Tripura High Court
M/S Sugam Parivahan Limited vs Sri Dipak Chowdhury on 24 November, 2017
Equivalent citations: AIR 2018 TRIPURA 1
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RFA 05 of 2013
M/s Sugam Parivahan Limited,
represented by its Manager,
Sri Birendra Prasad Gupta,
Masjid Road, Agartala, West Tripura
... Appellant
- Versus -
Sri Dipak Chowdhury,
proprietor of M/s Chowdhury Traders,
Mantribari Road, near Netaji Play Centre,
Agartala, West Tripura
... Respondent
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. R. Datta, Advocate For the respondent : Mr. A. Lodh, Advocate Date of hearing : 05.07.2017 Date of delivery of judgment and order : 24.11.2017 Whether fit for reporting : YES JUDGEMENT AND ORDER Heard Mr. R. Datta, learned counsel appearing for the appellant as well as Mr. A. Lodh, learned counsel appearing for the respondent.
2. This is an appeal under Section 96 of the CPC from the judgment dated 07.07.2012 delivered in Money Suit no. 30 of 2006 by the Civil Judge, Senior Division, Court no.2, West Tripura, Agartala. By the said judgment, the suit instituted by the appellant, hereinafter referred to as the plaintiff, has been dismissed.
3. The plaintiff filed the suit for realization of a sum of Rs.8,28,516/- from the defendant, the respondent herein being Money Suit no. 30 of 2006. The plaintiff is carrying on RFA 05 of 2013 Page 1 of 17 the business on transportation under name and style of 'M/s Sugam Parivahan Limited' which according to the plaintiff is a registered transporter. The plaintiff transported the goods of the defendant as per consignment notes on different dates as shown in a table hereunder:
CN No. Date No. of Pkg. Freight Date of Delivery 504-101100 25.05.04 1130 91,960.00 09.06.04 504-101107 02.06.04 300 24,190.00 28.06.04 504-101108 03.06.04 1130 80,270.00 28.06.04 504-101112 11.06.04 300 24,185.00 26.06.04 504-101113 11.06.04 938 69,585.00 26.06.04 504-101117 18.06.07 1135 90,460.00 03.07.04 504-101124 04.07.04 1250 93,760.00 07.08.04 504-101128 17.07.04 420 24,620.00 11.09.04 504-101129 17.07.04 600 42,810.00 08.09.04 504-101130 17.07.04 850 68,990.00 11.09.04 504-101131 17.07.04 650 48,470.00 08.09.04 504-108419 20.07.04 961 87,010.00 16.08.04 504-101156 30.08.04 475 40,970.00 02.10.04 504-101157 30.08.04 635 46,950.00 02.10.04 Total Rs. 8,34,230.00 Less: Old balance Rs. 714.00 Rs. 8,33,516.00 Less received on 01.02.2005 Rs. 5,000.00 Balance due Rs. 8,28,516.00
4. The plaintiff raised 14 bills against the transportation of those consignments, but the defendant did not paid the freight charges for the consignment, shown in the table. As it is evident from the table, the total transportation charge was Rs.8,32,802/- and that was added by the outstanding balance. From this total outstanding of Rs.8,33,516/-, the plaintiff has admitted to have received a sum of Rs.5,000/- on 01.02.2005. Thus, the total due was deduced at Rs.8,28,516/-.
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5. Before institution of the suit, the plaintiff sent several letters dated 25.08.2005, 08.09.2005 and 21.02.2006 by RFA 05 of 2013 Page 2 of 17 registered post with AD requesting the defendant for making the payment of the outstanding dues. The defendant according to the plaintiff refused to even receive those letters. Finally, the plaintiff served a demand notice dated 01.09.2006 through Dr. HK Bhattacharji, Advocate, but the defendant refused to receive the same as well. As a result, the plaintiff has instituted the suit for realization of the said amount.
6. The defendant by filing the written statement has raised a preliminary objection as to the standing of the firm to sue against the defendant. The defendant has categorically stated that it has not been made clear whether 'M/s Sugam Parivahan Limited' is a partnership firm or a company incorporated under the Companies Act or it carries a different legal entity. The suit was filed by the Manager of said 'M/s Sugam Parivahan Limited'. The plaintiff has submitted that in the plaint, there is no pleading as to whether the said Manager has been authorized to institute any suit.
