M/S Sterling Holiday Resorts ... vs Mr. Manohar Nirody
2010 Latest Caselaw 5116 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                   RFA No. 863/2005 & CM No. 13841/2010



                         Judgment delivered on: 10.11.2010

M/s. Sterling Holiday Resorts (India) Ltd.        ..... Appellant

                       Through:   Mr.Ankit Gupta, Adv.

                       Versus

Mr.Manohar Nirody                          ..... Respondent

                       Through: Ms. Nikita Sharma and
                                Mr. Asit Kumar, Advs.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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

2. To be referred to Reporter or not?                      Yes

3. Whether the judgment should be reported
   in the Digest?                                           Yes



KAILASH GAMBHIR, J. Oral:
*

1. By this appeal filed under Section 96 read with Order 41

Rule 2 and Section 151 of the Code of Civil Procedure, 1908,

the appellant seeks to set aside the judgment and decree dated

1.9.2005 passed by the Court of the learned ADJ, Delhi whereby

the suit was decreed in favour of the respondent and against

the appellant.

2. The background of facts necessary to decide the present

appeal is that the respondent was employed in the appellant

company as General Manager Operation (North) since

15.10.94. The respondent while in service opted for the scheme

of "own your car scheme" offered by the appellant company

under which the appellant deducted an amount of Rs.1000/-

every month from the salary of the respondent and after

adjusting the entire price of the car failed to transfer the

registration in the name of the respondent. Thereafter, the

appellant stopped paying the salary to the respondent since

January, 1998 and the respondent resigned on 10.8.98 and the

car was also repossessed by the finance company. Feeling

aggrieved with the actions of the appellant company the

respondent filed a recovery suit which vide judgment and

decree dated 1.9.2005 was decreed in favour of the respondent

for a sum of Rs. 4,94,888/- alongwith interest at 12% p.a from

the date of filing of the suit till its realization. Feeling aggrieved

with the abovesaid judgment, the appellant has preferred the

present appeal.

3. Counsel for the appellant has mainly raised two

contentions in support of his appeal. The first argument is that

the acknowledgment letter dated 7.6.2000 alleged to have been

issued by the appellant company was not proved by the

respondent in accordance with law. The second argument of

the counsel for the appellant is that the appellant was not given

sufficient opportunity to cross examine the respondent.

4. Assailing the impugned order, counsel for the appellant

submits that the respondent failed to prove the letter dated 7 th

June, 2000 through which the respondent has claimed

acknowledgment of the said dues. The contention of counsel for

the appellant is that the second page of the said letter is a

photocopy and, therefore, clearly signatures of Mr. Steve

Borgia on the second page are not original. Counsel thus states

that mere exhibition of the said document cannot be taken to

imply that the respondent has proved the said document.

Counsel also submits that the appellant has raised objections to

all the documents, which were exhibited by the respondent in

his evidence filed by him by way of affidavit including the said

letter dated 7th June, 2000. Counsel also submits that sufficient

opportunity was not granted to the appellant to cross-examine

the respondent who entered the witness box as PW- 1. Counsel

also submits that nowhere the respondent has taken a stand as

to the whereabouts of the original of the second page of the

letter. Counsel for the appellant further submits that the said

letter dated 7th June, 2000 was forged by the respondent so as

to claim the benefit of the limitation period.

5. Counsel for the appellant also submits that the suit

filed by the respondent was clearly barred by limitation as the

same was filed by the respondent on 3rd July, 2003 while

limitation came to an end somewhere in the year 2001. Counsel

also submits that even based on the said acknowledgment

letter dated 7th June, 2000, the limitation came to an end on 6 th

June, 2003 while the suit was filed by the respondent on 3 rd

July, 2003.

6. Counsel for the respondent on the other hand refutes the

submissions of the counsel for the appellant and submits that

the suit was instituted by the respondent on 31 st May, 2003 and

therefore the same was clearly within the limitation period.

Counsel for the respondent further placed reliance on paras

No. 12 and 13 of the impugned judgment whereby the Trial

Court has dealt with the said issue of limitation and decided the

same in favour of the respondent.

7. I have heard learned counsel for the parties.

8. On perusal of the trial court record it is quite evident that

the suit was filed by the respondent on 31st May, 2003 and on

the assignment of the same, it was taken by the concerned

Court on 3rd July, 2003. If the period of limitation is taken from

the date of the said acknowledgment letter dated 7th June, 2000

then clearly the suit filed by the respondent is within the

prescribed period of limitation.

