Delhi District Court
Anand Kumar Deepak Kumar vs Haldiram Bhujiawala & Anr on 29 February, 2016
Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
TM 02/11
Anand Kumar Deepak Kumar ..... Plaintiffs
Versus
Haldiram Bhujiawala & Anr. ..... Defendants
Appearance : Sh Mohinder Rana & Sh Amarjeet Singh, Ld. Counsels for plaintiffs.
Sh. C. Mukund, Sh. Rajesh Mahendru and Sh. Amit Kasera, Ld.
Counsels for defendants.
Arguments heard from : 19.01.2016 to 22.02.2016
Date of Reserving Order : 22.02.2016
Date of Order : 29.02.2016
ORDER ON APPLICATION OF
DEFENDANTS DATED 24.11.2009.
1. This order, as per directions, is to dispose of an application of the
defendants dated 24.11.09 for taking on record the amended written
statement dated 29.1.2005 and framing additional issue. In addition to it, it
Result: Application Dismissed. Page 1 of 146
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has to further consider the entire gamut of the evidence on the issue of
execution and contents of the dissolution deed dated 16.11.1974. The
evidence of the plaintiff was closed on 12.1.2016 whereafter which an
opportunity was given by the Court to the defendants herein for making
submissions, if any, on this issue. As any additional application in this
context was not filed, all the arguments advanced qua the evidence recorded
upto the date of application in consideration and thereafter till conclusion of
plaintiff's evidence were noted by this Court. The said submissions since are
not delineated, hence, it is imperative for this Court to set them out in the
succeeding paragraphs. The arguments have been haywire despite the fact
that same were continuously regulated by this Court however considering
the sheer and enormous voluminocity of the judicial files, the same have
taken considerable time of this Court. The arguments started on 19.1.2016
and concluded on 22.2.2016. Majority of said submissions, made before this
Court are not relatable to the issue in consideration. It would be evident
from reading of the relevant orders of the Hon'ble Apex Court dated 1.10.08
and of the Hon'ble Delhi High Court dated 9.8.2011 that the cross
examination has to proceed on the plea of coercion (read undue influence)
with a specific liberty to the defendants to cross examine the witnesses of
the plaintiff on the question of execution of contents and the dissolution
deed in which regard, they could rely upon the material in their possession.
If this Court finds that there is a prima facie case of forgery, their amended
Result: Application Dismissed. Page 2 of 146
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written statement will be thereafter considered and not otherwise.
1.1. It may also be stated that in the first written statement dated 13.12.91,
no specific denial was made that Smt Kamla Devi did not sign the
dissolution deed. It was stated that on dissolution, she left the firm without
claiming her share in the trade mark because plaintiffs were her close
relatives and out of courtesy and regard for them, she remained silent. In the
second written statement dated 5.2.92 filed pursuant to first amended plaint,
again the execution of deed of dissolution was never challenged but it was
stated to be a void document. It was stated that the parties do not follow
matriarchal system. Plea in previous written statement was kept intact. It
was submitted that rights for defendants flow from Sh Rameshwar Lal and
not from Smt. Kamla Devi. In the third written statement dated 18.2.92 it
was again mentioned that the partnership business dissolved on 16.11.1974.
It was further stated that Smt Kamla Devi was under indue influence of her
father in law Sh Ganga Bishan and brother in law Sh Mool Chand and
therefore remained silent. She did not know English and also observed
Parda from her elders in the family. By way of latest written statement, plea
is taken that firm Chand Mal Ganga Bishan was never dissolved as Smt
Kamla Devi never signed on the deed of dissolution and that the same is
result of forgery. It is the last written statement which has been directed to
be kept in a separate file to be considered only after this issue in
consideration is settled by this Court. The observations are continuous and
Result: Application Dismissed. Page 3 of 146
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not stage wise and so are findings.
A. As per the application under Order 6 Rule 17 read with Section
151 CPC dated 5.10.99, the amendments to the written statement were
sought. Paragraph 1B and its sub paragraphs (a) to (g) were sought to be
substituted with paragraph 1B (a) to (d). To appreciate the same in proper
perspective, it is important also to set out the existing paragraph 1B which
is as under:
"1B. That it is a matter of record that on
16.11.1974 the aforesaid partnership business
was dissolved. It is an admitted fact that the
registration of the plaintiffs' trade mark did not
extend to the State of West Bengal. It was a
condition of registration that the Predecessors
of the plaintiffs which included Smt. Kamla
Devi, shall not use the trade mark in the State of
West Bengal. However, the dissolution deed
dated 10.11.74 contained clause (3) that Smt.
Kamla Devi will use the trade mark in the State
of West Bengal. Smt. Kamla Devi being under
the undue influence of her father in law Ganga
Bishan and brother in law Mool Chand,
remained silent. The said deed of dissolution is
therefore, void because of:
a) No one can pass a better title than he
himself has. The same is not binding on Sh
Rameshwar Lal and the defendants.
b) Mool Chand or any one else can not be
above the law/the Registrar of Trade
Marks to allow Kamla Devi to use the
mark in the State of West Bengal.
Result: Application Dismissed. Page 4 of 146
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c) The said dissolution deed contained the
particular clause in question was fraud on
Kamla Devi and it has no over riding effect
on statutory rights acquired by the
defendants predecessor in title on the basis
of his prior invention, adoption and use of
the trade mark.
d) The said deed is a void one which can
not be enforced in law.
e) The parties are not following
materichial system of family.
f) Smt. Kamla Devi no where debarred her
children to inherit their fathers' property
including the trade mark.
g) Defendants are registered proprietors of
the trade mark within their own right.
Statutory rights are superseded the
contractual rights."
A.1. The above has been sought to be substituted with para
1B and its sub paragraphs (a) to (d) which are also set out here under:
"1B. That the deed of dissolution dated
16.11.1974 alleged to be signed by Smt. Kamla
Devi Aggarwal, is a forged, concocted and
manufactured document. Smt Kamla Devi
Aggarwal had never signed any such dissolution
deed. In fact, on the said particular day I.e
16.11.74, Smt. Kamla Devi was in hospital at
Calcutta due to abortion suffered by her and
consequently she had to be operated upon. Smt
Kamla Devi remained as a partner in the firm
Chand Mal Ganga Bishan even in the
subsequent years after the year 1974, as is
Result: Application Dismissed. Page 5 of 146
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apparent by the Income Tax Returns, the
accounts of partnership in the hand writing of
Shri Mool Chand father of plaintiff and other
documents relating to trade mark registry. The
alleged dissolution deed dated 16.11.1974, could
not have been executed in the year 1974 because
in the said dissolution deed, the application No.
285062 has been referred as "registered
trademark" No. 285062 at several places. In
fact, the above said application was registered
only in the year 1981. This fact shows beyond
any doubt that the dissolution deed has been
fabricated definitely after the year 1981. That
there could not have been a dissolution deed in
the year 1974, is further proved by the following
few facts. Among the above said facts:
a) That the Registrar of trademark was
never informed about the change in the
constitution or about the alleged
dissolution deed dated 16.11.1974 prior,
till the year 1985.
b) In the year 1977, Shri Mool Chand
sworn an affidavit that he is one of the
partner of M/s Chand Mal Ganga Bishan
and filed the said affidavit on behalf of the
said firm.
c) Even bank at Bikaner is still having a
running account of M/s Chand Mal Ganga
Bishan, showing Smt. Kamla Devi
Aggarwal as one of the four partners, in
the year 1999.
d) That in the year 1977 itself, Shri Mool
Chand filed a counter statement (TM6)
before the Registrar of Trade Marks
Result: Application Dismissed. Page 6 of 146
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showing himself, as one of the partners of
M/s Chand Mal Ganga Bishan."
B. Substitution of two lines in para 1C of the written
statement was also sought for. Same are as under;
"Therefore, after dissolution of the firm, the mark was
abandoned and it was a defunct mark with no rights under the law."
B.1. The lines that were substituted in the existing written
statement are as under:
"That there was no dissolution deed, which was ever
signed or executed by Smt. Kamla Devi Aggarwal in the year 1974, hence
she continued to be a partner in the firm M/s Chand Mal Ganga Bishan."
C. The last three lines of para 1D were also sought to be
substituted. The existing last three lines of para 1D are as under:
"As regards Smt. Kamla Devi it is to submit that after
retirement from the firm on 16.11.74 she never carried on any business
either alone or in partnership."
C1. The amendment sought is as under:
"That since the alleged dissolution deed dated 16.11.74
is a bogus and fabricated document, the question of retirement of Smt.
Kamla Devi Aggarwal does not arise at all. It is a different thing that since
beginning she has been taking very less interest in the daytoday running
of the business. She used to get her profit and loss by way of getting
statement of accounts signed by Shri Mool Chand from time to time."
D. In paragraph 1L two lines as under were sought to be
substituted viz;
"It is, however, not admitted that the dissolution of the
Result: Application Dismissed. Page 7 of 146
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firm on 16.11.74, Shri Mool Chand became sole proprietor of the mark."
D1. Following three lines are sought to be substituted viz;
"It is denied that by virtue of alleged dissolution of the
firm on 16.11.74, Shri Mool Chand became the sole proprietor of the mark.
In fact, there was no dissolution on 16.11.74."
E. Substitution of two lines in para 1M which are as
under was sought viz;
"After the dissolution of the firm on 16.11.74, in which
Smt. Kamla Devi Aggarwal, she is not carrying on any business any where
in India."
E1. The substitution of above was sought with the following
four lines viz;
"That alleged dissolution deed dated 16.11.74 is a false
fabricated and manufactured document. Smt. Kamla Devi remained as
partner in M/s Chand Mal Ganga Bishan, even in subsequent years also."
F. One line in paragraph 1O which is as under was
sought to be substituted viz;
"The trade mark, after the dissolution of the firm on
16.11.74, never came to Shri Mool Chand and Shri Mool Chand never
brought himself on record as a sole proprietor of the mark during his life
time."
F1. The above lines are sought to be substituted with
following seven lines viz;
"That there was no dissolution of the firm M/s Chand
Mal Ganga Bishan, on 16.11.74 and Shri Mool Chand never became as
sole proprietor of the trademark HALDIRAM BHUJIAWALA and never
Result: Application Dismissed. Page 8 of 146
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claimed as a sole proprietor during his life time, before any Government
Authority any where in India. He always acted as a partner of M/s Chand
Mal Ganga Bishan till his death."
G. Few averments made in paragraph 1P which are as
under were sought to be substituted, viz;
".....Smt Kamla Devi is not using the trade mark and
she is not prosecuting any business profession or calling. It is incorrect that
Shri Ganga Bishan was the first inventor, adopter and user and proprietor
of the trade mark. He never claimed so during his life time either before or
after the dissolution of the firm on 16.11.1974 rather he had supported the
original invention, adoption and use of the trade mark by Sh. Rameshwar
Lal, Sh Ganga Bishan and Mool Chand never disputed the right of Sh
Rameshwar Lal to the trade mark used by him since 1958. After the
dissolution deed dated 16.11.1974, Sh Mool Chand never brought himself
on record as sole proprietor of the trade mark."
G1. Following is sought to be substituted viz;
"That there was no dissolution of firm M/s Chand Mal
Ganga Bishan in the year 1974 and Smt. Kamla Devi remained as partner
even in the subsequent years and had been getting her statement of
accounts showing her share in the Profit and Loss Account of the firm even
after the year 1974. Shri Ganga Bishan and Shri Mool Chand never
claimed either before the year 1974 or after the year 1974 that they are the
exclusive and sole owners of the trade mark HALDIRAM BHUJIAWALA
during their life times. Actually, after the death of Shri Mool Chand the four
partners of the plaintiffs wanted to get the registered trademark transferred
in their name. And when the Registrar asked the four partners, how they
had become owners of the mark and asked the plaintiffs to furnish the
documentary prove of ownership. At that particular time in or around the
year 1985 or so, the alleged dissolution deed dated 16.11.74 was fabricated
and manufactured by the plaintiffs."
Result: Application Dismissed. Page 9 of 146
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H. Following lines of para 5 of written statement were
sought to be substituted;
"After dissolution of the firm on 16.11.1974 the mark
was abandoned by Shri Mool Chand, since he never got his name on
record, it was a defunct mark and therefore, the plaintiffs are not entitled to
any right with regard to the mark which was abandoned by their father
through whom they now claim title to the mark. Allotment of the territory of
West Bengal to Smt. Kamla Devi was a fraud on her, against the condition
of registration and hence illegal."
H1. Same is sought to be substituted with the following
lines viz;
"That there was no dissolution in the year 1974 and
Shri Mool Chand never became as sole proprietor of the trademark
HALDIRAM BHUJIAWALA, had he become the sole owner of the
trademark HALDIRAM BHUJIAWALA in the year 1974 by virtue of said
alleged dissolution deed, he could have claimed so before the Registrar of
trademark or before the Sales Tax Department or before the Income Tax
Department or before the Registrar of firm. Since the alleged dissolution
deed never came into existence, the question of allotment of territory of
West Bengal to Smt Kamla Devi Aggarwal does not arise at all."
I. The entire para 10 of the written statement was also
sought to be substituted. The existing para 10 is as under:
"The contents of para 10 of the amended plaint are
denied being incorrect. Looking into the facts and circumstances of the
case mentioned above, Shri Ashok Kumar is not bound by the terms of the
dissolution deed dated 16.11.1974. The authenticity of the said deed has
been dealt within the above paragraphs and needs no repetition."
I1. The above is sought to be substituted with the
Result: Application Dismissed. Page 10 of 146
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following contents viz;
"The contents of para 10 are denied being incorrect. It
is specifically denied that there was any dissolution deed dated 16.11.1974
signed by Smt. Kamla Devi Aggarwal. That the said dissolution deed is a
forged, fabricated and manufactured document. Hence, the defendant
before this Court is not bound by any such fabricated dissolution deed."
J. Lastly, the existing verification clause is also sought to
be amended wherein the verification to the amendment sought is made.
2. This application was considered and allowed by the
orders of Ld. Predecessor dated 22.1.2005. The permission was granted to
the defendants to file amended written statement within 10 days from the
date of said order. The ld. Trial Court was of the view that 'withdrawal of
admission was not sacrosanct'. It was observed that terms of the alleged
dissolution deed are totally lopsided and exfacie unfair. It was observed
that no records of amicable settlement of accounts of dissolved firm were
placed. It was further found that during lifetime of Sh Mool Chand, no
averment was made before any Court or proceeding that firm stood
dissolved. It was observed that statement of account reflecting Kamla Devi's
share in the profit and loss was sent to her even as late as 1979. It was
further observed that dissolution deed surfaced only after the death of both
Sh Ganga Bishan and Sh Mool Chand during the writ petition no. 35/80
before Hon'ble High Court of Rajasthan. The writ is silent on the dissolution
deed. It was further observed that there is nothing on record to form that
Smt. Kamla Devi herself asserted to dissolution of firm. The letter of
Result: Application Dismissed. Page 11 of 146
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authorization in favour of Sh Janki Dass, employee of the firm was found
to be controversial. Further more, the vakalatnama in this matter was
executed only by Sh Mool Chand and Sh Shiv Kishan as partners of the
firm M/s Chand Mal Ganga Bishan. Further renewal of the trade mark in
1979 was done in the name of the firm, Kamla Devi included. Cumulative
effect of all these factors were considered and hence the proposed
amendments were allowed.
3. This order was challenged in CM(M) No. 402/2005 in Hon'ble High
Court of Delhi by the defendants herein. The Hon'ble Delhi High Court was
pleased to set aside the order of this Court by its order dated 12.9.2007
Following was observed viz;
"The learned trial judge while dealing with this
application observed that Court was to see that by
allowing the defendants to take inconsistent stand or
alternative plea does not result in displacing the
plaintiff from admission made by the defendants in
their earlier written statement. While applying this
ratio learned trial judge held that it had not been able
to come across categorically of any procedure before
any Court by Kamla Devi herself that the firm stood
dissolved. It was further held that Kamla Devi had
been saying at the topper voice that she has not
executed any dissolution deed and that her signatures
were forged. I am not in agreement with such findings
of the trial judge as I am of the view that if it was so
what prevented the defendants from taking such plea
in their written statement. Not taking this plea for 8
years and that too taking inconsistent pleas itself
Result: Application Dismissed. Page 12 of 146
Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
displaced the plaintiff case. If amendment as claimed
by the defendants respondents are allowed at such
belated stage making out entirely different case than presented in the original written statement, would seriously hamper the trial and such amendment would be contrary to the catena of decisions rendered by the Apex Court as referred to above. Therefore, I am of the opinion that learned trial judge erred in allowing the application of the defendants. The impugned order in that regard can not be sustained and is liable to be set aside. Consequently, while allowing the petition the impugned order is set aside."
4. This order was again challenged by the defendants by way of SLP (C) no. 2272822729/2007. The Hon'ble Apex Court vide order dated 1.10.08, was pleased to direct that till the time the issue is decided in accordance of its directions, the amended written statement will be kept in a separate file and will be taken into account only as and when trial begins and after the stage of proving the deed of dissolution is reached and as and when a prima facie case of forgery is made out during trial. The relevant directions are reproduced as under viz;
"In a pending suit No. 188/2003 in the Court of Additional District Judge, Delhi, filed by Anand Kumar Deepak Kumar and others against Haldiram Bhujiawala, an application was made by the defendant to amend the written statement. It may be mentioned that in the original written statement, it was stated that the deed of assignment was signed by Kamla Devi out of respect. Later on, by way of amendment, it was stated that the deed of dissolution Result: Application Dismissed. Page 13 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 was signed out of coercion. We are not concerned with the first amendment which was allowed to the written statement. However, on 5th October, 1999, an application for amendment was preferred by the appellants herein under Order 6, Rule 17 of C.P.C, inter alia, seeking permission to amend the written statement in view of subsequent developments set out in the said application.
It is this application dated 5th October, 1999 which is the germ of the present dispute. By this application, the earlier statement made in the written statement that the deed was executed under coercion was sought to be substituted by the statement and plea that "the deed was forged". narrow question that arises for determination is whether the trial Court was right in allowing the application for amendment dated 5th October, 1999 ? It may be stated that by the impugned judgment, the High Court has reversed the judgment of the trial Court granting the said amendment.
We have gone through the impugned judgments, both of High Court as well as of the trial Court, on this point. On going through the judgment of the trial Court, we find that while allowing the amendment application, the trial Court has relied upon number of documents and has in effect given a finding almost touching upon the merits of the case. Further, we find that in para 49, the trial Court has stated that circumstances exist in this case which should allow admission of certain facts to be corrected. In our view, the trial Court had erred in allowing the amendment application for the reasons it has given, namely, it has gone into virtually the merits of the case and sought to correct the existing admission vide the impugned order.Result: Application Dismissed. Page 14 of 146
Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 In our view, however, we can proceed in this case on the footing that on the relevant date there was a statement in the written statement to the effect that "the deed of dissolution is executed under coercion".
If the trial Court proceeds on the issue arising from that statement, at the stage of trial, the burden would be on the respondent herein to prove the execution and the contents of the document, namely, deed of dissolution, dated 16th November, 1974. Proving of the document involves proving of execution of the document as well as proving of its contents (see AIR 1983 Bombay 1). At the stage of proving the execution of the document, it would be open to the appellants herein to cross examine the witness on the question of execution as well as its content. In that regard, they can rely upon material in their possession and if the trial Court finds that there is prima facie case of forgery, it can certainly given an opportunity to the defendantappellants herein to file an additional written statement and it would be open to the trial Court also to frame an additional issue at that stage.
We are informed that the trial has not yet commenced.
In the light of what is stated above, we are of the view, therefore, that ends of justice would be subserved if, at the stage of proving of the document in question, the trial Court finds that there is a prima facie case of forgery then it may allow the appellants herein to file additional written statement and the Court may then frame such additional issue.
Before concluding, we may state that on 29th January, 2005, the appellants herein have filed amended written statement in pursuance of the order of the trial Court. The said written statement will be kept on record in a separate file. That written Result: Application Dismissed. Page 15 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 statement will be taken into account only as and when the trial begins and only after the stage of proving the deed of dissolution is reached and as and when the prima facie case of forgery is made out during the trial.
We have been informed that issues have been framed on the basis of the amendment to the written statement which has been allowed by the trial Court. It is, therefore, made cleat that issues will have to be recast in the light of this order."
5. Subsequent thereafter, the evidence of PW 1 was partially recorded by Ld. Predecessor of this Court. Subsequently by the order of Hon'ble Apex Court dated 1.10.08, the Ld. Predecessor of this Court passed an order of appointment of local commissioner dated 19.8.2011. Further evidence of PW 1 was recorded by the Ld. Local commissioner. During his evidence, defendants herein filed an application dated 24.11.09 for taking on record the amended written statement dated 29.1.05 and framing additional issues in terms of order dated 1.10.08 passed by the Hon'ble Apex Court which have been earlier referred to in this order. It was moved on the premise that the stage as contemplated by the Hon'ble Apex Court has reached and cross examination conducted till that time prima facie showed, according to the defendants, that the alleged deed of dissolution is a forged and fabricated document. The grounds in short are provided in para 16 (i) to (xxiii). However, the same, in the order of the sequence, have been provided in para 17 (i) to (xxxiv) of the application which are set out below Result: Application Dismissed. Page 16 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 for reference. These are as under;
"17. That evidence of the witness r/w documents on record of the Court file prima facie shows that the alleged Dissolution Deed dated 16.11.1974, copy whereof only stands filed, is a forged and fabricated document. The various attendant circumstances, mentioned herein below complete the sequence, which unequivocally prove that alleged Dissolution Deed dated 16.11.1974 is a forged and fabricated document:
(i)Smt. Kamla Devi Aggarwal even subsequent to the year 1974 and more particularly till the year 1979, had been getting her Statement of Account, showing her share in the Profit & Loss Account of the firm, namely M/s Chandmal Ganga Bishan, a fact admitted by PW 1 in the trial.
(ii)Smt Kamla Devi Aggarwal between 15.11.1974 and 17.11.1974 was admitted in a Nursing Home at Calcutta - Discharge Card from the Nursing Home is ample evidence of the fact that the Dissolution Deed purportedly signed on 16.11.1974 is a fabricated and forged document.
(iii)Certificate dated 8.6.99 issued by State Bank of Bikaner at Bikaner certifying that Current Account No. 1841 in the name of M/s Chand Mal Ganga Bishan has been opened in 1970 the same of which is still in operation at its Branch, with the partners being shown as Shri Ganga Bishan, Shri Mool Chand, Shri Shiv Kishan and Smt Kamla Devi, a fact admitted by PW 1 in the trial.
(iv)Affidavit of Shri Mool Chand Aggarwal dated 27.12.1997, before the Registrar of Trademarks at New Delhi (in response to certain objections Result: Application Dismissed. Page 17 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 against the registration of Trademark, "HALDIRAM BHUJIAWALA - HRB" by Chandmal Banga BISHAN, wherein Shri Mool Chand Aggarwal states that he is one of the partner of the firm, M/s Haldiram Bhujiawala also trading as Chandmal Ganga Bishan. No reference is made to the alleged Dissolution Deed dated 16.11.1974, to which deed, Shri Mool Chand Aggarwal was also purportedly a signatory thereto. This conduct of Mool Chand Aggarwal clearly shows that said firm had not been dissolved on November, 16, 1974, affidavit along with the contents stand admitted by PW1 in the trail.
(v)Counter Statement dated 25.05.1976 filed by Ganga Bishan Aggarwal, Mool Chand Aggarwal, Shiv Kishan Aggarwal and Smt. Kamla Devi Aggarwal before the Registrar of Trademarks at New Delhi in response to certain objections filed for registration of trademark No. 285062. In this affidavit also, no reference is made to any dissolution of the firm; M/s Chand Mal ganga Bishan, least of all, the purported dissolution deed dated 16.11.1974.
