Delhi High Court
Metropolis Travels & Resorts (I) Pvt. ... vs Shri Sumit Kalra And Anr. on 7 May, 2002
Equivalent citations: 2002VIAD(DELHI)493, 98(2002)DLT573, 2002(64)DRJ72
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
JUDGMENT Usha Mehra, J.
1. Suit for recovery was filed by the appellant/plaintiff on the ground that he was the authorised agent of Indian Airlines for the sale of its tickets. Respondent/defendant had been purchasing the tickets from the appellant since 1996 for which bills/ invoices were issued. As per practice representative of the respondent company used to sign those bills/invoices in token of having received bills/invoices and the tickets. On the respondent sometime its employees would come to collect the tickets and sometime proprietor himself. Amounts of the bills/invoices was either paid at that time and at times bills amounts were paid lateron. In the year 1997 respondent purchased tickets but failed to pay the amounts. When oral requests failed to yield the result the appellant issued registered notice on 19th January, 1998. It was duly received by the respondent on 11th February, 1998. Despite notice when respondent failed to make the payment, suit for recovery was filled.
2. This suit was contested by the respondent, primarily on the ground that tickets against those bills/ invoices Ex. PW2/1 to PW2/30 had not been received by the respondent. That the bills/invoices had been forged and fabricated. The transaction as alleged had been denied by the respondent. According to Respondent it was appellant's employee Yuvraj Singh who committed the act of forgery and fraud. This fact was in the knowledge of the appellant. The appellant had in fact lodged police report against the said employee. Hence, no liability of the respondent to pay the amount against invoices/bills Ex. PW2/1 to PW2/30.
3. Parties led evidence. Jitender Nath Sharma, Director of the appellant was examined as PW-1 beside Shyam Lal Kamta as PW-2. Respondent examined its proprietor Sumit Kalra as DW-1. By the impugned judgment suit of the appellant has been dismissed.
4. Aggrieved by the dismissal of his suit, present appeal has been preferred, inter alia, on the ground that learned trial court ignored the settled proposition of law that the person who alleges a particular fact has to prove the same. Instead of following this principle the court below held appellant responsible to prove the facts alleged by the respondent. Secondly, court below erroneously presumed that a document admitted by the respondent Ex. PW2/12 still required to be proved by the appellant. Court below thus fell in error to hold that those of the employees of the respondent who signed the bills/invoices ought to have been produced in evidence by the appellant.
5. Thus the short points for our consideration is whether the documents Ex. PW2/1 to PW2/30 stood proved? If so could these be ignored? Whether Ex. PW2/1 to PW2/30 are forged and fabricated documents and finally was the trial court justified in placing the burden on the appellant to prove those facts as alleged by the respondent.
6. To appreciate these challenges let us have glance to the evidence adduced by the parties. Shri Jitender Nath Sharma appearing as PW-1 proved that the respondent had been buying tickets from his company since 16th October, 1996. He had been remitting payments against the bills/invoices raised by his company. However, in the year 1997 various tickets were purchased by the respondent for which bills/invoices were raised but payments not made. He proved the carbon copies of those bills/invoices as Ex. PW-2/1 to PW-2/30. These bills/invoices are duly endorsed by the employees of the respondent in acknowledgement of having received the tickets. These employees used to collect the tickets and, therefore, signed the bills/invoices. Demand for the outstanding amount was made. Respondent sought time to make the payment. He sought time because at that time he was facing financial orisis. However, when payment was not received, legal notice Ex. PW-1/3 was issued. Respondent avoided to receive Ex. PW-1/3. He therefore was got served personally in the presence of a Notary Public. Report of Notary Public has been proved as PW-1/8. Jitender Nath Sharma (PW-1) denied that his employee Yuvraj Singh fabricated or forged bills/invoices or sent the bills directly at a discount to the customers of the respondent or that he pocketed the money received from those customers. He denied having received the amount. In spite of the lengthy cross-examination, the respondent could not extract any material contradiction nor could discredit his testimony. Regarding outstanding amount of invoices/bills, Jitender Nath Sharma (PW-1) was neither questioned nor even a suggestion was given that these were forged or fabricated.
7. Shri Shyam Lal Kamta (PW-2) proved the carbon copies of the invoices/bills Ex. PW2/1 to Ex. PW2/30. He testified that on behalf of the respondent his employees S/Sh. Rajeev, Bhupinder Singh, Amit and Bhopal had been coming to the office of the appellant to collect the tickets. In token of having received the same they used to sign the bills/invoices. He identified their signatures on Ex. PW2/1 to Ex. PW2/30. He had seen Rajeev, Bhupinder, Amit and Bhopal writing and signing, and therefore, could identify their signatures. These bills/invoices had been prepared by him or under his supervision by his colleagues namely Arti and Pushkar Sharma. He also recognised their writing and signatures. Those bills which were not prepared by him, he used to check them before handing over the same to the respondent. Along with these bills/invoices tickets were also collected by those employees of the respondent in his presence. When subjected to cross-examination he clarified the procedure of collecting of the tickets, bills and of payment by the respondent. According to him some time payment was made at the time of delivery of tickets and at time subsequently. At the time of delivery of tickets bills/invoices used to be got signed from the representative of the respondent in token of having received the tickets. His statement on this aspect remained unchallenged.
