Karnataka High Court
A.V. Kamath S/O Late A. Vittappa Kamath vs The Commercial Corporation Of India ... on 28 October, 2006
Equivalent citations: 2007 (1) AIR KAR R 79, 2007 A I H C 478, (2007) 1 KANT LJ 616, (2007) 52 ALLINDCAS 968 (KAR)
Author: N.K. Patil
Bench: N.K. Patil
JUDGMENT N.K. Patil, J.
1. The instant Regular Second Appeal arises out of the judgment and decree dated 27th August 2001 on the file of the I Additional District Judge, Dakshina Kannada, Mangalore in R.A.No. 22/2000 dismissing the appeal and confirming the judgment and decree dated 4th July 2000 in O.S. No. 127/1994 on the file of the Principal Civil Judge, (Senior Division), Mangalore.
2. The instant appeal is filed by the plaintiff-appellant on the basis that, he is the seller of lottery tickets of various states in his shop run under the name and style 'M/s. Ganesh Lottery House'. The fourth defendant - fourth respondent herein - State of Goa sells lottery tickets under the name 'Jai Mathru Bhoomi' and first defendant - first respondent herein is the organizer of the lottery tickets 'Jai Mathru Boomi' of the fourth defendant. The case of the plaintiff - appellant is that he purchases lottery tickets of various states inclusive of 'Jai Mathru Bhoomi' tickets of fourth defendant organized by the first defendant from M/s. Lakshmi Venkatesh Agency of which, one Sri. Vaman Pai is the proprietor. The said Sri. Vaman Pai is a stockist of tickets of 'Jai Mathru Bhoomi' also. As per the rules and regulations mentioned in the lottery tickets and as found in the counterfoils of the tickets, the winners of the tickets are entitled for the amounts mentioned therein and that the sellers of lottery tickets are esntitled for bonus in respect of winning tickets. A sum of Rs. 250/- is the bonus towards the sale of tickets which have the prize of Rs. 5,000/- each and a sum of Rs. 50,000/- each as bonus towards sale of bumper ticket of Rs. 10,00,000/- and therefore, totally the plaintiff - appellant is entitled to bonus of Rs. 51,000/-. Accordingly, the plaintiff -appellant claimed totally a sum of Rs. 51,000/- being the bonus towards the five prize winning lottery tickets. On production of the counter foils seeking bonus from the stockist Sri. Vaman Pai, plaintiff - appellant had been told to approach the first defendant to get the bonus. A written request had been made by the plaintiff - appellant on 23rd January 1993 seeking bonus. As no response was received by the plaintiff, the second defendant - Bank requested the plaintiff to produce the counter foils to them so that they would collect the bonus from the first defendant through its branch at Manipal. Accordingly, plaintiff - appellant produced all the five counterfoils to the second defendant. In spite of several requests by the plaintiff - appellant, neither the bonus was collected by the defendant No. 1 nor the counter foils were returned to the plaintiff - appellant. Therefore, having no other alternative, plaintiff-appellant was constrained to issue a legal notice through local counsel, claiming that he is entitled for bonus in a sum of Rs. 51,000/-, failing which appropriate proceedings would be initiated for recovery of the same, in accordance with law.
