Calcutta High Court (Appellete Side)
Ct-08 Vikash Somani vs Reliance Industries Ltd. & Ors on 4 January, 2023
16 04.01.2023 FAT 473 of 2011
Ct-08 Vikash Somani
Vs.
Reliance Industries Ltd. & Ors.
ar Mr. Satarup Banerjee
Mr. Sariful Haque
Mr. Rajib Mullick
Ms. Shrayashi Maity
... For the Appellant
Mr. Siddhartha Mitra, Sr. Adv
Mr. U.S Menon
Mr. Domingo Gomes
Mr. Abhirup Chakraborty
... For the Respondent no. 1
The appeal is directed against a judgment
and decree dated 13th July, 2011 in a suit for
declaration of title in respect of 550 equity
shares of the defendant no. 1.
We have heard Mr. Satarup Banerjee, learned
counsel representing the appellant and Mr.
Siddhartha Mitra, learned senior counsel
representing the respondent no. 1
Before the trial court, save and except the
defendant no. 1, other defendants did not enter
appearance.
The plaintiff claims to be a share broker. He
had parted with 550 equity shares of the
defendant no. 1 allegedly on the basis of a
telephonic instruction received from the
defendant no. 2. In its attempt to prove sale of
550 shares to the defendant no. 2, a small chit of
paper was produced before the trial court,
alleged to be a money receipt, issued by the
defendant no. 2. Curiously, the plaintiff did not
feel it necessary to issue a summon upon the
defendant no. 2 or the defendant no. 3 to prove
the transaction. The defendant No.1 is not
answerable for the transaction termed as
dubious by the learned Trial Judge.
In Gurbakhsh Singh v. Gurdial Singh
reported at AIR 1927 P.C. 230 Lord Shaw after
referring to the fact that a material witness who
was present in court did not go to the witness
box pointed out at page 233 of the report as
follows:
"Notice has frequently been taken by this
Board of this style of procedure. It sometimes
takes the form of a manoeuvre under which
the counsel does not call his own client, who is
an essential witness, but endeavours to force
the other party to call him, and so suffer the
discomfiture of having him treated as his, the
other party's own witness". (emphasis
supplied)
As a corollary it can be stated that the
plaintiff cannot take the advantage of non
appearance of the defendants as a tool to
persuade the court to decree the suit on the
ground of non-traverse. Even if the said
defendants do not appear and contest the
plaintiff is obliged to prove its case- the onus lies
on him to prove the transaction.
The inability to produce any witness to prove
the transaction is fatal to the case. The onus is
on the plaintiff to show that the shares were sold
on the basis of the instruction received by him
from the said defendant over telephone. The
plaintiff could have summoned the person who
alleged to have come from the defendant No.2 to
take delivery of the shares. The money receipt is
not conclusive of the transaction. The plaintiff
has failed to discharge his burden of proving the
transaction.
As correctly observed by the trial court there
is no documentary evidence suggesting any
transaction of purchase or sale of shares
between the plaintiff and the defendant no. 2.
We are in agreement with the observation
made by the learned Trial Judge that the claim of
the plaintiff appears to be of doubtful character.
Under such circumstances, the appeal
accordingly fails and is hereby dismissed.
There will be no order as to costs.
(Uday Kumar,J.) (Soumen Sen, J.)
