Andhra Pradesh High Court - Amravati
M/S. Ruchi Soya Industries Ltd., vs Nerella Venkata Suresh, on 7 December, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.103 of 2012
JUDGMENT:
The defendant company in the suit for recovery of money has suffered decrees against it in the lower Courts; preferred this second appeal under Section 100 C.P.C. questioning the correctness of the judgments of the Courts below. Respondents in this appeal are the plaintiffs. O.S.No.149 of 2003 was a suit filed by plaintiffs and after due trial, the suit was decreed in favour of the plaintiffs by the learned Principal Senior Civil Judge, Kakinada by judgment dated 30.09.2008. Aggrieved of it, the defendant in the suit preferred A.S.No.225 of 2009. After due hearing, the first appeal was dismissed by the learned IV Additional District Judge, Kakinada by judgment dated 14.07.2011 and confirmed the trial Court's judgment. Aggrieved of it, the defendant in the suit filed this second appeal.
2. On 08.11.2013 a learned judge of this Court admitted this second appeal on the following substantial questions of law:
1) Whether in claim for recovery of amount based on a document the burden shifts to defendant when the defendant questioned the enforceability by denying such document?2
Dr. VRKS, J S.A.No.103 of 2012
2) Whether on filing of certified copies of documents due to non availability of originals, because of closure of defendant company, can courts below take adverse interference against defendant?
3. Learned counsel on both sides submitted their arguments.
4. To appreciate the contentions, the litigation that unfurled before the lower Courts is required to be noticed.
5. The claim in the suit is that a lorry bearing No.AP-5X- 8123 belonging to the plaintiffs was given on a monthly hire to the defendant at the rate of Rs.24,500/- and the lease commenced from the month December, 2000 and terminates by the end of November, 2003. Defendant utilized the service till the end of July, 2002 and thereafter informed the plaintiffs that from 1st August, 2002 it did not want the vehicle anymore. Thus, there is breach of contract. Without any prior notice and without any justification, contract was terminated well before the duration of lease agreed upon.
6. In the plaint, the claim is made under three distinct heads. It is stated that for certain months defendant paid Rs.23,500/- only instead of Rs.24,500/- and therefore, there 3 Dr. VRKS, J S.A.No.103 of 2012 remained balance of Rs.1,000. This amount along with accrued interest is claimed at Rs.27,500/-. Then it is stated that for a period of 16 months defendant failed to utilize the vehicle and caused pecuniary loss at the rate of Rs.10,400/- per month. That comes to Rs.1,66,400/-. Then for breach of contract damages are claimed at the rate of Rs.10,000/-. Thus, a total claim of Rs.2,10,465/- was demanded from the defendant along with 24% interest per annum and for costs and such other reliefs.
7. Defendant raised a contest and filed a written statement and denied all the plaint mentioned averments. From para No.6 onwards it disclosed its defence. It is stated that between parties there is no written contract and never the defendant engaged the vehicle of the plaintiffs on a monthly hire charges. Then it is stated that defendant used on hire the vehicle of the plaintiffs on trip wise basis and as and when trips were taken the payment was made and nothing was due. The name of the defendant is M/s. Ruchi Soya Industries Limited. It is stated that in March, 2002 because of business crisis the said industry was wound up.
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Dr. VRKS, J S.A.No.103 of 2012
8. Written statement further avers that subsequently plaintiffs used to supply the vehicle to another company by name Ruchi Infrastructure Limited and that company used to engage this vehicle on trip basis and it used to pay hire charges. Those transactions occurred between Match, 2002 and July, 2002. Because of several disputes, the Ruchi Infrastructure Limited stopped engaging the vehicle of the plaintiffs. Plaint mentioned notice was never received by the defendant since defendant industry was already closed and it is because of that it could not give a reply notice. At para No.8 it stated that it has sufficient documentary evidence to prove its defence and to prove that the claim of the plaintiffs is false. For these reasons, it sought for dismissal of the suit.
9. Suit went for trial on the following issues:
"1. Whether the plaintiffs are entitled for the suit claim?