3. Thereafter, since the plaintiff - appellant did not receive any reply, he was constrained to file a suit for recovery of money with interest. After registering the suit, summons were issued to the respondents and after receipt of summons by the defendants - respondents, first defendant - first respondent engaged the services of the counsel and filed his detailed written statement, contending that, the first respondent is organizing an Agency called M/s. Ganesh Lottery House, and Sri. Vaman Pai is one of its proprietor. He has specifically taken a stand in the written statement that, as per the requirements of the business, stockists have to report to first respondent on the day before the draw as to what are the serial numbers of the tickets that are remaining unsold. Accordingly, the stockist - Sri. Vaman Pai reported to the first respondent over phone at about 1p.m on 16th January 1993 that 13000 tickets in all series bearing Nos. 198001 to 200000 and 3000 tickets in all series bearing Nos. 166401 to 167000 had remained unsold. Soon after receiving the message over phone at about 1P.M on 16th January 1993, the first defendant had prepared a credit note No. 1369 on 16th January 1993 in the computer by giving credit of the unsold tickets. In the draw dated 17th January 1993 held at Panaji, Bumper prize was declared to ticket No. E166408. The first defendant has specifically averred that results were announced on 18th January 1993 in the newspaper. After publication of results, the stockist - Sri. Vaman Pai telephoned to first respondent stating that, ticket No. E166408 had already been sold and that, his employee had sold 250 tickets bearing Nos. 166401 to 166450 in all series to M/s. Ganesh Lottery House and that this information was not within his knowledge when he telephoned to the first defendant at about 1.00 P.M on 16th January 1993. Since the stockist was contending that he had sold these tickets, matter was got enquired with the stockist through its officials. Thereafter, It was found that there was no entry in the delivery challan book maintained by the stockist, pertaining to the sale of 250 tickets inclusive of five tickets in question. It was contended that, the book had been manipulated to make unlawful gain in collusion with the plaintiff and stockist had acted in breach of trust and hence, the suit filed by the plaintiff appellant may be dismissed and denied the other averments in toto.
4. On the basis of the pleadings of both parties and after hearing the learned Counsel appearing for the parties, the Trial Court framed necessary issues for consideration. They are as follows:
1. Whether the suit is barred by Rule of option of remedies by the plaintiff as contended in para. 3 of the written statement ?
2. Whether the plaintiff proves that lottery Tickets bearing No. A-166408, B-166408, C-166408, D-166408, E-166408 were sold earlier to the draw held on 17.1.1993 ?
3. Whether the 1st defendant proves that the stockist reported at 1p.m on 16.1.1993 that 3000 tickets bearing No. 66401 to 167000 in all series remained unsold?
4. Whether the 1st defendant proves that challan bearing No. 21487 has been manipulated and acted in breach of trust fraudulently ?
5. Whether the plaintiff proves that he is the purchaser of the tickets mentioned in para. 6 of the plaint?
6. Whether the plaintiff is entitled for the suit claim ? If so, from whom and what amount ?
7. Whether the suit is barred for nonjoinder of necessary parties ?
8. Whether the suit is bad for mis-joinder of parties ?
9. Whether the plaintiff proves the cause of action ?
10. Whether the suit is not maintainable as contended by first defendant in para. 8 of the written statement ?
11. Whether the plaintiff is entitled for the interest ? If so, at what rate ?
12. What decree or order ?
After analyzing the oral and documentary evidence, other relevant material available on file and after hearing both counsel, the Trial Court has recorded the finding by answering the issue Nos. 1, 2, 5, 6, 7, 8, 9, 10 and 11 in the negative and answering issue Nos. 3 and 4 in the affirmative. The Trial Court, by its final order dated 4th July 2000 dismissed the suit filed by the plaintiff - appellant. Assailing the correctness of the judgment and decree passed by the Trial Court, the plaintiff - appellant herein has filed the Regular Appeal No. 22/2000 on the file of the I Additional District Judge, Dakshina Kannada, Mangalore.
5. The Lower Appellate Court, after considering the records available on file, after going through the judgment and decree passed by the Trial Court, and after hearing the learned Counsel appearing for both the parties, has raised necessary points for its consideration. They are as hereunder:
(1) Whether it is permissible to raise a plea in the first appellate court that the counsel for 2nd and 3rd defendants could not have represented the cause of the first defendant, without raising such a plea or objections to that effect before the Trial Court ?
(2) Whether the suit is bad for agreement of wager under Section 30 of the Contract Act ?
(3) Whether there was any genuine sale of lottery tickets in question in favour of the plaintiff by M/s. Lakshmi Venkatesh Agency, on 16.1.1993?
(4) Whether interference of this Court is called for in any manner ?
(5) To what decree and reliefs the parties are entitled for ?
