Delhi District Court
Sh. Dinesh Gupta vs M/S National Small Industries ... on 13 July, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 1
TIS HAZARI COURTS, DELHI.
Civil Suit No.: 44/2009
Unique I. D. no. 02401C0076202009
Sh. Dinesh Gupta
Prop : M/s Rashtriya Advertising Agency,
38, Rani Jhansi Road,
New Delhi
....Plaintiff
Versus
M/s National Small Industries Corporation Ltd.
Through its Director,
NSIC Bhawan,
Okhla Industrial Area,
New Delhi110 020
.....Defendant
Date of institution of the suit: 21.02.2009
Reserved for judgment on: 04.06.2012
Date of pronouncement of judgment: 13.07.2012
Suit for Recovery of Rs.7,86,135.22
JUDGMENT:
1. The plaintiff has filed this suit for recovery of Rs.7,86,135.22 propounding his cause of action on the following facts:
(i) The plaintiff is the proprietor of M/s Rashtriya CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 1 of 18 2 Advertising Agency, a proprietorship firm and having its office at 38 Rani Jhansi Road, New Delhi110 055, and engaged in the business as an advertising agency working nationwide. The plaintiff is competent to institute the present suit/proceedings against the defendant for realization of the claimed amount
(ii). The defendant intended advertisement of their company in the different newspapers i.e. Amar Ujala, Times of India, Hindustan Times, Punjab Kesari, Jagran, Tribune, Hindu, Economic Times, Nav Bharat Times, Asian Age, etc., from Delhi, Nanital, Jalandhar, U.P., Chandigarh, Chennai, Agra, Kanpur, Allahabad, etc., in all editions of the different dates, therefore, the plaintiff had executed the advertisements of the defendant in the newspapers as per their instructions on their behalf since 2005 till 31.03.2008.
(iii) The orders of the defendant for the above said advertisements were duly executed and published on behalf of the defendant and thus the plaintiff had raised the bills upon the defendant from time to time and the statement of account was also supplied to the defendant from time to time and the same are also acknowledged by the defendant.
(iv) As on date the defendant is liabile to pay Rs.7,86,135.22 CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 2 of 18 3 to the plaintiff as per statement of account, which has already been sent to the defendant but since the last four months the defendant has miserably failed to pay the amount claimed despite repeated requests and demands as well as the personal visits by the staff of the plaintiff. The defendant has derived the benefit of use and rotation of the amount claimed in business and throughout deprived the plaintiff of the same and hence, the defendant is liable to pay interest @ 18% per annum w.e.f. from the date of bills till realization.
(v) The defendant had assured the plaintiff on so many dates to make the payment but failed in its commitments every time.
(vi) As per statement of account/bills, already sent to the defendant, the defendant is in liability to pay Rs.7,86,135.22 as on date. The defendant was also sent a notice dated 14.11.2008 u/s 80 CPC by the plaintiff but to no avail.
2. Written statement has been filed by defendant stating that present suit is devoid of any cause of action and as such the plaint is liable to be rejected under Order VII Rule 11 CPC. It is submitted that the plaintiff has failed to produce on record any document to show his entitlement to the amount claimed. As a matter of fact, whatever bills have been submitted to the defendant along with release CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 3 of 18 4 order and bills of newspaper along with newspaper clippings where the advertisement were published, the payment thereof has been released to the plaintiff. The averments of the plaint on merit, on which the plaintiff has founded its cause of action, have been denied in the above terms.
3. Replication has been filed denying the averments of the written statement and reiterating the averments of the plaint.
4. Vide minutes of proceedings dated 21.09.2011 following issues have been framed: Issue no. 1 Whether the defendant has made the payment to plaintiff as stated in preliminary objection no. 1 and para no. 3 of reply on merits of Written Statement? OPD Issue no. 2 To what amount the plaintiff is entitled from defendant? OPP Issue no. 3 Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP Issue no. 4 Relief(s)?
5. The evidence was opened by the defendant. The defendant examined Shri Manoj Lal, Dy. General Manager (CC) as DW1. The CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 4 of 18 5 witness has been cross examined by the plaintiff.
6. The plaintiff did not seek to examine any witness though it had filed a list of witness on record.
7. I have heard Shri A. K. Jain, ld counsel for the plaintiff and Shri Purshotam Singh, ld. counsel for the defendant.
8. During the course of addressing arguments, ld. counsel for the parties copiously referred to the pleadings, documents and the evidence on record.