2. To what relief?"
10. 1st plaintiff gave evidence as PW.1 and got examined another witness as PW.2. An officer from defendant company testified as DW.1. Coming to documents, Exs.A.1 to A.3 for 5 Dr. VRKS, J S.A.No.103 of 2012 plaintiffs and Exs.B.1 to B.5 for defendants and Ex.C.1 were marked.
11. Learned trial Court considered the evidence of both sides and observed that Ex.A.1 is on the letter head of the defendant company and is signed by both parties and that letter contains the clauses showing that the lorry of the plaintiffs was taken on hire by the defendant and the transaction is one of the lease of vehicle on monthly rental/hire charges basis and per month defendant agreed to pay Rs.24,500/- to the plaintiffs. It is based on these, the learned trial Court recorded a finding that it was a written contract of hire of vehicle on a monthly basis that was there between parties. It therefore negatived the contentions of the defendant about non-existence of a written lease and about hiring the vehicle only on trip wise basis.
12. Considering the evidence of PW.1, the trial Court observed that from the agreed amount there was overdue from the defendant. The contentions of the defendant about full discharge of the amount was considered in the light of Ex.B. Series documents. It observed that Exs.B.2 to B.4 are only ledger accounts and they did not bear the signatures of 6 Dr. VRKS, J S.A.No.103 of 2012 plaintiffs admitting the contents therein and that the defendant failed to produce vouchers indicating discharge of its liability. Considering the evidence of DW.1 that the vouchers are available at its head office in Indoor and considering the fact that they were not produced, the learned trial Court drew adverse inference against the defendant holding that had they been produced they would have disclosed facts against the contentions of the defendant. It discarded Ex.B.5 vouchers by assigning certain reasons. It also observed that without specific pleas taken up in the written statement the defendant was making several new contentions such as reduced payments because of deductions of TDS etc. Stating that on all such contentions defendant failed to produce any evidence, it nagatived all those contentions.
13. Be it noted that the entire judgment of the trial Court contains discussion only with reference to certain payments that were overdue and one could not see any arguments and discussion about damages that are claimed and about loss of income because of breach of contract etc. Finally, it agreed with the case of the plaintiffs and decreed the whole claim and directed the defendant to pay it with 6% interest per annum 7 Dr. VRKS, J S.A.No.103 of 2012 from the date of suit till the date of realization. Costs were also awarded to the plaintiffs.
14. When the matter came up before the first appellate Court, it framed the following points for its consideration:
"(1) Whether there was privity of contract between the parties and if so, whether plaintiffs are entitled for recovery of suit amount?
(2) To what relief?"
15. After making a reference to the entire evidence on record and after considering the documents also, the learned first appellate Court agreed with the findings of the trial Court and it further stated that in terms of Section 34 of the Indian Evidence Act it was for the defendant to sustain its defence and mere ledgers do not attach liability unless they are supported by corresponding vouchers and other books of accounts. Learned first appellate Court and in fact the learned trial Court also recorded a clear finding that the fact of utilization of plaintiffs' vehicle by the defendant remained undisputed and the only conflict was whether it was on a monthly hire basis or it was only on the basis of payment per trip as and when engaged. Learned first appellate Court also approved the findings of the 8 Dr. VRKS, J S.A.No.103 of 2012 trial Court which were based on Ex.A.1 terming that it was a written contract and that proved the case of the plaintiffs and the opposite version taken up by the defendant was not proved.
16. As one could notice, before the first appellate Court also there was no debate and discussion on the other two heads of money claimed by the plaintiffs. Finally, the first appellate Court concurred with the trial Court's judgment and dismissed the appeal with costs.
17. Before this Court also the appellant has not raised the legal efficacy and as to the existence or otherwise of evidence concerning Rs.1,66,400/- claimed by the plaintiffs towards loss of income and Rs.10,000/- claimed by the plaintiffs towards damages for mental agony. Therefore, this Court need not say anything with reference to those two heads of claim. Then essentially what remained is the overdue amount which finally became Rs.34,065/-.
