Delhi High Court
Sangeeta Agarwal vs Jawahar Lal Nehru Sports Trust on 27 July, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th July, 2018
+ RSA 108/2018
SANGEETA AGARWAL ..... Appellant
Through: Mr. J.M. Bari and Ms. Shweta Bari,
Advs.
versus
JAWAHAR LAL NEHRU SPORTS TRUST .... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.29727/2018 (for exemption).
1. Allowed, subject to just exceptions.
2. The application stands disposed of.
RSA 108/2018.
3. This Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 27 th
February, 2018 in RCA No.13/17 of the Court of the Additional District
Judge (West)] of dismissal of First Appeal under Section 96 of the CPC
preferred by the appellant against the judgment and decree [dated 20 th
December, 2016 in CS SCJ No.9937/16 of the Court of the Civil Judge-04
(West)] of dismissal of suit filed by the appellant/plaintiff for recovery of
Rs.2,85,000/- along with interest from the respondent/defendant/Trust.
4. The counsel for the appellant/plaintiff has been heard and the copies
of the relevant record of the suit filed along with the memorandum of
appeal perused.
RSA 108/2018 Page 1 of 8
5. The appellant/plaintiff instituted the suit, from which this appeal
arises, pleading (i) that there was a joint organization by the
appellant/plaintiff and the respondent/defendant/Trust, of a tournament
called Commonwealth High Commission Cricket Tournament held from
24th February, 2007 to 15th April, 2007 at National Stadium, India Gate and
Jawahar Lal Nehru Stadium, Lodhi Road, New Delhi and of a cricket
match between the Members of Parliament and foreign media held at Delhi
Development Authority (DDA) Siri Fort Sports Complex, New Delhi; (ii)
that in connection with the said tournament and cricket match, the
appellant/plaintiff was instructed to get sponsorship of Rs.3,22,000/- for
tournament and of Rs.10,00,000/- for the cricket match; (iii) that there was
a tacit agreement with the appellant/plaintiff and the
respondent/defendant/Trust that whatever savings would come from the
said two events, the same shall be shared by the appellant/plaintiff and the
respondent/defendant/Trust equally; (iv) that the appellant/plaintiff came to
know that there was a saving of about Rs.5,00,000/- from the said two
events, after incurring all the expenses; as such the appellant/plaintiff was
entitled to receive a sum of Rs.2,50,000/- from the
respondent/defendant/Trust towards her share; and, (v) that the said amount
was payable immediately after the said two events and since had not been
paid, interest at 24% per annum was also due from the
respondent/defendant/Trust to the appellant/plaintiff.
6. Thus, the suit for recovery of Rs.2,85,000/- with pendente lite and
future interest.
RSA 108/2018 Page 2 of 8
7. The respondent/defendant/Trust contested the suit, inter alia
pleading, (i) that the respondent/defendant/Trust is a registered Trust for
the object of public charities and to carry on social and other charitable
activities, purely on non-profitable basis and has been granted an order
under Section 80(G) (V) of the Income Tax Act, 1961; (ii) that the
respondent/defendant/Trust cannot and does not indulge itself in any kind
of understanding/arrangement for making of profit, directly or indirectly;
(iii) denying that there was any understanding/arrangement with the
appellant/plaintiff, much less a tacit understanding; (iv) denying that the
events aforesaid were a joint venture or joint organisation of the parties; (v)
that the respondent/defendant/Trust held the said events with the support
of its sponsors; (vi) denying that the appellant/plaintiff was asked to get
sponsorships for the said events; (vii) the appellant/plaintiff was merely
acknowledged by the respondent/defendant/Trust as one of the volunteers
who, because of their own volition and charitable interest, supported the
respondent/defendant/Trust in holding of the aforesaid events; (viii)
denying that there was any savings from the events or in the sum of
Rs.5,00,000/-;(ix) on the contrary, the respondent/defendant/Trust, to cover
its expenses incurred in organising the subject events, had claimed a sum of
Rs.1,37,438/- from SAB Miller and which had not been received till then
and it was the stand of SAB Miller that the said payment had been
collected by the appellant/plaintiff representing herself to be authorised by
the respondent/defendant/Trust in this regard; (x) denying that the
appellant/plaintiff arranged the sponsorship of SAB Miller; and, (xi) that
the appellant/plaintiff had voluntarily offered her gratis involvement and
the said request of the appellant/plaintiff was accepted and the involvement
RSA 108/2018 Page 3 of 8
of the appellant/plaintiff in the events was in such capacity and not as joint
venture partner or as co-organiser.
