Oswal Chemicals & Fertilizers ... vs Lalit Kumar Bagla
2009 Latest Caselaw 3488 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA(OS) No.93/07 & CM Nos.12155/08 & 12366/08

OSWAL CHEMICALS & FERTILIZERS LTD....Appellant through
                           Mr. Rajiv Dutta, Sr. Adv.
                           With Mr. Kumar Dushyant
                           Singh     and     Ms.     F.
                           Humayunisa, Advs.

                    versus

LALIT KUMAR BAGLA                   ......Respondent through
                                    Mr. Arvind K. Nigam, Sr.
                                    Adv. with Mr. Pramit Kumar
                                    Ray and Mr. T.S. Ahuja,
                                    Advs.

%                        Date of Hearing : July 23, 2009

                         Date of Decision : September 01, 2009

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE V.K. JAIN
      1. Whether reporters of local papers may be
         allowed to see the Judgment?                 No
      2. To be referred to the Reporter or not?       No
      3. Whether the Judgment should be reported
         in the Digest?                               No

VIKRAMAJIT SEN, J.

1. The present Appeal arises out of the consolidated

judgment passed by the Trial Court in the cross-suits filed by

Bindal Agro Chemicals Ltd. and Mr. Lalit Kumar Bagla.

CS(OS)789/1996 was a suit for permanent injunction and

declaration filed by Bindal Agro Chemicals Ltd. against Mr.Lalit

Kumar Bagla, a dealer in expensive cars seeking relief of

declaration of ownership of a Rolls Royce car 1988 Model

having Chassis No.ANH24457, Permanent Injunction restraining

Mr. Lalit Kumar Bagla or his agents from taking back the

possession of the car illegally or by unfair means and direction

by Court to said Mr. Bagla to transfer the car in the name of

Appellant Company and to handover all relevant documents of

the said car.

2. In the Cross-suit, CS(OS) No.1477/1994, filed by

Mr. Bagla against Bindal Agro Chemicals Ltd. wherein

Mr. Abhay Oswal, the Managing Director of the Company and

his wife, Mrs. Aruna Oswal were also made parties, Mr. Bagla

sought the recovery of Rupees 69,00,000 (Rupees Sixty Nine

Lac Only), being the balance payment of the Rolls Royce Car.

3. Both the suits were clubbed together vide Order dated

19.1.1995 as the subject-matter in question in both the suits was

the sale of the same Rolls Royce Car between the same parties.

4. The admitted position of fact in the Appeal before us is

that the transaction included purchase of a green Balmoral 1986

Model Rolls Royce Car which initially was absolutely transferred

to Bindal Agro Chemicals Ltd. for a consideration of Rupees

1.31 crores and stayed with them for a month. After a month,

this 1986 Model Rolls Royce Car was replaced by a 1988 Model

Rolls Royce. The gravamen of the dispute hinges on the question

as to whether there was an oral agreement between the parties

regarding an additional payment of Rupees 69,00,000, over

and above Rupees 1.31 crores that was paid as full and final

consideration by Bindal Agro Chemicals Ltd. for the 1986

Model.

5. The Trial Court, in the impugned Judgment, has believed

the version presented by Mr. Bagla, basing his reasoning upon

the probity of conduct of the parties and the testimonies of the

witnesses from both sides in Court. Being an oral contract, there

exists no written document to establish the same, except for a

letter dated 28.10.1991 allegedly endorsed by Mr. Anil Bhalla.

This letter is relied on as proof of liability of Rupees 69,00,000.

Mr. Bhalla has throughout denied to have ever received this

letter requesting them to make the balance payment of Rupees

69,00,000 towards the Blue Spur 1988 Model Rolls Royce Car.

None of the parties have led any evidence of any handwriting

expert to prove or disprove the veracity of signatures of

Mr. Bhalla though an issue was specifically framed as to

whether the signature of Mr. Anil Bhalla had been forged on the

letter dated 28.10.1991. The Trial Court has, however,

compared the signatures on the letter with those on admitted

receipts and held that there appears to be no difference

between the said signatures on the document. This examination

by the learned Judge coupled with the inference drawn from the

cross-examination of Mr. Bhalla led the learned Judge to

conclude that the signatures on the said letter were, in fact, that

of Mr. Bhalla which he has falsely denied.

6. The Trial Court has also drawn presumptions under

Section 114 from the fact that Mr. and Mrs. Oswal who were

arrayed as Defendant Nos. 2 and 3 did not appear in the

Witness Box and concluded that by not stepping in the Witness

Box that side has failed to prove its pleading in the Written

Statement. The Trial Court has also come to the conclusion that

the exchange of the two Rolls Royce of different models and of

different years, would not have occurred without an additional

consideration. Learned Judge has relied on the letter dated

28.10.1991 to quantify the additional consideration at Rupees

69,00,000 as claimed by Mr. Bagla.

