Delhi District Court
M/S Ram Kumar Shree Kishan vs M/S Modern Decorators on 29 February, 2008
IN THE COURT OF SH. M. P. SINGH, CIVIL JUDGE,
KARKARDOOMA COURTS, DELHI
Suit No. : 150/06
M/s Ram Kumar Shree Kishan
6/7, Deshbandhu Gupta Road,
Paharganj, Delhi ........PLAINTIFF
Versus
1. M/s Modern Decorators
E-364, Nirman Vihar, New Delhi
2. Sh. I. A. Siddique
Proprietor/Partner M/s Modern Decorators
E-364, Nirman Vihar, New Delhi .......DEFENDANTS
DATE OF INSTITUTION OF THE SUIT: 06/11/1987
DATE WHEN JUDGMENT WAS RESERVED: 31/01/2008
DATE OF DECISION: 29/02/2008
JUDGMENT
1) This instant case is a classical example of proverbial "backlog and delay in litigation". It is after a time span of more than two decades that this suit is finally seeing the light of its day.
2) This is a suit for recovery of Rs. 68,073.36/- alongwith pendente lite and future interest @ 18% per annum. The facts as per the version of the plaintiff are as follows: Plaintiff is a registered partnership firm. This suit has been filed by Sh. Shree Kishan on behalf of the firm, being its registered partner. The defendants have been dealing with the plaintiff firm since 17/09/1983 purchasing timber goods from time to time on current account. It is stated that the statement of account running from 17/09/1983 to 23/01/1987 shows the purchases made by the defendants through bills. It also shows the payments made by the defendants against the bills that have been raised by the plaintiff from time to time. It is stated that after adjustment of the part payment made by the defendants towards the price of the purchased goods, a sum of Rs. 47,430.56/- was found due against the defendants as on 23/01/1987. It is stated that this outstanding balance of Rs. 47,430.56/- is reflected in the amended statement of account. It is further submitted that the plaintiff had duly issued the bills for the goods purchased by the defendants, which bills were duly signed by the defendants. As per the trade and usage of the market, the defendants are liable to pay interest @ 18 % per annum on the outstanding amount. It is further averred that the plaintiff had approached the defendants with a request to clear the outstanding amount, but the defendants avoided paying up the same on one pretext or the other. Plaintiff was forced to issue a legal notice through registered AD notice dated 25/07/1985 through their Counsel but the same was of no avail. Hence this suit.
3) Both the defendants contested this suit by filing their written statement. In the preliminary objections of the amended written statement it is stated that the suit of the plaintiff is time barred; that the plaint has not been properly verified; that the plaintiff is not a registered partnership firm; that the plaintiff has not come before the court with clean hands. It is further stated in the preliminary objections that as per the trade and custom of the market, they were entitled for discount on the transactions, however, it has come to their knowledge that the plaintiff has not given any discount to them and the plaintiff has charged an excess amount of Rs. 36,758.95/- which amount is liable to be refunded by the plaintiff. It is therefore alleged that the plaintiff has played a fraud upon them by not giving them any discount. It is further stated in the preliminary objections that the goods supplied to them were not upto the mark and specification. It is stated that as per the mutual agreement, if any good was found defective, the plaintiff was not entitled to any amount in respect of defective goods. The defendants have given a long list of bills in their written statement which are alleged to be qua the defective goods. It is stated that they wrote letters to the plaintiff in this regard which were duly acknowledged by the plaintiff, and they were duly given the debit notes. It is stated that these debit notes were accepted by the plaintiff to which no objection has ever been raised by the plaintiff. It is stated that the plaintiff has received an excess payment of Rs. 2,111.52/-. When the defendant asked for this amount the plaintiff refused to refund the same. It is further stated that no amount was due towards the plaintiff in the year 1984 as the transactions between the parties were already settled. It is stated that due to the defective goods supplied by the plaintiff they had suffered huge losses. It is stated that there was no agreement between the parties regarding payment of the amount.
4) In the reply on merits, it has been admitted that there were business transactions between them, however, the defendants have disputed the correctness of the statement of account filed by the plaintiff. It is alleged that the plaintiff has made short supply and the same material has been charged twice. It is submitted that no amount whatsoever has been due towards the plaintiff. The defendants have denied signing any of the bills raised by the plaintiff. It has been denied that as per the trade and custom of the market, interest chargeable on the outstanding amount is 18% per annum. The defendants have denied that the plaintiff ever approached them for clearing the outstanding amount. The defendants replied to the legal notice sent by the plaintiff's counsel vide letter dated 22/09/1987. The other averments as contained in the plaint have been totally denied.
