Bangalore District Court
B.E.Billimoria & Co vs Krishnakumar.K on 26 February, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 26th day of February, 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.7817/2008
PLAINTIFF : B.E.Billimoria & Co., Limited,
Civil Engineering Constructions
Contractors,
Shiva Krupa, 1st "Floor,
1st Cross, 4th Main,
Domlur 2nd Stage,
Indiranagar,
Bangalore-560 071
Represented by
K.Poovaraghavan.
(By Sri B.Suresh Kumar,Advocate)
-VS-
DEFENDANT : Krishnakumar.K.,
s/o Karunakuaran,
Flat No.4,
Old Door No.2,
New No.3,
Rangarajapuram,
1st Street, Kodnambakkam,
Chennai-600 024,
Tamil Nadu.
( By Sri.CVG, Advocate)
2 O.S.No.7817/2008
Date of Institution of the suit : 24/11/2008
Nature of the Suit : Recovery of money.
Date of commencement of recording
of evidence : 10/2/2012
Date on which the Judgment was
pronounced : 26/2/2015
Year/s Month/s Day/s
Total Duration : 06 03 02
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.1,04,27,047.01/- with court costs and future interest at the rate of 18% p.a.; and for such other reliefs.
2. The case of plaintiff in nutshell is that plaintiff is carrying on business of civil engineering and constructions and registered under the provisions of Companies Act, 1956. It is carrying construction of multistoried buildings, apartments and other buildings across the country. Its head office is situated in Mumbai and branch office is in Bangalore. It is a reputed organization and it has been awarded several prestigious awards for its quality 3 O.S.No.7817/2008 constructions. It has taken construction contract in respect of built up area of 13,25,000 sq.ft at Concorde, Manhattan Project, Neeladri Water Park Road, Electronic City, Bangalore i.e., construction site. At every site of construction, it would take the project manager to take control of entire construction activities from beginning till completion of such construction projects. The defendant approached the plaintiff company for appointment as project manager undertaking the responsibility of materials and labourers. Relying on his undertaking, assurances and representations, plaintiff company appointed defendant as project manager vide its appointment letter dtd:16/10/2006 and delegated all powers of management of site construction to the defendant. It has rendered all possible organizational support in order to enable him to complete the project. He was empowered to receive the required construction materials including steel, cement and Ready Mix Concrete (RMC) and all other requisite materials. He was also empowered to draw the requisite and sufficient funds from 4 O.S.No.7817/2008 the account of the head office. He was empowered to engage and appoint labourers, piece contractors and other labourers required from time of time. It was his duty to submit weekly statement of accounts regarding withdrawal and payment to the labourers, monthly income and expenditure statement and reconcile statement. It was his duty to keep track of the material quantity. It was his primary duty and responsibility to ensure that the project work was handled and managed in an efficient, honest, professional and prudent manner. It is the responsibility of defendant for receipt, consumption and accounting of various materials required for the project work. He was also duty bound to reconcile the receipt and consumption of various materials on monthly basis and submit thorough report regarding the same to the head office. However, he failed and neglected to submit reconciliation statement of materials regularly to the plaintiff company even after repeated requests and demands from the General Manager and Director of the plaintiff company. He took charge of the site in 1st week of April 2007. He ought to 5 O.S.No.7817/2008 have maintained proper records for receiving the materials from the head office and to maintain records about payment of money to various sub-contractors, labourers. Further, he miserably failed and neglected to perform his duty. He received huge quantity of steel, cement, RMC and other materials for completion of the work entrusted to him. He demanded huge amount of cash; time and again used to demand for huge amount of cash and received the same from head office without subsequently properly accounting them. But he did not submit the weekly, monthly income and expenditure statement to the plaintiff company and also regarding receipt of materials. He demonstrated lethargical attitude towards the workers. Normal progress of the work also got hampered due to his attitude. On one pretext or the other, defendant evaded to submit these statements. But plaintiff shocked and surprised to know that there was huge shortage in the quantity of steel, cement, RMC missing from the construction site. The defendant was unable to account for the shortage of such huge construction materials; 6 O.S.No.7817/2008 there was no explanation from him. The plaintiff company deputed V.S.Kularni and Sachin Patankar to the construction site to take stock of materials received and consumed from the beginning at the work spot and accordingly, they submitted detailed report and observed that there was huge shortage of 7521 bags of cement, 98 M.T. of steel and 628.32 M3 ready mix concrete. During the audit, it was found that gate pass/inward and outward registers for the months of April and May 2007 were curiously found missing from the site. On 31/1/2008 the defendant has not given proper explanation for this shortage. According to company rules, the imprest account is required to be handled by an engineer authorized by the project manager. Without delegating the powers for handling the imprest account to any one of the subordinate engineers, the defendant chose to handle the imprest account himself there by violating the rules of the company. Without submitting said report defendant drew huge amount from the head office. Hence, plaintiff has issued notice dtd: 13/3/2008 calling upon the 7 O.S.No.7817/2008 defendant to give explanation for this shortage. After receipt of notice, defendant has given an untenable reply on 31/3/2008. He alone responsible for this financial loss caused to the company. During audit it was revealed that the defendant certified an excess quantity of 628.32 M3 of Ready Mix concrete of Rani Enterprises. Thus, he committed breach of trust to the plaintiff and misappropriated the amount of Rs.1,04,27,074.01. Hence, the suit for appropriate reliefs.