7. The Trial Court finally concluded that there existed an oral

agreement between the parties as claimed by the Plaintiff,

Mr. Bagla. In light of the undertaking given by the Defendant, in

pursuance of Order dated 19.1.1995 the Trial Court awarded

the sum of Rupees 69,00,000 along with interest at the rate of

18 per cent per annum from 28.10.1991 and also the costs of

litigation.

8. The Appellant before us, namely, Oswal Chemicals &

Fertilizers Ltd. (erstwhile Bindal Agro Chemicals Ltd.) has

launched a salvo against the impugned Judgment essentially on

the finding arrived at by finding the testimony of Mr. Anil

Bhalla, to be untrustworthy; and relying on the letter allegedly

endorsed by Mr. Anil Bhalla. The learned Senior Counsel for the

Appellant has vehemently argued that in absence of any

evidence by an expert witness as to the veracity of the

signatures on the letter, the Trial Court has erred in examining

the signatures himself and arriving at a conclusion that the

admitted signatures of Mr. Anil Bhalla on a receipt and that on

the letter were the same. He has also sought to challenge the

finding that Mr. Bhalla had falsely denied his signatures in the

cross-examination and that he approbated and reprobated

simultaneously in his cross examination. It is argued on the

contrary that he was confronted with a tricky question by the

counsel for the Respondents to which he got confused. It is

stated that during the cross-examination, the Respondents'

counsel cleverly played a trick by showing a document

containing his signatures without showing the contents of the

document to the witness and asked whether the signatures were

his own. The witness, being a man of ordinary prudence, denied

the signatures to be his own, but when the contents of the

document were revealed, it turned out to be an admitted

document on which the witness had earlier admitted his

signatures. Thus, it is urged that the conduct of the

Respondents was highly doubtful and any person of ordinary

prudence would have fallen in the trap.

9. It has further been argued that Mr. Bhalla ought to have

been allowed to refresh his memory by referring to any writing

made by himself at the questioning and that it is settled law that

where a witness has to depose to a larger number of

transactions and those transactions are referred to or are

mentioned in other documents, the Court examining the case

should allow the deposing witness to refer to those documents

while answering the question put to him in his examination as

envisaged under Section 159 of Indian Evidence Act, 1872.

10. Besides the examination of Mr. Bhalla, the learned Senior

counsel for the Appellant has also challenged the reasoning of

the Trial Court that it is not necessary or mandatory that there

has to be a written agreement in this behalf and that oral

agreements are not uncommon in this trade, on the ground that

where under law a document is required to be in writing, parties

to such documents cannot be allowed to lead oral evidence.

Learned counsel has also challenged the presumption drawn by

the Trial Court from the fact of non appearance of Mr. and

Mrs. Oswal who were the defendants in that suit on the pretext

that the car was purchased by the company and Mr. Anil Bhalla

had made the transaction in capacity of the Director of the

company and thus there was no requirement for them to be

even made a party, even less being examined as witnesses. It is

also being argued that such rare cars when sold in market do

not have a price tag and that the older model might fetch a

better price than the later ones. It is argued that the finding of

the learned Judge that it can hardly be expected that having

sold a Rolls Royce car and having received the total

consideration for the sale, Mr. Bagla would have exchanged the

1986 Green Balmoral Model with a two year later silver spur

model for no added consideration at all.

11. These submissions of the Appellant have been vehemently

contested by the learned Senior Counsel for the Respondents.

Emphasis has been placed upon the uncontroverted fact that the

Appellant had purchased the green Balmoral Rolls Royce of

1986 Model initially, which was replaced by a Blue Spur Rolls

Royce Car of 1988 Model. This sequence of events, now

admitted in the Appeal by the Appellant, was suppressed by the

Appellant in his own Plaint and refuted in the Replication and

denied in his Written Statement in the suit filed by the

Respondents. The learned Senior Counsel for the Respondents

has thus urged that the Appellant has not approached this Court

with clean hands. Thus, the Appeal should be rejected at the

very instance as the Appellant is now seeking to plead a

different factual matrix from the one it urged in the Trial Court.

12. Secondly, the learned Senior Counsel for the Respondent

has also urged that in the cross-examination of its witnesses, no

suggestion was made by the Appellant that would support its

contentions before us. There was no suggestion being made to

Plaintiff's witnesses in cross-examination to the effect that the

1988 model car was of the same price as the 1986 car, nor that

the signatures of Mr. Anil Bhalla on the letter were forged. On

the basis of this argument, learned Senior Counsel for the

Respondent has sought to urge that the Appellant has not even

tried to prove its own case before the Trial Court and no cogent

evidence has been brought by it to substantiate its plea before

us in this Appeal.