5) The plaintiff has refuted the counter allegation as contained in the written statement and has reaffirmed its averment as contained in the plaint by filing replication dated 06/12/1999 to the amended written statement of the defendants.
6) On the basis of pleading of the parties the following issues were framed on 09/09/1992:
1) Whether the suit is without any cause of action? (OPD)
2) Whether the suit is time barred?(OPD)
3) Whether the plaintiff is a registered partnership firm and whether the suit has been filed by a competent person?(OPP)
4) Whether the goods were purchased on a running account by the defendants?(OPP)
5) Whether the goods supplied were not as per the order and specification? (OPD)
6) Whether the goods were supplied short?(OPD)
7) Whether the bills were raised twice? (OPD)
8) Whether the plaintiff is entitled to the suit amount? (OPP)
9) Whether the plaintiff is entitled to the interest at the rate of 18% p.a. on the balance amount mentioned in the plaint? (OPP)
10)Relief
7) On behalf of the plaintiff only one witness, Sh. Vijay Shanker Somani was got examined. On behalf of the defendants, two witnesses were got examined, namely, Sh. I. A. Siddiqui and Sh. Pradeep Upadhyay.
8) My findings on these issues are as follows:-
9) Issue No 3:- This issue is being taken first. The onus of proving this issue was upon the plaintiff. It is the claim of the plaintiff that it is a registered partnership firm. In support of its averments, the plaintiff has placed on record carbon copy of 'Form A' issued from the office of the Registrar of Firms which has been exhibited as Ex. PW1/1. This carbon copy is the only document that has been placed on record by the plaintiff in support of its averment that it is a registered partnership firm. This fact has been very much admitted by PW1 in his cross examination dated 11/04/2001. PW1 has stated that this carbon copy of 'Form A' is the only document to show that the plaintiff firm is registered and that there is no other form to show its registration. It has been stated by PW1 in his cross examination dated 14/02/2002 that he has obtained a certified copy from the office of Registrar of Firms but, surprisingly enough that certified copy has not been filed; instead, a carbon copy has been placed on record. No explanation has come forth from the plaintiff as to why when the certified copy was duly obtained, the same was not placed on record and duly proved. If the certified copy had indeed been obtained the plaintiff ought to have brought the same on record.
10)Perusal of Ex. PW1/1 (carbon copy of 'Form A') would show that the same is not an original copy but mere carbon copy. As per section 61 of the Indian Evidence Act, the contents of a document are to be proved either by primary or by secondary evidence. Section 62 of the Indian Evidence Act defines primary evidence. Primary evidence has been defined as "the document itself produced for the inspection of the court". Therefore, there cannot be any manner of doubt in the fact that the carbon copy is not a primary evidence in terms of section 62 of the Indian Evidence Act. Hence, the carbon copy of 'Form A' which has been exhibited by the plaintiff as Ex. PW1/1 is not a primary evidence.
And the same cannot be used as primary evidence to prove the contents of the document.