3. After service of suit summons, defendant appeared through his counsel and filed his written statement wherein he admitted that he was appointed as Project Manager by plaintiff company as per provisional appointment letter dtd:8/9/2006 and formal letter of appointment issued on 16/10/2006. He further contended that after completion of probationary period of 6 months, his services were confirmed by plaintiff company vide its letter dtd: 9/4/2007. Since April 2007, he was posted to Concorde Project site. He denied the 8 O.S.No.7817/2008 other averments made in the plaint regarding his managerial powers, he was entrusted with receipt of consumption and accounting of various materials; he has to maintain records, receipts and has to prepare reconciliation statement. He further contended that the Client Billing Department was preparing reconciliation statement in the plaintiff company. The responsibility of reconciliation of materials is to be done by the reinforcement engineer and the steel yard in charge. The plaintiff company has appointed Stores in charge who was responsible for sending weekly statements, periodical statements of details of the materials to the head office. On weekly basis money is disbursed to the project accountant under the control of Manager Administration and imprest accounts were prepared and sent to Domlur office by the Project Accountant at site and thus, he is not responsible for any lapses. He further admitted that plaintiff issued legal notice dtd:13/3/2008 and he has given reply to it as per reply notice dtd:31/3/2008. He denied all other averments made in the plaint against him 9 O.S.No.7817/2008 regarding his negligence or lethargic attitude etc. and also denied that he misappropriated the funds or materials. He was responsible only to the execution of the project at site as per planning done along with General Manger and Liaisoning with agencies, arrange periodical meetings with clients etc. and he is an engineer by profession and was appointed to look after engineering aspects of the project such as execution of civil construction as per the drawings and hence prayed for dismissal of the suit with costs.
4. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that the defendant is due and liable to pay the suit claim of Rs.1,04,27,047.01 as prayed for?
2. Whether the plaintiff proves that the defendant is also liable to pay the interest as claimed?
3. Whether the plaintiff is entitled for a judgment and decree as sought for?
4. To what order or decree?10 O.S.No.7817/2008
5. On behalf of plaintiff, Senior Manager of Finance, Administration of Plaintiff Company is examined as P.W.1 and as he has not faced the complete cross-examination, his evidence was struck down on 18/11/2013. But subsequently on 10/12/2013, said order was recalled and his evidence was again taken on record. The Branch Accountant of Plaintiff Company was subsequently examined as PW-2, got marked Ex.P.1 to Ex.P.122 and closed its side. On behalf of defendant, defendant is examined as D.W.1, got marked Ex.D.1 and closed its side.
6. Heard arguments of both sides.
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7. Findings of this court on the above issues are :-
Issue No.1:- In Negative;
Issue No.2:- In Negative;
Issue No.3:- In Negative;
Issue No.4:- As per the final order for the following:-11 O.S.No.7817/2008
REASONS ISSUE No.1
8. The admitted facts of the case are that defendant is working as Project Manager with plaintiff. Plaintiff had taken construction project from CONCORDE Manhattan Project, Neeladri Water Park Road, Electronic City, Bangalore for an area measuring 13,25,000 sq.ft. The plaintiff has produced the appointment letter of defendant in Plaintiff Company as per Ex.P.2. It reveals that plaintiff got appointed the defendant as Project Manager vide its letter dated 16/10/2006 w.e.f. 18/9/2006. The description of job or responsibilities and duties of defendant is not found in this letter.