8. On the pleadings aforesaid of the parties, the following issues were
framed in the suit on 15th May, 2008:-
"1. Whether the plaintiff is entitled to decree for a
sum of Rs.2,85,000/- as prayed for? OPP.
2. Whether plaintiff is entitled to any relief of
injunction as prayed for? OPP
3. Whether plaintiff is entitled to any interest? If so
at what rate and for what period? OPP
4. Relief."
9. The appellant/plaintiff examined herself in her evidence and the
respondent/defendant/Trust failed to lead any evidence.
10. The Suit Court has dismissed the suit, holding/reasoning (i) that the
appellant/plaintiff had failed to prove that the respondent/defendant/Trust
asked the appellant/plaintiff to arrange for sponsorships or that the
sponsorships were arranged by the appellant/plaintiff or that there was any
tacit understanding between the appellant/plaintiff and the
respondent/defendant/Trust of sharing of any monies; (ii) that there was no
merit in the contention of the counsel for the appellant/plaintiff that adverse
inference under Section 114(g) of the Indian Evidence Act, 1872 is to be
drawn against the respondent/defendant/Trust, because the onus of issues
was not on the respondent/defendant/Trust but on the appellant/plaintiff;
(iii) that Section 101 of the Indian Evidence Act makes it clear that
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
RSA 108/2018 Page 4 of 8
facts exist; it was thus the duty of the appellant/plaintiff to prove that the
respondent/defendant/Trust was liable to pay the amount and not vice-
versa; (iv) if the appellant/plaintiff felt that account books of the
respondent/defendant/Trust were necessary for the appellant/plaintiff to
prove her case, it was for the appellant/plaintiff to summon the same and
which had not been done; and, (v) that the appellant/plaintiff had led no
evidence whatsoever to show that the sponsorship of SAB Miller was
arranged by the appellant/plaintiff.
11. The First Appellate Court dismissed the appeal of the
appellant/plaintiff affirming the findings of the Suit Court and further
reasoning, (i) that it was not the duty of the respondent/defendant/Trust to
bring any evidence to prove the case of the appellant/plaintiff; (ii) that even
if any evidence was in possession of the respondent/defendant/Trust, it was
for the appellant/plaintiff to take requisite steps for production thereof; (iii)
that it could not be believed that the respondent/defendant/Trust, which was
admittedly a Trust had entered into any such tacit understanding with the
appellant/plaintiff or entered into agreement, without a written document;
(iv) the appellant/plaintiff, in cross-examination, admitted that there was no
written agreement; (v) that the appellant/plaintiff did not even remember
the date of the oral tacit understanding; (vi) the appellant/plaintiff, in cross-
examination, admitted that the said oral tacit understanding was with Sunil
Dev who was only one of the trustees of the respondent/defendant/Trust;
therefrom also it is clear that the alleged tacit understanding was with Sunil
Dev and not with the respondent/defendant/Trust; (vii) the authority of
Sunil Dev to enter into such an understanding with the appellant/plaintiff
on behalf of respondent/defendant/Trust, had not been proved; and, (viii)
RSA 108/2018 Page 5 of 8
hence, even if there was any oral agreement as claimed by the
appellant/plaintiff, that was between appellant/plaintiff and Sunil Dev and
not with appellant/plaintiff and respondent/defendant/Trust.