11)The other mode of proving the contents of a document is by way of adducing secondary evidence. Section 63 of the Indian Evidence Act defines secondary evidence. This carbon copy is not covered within the ambit of provision of section 63 of the Indian Evidence Act as the plaintiff, nowhere in its entire evidence, has shown that the aforesaid carbon copy of 'Form A' was made from or compared with the original. The plaintiff has merely placed the carbon copy of 'Form A' on record without leading any evidence as to how the same was prepared or whether or not the same has been duly compared with the original in terms of provision of section 63 of the Indian Evidence Act. Further section 64 of the Indian Evidence Act lays down the mandatory rule that the documents must be proved by primary evidence except in cases mentioned in Section 65 of the Indian Evidence Act. Section 65 of the Indian Evidence Act lays down seven circumstances under which secondary evidence can be adduced. The present case is admittedly not covered by Clauses (a), (b), (d), (g) of Section 65 of the Indian Evidence Act. As per Clause (f) of section 65 certified copies of those documents which is permissible by any law can be adduced in evidence as secondary evidence. In this regard Section 68 (2) of the Partnership Act is important. Section 68 (2) of the Partnership Act requires that certified copy of an entry relating to a firm from the Registrar of Firms may be produced in evidence in proof of the fact of registration of such firm. That is, according to combined reading of section 65 (f) of the Evidence Act and section 68 (2) of the Partnership Act, the certified copy of an entry may be adduced in evidence as secondary evidence to prove the factum of registration. In the case at hand, the plaintiff has not produced the certified copy as per the requirement of section 68 (2) of the Partnership Act, 1932 read with section 65 (f) of Evidence Act. This is in spite of the fact that the plaintiff had the certified copy of the certificate of registration of the firm. In his cross-examination dated 14.02.2002, it was stated by PW1 that he had the certified copy. Therefore, the carbon copy of 'Form A' which has been exhibited is not saved by Clause (f) of section 65 of Evidence Act. Even if for the sake of the arguments it be assumed that clause (f) of section 65 of the Evidence Act is applicable, yet the crucial aspect of clause (f) of section 65 of the Evidence Act is that only and only certified copy of the document is admissible as secondary evidence. Carbon copies are not admissible documents under section 65 (f) of the Evidence Act. Therefore, application of clause (f) of section 65 of the Evidence Act is totally out of the question. Clause (c) of section 65 of the Evidence Act would come into play only when the original document has been lost or destroyed or the party for any other reason not arising from his own default or neglect cannot produce the same. It is not the case of the plaintiff that the original has been lost or destroyed or for any other reason the same cannot be produced. In the entire evidence and pleadings the plaintiff has nowhere taken such a plea. Therefore, Section 65 (c) of Evidence Act would also not come into picture. Consideration of all the aforesaid clauses of section 65 of the Evidence Act, now leaves us only with clause (e) of this section. Under section 65 (e) of the Evidence Act, where the original is a public document within the meaning of section 74 (of Evidence Act), certified copies of the public document is admissible as secondary evidence. In other words, under section 65 (e) only and only certified copies of the document and no other kind of secondary evidence is admissible. Thus, even section 65
(e) of Evidence Act has no application to the carbon copy of 'Form A' filed by the plaintiff that has been exhibited as Ex. PW1/1. Therefore, this carbon copy is not at all an admissible document as a secondary evidence U/sec 63 read with section 65 of the Evidence Act.
12)Secondary Evidence of documents is permissible only under the circumstances as enumerated in Section 65 of Evidence Act. That is, a party can lead secondary evidence only if and if it satisfies the court that the case is covered under any of the seven clauses of section 65 of the Evidence Act. In the present case, the plaintiff has nowhere shown that it is entitled to lead secondary evidence under any of the clauses of section 65 of the Evidence Act. Therefore, even if it be accepted for the sake of arguments that the carbon copy is a secondary evidence as defined under section 63 of Evidence Act; yet the same cannot be admissible as a secondary evidence because of the bar of section 65 of the Evidence Act. In other words, in spite of the fact that certain evidence is covered within the ambit of definition of secondary evidence as defined in section 63 of Evidence Act; yet the the party adducing that secondary evidence must satisfy that its case is covered within the sweep of any of the seven clauses of section 65 of Evidence Act and it is entitled to lead that secondary evidence. To put it differently, party adducing secondary evidence must satisfy the requirements of section 63 as well as section 65 of the Evidence Act. In paragraph 10 (supra), I have already discussed as to how Ex. PW1/1 (carbon copy of 'Form A') cannot be admissible as primary evidence. I therefore hold that Ex. PW1/1 which is a carbon copy of 'Form A' issued from the office of Registrar of Firms has not been duly proved either as primary evidence or as secondary evidence.