[
9. The plaintiff contended that defendant is the whole and sole supervisor of said Concorde project. The defendant was empowered to receive required construction materials including steel, cement, iron and steel; to draw requisite funds from the head office account; to engage and appoint labourers, piece contractors and other labourers required from time of 12 O.S.No.7817/2008 time. It was his responsibility to submit weekly statement of account regarding withdrawal and payment to the labourers, monthly income and expenditure statement and reconcile statement; to keep track of the material quantity; to ensure that the project work was handled and managed in an efficient, honest, professional and prudent manner; for receipt, consumption and accounting of various materials required for the project work; to submit monthly reconcile statement.
[ [
10. The defendant denied all the above responsibilities on him in his written statement. To prove that the defendant had the above responsibilities, plaintiff has not produced any document. As already discussed above, the appointment letter as per Ex.P.2 is silent about it. However, plaintiff mainly relies upon the material issue slips as per Ex.P.9 to Ex.P.105 to say that defendant had said responsibilities.
11. DW-1 in his cross-examination admits that Ex.P.9 to Ex.P.105 are material issue slips and on perusal of them, 13 O.S.No.7817/2008 he admitted that he counter signed all those material issue slips. This court found that the store keeper, project manger had signed it and the person who received them also signed them. Thus, the store keeper issued these slips which are only counter signed by defendant. Hence, if at all there are any lapses, even the store keeper is also responsible for such lapses.
12. In the cross-examination, defendant admits that he and another project engineer-C.D.Sham were looking after the work. The Stores Department used to give acknowledgment for having supplied the materials. In some cases, he has also acknowledged for having supplied the materials. The project manager and project engineer used to take materials from store department i.e., himself and C.D.Sham for the purpose of construction. He also deposed that the Stores Department might be maintaining inward and outward of materials.
[ [
13. The plaintiff company mainly relies upon the report as per Ex.P.3 to say that there was shortage of huge 14 O.S.No.7817/2008 materials of steel, cement and RMC etc. and defendant is responsible for it.
14. Ex.P.3 is the report prepared by one V.S.Kulkarni and Sachin Patankar. This report is signed by V.S.Kulkarni and not by S.Patankar.
15. On perusal of this report, it reveals that on 31/12/2007 V.S.Kulkarni visited the Concorde project along with PMC Manager from 31/12/2007 to 5/1/2008 to check the cement, steel and RMC reconciliation and study of overall system prevailing at the site. According to this report, site has not sent any reconciliation statement regarding cement and steel and hence, it was decided to check physical stock at godown and find out consumption with work done. So, the person who had issued this report had verified the physical stock and found the shortage of 7521 bags of cement; 123.191 MT Steel and 628.32 M3 considering the receipt, physical stocks and work done quantity up to 7th Running Bill and also observed that the site is having one main entry for vehicles and materials, which is managed by two security 15 O.S.No.7817/2008 personnel i.e., one supervisor and one guard and there are 3 more guards located at different places. Further, the standard of the personnel was not up to the mark as they were not able to explain the procedure. And there are two inward entries of diesel entered in outward register. This was certified by the project manger and found that it was a mistake on the part of the security supervisor and no security gate register for the period upto 31/5/2007 available and this way they are not able to know where exactly wastage incurred and the site has not prepared any reconciliation for Metal-1, Metal-2 or sand. All this could have been avoided, if periodical reconciliation, comparison of billed quantity with certified quantity of work done statement were prepared by site from time of time and sent to head office. This report is having 11 annexures. But all these annexures are not produced along with Ex.P.3 and they are not marked. Based on those annexure, the report was prepared. The defendant admitted that said V.S.Kulkarni and Sachin Patankar have visited the spot. However, according to 16 O.S.No.7817/2008 him, it was told that they have visited the spot who are employees of Plaintiff Company only to ascertain any missing item and for first hand assistance to the head office.