(vi)Affidavit of Shri Ganga Bishan dated 26.6.1976 in the City Civil Court at Calcutta in certain Civil proceedings instituted by Shri Rameshwar Lal Aggarwal wherein Shri Ganga Bishan confirms that he has authorized his son i.e Rameshwar Lal Aggarwal to use his name as his trading style pursuant to which, the name "Haldiram" acquired wide reputation and goodwill amongst the trade and public. It was further stated in the affidavit Result: Application Dismissed. Page 18 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 that trade name "Haldiram Bhujiawala"remains the exclusive property of Shri Rameshwar Lal and no one except his own sons have any right to use his name "Haldiram" in any manner. It is pertinent to note that even on this date i.e 26.6.1976, no reference has been made to the alleged Dissolution Deed dated 16.11.1974, once again demonstrating the falsity of the said document.
(vii)Alleged Will dated 3.4.1974 relied upon by the plaintiff in their plaint. Without Prejudice to the contention of the defendants with regard to the genuineness or veracity of the said will, the said Will allegedly executed by Sh. Gang Bishan in any event has given rights to Shri Mool Chand to use the name of Haldirm, at Bikaner only and not for any other State in India and Shri Rameshwar Lal Aggarwal (father of Defendant no. 2) and Shri Sat Narain have been permitted to use the name of "HALDIRAM" throughout India except Bikaner. By virtue of the said Will (if assumed to be true), even the legal heirs and the sons of Shri Mool Chand have the right to use the goodwill of Haldiram at Bikaner only and have no right to use the trademark outside Bikaner. Such will despite being pleaded in the plaint, for reasons best known to the plaintiff or PW1, does not find mention in the evidence of PW1.
(viii)Application for registration of the trademark "HALDIRAM BHUJIAWALA" was made by the partnership firm namely M/s Chandmal Ganga Bishan on 29.12.1972 and after the objections were dismissed (for Result: Application Dismissed. Page 19 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 which affidavits were filed by Shri Ganga Bishan Aggarwal and Shri Mool Chand Aggarwal in 19761977 respectively) trademark "HALDIRAM BHUJIAWALA - HRB" was registered in the name of the firm on 27.1.1981, at which point of time also, partners of the firm were shown as Shri Ganga Bishan Aggarwal, Shri Mool Chand Aggarwal, Smt. Kamla Devi Aggarwal and Shri Shiv Kishan Aggarwal, a fact admitted by PW1 in the trial.
(ix)Even as late as in 29.12.1979, the said trademark "HALDIRAM BHUJIAWALAHRB" was renewed in the name of the partnership firm M/s Chand Mal Ganga Bishan valid till 28th December, 1986 with its 4 Partners being Ganga Bishan, Mool Chand, Shiv Kishan, Kamla Devi, a fact admitted by PW1 in the trial.
(x)Vakalatnama filed in the year 1980 before the Rajasthan High Court in certain proceedings arising out of Sales Tax cases, in which Vakalatnama, there were two signatures, namely that of Shri Mool Chand and Shiv Kishan in the capacity of "Partners of the firm M/s Chand Mal Ganga Bishan". In the same proceedings, on Shri Janki Das filed an affidavit which interalia stated "I am an employee of the Partnership firm, "M/s Chand Mal Ganga Bishan". The said documents were filed in the proceedings taken out in the year 1980, which nowhere reflected or indicated of any dissolution of the firm taking place in the year 1974, and on the contrary, the firm is shown as an existing firm.
Result: Application Dismissed. Page 20 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
(xi) In the year 1980, Shri Ganga Bishan Aggarwal passed away, till which point of time, the alleged Dissolution Deed was not referred to or placed before any Government authority and nor was any intimation given of the alleged dissolution either to the Registrar of firms or any statutory authority such as Income Tax, Sales Tax, Excise Deptt., etc nor to the banks concerned, a fact admitted and stands established in the trial of PW1 till date.
XII To XXXIV:
Since the grounds taken in para-XII to para XXXIV are not considered necessary to be exactly reproduced as the same are in unnecessary details, the contents thereof are presented cumulatively in brief. It is urged that till 1985, dissolution deed was not produced before any authority and at this time also, the trade mark was registered admittedly in name of the firm. It is stated that reproducing the trade mark as registered in the year 1974 although registered only in 1981 is an indicator of forgery. No notice was given to Smt. Kamla Devi by Registrar, Trade Marks with respect to the changes. The year 1984 appears to be rewritten on the dissolution deed and no. 8 appears to have been changed to No. 7. It is urged that the dissolution deed is unfair in respect of distribution of assets and liabilities. It is submitted that the plaintiff has not filed any balance sheet on 16.11.1974. It is also urged that the firm can not give a right which it did not possess. It is averred that there is no proof of retirement of Sh. Rameshwar Lal as Result: Application Dismissed. Page 21 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 partner of M/s Ganga Bishan Mool Chand. It is further averred that the draft dissolution deed is not produced and as per statement of PW1, it was prepared 1520 days prior to Deepavali. It would be around 24th to 29th October, 1974. If it be so, the accounts of the firm could not have been prepared uptill 15.11.74. It is submitted that Sh. Rameshwar Lal was not supposed to leave his business around Deepavali in 1974 to spend about one month in Bikaner. It is averred that there was no head office of the firm in 1974 but still mentioned so in the dissolution deed. It is averred that Ex. PW1/D6 to Ex. PW1/D8 which are statement of accounts of the firm reveal that the firm was not dissolved on 16.11.1974. It is further argued that no receipt of payment by Sh. Mool Chand to Smt. Kamla Devi with respect to dissolution has been produced. It is submitted that the relevant PWs were not aware of the pens used to sign the dissolution deed. It is submitted that plaintiffs have not produced the duly signed balance sheet as signed by all the partners on 16.11.1974.
6. In reply, it was submitted that plaintiff is yet to lead entire evidence and no opinion should be formed on partial evidence. The application is stated to be not maintainable being barred by the provisions of Indian Evidence Act. It is stated that the copy of the dissolution deed has been produced by the defendants and exhibited as ExP10 and ExP19 as admitted documents and is thus duly proved. Point wise reply has been Result: Application Dismissed. Page 22 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 ensured on all material averments i.e alleged over writing, statement of account of Kamla Devi, bank account of dissolved firm, registration of plaintiff's trade mark to the exclusion of West Bengal, discharge card of Smt. Kamla Devi, Mool Chand's affidavit dated 27.12.1977, Declaration deed of Sh Rameshwar Lal dated 16.11.1974 and letter of authority dated 27.2.1980. It has been pointedly made clear that defendants can not be permitted to withdraw from judicial admissions as already made in their written statements. Major part of the cross examination of PW 1 recorded till then has been extracted in the reply to the application. The plaintiffs have ensured that they opposed the entire application and also by demurrer whenever necessary.
7. Rejoinder was filed wherein it was asserted that PW 1 had not given the direct answers to the questions and had made repetition of his statements as if he was still in chief examination. It is prayed that such answers should not be looked into. It was submitted that the dissolution deed has never been admitted as alleged. Report of hand writing expert has been again relied upon and it is averred that forgery even in the date column of the deed can be observed by naked eye. It is again submitted that bank account of the firm still exists. Not only the deed of dissolution but the alleged declaration dated 16.11.1974 by Sh Rameshwar Lal is also said to be forged which was not filed anywhere during his life time. These documents are also assailed for the reason that no reference is made therein Result: Application Dismissed. Page 23 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 of the alleged family settlement. In short, the defendants have made sure that they reiterated the contents of the application and also deny the averments made in response thereto.
8. This application was considered by ld. Predecessor of this Court on 16.7.2011. After having considered the contentions made before it, it was observed that the plaintiffs are still to examine their witness, examination of whom is material to prove exhibition of dissolution deed. It was observed that during cross examination, nothing came out making out a prima facie case for forgery. It was thus observed that stage is not mature for allowing the application. Request was therefore declined.
9. This order was challenged in CM(M) No. 923/11 in Hon'ble High Court of Delhi which was disposed of on 9.8.11. It was held that observation of the trial Court that the cross of PW 1 prima facie did not disclose that dissolution deed was forged or fabricated suffered from an illegality as it was made without examining the entire gamut of evidence. It was thus directed that plaintiff will lead evidence on the proof of dissolution deed to prove its contents and execution in terms of order dated 1.10.08. It was directed that after the entire evidence has been led on this issue, this Court will afresh examine the entire gamut of evidence and deal with the application of the defendant as to whether the said dissolution deed is prima facie forged or fabricated and if so, whether the additional written statement and the consequent additional issue is required to be framed in view of the Result: Application Dismissed. Page 24 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 directions of Hon'ble Apex Court.
10. Subsequent thereafter, following material witnesses on the point have been examined by the plaintiff viz;
1. Sh Manohar Lal Aggarwal (PW1)
2. Sh. Shiv Kishan Aggarwal (PW2)
3. Sh. Girdhar Lal Dahiya (PW3)
4. Sh. Ankit Garg (PW 8)
5. Sh Naresh Kumar Acharya (PW 9)
6. Sh. Anil Khichi (PW 18)
11. According to Sh Rajesh Mahindru, Advocate, the plaintiffs have purposefully examined Sh Manohar Lal Aggarwal as PW 1 prior to examination of PW 2 Sh Shiv Kishan Aggarwal with an intent to have the deposition of PW 2 more convincing as his examination post PW 1 would afford them with an opportunity to tie the loose ends; plug the loop holes and fill up the lacunae left by them in testimony of PW 1. In this contextual reference it is also enunciated that the ld. Predecessor of this Court had set out the seriatum in which plaintiffs witnesses ought to have been examined but the same could not be followed for reasons that are on record and not to be looked into at this stage as already justified. It is that in all eventuality, PW 2 who is also one of the directors of plaintiff company is the sole signatory to the controversial Dissolution Deed (ExP10 & ExP19) from Result: Application Dismissed. Page 25 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the side of the plaintiff. Not only that, he is also elder to PW 1 who was very young during the period for which he has deposed. Still, Sh Shiv Kishan Aggarwal was not projected as PW 1. One more reason that has been forcefully assigned by the defendants to nail this averment completely it is perforce set forth and pointedly demonstrate by giving weightage to the age of PW 1 vis a vis the period of time for which he has deposed is that he is the only witness on the side of the plaintiffs who is educated enough to understand the nuances of Court appearance and deposition under oath and also simultaneously submit to instructions.
12. With this backdrop in mind, Sh Mahindru, Advocate has attacked on the very edifice of the chief examination of both these PWs harnessing the weapon of Section 60 of the Indian Evidence Act, 1872.
13. Qua the oral evidence given by this witness, Sh Mahindru, Advocate lays down the legal aspect that such evidence must be direct. If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. Section 60 has been subjected to a proviso, however, the same has not been referred to.Result: Application Dismissed. Page 26 of 146
Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
14. Thus, the Court has been taken through the chief examination of PW 1 followed by chief examination of PW 2 prior to touching upon their cross examination.
15. This Court has to state here itself that as it found that the arguments are not advancing in consonance with the object of the orders of Hon'ble Apex Court dated 1.10.08 as well as orders of the Hon'ble Delhi High Court dated 9.8.2011, it made it clear that it would not be appreciating such set of arguments which do not touch upon the matter in issue. The Court is however, afraid that such arguments have been still advanced and thus in sink with its observation and in its wisdom, it shall steer away from such submissions which do not assist in arriving at a conclusion as expected from it in its right earnest. To summarize such aspects in precise, it would be suffice to say that such arguments ranged from the foundation of the suit upto the proceedings till conclusion with an apparent urge of ld counsel for the parties that the Court, like them, starts reading between the lines and look for the unspoken words. The same, in my considered view, is not the right approach and is to be nipped in the bud.
16. Having said so, it was pointed out that the date of birth of PW 1 is 30.10.1954 and he has done his B.Com. He started business at the age of 17 or 18 years. He completed his graduation in the year 1973 from Bikaner as regular student. Simultaneously, he did business of namkeen, mithai and papad etc. He had formed his own firm as M/s Shiv Rattan Kamal Kumar in Result: Application Dismissed. Page 27 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 1974 prior to which he assisted in the business of his father not as an employee but as his son. Admittedly, he did not earn prior to 1974. In this contextual reference, his testimony was attacked so far it pertains to his deposition that his grand father late Sh Ganga Bishan @ Haldiram was born in 1902 and known by his nick name Haldiram since his young age and over the time he invented and adopted the trade name and mark Haldiram Bhujiawala in the year 1941 and even prior thereto. Admittedly, he came to know from his father and grand father that they are working since 1941 although he referred to have seen various records in this regard. He has also deposed about the events of 1950's. One Ganga Bishan constituted firm Chand Mal Ganga Bishan also trading as Haldiram Bhujiawala. He also deposed that firm opened account in State Bank of Bikaner, Jaipur on 8.6.1951. He also deposed that w.e.f 10.11.1958, Sh Rameshwar Lal retired from this firm and shifted to Calcutta to look after his own business that was set up by his grand father under the name and style of Haldiram Bhujiawala at Calcutta. He deposes that on such retirement, Sh Shiv Kishan became a partner in M/s Chand Mal Ganga Bishan vide deed dated 2.1.1959. According to the defendants, the above testimony is directly hit by Section 60 of the Indian Evidence Act as the witness deposes about the facts that took place prior to his birth and also facts that have taken place soon after his birth. Admittedly, he had been studying uptil 1973. It is therefore, made as a point that the facts pertaining to this period can not be Result: Application Dismissed. Page 28 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 in his personal knowledge and are merely hearsay evidence. When the ld counsel was reminded that he should stick to the evidence pertaining to the Dissolution Deed, copy of which is ExP10 and ExP19, ld counsel has taken this Court to the facts pertaining to the execution of the said deed. The deposition can be seen in para 30 and 31 of the affidavit. In 1974, it was mutually agreed between family members of Sh Ganga Bishan that the firm M/s Chand Mal Ganga Bishan also trading as Haldiram Bhujiawala should be dissolved and Sh Mool Chand was to take over the business alongwith assets and liabilities. It was agreed that Sh Rameshwar Lal and his family members would be permitted to utilize the trade mark Haldiram Bhujiawala in West Bengal only as a consequence of which Sh Shiv Rattan would relinquish his right in the assets and liabilities of the firm Haldiram Bhujiawala, Calcutta. Sh Ganga Bishan, Sh Shiv Kishan and Smt Kamla Devi would relinquish their rights and interest in business of Chand Mal Ganga Bishan and its assets and liabilities in favour of Sh Mool Chand for whole India except West Bengal. In consequence of the said settlement, this firm was dissolved on 16.11.1974.
17. The terms of dissolution were reduced into writing in the form of deed of dissolution which is stated to be admitted document, true copy of which is exhibited as ExP10 and ExP19. It has been said to be duly and voluntarily executed and signed by Sh Ganga Bishan, Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi at Bikaner in the presence of Sh Girdhari Result: Application Dismissed. Page 29 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Lal Dahiya, Sh Radhey Shyam Aggarwal and PW 1 himself and other family members. The witness deposes that he was present at the time of signing and has seen aforesaid persons signing on each page of the deed. He claims to be familiar with the signatures of these persons. He thereafter goes on to depose that the original deed was produced before the Hon'ble Calcutta High Court in suit no. 386/99 in the year 1999. Before its production, the photocopy was obtained and he thus states to identify the signature of all the persons on each page of the document and clarifies his testimony with the deposition that the deed has been admitted in the written statement and other judicial proceedings. His deposition has been strongly pointed out by the defendants to the effect that the testimony would reveal that whenever this witness is identifying the signature of those on such several documents, he refers to them as 'copies'. However, in para 31 of his chief examination he does not say that he is identifying signature on the 'copy'. It is thus projected as a pointer that at the time of such identification, witness had the original of the dissolution deed in his hands and thus his testimony of the deed having been produced in some other Court and later on lost is an after thought. Same is said to be also true with respect to deed of declaration/acknowledgment dated 16.11.1974 of Sh Rameshwar Lal, copy of which is ExP22 and ExP51 (original in TM 03/11). It is also said to be an admitted document. In para 33 of his deposition it is stated that defendants have admitted execution of deed of dissolution in their written Result: Application Dismissed. Page 30 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 statement dated 13.12.91, 4.1.92 and 18.2.92 in the present case as well as in C.O 4/92 and rectification proceedings CAL 629. Copy of C.O 4/92 is said to be an admitted document ExP56. Copy of reply dated 28.2.92 in CAL629 is also said to be admitted as ExP41. It is also said to be admitted in FAO (OS) 155/99, copy of which is said to be an admitted document ExD16. The letter of authority which is also purported to be an authorization on behalf of Smt Kamla Devi which is dated 27.2.1980 is also said to be an admitted document ExP23.
18. PW 1 has made another pointer towards dissolution when he deposes that post mutual settlement, Sh Shiv Rattan retired from Haldiram Bhujiawala, Calcutta, relinquishing all his rights therein in business in Calcutta which was in consonance with the mutual agreement and dissolution deed. The copy of the retirement deed dated 5.11.1975 is ExP15.
19. Towards another point of due and valid execution of the dissolution deed, PW 1 deposes that post dissolution, Sh Mool Chand carried business under the name of Haldiram Bhujiawala to the exclusion of Smt. Kamla Devi and used the trade mark/name above exclusively except in West Bengal while Sh Rameshwar Lal confined his business to Calcutta only.
20. The entire above testimony is said to be false in view of the fact that the firm Chand Mal Ganga Bishan was never dissolved and in any case the non production of original vitiates the case of the plaintiffs. It is submitted Result: Application Dismissed. Page 31 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 that Sh Mool Chand never acquired any exclusive right to use the trade mark Haldiram Bhujiawala from 1974 onwards.
21. Qua income tax assessment record of Smt Kamla Devi for the years 197677, 197778 and 197980 it is submitted that the same does not in any manner show or prove the dissolution of the firm Chand Mal Ganga Bishan.
22. With respect to the testimony of the witness pertaining to the proceedings in D.B Sales Tax case no. 35/80 at the High Court of Rajasthan, for which witness deposes that letter of authority was given to Sh. Janki Dass Gandhi by Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi as ex partners of the dissolved firm, which is submitted to be an ex facie false. It is submitted that original letter of authority in the manner executed and filed has not been proved.
23. Witness deposes that copy of certified copy of letter of authority was obtained on 15.9.1999 which was filed in case 386/99 in Hon'ble High Court of Calcutta in case titled Smt. Kamla Devi Aggarwal v Sh Shiv Kisahn Aggarwal. Smt Kamla Devi was one of the parties to said case which relates to assessment order of the firm Chand Mal Ganga Bishan pertaining to assessment years 197172 and 197273. This is also said to be an admitted document by PW 1 which is ExP23.
24. This is also a controversial document regarding which a criminal case is pending in the Court of Ld. CJM, Jodhpur against Smt. Kamla Devi. This testimony is assailed by the defendant on the ground that no such letter of Result: Application Dismissed. Page 32 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 authority was ever executed by Smt Kamla Devi and that PW is silent as to who obtained the certified copy from High Court of Rajasthan, Jodhpur making his testimony as hearsay.
25. Ld. counsel for the defendants have attempted to read almost entire chief examination of this witness as well as cross examination despite caution that Court will be concerned only with proof of execution and contents of dissolution deed with a prima facie pointer to averment of forgery. Nevertheless, the relevant parts have been set out by this Court.
26. Ld. counsel for the defendant had also read earlier affidavit of PW 1 which was not tendered in the evidence and had stressed upon para 31 thereof. It is pointed out that there are substitutions in the new para 31 of the supplementary affidavit ExPW1/A. In the old affidavit it was stated that the original dissolution deed is either filed in some other legal proceedings as are pending between the parties or lost/misplaced and is not traceable. It was deposed specifically that the original is not in power and possession of PW 1. The above omission in para 31 of the supplementary affidavit is said to be a deliberate attempt on the part of the defendants to subwert justice.
27. The Court was thereafter taken through the affidavit of PW 2 Sh Shiv Kishan Aggarwal which is ExPW2/A. This witness is one of the signatory to the dissolution deed dated 16.11.1974. He was examined by local commissioner for the reasons on record. He deposes to be plaintiff no. 2 and one of the directors of plaintiff company. It is pointed out that the witness Result: Application Dismissed. Page 33 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 has deposed in the affidavit that Sh Ganga Bishan @ Haldiram adopted and used the mark Haldiram Bhujiawala since 1941 or prior thereto. It is submitted that in para 1A of the plaint, reference only to the above trade name has been made and not the mark. The defendants have challenged this statement on the ground that it is based merely on hearsay. This witness was 72 years old only as on the date of his chief examination and thus his testimony regarding the incidents prior to his year of birth can not be proved through him. It is submitted that in cross examination, the witness claims to have studied only upto 5th standard and he can not read and write English language. He can merely read and write few words and sentences in English language. This witness attempted to read his affidavit but could not understand the whole and therefore, it was explained and briefed to him by his counsel before it was filed. In his further cross examination, he states to be not aware about the contents of the plaint filed in this case as the same is perused by his younger brother i.e PW 1. He is not aware as to how many times the plaint was amended. Ld counsel for the defendant has again stated that major part of his testimony is not in accordance of Section 60 of the Indian Evidence Act. It is submitted that though the witness deposes that firm Chand Mal Ganga Bishan trading as Haldiram Bhujiawala was dissolved, however, the non production of the original document is fatal to the plaintiffs' case. The witness deposes that on the relevant date i.e 16.11.1974, he was present at his family residence at Bikaner when this Result: Application Dismissed. Page 34 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 deed was executed and signed by Sh Ganga Bishan, Sh Mool Chand, Smt. Kamla Devi and him in the presence of each other and duly witnessed by Sh Girdhari Lal Dahiya and Sh Radhey Shyam Aggarwal and further in the presence of Sh Janki Dass Gandhi, Sh Rameshwar Lal Aggarwal, Sh Manohar Lal Aggarwal (PW1) and other family members. It is contended that the witness has not deposed in chief as to the dates on which he made deposition regarding prior adoption and use of the trade mark Haldiram Bhujiawala. It is further averred that this witness can not prove that PW 1 further purchased the stamp papers used for preparation of the dissolution deed from stamp vendor namely Sh Tola Ram Nahata of Bikaner. The certified copy of the entry in the stamp vendor register is ExPW2/1. It is averred that it can not be proved through PW 2.
28. It is further submitted that chief examination of this witness would reveal that he has identified the deed of dissolution and not its copy. It is submitted that in para 13, the witness claims to be identifying this document copies of which are Ex P10 and ExP19. It is submitted that on the date of preparation of his affidavit the original deed must have been in his hands and that is why he deposed that he is identifying the "deed of dissolution"
and does not refer to as a 'copy' of the said deed. He further deposes that it was recorded in accordance of the mutual agreement between the parties which was read over and explained in Hindi to all the parties by Sh Janki Dass Gandhi who was like a family member. It is submitted that the witness Result: Application Dismissed. Page 35 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 is silent as to where the deed of dissolution was prepared as he merely states that it was signed by the parties on 16.11.1974 at his residence. It is submitted that deposition of the witness to the effect that all the parties had signed the same out of their free will and without pressure and undue influence can not be accepted as the witness is reflecting the state of mind of others which is not permissible under Section 60 of the Indian Evidence Act.
29. The witness further deposes that in pursuance to the deed of dissolution and after the death of Sh Ganga Bishan in 1980, letter of authority (ExP22) was purportedly executed on 27.2.1980 and signed by ex partners of the dissolved firm for authorizing Sh Janki Dass Gandhi to prosecute the sales tax legal cases of the dissolved firm. The witness identifies the signature of Sh Mool Chand and Smt. Kamla Devi on the said document as well as his own signature. He deposes to have obtained the certified copy of this letter of authority on 15.9.99 as the original of it containing three signatures was filed in the Jodhpur High Court. He further deposes that office of Commercial Tax Officer (CTO) Ganga Nagar, Rajasthan sent a letter dated 26.8.1986 to the Chartered Accountant of the dissolved firm which was retained by Sh Shiv Kishan Aggarwal, original of which was filed in suit no. TM 03/11 of which the certified copy was sought to be proved as ExPW1/60. He deposes that in 1986 a writ petition was filed in Hon'ble High Court of Rajasthan, certified copy of which was filed Result: Application Dismissed. Page 36 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 in suit no. TM 03/11 and copy of which on the record of this case is ExPW1/61. An appeal was filed by the Sales Tax authorities, copy of the same is sought to be proved as ExPW1/63.