13)In this regard there is oral evidence from the side of the plaintiff to the effect that the plaintiff firm is a registered one. However, in my view this oral evidence cannot be admissible in view of the rule of exclusion of oral evidence by documentary evidence as laid down in section 91 of the Evidence Act. As per section 91 of the Evidence Act when any matter is required by law to be in writing, no evidence shall be given in proof of the terms of such matter except the documents itself or the secondary evidence. Section 91 is also referred to as the rule of the best evidence. The rule of the best evidence requires that the evidence which is most suitable ought to be adduced. Therefore, all the oral evidences in this regard are inadmissible. In the judgment reported as Roop Kumar vs. Mohan Thedani, (2003) 6 SCC 595 it has been observed:
"Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by the writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as "best evidence rule". It is in reality declaring a doctrine of the substantive law, namely, in the case of written contract, that all proceedings and contemporaneous oral expressions are merged in the writing or displayed by it. It has been stated that the rule is in no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative value mental process - the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of proving it is merely that the dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all the rule of prohibition does not become a rule of evidence merely because it comes into play when the counsel offers to "prove" it or "give evidence" of it; otherwise, any rule of law whatever might be reduced to a rule of evidence. It would become the legitimate progeny of law of evidence"
14)In the case at hand, as per the mandate of section 91 of Evidence Act, it was the original document itself (Primary Evidence) showing the registration of the firm or the secondary evidence thereof which was required to be adduced in evidence. A firm is required to be registered not orally but in writing. Since the law requires that the firms be registered in writing, therefore, in terms of provision of section 91 of the Evidence Act only the document itself or the secondary evidence thereof can be admissible; oral evidence in that regard cannot be admissible under any circumstances whatsoever.
15)The plaintiff has not cared to have any witness from the office of Registrar of Firms examined in support of its averment that it is a registered one. An official from the office of the Registrar of Firms would have been a material witness and could have testified as to the factum of registration or otherwise of the plaintiff firm.
16)During the course of arguments, the Ld. Counsel for the plaintiff asserted that since the carbon copy of Form 'A' (Ex. PW1/1) has been exhibited, the same tantamounts to proof of the same. I am afraid, this arguments stands on a slippery ground. It is a well settled law that document must be proved in terms of the provisions of the Indian Evidence Act pertaining to documentary evidence and mere exhibiting the same would not tantamount to proof of it. In the case of Sudhir Engg. Co. vs. Nitco Roadways, 1995 RLR 286, it was held that when a document is produced in evidence and is marked as an exhibit then it is only for identifying the documents and is not its proof. Proof of the contents must be established by independent evidence. In the case of Sait Taraji vs. Yelamarti Satyam, AIR 1971 SC 1865 it has been held that the marking of an exhibit does not dispense with the proof of documents. Therefore, what is crystal clear beyond any shadow of doubt that the merely putting exhibits on a document is no proof of the document. The document must be proved in terms of rules of evidence.
17)Ex. PW1/1 (carbon copy of Form A) is not duly proved. Oral evidence to prove the factum of registration of the plaintiff firm cannot also be admissible because of the bar of section 91 of the Evidence Act. Further, no witness from the office of the Registrar of Firms has been got examined. Therefore, in my view, the plaintiff has been unable to discharge its onus of proving that it is a duly registered firm. Section 69 (2) of the Partnership Act, lays down the effect of a suit filed by a unregistered partnership firm. As per section 69 (2) of the Act, an unregistered partnership cannot institute a suit to enforce right arising from contract against a third party. Since the plaintiff has not been able to discharge its onus of proving that it is registered partnership firm, bar of section 69 (2) of the Partnership Act, 1932 squarely come into play. Therefore, this suit of the plaintiff is hit by the provision of section 69 (2) of the Partnership Act, 1932.
18)The second limb of this issue was whether the suit has been filed by a competent person. The suit has been filed by one Sh. Shree Kishan, on the averment in the plaint that he is one of the registered partners of the plaintiff firm. It has already been held in the preceding paragraph that the plaintiff has been unable to discharge its onus of proving that it is a registered firm. Since it has not been proved that the plaintiff is a registered firm, therefore, it is also not proved that Sh. Shree Kishan is one of its partners. Since the plaintiff has been unable to prove that it is a registered firm, therefore, there cannot arise any question of the suit having been filed by a competent person. It is not proved that Sh. Shree Kishan is one of its partners, consequently I hold that this suit has not been filed by a competent person. The second limb of this issue is also not proved by the plaintiff.
19)To conclude the discussion on this issue, the plaintiff has been unable to discharge its onus of proving this issue. Hence this issue is decided against the plaintiff and in favour of the defendants.
20)Therefore, the bar of section 69 (2) of the Partnership Act, 1932 would squarely come into play. This present suit can meet its own fate on the decision of this issue itself. However, I propose to take up the other issues as well and decide them on merits.
