Sh.Surender Joshi vs Amardeep Mantaj Singh
2010 Latest Caselaw 3803 Del

                                 UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No.3/2010

Sh. Surender Joshi                                   ..... Appellant
                       Through:   Mr. R. Vasudevan, Advocate.

              versus

Amardeep Mantaj Singh                                ..... Respondent
                Through:          Mr. Suhail Dutt and Mr. Azhar Alam,
                                  Advocates.

%                       RESERVED ON      : AUGUST 6, 2010
                        DATE OF DECISION : AUGUST 16, 2010

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


REVA KHETRAPAL, J.

1. The present appeal is directed against the judgment and decree of

the learned Additional District Judge decreeing the suit of the plaintiff

for a sum of Rs.6,53,230/- with interest @ 10% per annum pendente lite

and future.

2. Succinctly stated the case of the respondent/plaintiff as set out in

the plaint is that the defendant/appellant is dealing with the purchase and

procurement of DEPB licence and under which the appellant/defendant

used to purchase the DEPB licence from the respondent/plaintiff from

time to time, which were issued to the plaintiff by the Government of

India, Ministry of Commerce & Industries. The respondent/plaintiff also

received DEPB licence from the appellant/defendant occasionally, for

which the respondent/plaintiff was maintaining a running account of the

appellant/defendant in respect of the dealings between the parties.

3. On 1st April, 2004, a sum of Rs.1,44,052/- became due and

payable by the defendant-appellant on account of the dealing in which

the appellant/defendant purchased DEPB licence from the

respondent/plaintiff. Thereafter, during the financial year 1st April,

2004 to 31st March, 2005, the appellant made purchases to the tune of

Rs.35,06,599 on various occasions including the last purchases of 3

DEPB licences of Rs.5,38,383/-, the details whereof are set out by the

respondent in the plaint. Further, during the said financial year, the

appellant made payment to the tune of Rs.36,01,325/- on various

occasions including three cheques to the tune of Rs.5,52,734/- which

were drawn upon ABN AMRO Bank, Barakhamba Road, New Delhi.

After adjustment of the aforesaid cheques on 1 st May, 2005, a sum of

Rs.49,326/- i.e. Rs.1,44,052/- plus Rs.35,06,599 minus Rs. 36,01,325/-,

became due and payable by the appellant in favour of the respondent.

However, all the aforesaid three cheques were returned dishonoured on

the ground of "insufficient funds", leading to the filing of the suit from

which the present appeal arises, praying for a decree of Rs.6,53,230/-

along with interest thereon @ 18% p.a.

4. In the written statement filed by the appellant in the suit, the

appellant denied the claim made by the respondent in toto and submitted

that the cheques had been issued as security against purchase of DEPB

licences in accordance with the practice that was prevalent between the

parties, and the cheque amount used to be adjusted in the running

account maintained in the name of the appellant by the respondent

against the earnings of the appellant by way of commission, liasioning

fee, brokerage and purchase of fabric etc. by the respondent from the

appellant. On the pleadings of the parties, the following issues were

framed: -

"1.Whether there is no cause of action for filing the suit? OPD

2. Whether the plaintiff concealed material facts from this court? OPD

3. Whether the Ashok Ahuja is not competent and authorized to sign the plaintiff? OPD

4. Whether the defendant has not issued cheque in favour of the plaintiff as surety? OPD

5. Whether the plaintiff is entitled to decree of Rs.6,53,230/-? OPD

6. Whether the plaintiff is entitled to interest? If so at what rate? OPP

7. Relief."

5. The respondent/plaintiff examined himself as PW1, and his

Accountant Sh. Ashok Ahuja as PW2 whereas the defendant examined

himself as DW1. The learned trial court, on the basis of the evidence

adduced by the parties, decreed the suit on the ground that the statement

of account filed by the respondent stood proved on record as Ex.PW2/2

during the course of statement of PW2 Sh. Ashok Ahuja, and PW-2 not

having been subjected to cross-examination by the appellant/defendant,

the respondent/appellant had discharged the onus of proving its

entitlement to the decree of Rs.6,53,230/-.

6. Aggrieved by the aforesaid judgment and decree, the present

appeal has been preferred by the appellant for setting aside of the same

and for dismissal of the suit. It is the case of the appellant in the appeal

that the learned trial court erred in accepting the statement of account

sought to be proved by PW2 as Exhibit PW2/2, being the ledger account

maintained by PW2, in view of the fact that the PW2 Sh.Ashok Ahuja

was not cross-examined by the respondent.