30. Witness further deposes that in terms of the mutual settlement, his brother Sh Shiv Rattan Aggarwal retired from the Calcutta firm M/s Rameshwar Lal Shiv Rattan and relinquished all his rights in trade mark Haldiram Bhujiawala vide copy of the retirement deed ExPW1/15. It is claimed that Sh Rameshwar Lal confined his business to Calcutta only while Sh Mool Chand and his sons expanded the same from Bikaner to other parts of the country. Smt. Kamla Devi did not carry on any business after dissolution of this firm. Besides the above, the witness also deposes that on 16.11.1974, Sh Rameshwar Lal also made a deed of declaration in the presence of persons already there including him, copy of which is ExP51.
31. The above testimony has been also assailed by ld counsel for defendant primarily on the ground that the same is in contravention of Section 60 of the Indian Evidence Act and witness has failed to prove the dissolution deed or for that matter the declaration deed.
32. Regarding the clause of verification, it is submitted that it does not specify as to which paragraphs are based on personal knowledge and which one on the basis of records. It is said to be defective.
33. After the above comparison of the chief examination of PWs 1 & 2, Result: Application Dismissed. Page 37 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the Court was taken through the lengthy cross examination of both these witnesses.
34. This Court has already pointed out that the defendants have sought to demonstrate that PW 1 is well educated to understand the nuances of cross examination. It was thus pointed out that the testimony of witness that he was assisting his father in business activities prior to 1974 is improbable as he had been studying since 1973 and hence his knowledge regarding the previous period is questionable. Admittedly, he started his own firm under the name and style of M/s Shiv Rattan Kamal Kumar in 1974. Further admittedly, he was not making any income prior to 1974. Regarding his father namely Sh Mool Chand Aggarwal, he admittedly studied upto 5th or 6th class. He started his business after 1940 at the age of 16 or 17 years as assistant to his grand father. His grand father, in turn started his business in the year 1941 prior to which he was working with his own father. He claims that his grand father Sh Ganga Bishan was also known as Haldiram. Stress here is made by the defendants upon assertion of PW 1 that the deposition pertaining to his grand father's activities regarding business from 1941 i.e prior to his birth in the year 1954 were told to him by his own father, grand father and his deposition was on the basis of records. According to the defendants, it is this assertion that the witness which makes his testimony on the above aspect as hearsay and thus not admissible. His testimony is further assailed on the ground that admittedly, PW 1 could have not seen Result: Application Dismissed. Page 38 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the registration of the firm that his grand father started in the year 1941. His deposition is to the effect that he had seen some bill books and rent receipts. He also states to have seen the record of the Municipal Board, Bikaner in this context. He had seen these records in the year 1970 or 1971. This fact is not mentioned in the plaint. In any case, the license issued by the Municipal Board, Bikaner is not on record. Regarding the nick name of grand father of PW 1, it is asserted that he used to be called as Haldiram. He claims to have seen the document of the year 1945 wherein his name is recorded as 'Ganga Bishan @ something like Haldiya'. The defence has tried to establish through his cross examination that the witness is unsure as to when he became partner in the firm Shiv Rattan Kamal Kumar. It is so as at one point he claims to have joined this firm in the year 1977. The intention behind such cross examination is to suggest that witness was not connected with the business of his father/grand father prior to 1977. It is established that admittedly PW 1 has never been partner in M/s Chand Mal Ganga Bishan. It was also asserted that the partnership deed is silent as to whether Chand Mal Ganga Bishan carried its business under the trade name Haldiram Bhujiawala. The registration of trade mark for firm Chand Mal Ganga Bishan was applied for in the year 1972. The opposition proceedings no. DEL 2106 were pending which were decided in the year 1980 and registration certificate was issued in the year 1981. The registration certificate was issued in the name of Sh. Ganga Bishan, Sh.
Result: Application Dismissed. Page 39 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Mool Chand, Sh. Shiv Kishan and Smt. Kamla Devi trading as Haldiram Bhujiawala and also as Chand Mal Ganga Bishan. Sh Mool Chand died in the year 1985 while Sh Ganga Bishan in the year 1980. As per the averments, the firm itself came to be dissolved on 16.11.1974. It was tried to be established that dissolution of the firm was not intimated to the Registrar concerned . It was tried to be established that if Sh Mool Chand got exclusive rights then he did not represent so before the Registrar, Trade Marks. The witness asserts that such representation was duly made. In 1975, when his grand mother Smt. Champa Devi died, their Advocate Sh R.N Prabhakar visited Bikaner where his father handed over all the documents to him including their affidavits, copy of dissolution deed and other documents to be provided to the Registrar, Trade Mark. It is apparent that no such rectification entry was made in the records of the Registry and even PW 1 states that Sh Prabhakar Advocate committed fraud. During pendency of the registration application of firm Chand Mal Ganga Bishan which was applied for in the year 1972, Sh Prabhakar, Advocate also applied for registration of same trade mark on behalf of Sh Rameshwar Lal of Calcutta in the year 1977. Sh Prabhakar Advocate, being close to Smt Kamla Devi, intended to defraud them in the matter of issuance of their registration certificate and thus he did not disclose to the trade mark Registry about the dissolution deed and also did not file any information on behalf of Sh Mool Chand. On being further grilled, the witness stated that Result: Application Dismissed. Page 40 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 no complaint was lodged against Sh Prabhakar as he had already pleaded sorry for his conduct. PW1 claims to have derived the knowledge about this fraud only in 1991. They had forgiven Sh Prabhakar. No such apology was demanded in writing. PW 1 asserts that fact regarding knowledge of fraud of Sh Prabhakar was post filing of this suit. In this context, the attention of the witness was drawn to the factum of application of renewal of TM No. 285062 which was applied on behalf of Sh Ganga Bishan, Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi and accordingly, the trade mark was renewed for 7 years w.e.f 29.12.1979. Regarding this also, the witness deposed that it came to the knowledge only in the year 1991 that Sh R.N Prabhakar, Advocate had applied for renewal fraudulently in the name of old firm.
35. The witness also stated that it was Sh R.N Prabhakar, Advocate only who, after the death of his father, suggested that he will apply for transfer of the trade mark in his name and his other three brothers. They had accordingly applied for the same in the year 1985. It was also sought to be set out that in the opposition proceedings by firm Haldiram Madan Lal, Sh Mool Chand filed an affidavit in the year 1977 describing himself a partner of the dissolved firm. The narration of the witness is that such description was given at the instance of Sh Prabhakar who stated that since the application pertained to the year 1972 as such, such representation had to be made. The cross examination was with an objective to establish that firm Result: Application Dismissed. Page 41 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 existed in the year 1985 and therefore, the story set up regarding its dissolution in 1974 is itself not sustainable.
36. It is pointed out that witness states to be not in possession of the dissolution deed as the same is misplaced and untraceable or the same is lost. On the strength of this, it is submitted that the original deed has never been produced and the averment that the defendants have admitted the photocopies of the same which are ExP10 and ExP19 is misplaced. It is pointed out that the witness did not lodge any complaint for misplaced/untraceable/lost dissolution deed. The witness voluntarily asserted that he had handed over the original dissolution deed dated 16.11.1974 to Sh Mool Chand Chopra about 8 or 9 years ago on the date of such deposition i.e 1.10.09. Sh Mool Chand Chopra was the then employee of his brother Sh Shiv Rattan Aggarwal. It is claimed that certified copy of authority letter dated 27.2.1980 bearing three signatures of Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi as well as the original trade mark certificate no. 285062 were given to Sh Chopra to lodge the complaint against Smt. Kamla Devi for tampering with the judicial record in Hon'ble High Court at Jodhpur. According to the witness, Sh Mool Chand Chopra had informed him that the dissolution deed and other documents were filed in some subordinate Court at Jodhpur. The witness further stated that these documents were taken by the police at Jodhpur. He further stated that he had been contacting Sh Mool Chand Chopra for last one or two years for Result: Application Dismissed. Page 42 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 return of original dissolution deed but he has been putting off the matter on one pretext or the other and informed that he had already taken out the same from the Court of Jodhpur. The witness stated that for the last one or one and a half year, he has been telling PW 1 that the same is misplaced, not traceable or lost. It was asserted that record of employment of Sh Mool Chand Chopra has not been produced on record. Said Sh Chopra was not in employment of his brother since last one and a half or two years as on 1.10.09. The witness admitted that he did not take any action against Sh Chopra and when they put pressure on him, he left the employment of his brother. The witness was promptly cross examined that the original dissolution deed is in his possession and is deliberately not filed as forgeries are apparent from the same. Of course, the suggestion was denied.
37. The witness was also grilled on the aspect that he or for that matter, the other signatories to the dissolution deed, Sh. Rameshwar Lal and Smt. Kamla Devi could not have traveled to Bikaner for execution of the dissolution deed as the period was around the festival of Deepavali. It has been demonstrated that at the relevant time it took almost three days to travel from Calcutta to Bikaner by rail. The witness admitted that during the Deepavali, it is heavy season for sweet sellers till upto a day prior to Deepavali. Discrepancies have been pointed out between the statement of PW 1 and PW 2 in this context.
38. It has been also set out that from the cross examination of these PWs, Result: Application Dismissed. Page 43 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 it is established that as many as three more firms were existing during this period but none of them have been dissolved apart from firm Chand Mal Ganga Bishan which is also a pointer to forgery. In his cross examination, PW 1 admits that in the year 1975, he was looking after the work of two existing firms namely M/s Shiv Rattan Kamal Kumar and M/s Ganga Bishan Mool Chand. The latter firm was continuing its business till the death of his father Sh Mool Chand in the year 1985. It is also pointed out that during 1975 to 1979, Smt. Kamla Devi was still getting profit and interest income from the allegedly dissolved firm. It is also submitted that Sh Shiv Kishan (PW2) was looking after the business of firm M/s Bansi Lal Manohar Lal at Nagpur after 197273.
39. Regarding the deed of declaration, PW 1 states that it was typed in the office of Chartered Accountant Sh Indermal Surana in his presence by the typist of the C.A. The type writer belonged to Sh Surana who was having two or three type writers and two typists in his office. To demolish this document, it was pointed out that no reference to it was made in the first plaint filed in December 1991. The witness was also suggested that it was only after reading the written statement that he and his brother fabricated the declaration of Sh Rameshwar Lal and thus it was not mentioned in the unamended plaint. The dissolution deed was also prepared in the office of Chartered Accountant. Witness clarified that one typist had typed the dissolution deed and other had typed the declaration deed. The Result: Application Dismissed. Page 44 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 same was drafted by PW 1. It is also in his evidence that he, Sh Rameshwar Lal and Sh Mool Chand were present in the office of their chartered accountant and had gone there 15 or 20 days prior to Deepavali in 1974. The draft of the dissolution deed was prepared prior to the original. It was also demonstrated that PW 1 was not aware of the local festivals celebrated around Deepavali season in Calcutta. The deed of dissolution is also said to be a figment of imagination as it was drawn after the family settlement which is purportedly oral and there is no evidence to prove it. It was also demonstrated that there is no reason why Sh Rameshwar Lal would have silently adopted the user of trade name only in the territory of West Bengal much less owing to the family settlement and the condition in the dissolution deed. Further, regarding Sh Surana, Chartered Accountant, it was urged that he is still alive but not produced for corroboration.
40. One of the witness to the dissolution deed is Sh Girdhari Lal Dahiya, resident of Bikaner. He was in employment of firm Chand Mal Ganga Bishan, firm Ganga Bishan Mool Chand and after 1974, in the firm M/s Shiv Rattan Kamal Kumar. He had studied upto 8th or 9th or 10th standard. According to the witness, Sh Dahiya is like a family member. As on the date of his deposition on 23.10.09, Sh Dahiya was not employed in any of his firms and as such, PW 1 was not aware about his present employment in other firms or prior. Admittedly, he has one son. Further admittedly, his son had dealings with other firms of PW 1. It is thus demonstrated that Sh Result: Application Dismissed. Page 45 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Dahiya who is admittedly a labour class employee can not be perceived as family member and therefore his projected position as a witness to execution of the dissolution deed does not stand to common sense.
41. Likewise, the witness was also cross examined regarding other attesting witness Sh Radhey Shyam Aggarwal. He was friend of Sh Radhey Shyam Aggarwal who is now dead. This witness had attended the marriage of PW 1 at Bikaner in 1976. Their family house at Bikaner is situated at a distance of less than 50 fts from the house of Sh Radhey Shyam Aggarwal. Thus, even this person is said to be under the influence of the plaintiffs.
42. This witness (PW1) was also cross examined regarding the bank account of firm M/s Chand Mal Ganga Bishan. It has been sought to be demonstrated that this bank account continued even after the alleged dissolution regarding which the witness explained that it continued only to meet the old transactions. It was sought to be established that in the records of the bank, the partners of the allegedly dissolved firms are still shown and therefore, the factum of dissolution of the firm itself is not proved.
43. PW 1 has also sought to assert that in the joint meeting Sh Rameshwar Lal and Smt. Kamla Devi had expressed their desire for dissolution of the firm and to settle only at Calcutta. It is said to be a false deposition for the reasons that the defendants are seeking to establish by way of their defence.
44. One more such reason that is sought to be established is that no balance sheet or other statement of account regarding dissolution of the firm Result: Application Dismissed. Page 46 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 have been produced by PWs even though PW 1 admits that rough balance sheet was prepared and final balance sheet was prepared after due audit. The witness had also stated that the account of all the partners were prepared but not signed. The witness does not remember whether any payment was made to Smt. Kamla Devi on 16.11.1974 regarding the dissolution. The witness was thereafter shown certain documents purported to be copies of statement of account of the firm Chand Mal Ganga Bishan which were purportedly sent to Smt. Kamla Devi during the period from 1974 to 1979. Of course, the witness has denied them. He also denied the signature of Sh Mool Chand thereupon. In the same contextual situation, the witness was also asked regarding the amount payable to Smt Kamla Devi as on 16.11.1974. According to the witness, no amount was payable on that day and whatever amount was payable, Sh Mool Chand had taken the responsibility. The amount payable was only in thousands. This all transaction is said to be only verbal.
45. There is reference to the 'head office' of Chand Mal Ganga Bishan in the dissolution deed and thus PW 1 was also asked question about the offices of the firm that existed in the year 1974. According to the witness, firm had only one shop uptil Deepavali in 1974. The witness was also asked whether there is any reference of deed of declaration or of family settlement in the dissolution deed. There is none.
46. Regarding the presence of Sh. Shiv Rattan at Bikaner on 16.11.1974, Result: Application Dismissed. Page 47 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the witness was asked as to how frequently he used to go to Calcutta from Bikaner. Such visits are stated to be 5 to 7 times in a year. The witness affirms that during Deepavali period in 1974, Sh Shiv Rattan was at Bikaner and was there since about a month and a half prior to Deepavali season. He remained there for about one to two months even after the Deepavali.
47. Since the averment of defendant is that deed of dissolution was forged in the year 1985, the witness was also asked as to how many office/shops they had in India in that year. According to the witness, such shops were situated at Bikaner, Nagpur and Delhi. The witness also stated that in 1985, they did not have any head office individually in India. It was, therefore, asserted that since the firm did not have any head office in 1974 and had only one shop at Bikaner in that year then there is no reason as to why the dissolution deed would make a mention regarding the head office. It is asserted that such mention makes the sense only qua the year 1985 as the occasion for challenging the dissolution deed had arisen post death of Sh Mool Chand in that year. Admittedly, there were several other shops existing at that time in India.
48. Ld. counsel for the defendant also sought to demonstrate that the alleged declaration of Sh Rameshwar Lal is silent that his wife Smt Kamla Devi had executed the deed of dissolution. It was also demonstrated that the said declaration even did not mention that Sh Rameshwar Lal was making the alleged declaration post family settlement. It was also submitted that Result: Application Dismissed. Page 48 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 copy of the dissolution deed was never filed in any authority prior to the death of father of PW 1 in 1985.
49. The witness was also cross examined on the letter of authority dated 27.2.1980 in order to show that Smt Kamla Devi could not have signed the same and the entire story of obtaining the certified copy of the letter of authority containing three signatures as well as the averment that Smt. Kamla Devi was instrumental in tampering the same are baseless. Reference is also made to the fact that vakalatnama in D.B Sales Tax case at Rajasthan has not been signed by Smt. Kamla Devi.
50. As another pointer to the forgery of the dissolution deed, it has been stated that the registration no. 285062 was granted only in the year 1981 and still it finds mention in the deed of dissolution dated 16.11.1974. In the same context, it has been submitted that the year 1984 appears to be originally typed on the dissolution deed which has been over written subsequently as 1974. Non filing of the original is thus confronted with the above factors which would be exposed had the original been produced.
51. Further cross examination of PW 1 after 24.11.09 was recorded by the Court appointed Advocate Commissioner Sh Vikas Kakkar. The witness has been subjected to cross examination to the effect that the ladies of the house used to observe Parda concept. The witness was also cross examined regarding the educational qualification of the plaintiff. He was also subjected to the cross examination as to whether any documents were Result: Application Dismissed. Page 49 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 produced pertaining to the sales proceeds in the state of West Bengal and also beyond. The objective of this cross examination was to establish that there was male dominance in the family of Sh Ganga Bishan and thus the possibility of undue influence can not be ruled out. It was also sought to be established that there was another firm besides M/s Chand Mal Ganga Bishan. The other such firm was Ganga Bishan Mool Chand. Thus, it has been sought to be established from the cross examination that if there was division of assets of the firm including that of trade name/mark Haldiram Bhujiawala then there is no reason as to why M/s Ganga Bishan Mool Chand should not have been accordingly dissolved. The witness was also cross examined regarding the establishment of new firm namely Shiv Rattan Kamal Kumar which according to the witness, was constituted in November, 1974.
52. Further, the witness was cross examined regarding filing of rectification application on behalf of M/s Chand Mal Ganga Bishan with respect to mark 285062 which according to the witness was applied for by Sh R.N Prabhakar, Advocate as an agent who was working as such till November, 1991. The witness was also cross examined as to whether any rectification application was filed against TM No. 330375. It was further attempted to be established that Sh Shiv Kishan started doing business from Nagpur in the name of Haldiram Bhujiawala w.e.f 1974. It was also demonstrated that Sh Mool Chand took no action against Sh R.N Prabhakar, Result: Application Dismissed. Page 50 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Advocate till the time he was alive. Qua the alleged fraud by Sh R.N Prabhakar, Advocate, the witness stated to have come to the knowledge of the same on or about 10th or 11th December, 1991. It was also established that the Advocate concerned was instructed to file rectification application with respect to mark 330375 in first week of December, 1991. Father of PW1 Sh Mool Chand never objected to the registration of 330375 as he never had notice of it. Similar is the position with respect to Sh Ganga Bishan. The rectification application ExPW1/DC3 was filed around 12.12.1991 according to the witness. However, according to the defendant, it was signed on 7.12.1991. It is sought to be established that in view of the above, the claim of the witness that they came to know about the registration of TM 330375 on 10th or 11th December, 1991 is false. It was also established that in ExPW1/DC3, there is no reference to the deed of declaration.
53. The witness was also cross examined on the aspect as to why TM no. 285062 was renewed in favour of so called erstwhile partners of M/s Chand Mal Ganga Bishan for a period of 7 years from 29.12.1979 if the said firm already stood dissolved. It was thereafter that the witness was cross examined on the retirement deed ExPW1/15. As per records, Sh Shiv Rattan had retired from firm M/s Rameshwar Lal Shivrattan. A dispute was sought to be created as Sh Shiv Rattan was supposed to give up his business in the state of West Bengal yet it was only referred to as Calcutta in the Result: Application Dismissed. Page 51 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 deed. It was established that the above was never challenged. It was also sought to be established that the retirement deed is silent that Sh Shiv Rattan retired pursuant to the alleged family settlement. It was also sought to be established that no intimation of alleged retirement of Sh Rameshwar Lal was given to Registrar of firms. It was also sought to be established that Sh Mool Chand had referred himself as partner of firm M/s Chand Mal Ganga Bishan in the matter of opposition no. DEL 2106. According to the witness, it was filed at the instance of Sh R.N Prabhakar, Advocate. The explanation given by the witness that Sh R.N Prabhakar represented to Sh Mool Chand that as the application pertains to 1972 i.e prior to dissolution of firm M/s Chand Mal Ganga Bishan, thus, till the time the mark is registered, the affidavit will have to be made in the said format itself. Extensive cross examination on the role of Sh R.N Prabhakar has been offered to the witness. What is established from the above is that even post 1974, activities continued in relation to the dissolved firm with respect to sales tax liabilities. The witness has been also cross examined further upon the veracity of deposition qua oral family settlement. According to the witness, Sh Indermal Surana was also informed of it and on the basis of it only the dissolution deed was prepared. It is submitted that Sh Indermal Surana is therefore, a primary witness to prove the aforesaid and that the plaintiffs have dropped the said witness without examining him. The witness was also cross examined as to whether he knew that Sh Rameshwar Result: Application Dismissed. Page 52 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Lal used to sign his full name as 'Rameshwar Lal Aggarwal' only. Same was denied. It is in order to establish that the dissolution deed is signed only as 'Rameshwar' and no full signatures have been made. The witness was also cross examined on the partnership deed dated 2.1.1959 mark PW1/DC3 in order to show that one of the purpose of the business activities of firm M/s Chand Mal Ganga Bishan was money lending also.
54. Qua the factum of knowledge of defendants regarding dissolution of firm M/s Chand Mal Ganga Bishan on 16.11.1974, witness denied the same. The witness was also cross examined on the aspect of non registration of firm with the registrar of firms. It is stated that after the retirement of Sh Satidas from the firm M/s Chandmal Ganga Bishan, Smt. Kamla Devi joined as a partner. After the death of Sh Satidas, his sons were using the name of Haldiram & Sons in Calcutta. It is further stated that after the dissolution of the firm M/s Chandmal Ganga Bishan on 16.11.1974, Sh Mool Chand acquired the goodwill of the firm Haldiram Bhujiawala throughout India except West Bengal and in such capacity, he granted the license to firm M/s Shiv Rattan Kamal Kumar. It is stated that at the time of filing of the suit, the firm M/s Anand Kumar Deepak Kumar was trading as Haldiram Bhujiawala in which, there were three partners namely Sh Manohar Lal, Sh Shiv Rattan and Sh Madhusudan.
55. Since the witness had been asserting that Sh Mool Chand was recognized as sole owner of TM No. 285062, he was cross examined Result: Application Dismissed. Page 53 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 regarding whether any substitution was carried out in his name in the records of the Registrar trade mark concerned. According to the witness, it was in 1985 after the death of Sh Mool Chand that all the four partners handed over the relevant documents with copy of dissolution deed to Sh R.N. Prabhakar for substitution of their names. The witness also submitted that after the demise of Sh Mool Chand, Sh. Shiv Kishan became one of the joint owners of the aforesaid trade mark. In 1983, the firm M/s Anand Kumar Deepak Kumar was constituted trading under the name of Haldiram Bhujiawala. The witness was also cross examined on this aspect. It has also come in evidence that these brothers were using the trade name Haldiram Bhujiawala as licensees under authorization from their father.
56. It was sought to be established that as per ExP18, the actual name of firm was M/s Anand Kumar Deepak Kumar Aggarwal. According to the witness, the firm name was Anand Kumar Deepak Kumar only and Aggarwal was used as caste name. The witness was also cross examined upon the use of V logo and the letter 'R' that has been used with 'HRB'. According to the witness, letter 'R' was used on the advise of Sh R.N Prabhakar as the trade mark had been already registered. Admittedly, the trade mark was not registered in the name of Anand Kumar Deepak Kumar. However, it was not established as to how the same is relevant to the issue in determination, i.e forgery.