21)Issue No. 5 The onus to prove this issue was upon the defendants. It was for the defendants to prove that the goods were not as per order and specifications. No evidence has been led by the defendants on this issue to prove that the goods were not supplied as per orders and specifications. Counsel for the defendants too did not submit anything on this issue during the course of arguments. Therefore, the defendants have not been able to prove this issue. Therefore, this issue is decided against the defendants and in favour of the plaintiff.
22) Issue No. 7 The onus to prove this issue was upon the defendants. It was for the defendants to prove that the bills were raised twice. No evidence has been led by the defendants on this issue so as to prove that the bills were raised twice. Counsel for the defendants too did not submit anything on this issue during the course of arguments. Therefore, the defendants have not been able to prove this issue. Therefore, this issue is decided against the defendants and in favour of the plaintiff.
23) Issue No. 6 The onus to prove this issue was upon the defendants. It was for the defendants to prove that the goods were supplied short. In this regard the defendants has produced on record the debit notes. These debit notes are roughly 23 in number. The defendants have placed on record a letter addressed to the plaintiff dated 31.03.1986, exhibited as Ex DW1/4, whereby the defendant purported to send to the plaintiff, detailed statement of debit notes as per their (defendant's) books of accounts. Along with this letter Ex. DW1/4 the debit notes are enclosed with as enclosures. When the purchaser of goods issues debit notes, it is essential that the debit notes are duly issued/dispatched to the supplier of goods, so that the supplier of the goods can also make the corresponding entries in his books of accounts. There is nothing on record which suggests that the debit notes were duly issued to the plaintiff-the supplier of the goods. DW2 in his cross-examination dated 18.03.2005 has stated that it was correct that there is no document on record to prove the dispatch of the document Ex. DW1/4 and also it did not bear the signature of any person on behalf of the plaintiff. In his cross-examination dated 25.07.2005 DW2 has further deposed "it is correct that we do not have any confirmation or signatures of anyone else from the plaintiff firm regarding acceptance of or confirmation about the debit debit balance of Rs. 39,201.13/- as mentioned by me on page no. 3 of my affidavit. Vol. But the defendant firm had already sent the debit notes to the plaintiff firm about the balance of Rs. 39,201.13/-. The same was sent by ordinary post and I do not have any proof of dispatch of the same." DW1 in his cross-examination dated 13.04.2004 has also admitted that there is nothing on record to prove that the debit notes were sent/dispatched to the plaintiff. Thus what is crystal clear beyond any shadow of doubt that the defendants have failed to prove that the debit notes were duly issued to the plaintiff. Therefore, when the debit notes were not duly issued and dispatched to the plaintiff; the same cannot be said to a valid debit note and the defendants cannot take any benefit of such debit notes.
24)Secondly, there is some discrepancy in the debit notes placed on record by the defendants. The letter dated Ex. DW1/4 is dated 31.03.1986; whereas the debit note Ex. PW1/D1 is dated 17.06.1987. How can the purchaser of goods send a debit note which is dated 17.06.1987 along with letter dated 31.03.1986? DW1 in his cross- examination dated 18.10.2003 has admitted that he did not raise any debit notes after March 1986. When no debit notes were raised after March 1986 (as per the statement of DW1 himself), it is really perplexing as to how can there be a debit note dated 17.06.1987?
25)Secondly, the time when the debit notes were issued, the accountant of the defendant firm is stated to be one Mr. Jha. Naturally enough, in natural course of events, one would expect the debit notes to be in the handwriting of the same accountant, Mr. Jha. But some of the debit notes appear to be in different handwriting. DW2 in his cross- examination has admitted that the Ex. DW1/D1 to Ex. DW1/5E were in different hand writing and were not in handwriting of Mr. Jha, the accountant. Therefore, the difference in the handwriting on the debit notes leaves a doubt in one's mind.
26)Thirdly, the factory address of defendant on Ex. DW1/4 which is dated 31.03.1986 is sated to be at Patparganj, Delhi. However, DW1 in his cross-examination has admitted that he did not have any factory during the time he was dealing with the plaintiff. He further deposed that his factory was constructed in the year 1992. Thus as per the own statement of DW1 in his cross-examination there was no factory in the year 1986; and yet Ex. DW1/4 which is dated 31.03.1986, bears a factory address. Thus certainly creates doubt as regards the veracity and the genuineness of the debit notes of the defendant.
