Judgment:
Rs.No.3823 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Rs.No.3823 of 2008 (O&M) Date of decision: 23.05.2014 M/s Sahil Capital Services Limited -----Appellant(s) v.
M/s H.
Arora & Co.& another -----Respondent(s) CORAM:- HON'BLE Mr.JUSTICE RAKESH KUMAR GARG1 Whether reporters of local newspapers may be allowed to see judgment?.
2.
To be referred to reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
Present: Mr.B.S.Bedi, Advocate for the appellant.
Mr.I.S.Ratta, Advocate and Mr.T.S.Ratta, Advocate for respondents.
--- RAKESH KUMAR GARG, J.
Plaintiff M/s Sahil Capital Services Limited having been non-suited by both the courts below has filed this second appeal.
Plaintiff-appellant filed suit against defendant/ respondents M/s H.
Arora and Company through Proprietor Harnish Kaur Arora (defendant No.1) and Harnish Kaur Arora, Proprietor M/s H.
Arora and Company (defendant No.2) for recovery of Rs.17 lacs alleging that the defendants borrowed Rs.12,50,000/- from the plaintiff through cheque dated 27.1.1996 and agreed to repay the same with interest @ 12% per annum but Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 2 failed to repay the same.
Accordingly, the plaintiff sought recovery of Rs.12,50,000/- as principal loan amount and Rs.4,50,000/- as interest till filing of the suit, thereby claiming total amount of Rs.17 lacs.
The defendants broadly denied the plaintiff’s averments.
Defendants denied having taken loan from the plaintiff.
It was pleaded that the plaintiff gave the amount of Rs.12,50,000/- to the defendants for purchase of shares and accordingly defendants got purchased shares worth Rs.12,50,000/- along with transfer deeds to the entire satisfaction of the plaintiff and therefore, nothing is due from the defendants to the plaintiff.
No replication was filed by the plaintiff to controvert the assertions made on behalf of the defendant-respondents in the written statement.
From the pleadings of the parties, following issues were framed by the trial Court:- “1.
Whether the plaintiff is entitled to recover Rs.17,00,000/- as alleged?.
OPP2 Whether the plaintiff is entitled to charge future interest @ 12% per annum as claimed?.
OPD3 Whether the suit is not maintainable in the present form?.
OPD4 Whether the plaintiff is guilty of suppressing the material facts and misrepresenting the facts, if so, its effect?.
OPD5 Whether the plaint is not verified according to law?.
OPD Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 3 6.
Whether the suit is liable to be dismissed under Order 7 Rule 11A CPC?.
OPD7 Whether the plaintiff has got no cause of action?.
OPD8 Relief.”
.
After considering the arguments raised and appreciating the evidence on record, the trial Court dismissed the suit of the plaintiff-appellant vide judgment and decree dated 18.10.2006, observing as under:- “I have gone through the above said citations.
No doubt, it is a basis law that if a party to the suit does not come into the witness box, adveRs.inference should be taken against that party.
In this case, as per the case of plaintiff, the defendant herself did not come into the witness box.
But in this case, special power of attorney who was appointed vide Ex.D-1 has come into witness box.
This Special Attorney holder while stepping into witness box stated the fact that at the time of dealing, he was working as an Executive • with the defendant company.
Similarly, the defendant has also examined DW-2 Manjit Singh to prove the business dealing, if any, with the company.
The plaintiff also took the plea that the evidence of DW-3 is beyond pleadings.
But on the other hand, the plaintiff has not placed any document to rebut the evidence of DW-3 who has stated on oath that they had purchased specific shares with specific numbeRs.with specific amount for the plaintiff company and those are the same share (i.e.of Ram Raffia Company) which the Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 4 defendants have stated that they have purchased the shares on behalf of the plaintiff and delivered to them.
It is the basis law that the plaintiff has to prove his case independently and he can not take benefit of weaknesses of the defendants.
But even the defendants are proceeded against ex-parte, onus to prove his case is on the plaintiff.
In this case, the plaintiff has simply placed documents that the amount of Rs.12.50 lacs has been transferred from their account to the account of the defendant company and the defendants admit this thing.
But on the other hand, the defendants state that this amount was for not friendly loan but for the purchase of shares and placed on file Ex.D.2 and Ex.D.3 and further examined DW3.
But the plaintiff failed to rebut these documents specially evidence of DW-3.
Even in the normal couRs.of business, there is no taking or giving of any loan without any pronote/security document.
It is well established law that men may lie, but the document do not.
In the absence of any written document, the theory on which the plaintiff moves cannot be justified in the normal couRs.of business.
Even no legal notice has been issued by the plaintiff and on the last date, he has filed this suit without any document.
As such, the plaintiff has failed .
to discharge the onus of issue No.1 and 2.
Accordingly, the issues No.1 and 2 are decided against the plaintiff and in favour of defendants.”
.
Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-appellant preferred an appeal before the Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 5 fiRs.Appellate Court which was also dismissed vide impugned judgment and decree dated 9.6.2008.