9. Shri Jain has argued that the defendant had pleaded in the written statement that whatever bills have been submitted to it alongwith the release order/bills of newspaper/newspaper clippings of advertisements the payment visàvis the same has been released but has failed to substantiate the same by way of evidence. The witness DW1 has admitted that the plaintiff concern had been executing the work relating to advertisement in the newspaper from time to time for the defendant and that the defendant had released the payment for the bills of payment as and when received. The evidence on record clearly establishes that the defendant has failed to prove that it had made the payment of all the bills of plaintiff as claimed in the suit. The onus of proving the payment had been upon the defendant and thus by necessary implication there is admission of the case of the plaintiff CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 5 of 18 6 and thus the suit of the plaintiff is liable to be decreed.
10. Per contra, ld. counsel for the defendant has agreed that the plaintiff has not examined any witness and has failed to prove its case. The defendant has steeped into the witness box and has proved its accounts. The plaintiff's case is a case of no evidence and the suit is to be dismissed.
11. In rebuttal, ld. counsel for the plaintiff has refuted the arguments of defendant.
12. No other point has been argued or urged. No case law has been cited by either of the parties.
13. I have considered the rival submission, the material on record and the evidence as well. My issue wise findings are as under: Issue no. 1 Whether the defendant has made the payment to plaintiff as stated in preliminary objection no. 1 and para no. 3 of reply on merits of Written Statement?
14. In this case the evidence has been opened by the defendant in view of the preliminary objection no. 1 where the stand of the defendant has been that it had made the payment of whatever bills have been submitted to it.
15. To prove this issue the defendant has examined in evidence, DW1, Sh. Manoj Lal, Dy. General Manager (CC). The examination in chief is contained in affidavit Ex. DW1/A. The witness relied upon CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 6 of 18 7 document Ex. DW1/1. The deposition in examinationinchief is as per the averments in written statement.
16. While the witness was being examined, an objection has been taken by the plaintiff as to the identity and authority of the witness. The witness has produced his identity card and placed a copy of same on record. The objection of the plaintiff as regards the authority of witness to depose had been rejected by holding that when the witness has been produced by the counsel of defendant the authority has to be presumed and that the witness may be cross examined on this aspect also. The witness had accordingly been crossexamined by the ld. counsel for plaintiff.
17. The cross examination of the witness DW1 has been allowed on the presumed authority. I propose to deal with the objection to the authority of the witness as it is only after that the evidence of the witness can be considered or rejected.
18. DW1 stated in his cross examination that he has been deputed as Deputy General Manager (Corporate Communications) in the defendant company and working for the last 15 years. He stated that he has no authority letter in my favour to depose in the present case and that he has not filed authority letter in my favour to depose in the matter. DW1 further stated that he has been instructed by his senior CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 7 of 18 8 Shri A.K. Aggarwal, General Mananger (Law) verbally to depose in the case about a week back. DW1 denied the suggestion that he cannot depose in the matter as I was not an Authorised Representative in the absence of the authority letter.
19. DW1 has further stated in his cross examination that the defendant is a limited company; he has not filed incorporation certificate of the defendant company on record; he is not aware whether it is necessary to file incorporation certificate on record; he has not filed on record the extracts of meeting resolution passed by the Board of Directors; he is not aware whether there is any system to authorize the person to depose or contest the case by extracts of meeting passed by the Board of Directors and that he has never appeared in this case earlier except today. He further stated that he was aware with the facts of the case.
20. DW1 has further stated in his cross examination that the written statement was filed by the defendant in the present case. He admitted the suggestion as correct that affidavit filed along with WS was verified by him. On seeing the affidavit, DW1 stated that the affidavit filed on court file was not verified by him rather it was verified by one Ms. Anita Sharma, Manager Accounts. DW1 stated that he did not know whether any authority letter was given to Ms. Anita Sharma for CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 8 of 18 9 filing of the affidavit along with WS on record. DW1 denied the suggestion that he himself and Ms. Anita Sharma are is falsely contesting and falsely deposing the present case on behalf of the defendant.
21. The Evidence Act, 1872 does not define the term 'witness'. But a reference to section 118 leads to the following: "118. Who may testify--All persons shall be com petent to testify unless the Court considers that they are prevented from understanding the ques tions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any oth er cause of the same kind.
Explanation--A lunatic is not incompetent to testi fy, unless he is prevented by his lunacy from un derstanding the questions put to him and giving ra tional answers to them."
22. The above definition goes to show as to who is competent to testify. DW1 has stated in his cross examination that he is aware with the facts of the case. Thus the competence of witness cannot be ques tioned (of course, his evidence can certainly be appreciated). be How ever the objection of the plaintiff is regarding the authority of the wit ness to depose in the matter.