13. On hearing counsel for both the parties and perusing the

testimonies and examination of witnesses, we are of the opinion

that the Appellant has failed to make even a single plausible

ground to assail the impugned Judgment. The argument

regarding the illegality of the manner in which Mr. Bhalla was

cross-examined, viz. by showing the signatures on a document,

contents of which were hidden, is unsustainable. It is

commonplace that a genuine witness in such a situation would

either wrongly admit the false signatures to be his own or would

say that he is not sure. The stand taken by Mr. Bhalla evidences

the fact that the admitted signatures were denied under a

predetermination to deny the signatures on the letter dated

28.10.1991. This is the only written document on which

Respondent was relying to substantiate the argument of

concluded oral contract. Thus, we are in agreement with the

Trial Court that the Plaintiff/Respondent has succeded in

impeaching the reliability of the testimony of the said witness.

The Respondent has thus proved his stand that the said letter

was, in fact, received by the Appellant and acknowledged by Mr.

Bhalla. The Appellant has placed reliance on Thiruvengadam

Pillai -vs- Navaneethammal, (2008) 4 SCC 530 and The State

(Delhi Administration) -vs- Pali Ram, (1979) 2 SCC 158 to

argue that the Court should not have given a positive and

definite finding in favour of the veracity of signatures of

Mr. Bhalla in absence of an expert evidence. Reliance on both

these Judgments is misplaced. Thiruvengadam was a case

where thumb impression, and not signature, was in question.

Their Lordships have held thus:-

17. The decision in Murari Lal -vs- State of M.P., (1980) 1 SCC 704 and Lalit Popli -vs- Canara Bank, (2003) 3 SCC 583 should not be construed as laying proposition

that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.

Here, there is no averment of signature being vague or smudgy

or not clear.

14. Pali Ram is a Judgment in a criminal case. It is trite that

the standard of evidence required is of a much higher degree

than in civil matters. Thus, the observations in that case are of

no help to Appellant in the present case. We cannot ignore the

position that Section 73 of Indian Evidence Act clearly states

that -"In order to ascertain whether a signature, writing or seal

is that of the person by whom it purports to have been written

or made, any signature, writing, or seal admitted or proved to

the satisfaction of the Court to have been written or made by

that person may be compared with the one which is to be

proved, although that signature, writing, or seal has not been

produced or proved for any other purpose. The Court may direct

any person present in Court to write any words or figures for

the purpose of enabling the Court to compare the words or

figures so written with any words or figures alleged to have

been written by such person". Thus, the Trial Court was justified

in comparing the signature, on document with the admitted

signature and coming to its own finding. We find no perversity

on the part of the Trial Court in drawing an adverse

presumption regarding non-appearance of Mr. and Mrs. Oswal.

Respondent has succeeded in making out a clear case that the

car was purchased by Mr. and Mrs. Oswal for their personal

use and that Mr. Bagla had entered into negotiations with

Mr. Oswal for the sale of said car. The car was purchased in the

name of the Company at their instance. In these circumstances,

it was necessary for them to have entered the Witness Box and

testified to the contrary.

15. We are also in agreement with the Trial Court that it is

highly unbelievable that a newer car would have been

exchanged by Mr. Bagla with an older model car for no added

consideration. This is obviously the reason why the Appellant

has tried to suppress the factum of purchase of a 1986 model

Green Balmoral car and its exchange with the 1988 model Blue

Spur. Moreover, as pointed out by learned Senior Counsel for

the Respondent, not even a suggestion has been made to the

witnesses as to whether the two cars were of the same price,

whereas Mr. Bagla had clearly deposed that Blue Spur is a more

expensive model than the Green Balmoral and that there was an

increase of 30 per cent each year in the price of a Rolls Royce

car.

16. Thus, in light of the abovementioned findings we agree

with the Trial Court on the first Issue that one Rolls Royce

Metallic Blue Car bearing Chassis No.ANH24457 1988 Model

was sold by Mr. Lalit Kumar Bagla to Bindal Agro Chemicals

Ltd. in exchange for another green Balmoral Rolls Royce car of

1986 model. On 2nd, 3rd and 6th Issues we agree with the Trial

Court that in the absence of any written agreement between

the parties, for payment of extra Rupees 69,00,000, the suit

is maintainable as the Respondent has succeeded in proving

the oral agreement in the Trial, and that there is

sufficient material on record for coming to the conclusion

that there was an agreement to pay a further sum of

Rupees 69,00,000 to Bagla by Appellant. Issue No.5, which

concerns whether suit against Defendant No.2 and 3 has been

vexatiously filed is also held to be correctly decided against the

Appellant. Issue No.8 regarding withholding the certificates of

registration, certificate of insurance, original purchase invoice,

customs clearance receipts and other relevant documents of the

metallic Blue Rolls Royce Car, 1988 Model is also correctly

decided against the Appellant by the Trial Judge in light of the

findings arrived at in the previous Issues. The learned Trial

Court has correctly awarded the sum of Rupees 69,00,000 along

with interest from 28.10.1991; but in the circumstance of the

case the interest is reduced to 12 per cent per annum.

17. The Appeal is disposed of with this modification. Pending

applications also stand dismissed. Parties to bear their

respective costs.

                                           ( VIKRAMAJIT SEN )
                                                 JUDGE




September 01, 2009                               ( V.K. JAIN )
                                                 JUDGE