27)In view of the foregoing discussion on this issue, I hold that the defendants have not been able to prove the debit notes; whose genuineness are in any case doubtful. The defendants have also not proved that the debit notes were duly dispatched to the plaintiff. The defendants have therefore not been able to prove this issue. This issue is therefore decided in favour of the plaintiff and against the defendant.
28) Issue No. 4 The onus to prove this issue was upon the plaintiff. It was for the plaintiff to prove that the goods were purchased by the defendants on a running account. In this regard, it would be appropriate to refer to the cross-examination of DW2. It has been stated by DW2 in his cross-examination dated 13.01.2005 "it is also correct that the payment was not being made bill wise but on a running account in lumpsum in round figure". It has further been stated by him in the cross-examination dated 25.07.2005 at the very beginning "it is also correct that it was a running account". Therefore, what is clear beyond any shadow of doubt that the account between the parties was a running account. As per Section 56 of the Evidence Act a fact which is admitted need not be proved. An admission of fact is a proof by itself.
29)Therefore, the plaintiff has been able to discharge it onus of proving that the goods were purchased on a running account by the defendants. Therefore, this issue is decided in favour of the plaintiff and against the defendants.
30) Issue No. 2 The onus to prove this issue was conferred upon the defendants. It was for the defendants to prove that the suit was time barred. In this regard, it would be important to refer to the statement of DW1 in his cross-examination dated 05.06.2004. It is as follows: "I used to make payment to the plaintiff through cheque only and not in cash. I do not remember whether I was paying the amount bill wise or in lump sum amount figure. My accountant can tell the same as the matter is very old. I have not paid any amount after the last payment of Rs. 5,000/- as shown in Ex. DW1/1. The date of the cheque is 22/01/1987 as shown at point X in Ex. DW1/1." A perusal of Ex. DW1/1 would show that the last payment of Rs. 5000/- was made on 22.01.1987 by of cheque no. 126835. DW2 in his cross-examination dated 13.01.2005 has also admitted that another cheque no. 126835 amounting Rs. 5000/- was issued by the defendant.
31)Thus from the aforesaid statements of DW1 as well as DW2 in their cross-examination, it is crystal clear that the last payment has been made by the defendant to the plaintiff vide cheque no. 126835 on 22/01/1987. The suit has been filed on 06/11/1987. Therefore, it is clearly well within time. As per Section 56 of the Evidence Act a fact which is admitted need not be proved. An admission of fact is a proof by itself.
32)Therefore, the defendants have not been able to prove that the suit is time barred, rather they have admitted that the suit is within time. Therefore, this issue is decided against the defendant and in favour of the plaintiff.
33) Issues No. 8 & 9 The onus to prove these issues were conferred upon the plaintiff. These issues were as to whether the plaintiff is entitled to suit amount and interest @ 18% per annum thereon. The suit has been filed on the basis of statement of accounts. It is claimed by the plaintiff that as per its statement of account, outstanding amount of Rs. 47,430.56/- was found due. The plaintiff also claims that it is entitled to interest @ 18% per annum on the aforesaid outstanding amount found due in the statement of accounts. It is claimed that the rate of interest of 18% per annum is the rate which is prevailing as per the trade, custom and usage in the market.
34)The claim of the plaintiff is founded upon the outstanding amount as reflected in the statement of accounts. In this regard the plaintiff has placed on record four loose sheets showing the statement of account of M/s Modern Decorators which is Ex. PW1/110. This statement of account has been signed by one Sh. Shree Kishan. The plaintiff has not produced the original books of the statement of account. The original books of the statement of account was never presented at the time of filing of the suit. In this regard it is pertinent to mention that Order VII Rule 17 of CPC casts an obligation upon the plaintiff to produce the books of accounts at the time of filing of the plaint. It further requires that upon the presentation of the original books of the statement of accounts, the Court shall forthwith mark the document for identification and shall examine and compare the copy with the original, and if it is found to be correct, the court shall certify it to be so and return the original books of accounts to the plaintiff. The plaintiff has not filed the books of accounts. In his cross-examination dated 14/02/2002, the PW1 had stated that he has not brought the books of accounts. He further deposed that at the time of institution of this suit he did not get any entry in the books of accounts made from any officer of the Court. On that day (14/02/2002) the witness was specifically directed by the Court to bring the books of accounts, bill books, challan books if available on the next date of hearing. This was a specific direction from the court to the witness. Despite this specific direction no books of accounts, bill books/challan books was ever produced by the witness. This amply clear from the order-sheet dated 31.10.2002. The order sheet dated 31.10.2002 states as follows :
"The Counsel for the plaintiff and PW1 Vijay Shanker Somani have submitted that the relevant book of account, bill books/challan etc. are not in possession of the witness/pltff. as the same have been destroyed. This shows that the pltff. has made a false statement deliberately, either on 14.02.2002 or is making a false statement today. On 14.02.2002 he was directed to produce the aforesaid documents but no such request or disclosure was made by this witness. In the circumstances as the witness has not produced the aforesaid documents even today, the Counsel for defendant is directed to cross-examine the witness without these documents. The relevancy/ effect of non- production shall be determined at the time of final arguments...........".