57. As a matter of fact, voluminous cross examination reveals that the Result: Application Dismissed. Page 54 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 defendants have sought to cross examine the witness on the point in issue repeatedly perhaps with an intent to have conflicting answers. If the cross examination is read in consonance with the respective dates on which it is recorded then there is no comprehensive outcome as per the point that is momentarily raised in the cross examination. It is therefore, not possible to have comprehensive reading. However, since such cross examination has been read in the Court date wise thus it is also imperative for this Court to specify as to what was read out to it.
58. In further cross examination regarding the family settlement of the year 1974, the witness states such settlement talks started somewhere in third or forth week of 1974 i.e about 25 days prior to Deepavali in 1974. Such talks were initiated by Sh. Rameshwar Lal. Two to three meetings had taken place. Pursuant thereto, it was decided that the firm Chand Mal Ganga Bishan will be closed and all its accounts will be finalized. The assets and liabilities will be taken over by Sh Mool Chand alongwith the goodwill of the firm for all over India except the state of West Bengal. A deed of dissolution was to be prepared constituting the terms of settlement. Sh Rameshwar Lal was to also give a declaration. Sh Shiv Rattan, partner in the Calcutta firm was to release rights for West Bengal. Sh Shiv Rattan was also to release his rights in the assets and liabilities of the Calcutta firm in favour of Sh Rameshwar Lal. The witness states to be present in all such meetings. According to him, Sh Shiv Kishan and Sh Shiv Rattan were also Result: Application Dismissed. Page 55 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 present. His grand father Sh Ganga Bishan, his father Sh Mool Chand and Smt. Kamla Devi were also stated to be present during such meetings in the family house at Bikaner. So far as Sh Satidas is concerned, according to the witness, Sh Satidas was using the name of Haldiram from 1969 to 1970 and no such matter was discussed in the aforesaid meeting. According to the witness, no document was executed that Sh Satidas will not use the trade name outside the state of West Bengal. On being asked, the witness also stated that the deed of dissolution and the deed of declaration were signed in the same sitting. The deed of dissolution was signed first where after which deed of declaration was signed. The witness was also cross examined as to whether same pen was used by Smt. Kamla Devi and Sh Rameshwar Lal for signing of the document and the number of places where these persons have put their signatures. The witness was also asked as to how many number of pages the dissolution deed constituted of. Regarding the original, the witness submitted that the original has not been placed on record. An FIR in this respect has been registered against Smt Kamla Devi and during investigation the original thereof was given to the investigating officer alongwith trade mark certificate and the letter of authority besides other documents. Thereafter, these documents remained in police custody and subsequently filed in the concerned Court. The employee Sh Mool Chand Chopra took the original deed of dissolution from the Court but did not hand over the same to the plaintiffs. In his subsequent cross examination Result: Application Dismissed. Page 56 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 dated 15.5.12, the witness also stated that a complaint was made in this respect in the Court of Jodhpur. He had also brought copy of the same for being produced on record, however, no questions were asked further on this aspect.
59. The witness was again cross examined as to whether Sh Mool Chand filed an affidavit of distinctiveness dated 16.11.1974 before the Registrar of trade marks ExPW1/7. Reference to it has already been made. The witness was also cross examined on ExPW1/DC5 which is copy of application made over for registration of trade mark no. 330375.
60. Further cross examination of PW 1 is in respect of the products sold under the trade name Haldiram Bhujiawala uptil the year 1991 which is not relevant for the issue in consideration. Same is primarily with respect to adoption/invention of trade name/mark Haldiram Bhujiawala by Sh Ganga Bishan. Still, the witness has submitted that deed of declaration of Sh Rameshwar Lal shows that such business was indeed started in the year 1941. Further demonstration during the cross examination recorded is made to the effect that this witness was constantly trying to produce on record those documents which do not from the part of permitted part of the Court record.
61. The witness has been thereafter again cross examined with respect to business of the firm of Sh Rameshwar Lal Aggarwal post 1985 in order to show that he has been doing business outside West Bengal.
Result: Application Dismissed. Page 57 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
62. Subsequent to the above stated part of major cross examination, the witness was again cross examined to some extent on the issue in question in respect of the complaint filed by Smt. Kamla Devi i.e C63/2000 in the Court of MM, Calcutta. The witness was cross examined on the aspect that he was directed to produce the original deed of dissolution on 28.5.2007 which order was challenged in the Calcutta High Court in CRR No. 3263/2007. The witness left the answer open submitting that all these aspects are matters of record. The witness was thereafter again cross examined regarding the proceedings in Hon'ble High Court of Rajasthan qua the sales tax case no. 35/80. Sh Janki Dass Gandhi was not authorized in respect of the said appeal. In the same, a vakalatnama was filed by the partners of firm M/s Chand Mal Ganga Bishan. It was sought to be demonstrated that vakalatnama was executed by Sh Mool Chand and Sh Shiv Kishan as partners of M/s Chand Mal Ganga Bishan. The point put forth is that Smt. Kamla Devi had not signed the vakalatnama, however, according to the witness, Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi had also executed letter of authority in favour of Sh Janki Dass Gandhi. Same is ExP22. According to the defendants, it is forged. It was also sought to be asserted that Smt Kamla Devi had no knowledge of filing appeal in the High Court of Rajasthan. According to the witness, the letter of authority was given on the asking of Chartered Accountant Sh Inder Mal Surana some two to three days after the death of his grand father and the Result: Application Dismissed. Page 58 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 same was handed over to Sh Janki Dass Gandhi. In this regard, the witness was also shown document at page 2070 in Vol. No. 6 which is copy of certified copy of the index of the sales tax case aforesaid in order to show that it does not indicate filing of letter of authority. The witness admitted that Sh Janki Dass Gandhi has filed affidavit in support of the petition in sales tax case no. 35/80 alongwith letter of authority bearing three signatures of expartners of the dissolved firm. PW 1 again narrated as to how they had obtained the certified copy of the same and on coming to know about the alleged fraud, a complaint was lodged.
63. According to the witness, Sh Mool Chand Chopra obtained the original deed of dissolution from Jodhpur Court about 5 to 6 years before the date of his such cross examination dated 17.10.12. The same shall not be of any consequence as this date is established as 22.5.07. It was obtained on the instructions of his brother Sh Shiv Rattan as well as he himself. These instructions were given six months prior to obtaining the document from the Court. It was required for use in other legal proceedings. It is also on record that the original deed was produced before Hon'ble High Court of Calcutta in the year 2007. The witness admitted that the Court of MM, Calcutta was not informed about the instructions given to Sh Mool Chand Chopra to obtain the original dissolution deed from Jodhpur Court. Further cross examination is in respect of the employment of Sh Mool Chand Chopra and as to whether the witness had informed various Courts Result: Application Dismissed. Page 59 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 regarding that the deed of dissolution has been lost. The witness submits that in the year 2008, he had duly instructed his counsel about the above status of the dissolution deed. The witness during one such cross examination had brought with him the original seizure memo issued by the police with respect to the seizure of dissolution deed and other documents. However, no further cross examination was offered on this issue. The witness also clarified that they had filed a complaint against Sh Mool Chand Chopra in the Jodhpur Court on one such occasion. He had also brought copy of that complaint. However, no further questions were asked on it. Cross examination has been also offered as to whether this PW 1 remembers the address of Sh Mool Chand Chopra and as to where he resides. He is found to be resident of Bikaner. According to the witness, he was still there in 2010 whereafter which the factum of his residence was not in the knowledge of PW 1. The cross examination of PW 1 ended after a number of hearings during the close of which all kind of suggestions were given to the witness regarding his deposition.
64. In sum and substance, the thrust behind the above demonstration from the statement of PW 1 is to the following effect, viz;
A. That the plea of family settlement of 1974 was not made in the plaint or in the replication despite the fact that it was amended thrice.
B. That the alleged deed of dissolution is never an admitted Result: Application Dismissed. Page 60 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 document in the manner alleged. Mere photocopies have been marked as ExP10 & ExP19.
C. That PW 1 has, in most of his testimony, referred to the state of mind of the other persons present at the time of execution of the documents as on 16.11.1974.
D. That PW 1 has nowhere stated that he has seen the persons who had signed the dissolution deed either signing or writing on previous occasions.
E. That PW 1 does not depose to the effect that it was read out to him.
F. That the witness has identified the signature on original document as he does not say that he is identifying from its copy implying that on the date of affidavit, the original was in his hands. G. That there is no statement to the effect that PW 1 went to purchase the stamp papers. In this context, PW 2 has deposed to the above effect but he has not deposed that the deed of dissolution was typed on same stamp papers which were purchased and hence this testimony is not direct evidence.
H. That PW 1 is silent as to who filed the letter of authority in the DB Sales Tax case and whether in his presence.
I. That as to who obtained its certified copy has been left silent. J. That from the chief examination of PW 2, it would be clear that Result: Application Dismissed. Page 61 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 he does not say to be aware of the facts of this case even though he himself is Director of plaintiff no. 3 company.
K. That in his affidavit, PW 2 only states about the trade mark though in para 1A of the plaint, he speaks only of the trade name. L. That his testimony is also hearsay and he does not verify specifically as to which para of the affidavit is based on his personal knowledge and which on record.
M. That from the cross examination of PW 1, it is apparent that he has made false stories regarding the entire case.
N. That he was born in 1954 and became partner in firm for the first time in 1977 only but projects that as if he was present everywhere. O. That the deed of dissolution has been fabricated after 1985 post death of Sh Mool Chand.
P. That although Sh Surana has been named at so many places but not examined despite availability and thus adverse inference needs to be drawn as the deed of dissolution was not filed with the suit. Q. That the partnership deed of 1951 has not been produced. R. That at the relevant time two firms existed around 1970 but only one was dissolved.
S. That since the deed of declaration is neither pleaded in the plaint nor in replication, thus story about the same is after thought. Even the story about role of Sh Indermal Surana is an after thought.
Result: Application Dismissed. Page 62 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 T. That no reference is made regarding the other firm in the alleged deed of dissolution.
U. That the term 'head office' used in the deed of dissolution indicates from the cross examination that the said deed was fabricated after 1985 as admittedly there was no head office of M/s Chand Mal Ganga Bishan in 1974.
V. That the cross examination reveals that the plaintiffs had knowledge of registration of TM No. 330375 even prior to the suit. W. That PW 1 has made all possible attempts to produce fresh documents on record.
65. After concluding the evidence of PW 1, the cross examination of PW 2 was also read in this Court. I have already pointed out that PW 2 is one of the surviving signatories to the dissolution deed. His chief examination has already been discussed. Although the witness is not aware of the contents of the plaint but assigned the reason that the same is pursued by PW 1 who has been duly authorized in this regard. According to him, the defendants in this case are those persons who were running the shops at Calcutta. He could not remember as to who actually are the defendants in this case. He however, deposed that suit was filed in 1991 and plaint bears his signature. He specified that the age difference between Sh Mool Chand and Sh Rameshwar Lal was about 1012 years and the relations were cordial. This witness was also cross examined as to whether there was any custom in Result: Application Dismissed. Page 63 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 their family according to which the female members had to observe Parda from the elder male members of the family. Major part of cross examination of this witness is regarding the establishment of the business initially by Sh Ganga Bishan and on various partnership deeds. His cross examination is also on the aspect as to whether Haldiram Bhujiawala firm in the year 1956 was in the business of money lending and oil. Cross examination as to whether his grand father was known as Haldiram or not has been also offered. Cross examination on the goodwill part of the trade name has been also offered. It is pointed out that in 1970 two firms were carrying its business i.e M/s Chand Mal Ganga Bishan and M/s Ganga Bishan Mool Chand and their goodwill name was Haldiram Bhujiawala. As to why the goodwill of both the firms was not divided on 16.11.1974 is raised as a question mark on the genuineness of the dissolution deed. This witness states to have become partner in 1959 in Chand Mal Ganga Bishan on the decision of Sh Rameshwar Lal and Sh Mool Chand. He was also cross examined regarding the role of Sh R.N Prabhakar. The witness was also cross examined on the role of Sh Girdhari Lal Dahiya. It was demonstrated that his son has been supplying products to PW 1 at Delhi and to him at Nagpur. It was demonstrated that Sh Dahiya could not have been like a family member in the manner alleged. So far as the dissolution deed is concerned, the witness stated that he had personally seen the same lastly in the year 1991 and firstly in the year 1974. He affirms that Sh Rameshwar Result: Application Dismissed. Page 64 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Lal, Sh Mool Chand and PW 1 had gone to Sh Surana who had drafted the deed of dissolution and declaration on their instructions. He did not remember whether his father gave any money to Sh Rameshwar Lal in 1974 or for that matter to Smt. Kamla Devi or his grand father as well as he himself. He deposes that rough balance sheet was prepared where after which it was audited. He deposes that he signed on deed with his own pen but did not remember about others as well as the colour of the ink. He testified that on instructions of Sh Rameshwar Lal and Sh Mool Chand, PW 1 was sent to the office of Sh Surana with copy of draft deed of dissolution and declaration and also to get the stamp papers. None had perhaps accompanied PW 1 at that time. The witness was also cross examined regarding the profit share of the signatories to the alleged deed. It was sought to be suggested that sale turn over of Calcutta firm Rameshwar Lal Shiv Rattan and Bikaner firm Chand Mal Ganga Bishan for 197374 was almost equal. However, according to the witness, the turn over of Calcutta firm was much higher.
66. The witness was also cross examined on the family settlement which is said to be oral and made on desire of Sh Rameshwar Lal. The witness also deposed that to avoid future dispute, Sh Rameshwar Lal agreed to make a deed of declaration. The witness further deposes that Sh Rameshwar Lal used to sign as Rameshwar, Rameshwar Lal and Rameshwar Lal Aggarwal. No such document was pointed out. The witness was also cross Result: Application Dismissed. Page 65 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 examined on the letter of authority. Cross examination was also offered about the major customers of firm of Sh Rameshwar Lal at Calcutta during 1975 to 1991.
67. The sum and substance of this cross examination is to demonstrate following points viz;
A. That PW 2 is not aware about the contents of the plaint. B. That PW 1 who is more educated of all the plaintiffs had actually used PW 2 and thus deposition of PW 2 can not be read in proof of contents of the plaint.
C. That if relations between all the members of family were cordial then it does not stand to reason as to why unequal share was distributed in 1974.
D. That male domination in the family is also seen in the cross examination of PW 2.
E. That PW 2 does not remember even the basic things of business coherently then how can he recall about the incidents of 1941. F. That the witness becomes very cautious whenever he was asked to identify the signatures of Smt Kamla Devi on documents. G. That if a firm is dissolved then there has to be a balance sheet duly signed by all the partners which is not the case here. H. That as to why so much importance has been given to Sh Manohar Lal for even petty matters when he admittedly had no Result: Application Dismissed. Page 66 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 claim or stake in firm Chand Mal Ganga Bishan.
I. That the account books for the year 197374 have not been produced.
J. That when vakalatnama was signed as well as letter of authority was given for D.B Sales Tax case at Jodhpur then power of attorney also could have been given instead of just a letter of authority. K. That there is only a bald statement of PW 2 to the effect that Sh Rameshwar Lal traded only in Calcutta.
68. Subsequent to the same, the evidence of PW 3 Sh Girdhar Lal Dahiya was read out in the Court. He has deposed to be an employee of firm M/s Chand Mal Ganga Bishan and one of the witness to the deed of dissolution who compares the copy of it on record with the copy filed with his affidavit in evidence stating that it was duly executed and signed by all the four partners of the firm in his presence, presence of other witnesses, Sh Radhey Shyam Aggarwal and family members including PW 1 and Sh Rameshwar Lal. Sh Janki Dass Gandhi was also present. He identifies their signatures on the deed. He deposes that family members mutually agreed to execute the same on 16.11.1974 and he was called to the residence of Sh Mool Chand in late afternoon on that day. It was read over by Sh Janki Dass Gandhi in presence of everybody. He learnt about its contents at the residence and that execution was done with the free will of the parties and without any pressure and undue influence. He deposes that on the same Result: Application Dismissed. Page 67 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 date, Sh Rameshwarl Lal also signed the deed of declaration at the same time. He had seen the certified copy of the same on record after having inspected the records and thus compared it with its copy enclosed with affidavit. It is said to be a voluntary declaration made in his presence on which he identified the signature of Sh Rameshwar Lal. It is ExP31. He subsequently was in employment of M/s Shiv Rattan Kamal Kumar till 198283 after which he was in employment of Sh Shiv Rattan Aggarwal at Bikaner till 199495. He also deposed that on 3.4.1979, he was at the house of Sh Haldiram @ Ganga Bishan at Bikaner with Sh Janki Dass Gandhi, Sh Rameshwar Lal and an advocate. Sh Janki Dass Gandhi read the Will of Sh. Haldiram in Hindi on his instructions. He was made an attesting witness. He deposes that the Will was signed in the presence of all the persons. He compared the copy of it enclosed with his affidavit with the photocopy of the same on record. Copy of Will is ExPW3/1.
69. This witness was cross examined about his current status and the status of employment w.e.f. 1968 and in particular till 1974. No salary slip from the firm is produced. No appointment letter etc with respect to other firms is produced. It is submitted that the witness could not recollect as to what he did after 1984 and therefore, his recollection of facts with respect to the events of 16.11.1974 is doubtful. It was pointed out that this witness is still in touch of PW 1 and he also resides at his house in Delhi atleast once a year and therefore, the possibility that he is under the influence of the Result: Application Dismissed. Page 68 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 plaintiffs can not be ruled out. He denied the knowledge whether his son supplies goods to PW 1 and PW 2. This is said to be highly improbable. It is pointed out that his own father used to do tailoring work at the house of Sh Ganga Bishan and thus possibility of his involvement in the forgery can not be ignored. It is pointed out that this witness also submitted that there were good relations amongst sons of Sh Ganga Bishan and thus allocation of unequal share on dissolution does not stand to reason. It is pointed out that witness claims to have seen Smt Kamla Devi signing on the alleged dissolution deed but he could not identify her signature on partnership deed of 1969 ExPW1/D1. He however, identifies the signature of Sh Mool Chand on number of documents. It is also pointed out that this witness claims to be trust worthy person for everyone including Sh Shiv Rattan and PW 1 and thus his involvement in the forgery can not be obviated. It is again pointed out that male domination in the family of Sh Ganga Bishan is seen in his testimony. He was also cross examined on the aspect of Will ExPW3/1. He did not appear before the Registrar which is said to be a suspicious circumstance. It is averred that Will is also fabricated with his connivance. He was also cross examined on the aspect of goodwill and reputation of trade name Haldiram Bhujaiwala. He was also cross examined on the transfer of trade name in the name of sons of Sh Mool Chand. Regarding presence of Sh Rameshwar Lal on 16.11.1974, the witness stands in affirmation of this fact despite cross examination on this aspect that he Result: Application Dismissed. Page 69 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 has no knowledge about the circumstances when the dissolution deed was prepared. He however, states that the declaration deed referred in his cross examination is letter of assignment of trade mark Haldiram Bhujiawala in favour of Sh Mool Chand except the state of West Bengal. This document was also read out in the presence of everybody. He also clarified that this document was prepared at the place where the dissolution deed was prepared but it was signed only at the house of Haldiram. It was written on a small blank piece of paper. The deed of dissolution was signed prior to it. He could not recollect about the make of pens and the colour of ink used by the executants. He was also cross examined with respect to the role of Chartered Accountant Sh Indermal Surana. It is pointed out that the witness refers himself to be a labour person and thus claim of PW 1 that he was like a family member does not subsist. The witness also submitted that a copy of deed of declaration duly signed by Sh Rameshwar Lal was also prepared but not produced.
70. The sum and substance of this cross examination is to demonstrate;
A. That he did not produce any record of being employed with firm M/s Chand Mal Ganga Bishan.
B. That though he did not remain in the employment but regularly met PW 1 and PW 2.
C. That he can not be an independent witness in view of his proximity with the plaintiffs as claimed.
Result: Application Dismissed. Page 70 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 D. That he can be easily influenced being son of tailor of Sh Ganga Bishan and;
E. That he claims to have been in the employment of the dissolved firm but no record of compensation paid to him as per Industrial Disputes Act is produced.
71. Subsequent thereto evidence of PW 8 and PW 9 was also read in the Court.
72. PW 8 has been summoned from trade mark registry, Dwarka, Delhi for production of various records regarding registration of trade mark applied by the parties. It has been a contention of the defendants that the statement of this witness is of no relevance as he was merely authorized just to produce the record and not to depose in this Court.
73. So far as PW 9 is concerned, the said witness namely Sh Naresh Kumar Acharya was summoned from the office of District Collector, Bikaner for production of stamp register of stamp vender Sh Tola Ram for the year 1974. It is pointed out that this witness is not familiar with the signature of Sh Tola Ram and the register is also silent on the license number of the said stamp vendor. It is submitted that the witness had merely read the contents of the register and not actually proved it.
74. The last witness in this connection whose testimony was read in the Court is PW 18. He was summoned from the Court of CJM, Jodhpur District Rajasthan. He produced the charge sheet in C.R No. 494/2001 Result: Application Dismissed. Page 71 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 ExPW18/1. He also produced the original final form report ExPW18/2, original FIR ExPW18/3, original Police Karyawahi ExPW18/4, original letter of authority ExPW18/5, original seizure memo ExPW18/6 and original SFSL report ExPW18/7. He identified the copy of letter of authority on record as ExPW18/8. It was pointed out that regarding the mode of exhibition of documents, several objections were raised by the defendants.
75. This Court was also taken through, amongst plentyful few of documents which are as under viz;
A. A comparison was made between document ExPW1/7 and admitted document ExD53A. ExPW1/7 is copy of the affidavit of distinctiveness of Sh Mool Chand in support of application no. 285062 for registration of trade mark HRB (Haldiram Bhujiawala). It was pointed out that the details of sales figure in para 7 of the affidavit are only upto the year 197172. It is in respect of the annual sales figure of all the firms of Sh Mool Chand trading under trade name Haldiram Bhujiawala (HRB). ExD53A is the affidavit of evidence filed by Sh Mool Chand Aggarwal in the matter of opposition no. DEL 2106 of the application no. 285062 in clause 30 for registration of trade mark Haldiram Bhujiawala wherein the annual sales figure of all his firms for all over India were provided which are from 1965 66 upto the year 197374. This affidavit was made on 27.12.1977. In the said affidavit, it is deposed in para 1 that Sh Mool Chand assisted the firm Result: Application Dismissed. Page 72 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 M/s Chand Mal Ganga Bishan for over 20 years. It is sought to be read in corelation with the date 27.12.1977 thereby implying that this association dates back to the year 1956 and not 1951 as averred by the plaintiff. It is pointed out that in para 4 of this affidavit, Sh Mool Chand claimed concurrent user of trade mark and not exclusive. It is sought to be demonstrated that Sh Mool Chand was in the habit of showing such sales figures of two years prior to the date of making such affidavits. Like, in ExPW1/7 which is dated 16.7.74 sales figure only till 197172 are given and in ExD53A which is dated 27.12.1977, sales figures for upto the year 197374 only are given. It is thus submitted that inference may be drawn that there are sales for the year 197475 as well.
B. Reference is then made to document Mark PW1/DC 2 which is also exhibited in the statement of PW 2 at page 147 Vol. 26. It is certified copy of deed of partnership dated 2.1.1959 between Sh Ganga Bishan, Sh Mool Chand and Sh. Sati Dass and Sh Shiv Kishan executed post retirement of Sh Rameshwar Lal. It is pointed out that even this document is silent that the trade name Haldiram Bhujiawala is the asset of firm M/s Chand Mal Ganga Bishan. It was further submitted that as per this deed, it shall be evident from reading the points Mark A to A that the business of the partnership was ordinarily manufacture and sale of Bhujia as well as money lending. It is shown to this Court to establish that these persons were trading in the business of money lending.