8. On the other hand Mr. Sumit Kalra appearing as DW-1 admitted that Rajeev, Bhopal, Bhupinder Singh and Amit were his employees and had been authorised to collect tickets from the appellant. He, however, tried to explain it away by saying that Bhupinder left the job in January, 1997, Rajiv left in November-December, 1996, Amit in December, 1997 and Bhopal in mid of 1998. Therefore, according to him these employees could not have collected the tickets nor could have signed bills/invoices Ex. PW-2/1 to PW-2/30 in the year 1997. Except his oral assertion he could not produce any documentary evidence on record to substantiate this fact. The burden to prove, to our mind, was on him to show that these employees were not in his service at the relevant time when their endorsement on Ex. PW-2/1 to Ex. PW-2/30 is alleged to have been made. To our mind, learned trial court fell in error in placing the burden of proving this fact on the appellant. From the testimony of Sumit Kalra (DW-1), it is clear that these four persons were in his employment and were dealing with appellant on behalf of the respondent for the purpose of collecting the tickets. Since Mr. Sumit Kalra (DW-1) admitted that those four employees were dealing with the appellant on behalf of the respondent, the burden shifted on the respondent to prove by a cogent and reliable evidence that the signatures on Ex. PW-2/1 to PW-2/30 were not of those employees or they had no authority to deal with the appellant or that they were not in his service at the relevant time. Having failed to discharge this burden and having kept back the best evidence namely the attendance register, salary register and/or any other document, we feel the learned trial Court fell in error in not drawing adverse inference against the respondent. How could the Court below blame the appellant for not summoning those four employees of the respondent? Once the appellant through the testimony of Shyam Lal Kamta PW-2 proved that the bills/invoices bear the signatures of respondent's employees who signed in his presence in token of having received the tickets the burden squarely fall on the respondent to rebut the same.
9. Contention of Mr. H.L. Tikku that signatures on the invoices/bills Ex. PW-2/1 to PW-2/11 and from Ex. PW-2/13 to PW-2/30 were not that of his employees, is not supported either by oral or documentary evidence on record. The best evidence was available with the respondent because they were his employees hence their admitted writing and signatures must be available with the respondent. It was for the respondent to have got the disputed signatures on Ex. PW-2/1 to PW-2/30 compared with the admitted signature in order to prove those to be fabricated. But respondent did not take any step to get it proved on record that signature on Ex. PW-2/1 to PW-2/30 were fake, forged and fabricated. It is only after the initial burden is discharged by the respondent that the burden could have shifted on the appellant. But from the perusal of evidence it is clear that respondent failed to discharge even the initial burden. Therefore, there was no obligation on the part of the appellant to either summon the handwriting expert or those employees. In fact trial court in such circumstances should have drawn adverse inference instead of observing that:--
"To prove the purchase of Air Tickets against the bills in question, plaintiff has made no efforts to call upon the defendant by issuing of notice Under Order 12 Rule 8 CPC to disclose the permanent address of the above-said employees of the defendant. It has come in the evidence of the defendant that the firm of the defendant is functional even on the day when he had given his evidence in this case. The burden of proving that the Air Tickets against bills Ex.PW-2/1 to PW-2/30 were received by the above-said employees of the defendant, was upon the plaintiff which the plaintiff had failed to discharge."
10. Above observations are not only against the facts but contrary to well settled principle of law. For production of the witnesses the provisions of Order 12 Rule 8, CPC, does not apply. Order 12 Rule 8 CPC deals with production of documents. Moreover, appellant through the unrebutted testimony of PW-2 established that these bills/invoices were endorsed/signed by the employees of the respondent in his presence in token of having received the tickets. This part of his testimony was neither subjected to cross-examination nor dislodged by any reliable rebuttal evidence.
11. Mr. H.L. Tikku, counsel for respondent tried to show that those bills/invoices were forged. He invited our attention to invoice Ex. PW-2/10. He pointed out that date of issue of this invoice is 28th April, 1997 whereas the alleged date of signing the invoice Ex. PW-2/10 is 24th April, 1997. This fact clear it show that invoices were forged. Learned Trial Court not only dwelt on this aspect at length but also relying on this discrepancy did not attach any weightage to these duly proved documents. Admittedly Ex. PW2/10 bears the endorsement date as 24.4.1997, but the date of issuance of the invoice is not legible. It can be read as 20th or 23rd April. Simply because the date of issue of one invoice can be read as 28th April whereas endorsement is of 24th April, it cannot be said that all invoices were forged nor presumption of forgery having been committed by the appellant can be inferred. Hence we find no substance in the argument of the respondent.
12. Now turning to invoice Ex. PW-2/12 for Rs. 5,363/-, this invoice was admitted by the respondent at the time of admission and denial of documents. Since this was admitted document there was no question of proving the same. Instead of relying on Ex. PW-2/12 the Court below observed that appellate failed to prove this document Ex. PW-2/12. We fail to understand by which logic the trial Court made these observations. Law as we all know postulates that an admitted document need not be proved. There was in fact nothing for the appellant to prove an admitted document. The error is thus writ large in the observation and conclusion reached by the trial Court.
13. There is another aspect of the matter which negates the argument of the respondent and that is that the appellant served a legal notice on the respondent vide Ex. PW-1/3. No reply the same was given by the respondent. But inspite of the same no adverse inference was drawn against the respondent. This Court in the case of Kalu Ram v. Sita Ram 1980 RLR (Note) 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality adverse inference should be drawn because he kept quite over the notice and did not send any reply. Observations of Kalu Ram's case (Supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices/bills in question. But the learned Trial Court failed to draw inference against the respondent.
14. For the reasons stated above we are of the considered view that the impugned cannot stand. The same is accordingly set aside. Appeal is allowed but with no order as to costs. The suit is accordingly hereby decreed as per the relief claimed in the plaint.