shoe Factory but still a balance of Rs. 4,96,478/- (Rs. Four Lac Ninety Six Thousand Four Hundred Seventy Eight only) was payable by the respondents to the appellant. Appellant further claimed that he had suffered a massive heart attack on 3.8.1993. He thus remained confined to bed for considerable period. As a result, he remained out of touch with his business as well as respondent. Appellant further averred that after partly recovering from illness, he resumed business and requested the respondent for the payment of his commission dues being in dire need of funds but to no avail. Appellant kept telephoning the respondent No. 2 every now and then requesting for immediate payment. Appellant was constrained to issue a legal notice on 9.7.1996, but even that had no effect on the respondent. Hence the suit culminating in the impugned judgment being passed.
4. Counsel for the appellant contended that the Learned Trial Judge was obliged to seek expert opinion with regard to Exhibit PW. 2/1 which he contends is the appointment letter issued by respondent to him. Counsel submitted that Learned Judge without taking any expert opinion unilaterally based on his own examination reached the conclusion that the letter was fabricated. He further submitted that Trial Court erred in holding that the signature on the appointment letter was not that of respondent No. 2. In view of the denial of execution of the appointment letter and conflicting evidence of the parties, the learned judge was obliged to obtain expert opinion. Counsel for respondent, on the other hand countered this by urging that Trial Court was fully justified in personally comparing the latest signatures of respondent No. 2, Mr. Ramesh Kumar Juneja with the admitted signatures on the written statement and evidence recorded.
5. Let us examine the legal position with regard to examination of signatures of questioned documents by experts under Sections 45 and 47 of Indian Evidence Act 1872 and examination by court itself under Section 73 of Indian Evidence Act 1872. The Supreme Court in Murari Lal v. State of M.P. AIR 1980 SC 531 considered the approach to be adopted and the caution to be observed while considering the opinion evidence of handwriting expert under Section 45 of Indian Evidence Act 1872. The Supreme Court observed that while corroboration may not be insisted upon as an invariable rule, the approach of a court while dealing with opinion of handwriting expert should be to proceed cautiously, probe the reasons of opinion, consider all other relevant evidence and decide finally to accept or reject it. In paras 11 and 12 of the said judgment it was observed:
we are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. The cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid that it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions , they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the courts own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were where the court itself compared the writings.
The Supreme Court again in Lalit Popli v. Canara Bank held It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writing can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Section 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts evidence is not there, Court has power to compare the writings and decide the matter.
6. Applying the principles laid down in the above noted judicial pronouncements, it would be seen that in the instant case no expert evidence was available and the trial court examined the signatures on the purported appointment letter and compared the same with the admitted signatures of Mr. Juneja in the written statement and the affidavit. The Trial Court was perfectly justified in doing so. The trial court found glaring discrepancies which could be discerned by naked eye. It was, therefore, of the view that the purported appointment letter was a fabricated one. The expert evidence had not been led. In these circumstances, where the conclusion reached by the trial court was a definite and categorical one not admitting to any doubt, non- examination of the hand writing expert could not be said to be fatal. The conclusion reached by the trial court that the purported appointment letter was a fabricated one deserves credence. The Court was fully justified in examining the purported appointment letter and forming its opinion and conclusion and the said conclusion cannot be negated on the ground that opinion of hand writing expert had not been sought. The attendant circumstances, as brought out by the trial court in the judgment also support the said view. The main thrust of the appellant's submission is based on the appointment letter dated 3rd March, 1990, which has been found to be fabricated.
7. Appellant, who claims that he functioned as a commission agent neither kept nor produced any record of orders procured or received from Tej Group of concern, Agra. A commission agent, whose job was to canvass and procure orders, would definitely canvass for prospective orders, follow them for being placed, procure and process them for execution. The absence of any record of placement of orders or account being kept of the same by the appellant negates his functioning as a commission agent. Appellant only sought to rely upon the account books of Tej Group to show the placement of orders on them by respondent.
8. Appellant has submitted that respondents had made supplies to all the concerns of Tej Group, Agra to the tune of Rs. 2,55,23,944/-(Two Crore Fifty Five Lacs Twenty Three Thousand Nine Hundred Forty Four) during the period he was working as an authorized agent of respondent. We are unable to accept the contention of the appellant as he failed to demonstrate booking and procurement of orders. Appellant has also failed to produce any account or record, as noticed above. Accordingly, even if the orders had been placed by Tej Group on the respondent and supply is made by the respondent, appellant, who had failed to prove his appointment as a commission agent and/or his functioning as such, cannot take any advantage of the same.
It is also noticed that, in the suit filed by the appellant, he had averred that he suffered a heart attack on 3.8.1993 and legal notice was served on the respondent on 9.7.1996. Appellant never made any demand for the aforesaid amount for 3 years from 1993-1996 and it was only in 1996 that the legal notice was served. Appellant did not take any steps, on record, in the intervening period to pursue his case. This further raises doubt about his bona fides and his case does not inspire any confidence.
In view of the foregoing discussion, we do not find any infirmity in the order passed by the trial judge who has taken a plausible and reasonable view on the evidence on record. Appeal is dismissed being devoid of merit.