Result: Application Dismissed. Page 73 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 C. The next document shown to the Court is the coloured copy of the deed of dissolution ExP19 which is otherwise also exhibited as ExP10 and according to the plaintiff's is an admitted document. It is submitted that careful perusal of the year 1974 upon it would reveal that originally it was 1984 which has been superimposed subsequently as 1974. It is also pointed out that the document provides the address of Smt Kamla Devi of Bikaner while it should have been Calcutta as by that time, she had already settled in Calcutta. It was further demonstrated from reading of Clause 2 that reference of head office is made therein implying that there ought to be branch office whereas it would be clear from the testimony of other witnesses that they had branch office in the year 1985 and not 1974. It is pointed out that the original of this deed is never produced. It is further pointed out that as per the same, books of accounts of the firm upto 15.11.74 had been finalized and the assets and liabilities had been determined by drafting of balance sheet. Moreover, individual accounts of the partners had been settled and there was no amount outstanding with the firm. It is submitted that these documents have not been produced in support of the said claim. It is further submitted that PW 1 had admitted that there was some recovery of the firm which was due even after dissolution. However, the balance sheet was still not produced.
On reading clause 7 of the deed, it was pointed out that the registration no. 285062 is mentioned upon document whereas the same was Result: Application Dismissed. Page 74 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 granted only in the year 1981 and not 1974. Similar is the position in clause
8. It is submitted that admittedly the draft deed was made by professional Chartered Accountant Sh Inder Mal Surana and it is highly improbable that such a professional can commit such a mistake. Moreover, said Chartered Accountant has not been produced by the plaintiff as a witness. D. The next document shown to the Court is ExP7. This is copy of order passed by Sh. M.R. Bhalerao, Assistant Registrar, Trade Marks, Delhi in the matter of application no. 285062 for its registration and in the matter of opposition thereto by firm Haldiram Madan Lal, Calcutta. Same is dated 31.7.1980. The same has been shown to establish that there is reference made to the affidavit of Sh Mool Chand but not of the dissolution deed implying that the same did not exist for being produced in the year 1980 or prior thereto.
E. The next document shown to the Court is ExP8 at page 1341 Vol. 4, typed copy of which is at page 1344 of the same Volume which are said to be admitted documents. The same is copy of Instrument of partnership dated 31.10.1969 between Sh Ganga Bishan, Sh Mool Chand, Sh Shiv Kishan and Smt. Kamla Devi. It is pointed out that again no reference is made to the trade name Haldiram Bhujiawala in this document. Further, Smt. Kamla Devi was inducted as a partner in M/s Chand Mal Ganga Bishan due to her experience. It is submitted that as per Clause 3, the business of partnership was ordinarily of oil commission agents, dealers in Result: Application Dismissed. Page 75 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 edible oil, manufacturers of Namkeen, Bhujia, Papad and allied articles. It is submitted that there is no mention of the business of Sweets. It is submitted that there is a provision as per Clause 13 that the firm shall not dissolve on death of the partners. The Court has been urged to compare the signature of Smt Kamla Devi thereupon with that of the deed of dissolution ExP10 & ExP19.
F. It is stated that ExPW1/DC12 is the reply filed by the plaintiffs herein as accused in case no. C63/2000 in the Court of MM, Calcutta in response to the application of complainant Smt. Kamla Devi for production of documents wherein it was replied that accused are not in possession of the documents in question (dissolution deed). It was filed on 29.5.2004. It is further submitted that even the appeal no. CRR 3263/2007 which is ExPW1/DC11 filed on 24.8.2007 is silent about the seizure memo in respect of seizing of dissolution deed by Rajasthan Police and therefore, the authenticity of the seizure memo is questionable. It is further submitted that even the appeal filed against the order of MM, Calcutta is silent as to how the document was lost.
G. It is further submitted that as per ExP5 the registration of the firm was renewed w.e.f 29.12.1979 in the name of the reconstituted partnership of the year 1969 and not in the name of the subsequent proprietors. H. It is further submitted that as per ExD38 (admitted document) which is the evidence of distinctiveness of Sh Rameshwar Lal, the sales figures of Result: Application Dismissed. Page 76 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 his firm at Calcutta in the year 197374 are Rs.5,31,300/ which if compared with the sales figure furnished by Sh Mool Chand would demonstrate that the sales of the Bikaner firm and Calcutta firm were almost equal in that year.
I. It is further submitted that in the application made in DB sales tax case no. 35/1980, no reference is made to the filing of the letter of authority as well as the dissolution deed. It is submitted that Sh Janki Dass Gandhi has not referred to the partners of the firm as expartners. Further, the copy of vakalatnama ExPW2/D2 is signed by only two persons who are shown as partners of the firm even as on the date of its filing i.e 3.3.1980. J. Various assessment orders of Smt Kamla Devi are shown to the Court which are ExD2 to ExD9 to show that Smt. Kamla Devi had been mentioning that she had no income from firm Chandmal Ganga Bishan during the period from 1975 to 1979, there being no business activity which implies that firms was existing.
76. Sh Mahindra Rana, advocate for plaintiffs has also argued on almost every aspect touching on the merits of this case starting from judicial admissions. He argues that the defendants in the written statement dated 18.4.2009 have admitted that the plaintiffs started their business at Delhi in the year 1983 at Chandni Chowk. It is submitted that in para 1B of the written statement, the defendants have stated that dissolution of the firm on 16.11.1974 is a matter of record. It is further submitted that in para 1B, it is Result: Application Dismissed. Page 77 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 stated that Smt. Kamla Devi never carried on any business either alone or in partnership after retirement from the firm on 16.11.1974. It is further submitted that the defendants have referred to late Sh Ganga Bishan by his alias i.e Haldiram at many places in the written statement. It is further submitted that it is own case of the defendant that the Will executed by late Sh Ganga Bishan is irrelevant for the present proceedings whereas they have themselves placed heavy reliance on the said Will in the proceedings before the Hon'ble Delhi High Court. It is further submitted that it is own case of the defendants that the deed of dissolution is immaterial for them and that they are deriving title from Sh Rameshwar Lal and not Smt Kamla Devi.
77. It is further submitted that in the first written statement dated 13.12.1991, the defendants set up a case that Smt Kamla Devi, on dissolution of the firm, left the firm without claiming her share in Trade Mark because the plaintiffs were her close relations. It is further submitted that in second written statement dated 22.1.1992, it has been asserted that the parties have not been following matriarchal system in their family. To summarize this line of argument, it is stated that these admissions can not be permitted to be withdrawn.
78. Sh. Rana also read out that the amendments to the plaint were allowed by this Court on 11.2.1992 at which time the defendants counsel recorded his no objections and the defendants are therefore, estopped from Result: Application Dismissed. Page 78 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 challenging the amendments pertaining to plea of the deed of declaration. It is further submitted that even in reply of defendants to the application under Order 39 Rules 1 & 2 CPC, the defendants have affirmed that on dissolution, Smt Kamla Devi left the firm without claiming her share and that the defendant himself claims only through Sh Rameshwar Lal Aggarwal and not his mother. This position is also reflected from the written arguments of these defendants dated 18.12.1991 wherein it is claimed that this defendant is claiming the title of trade mark only through his late father Sh Rameshwar Lal.
79. It is further submitted that even in petition no. CO.4/92 which is dated 10.2.1992, wherein this defendant is the petitioner, it has been stated that after dissolution of the firm on 16.11.1974 the trade mark came to Sh Mool Chand. It is submitted that as per the verification made to this petition, this particular fact was stated on the own knowledge of this defendant and not otherwise and therefore, he is bound by that admission. It is further submitted that the plea of undue influence, even if assumed to be correct, would come to an end the moment Smt Kamla Devi shifted back to Calcutta from Bikaner. It also comes to an end upon the death of Sh. Ganga Bishan in the year 1980 and the Sh. Mool Chand in the year 1985. It is submitted that despite such admitted position, no concern was ever displayed by Smt. Kamla Devi.
80. It is further submitted that it would be evident from reading the Result: Application Dismissed. Page 79 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 contents of the admitted document ExD24 which is the copy of interlocutory petition dated 28.02.1992 in Cal 629 that the rectification proceedings were recorded two days after the institution of TM2/11 i.e on 12.12.1991. Further, in the reply dated 28.02.1992 by these defendants filed in Cal 629, it is claimed that after dissolution of the firm on 16.11.1974 Sh. Mool Chand never used the Trade Mark and he abandoned the Trademark which lost its distinctiveness. Further, it is also stated in the reply that the dissolution of the firm on 16.11.74 is a matter of record. This reply also shows that after dissolution of the firm, Smt. Kamla Devi did not carry any business under the trademark in question. This documents also reflects that Sh. R.N. Prabhakar, Advocate only acted under the instructions of his client and never did anything on his own. This documents also shows that these defendants were aware of the CO4 proceedings.
81. Attention of this court is drawn to the pleadings made by these defendants in admitted document Ex. D16 which is an appeal made against order dated 12.5.1999 which is FAO (OS) No. 155/1999 wherein it is specifically claimed that by virtue of the Dissolution Deed it was Smt. Kamla Devi who had relinquished her rights in favour of plaintiff's firm but the said relinquishment has nothing to do with the business of the firm of the defendant which was existing since 1958. Specifically, attention of the court is drawn on date of this petition which is 18.5.1999. It is the same period when this defendant claims to have got knowledge of the alleged Result: Application Dismissed. Page 80 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 forgery in the dissolution deed through his mother Smt. Kamla Devi.
82. It is claimed that on 25.05.1999 submissions was made and recorded by the Hon'ble High Court of Delhi wherein Advocate of the defendants placed strong reliance on WILL at 3.4.79 of Sh. Ganga Bishan and thus the plea that it is a fabricated document does not survive at all.
83. It is further submitted that Ex. PW1/64 which is copy of the petition of April, 1992 by Prabhu Shankar Aggarwal wherein the second defendant is arrayed as defendant no. 7, shows that the defendants had sufficient knowledge about the recording of names of plaintiff's as subsequent proprietors of Trademark no. 285062. Similarly, Mr. Sharad Aggarwal also filed a suit for declaration and injunction bearing no. 853/92 in the Civil Court, Calcutta wherein Mr. Ashok Aggarwal is defendant no. 7. It is also evident from the same that the defendant had due knowledge about the plaintiff's being subsequent proprietor of TM285062.
84. It is further submitted that in the order of the Hon'ble High Court of Calcutta dated 09.05.2000 passed in suit titled Prabhu Shankar Aggarwal Vs. M/s Shiv Deep Products and Ors. it is duly recorded as a contention that an application stood filed seeking injunction restraining the trade mark holder of Delhi from using the same thereby implying the defendant had due knowledge of the registration of trademark in the plaintiff's name as this defendant was arrayed as defendant no. 7 in the said petition and also as the said application stood decided by the single bench of the Calcutta High Result: Application Dismissed. Page 81 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Court on 26.7.92 which period is in close proximity of filing of this suit.
85. It is further submitted that the deed of partnership dated 1.4.91 reveals that this defendant agreed to carry out business with Mr. Prabhu Shankar in the name of Haldiram Bhujiwala w.e.f 01.04.91 and there is no reference in the deed regarding the fact that first defendant is new concern thereby implying that it is the old and established firm as pleaded in the written statement. In the same context, it is submitted that as per admitted document Ex. D17, this defendant sought substitution in place of Mr. Rameshwar Lal as partner of firm Haldiram Bhujiwala which is an old and established firm by moving an application U/o 22 Rule 3 CPC. This defendant also claimed himself as partner of M/s Haldiram Bhujiwala. Even Mr. Prabhu Shankar deposed in his evidence in the Civil Court at Calcutta in title suit no. 1540 of 1973 to be a partner of this firm with the defendant Ashok Kumar Aggarwal as on 19.4.1993. Same is Ex. PW1/66. Further Ex. PW1/69 which is certified copy of the order dated 22.04.1993 in the said title suit also shows that both above named persons were found to be partners of this old and established firm.
86. Attention of this court is also drawn to the order of Hon'ble Delhi High Court in appeal no. 1786/2000 wherein it was observed that 'there is no doubt that Smt. Kamla Devi was a party to the Deed of Dissolution'. It is also pointed out that in the order dated 03.06.2010, in FAO No. 155/1999 due reference is made as an undisputed fact that Ganga Bishan @ Haldiram Result: Application Dismissed. Page 82 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 is the grandfather of the suit parties.
87. It is further shown that as per form TM5 filed by Mr. Mahesh Kumar Aggarwal in OPP no. DELT2490/57924, it was claimed that Mr. Mahesh is one of the partner of M/s Haldiram Bhujiwala, Calcutta as on 26.12.2000. Even this defendant alongwith Mr. Prabhu Shankar, Mr. Mahesh Kumar and Mr. Sharad Aggarwal have claimed themselves as subsequent proprietors of Haldiram Bhujiwala by filing form TM5 in the same proceedings which is Ex. PW1/72. Further, as per form TM5 which is Ex. PW1/73 Smt. Kamla Devi herself claimed as on 26.12.2000 that she "had been" carrying on her business in partnership in the name style of M/s Chandmal Gangabishan and also as Haldiram Bhujiwala having its "Head Office" at Bikaner with the other three partners in respect of Bhuja, Papad Fried, Namkeen etc. It is pointed out that the same is an admission of one of signatories to the dissolution deed which is Smt. Kamla Devi herself, of dissolution of the firm and also that the Head Office of this firm very much existed at Bikaner. Further, this document also establishes that there is no reference to either the business or oil merchant or money landing therein.
88. It was further submitted that it is not only the declaration deed which establishes prior user of the trademark by the plaintiff / their predecessor in interest Sh. Ganga Bishan since 1941. One such document is said to be the affidavit of Sh. Rameshwar Lal Aggarwal s/o Sh. Ganga Bishan @ Haldiram filed in the court of MM/Calcutta on 9.6.1976 wherein it is Result: Application Dismissed. Page 83 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 deposed that Haldiram is nick name of his father who was trading under the name Haldiram Bhujiwala since his younger age. Likewise, the admitted document Ex. D18 which is the evidene of distinctiveness dated 09.06.78 of Sh. Rameshwar Lal also contains the same deposition. This affidavit also reveals that the sales figures of the firm of Mr. Rameshwar Lal from 1961 to the year 1978 reveals that he did not mention any particular State therein qua such business. Whereas in the affidavit by way of evidence of distinctiveness Ex. PW1/7 dated 16.7.1974 filed by Mr. Mool Chand Aggarwal in support of application no. 285062, he made mention of various States including the State of Bengal with respect to the sales figures of firm M/s Haldiram Bhujiwala also trading as Chand Mal Ganga Bishan, Bikaner. Both proceedings were filed by the same advocate. It is submitted that had there been any business of Sh. Rameshwar Lal out side of West Bengal then his affidavit would have also mentioned such States.
89. It is further pointed out that from the admitted document Ex. D12 i.e the copy of appeal by Smt. Kamla Devi in FAO No. 143/2000 she stated that Mr. Ganga Bishan himself started the business of selling sweets and namkeen etc from his shop at Bikaner some time in 1940. Here, no reference to the oil commission business is made. Likewise, in FAO No. 142/2000 Sh. Prabhu Shankar and in FAO No. 153/2000 Sh. Mahesh Aggarwal themselves stated the name of Sh. Ganga Bishan as alias Haldiram. Further, it is submitted that the Assistant Registrar Trademark, Result: Application Dismissed. Page 84 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Calcutta has duly recorded in order Ex. D42 B, which is an admitted document, that Sh. Rameshwar Lal had made two affidavits on 9.6.1978 and 9.6.1976 respectively. Hence, these affidavits are not in dispute.
90. It is further pointed out that the admitted document Ex. D43 makes due mention of the joint venture agreement dated 10.12.1991 which shows that Mr. Prabhu Shankar retired from the business on 11.11.1980. Hence, his share can not be inherited as he ceased to be joint proprietor of TM No. 330375.
91. It is further submitted that the defendant filed two list of documents both dated 12.8.99 wherein they show to be filing the 'copy of dissolution deed signed by Smt. Kamla Devi Aggarwal'. It is pointed that these lists were filed subsequent to the alleged disclosure to the defendant by Smt. Kamla Devi regarding her signatures on the dissolution deed and therefore, this story itself stands belied.
92. It is submitted that despite the plaintiff's notice U/o 12 Rule 8 CPC, the defendant has not produced the original documents including the alleged family settlement and the joint venture agreement itself. In this context, the affidavit of Smt. Kamla Devi, ExD10 makes reference to this Joint Venture Agreement amongst her three sons and her grandsons which was verified by her at Delhi on 23.12.91. Thus, even her signatures on Ex. D10 can not be disputed and compared by this court with signatures on the dissolution deed. Copy of same document is available in Vol. V. Ex. D44 (admitted) Result: Application Dismissed. Page 85 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 makes due mention of this affidavit not only of Smt. Kamla Devi but also of Smt. Manju Aggarwal and Smt. Bimla Devi Goyal. This copy shows that the non judicial stamp paper was purchased at Delhi on 18.12.91 only. Thus, the joint venture agreement is itself antedated. Same is the position with the copies of the affidavits of the sisters of this defendant. ExD43 and D44 are the admitted covering letters of their advocate Mr. R.N.Prabhakar.
93. The next argument of plaintiff's counsel is to the effect that the discharge card issued in the name of Smt. Kamla Devi by Dr. N.C Rakshit of Sewa Pratishthan showing that she was admitted to said Nursing Home on 15.11.74 to 17.11.74, is a fake document and is result of procurement for the reasons that no other supporting document regarding the same has been provided. No admit card or treatment details are provided. It is further submitted that original of this card has been filed by the defendants in TM 03/11 while its photocopy was filed in this case. Same is ExPW1/17. It is further submitted that issuing doctor was arrested for running his Nursing Home without valid papers and necessary infrastructure in which regard a newspaper cutting dated 5.8.99 of Anand Bazar Patrika has been filed. On the dissolution deed, the attention of the Court is further drawn to the proceedings in CRR 1421/2000 of Hon'ble Calcutta High Court filed by Sh Shiv Kishan Aggarwal/PW 2 seeking closing of proceedings in case No. C063/2000 pending in the Court of MM, Calcutta. In the said proceedings, Result: Application Dismissed. Page 86 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 an order was passed on 5.2.2001 wherein it was observed as an admitted position that in two judicial proceedings i.e one in the Hon'ble High Court of Delhi and the other in the Hon'ble Supreme Court, the deed of dissolution was taken into consideration and on both the occasions, the Hon'ble Courts affirmatively held that such deed existed and the same includes the signature of Smt. Kamla Devi.
94. So far as the existing bank account of the firm at Bikaner is concerned, attention is drawn to the admitted document ExD11 which is a certificate issued by the concerned bank i.e State Bank of Bikaner & Jaipur on 15.9.99 to the effect that the bank account is not bearing any transaction since 17.12.80 and is in dormant state. In the same context, it has been submitted that the account did exist even after 1974 but only for purposes of defraying the expenses/liabilities with respect to the sales tax etc of the dissolved firm. It is further submitted that simply because the said account was not closed, it can not be said that the firm itself was never dissolved. It is averred that there is no legal requirement for closure of said account even otherwise. In the same context, it is submitted that PW 5 has deposed on 24.10.2013 in his cross examination that the said account is now closed.
95. PW 9 produced the certified copy of the register of the stamp vendor for 16.11.1974 which shows as many as 3 entries of purchase of non judicial stamp paper by PW 1 Sh Manohar Lal and one of which is in respect of stamp paper for preparation of dissolution deed. The number of Result: Application Dismissed. Page 87 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the entry tallies with the same number provided on the reverse page of the stamp paper of the dissolution deed.
96. It is further argued that it was in the year 1985 that the copy of deed of dissolution was produced before the Registrar, Trade Marks by Advocate Sh R.N Prabhakar who also represented the defendants, thus, the knowledge is to be imputed upon Sh Rameshwar Lal of the above facts. Adverse inference is to be drawn as to why same was never challenged despite such knowledge.
97. It is then argued that none of the LRs or the LRs of LRs post death of Sh Ganga Bishan in 1980, ever challenged the deed of dissolution. It is submitted that the said LRs would also become beneficiary to the extent of their proportion in 25% if the firm was proven to have not been dissolved. It is submitted that in the absence of such challenge, the belated challenge now made by this defendant is nothing but an afterthought.
98. In this connection, it is submitted that on 26.8.1986 the Commercial Tax Officer, Sri Ganga Nagar, Rajasthan had issued summons to the ex partners of the firm which is evident from document ExPW1/60 thereby leaving no doubt that the firm stood dissolved. In the same connection, reliance is placed on ExPW1/61, which is certified copy of the SB Civil Writ Petition filed at Jodhpur High Court by Sh Shiv Rattan, S/o Sh Mool Chand against the Commercial Sales Tax Officer and all the LRs of Sh Ganga Bishan as well as Sh Mool Chand. One such respondent made Result: Application Dismissed. Page 88 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 therein is Smt. Kamla Devi, wife of second defendant. All these persons are referred to as expartners of the dissolved firm. It is urged that even at that time, Smt Kamla Devi herself never preferred any objection upon any such reference made to her as expartner. Copy of the same was produced by PW 14 which is ExPW14/2. Similarly, even in order dated 23.3.93, certified copy of which is ExPW1/62 passed in the proceedings of said writ petition, the Hon'ble Rajasthan High Court has also referred to Smt. Kamla Devi as one of the expartner of the dissolved firm. This judgment also stands reported in 1993 (1) RLW Page 267. In the same context, it is submitted that in the certified copy ExPW1/63 in the same proceedings, clear averment is made that the firm itself was dissolved in the year 1974 still, Smt Kamla Devi, respondent no. 2 therein did not raise any objection. It is further submitted that plaintiffs have also produced income tax records of PW 2 which are ExPW1/54 to ExPW1/57 respectively for the periods from 19741980 wherein no income has been shown from the firm Chand Mal Ganga Bishan which is also in support of the plaintiff's claim of dissolution of firm.
99. It is also pointed out in respect of the Will of Sh Ganga Bishan on which defendants themselves placed strong reliance in Hon'ble High Court of Delhi as recorded in order dated 25.5.99 that in the same, no reference with respect to any bequeath qua the assets of Chand Mal Ganga Bishan or trade name Haldiram Bhujiawala was ever made in favour of Sh.
Result: Application Dismissed. Page 89 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Rameshwar Lal which is also in support of the plaintiff's claim. It is further submitted that all these documents find due mention in the order of Sh M.R Bhalerao, Asstt. Registrar, Trade Marks dated 31.7.1980 wherein due appearance was made by Sh R.N Prabhakar, Advocate.
100. It is further submitted that ExPW1/12, certified copy of written statement of Sh Ganga Bishan @ Haldiram in title suit no. 1540/1973 filed in civil Court at Calcutta also mentions that Sh Ganga Bishan started his business at a very young age and that Sh Rameshwar Lal was authorized to use the trade name Haldiram Bhujiawala at Calcutta in 19571958. It is submitted that this was a suit of Sh Rameshwar Lal himself and that he never challenged that Sh Ganga Bishan was not known as Haldiram or that he was not authorized by Sh Ganga Bishan to use the trade name Haldiram Bhujiawala only at Calcutta.
101. It has been further argued that ExPW1/14 is copy of Form 24 filed on behalf of sons of late Sh Mool Chand before the Registrar, Trade Marks on 16.9.1985 with which the copy of dissolution deed was enclosed. Sh R.N Prabhakar was also the advocate of Smt. Kamla Devi and the LRs of late Sh Rameshwar Lal. They have not challenged despite the fact that copy of dissolution deed stood filed in those proceedings in the year 1985 itself. In the same context, it is further submitted that Sh R.N Prabhakar, Advocate was duly authorized by Chand Mal Ganga Bishan on 18.12.1972 itself for representing them as an agent on its behalf which would show that he was Result: Application Dismissed. Page 90 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 authorized representative of Smt Kamla Devi also even prior to the dissolution. Even on 15.2.1975 i.e soon after the dissolution of the firm, Sh Rameshwar Lal himself authorized the same advocate by executing form TM 48 for representing him on behalf of his own firm. It is therefore, urged that the LRs of said Sh Rameshwar Lal including Smt Kamla Devi are now estopped from raising any challenge to the authorization of said advocate.