23. Giving evidence is a sacrosanct act. The evidence is given by a person who has the opportunity to see any event, happening, course of CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 9 of 18 10 business etc. It is a function which cannot be delegated, attorned or conferred upon any person. Thus the absence or grant of any letter of authority to any person is immaterial and no letter of authority can cloth a person with authority if he has no opportunity to witness a cer tain fact and conversely no absence of authorization can take away the right to a person to depose if he had the occasion to witness any fact.
24. The defendant is a body corporate and has to necessarily act through a human agency. Thus as far as the competency of the witness DW1 is concerned the same cannot be questioned. As far as the au thority is concerned the witness has stated that he has been orally so authorized. As the witness has been produced by the Counsel for the defendant, in my view the plaintiff has no right to raise any objection in view of the ostensible authority manifested from these circum stances. Till date the defendant has not disowned the witness. The wit ness has also produced his identity card. Thus, I reject the objection of the plaintiff as to the lack of authority of DW1. Hence his evidence can be appreciated and the parties are bound by the same.
25. DW1 has stated in his cross examination that the plaintiff company M/s Rashtriya Advertising Agency was executing the work relating to advertising in the newspaper from time to time on behalf of the defendant; the defendant released the payment of the plaintiff on CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 10 of 18 11 the basis of bills to bills as and when received. Thus with this evidence the nature of relationship between the parties is not in dispute. Even this is the admitted position in the pleadings.
26. DW1 denied the suggestion that the defendant is liable to pay Rs. 7,86,135.22 P to the plaintiff. DW1 further stated that as on date the defendant is not liable to pay any amount to the plaintiff; the defendant is not liable to pay any amount of interest to the plaintiff.
27. DW1 has stated in his cross examination that as per Ex. DW1/1 the defendant is not liable to pay any amount to the plaintiff. DW1/1 is a summary of the details of payment made by the defendant to plaintiff having various heads as Bill No.; Bill Date; Cheque No. & Date; Amt. Paid by NSIC; and Remarks. It is a summary prepared from other records and does not appear to be record of accounts like legder; journal; cash book; balance sheet or profit or loss account etc.
28. DW1 has further stated in his cross examination that the defendant had paid the amount of nine number of bills through cheque; rest of the bills are not supplied by the plaintiff to the defendant.
29. DW1 has denied the suggestion that that payment of 20 bills has not been paid and he added to state that the bills have not been supplied to the defendant by the plaintiff. DW1 also stated that he was CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 11 of 18 12 aware with the accounts of plaintiff generally but he was not deputed in the Accounts Section. He also stated that he was also not aware with the accounts and transactions of the other parties including those of the plaintiff, but volunteered to state that he was generally aware about the plaintiff's account.
30. The witness DW1 had been confronted with a document which for the purpose of identification had been marked as Ex. DW1/P1. Regarding Ex. DW1/P1, the witness admitted as correct that the defendant in that document had admitted that six bills were pending for payment, rather it is a part of document Ex. DW1/1. I have examined the document Ex. DW1/P1. It is a letter dated 08.09.2008 of the defendant which has been written pursuant to the letter dated 11.08.2008 of the plaintiff in which reference has been made to six bills of the plaintiff and it has been requested in the said letter that the certain details be sent for reconciling the records. Further the plaintiff has been advised to get in touch with the branch for payment for supply order placed on branch. Considering the letter as a whole and in a meaningful manner it cannot be treated as any admission of any liability on the part of the defendant. An admission must be unqualified, unequivocal and unambiguous. No such statement flows from the document Ex. DW1/P1.
CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 12 of 18 13
31. Thus from the evidence on record the defendant has been able to show on preponderance of probabilities that it has made the payment of the bills submitted to it, for which it was liable to make the payment. The finding on this issue is returned in faovur of the defendant.
Issue no. 2: To what amount the plaintiff is entitled from defendant?
32. The plaintiff, in its wisdom, has not stepped into the witness box.
33. The plaintiff in its plaint has relied upon a statement of account to fasten the liability of Rs. 7,86,135.22 against the defendant. There is no admission of the veracity of the entries in the statement of account by the defendant. The statement of account has neither been reproduced in the pleadings nor been made an annexure of the plaint. It has only been referred to and the total liability of Rs. 7,86,135.22 has been claimed against the defendant. Thus the pleadings of the plaintiff are entirely vague and uncertain.