The Lower Appellate Court, after re-appreciation of the oral and documentary evidence and other relevant material available on file, has answered point Nos. 1, 2, 3 and 4 in the negative. The Lower Appellate Court, after discussing the reliance placed by the learned Counsel appearing for the parties in detail and by assigning cogent reasons, has recorded a finding, holding that, the plaintiff - appellant has failed to make out a case and therefore, interference in the judgment and decree passed by the Trial Court is uncalled for. Being aggrieved by the impugned judgment and decree passed by both the Courts below, the plaintiff - appellant herein felt necessitated to present the instant Regular Second Appeal.
6. The principal submission canvassed be the learned Counsel for plaintiff - appellant is that, both the Courts below have failed to take notice of the admitted fact that, PW 2 is an agent of the first respondent - firm and merely because their agent has not kept the books of account in proper form and there are certain blanks in Ex.D1 and Ex. D-1A and as such, if the agent has not properly maintained the books of accounts, the right of the third parties cannot be defeated and that, the right of the principal is against his agent after making the payment to the third parties. Further, both the Courts below have committed an error in holding that there was no genuine sale of lottery ticket in question in favour of the plaintiff - appellant by M/s. Lashmi Venkatesh Agency on 16th January 1993 and hence, the decision of the Courts below by completely disregarding the oral and documentary evidence on record are wholly illegal and the same require to be set side. He further submitted that, both the Courts below have committed grave error resulting in serious miscarriage of justice and that, he is only an agent and it is only between the stockists and the respondents and non examination of the boy who was in-charge of writing Ex.P13 cannot take away the legitimate claim of the plaintiff - appellant. Therefore, he vehemently submitted that, this aspect of the matter has been completely overlooked by both the Courts below and therefore, the decree passed by both the Courts below are liable to be set aside and the prayer sought for by plaintiff - appellant in the suit may be granted.
7. Per contra, learned Counsel appearing for respondents substantiated the impugned judgment and decree passed by both the Courts below. Learned Counsel for respondents has taken me through the relevant reasoning recorded by both the Courts below and pointed out that, the Courts below, after appreciation of oral and documentary evidence, other relevant material available on file and after critical evaluation of the oral and documentary evidence, has recorded a concurrent finding of fact against the plaintiff - appellant. Hence, in view of concurrent finding of fact recorded by both the Courts below, interference by this Court in the same is not justifiable nor the plaintiff - appellant has made out any good grounds or raised substantial question of law to set aside the well considered judgment and decree passed by both the Courts below. Therefore, he submitted that, the instant regular second appeal filed by the plaintiff - appellant may be dismissed as devoid of merits.
8. After hearing the learned Counsel appearing for plaintiff - appellant and the learned Counsel appearing for respondents for considerable length of time, after thorough evaluation of the relevant material available on file, after careful perusal of the judgment and decree passed by both the Courts below and after considering the relevant contention urged by the learned Counsel appearing for the parties, the only question that arise for consideration in the instant Regular Second Appeal is as to:
Whether the impugned judgment and decree passed by both the Courts below are in accordance with law ?