7. The defendant has further stated that the plaintiff has not mentioned in the plaint the date and time when the goods were transported and delivered or whether the bills were presented by the company for payment of the freight charges or whether all the bills were cleared by the defendant as per the bills. Even after 30.08.2004, the plaintiff transported the goods of the defendant till the institution of RFA 05 of 2013 Page 3 of 17 the suit and all payments were cleared by the defendant. According to the defendant, the plaintiff with a fraudulent motive has not mentioned the relevant fact. If the plaintiff was having such huge amount of outstanding, it was only natural that he would not have carried goods assigned by the defendant. The defendant has categorically denied that the plaintiff is entitled to any sum from him. He has also denied that the plaintiff had sent any letter to him and he had refused to receive such letter. In paragraph 7(a) of the written statement, the defendant has stated categorically that there was an agreement that when the goods carried by the trucks of the plaintiff will be unloaded and delivered by the plaintiff to the defendant just on receipt of the same, the defendant would make payment of the transportation charges as per consignment notes. The said system was followed for carriage and payment. There had been no occasion when the plaintiff delivered the goods, but the plaintiff did not receive any payment against the freight charges. Further, the defendant has pleaded that, it is the obligation of the plaintiff to submit the Account Books relating to the delivery of goods and payment, but the plaintiff did not submit any such Account Books. The defendant has categorically asserted that whenever the consignments were delivered to the defendant, he used to pay the required freight charges to the Manager or any other employee, so entrusted, but the plaintiff did not ever RFA 05 of 2013 Page 4 of 17 issued any receipt in support of accepting the freight charges.
8. Based on such rival pleadings, the Civil Judge, Senior Division, Court no.2, West Tripura, Agartala framed the following issues for purpose of adjudication of the suit:
(i) Whether the suit is maintainable in its present form and nature;
(ii) Whether the plaintiff transported goods to the defendant;
(iii) Whether the plaintiff raised 14 nos. of bills before the defendant for payment of freight for the consignment;
(iv) Whether the plaintiff is entitled to a decree of Rs.8,28,516/- against the defendant with interest @12% per annum w.e.f. 9.6.04 till realization of the amount;
(v) Whether the plaintiff is entitled to get cost of the suit;
(vi) Any other relief or reliefs, parties are entitled to;
9. As it appears from the record that the plaintiff adduced one witness and a series of documents namely, Consignment Note No. 504-101100; Consignment Note No. 504-101107; Consignment Note No. 504-101108; Consign- ment Note No. 504-101112; Consignment Note No. 504- 101113; Consignment Note No. 504-101117; Consignment Note No. 504-101124; Consignment Note No. 504-101128; Consignment Note No. 504-101129; Consignment Note No. 504-101130; Consignment Note No. 504-101131; Consign- ment Note No. 504-108419; Consignment Note No. 504- 101156 and Consignment Note No. 504-101157, letter dated 25.08.2005 with envelope marking refusal, letter dated 08.09.2004 with mark of refusal, letter dated 08.02.2006 with an envelope marked with refusal, demand notice dated 01.09.2006 with an envelope marked with refusal. All the RFA 05 of 2013 Page 5 of 17 above documents were marked as Exhibit 1 series and one deed of Power of Attorney dated 14.07.2006 in favour of the Manager, namely, Sri Birendra Prasad Gupta who instituted the suit was also admitted in the evidence as Exhibit 2 series.
10. From the defendant's side, no documentary evidence was introduced whereas both the plaintiff and the defendant adduced one witness each. For the plaintiff, the attorney deposed before the court.
11. On appreciation of the evidence, the learned court below on the face of the record has observed that the said Power of Attorney (Exhibit 2 series) was executed by the Director of the Company on 14.07.2006 and PW-1 instituted the suit on 14.11.2006 and hence according to the court below, the authorized agent had due competence. Even on the aspect of limitation, it was observed by the court below that the suit was within the period of limitation. It has also been observed by the court below that during the period from 25.05.2004 to 30.08.2004, 14 nos. of bills for payment were raised for freight charges in the form of the consignment notes (part of Exhibit 1 series). Those consignment notes were found to be signed by the defendant and the defendant had identified his signatures when his signatures were marked as Exhibit 1/1 series.