102. In the same context, reference is also made to the admitted document form TM 48 executed by Sh Rameshwar Lal as well as Sh Prabhu Shanker on 10.10.1977 whereby which they authorized Sh R.N Prabhakar to represent them in the matter of TM 330375.
103. Regarding sales of the firm of Sh Rameshwar Lal outside the state of West Bengal, it is submitted that firstly, the said firm had agreed by declaring a disclaimer to the use of 'Bikaner Ka Suprasid' in respect of their TM no. 330375 and secondly, they made submission in admitted document ExD37 which is letter of Sh R.N Prabhakar, Advocate on their behalf to the Registrar, Trade Mark Calcutta that Haldiram Bhujiawala is the only firm trading in the name of Haldiram Bhujiawala at Calcutta and no other application was pending in their name. In this context, reference is also made to the affidavit of Sh Rameshwar Lal earlier stated in this order.
104. Regarding the deed of dissolution, it is again submitted that the original of the same was earlier filed in the Calcutta proceedings and subsequently in proceedings in criminal case no. 1228/2005 at Jodhpur, Result: Application Dismissed. Page 91 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Rajasthan. The charge sheet thereof has been produced in this Court by PW
18. The letter of authority, copy ExPW18/5, was duly filed in the sales tax proceedings which reveal that the original thereof was signed by Smt Kamla Devi. In this context, the report of FSL, Rajasthan is clear that the original size of the paper was altered with the help of sharp edged instrument. It is submitted that as per the letter of authority, it was executed due to death of Sh Ganga Bishan and even 12 days had not passed post his death. In these circumstances, the partners of the dissolved firm were unable to attend the proceedings in person and thus Sh Janki Dass Gandhi was authorized in this regard. It is submitted that even in the said letter of authority which is dated 27.2.1980, reference is made that the firm had been dissolved. It is further submitted that the averment that there is tampering with the date column of the dissolution deed is nothing but an after thought as the plaintiffs herein could not have foreseen in the year 1974 about this litigation wherein a plea of alleged forgery of the deed will be taken belatedly by the defendants herein. It is submitted that even otherwise, the deed of dissolution stands admitted as per pleadings in para 5, 6& 10 of the first written statement dated 13.12.91. It is stated to have been admitted in the second written statement of January 1992 in para 1a, 1b, 1c, 1j, para 5 & 7 respectively. Even in the third written statement dated 18.2.12 it is said to have been admitted in para 1(b) to 1(e), 1(L), 1(M), para 5 and 1(V) respectively.
105. Subsequent thereto, the relevant parts of cross examination of Pws Result: Application Dismissed. Page 92 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 was again read out in the Court. It was urged that the witnesses of the plaintiffs have duly succeeded in shifting the onus to the effect that there is no forgery in the dissolution deed and same has not been shifted back upon them. It is further submitted that the deed of dissolution has been duly proved by them which is otherwise also admitted. It is urged that due permission has been taken under Section 65 (c) of the Evidence Act, 1872 for even leading secondary evidence on this document. In this regard an application was filed under Section 65 of the Evidence Act on 20.1.09 and order thereupon was passed on 21.2.09 whereby which this application was considered and disposed of observing therein that the plaintiff must prove the ingredients of Section 65 and once they had satisfied then only the plaintiffs can be allowed to lead secondary evidence and otherwise not. It is submitted that ingredients have been duly proved by PWs wherein it has been categorically stated that the deed is a lost document.
106. No useful purpose would be served in repeating the evidence that has been already read out to the Court and duly considered and set out in this order. However, it has to be pointed out that the witness PW 3 Sh Girdhar Lal Dahiya has duly affirmed the fact that he stood witness to this document. Despite the above, no question was put in cross examination to the witness specifically that neither he signed on the deed nor he was present at the family house of Bikaner on 16.11.1974. It has been submitted that all relevant documents have been otherwise proved by calling the Result: Application Dismissed. Page 93 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 relevant witnesses and even those documents have been proved which have been otherwise admitted by Pws. It has been submitted that there is also controversy regarding whether this defendant had gone to Calcutta in the year 1999 or whether his mother Smt Kamla Devi had come to Delhi to attend her ailing son. It is submitted that as per admitted document ExD13, which is copy of criminal complaint filed on 11.04.2000, it was Smt Kamla Devi who came to Delhi in the first week of June 1999 to attend her ailing son. Likewise in FAO 143/2000 again Smt Kamla Devi has stated to have come to Delhi to attend her ailing son. It is therefore, submitted that entire basis on which the averment of disclosure of fraud in May/June 1999 is nothing but an afterthought. It has been specifically pointed out that the FAO 143/2000 was filed subsequent to the date of filing of amendment application. It is thus submitted that this is a major contradiction in the plaint taken by Smt Kamla Devi and stand taken by this defendant that can not be ignored.
107. Subsequent thereafter, ld counsel for defendants has placed reliance on catena of judgments on the law that the admissions are best piece of evidence. Judgments are also placed of the applicability and construction of Section 60 of Evidence Act. Judgments are also relied upon on the issue of who to be considered as an interested witness. Case law is also relied on the opinion of hand writing experts. On the aspect of undue influence also several judgments have been relied upon. Judgments are also cited on the Result: Application Dismissed. Page 94 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 interpretation of fraud, undue influence and coercion. This Court refrains itself from referring to all the judgments and shall refer only to the leading judgments on the issue as majority of them are on the same points.
108. The reason as to why this Court has set out the proposed amendments is necessitated out of contradicting pleas of the advocates to the effect that the order of my Predecessor dated 22.1.2005 allowing the application of the defendant under Order 6 Rule 17 CPC survives or does not survive. In my considered view, this question does not arise for consideration at all. Nevertheless, the proposed amendments have been incorporated in the preceding part of this order in order to cull out as to what could be the material in possession of the defendants that they could have produced during cross examination of relevant witnesses of the plaintiff to set out a prima facie case of forgery. In this context, suffice would be to say that the Hon'ble Apex Court in its order dated 1.10.08 has categorically observed that the trial Court had erred in allowing the amendment application as it had gone into virtually the merits of the case and sought to correct the existing admissions vide the impugned order. Simply put, this amounts to reversal of the order of my Predecessor dated 22.1.2005. Consequently, there are no proposed amendments before this Court. At the same time, permission was given to file additional written statement to the defendants herein if this Court finds a prima facie case of forgery upon examining the cross examination offered to the plaintiff's Result: Application Dismissed. Page 95 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 witnesses on the question of 'execution as well as contents of the dissolution deed'. As it was informed to the Hon'ble Apex Court that pursuant to order dated 22.1.2005, the defendants had already filed amended written statement, the Hon'ble Apex Court took note of this fact directing that the said written statement will be taken into account as and when a prima facie case of forgery is made out during trial. This direction takes care of the fact that the defendants were at liberty to file additional written statement. Simply put, the liberty to file additional written statement stood substituted with direction to the Court to consider the written statement filed on 29.1.2005 as the said 'additional written statement'. This would, at the same time, imply that the defendants eventually succeeded in at least getting their amended written statement placed on record. The same however, does not at all, classify as a blanket liberty to them to raise an argument that the Hon'ble Apex Court had not interfered with the order of the Predecessor Court dated 22.1.2005.
109. What was thereafter imperative upon the defendants was to cross examine the plaintiff's witnesses, at the stage of proving of dissolution deed, by relying on the material in their possession.
110. It would be also apparent that the liberty as granted to the defendants is only with respect to cross examining the PWs limited to the question of execution as well as the contents only of the dissolution deed. I may state that the cross examination of the witnesses as recorded before the Local Result: Application Dismissed. Page 96 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Commissioner has traversed far beyond this liberty but it does not imply that this Court has to consider such extraneous cross examination. To put in simple word, a few such instances of extraneous cross examination is relatable to the execution of deed of declaration of Sh Rameshwar Lal dated 16.11.1974. Another such instance is the cross examination of plaintiff's witnesses is qua incidents previous to as well as subsequent to the execution of deed of dissolution. This Court is further required to look into the 'entire gamut of the cross examination' limited to this issue as directed by the Hon'ble Delhi High Court vide its order dated 9.8.11. It is so as the Hon'ble High Court is of the view that the plaintiff shall have to lead evidence on the proof of this dissolution deed to prove its contents and execution in terms of directions of Hon'ble Apex Court dated 1.10.08. It was ordered that this Court will afresh examine the entire gamut of evidence only after the entire evidence has been led on 'this issue'. It has been projected during arguments that the plaintiff was required to lead entire evidence which, I am afraid, is not the correct proposition. It is so as the Hon'ble Delhi High Court was aware of the fact about which particular witnesses are required to be examined by the plaintiffs to prove the contents and execution of the dissolution deed, which fact stands recorded in para 3 of order dated 9.8.11. Only that much is therefore, to be examined by this Court. Further, in this context, both the advocates have unnecessarily put forth their submissions as if this Court is hearing the final arguments. The same was not at all Result: Application Dismissed. Page 97 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 necessitated and not required as otherwise also, the Court had to dealt with these submissions on the point, which it could have dealt with only after the parties concluded their arguments on the point as to whether the dissolution deed itself stood proved or not. Thus, in my view, is an incorrect approach of the advocates which has been evident throughout the arguments. The directions of Hon'ble Apex Court are crystal clear leaving no ambiguity at all. This Court is to only confine itself to examine the issue of execution of deed as well as its contents at the time when stage comes during trial for plaintiff to discharge onus on this point. There are no directions for this Court to record an opinion at this early stage of trial, when the other side is yet to lead evidence, to record finding as to whether the plaintiff is successful in proving the deed of dissolution. If that be the occasion, then, it would tentamount to recording an opinion at this early stage of trial itself that may render the remaining trial unnecessary. Needless to say, if the other party does not get a right to lead its independent evidence towards challenge to the execution and contents of the dissolution deed then or to prove 'undue influence', it would be a travesty of justice to nail the issue at this nascent stage of trial. In my considered view, this interpretation of the orders of Hon'ble Apex Court or for that matter, the orders of the Hon'ble Delhi High Court dated 9.8.11 can not be permitted to be even urged before this Court. As stated earlier, the directions of both the Hon'ble Courts are crystal clear but twisted only by the arguing counsels. As this issue Result: Application Dismissed. Page 98 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 stands aptly addressed and replied to, I proceed further.
111. This Court is, while examining this issue, to proceed on the plea that the dissolution deed was executed under coercion (read undue influence). It is to see and examine the cross examination of plaintiff's witnesses as offered to them only to the limited aspect of the execution of the dissolution deed and its contents and nothing else. Of course, such cross examination will be offered only on the grounds that are taken by the defendants seeking amendment to the written statement on the point that the said deed was not signed under undue influence but not signed at all and thus forged. It is then to see as to what material the defendants rely after producing from their possession. It is only then that it can form an opinion that a prima facie case that the deed was never signed by Smt. Kamla Devi exists or not. Of course, if such prima facie examination reveal that Smt. Kamla Devi could not have signed it and its execution is mired under suspicious circumstances, then, it will definitely be a forged document.
112. This Court has been deprived of assistance upon legal interpretation of the term 'prima facie'. It shall therefore, fall back upon the implication of this phrase as put forth by law in this regard as per Order 39 Rules 1 & 2 CPC, which is well settled. Simply put, the defendants would be required to show just that they are likely to succeed in their plea at the end of the trial. This does not call for a meticulous examination of evidence of PWs, in the light of clear directions of Hon'ble Apex Court, which does not imply that Result: Application Dismissed. Page 99 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 this Court will have to return a finding at this stage as to whether the deed is proved or not.
113. I have already discussed as to what defence was taken from time to time by this defendant in his various written statements. Same are ever shifting. They shifted dramatically within a short span of three months in December 1991 and January/February 1992. There was a lull till 18.4.09 when the latest written statements was filed. Subsequently thereafter, this position as existed in the latest written statement was sought to be disturbed yet again by the defendants by making application for amendment to this written statement on 5.10.99.
114. Between 18.4.09 and 5.10.99, several developments took place. The interim order of this Court dated 10.12.91 that was in plaintiffs favour stood confirmed on 12.5.99. In June/July, 1999, this defendant claims to have been called by his mother Smt. Kamla Devi, who is plaintiff in other suit bearing TM 03/11, upon which he had gone to Calcutta where he discussed this case with his mother who was shocked to learn about plaintiff's reliance on dissolution deed which according to her, she never signed. This development resulted into defendant understanding, as averred, that he was made a scapegoat by Sh R.N Prabhakar, Advocate to his detriment and for plaintiffs' benefit. It further resulted into a petition before Court for amendment to his latest written statement.
115. I am afraid that very edifice of this plea is found to be having a very Result: Application Dismissed. Page 100 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 unstable and shaky foundation which I will describe herein after. It does not stand to reason that if the ground advanced that offers the plinth upon which the entire gamut of the pleadings is sought to be amended and evidence offered thereupon is shaky then as to how the foundation itself can sustain resulting into demolition of entire defence on the issue.
116. Conflicting versions are found. Firstly, it is a plea of the defendant that his mother had become a recluse for the reasons that occurred w.e.f January 1991 and continued even till the time of his visit to his mother in the year 1999. However, to substantiate this plea, this defendant has not produced even a single material in his possession to be offered to Pws in their cross examination which was otherwise expected of him. To simply put, such material could have been medical record pertaining to her alleged cerebral attack in January 1991. Interestingly, cerebral attack is elsewhere stated to be a cardiac arrest. Such material could have been suggestions of such nature to PWs, who are relatives, that Smt. Kamla Devi got disturbed due to death of her husband Sh Rameshwar Lal in March, 1991 and the tragic death of her second son at 29 years of age in a car accident. The plaintiff could have been confronted with the record of treatment of Sh Prabhu Shanker Aggarwal who was alleged to have been seriously attacked by miscreants in Calcutta for which he was hospitalized for months. The police case record could have been also put to the plaintiff's witnesses. The defendants could have produced the record of Smt Kamla Devi's grand son Result: Application Dismissed. Page 101 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 regarding the alleged treatment of malignant brain tumor and consequent brain surgery at Trivandrum w.e.f February, 1992. The plaintiff's witnesses i.e PW 1 and PW 2 who are relatives of Smt. Kamla Devi as well as this defendant could have been atleast suggested that Smt Kamla Devi was extremely disturbed also due to death of her brother that too, at a very young age in August, 1993. The material could have been produced to show that another younger brother suffered from brain hemorrhage in August 1993 and that in quick succession, her mother also expired in April 1995. Record of medical treatment of daughter of Smt Kamla Devi's sister due to which she lost her ears and nose at the age of 30 years at Bombay in 1996 could have been produced. The treatment record of her elder son Prabhu Shanker with respect to lever cirrhosis in March 1998 could have been produced. Record that Smt Kamla Devi suffered from a fracture in one of the vertebrae of her spine could have been also produced. This was the least that was expected of the defendant in order to show that for these compelling reasons, Smt Kamla Devi lost all interest in material life and thus her son i.e this defendant could not have disturbed her for a good period of almost more than 8 years which was the time that went into trial of this case till May/June 1999. Surprisingly, in this context, it was a contention of this very defendant that he is not bound by the acts of his mother as family does not follow matriarchal system. Otherwise also, he does not derive any rights from his mother but only from his father late Sh Result: Application Dismissed. Page 102 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Rameshwar Lal. In this context, he did not stop at this and claimed that the dissolution deed is of no consequence as there is a valid registration of trade mark no. 330375 subsequently in his name also.
117. The above various pleas that the defendant seeks to justify are actually also part of foundation of his new defence as then only he can justify the further foundation of his defence that he went into extreme depression and suffered from mental shock post confirmation of stay order dated 12.5.1999. If the defendant is to be believed, then he had still not made any attempt to disturb his mother who was a recluse by then. As per pleadings sought to be amended, it was his mother who only called him to Calcutta after knowing of his then state of body and mind. This brings me again to the basic foundation of this defence.
118. It is defendants' stand that she could not be disturbed being a recluse and not taking part in any family affairs and was not at all interested in material life. However, this Court also has the benefit of taking judicial notice of the pleadings made by Smt. Kamla Devi herself in her own suit TM 03/11 wherein she categorically submits in para 12 that she only ceased to be involved in day to day activities of firm Chand Mal Ganga Bishan but major decisions were taken with her consent. If it be correct that the firm was not dissolved and continues then the averment to the effect that she lost interest in all material life does not stand to reason. She then could have appointed somebody on her behalf to take care of the business of the firm in Result: Application Dismissed. Page 103 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 order to protect her interest in it to the extent of 25% share of profits of the said firm. There is nothing before this Court in that regard.
Further in para 14 of her plaint, she states that in first week of July 1999, she asked her ailing son i.e defendant Sh Ashok Kumar Aggarwal, who had suddenly fallen sick, to come over to Calcutta. It is apparent that he went to Calcutta where he disclosed about the dissolution deed and the entire story about its forgery came to light. However, this is otherwise not the case as set up by her. In this regard, in admitted document ExD12 i.e pleadings in FAO No. 143/2000 which are dated 16.5.2000, i.e post filing of the amendment application, Smt. Kamla Devi makes a submission in para 5 that she had come over to Delhi in first week of June 1999 in order to attend to this defendant who had suddenly fallen sick. Not only this, she maintains this stand also in admitted document ExD13 which is copy of criminal complaint filed by her in the Court of MM, Calcutta on 11.4.2000, i.e post the date of amendment application where she again submits to have come to Delhi in the first week of June 1999 to attend her ailing son. This fact has been also taken note of by the Predecessor of this Court in para 23 of the order dated 22.1.2005. It is found that contrary descriptions are given with respect to the particular month in the year 1999 when this information was disclosed by Smt Kamla Devi for the first time to her son/defendant herein.
119. This major contradiction can not be ignored by this Court if it has to permit the defendant to make a volteface against what they have already Result: Application Dismissed. Page 104 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 admitted. In the same context, no record of any kind of treatment or medication of this defendant regarding his mental shock post knowledge of date of exparte injunction order dated 10.12.91 or even post of knowledge of order dated 12.5.1999, is produced before any of the witnesses to cross examine them that this witness was so disturbed that, as per rejoinder to the amendment application, he signed on pleadings drafted by Sh.R.N. Prabhakar, Advocate in the year 1991 without discussing facts. Sh R.N Prabhakar, Advocate was admittedly the advocate of both the sides and was specifically also appointed by the firm Chandmal Ganga Bishan to represent them before the Trade Mark Registrar in the year 1992 and also specifically appointed in the year 1976 by Sh Rameshwar Lal also. There is no reason for this Court to believe at this stage that even if he was acting to the detriment of this defendant, then, he could have simply admitted the execution of the dissolution deed at the first place itself without challenging it as a void document. There is only one reason which then remains for Sh Prabhakar, Advocate to have provided pleading of admission of signatures of Smt Kamla Devi on the dissolution deed which is that such deed was actually executed and signed by Smt. Kamla Devi about which he very well knew since its execution being the advocate of these parties. Had it not been so, Sh R.N Prabhakar, Advocate could have very well added a submission in the written statement itself that the execution of deed of dissolution and signatures of Smt. Kamla Devi thereupon were being admitted for the time Result: Application Dismissed. Page 105 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 being only, without prejudice to alternate plea that it is forged as the defendant was not in a position to disturb his mother who had allegedly become a recluse. When the declaration deed of Sh. Rameshwar Lal surfaced, the defendant took a stand that it is forged document but maintained the plea that the dissolution deed was signed under undue influence.
119.1. In the same context, the plea of recluse as in the amendment application, points out that various incidents occurred in her life w.e.f January 1991 uptil the year 1999 prompting her to become a recluse. Obviously this process, if believed, can not be sudden and has to be slow and gradually occurring process. First written statement was signed and filed on 13.12.91. It would be evident on reading facts regarding recluse that till then, only four incidents had occurred in her life i.e in January 1991, she suffered from cerebral attack; in March 1991, Sh Rameshwar Lal died. There is no plea that the death was sudden. The third incident is death of her second son in May 1991 in a car accident while the forth one is in December 1991 when her son Prabhu Shanker was allegedly attacked by miscreants. These four incidents does not justify that Smt Kamla Devi would have become a recluse in the short period between January 1991 to December 1991. There is no whisper in any of the written statement about these facts. No reservation of right is made in any of them that the defendant will plead additional facts after consulting his mother at an Result: Application Dismissed. Page 106 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 appropriate time. On the contrary, the pleadings have been verified by the defendant as made out of his personal knowledge.
119.2. There was an exparte order against the defendant dated 10.12.91 which was passed on the basis of plaintiff's documents including deed of dissolution. It has come on record and the Court also has the opportunity to take judicial notice of the cross examination of this defendant recorded as PW 1 in TM 03/11 i.e Smt. Kamla Devi's suit wherein this defendant claims that he suffered from a mental shock affecting his state of body and mind after coming to know of the exparte order which remained for 4 to 5 months. It being so, he still do not take stock of this case after coming out of such state of body and mind when admittedly he could not even open shop in the month of December 1991 at Karol Bagh, New Delhi. Rather, he preferred to keep silent till long after 12.5.99 i.e the date when the interim injunction order was confirmed. Even after that, both mother and son are unsure as to whether the son came to Calcutta or the mother went to Delhi. This occasion only came after 12.5.99 and therefore, is liable to a very minute scrutiny. In this context, the aspect of judicial admissions also comes in play which are found to be unimpeachable and best piece of evidence even over documentary evidence as would be evident from judgment on the point by plaintiffs.
120. Interestingly, the defence that the deed of dissolution was signed by Smt. Kamla Devi still stands in proceedings of C.O 4/92 which have not Result: Application Dismissed. Page 107 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 been sought to be amended so far.
121. In a further quest to show to this Court that the dissolution deed is a prima facie forged document, the defendants as per their own pleadings, rely on the following material in their possession viz;
1. Various statement of accounts supplied by M/s Chandmal Ganga Bishan to Smt Kamla Devi Aggarwal even after the year 1974.
2. Passport of Smt Kamla Devi Aggarwal to show her address of 3A Brojodulal Street, Calcutta.
3. Certificate from State Bank of Bikaner, Rajasthan to show that current account of the firm still existed.
4. Income tax assessment orders/returns of Smt.Kamla Devi Aggarwal.
5. Coloured photocopy of the alleged dissolution deed dated 16.11.1974.
6. Medical prescrption of Smt.Kamla Devi.
7. Orders passed by Asstt. Registrar, Trade Marks.
8. Deed of partnership dated 31.10.1969.
122. These are said to be such documents which were not in the knowledge of defendant nor available with him as stated in para 21 of the amendment application. Of course, there are other documents also to which no reference is made in para 21.
123. At best, the defendant could have produced these documents for confronting PWs. Regardless of their answers, production of such documents would have afforded them an opportunity to seek to prove these Result: Application Dismissed. Page 108 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 documents as and when their time to lead evidence came. However, these documents have not been put to contradict witnesses of the plaintiff including statement of accounts of Smt Kamla Devi which unfortunately for the defendants reveal nothing.
124. The contention that the dissolution deed is an admitted document is not found to be of much force in view of the fact that defendants were permitted to cross examine PWs on the aspect of forgery. If this plea goes then of course, the defendants shall remain bound by their admission as exist in their latest written statement of 2009. All of earlier admissions will go away once the amended written statement is taken on record. Merely because that ExD10 and ExD19 have been filed by defendants but admitted only by the plaintiffs during admission/denial of documents does not imply that is an admitted document. On the contrary, copy of dissolution deed filed by the plaintiffs has been categorically denied by the defendants. To this extent, there is no admission. To the extent that it pertains to judicial admission made in pleadings, I have already said that they shall remain intact depending on whether there is prima facie case of forgery or not. In this context, I have already pointed out that the very plea it is not inspiring any confidence.