7. My attention was also drawn by the learned counsel for the

appellant to the application filed by the appellant before the learned trial

court under Order XVI Rule 10 read with Section 151 CPC praying for a

direction to the respondent to produce PW2 for cross-examination,

which was, however, filed after the case was fixed for the defendant's

evidence. No orders thereon appear to have been passed, as is apparent

from the order dated 17th May, 2007, which reads as under: -

"17/5/07 Pr. Adv. of Def.

Adv. of Def. filed appl. u/o 16. The point raised is question of admissibility and to be examined at the time of final argument. DW not available. Put up for DE on 27/7/07."

8. It is manifest from the judgment of the learned trial court that the

entire case of the respondent-plaintiff hinges upon the testimony of

PW2, who has proved on record not only his authorization to file the

suit, i.e. Ex. PW2/1, but the ledger accounts prepared by him as

Ex.PW2/2. A perusal of the order sheets of the learned trial court show

that PW2 Sh. Ashok Ahuja had tendered his affidavit by way of

evidence (Ex.PW2/A) even prior to the respondent (PW1) tendering his

affidavit in evidence, but for some reason which is not apparent from the

record, his cross-examination was deferred. Though, he was present on

the next date, the learned trial court proceeded to record the testimony of

PW1 and the cross-examination of PW-2 was not recorded again for

some reason which is not forthcoming on the record. Thereafter, the

case was adjourned from time to time for the cross-examination of PW1

and on 20th March, 2007, the evidence of the respondent/plaintiff was

closed and the case was listed for the appellant's evidence on 17 th May,

2007, on which date, the appellant filed an application for cross-

examination of PW2. The said application, as stated above, was

deferred by the learned trial court for consideration at the time of final

arguments, and the learned trial court instead of passing orders on the

said application, proceeded to record the testimony of the

appellant-defendant. Even at the time of final arguments, the application

of the appellant was not adverted to by the trial court. After hearing the

parties and scrutinizing the records, this Court finds merit in the

contention of the appellant that the learned trial court ought to have dealt

with the application filed by the appellant seeking to cross-examine the

evidence of the appellant.

9. From the aforesaid, this Court is of the considered view that the

learned trial court manifestly erred in not considering the application of

the appellant for cross-examination of PW2 Sh. Ashok Ahuja, who was

the most material witness in the case. The learned trial court then

proceeded to decree the suit on the basis of the statement of account

(ledger) tendered in evidence by PW2, Sh. Ashok Ahuja, as Ex.PW2/2,

altogether losing sight of the fact that the said witnesses had not been

cross-examined, his cross-examination having been deferred on two

occasions despite his presence in the court. Ordinarily, this Court would

have remanded back the matter to the learned trial court for recording of

the cross-examination of PW2, but in view of the fact that the suit was

instituted in the year 2005 and a considerable time period has elapsed, it

is deemed appropriate to record the cross-examination of PW2 Sh.

Ashok Ahuja, before finally considering the appeal on its merits.

10. A five-Judge Bench of the Supreme Court in the case of

K. Venkataramiah vs. A. Seetharama Reddy and others AIR 1963

Supreme Court 1526 (V 50 C 224) has held that when some inherent

lacuna or defect becomes apparent to the Appellate Court on

examination of the evidence, the Appellate Court may exercise its

discretion to allow additional evidence to be adduced. The following

apposite observations are being reproduced hereunder: -

"Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R. 27(1)(b) of the Code.

17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53, Ind App 254: (AIR 1931 PC

143), the Privy Council while discussing whether additional evidence can be admitted observed :-

"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent."

11. In the instant case, as already stated, the cross-examination of

PW2 is necessary for pronouncing on the merits of the case, in view of

the fact that the entire case of the respondent hinges on the running

account of the appellant which was being maintained by the respondent

and the respondent having tendered the said running account in evidence

as Ex.PW2/2.

12. Accordingly, list this appeal before the learned Joint Registrar for

recording of cross-examination of PW2, Sh. Ashok Ahuja on

18th October, 2010 and thereafter before the Roster Bench.

REVA KHETRAPAL (JUDGE) August 16, 2010 sk