12. DW-1, the defendant also admitted that he did not submit any documentary proof to show that he paid the RFA 05 of 2013 Page 6 of 17 freight charges against the consignment notes as Exhibit 1 series. The pertinent issue that was considered by the court below was that whether the plaintiff has proves his case that despite the liability of payment of a sum of Rs.8,28,516/-, the defendant did not pay and for that reason the plaintiff is entitled to recover the said sum with interest from the defendant. In this regard, the court below has observed as under:
"It appears from the memorandum and articles of association of the plaintiff company that the balance sheet and profit and loss account of the company will be audited once in a year by a qualified auditor for correctness as per provisions of the Companies Act. But surprisingly, in the present suit the plaintiff company did not submit any audited balance sheet or profit and loss account of the company for the year 2004 to this court. Transparency of a public or private limited company is apparently proved to the people by its duly audited annual balance sheet, profit and loss account and the memorandum and articles of association of that company. As the plaintiff company did not submit any such balance sheet and profit and loss account for the year 2004 to this court, it is not clear to the court whether any outstanding freight was shown in the balance sheet of the plaintiff company for the year 2004-2005 under the column 'Assets'/'Credit' or not".
It has been further observed that the consignment notes (Exhibit 1 series) do not bear the amount of freight, the defendant was supposed to pay to the plaintiff company at the time of delivery of goods, whereas those consignment notes show that the goods were duly delivered to the defendant on different dates. Non mentioning of the freight on those consignment notes may be construed in different ways.
13. Since the defendant has claimed to have paid the freight charges on receipt of the consignment notes, no freight charge can be demanded therefore. The court below RFA 05 of 2013 Page 7 of 17 did not give any importance to the notice and the letters issued by the plaintiff demanding the freight charges as those were not delivered to the defendant, but the claim of the plaintiff was that those were refused by the defendant. On the basis of those findings, the suit was dismissed by the judgment dated 30.06.2012 which has been challenged under this appeal.
14. Mr. R. Dutta, learned counsel appearing for the appellant has submitted that on 14.08.2007 the plaintiff submitted one original ledger book of M/s Sugam Parivahan Ltd. and one Daily Cash statement covering the period from 01.04.2004 to 11.05.2005 by firisti. On 28.06.2007, PW-1 has also submitted the original Statement of Receipt against the freight received from M/s Chowdhury Traders w.e.f. 16.12.2003 to 01.02.2005 and the list of outstanding dues in respect of M/s Chowdhury Traders by a firisti. Though this fact of submission of those ledger book and statement is available in the examination-in-chief, but those were not admitted in the evidence by PW-1. Moreover, PW-1 in the cross examination has stated that there was a resolution of the Board of directors of the plaintiff for institution of the suit, but the plaintiff did not submit the said copy of the resolution to this court. PW-1 has categorically admitted that the plaintiff maintained ledger book etc. in respect of freight received from other customers. They maintained three books in that regard namely Daily Cash statement, Ledger RFA 05 of 2013 Page 8 of 17 Book and Cash memos etc. He denied the suggestion that those documents were not filed by the plaintiff in the court.
15. From the other side, Mr. A. Lodh, learned counsel appearing for the sole respondent has stated that the plaintiff has totally failed to prove the facts relevant for a judgment to be delivered in his favour. That apart, in absence of the resolution of the Board of Directors, the authorization is absolutely vague because true authorization, if any, would only be available in the resolution taken by the Board of Directors in respect of institution of the suit and on authorization only any individual can act for the company incorporated.
16. The defendant, DW-1, has categorically stated in his examination-in-chief that there was a clear agreement with the plaintiff-company that until and unless the payment of carrying charges as per the consignment note would not be paid, the goods would not be delivered to the defendant. According to this condition, the plaintiff delivered all the goods as per the consignment note even for the period in question only after receipt of the payment from the defendant. The defendant paid all the transportation charges as per the consignment notes. The defendant (DW-1) has stated that, that aspect could be proved had the plaintiff produced the account books for the relevant period. RFA 05 of 2013 Page 9 of 17
17. In the cross examination, the defendant has proved his signature on the consignment notes, as token of receiving the transported goods. The defendant has clearly stated that he did not submit any document in the court to prove that payment of freight charges was made relating to those consignment notes, marked as exhibit-1 series. During the cross examination, DW-1 had volunteered as under:
"Generally no transport company releases the goods to the consignee until and unless carrying charge is paid to the transport authority by the consignee".