35)PW1 was cross-examined lastly on 22.02.2003. In his concluding cross-examination dated 22.02.2003 it has been stated by PW1 the books of accounts have not been produced. He further deposed, "it is incorrect to suggest that I [am] intentionally deposing wrongly and failed to produce the books of accounts because the debit entry /note of the deft. showing amount of defet. in the books of accounts". He further testified, "it is incorrect to suggest that the statement of account as placed on record by me are different from the statement of account mentioned in our books and therefore I have not produced the original books of accounts before the court". Thus, what is clear is that the plaintiff during its evidence or at any time during the pendency of this suit did not bring on record any books of accounts in original, therefore, adverse inference is liable to be drawn against the plaintiff for not bringing on record the original books of accounts despite specific order of this court in this regard.
36)As per the Section 34 of the Evidence Act, entries in the books of accounts regularly kept in the course of the business are relevant but by itself it is not sufficient evidence to charge any person with any liability. Interpreting Section 34 of the Evidence Act, the Apex Court has held in the case titled as Ishwar Dass Jain (dead) through LR's Vs. Sohan Lal (dead) by LR's (2000) 1 SCC 434 = AIR 2000 SC 426 that extracts from the books of accounts are not "account books"
within the meaning of section 34 of the Evidence Act and such extracts are inadmissible. It has been further held that sanctity is attached in the law of evidence if the books are indeed "account books i.e in original and if they show, on their face, that they have been kept in the regular course of the business". Sanctity cannot be attached to private extracts of books of accounts where the original accounts books are not filed in the court. Whether loose sheets of papers can be considered as books of account was once again the question before the Hon'ble Apex Court in the judgment reported as CBI Vs. V. C. Shukla, AIR 1998 SC 1406. In that case it was held that spiral pads and spiral note books can be considered as books of accounts, but not loose sheets of papers. Therefore, what is clear is that these loose sheet of papers, in view of ratio decidendi laid down in Ishwar Dass's case (supra) and V. C. Shukla's case (supra) cannot be said to be "books of accounts" in terms of section 34 of The Indian Evidence Act, 1872.
Once again in the case titled as M. S. Narayana Menon Vs. State of Kerala and Ors. (2006) 6 SCC 39 it has been held by the Apex Court that where statutory books of accounts in relation to the transactions in question are not produced, adverse inference is liable to be drawn against such party. In the case at hand, the original books of accounts were never produced. As per Section 114 (g) of the Evidence Act, the omission of a party in a proceeding to produce the evidence which he could have produced, raises a presumption against his claims. The presumption is that, if that evidence is produced, the same would injure his claim. In other words, where evidence which can be put, is not produced, it may be presumed that if the same is produced, it would be unfavourable to the person who withholds it. There cannot be a more fit case to draw an adverse inference than this present one. Therefore, in terms of the ratio decidendi of aforesaid precedents of the Apex Court, and section 114 (g) of the Evidence Act an adverse inference is hereby being drawn against the plaintiff. Despite the specific order from the court, the books of accounts were never brought on record, therefore, an adverse inference is liable to be drawn as against the plaintiff.
37)The mere fact that the extract of the statement of accounts has been exhibited does not mean that the document has been proved. It is a settled law that a document has to be proved as per the rules of evidence as contained in the Evidence Act. The mere fact that a document has been exhibited by a party, does not obviate the onus upon the plaintiff to prove the same according to the rules of evidence. Marking of a document as exhibit is only for the purpose of identification, it has nothing to do with proof of the same which must be proved as per the law relating to documentary evidence. In the case titled as Narbada Devi Gupta Vs. Birender Kumar Jaiswal and Anr. (2003) 8 SCC 745 it has been held that mere production and marking of a document as exhibit cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence.