125. It is in the evidence that the deed of dissolution is a lost or untraceable document. Admittedly, the original thereof has been produced before as many as two authorities. First one is Hon'ble Calcutta High Court Result: Application Dismissed. Page 109 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 wherein this deed was produced and also subjected to opinion of the medical expert as engaged by Smt.Kamla Devi. The plea that forgeries would be evident and therefore, the original has not been produced. Thus, does not inspire confidence. At the second instance, this document was produced before the investigating officer of P.S Udai Mandir, Jodhpur, Rajasthan. Certified copy of seizure memo has been produced by calling the relevant witness. It is also established on record that the original of the same was later on collected from the Court of CJM, Jodhpur, Rajasthan by Sh Mool Chand Chopra. It is plaintiff's case that Sh Mool Chand Chopra had later on informed that he lost this document. It is true that initially the plaintiff did not produce any complaint against said Sh Mool Chand Chopra for loss of his document but it is also a matter of record that during his cross examination, PW 1 had brought with him the police complaint made in this respect but the defence did not put any further question on this document to assail its veracity. Not even a suggestion was given that no such police/Court complaint was ever made. Further, plaintiff had filed an application for leading secondary evidence on this document besides others and I have already pointed out that this application was dismissed but with a rider that if plaintiff led secondary evidence it will be read only when all conditions of Section 65 (C) of Evidence Act stood fulfilled. I find from the evidence on record that these conditions have been duly fulfilled. I am only to look for a prima facie case and not to return a finding if a particular Result: Application Dismissed. Page 110 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 document stands actually proved or not. Suffice would be to say that there is a prima facie case that the plaintiff lost this document and they have already attempted to lead secondary evidence on it. Non production of the original is therefore, not of concern, for these proceedings accordingly.
126. ExPW1/17 is the original discharge card issued from Nursing Home namely Sewa Pratishthan by Doctor N.C Rakshit indicating therein that the plaintiff Smt.Kamla Devi was admitted in that Nursing Home between 15.11.74 to 17.11.74, on which date she was discharged from the Nursing Home. Hence, this is one such document that if projected properly would demolish the entire case of the plaintiffs. It is so as Smt. Kamla Devi could not have signed the dissolution deed at Bikaner if she was admitted far away from Bikaner in Calcutta at Sewa Pratishthan Nursing Home. The original discharge card has been exhibited in the statement of plaintiff's son Sh Ashok Kumar Aggarwal on record of TM 03/11 which is suit of Smt.Kamla Devi against plaintiffs herein. Its copy is on record.
127. Thus, it was required of the defendants herein to atleast produce the original discharge card to contradict PW1, PW2 and PW 3 namely Sh Girdhar Lal Dahiya. Of course, Sh Radhey Shyam Aggarwal, other attesting witness could not be produced by the plaintiffs herein in their evidence being dead. PW2 is the signatory to the dissolution deed who is produced primarily to prove the contents as well as execution of dissolution deed. Similarly, PW 3 Sh Girdhar Lal Dahiya was produced as an attesting Result: Application Dismissed. Page 111 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 witness in respect of not only execution of the dissolution deed but also its contents as witness states on oath that the contents were read over by Janki Dass Gandhi to all the persons who were present at that time. These persons are said to be late Sh Ganga Bishan, late Sh Mool Chand, PW 2 and mother of this defendant Smt Kamla Devi. Besides, Sh Radhey Shyam Aggarwal, PW 1, late Sh Rameshwar Lal and Sh. Janki Dass Gandhi were also present. The witness has affirmed in his cross examination that some other persons from the family were also present and he has named a few of them. This Court is not concerned with other persons. The purpose of stressing upon the persons is to the effect that if this witness i.e PW 3 is so docile that his evidence, according to the defendants, can be procured being subjected to influenced by his employers, then his testimony could have been shaken by mere production of the discharge card to him during his cross examination.
127.1. For the said purpose, efforts could have been made by defendants to cross examine PW 1 on this document by summoning the original from the file of TM 03/11. This Court has thus been deprived of the reaction of as many as 3 witnesses who have deposed about the contents and execution of the dissolution deed. In particular, reference is made to PW 2 and PW 3. It is matter of record that although evidence has been recorded by the Local Commissioner, however, this Court itself had an occasion to record part cross examination of PW 3 in the absence of Local Commissioner. It also Result: Application Dismissed. Page 112 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 had the occasion to see the demeanor of this witness. No such attempt has been made. If the defendants have been saving production of these important documents, some of which I will refer to later in this order, for proving them in accordance of law in their evidence as and when their turn to produce evidence comes, then in my considered view, it was an incorrect and erroneous approach. Why I say so is that this particular defendant does not have the defence of forgery available to him as per the written statement on record. However, this very defence is available as a ground of attack to his mother Smt Kamla Devi in her own suit TM 03/11. Even the Hon'ble Apex Court has held that this Court would proceed on the submission in the written statement that the dissolution deed was executed under coercion (read undue influence).
128. Thus, in my considered view, mere production of this document in the cross examination of PW1, 2 & 3 would have perhaps made out a prima facie case in their favour. Why I say that it 'would have' and not 'definitely have' is for the reason that ExPW/17 (TM 03/11) is not the only document which can shake the plethora of grounds raised by the plaintiffs towards due execution of the dissolution deed and also towards proof of its contents and of course some of them have to be read together to cover cumulative effect. It would have made a difference if the PW 2 and PW 3 were confronted with this document.
129. Further, factum of admission of Smt Kamla Devi at Sewa Pratishthan Result: Application Dismissed. Page 113 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 as one of the ground to prima facie establish that the dissolution deed has been subjected to forgery, the defendants have themselves made a categorical mention in the application under Order 6 rule 17 CPC in para 21 thereof that they rely upon 'medical prescription of Smt Kamla Devi Aggarwal'. Here, they are referring to the medical prescription and not the discharge card. Thus, it is given to understand that they are in possession of medical prescription slip of Smt.Kamla Devi. This Court does not understand as to why if available, the same has not been produced. There is no categoric denial that Dr. N.C Rakshit was not arrested for the reasons on record. However, it was pointed out that the said arrest is nowhere near the year 1974. This Court agrees with that contention. There is nothing on record to establish that in the year 1974 Dr. N. C. Rakshit of Sewa Pratishthan or for that matter, the said Nursing Home itself was engaging into malpractices. However, it is also absolutely correct that one look at the discharge card reveals that it is bereft of any details of treatment that was given to the patient during the period of her purported admission of two days in the said Nursing Home. It is lacking in most of the material particulars. Even if this Court proceeds on assumption that perhaps in the year 1974 the discharge cards were prepared at Sewa Prathishthan only in the printed format that is produced before it in the form of ExPW1/17, then also it would have no reason to assume that brief history of the patient and treatment given will not be forming part of discharge card. Being coupled Result: Application Dismissed. Page 114 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 with various other documents, the discharge card would have made an impact but not in the absence of non production of various other records. I find that this card itself refer to the fact that Smt Kamla Devi was admitted for operation/ for to D.T.E/incomplete abortion. Whether then she was actually operated for extraction of fetus or whether it was removed by some other procedure is not provided on the card. As said earlier, no treatment detail is provided. If the age of fetus was given then perhaps this Court could have formed an opinion that surgery was not necessitated. Nevertheless, I am of the opinion that once specific indulgence was granted to the defendant, they could have searched for more documents to substantiate this plea and could have produced them before PWs. Surprisingly, even the discharge card has not been put to them for confrontation. Thus, the plea of admission of Smt Kamla Devi at Sewa Pratishthan appears only bald. I find no prima facie case on this count.
130. One of the major part of arguments that does not pertain to either the execution or the contents of the dissolution deed are the various statements of accounts of Smt Kamla Devi which according to this defendant, were sent to her at Calcutta by Sh Mool Chand, duly signed, with respect to the firm Chandmal Ganga Bishan even after its alleged dissolution i.e w.e.f the year 1975 uptil 1979. The certified copies of these statements are available on the record of TM 03/11. Its copies are also duly filed in this record. The primary evidence for the same would be those very statements which were Result: Application Dismissed. Page 115 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 purportedly sent by Sh Mool Chand to Smt. Kamla Devi. ExPW1/D2 to ExPW1/D8 are statement of accounts of firm. These are copies. Nothing is shown that these are same copies that were sent by Sh Mool Chand to Smt. Kamla Devi. Nevertheless, profit entry post 1974 ought to have been shown. The plaintiff's had however shought to summon the income tax records of Smt. Kamla Devi for the assessment years 1971 72 onwards. As per Ex. PW7/1 the records pertaining to the assessment year 197172 upto 198788 are not likely in existence. Records w.e.f 198889 upto 201213 were however sent and produced. Needless to say, they do not reveal any share of income or loses from firm Chand Mal Ganga Bishan.
131. Nevertheless, mere sending of statement of accounts would not also have served the purpose in issue so far as the defendants are concerned. At best, they would establish that the accounts were maintained but it would not have established that by way of such implication, the firm itself stood dissolved. There can be various reasons for maintaining the accounts and one such reason, as evident from the deed of dissolution, is the fact that liabilities were also to be shared. The plaintiffs version is that the sales tax liabilities of the firm were not settled and continued for which even proceedings were initiated in the Hon'ble High Court of Rajasthan which is S.B sales tax petition no. 35/1980.
132. Careful perusal of the statement of accounts would reveal that the same are maintained from Deepavali of a particular year till the next Result: Application Dismissed. Page 116 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Deepavali. It is revealed that statement of accounts of Smt Kamla Devi are in the books of accounts of firm Chandmal Ganga Bishan and not of her individual account. For the assessment year 197576, the income generated for the years 197475 should be reflected. Thus, a sum of Rs. 8134.63/ is admittedly credited to her account maintained by the firm evidently as her share in the profits of the firm. Plaintiff's version is that the firm was dissolved on 16.11.1974 itself. If the Court finds that in remaining statements of accounts, there is any entry of profit to the share of Smt Kamla Devi, then, it would be a strong indicator that the firm was not only working post 16.11.1974 but also generating profit. However, none of the remaining statement of accounts from Deepavali 74 to Deepavali 75 and so on till the year 1979 show that there was any credit entry of profits as her share in the firm. It is clear from such perusal that her share in profit of a registered firm for such subsequent years is shown as 'nil'. Although the defendants never pointed out but in one of her assessment order for the year 197677 it is mentioned that she had withdrawn a sum of Rs.20,000/ from her account with the firm Chandmal Ganga Bishan and invested the same with M/s Haldiram Bhujiawala on which she earns interest. Her bank statements have not been produced for affirmation of this fact. This Court has not been provided with any of her bank statement showing as to what amount was there in her bank account as a profit sharing entry from the firm Chandmal Ganga Bishan. Further, it is not revealed to this Court if such Result: Application Dismissed. Page 117 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 withdrawal was made from the amount credited to her account as profit from the firm. It is apparent that such records could have been produced to confront the witnesses of the plaintiff which has not been done. Conversely, the income tax returns filed by Smt. Kamla Devi were not produced to confront the witnesses to show any entry therein which Smt Kamla Devi may have declared between 1975 to 1979 as a profit entry generated from the profits of the firm. If the firm still continued, then it is surprising that it did not generate any profits after 1974. On the contrary, the statement of accounts reveal that no amount is credited either as a profit or loss on account of business of the firm Chandmal Ganga Bishan. It is surprising that the defendant's mother would not have protested that the firm was not crediting profits to her account despite the fact that it was in business even after 1974. If she protected, it should have been pointed out.
133. Further, the account of the firm was admittedly maintained by Sh. Shiv Rattan and later by Sh Mool Chand being authorized signatory on behalf of other partners of the firm. Of course, one such way to show that the bank account of firm Chandmal Ganga Bishan was showing entries of profits post 1974 is to summon the concerned banker. But, such a situation would arise only when the defendants will produce their evidence. However, they could have still confronted the PWs with the bank statements of Smt. Kamla Devi as evidently she could not have withdrawn any amount from the bank account of the firm being not the authorized Result: Application Dismissed. Page 118 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 signatory. It is in evidence that the authorized signatory at the relevant time was Sh Mool Chand and nobody else. Smt Kamla Devi was residing in Calcutta at the relevant time. She was made partner of this firm in 1969 but she assisted from Calcutta only. It is not disclosed to the Court as to whether the share of profits of Smt Kamla Devi between 1969 to 1974 was sent to her by way of cheque, cash or by a direct transfer from the bank account of the firm. If it was the case of cheque, then record of depositing such cheques by Kamla Devi in her account could have been obtained by this defendant and produced to confront the witnesses by way of material to show forgery. It is not done. If it was in cash, there is no pleading. If it was by way of direct transfer, then also, bank statements of Smt. Kamla Devi have not been produced nor put to PWs for such confrontation.
134. If there was any profit sharing post 1974 then also no such records are produced. It does not stand to reason as to why the defendants would not produce such voluptous material that ought to be in their power and possession to prima facie establish the alleged forgery. Conversely, the arguments before me which have been set out in details in previous paragraphs clearly demonstrate an attempt of the advocates to show as to what conjunctures and surmises be drawn and what not. I have no hesitation in saying that majority of arguments are merely based on probabilities rather than certainties.
135. There are various facets of this issue which I shall be covering as part Result: Application Dismissed. Page 119 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 of miscellaneous observations only as in the present analysis of evidence and documents, I am only concerned with what material that could have been produced by the defendants to establish a prima facie case. Needless to say, for 'relying' on such material, they had to somehow introduce the same in the evidence of plaintiffs only and the said mode is only by confronting the witnesses and not otherwise having regard to the fact that their turn to lead evidence, that too, on the issue of forgery is yet to come and is otherwise dependent on them establishing such prima facie forgery.
136. This Court can not loose sight of the fact that there were other partners also. It does not have income tax records of either Sh Ganga Bishan or Sh Mool Chand. But it has the income tax records of one of the surviving partner Sh Shiv Kishan which are post 1974 upto 198182. He could not have deliberately suppressed to show his share in the profits in the firm if it functioned post 1974. It is so as one of the collateral contentions of the defendants is that the deed was forged somewhere in 1985 and definitely post 1981. It being so, none of the partners could have foreseen need for such suppression to show income from the firm in their ITR's.
137. Ex. PW1/54 to Ex. PW1/57 are the income tax assessment orders of Mr. Shiv Kishan Aggarwal for the years 197576; 197778 and 197980 respectively. The assessment order for 198182 is Ex. PW17/4. In the assessment order Ex. PW1/54 for the assessment year 197576 for the accounting period i.e Deewali 74, the share of income generated during the Result: Application Dismissed. Page 120 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 assessment year 197374 would be disclosed and so on. Careful perusal of these records would reveal that he has shown income from firm M/s Chand Mal Ganga Bishan amounting to Rs. 8134/ in Ex. PW1/54. This pertains to the accounting year 197374. In the remaining assessment orders Ex. PW1/56 to 57 and Ex. PW17/4 no income is shown from firm Chand Mal Ganga Bishan. Thus, it is highly unlikely that such would be the roots of conspiracy to establish the dissolution of the firm w.e.f 16.11.74 that the plaintiffs had foreseen and calculated every aspect of it with absolute precision when it is own case of the defendant that the deed of dissolution must have been fabricated in 1985 and not 1974. What is not however explained is the factum of purchase of stamp papers by the PW1 on 16.11.1974 for preparation of the dissolution deed. As said earlier, these miscellaneous aspects shall be considered subsequently in this order.
138. The defendants had referred to the passport of Smt. Kamla Devi Aggarwal which could be one such material that they could have shown during cross examination of PWs. It is perhaps to show that Smt. Kamla Devi was not residing at Bikaner in the year 1974 as she had shifted to Calcutta much prior to it. She is shown to be resident of Bachhawatonka Mohalla, Bikaner in the dissolution deed, copies of which are Ex. P10 and P19. However, they have not produced even this material that ought to be in their power and possession. The plaintiff's witnesses could have been confronted with this document to show that in the year 1974 Smt. Kamla Result: Application Dismissed. Page 121 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Devi was not a resident of Bikaner but of Calcutta. It is however, another matter that even if it was done, it would not have been a prima facie case, by itself, as at best, it could have established just that the residence details were incorrect in the deed of dissolution. That the residence details are incorrect is otherwise not in question as evident from the evidence on record and also from one of the own documents of the plaintiffs which is duly certified copy of a letter on behalf of Smt. Kamla Devi through her agent Mr. O.P.Aggarwal written to the State Bank of Bikaner and Jaipur, N.S.Road Branch, Calcutta on 22.05.1970 wherein she is shown to be resident of 7 Jagmohan Mallik Lane, Calcutta. This document was produced by PW5 and is part of collective documents Ex. PW5/1. However, is fact does not make a difference for the reasons as stated above.
139. Although the defendants have not mentioned anywhere that they were not having the knowledge of the fact that bank account of the firm Chand Mal Ganga Bishan was in operation even post 16.11.1974 but even if they could have some how produced such bank records then also it would have been immaterial until they showed any entry therein which reflected that the firm was generating profits even post 16.11.1974. In this context, they have relied on a certificate from the State Bank of Bikaner and Jaipur City Branch, Bikaner which shows that the bank account was operational even after 16.11.1974. Conversely, the plaintiff's have also relied upon a similar certificate which reveals that the said account was in dormant state since Result: Application Dismissed. Page 122 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 17.12.1980 which is Ex. D11 and admitted. Plaintiff's version is that the account did exist even after 1974 but only for purposes of defraying the expenses / liabilities with respect of the sales tax of the dissolved firm. In this context, the litigation with the sales tax authorities is not in dispute although filing of the letter of authority is. As per PW5, this bank account is now closed. It is not before the court if it was closed by the bank or at the instance of authorised signatory. It is not known as to since when this account stands closed. In TM3/11, an attempt was made on behalf of Smt. Kamla Devi for calling the statement of accounts of this bank account. However, the concerned witness stated that same are not available and weeded out. Thus, there is nothing before this court to verify as to what kind of transactions, if any took place in the bank account post 16.11.1974. However, simple fact that the account was not immediately closed is in consequential, there being no such legal requirement. Cross examination offered to PW5 is only aimed at somehow establishing that the bank account was operational post 16.11.1974. No attempt was made to even suggest this witness that account was not only operational but would also reflect profit earnings from the firm Chand Mal Ganga Bishan. The witness had not gone through the ledger account of the bank account itself however, it does not imply that the defendants could not have stressed upon the witness to produce the ledger account on some other date for showing that there were transactions in the same. Thus, in the absence of the fact that no Result: Application Dismissed. Page 123 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 profit entry of the firm is shown to the court, merely establishing that the bank account was operational post 16.11.1974 does not establish forgery. Moreover, this aspect do not pertain to either execution of the dissolution deed or its contents upon which only is the liberty to the defendant to cross examine the plaintiffs witnesses.
140. During the entire arguments of the defendants, not even a whisper is made to the report of handwriting experts who examined the original dissolution deed as well as the copy of the deed of declaration of Sh. Rameshwar Lal. These reports are on record of TM3/11. Either they or their copies could have been produced to confront the witnesses of the plaintiff's to the effect that not only the signatures of Smt. Kamla Devi were forged on the original deed of dissolution but also the signatures Sh. Rameshwar Lal were forged on the copy of deed of deceleration. Occasion for the defendants to prove the same would come only at the time of their evidence, of course, subject to pleadings. However, it does not mean that there were precluded from confronting the witnesses of the plaintiff's with these documents to make out the prima facie case of forgery of the dissolution deed. Here, it is also to be borne in mind that the defendant's were at liberty to cross examine the plaintiff's witnesses only on the execution and the contents and deed of dissolution and nothing else. Cross examination on deed of dissolution would have been otherwise beyond such liberty. However, there was no bar to establish that the handwriting expert Result: Application Dismissed. Page 124 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 appointed by Smt. Kamla Devi had already examined the original deed of dissolution and was of the view that it was not singed by Smt. Kamla Devi. Although report of handwriting expert, in itself, is not a strong piece of evidence, however it may have constituted a prima facie case if other aspects were acted upon by the defendants and in a such a case, the cumulative effect may have been that they succeeded in establishing a prima facie case of forgery.
141. Having dealt with some of the instances of the material that the defendants could have produced and relied upon in the cross examination of PWs, I shall briefly address on some miscellaneous contentions of the advocates which are pertaining to the developments pre 16.11.1974 and post thereon.
142. One such contention is that PW 1 Sh Manohar Lal Aggarwal was not connected with the firm Chandmal Ganga Bishan, however, his presence is shown to be everywhere. It is submitted that it does not stand to reason that the petty job of purchasing of stamp papers would have been assigned to him. Here, reference is made to the evidence that he purchased these stamp papers. ExPW9/1 prima facie shows that on 16.11.1974, PW 1 had himself purchased three sets of stamp papers. The first set of stamp papers in the denomination of Rs.20/ was purchased with respect to partnership of firm Shiv Rattan Kamal Kumar, Bikaner. The second set of stamp papers in the denomination of Rs.7/ was purchased for preparing copy of some Result: Application Dismissed. Page 125 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 documents pertaining to the said firm while the third set of stamp papers in the denomination of Rs.15/ was also purchased by PW 1 for preparation of dissolution deed referred to as 'Vichhed Patra' of firm M/s Chandmal Ganga Bishan. It is correct that the stamp vendor Sh Tola Ram was not produced. However, PW 9 is the official from the office of District Collector, Bikaner responsible for maintaining the records of sale of non judicial stamp papers where such registers are deposited by the stamp vendors. There is a contention that there is no evidence to the effect that the dissolution deed is prepared on the same stamp papers. However, the said contention looses force as it would be evident from perusal of endorsement on reverse page of copy of this document that the serial number of the entry made in the register of the stamp papers sold tallies with the number provided thereupon. The contention of the plaintiffs that they could not have foreseen that there would be litigation amongst family members and they will have to commit forgery by creating false document i.e deed of dissolution is correct. In any case, it could not have been foreseen on 16.11.1974. Even if the averment that the deed of dissolution was forged in 1985 was somehow established, then either the stamp papers will have to be shown as purchased in back date in the year 1985. There is no such cross examination. There is not even an indecia of the same in the entire cross examination . Otherwise also, it is highly unlikely. I find no force in this contention.
143. Another related miscellaneous contention in this respect is that there Result: Application Dismissed. Page 126 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 appears to be retyping in the year details provided in the dissolution deed. It is a contention that the coloured copy of it reveals that initially the year typed thereupon was 1984 which was later changed to 1974. Even this contention seems to have lost its force as not projected properly. There is nothing on record to show that any such observation is made in the report of hand writing expert except 'force of constant typing'. Further, if that is correct, then the stamp papers would have been purchased in back date in the year 1985. This is highly improbable as ExPW9/1 which are copies of two pages with respect to stamp papers sold by Sh Tola Ram on 16.11.1974 reveals that there are multiple entries of such sales in the extract of this register. Thus, the challenge on this count appears to be merely for name sake.
144. There is no reason for this Court to form an opinion that there would be anything amiss in PW 1 not only going himself to purchase the stamp papers but also to the effect that he was present at the time when the draft of dissolution deed and the deed of declaration was prepared sometime prior to 16.11.1974. It is own case of the defendants that PW 1 is the most educated person in the family of parties amongst those who were at Bikaner for the aforesaid purpose in November 1974. If it is so, it stands to reason that he was given this job being educated. Dissolution of a firm wherein the goodwill of the particular trade mark is also divided would not be an occurrence which can be called as a common occurrence. There have been Result: Application Dismissed. Page 127 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 many constitutions and reconstitutions of various partnership firms in the family in the last several decades prior to 1974. Never an occasion came for some other firm to be dissolved and its goodwill shared. There is an instance of one dissolution in the form of Dissolution Deed ExPW1/D1 of firm Ganga Bishan Mool Chand but the same is of a much later period i.e of 1988. This instance was therefore, one of its kind. Moreover, it is own case of the defendants that PW 1 was still studying in the year 1974. It also implies that he was youngst amongst the family members who had gathered in the month of November, 1974 at Bikaner. It being so, it is just natural for an educated youngst male member of the family to have supervised the events relating to preparation of these documents.