He has also admitted that he did not submit any cash book, stock register and balance sheet etc. of his business. For purpose of re-appreciation, the following questions are pertinent and required to be dealt by this court:
(i) Whether the suit was instituted by an authorized individual for and on behalf of the company which was registered under the Companies Act, 1956 by incorporation certificate dated 13.02.2002 and subsequent certificate information dated 31.10.1994 ?
(ii) Whether the plaintiff has discharged the burden of proof proving that the defendant was liable to pay a sum of Rs.8,28,516/= with interest @12% per annum w.e.f. 09.06.2004 till realization;
18. Mr. Datta, learned counsel appearing for the plaintiff has admitted that the plaintiff has filed the Daily Cash Register, Account Books etc. by firisti, but those were not admitted in the evidence. In the memorandum of appeal, the appellant has taken a ground which reads as follows:
"the appellant has submitted all documents by firisti dated 14.11.06, 27.04.07, 28.06.07 and 14.08.07, out of which the documents submitted by firisti dated 27.04.07 were exhibited as Exhibit 1 and 2 series respectively as evidence on 16.04.12, other documents though submitted by firisti were not exhibited as evidence. The documents submitted by firisti dated 28.06.07 contains i) payment by parties w.e.f.RFA 05 of 2013 Page 10 of 17
16.02.03 to 01.02.05, and ii) outstanding dues list, was not exhibited but is lying with the record. Further party dues ledger book submitted by firisti dated 14.08.07 though lying with the record is not exhibited. Those documents which were not exhibited but lying with the record are very vital to decide the money suit and the instant appeal. Even if it is considered that those documents were not exhibited but the Ld. Trial Court below might have admitted those documents as evidence as per Order 41 Rule 27(a) of the Code of Civil Procedure where it has been specifically stated that the Ld. Court must admit as evidence those documents which ought to have been admitted or the Ld. Court below might have taken judicial notice of those documents or by applying Section 151 of the Code of Civil Procedure. But the Ld. Trial Court below failed to appreciate the same".
Mr. Datta, learned counsel has submitted further that by not taking those documents in the record of evidence, a serious prejudice has been committed.
19. Whether there is evidence to demonstrate that the suit has been instituted by the person having due standing?
The company is ordinarily represented by the Chief Executive Functionary by variation of its nomenclature if that Chief Executive Functionary is authorized by the Board of Directors. The Board of Directors has the authority to engage any individual for a particular act including institution of the suit or appearing for in the court for giving deposition etc. Admitted position is that the copy of the resolution authorizing the person who has been representing the plaintiff-company in the suit has not been produced in the records. As a result, this court is persuaded to hold that the person who represented the plaintiff-company in the suit did not have the competence to represent in absence of due authorization, at least the plaintiff could not prove it on record. The power of attorney by a director cannot substitute that legal requirement RFA 05 of 2013 Page 11 of 17 Therefore, the suit is bound to fall through. So far the production of documents is concerned, now this area is regulated by very definite provision leaving certain discretion to the original court. Order VII, Rule 14 of the Code of Civil Procedure (as amended by the Act of 47 of 1999 which has come into force on 01.07.2002) provides as under:
"14. Production of document on which plaintiff sues or relies:
(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such documents not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory".
It is evident that even if any documents which are to be relied by the plaintiff could not be produced or entered in the plaint shall not be received in evidence. The exception curved out under sub rule 4 of Rule 14 of Order XI is not relevant for this proceeding.
Order XIII, Rule 1 of the Code of Civil Procedure categorically provided that all original documents shall be filed before settlement of the issues.
20. From the record, it appears that the court deviating from those principles fixed various dates for documents such as 06.03.2007 and 05.04.2007. It appears that when the issues were settled on 18.05.2007, no document from the plaintiff RFA 05 of 2013 Page 12 of 17 was submitted apart which were submitted at the time of filing the plaint. It appears from the record that on 11.09.2007 much after the issues were settled, the plaintiff filed one application under Order XI Rule 12 and 14 of the Code of Civil Procedure read with Section 151 of the CPC for directing the defendant, Superintendent of Taxes-Charge V, and the Income-tax Officer, Ward-I, Agartala to produce the documents of the schedule of that application which are the Cash book, Ledger book, Assessment sheet for the financial year 2003-04, 2004-05, 2005-06 of the defendant and the income tax returns filed by the defendant for the year 2004- 05, 2005-06 and 2006-07. By the order dated 19.03.2008 it was observed that if the income tax returns are only called then the purpose of the plaintiff would suffice and accordingly the Income Tax Officer, Ward No. I was directed to produce the income tax return for the assessment year 2004-05, 2005-06 and 2006-07 of the defendant. On 23.04.2008 those documents were accordingly filed before the court. After the documents were filed, the plaintiff was re-examined, but he did not mention in the re-examination about those income tax returns though at his instance those documents were brought to the court. Several adjournments were given to the plaintiff. On 28.08.2010 again the counsel for the plaintiff had submitted that they would submit more documents before the court. Some photocopies of the documents were filed. On 16.04.2012, PW-1 was again RFA 05 of 2013 Page 13 of 17 examined and cross examined and at his instance the documents in the firisti dated 27.04.2007 were marked as Exhibit 1 series.