34. Even otherwise the statement of accounts has to be proved like any other document. The plaintiff has set up its statement of account in a vague manner and it has been replied in an equally vague manner by the defendant. It was incumbent upon the plaintiff to plead the CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 13 of 18 14 various entries in his statement of account so that the defendant could have adequately responded to it. Once the defendant has stepped into the witness box, as it was directed by the Court to open the evidence in view of the issue no. 1, the onus shifted upon the plaintiff.
35. During the course of cross examination of DW1 the plaintiff had put various suggestions to the witness. Had either the defendant in the pleadings or it witness in the evidence had admitted the case of the plaintiff there was no need to make any suggestions to the DW1.
36. DW1 in his cross examination stated that it is wrong to suggest that statement of accounts, copy of the account ledger and entire copies of bills are supplied by the plaintiff to the defendant from time to time; it is wrong to suggest that copy of the advertisement and clippings were supplied to the defendant by the plaintiff from time to time; it is wrong to suggest that defendant is liable to pay any amount of advertisement and interest accrued thereon towards the plaintiff; it is wrong to suggest that we have not remitted the amount of bills to the plaintiff; and that it is wrong to suggest that document Ex. DW1/1 is a false document.
37. Thus the above suggests that the plaintiff, despite being conscious of the fact that there is no categorical admission of the facts constituting its cause of action by the defendant, elected not to lead CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 14 of 18 15 any evidence.
38. It is the duty of a person propounding certain facts to establish them by some credible evidence, if his case has not been admitted by the adversary. Section 101 of the Evidence Act, 1872 gives the 'litmus test' in this regard as whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Thus in case no evidence is led by either side it is the person who propounds or asserts a particular fact must fail. Thus the burden as well as the initial onus of proof of the issue no. 2 had been on the plaintiff as the plaintiff had desired a judgment in its favour that it was entitled to recover the claimed sum from the plaintiff.
39. Thus it was incumbent upon the plaintiff to prove that it received certain particular orders from the defendant for publication of advertisement; that it carried out those orders in the terms contained therein by placing orders with the newspapers concerned; that the advertisement were so published; that the plaintiff intimated the fact of publication with adequate proof and submitted the bill to the defendant and that the defendant did not make the payment of a particular bill(s) within a reasonable time and finally that the defendant was put to a notice on these aspect. This chain/bundle of CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 15 of 18 16 facts constitutes the cause of action of the plaintiff and in the absence of any admission of these factual aspects by the defendant the plaintiff is under an obligation to prove these facts by some credible evidence.
40. It is not necessary for a party to step into the witness box, if its case can be proved either through the mouth of its adversary (either in pleadings or in evidence) or by other witnesses. As discussed above the case of the plaintiff is not proved in either way.
41. As per the settled position of law the burden of proof is always constant. It never shifts. Per contra, onus keeps on shifting in the course of the trial. In fact, Burden of proof is the basic liability to prove a certain fact notwithstanding that there is no contest to the case. Only a conclusive presumption raised by the law can relieve a party of the burden of proof. However the onus is not constant and keeps on shifting in the course of trial proceedings. Onus is in fact only a right to begin or open the evidence. Once a party discharges its onus, the yoke shifts upon the adversary.
42. The entries in statement of accounts are not akin to gospel truth. A statement of account is only a record of transactions. It is to be proved like any other document. It is the settled law that even the proof a document does not amount to the veracity of its contents. Thus the entries of a statement of account, unless admitted by the CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 16 of 18 17 adversary, have to be proved by proving the genesis documents i.e. the vouchers, bills etc. Only then the wheel comes full circle and the facts crystallized. Ostensibly, this duty has not been discharged by the plaintiff.
43. Thus the finding on this issue is returned against the plaintiff. Issue no. 3 Whether the plaintiff is entitled to any interest, if so, at what rate and for what period?
44. In view of the finding on the issue no. 2 this issue has lost its substratum. It is disposed of accordingly.
Relief
45. In view of my findings on the issue nos. 1, 2 and 3 the suit of the plaintiff is liable to fail.
46. The plaintiff's suit for recovery of Rs. 7,86,135.22 and other reliefs is dismissed.
47. In the facts and circumstances of the case the parties are left to bear their own costs.
48. Decree sheet be drawn accordingly.
49. File be consigned to the Record Room.
Announced in the Open Court On this 13th day of July, 2012 (MAN MOHAN SHARMA) CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 17 of 18 18 ADJ (Central)1, Delhi CS. 44/2009 Dinesh Gupta vs. NSIC Ltd. Page 18 of 18