145. The next contention is that PW 1 was not himself signatory or witness to the dissolution deed. It is settled law that this aspect in itself does not constitute of a suspicious circumstance if the testimony of other attesting witness to a document is otherwise trustworthy. Merely because none of the family members signed on the deed of dissolution as a token of their attestation of its execution does not itself imply that the other witnesses would be signing the same pursuant to a meticulously hatched conspiracy and that too, under influence of their employers. Admittedly, one of the attesting witness is dead. The other attesting witness PW 3 is shown to be in the employment of one or the other family members. He was also in the employment of the firm itself. It was urged that the Court may take note of Result: Application Dismissed. Page 128 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 this fact that he is bound to show his faith towards his employers. However, this argument is equally in favour of plaintiffs also as one such employer would be Smt. Kamla Devi herself till at least 16.11.1974 and if the firm was not dissolved then even thereafter too. Nothing is shown against PW 3 that he would have ill intention against one of his own employer i.e Smt. Kamla Devi for any reason whatsoever. Merely because his own son is supplying certain articles to PW 1 as well as PW 2 and that he is shown to be residing in the house of PW 1 while visiting Delhi does not imply that the testimony of PW 3 should be discarded unless certain compelling circumstances are shown. This contention is doomed as defence did not question PW 3 at all that he never signed on the dissolution deed on 16.11.1974. He was never even suggested that he had been a part of conspiracy in preparation of this false document subsequent to 1974. This Court can not assume the fallibility of the witness merely because he volunteered himself to be a labour class. However, he is trustworthy to everyone as evident from his evidence.
146. The next miscellaneous contention on this count is that the dissolution deed is sans any consideration as literally nothing was given to Smt Kamla Devi in the said deed. In this respect, Smt Kamla Devi and her husband Sh Rameshwar Lal are taken to be one entity. Sh Rameshwar Lal was already doing business from Calcutta w.e.f 1958 and using the trade mark Haldiram Bhujiawala in the state of West Bengal under the authority Result: Application Dismissed. Page 129 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 of late Sh Ganga Bishan. If facts are to be taken at their face value then, the goodwill was divided amongst Rameshwar Lal branch and Mool Chand branch on 16.11.1974. Sh Rameshwar Lal's unit inclusive of his wife got exclusive rights of trading in West Bengal while Mool Chand branch got right of trading in Bikaner and beyond. The will of late Sh Ganga Bishan upon which the defendants have placed heavy reliance in Hon'ble Delhi High Court is silent that the parties could not go beyond these limits in the other states of India. At best, it can be taken as a flaw in the Will itself and the fact remains that it will be inconsequential for these proceedings. Nevertheless in the year 1974, Calcutta city would definitely have bigger proportion of business opportunities as compared to the small city of Bikaner. I am not concerned as to in which other parts of India the parties expanded their business. At the same time, various statements and pleadings have been set out in this order to the effect that so far as Rameshwar Lal's branch is concerned, Haldiram Bhujiawala, Calcutta was the only firm trading at Calcutta. This Court was indeed shown some affidavits of sale figures of the firm of Rameshwar Lal in some North eastern states. At the same time, it is also pointed out that in his two affidavits referred to earlier, Sh Rameshwar Lal did not provide any mention of other states while referring to sales figures of his Calcutta firm. Nevertheless, the fact remains that the territories were divided. The parties would then have exclusive right to the profits of the firms at Bikaner and Calcutta. However, the liability Result: Application Dismissed. Page 130 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 does appear to be divided unevenly. But, mere division of uneven liabilities does not in itself make out a prima facie case of forgery.
147. The plea that nick name of Sh Ganga Bishan was not Haldiram is not in consonance with pleadings. The plaintiffs have rightly set forth such pleadings where the parties have admitted themselves that Sh Ganga Bishan was also known as Haldiram. Cross examination of PW 1 and PW 2 on this count is therefore of no avail. The mother of this defendant has herself pleaded in FAO O.S 143/2000, which is post the date of amendments sought that Sh Ganga Bishan started his business at Bikaner in the year 1940. This is an admission. On query of the Court, the defendant's counsel, after verification of this fact for which time was given, urged that the same is a typographical error. The Court has no reason to agree with such submission as it is highly unlikely that if it was a typographical error then why it was not sought to be corrected or at least mentioned earlier to this Court when almost 16 years have elapsed since the year 2000. Besides, this Court has been rightly taken through various statements referred earlier in this order wherein the members of Rameshwar Lal's branch have themselves made statements that Sh Ganga Bishan established his business at a young age. Considering the average life expectancy during the early 21 st Century, Sh Ganga Bishan would be young in the year 1941 as admittedly born in 1902.
148. After division of the trade mark, certain acts were done that are Result: Application Dismissed. Page 131 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 indicative of the fact that the deed was acted upon. Declaration was made by Sh Rameshwar Lal that the trade mark will be property of Mool Chand except State of West Bengal and he or his representatives will not claim further right therein. It is not in dispute that Sh Shiv Rattan, a partner with Sh Rameshwar Lal retired from this firm on 5.11.1975. He also undertook to not to carry business under trade name M/s Haldiram Bhujiawala in Calcutta. This was also without any consideration.
149. Thus, there are two instances where the partners give up their rights in the trade mark without consideration. If it was not pursuant to the dissolution deed purportedly executed post a family settlement then, no other reason was pointed out to this Court.
150. Not only the above, but the admitted sequence of constitution and re constitution of various partnerships pre and post 16.11.1974 also lend credence to the plaintiff's version. It is in evidence that Sh Ganga Bishan constituted a partnership in 1951 registered in 1956. In this partnership under name of M/s Chandmal Ganga Bishan, Sh Rameshwar Lal was a partner who retired in 1958 for taking care of the business set up by Sh Ganga Bishan at Calcutta trading under the name of Haldiram Bhujiawala. Smt. Kamla Devi was made a partner in 1969 after retirement of Sh Sati Dass as she had technical expertise with respect to quality of products. Sh Shiv Rattan had joined as a partner with Sh Rameshwar Lal in Calcutta who retired in 1975. Bikaner firm dissolved in 1974. Sh Shiv Kishan was at Result: Application Dismissed. Page 132 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Nagpur to do his business. Mool Chand branch looked after business in Bikaner. This entire development suggest that in 1974 the parties merely divided the territories of business. Sh Rameshwar Lal settled in Calcutta to carry his business and use trade name Haldiram Bhujiawala in the state of West Bengal while the family of Mool Chand settled in Bikaner with liberty to use the trade name Haldiram Bhujiawala for whole country except West Bengal. It is undisputed that thereafter, the Mool Chand branch did not start any business in West Bengal. It therefore appears that there was indeed a family settlement in the year 1974.
151. The contention that territory of West Bengal could not have been given to Rameshwar Lal branch as TM 285062 was not registered for the State of West Bengal appears to be a very week contention. Admittedly, the firm Haldiram Madan Lal had objected to the registration of TM 285062 but the same does not appear to be the primary reason for exclusion of territory of West Bengal. It would stand to reason that the applicant's advocate Sh R.N Prabhakar made a submission before the Registrar, Trade mark to himself exclude the state of West Bengal from such registration as Mool Chand branch never had a business in the said territory. Admittedly, the objections by Haldiram Madan Lal were dismissed.
152. Since I have touched upon the family settlement of 1974, I may also state that the same has been projected as an oral settlement. However, it did take place stand to reason as otherwise Sh Shiv Rattan would not have Result: Application Dismissed. Page 133 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 retired from partnership of Rameshwar Lal; Sh Shiv Kishan would not have finally settled at Nagpur and Sh Rameshwar Lal would then have no occasion to execute a deed of declaration. Still, it is projected to have been made. The only apparent reason is that both the branches were finally dividing their territories and therefore, some kind of documents had to be executed by Sh Rameshwar Lal independent of the dissolution deed which is projected as his deed of declaration.
153. It is a contention that the deed of dissolution never surfaced till 1985. This does not imply that it would have been forged in 1985 and thus not produced earlier. Plaintiff's case is that Sh R N Prabhakar also represented Sh Rameshwar Lal branch. Thus, knowledge of the agent can be imputed on the master. Further, the letter of authority purportedly filed in Rajasthan High Court apparently mentions authorization in favour of Janki Dass Gandhi executed as expartners of the dissolved firm. Smt. Kamla Devi was herself a party to this appeal wherein she has been referred as an expartner as pointed out earlier. It is improbable that she would not have made an objection qua such reference. However, no such objection is produced.
154. The issue of vakalatnama only signed by two partners is also in consequential. These documents were executed in quick succession in March 1980 at which time around Sh Ganga Bishan had died on 23.2.1980. Letter of authority is dated 27.2.1980 while the vakalatnama is dated 3.3.1980. The family members were busy in the bereavement of the only Result: Application Dismissed. Page 134 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 person behind the establishment of this business who took pains for the same to flourish. In such circumstances, if the vakalatnama was not signed by one partner then it can not be considered as a major issue. Likewise, in the affidavit of Sh Janki Dass Gandhi furnished in appeal in Hon'ble Rajasthan High Court, mere mention that he was employee of Chandmal Ganga Bishan will not, in itself, topple the entire case of dissolution of said firm itself in 1974 when the apparent reason for execution of letter of authority was inability of executants to attend the Court in person owing to recent bereavement.
155. Admittedly, the parties follow patriarchal system. Male dominance, if any, can be a factor only to see undue influence. The reliance of the plaintiff by producing case law on the aspect of coercion, fraud or undue influence needs no consideration at this stage. Sh Mool Chand was alive till 1985. He is son of Sh Ganga Bishan who was also alive till 1980. Following the patriarchal system, Sh Mool Chand himself would be acting under instruction of his father. Till the time his father was alive, he would have no reason to apply for change in the name of the owners of trade mark which otherwise also came to be registered only in 1981 w.e.f date of application. Its renewal subsequently was w.e.f 1979 for the reasons on record. Post the death of Sh Ganga Bishan, Sh Mool Chand had an occasion for substitution of his name as the owner of the registered trade mark till 1985 but his sons, plaintiffs herein, would be acting under his instructions as they follow Result: Application Dismissed. Page 135 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 patriarchal system. Sh Mool Chand did not apply for substitution for reasons not known to the Court but it is also correct that there is no limitation for applying for substitution as an owner. Till the time he was alive, his sons had no reason to bye pass their father and apply for substitution at their own instance. Further, they had come to Delhi in 1983 where they formed M/s Anand Kumar Deepak Kumar. Evidence is there that Sh Prabhakar was given documents in 1975 for applying substitution. It was not applied. Various reasons are given by PW 1 and 2 including the averment that Sh Prabhakar was subsequently found to be acting against the plaintiffs and their predecessor in interest too. It is another matter that he was forgiven and then application for substitution was made finally in the year 1985. If no action was taken against Sh Prabhakar Advocate, then it can not be, in itself, a prima facie reason to hold that the dissolution deed is a result of forgery.
156. The contention with respect to non examination of Chartered Accountant namely Sh Indermal Surana also looses its force in as much as he could have only lent further credence regarding preparation of the drafts at his office. Arguments with respect to use of two different type writers and implication thereof does not inspire any confidence.
157. Admittedly, two firms existed around 1970 and only one was dissolved. No adverse inference can be drawn from this fact as dissolution of any other firm is not in question before me.
Result: Application Dismissed. Page 136 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
158. The arguments with respect to use of the words 'head office' in the deed of dissolution is also found bereft of merits as Smt. Kamla Devi herself has referred the Bikaner address as head office.
159. The arguments that the plaintiffs have knowledge of registration of TM no. 330375 and that the PW 1 deliberately made attempts to produce non permitted documents also does not inspire any confidence and otherwise also not germane to the issue.
160. The argument that PW 2 is not aware of contents of plaint also becomes redundant in view of the fact that Court is only to look into his testimony qua execution and contents of the dissolution deed.
161. The argument that PW 2 is not expected to recall incidents of 1941 coherently even though he could not recall facts regarding current business is also not inspiring any confidence in view of admission of Smt Kamla Devi herself in FAO 143/2000.
162. The argument that plaintiff did not produce any signed balance sheet of partners with respect to dissolution is not found to be good enough to make out a prima facie case considering the cumulative effect of the evidence which tilts towards the plaintiffs and not these defendants in view of observations so far made in this order.
163. The arguments with respect to ExD53A and ExPW1/7 are also found to be of very week nature. The same are based on merely inferences and nothing more.
Result: Application Dismissed. Page 137 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
164. All the arguments with respect to document Mark PW1/DC2 also meet the same result as above as Smt Kamla Devi herself has not asserted that business was primarily of money lending and oil commissioning as stated earlier in this order.
165. If no reference was made by Sh M.R Bhalerao, Asstt. Registrar, Trade Mark in order dated 31.7.1980 (ExP7) to the dissolution deed even though it referred to the affidavit of Sh. Mool Chand it does not imply that there is a prima facie case of forgery that stands established.
166. There is no occasion for this Court to compare the signature of Smt Kamla Devi on the colored copy of dissolution deed with any other admitted signature of the contemporary period as no such document is so far produced in evidence.
167. The arguments with respect to the proceedings in case no. 63/2000 of the Court of MM, Calcutta as well as D.B Sales Tax Case no. 35/1980 and vakalatnama ExPW2/D2 as well as plaintiff's reply as accused in the criminal case ExPW1/DC12 have been already discussed earlier in sufficient details.
168. ExD38 at best reveals that the sales figures of the Calcutta firm and the Bikaner firm were almost equal for 197374. If it be so, then there is no uneven distribution of the assets as the business propositions in both the cities would be then taken to be at par. Fact remains that none could have projected exponential growth in the business of Mool Chand branch.
Result: Application Dismissed. Page 138 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
169. One of the reasons assigned by Sh Amarjeet Singh, Advocate as to why renewal of trade mark no. 285062 was made in the name of the firm Chandmal Ganga Bishan as well as reference by Mool Chand in his affidavit dated 27.12.97 as one of the partner of the firm is to the effect that whenever the initial registration is granted, it is in the name of the applicants only as per procedure. The applicants in this case were the four partners of the firm. The registration number is allotted which is confirmed at the time of actual registration which number, in this case, is 285062. The registration was granted in 1981 w.e.f the date of application. Renewal is of the year 1979 by which time also the initial registration was not approved. Nothing contrary was urged by the defendants in this context and thus this Court shall have to go with the submissions of the plaintiffs.
So far as the affidavit is concerned, it is a version of PW 1 that not only the affidavit but also reflecting TM No 285062 and also reflecting the trade mark as 'registered' even prior to 1981 was at the instance of Sh R.N Prabhakar, Advocate. The said advocate is not alive and can not be produced to challenge the contradictory claims of the parties to the suit. At the same time these two independent factors are not by themselves sufficient to topple over the cumulative effect of all the evidence that is discussed so far. The probabilities towards due dissolution outweigh the probabilities to the otherwise. Same is true also to the counter statement dated 25.5.1976 as well as the affidavit of Sh Ganga Bishan dated Result: Application Dismissed. Page 139 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 26.6.1976.
170. The plea that the dissolution deed was never produced before any authority and not even mentioned till 1985 whithers away in the light of the S.B Sales Tax case no.35/1980 wherein Smt Kamla Devi is referred to as an expartner of the dissolved firm. In this context, the plaintiffs have made reference to the summons issued to the partners of dissolved firm by the sales tax authorities.
171. No procedure is shown by the defendants that the Registrar, Trade Mark was obligated in law to issue notice to all the partners of a firm when any application is made for substitution of names. Conversely, there is nothing on record to even suggest that such notices were not issued.
172. So far as over writing over the letter 8 in the year column of the deed of dissolution is concerned, own expert of the defendants opined that it may be for the force of habit of constant typing of a particular year. Moreover, the other evidence does not suggest that it was prepared in 1984 on stamp papers actually purchased on 16.11.1974.
173. It is correct that there is no mention in the deed of declaration about the deed of dissolution although executed on same day. However, by virtue of deed of dissolution and by virtue of deed of declaration, Smt Kamla Devi and Sh Rameshwar Lal are giving up their respective rights in the trade mark which were individual to them thereby rendering such viceversa mentioning in both the documents as unnecessary.
Result: Application Dismissed. Page 140 of 146Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
174. Evidence is produced to the effect that Sh Rameshwar Lal himself expressed desire for a family settlement and dissolution. If it be so, there would be nothing wrong in him being away from his business during Deepavali time. The argument that he was not expected to be leaving his business for a considerable period is only based on PW1's testimony although there are no pleadings either in its support or against it. The argument is fallacious. Same is the position with respect to the draft deed of dissolution as well as the rough balance sheet purportedly prepared on 16.11.1974. The arguments that it ought to have been signed by the partners but not produced is neither here nor there. In this context, PW 1 has introduced a fact that a balance sheet containing signatures of four partners was prepared by Chartered Accountant Sh Indermal Surana. This balance sheet is not on record and as per the defendants, the same ought to have been filed. I may again say that there is a complete dearth of pleadings in this context. The witness may have been improving upon his stand only. This Court was not shown if PW 2 was also cross examined regarding duly signed and audited balance sheet.
175. Non mentioning of fact in the dissolution deed that Sh Rameshwar Lal was also a partner in M/s Ganga Bishan Mool Chand and continued so till the year 1977 as per PW 1 is inconsequential. There can be various reasons as to why no mention of this partnership was made in the deed of dissolution. Nevertheless, it is an admitted fact that Sh Rameshwar Lal did Result: Application Dismissed. Page 141 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 not try to set up any other business in Bikaner. The partnership may have continued till 1988 but no record is shown that Sh Rameshwer Lal received profits from his firm while actually conducting business outside Calcutta in the said partnership till 1988. ExPW1/D1 does not show Sh Rameshwar Lal as partner of Ganga Bishan Mool Chand till 1988.
176. It is true that the deed of dissolution discloses accounts as settled upto 15.11.1974 though its draft was prepared earlier. However, nothing is shown that if a draft is prepared prior to the original then necessary changes can not be made in the draft at the time of preparation of the original.
177. So far as ExPW1/D2 to ExPW1/D8 are concerned, I have already pointed out that the same are the statements of firm Chandmal Ganga Bishan and if the same were sent to Smt Kamla Devi then also they do not show any profit entries. Discussion has been made on the above aspect earlier in this order.
178. An aspect not touched by the advocates is regarding clause 13 of the Partnership deed of 1969. According to the same, the firm Chandmal Ganga Bishan shall continue with surviving partners together with LRs of a deceased partner in case of demise of any partner. No other partnership deed is shown with respect to any reconstitution or any change between 1969 to 1974. There is nothing on record to show that on demise of Sh Ganga Bishan, his LRs joined the firm. So far as Sh Mool Chand is concerned, he had also died. There is nothing on record to show that either Result: Application Dismissed. Page 142 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 their LRs approached the remaining partners to continue in place of deceased partner or if the remaining partners approached them for said purpose. If the firm continued even after demise of said two partners and the other LRs did not step into their shoes then, the 25% share each of the dead partner would have gone to the surviving partners. No such record is produced before this court.
179. It is also a fact that all the arguments of the defendants with respect to Section 60 of the Evidence Act to the effect that major part of testimony of PW1 and PW 2 regarding incidents that occurred prior to their birth are hearsay shall not at all survive in view of the pleadings and various statements earlier referred to wherein it is mentioned that Sh Ganga Bishan @ Haldiram started his business in 1940 and that he had started such business at a very young age. Such an admission outweighs the oral testimony. There is no need to discuss the entire law on the subject as once such an admission is found, which is post the date of application of defendants for amendment, such admissions shall outweigh such arguments to the contrary. I have already pointed out that such arguments could have been appreciated only when there were some pleadings to that extent. There are none.
180. The contention to the effect that PW 1 and PW 2 probably had with them the original dissolution deed in their hands on the date of their respective affidavits appears to be improbable in view of other findings Result: Application Dismissed. Page 143 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 already made. As to who obtained the certified copy of the dissolution deed is also not germane to the issue in hand. Regardless of the fact that para 31 of the previous affidavit of PW 1 that was filed on record and later removed in the new affidavit, fact remains that the plaintiffs did satisfy the ingredients of Section 65 (c) of the Evidence Act. It is a fact that Sh Indermal Surana, Chartered Accountant was not examined, however, it is also a fact that he could neither prove the execution of the dissolution deed or its contents as he was not present at the time when the deed was signed. Lastly, the contention that Sh Rameshwar Lal Aggarwal used to sign by writing his full name could have been appreciated if it was shown to the Court that there was no other document on record upon which he did not append only first name.
181. Since I have pointed out that I am not required, at this stage to get into the aspect as to whether a particular document stands proved or not, I will also be not expected to decide any objections raised in the evidence and thus there would be no question of applicability of ratio of the judgment as cited by the defendants in case titled Shalimar Chemical Works Ltd v Surendra Oil and Dal Mills (2010) 8 SCC 423. It is true that a case not specifically pleaded can be considered by the Court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such Result: Application Dismissed. Page 144 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 case was at issue and had led evidence thereon. In this context, defendants relied on judgment in Nand Kishore Lal Bhai Mehta v New Era Fabrics Pvt Ltd & Ors. 2015 Legal Eagle (SC) 539. However, the ratio of this case is not applicable to the facts in hand for the simple reason that the admissions, as set out above, post the date of amendments sought, outweigh the pleadings. The defendants also relied on one more interesting judgment in case titled Krishna Mohan Kul v Pratima Maity & Ors (2004) 9 SCC
468. However, the same is with respect to onus of proof in case of transaction executed in fiduciary relationships with respect to plea of fraud, misrepresentation or undue influence. The same does not apply to this case as undue influence is yet to be established.
182. So far as the plaintiffs are concerned, they have produced one leading judgment on the aspect of interested witnesses in case titled Rajesh & Munny v State 2008 (4) JCC 2420. It is in context of criminal trial only.
183. The leading judgment on the point of Section 60 of the Indian Evidence Act is Balram Prasad Aggarwal v State of Bihar & Ors. (1997) 9 SCC 338. Same is also in respect of criminal trial.
184. However, a catena of judgments cited on law that admissions are best piece of evidence. The same have been read to this Court in accordance of the ratio in them. To summarise, an admission unless explain & furnishes best evidence. The leading judgment on the point and also on the point that the onus to rebut such presumption is on the person who made the Result: Application Dismissed. Page 145 of 146 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 admission is the judgment in United India Insurance Co. Ltd & Anr v Sameer Chandra Chaudhary (2005) 5 SCC 784.
185. Likewise, catena of judgments are filed on the interpretation of the term 'fraud' and 'undue influence' and 'coercion'. Several judgments are on the aspect of mode of proof of a particular document. Many of them are on proof of testamentary succession by Will. I do not consider that their reference is necessitated. Same is true to the judgments cited by the plaintiffs on the interpretation of the term 'admissions' as well as on the point of 'secondary evidence'. These judgments were cited more by way of assistance and none of the judgments is having any bearing on facts. So far as law is concerned, there can be no second interpretation to it.
186. In view of this order, I find that no prima facie case is made out by the defendants in respect of avement of forgery in the application under consideration and the evidence that this Court has minutely considered, wherever relevant since led, post 24.11.2009 also on which date PW 1 was cross examined just before the application in hand was filed and thereafter till date. In the result, the application in hand is dismissed.
Announced in open Court. (Manish Yaduvanshi)
Dated: 29.02.2016. ADJ06(Central)Delhi
Result: Application Dismissed. Page 146 of 146