M/S. A. Nitin And Company vs Shri Jatinder Kumar
2011 Latest Caselaw 1353 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.444/2001

%                                                   8th March, 2011

M/S. A. NITIN AND COMPANY                               ...... Appellant
                                Through:    Ms. Lalita Kohli, Advocate.

                          VERSUS


SHRI JATINDER KUMAR                                      ...... Respondent
                                Through:     None


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?

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


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment      and   decree   dated   27.3.2001      whereby   the   suit   of   the

appellant/plaintiff for recovery of balance said to be due on account of share

purchase transactions entered into between the parties was dismissed. The

main ground and the only ground on which the trial Court has dismissed the

suit is that the appellant/plaintiff failed to file any contract notes to prove

that the respondent/defendant had entered into the contract for purchase of



RFA No.444/2001                                                     Page 1 of 4
 shares of M/s. JCT Limited and M/s Orkay Silk Mills and with respect to which

transactions the suit was filed.


2.          In law a mere oral statement, on being controverted, cannot

discharge the onus of proof.       In the present case, in the absence of any

documentary evidence of the existence of contract between the parties, for

purchase of shares of JCT limited and Orkay Silk Mills, the trial Court has held

that the appellant/plaintiff failed to discharge its onus of proof and therefore

it could not claim the value of difference of the shares as ordered by the

respondent/defendant and the market rate at which those shares were

subsequently sold by the appellant/plaintiff. The relevant findings of the trial

Court in the impugned judgment and decree are contained in paras 13 to 16

which read as under:-


       "13. Admittedly, in the given case, there was no oral or
       documentary evidence to prove that the deft ever issued
       instruction to issue the alleged shares at the given price. There
       was no offer and acceptance which are necessary ingredient of a
       contract. Thus, there was no contract in the eyes of law to bind
       the parties to any terms of sale and purchase of the alleged
       shares. As in the given, nor there was any „Contract note‟ as
       mentioned above. Though, apparently to this extent, the suit of
       the Plaintiff was not maintainable; Yet, the case of the Plaintiff
       being based upon running account was well maintainable, for the
       amount of alleged shares.

             Issue is accordingly drawn against the Plaintiff and in favour
       of the deft.

       Issue No.2:

            Whether the plaintiff is entitled to recover the amount
       claimed in the plaint, if so, what amount? OPP

RFA No.444/2001                                                   Page 2 of 4
       Issue No.3:

           Whether the Plaintiff is entitled to claim interest is so, at what
      rate and which period? OPP.

           Both the issues being inter-linked, for convenience are taken
      up together.

           The „onus probandi‟ of the issue was upon the Plaintiff.

      14. As discussed above, under the head of issue no.1, the
      Plaintiff has failed to establish that the deft ever placed any
      instruction for purchase of 2000 shares of M/s J.C. T. Ltd. and M/s
      Orkay Silk Mills each and that he was liable to pay the difference
      between the purchase price and sale price. Ironically, the Plaintiff
      has not differentiated the amount of these shares and the amount
      otherwise recoverable from the deft.

      15. The Ld. Counsel for the Plaintiff has laid emphasis upon the
      contents of Ex.PW1/6 and contended that this showed an
      admission on the part of the deft that some amount was payable
      by him as on 17.7.92. He further submitted that as per statement
      of account maintained by the Plaintiff in due course of its business
      qua the deft, an amount of Rs.2,53,129/- was due and payable on
      11.8.92.    The Ld. Counsel for the deft contradicted the
      submissions made by the Ld. Counsel for the Plaintiff stating that
      there was no admission forth the name in the letter Ex.PW1/6. He
      further submitted that there was nothing to infer that there was
      open and running account between the parties and that the
      claimed amount was due and payable.

      16. While going through the contents of Ex.PW1/6, I find that
      there was no admission worth the name that there was open
      running account between the parties and that there was any
      admission on the part of the deft that he was liable to pay the
      claimed amount of Rs.2,53,013.20 P. In fact, prior to this, neither
      any demand letter nor any statement of account was sent by the
      Plaintiff asking the deft to make the payment of the outstanding
      amount. It was only vide Ex.PW1/5 a letter dt. 11.8.92 that it was
      alleged by the Plaintiff that „we have squared up your out-standing
      purchases on 11.8.92 and enclose please find settlement bill. We
      also enclose herewith statement of A/c showing a sum of

RFA No.444/2001                                                   Page 3 of 4
       Rs.2,53,013.20 P due to us from you. Which you are requested to
      send us the payment immediately.‟ From Ex.PW1/5 no plausible
      inference can be drawn that this amount was due and legally
      payable by the deft. The established principle is that the Plaintiff
      not only must plead its case but also must prove it to the hilt."

3.          I do not find any illegality or perversity in the impugned

judgment and decree which calls for interference by this Court in appeal

inasmuch as it is the plaintiff who comes to Court must discharge the onus of

proof upon it so as to claim a money decree. The trial Court has allegedly

held that onus of proof was not discharged and there is nothing in the letter

Ex.PW1/6 relied upon by the appellant/plaintiff to hold that the same

contains an admission of a specific liability/amount. I have gone through the

letter Ex.PW1/6 which is dated 17.7.1992. All that this letter suggests is that

there were transactions between the parties, however, there is no admission

of any crystallized amount of liability by the respondent/defendant by means

of this letter dated 17.7.1992, Ex.PW1/6.


4.          In view of the above, I do not find any merit in the appeal, which

is dismissed, leaving the parties to bear their own costs. Trial Court record

be sent back.




MARCH 08, 2011                                        VALMIKI J. MEHTA, J.

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