16. The person who prepared this report is the employee of Plaintiff Company and he is not examined and the annexures to this report are not marked. Hence, this report is incomplete and at the same time, it cannot be relied upon, because the person who prepared the report is not examined by the plaintiff. The defendant has not admitted this report in his affidavit evidence and according to him; this report is not based on facts and therefore, he say that it is a created document. He admits that this report was submitted by V.S.Kulkarni before him leaving the plaintiff company. According to defendant, RMC delivery notes, invoices, daily consumption records could have been taken into account while preparing Ex.P.3, but they were not considered. Hence, if said V.S.Kulkarni was examined by plaintiff company, from his evidence, it could have been observed that what are the documents verified 17 O.S.No.7817/2008 by him and what is the basis for coming to the conclusion about short falls. An opportunity would have been given to defendant to cross-examine said witness to know whether the said report is correct or not. Without these things, the report Ex.P.3 cannot be relied upon to say that there were shortfalls.
17. According to DW-1, he came to know about the shortage of steel and cement at Concorde site only during March 2008. He has deposed that GM and DGM had visited the site and enquired with regard to shortage of materials; he explained them that whatever inputs he had to give had been given and he is not responsible for shortage of materials. According to him, his duties were only supervising the structural activities on the site and he is also responsible for drawings and quality control of materials. According to him, quality Control means, the project was awarded Concorde and the contractor under Concorde was constructing the building and he was verifying the specifications in pursuance of the agreement. 18 O.S.No.7817/2008 He was verifying all the quality control documents like inspection, site laboratory document, verifying the performance of site engineers and execution staff. He denied the suggestion that it was his duty to ensure to safeguard of the materials on the site and to send reconciliation statement. He denied the suggestion that he was in-charge of entire project and it was his duty to ensure the shortage. He was also admitted that he was supervising the site construction in the plaintiff company and at that time, the site engineers and project engineers were reported to him and he was reporting to GM and DGM orally and on some occasions through telephone and he was not submitting weekly report to his immediate supervisors. For March and April 2008 his salary was denied by Plaintiff Company. He denied the suggestion that as project manager he was in charge of all matters pertaining to account, finance and storage of materials. The Stores in-charge used to supply steel and cement. According to D.W.1, the Manager and GM used to give requisition to the stores in-charge to supply steel and 19 O.S.No.7817/2008 cement apart from procurement programme and he was not part of procurement programme.
18. On behalf of plaintiff, in the beginning the then Senior Manager of plaintiff bank is examined as PW-1 and he was partly cross-examined. But because he left the job, again the Branch Manager in Accounts Department is examined as PW-2 and he is fully cross-examined.
19. PW-2 was authorized to give evidence on behalf of Plaintiff Company as per Ex.P.122. Ex.P.122 is given to PW-2 to give evidence and to do all necessary actions pertaining to present suit.
20. The learned counsel for defendant vehemently submitted arguments that PW-2 was not authorized by Plaintiff Company to file the suit as this authorization letter was issued only on 26/11/2013 whereas this suit was filed during the year 2008. In this regard, the learned counsel for defendant has relied on the decision reported in AIR 1991 Delhi 25 in " M/s.Nibro Limited v/s 20 O.S.No.7817/2008 National Insurance Co., Ltd.," wherein it is held as under:-
"(A) Civil P.C.(1908), O.29, R.1 - Suit on behalf of company - Who can file - Rule 1 does not authorise persons mentioned therein to institute suit on behalf of company - Such suit can be filed by a Director specifically empowered by Board to file suits."
21. The defendant's counsel also relied on the decision reported in AIR 2000 Delhi 239 in "M/s.Rajghria Paper Mills Ltd., v/s General Manager, Indian Security Press and another" wherein it is held as under:-
"Companies Act (1 of 1956), S.291 - Company - Director - Not competent to file suit on behalf of Company, unless specific power is conferred upon him - No proof tendered in instant case to prove that the director who filed the suit was duly so authorised".
22. The learned counsel for the defendant further relied on the decision reported in 2008 Crl.L.J.157 in "Director, Maruthi Foods and Farms Pvt.Ltd., v/s Basanna Pattekar" wherein it is held as under:- 21 O.S.No.7817/2008
"Negotiable Instruments Act (26 of 1881). S.138 - Cheque dishonour proceedings - Complainant is company - Authority of Director of Company to dispose on behalf of company - No documentary evidence to show that he is Director and he has been authorised to depose on behalf of company - Resolution of company is not produced and he has pleaded his ignorance in cross- examination about resolution passed by Board of Directors - Acquittal of accused, proper."