38)The extracts of the statement of account on the loose sheets filed by the plaintiff bears the signature of one Sh. Shree Kishan who is purportedly one of the partners of the plaintiff firm. Sh. Shree Kishan has never appeared in the witness box to depose. It is a well settled law that a person who is competent to speak must be examined and cross examined. In the case at hand, the plaint has been filed by Sh. Shree Kishan; it was specifically averred in the very first para of the plaint that he is fully conversant with the facts of the case, however, Sh. Shree Kishan has not appeared in the witness box to depose despite the claim that he is the one who is fully conversant with the facts of the case. In the judgment reported as Smt. Ram Jawai and Ors. Vs. Smt. Shakuntala Devi & Ors. AIR 1993 Delhi 330 it has been held that the person who is competent to speak must be examined and cross examined.
39)In the light of the aforesaid discussion, I hold that the extracts of the statement of accounts filed by the plaintiff which is Ex. PW1/110 are inadmissible and cannot be relied upon.
40)Furthermore, it is to be seen that the plaint has been filed by Sh. Shree Kishan. The plaint has been signed and verified by him. This suit has been instituted with this averment in the very first para of the plaint that Sh. Shree Kishan is fully conversant with the facts of the case and is fully competent to institute this suit. On behalf of the plaintiff, only one witness namely, Sh. Vijay Shankar Somani had appeared. There were no other witnesses on behalf of the plaintiff. It is not at all explained as to why Sh. Shree Kishan did not appear in the witness box despite the claim that he was fully conversant with the facts of this case. He did not appear in spite of instituting the suit on behalf of the plaintiff firm. It is a settled law that if a party abstains from entering in the witness box, an adverse inference would arise against him. It is not the case that Sh. Shree Kishan did not appear due to unavoidable circumstances. This fact is very much apparent from the cross examination dated 14/02/2002 of PW1 that Sh. Shree Kishan is having a good health and also attending his own work regularly and also attending his own office. In the judgment reported as Vidhyadhar Vs. Manikrao & Anr. (1999) 3 SCC 579 = AIR 1999 SC 1441 it has been held that where a party abstains from entering the witness box, an adverse inference is liable to be drawn against him. Therefore, an adverse inference is hereby being drawn against the plaintiff for two reasons. Firstly, for the non production of the original books of accounts despite specific direction from this Court to produce the same; and secondly for the reason that Sh. Shree Kishan who signed, verified and instituted this suit with the averment that he was fully conversant with the fact of the case did not enter the witness box. Section 114 (g) of the Indian Evidence Act mandates that where the evidence which could be produced and is not produced, the court may presume that the production of the same would be unfavourable to the person who withholds it. Therefore, in the case at hand an adverse inference is hereby being drawn against the plaintiff, under the provisions of Section 114 (g) of the Indian Evidence Act.
41)In the light of the aforesaid discussion on this issue, the plaintiff has been not been able to prove that it is entitled to the suit amount or the interest @ 18% per annum thereon. This issue is therefore, decided against the plaintiff and in favour of the defendants.
42)Issue No. 1 The onus to prove this issue was conferred upon the defendants. Since the plaintiff has utterly failed to prove that it is entitled to the suit amount and interest thereon, no cause of action subsists. Therefore, this issue is decided in favour of the defendants and against the plaintiff.
43)RELIEF - In view of the findings on issues no. 3, 8, 9 and 1, this suit of the plaintiff stands dismissed. The decree-sheet be prepared accordingly. This file be consigned to the record room after due compliance.
44)I would like to end this judgment with a famous passage out of the novel "Bleak House" written by Charles Dickens which sarcastically describes the delay in civil courts in the following words: "
Jarndyce and Jarndyce drones on. The scarecrows of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children are born into the cause; innumerable young people have been married into it; innumerable old people have died out it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why.......Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out.....but Jarndyce and Jarndyce still drags it dreary length before the Court, perenially hopeless. "
ANNOUNCED IN THE OPEN COURT M. P.SINGH
ON 29th February, 2008 CIVIL JUDGE
KKD COURTS
DELHI