Sidharth Kumar vs Alok Kumar
2017 Latest Caselaw 4872 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 77/2016

%                                   Reserved on: 22nd August, 2017
                                   Pronounced on: 8th September, 2017

SIDHARTH KUMAR                                            ..... Appellant
                          Through:       Mr. Aniket Jain, Advocate.
                          versus

ALOK KUMAR                                             ..... Respondent

                          Through:       Mr. Anup Singh, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the

suit impugning the judgment of the first appellate court dated

31.7.2015. Trial court vide its judgment dated 27.5.2014 had decreed

the suit for recovery of Rs.1,29,850/- with interest at 8% in favour of

the appellant/plaintiff and against the respondent/defendant on account

of the goods being computer peripherals supplied. The first appellate

court by its impugned judgment has dismissed the suit and hence this

Regular Second Appeal under Section 100 CPC is filed by the

appellant/plaintiff.

2. The facts of the case are that the subject suit was filed by

the appellant/plaintiff seeking recovery of Rs.1,87,500/- on account of

the balance dues towards goods having not being paid for, the goods

being computer peripherals. Out of the suit amount a sum of

Rs.1,29,850/- was the principal amount and the balance was towards

interest at 24% per annum. Since in spite of service of the legal notice

dated 14.12.2007, the respondent/defendant failed to pay the amount

due, therefore, the subject suit was filed.

3. The respondent/defendant contested the suit by filing his

written statement. The respondent/defendant is Sh. Alok Kumar

proprietor of M/s Suncom Technologies. It was pleaded in the written

statement that the suit was barred by limitation. It was also pleaded by

the respondent/defendant that the suit was filed without any basis and

there was no cause of action in favour of the appellant/plaintiff and

against the respondent/defendant. On merits, it was pleaded that no

doubt respondent/defendant used to purchase computer peripherals

from the appellant/plaintiff, however, never any item was purchased

on credit basis because on each occasion either payment was made in

cash or through the cheque. The subject suit was therefore prayed to

be dismissed.

4. The trial court after pleadings were complete framed the

following issues:-

"1. Whether on the basis of plaint allegations plaintiff is entitled for a decree of recovery of Rs.1,87,500? (OPP)

2. Whether on the basis of the plaint allegations plaintiff is entitled for an interest on this amount if yes at what rate and for what period? (OPP)

3. Whether the suit is barred by law of limitation? (OPD)

4. Whether the plaintiff has no cause of action to file the present suit?

(OPD)

5. Any other relief which the plaintiff may be entitled for? (OPP)."

5. As regards the relevant issue no.1 of entitlement of the

appellant/plaintiff to the suit amount the trial court decreed the suit by

holding as under:-

(i) The appellant/plaintiff had proved the statement of account as

Ex.PW1/1 and the bills as Ex.PW1/2 to Ex.PW1/16 and therefore the

amount was due to the appellant/plaintiff.

(ii) The respondent/defendant admitted in his cross-examination as

regards his signatures appearing on point A on the Bill Ex.PW1/2 and

the signatures of Sh. Ravi Bhushan at point A on the Bill Ex.PW1/5,

Sh. Ravi Bhushan being the Director of M/s Suncom Technologies (P)

Ltd.

(iii) So far as the other bills are concerned, trial court held that there

is no cross-examination of the appellant/plaintiff by the

respondent/defendant that the bills were forged and fabricated.

(iv) Trial court held that respondent/defendant cannot take benefit of

the Section 65B of the Indian Evidence Act, 1872 and that the

statement of account and the bills being computer bills have to be held

to be proved.

(v) The respondent/defendant did not file his statement of account,

and which would have reflected the correct position, and which the

respondent/defendant ought to have done inasmuch as there was

admittedly dealing of a buyer and a seller between the parties.

6. The first appellate court has dismissed the suit by the

impugned judgment essentially by holding that since the statement of

account/bills were computer generated copies, had to be, were not

supported by the necessary certificate under Section 65B of the Indian

Evidence Act, and hence the appellant/plaintiff has to be taken to have

failed to prove his case.

7. For the purpose of disposal of this RSA the following

substantial question of law is framed:-

"Whether the judgment of the first appellate court is not grossly illegal and perverse, inasmuch as, the objection under Section 65B of the Indian Evidence Act was not available to the respondent/defendant because objection was not taken before commencement of cross-examination and therefore such objection as to the mode of proof of statement of account and the bills stood waived in view of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752?"

8. The aforesaid question of law has to be answered in

favour of the appellant/plaintiff and against the respondent/defendant,

inasmuch as, it is seen that as per the ratio of the judgment of the

Supreme Court in the case of R.V.E. Venkatachala Gounder (supra)

the objection as to mode of proof of document can always be waived

if the objection is not taken up at the relevant time. Since in the

present case appellant/plaintiff had filed his affidavit by way of

evidence and thus proved the bills and the statement of account, the

respondent/defendant had to object to the proof of the statement of

account and bills before his commencement of cross-examination of

PW-1, because, if this objection was taken then the appellant/plaintiff

would have had an opportunity not to close his examination-in-chief

and instead to lead additional evidence to prove the statement of

account and the bills. Therefore, applying the ratio of the judgment of

the Supreme Court in the case of R.V.E. Venkatachala Gounder

(supra), it is held that the first appellate court has erred in placing

reliance upon Section 65B of the Indian Evidence Act and for

dismissing the suit on this sole ground.

9. I have already given in para 5 above the reasons and

conclusions of the trial court, and I completely agree with and adopt

the same. In fact, I would further add that besides the

respondent/defendant not having filed his statement of account, it is

noticed that the respondent/defendant did not file his income tax

returns and if the same would have been done from the Profit and Loss

Account attached to the income tax returns it could have been seen as

to whether the statement of account existed in the books of the

appellant/plaintiff. The entry in the Profit and Loss Account of the

respondent/defendant would also have shown the amount due to the

appellant/plaintiff from the respondent/defendant. Adverse inference

therefore under Section 114 of the Indian Evidence Act had to be

drawn against the respondent/defendant for not filing not only of his

statement of account, but also not filing his income tax returns.

10. It is also noted that the respondent/defendant cannot

make any capital of two statements of accounts filed by the

appellant/plaintiff inasmuch as both the statement of accounts filed,

one initially in the suit and one later on, were bound to be different

because one statement of account was with respect to the

proprietorship firm M/s Suncom Technologies of the

respondent/defendant/Sh. Alok Kumar whereas the other statement of

account was of M/s Suncom Technologies Private Limited and which

company took over M/s Suncom Technologies as per the admitted

case of the respondent/defendant. Some of the entries in the statement

of account were different, and as explained by the appellant/plaintiff

this was because the respondent/defendant insisted that account be

made in the name of M/s Suncom Technologies Private Limited after

it took over the proprietorship firm of M/s Suncom Technologies

resulting in difference in some of the entries on account of sale of

goods to respondent/defendant even after M/s Suncom Technologies

Private Limited had come to exist.

11. In view of the above discussion the impugned judgment

of the first appellate court is set aside by answering the substantial

question of law in favour of the appellant/plaintiff and against the

respondent/defendant. The judgment of the trial court is sustained.

Parties are left to bear their own costs.

SEPTEMBER 08, 2017                          VALMIKI J. MEHTA, J
ib/Ne/AK