9. Now to examine the contention of the counsel for the

appellant that the letter dated 7.6.2000 was forged, on perusal

of para No. 28 of the plaint it is quite evident that the

respondent/plaintiff pleaded limitation period based on the said

acknowledgement letter dated 7th June, 2000 and in reply to the

said para the appellant/defendant has not taken a stand that

the said letter dated 7 th June, 2000 was forged by the

respondent/plaintiff. Copy of the said letter was placed on

record by the respondent/plaintiff and, therefore, the appellant

could have taken a clear stand that the said letter filed by the

respondent was a forged document. No such plea was raised by

the appellant before the learned Trial Court also. Hence, so far

the question as to whether the said letter dated 7 th June, 2000

was properly proved by the respondent on record or not or

whether the said letter is a forged document or not, this Court

does not find any perversity or illegality in the findings arrived

at by the learned Trial Court. In paras 12 and 13 of the

impugned judgment, the learned Trial Court came to the

conclusion that no evidence was led by the appellant/defendant

to prove that the said document i.e. letter dated 7th June, 2000

was a forged one. The learned Trial Court also observed that

the entire evidence led by the appellant appears to be hearsay

evidence. It would be useful to reproduce the said paras of the

impugned judgment here:

"12. Although the defendant has stated that the document is forged but in the entire evidence led by the defendant not even a single statement has been made by the witness how he can say that the document is forged one and the defendant has not led even single evidence to prove that document Ex.PW 1/19 is forged document or the manner in which the defendant can say that document is forged one. The entire evidence led by the DW1 appears to be hear say evidence.

13. Onus to prove this issue was on the plaintiff. The plaintiff has proved this issue by placing on record and proving the letter dated 7.6.2000 of the defendant company wherein the defendant admitted liability of

making payment as per Section 18 of the Limitation Act. Cause of action for filing present suit arose on 10.08.98 when the plaintiff left the services of the defendant and hence letter dated 7.6.00 is within three years limitation period and has further extended limitation for filing suit for recovery up till 6.6.03, suit is filed on 3.6.03. Therefore I am of the opinion that onus has been rightly discharged by the plaintiff. The suit of the plaintiff is within period of limitation. This issue is decided in favour of the plaintiff and against the defendant."

10. Although in the impugned judgment reproduced above,

there is a wrong observation made by the Trial Court that the

suit was filed by the respondent on 3rd June, 2003, which in fact

should have been 31st May, 2003, but except the said mistake

this Court does not find any illegality in the said findings

arrived at by the learned Trial Court on issue No. 1.

11. The other issue raised by the counsel for the appellant is

that sufficient opportunity was not given to cross examine the

respondent, PW 1. The learned trial court has clearly observed

in para 16 of the impugned judgment as under:

"16. The plaintiff has given the detailed facts in the evidence, despite giving opportunity to the defendant for cross examination on this account plaintiff witness was not cross examined and hence the opportunity was closed. Therefore the testimony of the plaintiff is uncontroverted and unchallenged."

12. Also a perusal of the order sheet dated 21.7.04 where it is

clearly observed by the learned trial court that PW 1 is present

for cross examination and opportunities for cross examination

have not been utilized by the defendant, hence the cross

examination is accordingly closed. Therefore, it is clear that the

appellant did not choose to cross-examine PW1 who proved the

case of the respondent. The plea of the appellant that sufficient

opportunity was not granted to the appellant to cross-examine

the said witness is totally untenable as evidently no steps were

taken by the appellant to seek such an opportunity to cross

examine the said witness. Neither did the appellant in its own

evidence take any stand to contradict the said letter dated 7 th

June, 2000 nor did the appellant anywhere take a stand that the

letter was a forged document. It is a settled legal proposition

that the where the party fails to avail the right of cross

examination of a witness despite there being sufficient

opportunity and the testimony of such a witness remains

unrebutted and unimpeached then in such circumstances such

a testimony has to be given due credence. Once the appellant

itself has chosen not to dispute the correctness of the said

document by taking any specific plea in the written statement

and has also not chosen to cross-examine the witness of the

respondent besides not even taking any such stand in his own

deposition, then, now he cannot be heard to say that the said

document was a forged document or the same was not proved

in accordance with the law.

13. In the light of the above, there is no merit in the present

appeal and the same is hereby dismissed.

November 10, 2010                 KAILASH GAMBHIR, J
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