23. In all the above said citations, it is held that there should be authorized person from the company to prosecute the suit and unless such specific power conferred upon the director, even the director cannot file the suit.
24. The learned counsel for the plaintiff relied on the decision reported in (1996) 6 Supreme Court Cases 660 in "United Bank of India v/s Naresh Kumar and others" wherein their Lordships held as under:-
"A. Civil Procedure Code, 1908 - Or.6 R. 14, Or. 29 R.1 and Or.41 R.17(1)(b) - Pleading - Suit by company - Plaint can be signed and verified by a person duly authorised - Company may expressly authroise one of its officers to sign the plaint or it may ratify, 22 O.S.No.7817/2008 expressly or impliedly, the act of signing - Court can render its finding about the ratification on the basis of evidence on record and circumstances especially conduct of the trial - Even if trial court finds that the plaint was not duly signed and verified by a competent person, appellate court in exercise of powers under Or. 41 R. 27(1)(b) can require a power of attorney to be produced or can order a competent person of the company to be examined as witness to prove the ratification - Having regard to the facts and circumstances, held, plaint had been signed and verified by a competent person."
"B. Practice and procedure - Pleadings - Substantive rights should not be allowed to be defeated on technical grounds of procedural irregularity so as to ensure that no injustice done to any party - CPC, 1908, Or.6"
25. On perusal of the above 4 citations, this court found that only on the ground of technicalities, procedural irregularities, the court cannot dismiss the suit. The citations relied by the defendant are only the citations of Delhi High Court and Punjab and Hariyana High Court of the years 1999, 2000 and 2008. However, the citations relied by the plaintiff's counsel is of the year 1996, but rendered by Hon'ble Supreme Court of India. This ruling was not referred in the citations given by defendant. 23 O.S.No.7817/2008 Hence, the ruling of Supreme Court of India prevails over the rulings of the Hon'ble High Courts. Furthermore, only because of technicalities and procedural irregularities, the court cannot dismiss the suit. Hence, this court holds that the objections raised by defendant that PW-2 was not authorized by Plaintiff Company cannot be accepted as correct. Furthermore, the evidence of PW-2 clearly establishes that he is fully aware about the transaction and hence, he is competent to give evidence on behalf of plaintiff company. Though P.W.1 has given evidence, his evidence cannot be considered in toot because, he fail to face the complete cross-examination.
26. With this background, the documents produced by plaintiff are to be looked into. As already discussed above, except Ex.P.3, there is no document to prove short falls. Even Ex.P.3 cannot be looked into because; it is not proved in accordance with law. The plaintiff further relied on Ex.P.9 to Ex.P.105-material issue slips. But they only prove that some materials were given by Store Keeper for 24 O.S.No.7817/2008 construction work and were counter-signed by defendant. Hence, they do not reveal what is the short fall.
27. In the cross-examination, defendant has only deposed that he came to know about short fall during March 2008. But he has not specifically deposed hat what was the short fall. Hence, his said evidence cannot be considered as his admission regarding the short fall claimed by plaintiff in this suit.
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28. PW-2 in the cross-examination has deposed that they have not produced the audit report shown in Ex.P.5 and there is no mention in Ex.P.5that imprest account will be handled by engineers. On perusal of Ex.P.5, this court found that Ex.P.5 is only postal receipt for having sent legal notice dtd:13/3/2008 to defendant. Thus, there might be some typographical mistake in recording evidence, this Ex.P.5 mentioned in the evidence of PW-2 might by Ex.P.3. However, Ex.P.3 cannot be looked into for the reasons stated above. Hence, the cross- 25 O.S.No.7817/2008 examination of PW-1 on this document is also not required to be looked in to.
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29. PW-2 has deposed that Manoj has not submitted any report with regard to shortage of materials while taking over the charge. But who is said Manoj and from whom he has taken charge is not explained by PW-2 in his evidence and it is not mentioned even in the plaint. [
30. PW-2 has stated that the defendant has misappropriated the funds totally amounting to Rs.1,04,27,047.01. However, the cross-examination of PWs.1 and 2 clearly establish that no complaint is lodged against defendant for misappropriation of funds. On the other hand, cross-examination of PW-2 reveals that the plaintiff company has lodged PCR.No.50/2008 before the court which was referred to police under Section 156(3) Cr.P.C. for investigation who have submitted their 'C' Report as per Ex.D.1. Ex.D.1 reveals that the culprit who had stolen the materials from Concorde site is not proved. If really, the plaintiff had known that defendant had stolen 26 O.S.No.7817/2008 the materials or misappropriated the materials or funds, it would have directly lodged complaint against defendant and not against unknown person.