18. Learned counsel for appellant contends that though Ex.A.1 was proved to be a contract between parties, the burden to establish money was due from the defendant was on the 9 Dr. VRKS, J S.A.No.103 of 2012 plaintiffs but the lower Courts wrongly placed the burden on the defendant. As against it, learned counsel for respondents submits that the contentions of the appellant before the Courts below was about absence of written contract between parties and by production of Ex.A.1 this respondents/plaintiffs established before the Courts below that the contract between parties was in the form of writing and there was no fault on part of Courts below in placing burden of proof.
19. On considering these rival submissions and on perusal of the record, it should be stated that plaintiffs set their claim based on Ex.A.1 written contract. Defendant raised a contention that there was no written contract. Referring to cross-examination of DW.1, learned trial Court observed that documentation in the form of Ex.A.1 between defendant and plaintiffs was proved. To arrive at such conclusion, Courts below utilized the evidence of PWs.1 and 2 and the evidence of DW.1. The Courts below recorded that from the pleadings and evidence on both sides the fact that the vehicle of the plaintiffs was utilized by the defendant from December, 2000 till the end of July, 2002 was proved. In the context of terms of Ex.A.1, 10 Dr. VRKS, J S.A.No.103 of 2012 which indicated hire on monthly basis, it accepted the evidence of PW.1 and found the amount due. Since it was the defendant, who used the vehicle owes the liability to pay. Since it claims to have paid, holds the burden to prove that it paid and discharged its liabilities. In saying so, Courts below properly cast the onus of proof on the defendant to prove its plea of discharge. Therefore, there is nothing incorrect in the approach of the Courts below. There is no merit in the contention raised by the appellant. Point No.1 is answered against the appellant.
20. Learned counsel for appellant contends that the original documents were not available and their certified copies alone were filed and it was because the defendant company was closed but the trial Court wrongly drew adverse inference against the defendant. As against it, learned counsel for respondents submits that the alleged winding up is not established by any document and therefore, this contention has no merit.
21. On considering these rival submissions, it has to be stated that the Courts below recorded a finding that M/s. Ruchi Soya Industries Limited and M/s. Ruchi Infrastructure Limited 11 Dr. VRKS, J S.A.No.103 of 2012 are not different and there was mere change of name and nothing else. This finding was recorded based on the admissions made by DW.1 during his cross-examination. The lower Courts then referred to admission of DW.1 that all the necessary vouchers were with its Head office. Thus, the vouchers, which would show the pleaded discharge of liability on part of defendant, were very much available with the Head office of the defendant. It is up to the defendant to produce them and show them to the Court. Defendant did not do it. The decision of the Courts below refer pointedly to that aspect of the matter and it was in that context adverse inference was drawn for non-production of the documents, which were very much available with the defendant. That approach of the Courts below is in compliance with illustration (g) of Section 114 of the Indian Evidence Act, 1872. Be it noted that the ledgers that were produced were not the originals and they were mere copies and the Courts below simply stated that they were only copies and no adverse inference was drawn on the ground that the original ledgers were not produced. In fact what was sought by the Courts below was that to accept the contentions of defendant based on these ledger entries there should have been 12 Dr. VRKS, J S.A.No.103 of 2012 an acknowledgment from the plaintiffs approving the correctness of the ledger entries. Since the evidence disclosed no such approval from the plaintiffs, the Courts below went on to state that to attach liability ledger extracts are not enough and one should furnish the vouchers. About non production of vouchers the first appellate Court recorded Section 34 of the Indian Evidence Act and its legal effect and finally negatived the contentions of the defendant. Thus, discharge being one of the contentions raised by the defendant since the same was not established by the defendant, trial Court and the first appellate Court decided the case against the defendant. Appellant failed to show any principle of law to indicate any error in the approach adopted by both the Courts below. Therefore, there is no merit in this contention.
22. Learned counsel for appellant and learned counsel for respondents admit that by virtue of order dated 05.10.2012 of this Court this appellant had already deposited half of the decretal amount with costs.
23. In the result, this Second appeal is dismissed with costs. The remaining balance amount, after giving due credit to what 13 Dr. VRKS, J S.A.No.103 of 2012 was already deposited, shall be paid by the appellant to the respondents/plaintiffs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 07.12.2022 Ivd 14 Dr. VRKS, J S.A.No.103 of 2012 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.103 of 2012 Date: 07.12.2022 Ivd