After careful perusal of the impugned judgment and decree passed by both the Courts below, it is manifest on the face of the judgment and decree passed by both the Courts below that, there is no error or illegality as such committed by both the Courts below. The Trial Court, after discussing the oral evidence along with the documentary evidence of both parties at paragraphs 12 and 14, has recorded specific finding at paragraph 16 holding that, in spite of giving sufficient opportunity to the plaintiff - appellant, he has failed to substantiate his claim regarding entitlement of bonus of Rs. 51,000/-. It is the evidence given by PW 1 that, after purchasing the lottery tickets from the agents, the details of the same will be noted in a book maintained in their office. But, no such book is produced by PW2 in the present case. Non production of such a register and absence of any explanation for the counter foil in Ex. D1 remaining blank will only probablise the case of the defendants - respondents that, plaintiff - appellant has not actually purchased the prize winning tickets and Ex. P13 is only a concocted document. The beneficiaries are plaintiff - appellant and PW 2 and therefore, the contentions of first defendant that the challan bearing No. 21487 i.e. Ex.P13 has been manipulated by the plaintiff and PW 2, to have the benefit of the bonus, is quite probable. The plaintiff - appellant, by the evidence on record has not established with cogent evidence that he is the purchaser of the tickets mentioned at paragraph 6 of the plaint. Contrary to this, the first defendant - first respondent has established that the stockist reported at 1. P.M on 16th January 1993 that 3000 tickets bearing No. 166401 to 167000 in all series remained unsold. Therefore, the plaintiff - appellant has failed to prove that, the lottery tickets bearing Nos. A-166408, B-166408, C-166408, D-166408 and E-166408 were sold earlier to the draw held on 17th January 1993. Therefore, the Trial Court answered the issue Nos. 1, 2, 5 to 11 in the negative and issue Nos. 3 and 4 in the affirmative. Thereafter, after appreciation of oral and documentary evidence, the Trial Court has dismissed the suit by assigning cogent reasons. Assailing the correctness of the said judgment and decree passed by the Trial Court, the plaintiff - appellant herein has filed an appeal before the Lower Appellate Court. The Lower Appellate Court, after affording sufficient opportunity to both parties, after considering the judgment and decree passed by the Trial Court and other relevant material available on file and after re-appreciation of oral and documentary evidence, by assigning cogent reasons at paragraphs 22 and 23 of its judgment has recorded a finding holding that, in spite of giving sufficient opportunity to the appellant herein, he has failed to substantiate his case. Further, it is specifically referred in para. 24 of the judgment that, the plaintiff - appellant has examined himself as PW1 and stated that, he would make an entry in a book soon after purchase of the lottery tickets from the stockist. But, the, the said book is not forthcoming. The Lower Appellate Court has observed that, if the said book had really been maintained in the ordinary course as asserted by the plaintiff - appellant, he would definitely have produced the same and hence, an implied adverse inference under Section 114(g) of the Evidence Act had been drawn by the Trial Court holding that, either no such documents are maintained or if maintained and produced before the Court, will be adverse to them and as such they are withheld. Further, the Lower Appellate Court has specifically observed that, if the plaintiff - appellant had ever maintained a day book and a bill book with the assistance of his son, which was subject to audit, the same would have indicated the stand of the plaintiff - appellant. The burden of pleading was on the plaintiff and it would remain unchanged, onus of proof would go on shifting to the other side when the initial burden cast upon the plaintiff is effectively discharged. The evidence of PWs 1 and 2 did not inspire confidence in the mind of the Court to come to the conclusion that, they had discharged the initial burden cast upon them so as to ask the other side to rebut the same. Therefore, the Lower Appellate Court has specifically pointed out and recorded that, the Trial Court was justified in applying the preponderance of probabilities in a civil case in view of the rival contention of the parties and in the light of the non production of some material documents by the plaintiff. The averment made in the written statement of the first defendant that the bumper prize ticket which remained unsold has to be surrendered to the Government of Goa in order to get the refund is not at all disputed. The said reasoning given by the Lower Appellate Court, is after appreciation of oral and documentary evidence and has rightly considered the said aspect and recorded the finding by opining that, interference in the well considered judgment and decree passed by the Trial Court is not justifiable. The said reasoning given by the Lower Appellate Court is just and reasonable. Therefore, I do not find any justification or good grounds to interfere in the well considered judgment and decree passed by both the Courts below. Both the Courts below have, after critical evaluation of the oral and documentary evidence and the relevant material available on file, have recorded concurrent finding of fact against the plaintiff - appellant. The plaintiff - appellant has failed to substantiate his case by producing any documentary evidence or by raising any substantial question of law involved in the instant case nor any ground for interference under Section 100 of Code of Civil Procedure.
9. Having regard to the facts and circumstances of the case, as stated above, the Regular Second Appeal filed by the plaintiff - appellant is dismissed as devoid of merits.