31. The plaintiff's counsel submitted arguments that only because of negligence of defendant, this loss was caused and hence, defendant is liable to make good to the plaintiff.
32. In this regard, the learned counsel for plaintiff relied on the following decisions:-
1) (2006) 3 S.C.C. 736 in "Punjab State Civil supplies Corporation Ltd., v/s Sikander Singh" wherein, their Lordships held as under:-
"A. Torts - Concurrent/overlapping obligations/duties-duties in tort overlapping with contractual duties - Specific situations - Contract of employment - Civil suit in tort for damages by employer against employee
- When maintainable - Held, such suit in tort would only be maintainable when there are acts of malfeasance, misfeasance or non-feasance by employee in discharge of his duties under the contract of employment, and such acts of malfeasance, misfeasance or non-feasance have been actuated by 27 O.S.No.7817/2008 malice or bad faith - Mere negligence in the discharge of contractual duties would not be enough to give rise to an independent cause of action in tort, but would be confined to the employer's action/suit in contract for damages for breach of contract, or, to disciplinary proceedings initiated by the employer - Law of Obligations - Concurrent obligations - Contract Misconduct - Unsatisfactory performance of duties - Negligence, malfeasance, misfeasance or non-feasance in performance of duties - When actionable in tort - Conversion - Applicability."
2) 2009(4) SLR Punjab and Haryana the Hon'ble High Court of Karnataka 375 in "
Shakti Kumar v/s Punjab State Civil Supplies Corporation and others" , wherein it is held as under:-
"Constitution of India 266- Civil Procedure Code, 1908, Section 9 - Punjab Civil Service (Punishment and Appeal) Rules, 1970, Rule 8 - embezzlement - Recovery - Civil Suit - Loss was caused to the corporation by the defendants due to embezzlement and negligence of defendants - No abstract proposition of law to the effect that in a case where loss has been caused by an employee due to his negligence in performance of duties, the same can be recovered in disciplinary proceedings by holding him guilty to the alleged misconduct and the same 28 O.S.No.7817/2008 cannot give raise to cause of action for filing suit for recovery of money for loss caused - Loss can be recovered by filing civil suit."
3) 1992 (5) SLR 577 Kerala the Hon'ble High Court of Karnataka in "Krishnan v/s Metal Industries Ltd.," wherein it is held as under;-
"A. Civil Procedure Code, 1908, Section 51, Proviso, Clause(c) Misappropriation - Money handed over to the employee by the employer for payment of salary to other employees - Petitioner bound in a fiduciary capacity to account for the amounts - Clause (c) of proviso to Section 51 of the Code of Civil Procedure attracted."
4) 1996(8) SLR Andhra Pradesh the Hon'ble High Court of Karnataka 745 in "Superintending Engineer, Operation Circle, A.P.S.E.B., Warangal v/s S.Veeraiah" in which it is held as under:-
"A. Constitution of India, Articles 14 and 226 - Natural justice -Courts have drawn a line of distinction between the violation of the rule of "audi alteram partem' in which case the action is without jurisdiction and some of the facts thereof in which case, unless prejudice is shown to have been caused to the defence of employee who 29 O.S.No.7817/2008 has been proceeded against, the order is not vitiated."
33. First, the plaintiff company has to prove what is the loss caused to it and it has to prove that said loss was caused only due to negligence on the part of defendant and then only, it can succeed in its case.
34. As already discussed above, Plaintiff Company has not proved the quantum of loss caused to it. As per the cross-examination of PW-2, it is crystal clear that there would be security supervisors, security guards to safeguard the Concorde site and there will be store keeper who is in charge of the materials. If they did any mistake, it cannot be attributed as negligence on the part of defendant. The defendant cannot supervise each and every act of store keeper or the security staff. Hence, this court holds that the above said rulings are not helpful for plaintiff to prove its case.