21. Atleast from the orders passed by the trial court, it does not appear that the plaintiff did file any application for acceptance of further document, as asserted herein. But without leave of the court, the party-accounts and daily cash statements were filed. There was no other endevour to bring those documents in the evidence as per procedure laid down. On 06.03.2007, the plaintiff filed an application seeking time for filing some more documents. On 05.04.2004 again by a petition it was stated that the relevant documents have been handed over to a driver of a vehicle of the plaintiff to deliver those documents at Agartala. Again, an application was made on 27.04.2009 stating that the plaintiff would submit the ledger books at the time of cross examination of the plaintiff. There is no other application in respect of production of the documents. Now, it has been pressed to be very relevant despite the fact that documents were available with the plaintiff.
22. What has been stated as the ground in the Memorandum of Appeal is that the court below ought to have admitted those documents under Order XLI Rule 27 (1a) and (a) of the Code of Civil Procedure, is not tenable for two basic reasons. Firstly, such power can only be exercised RFA 05 of 2013 Page 14 of 17 by the appellate court not by the original court and secondly admittance of such additional documents, as referred under Order XLI Rule 27 of the CPC is subject to certain conditions viz. (a) there was refusal to admit the evidence which ought to have been admitted and there was exercise of due diligence. Despite that such evidence was not within the knowledge of the plaintiff or even after exercise of due diligence those could not be produced by the plaintiff or the defendant at the time when the decree was passed (b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment for any other substantial case. It is apparent that some parts which are laid as the conditions to be observed are based on the factual aspect and as such the procedure as developed is that there should be a separate application seeking leave of the court which, according to this court, is also in accordance with the basic rules to file documents, as provided under Order XI Rule 14(3) of the CPC.
23. In this appeal, no such petition has been filed for acceptance of the additional evidence satisfying those conditions. It is apparent on the face of the records that no such application was filed for acceptance of those documents or seeking leave of the court on laying the grounds why the plaintiff could not produce those documents and how those documents were very relevant. As noticed, the petitioner filed application under Order XI of RFA 05 of 2013 Page 15 of 17 the CPC for production of the income tax returns and those articles were produced, but the plaintiff did not admit those returns in the evidence. Even no reliance has been placed by the plaintiff on those documents. From examination of the consignment note, it appears that in some of the consignment notes, the freight charges are mentioned, but in most of the consignment notes no such mention is available. Out of 14 nos. of consignment notes, freight charges are mentioned in the consignment notes No. 504- 108419, 504-101131, 504-101130, 504-101121, 504-101128 and 504-101117. In others, there is no mention.
24. In most of the consignments where the freight charge is mentioned, those entries were incorporated by different ink. Nowhere in the letters or the demand notice, there is an explanation how the freight charge had been determined where there is no mention of the freight charge in the consignment note. Be that as it may, it is really hard to believe that when there is default of payment of the huge amount, the plaintiff still continued the carriage without any demur before he issued a letter dated 28.05.2005 when the last consignment was delivered on 02.10.2004. From the examination of the consignment notes, it further appears from the terms and condition that the carriage has at the carrier's risk and after delivery of the goods, the liability of the consignee is over. Therefore, there is a reasonable RFA 05 of 2013 Page 16 of 17 ground to presume that such delivery is preceded by payment of the freight charge. The contrary could not be proved by the plaintiff.
25. In view of this, the appeal is devoid of any merit and accordingly the same is dismissed for reasons aforementioned.
Send down the records after drawing the decree in terms of the above.
JUDGE Saikat RFA 05 of 2013 Page 17 of 17