12. The counsel for the appellant/plaintiff has drawn attention to the
written statement of the respondent/defendant/Trust, where it is inter alia
pleaded by the respondent/defendant/Trust as under:-
"It is respectfully submitted that the Defendant
trust, after being voluntarily offered by the Plaintiff for
her gratis involvement in its mega sports and like events,
acceded to her request and by marking her the work of
normal follow-ups, communications etc. on its behalf and
as per its own guidelines with its sponsor, SAB Miller,
involved her in its subject event."
and has argued that the respondent/defendant/Trust having admitted
the involvement of the appellant/plaintiff, a presumption has to be drawn
that such involvement was for consideration. Reference in this regard is
generally made to Section 65 of the Indian Evidence Act, 1872 and reliance
is placed on T.S. Murugesam Pillai Vs. Manickavasaka Desika Gnana
Sambandha Pandara Sannadhi AIR 1917 PC 6 quoted with approval in
Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay AIR
1961 SC 1316, deprecating the practice which had grown up in Indian
procedure, of those in possession of important documents or information,
relying on the abstract doctrine of onus of proof, failing to furnish to the
Courts the best material for its decision.
13. As far as reliance on Section 65 of the Indian Evidence Act is
concerned, I have enquired from the counsel for the appellant/plaintiff
whether not the same requires first proof of an agreement and, where is the
RSA 108/2018 Page 6 of 8
proof in the evidence of the appellant/plaintiff of any such agreement. It
has further been enquired as to under which provision of law the
appellant/plaintiff is wanting the Court to assume that the involvement of
the appellant/plaintiff was under a contract of sharing of profits or under a
contract of share of profits in the ratio of 50:50.
14. Though the counsel for the appellant/plaintiff has not given any reply
to the aforesaid but refers to Section 70 of the Indian Contract Act, 1872
which provides that where a person lawfully does anything for another
person, or delivers anything to him, not intending to do so gratuitously, and
such another person enjoys the benefit thereof, the latter is bound to make
compensation to the former in respect of, or to restore, the thing so done or
delivered.
15. The counsel however forgets that for the aforesaid also to apply, it
was incumbent upon the appellant/plaintiff to prove that the sponsorship of
SAB Miller was arranged for by the appellant/plaintiff. Both the Courts
which are final Courts of fact, have held that there is no proof in that
respect. Though the counsel for the appellant/plaintiff has also not shown
any evidence where the said fact may have been proved but a reading of the
evidence of the appellant/plaintiff herself does not show any such thing to
have been proved. The appellant/plaintiff did not even examine any witness
from SAB Millier to prove having arranged for sponsorship. Merit is also
found in the reasoning given by the First Appellate Court, that the event
being charitable in nature, there could be no earnings from the sponsorship.
A sponsor to an event, also provides sponsorship for social causes and not
RSA 108/2018 Page 7 of 8
for the person instrumental in arranging sponsorship earning commission
therefrom.
16. Reliance on the judgments aforesaid is also misconceived in the
circumstances. The Courts have rightly held that the appellant/plaintiff was
required to prove the earning of Rs.5,00,000/- from the event and which
has not been done.
17. The counsel for the appellant/plaintiff has lastly, also referred to
page 33 of the paper book, being para 8 of the judgment of the First
Appellate Court and has argued that while the Suit Court did not go into the
said aspect the First Appellate Court has held that the contract if any was
with Sunil Dev and not with the respondent/defendant/Trust. It is
contended that this Second Appeal is entitled to be entertained for the
reason of this inconsistency only.
18. I am unable to agree. The additional reason given by the First
Appellate Court is merely to show improbability of the claim of the
appellant/plaintiff in the suit from which this appeal arises.
19. No substantial question of law arises.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 27, 2018 'pp'..
RSA 108/2018 Page 8 of 8