35. The plaintiff further relied upon the e-mail conversations between defendant and the management as per Ex.P.106 to Ex.P.120. Along with it, Plaintiff Company 30 O.S.No.7817/2008 has also produced the certificate U/S.65-B of the Evidence Act issued by one Devigan.K. as per Ex.P.106. However, the designation of said person in Plaintiff Company is not mentioned in this certificate. The said Devigan.K. is not examined by plaintiff company. Two of these e-mails were admitted by defendant in his cross-examination. He admitted that he was using e-mail [email protected]. and also his personal e-mail ID is [email protected]. He identified Ex.P.107 e-mail is given by him. However, he denied that Ex.P.109 and Ex.110 were given by him. Ex.P.107 is the personal e-mail I.D. of defendant. Under this e-mail, defendant requested the company to provide Rs.50,000/- to provide site expenses for disbursal of labour payments and other miscellaneous works. In Ex.P.109 e-mail is given from different e-mail ID account and according to this e-mail, difference in amount is only RS.62,833/- and this difference is relating to some old bills. However, defendant denied that he issued this e-mail to plaintiff. The person who received this e-mail is not examined. 31 O.S.No.7817/2008 PW-2 is not having any personal knowledge about this e- mail. Under these circumstances, Ex.P.109 cannot be considered as a document to prove that defendant was having responsibility to give periodical statement and reconciliation statement.
36. The defendant has deposed that Ex.P.111 was not sent to him and he has not received any e-mail from V.S.Kulkarni on 8/8/2007 at 1 p.m. Said V.S.Kulkarni is not examined and defendant denied the receipt of such e- mail, hence, this is also not a document to prove the contention of plaintiff. Ex.P.112 to Ex.P.120 are e-mails calling of reconciliation statements from Concorde site. But reply given by defendant to these e-mails is not produced by Plaintiff Company. If the replies given by defendant to these e-mails were produced by plaintiff, that would reveal whether defendant was responsible to submit reconciliation statement or not. Under these circumstances, mere production of these e-mails would not prove the case of plaintiff.
[ 32 O.S.No.7817/2008
37. On careful perusal of all the above oral and documentary evidence produced by plaintiff, this court found that plaintiff failed to prove that defendant was having responsibility to look in to the entire management of Concorde site i.e., he is responsible to maintain records, receipts of materials and he is responsible for short falls and there is short fall of 7521 bags of cement, 98 MT steel and 628.32 M3 RMC totally amounting to Rs.1,04,27,074.01 and thereby defendant misappropriated the said amount and thus, he is liable to pay the said amount to plaintiff. Accordingly, issue No.1 is answered in negative.
ISSUE No.2
38. When plaintiff failed to prove issue No.1, it also failed to prove that defendant is liable to pay interest as claimed in the suit. Accordingly, issue No.2 is answered in negative.
ISSUE No.3
39. In view of findings on issue Nos.1 and 2, this court holds that plaintiff is not entitled for judgment and decree 33 O.S.No.7817/2008 as prayed for. Accordingly, issue No.3 is answered in negative.
ISSUE No.4
40. In view of findings on issue Nos.1 to 3, this court proceeds to pass the following:-
ORDER Suit is dismissed with costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 26th day of February, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - K.Poovaragavan P.W.2 - Sharanagouda S.Patil
b) Defendant's side :
D.W.1 - Krishna Kumar II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Authorization letter
Ex.P.2 Appointment order dtd:
16/10/2006
34 O.S.No.7817/2008
Ex.P.3 Statistical Report
Ex.P.4 Copy of letter dtd: 13/3/2008
Ex.P.5 Postal receipt
Ex.P.6 Postal acknowledgment
Ex.P.7 Defendant's letter
Ex.P.8 Postal receipt
Ex.P.9 to 105 97 Material issue slips
Ex.P.106 Certificate u/s 65B of Indian
Evidence Act
Ex.P.107 to 14 e-mails
Ex.P.120
Ex.P.121 Authorization letter
Ex.P.122 Resignation letter of
K.Pooraghavan
(b) Defendant's side : -
Ex.D.1 'C' Report
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-
35 O.S.No.7817/200826/2/2015 Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit is dismissed with costs.
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.36 O.S.No.7817/2008 37 O.S.No.7817/2008 38 O.S.No.7817/2008