It may be noticed that during the pendency of the appeal, the appellant also filed an application for allowing him to lead additional evidence by producing judgment dated 24.2.2007 passed by Additional Sessions Judge, Chandigarh in Criminal Appeal No.79 of 12.6.2006 titled as M/s Sahil Capital Services Ltd.v.M/s Pam Raffia LTD.However, the prayer made in the aforesaid application was rejected by the District Judge, Ludhiana vide order dated 9.6.2008 observing that no purpose will be served by producing on record the said judgment, as findings of criminal Court are not binding on Civil Court and therefore, the said judgment was not necessary for proper adjudication of the case.
While dismissing the appeal filed on behalf of the appellant, the Appellate Court observed as under:- “The plaintiff has placed on record written arguments running into 15 pages.
I have gone through the written arguments as well, but the same do not advance the case of the plaintiff in any manner.
It is important to note that it was pleaded in the plaint by the plaintiff that the plaintiff company has been dealing in stock and share market business since long.
So there were good business transactions between the plaintiff company and defendant firm.
It rules out the possibility of the plaintiff of advancing loan on friendly terMs.The plaintiff company has not brought on record any document to show even if the friendly loans were advanced by them and it was their usual Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 6 couRs.of business of lending money on interest on loan basis.
Thus, when the plaintiff company is dealing with stock and share market business since long and is having good terms and the defendant firm, naturally the presumption is that the money in question was advanced for the purpose of purchasing of shares.
No doubt defendants themselves have not appeared in the Court, but documents brought on record speaks volumes that the amount, which was sent by the plaintiff company was utilized at their instance for the purchase of shares.
There is no plausible explanation why any written agreement was not entered into before advancing a huge money of Rs.12.50 lakhs by way of loan to the defendant.
It is admitted fact that the amount of Rs.12.50 lakhs was received by the defendant firm but it proved that the shares were purchased for specific numbers with the said amount.
As such initially onus on the defendant firm stood discharged.
The plaintiff failed to rebut the documentary evidence adduced by the defendant.
In the written arguments certain contradictions or admissibility to the exhibition of documents has been raised.
The contradictions appearing in the statements of defendant witnesses do not go to the root of the case.
When specific shares with specific numbers have been brought on record and h a v e b e e n proved to be attributed to the plaintiff company, then, if the defendants themselves have not appeared but brought documentary evidence in support of their stand proved on record, the personal appearance of the defendant in the Court pales into insignificance and such type of objection is not tenable, The authorities quoted in the written Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 7 arguments do not apply to the facts and circumstances of the present case, but are quite different.”
.
Still not satisfied, the plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:- “I.
Whether hearsay evidence can be made basis for finding of fact especially when party is not personally examined?.
II.
Whether adveRs.inference shall not be justified even though no onus on a party to prove the document has been placed, but kept the crucial document withheld from the Court?.
III.
Whether the impugned judgments are result of misreading of evidence and have been passed on presumption and assumptions while ignoring positive evidence in its true perspective?.
IV.
Whether once receipt of amount in question is admitted by defendants, then is it not incumbent upon the defendants to produce documentary evidence regarding purchase, transfer and d e l i v e r y o f s h a r e s o f p l a i n t i f f f o r proof claim, as so alleged in the written statement?.V.Whether without any cogent and documentary evidence, can it be assumed that claim / plea of the defendants regarding purchase of shares in the name of plaintiff is proved mere on the basis of inadmissible evidence in the form of bill issued by the Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 8 defendants not being signed by the plaintiff, in absence of proof of placing of any order/ judgment by the plaintiff?.”.
In support of his case, learned counsel for the appellant has vehemently argued that the Courts below have ignored material evidence on record while passing the impugned judgments and decrees.
It was submitted that the defendant-firm has failed to prove its case with regard to adjustment of the amount in question received by it for the purpose of purchase of shares and therefore, the only inference which can be drawn from the facts and figures narrated in the evidence available on record is that the defendant-firm received the amount in question from the appellant-firm, as a loan and thus, the defendants were liable to pay the amount in question and the appellant is entitled to recover the same along with interest.
According to learned counsel for the appellant, the amount in question is admitted to be received by the defendant- firm and onus was upon the defendant-firm to prove its plea taken in the written statement with regard to purchase of shares in the name of the appellant-company, whereas, there is no evidence to prove the aforesaid plea of the defendant-respondents.
According to learned counsel, the DWs examined by the respondents were not having personal knowledge of the facts and thus, they were not competent to depose on behalf of the defendants and at the most, their statement can be termed as hearsay evidence, which is not Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 9 permissible and thus, the plea of the respondents remained unproved on record.
Thus, having failed to prove their plea with regard to adjustment of the amount received by it for purchase of shares, the respondents were liable to pay the amount which was admittedly received by them from the plaintiff-appellant and thus, the substantial questions of law, as raised, do arise in this appeal and the impugned judgments and decrees of the Courts below are liable to be set aside.
I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.
At this stage, it may also be noticed that no such application has been filed by the appellant along with the instant appeal to lead additional evidence, though a ground has been raised that the prayer for leading additional evidence has been wrongly declined, with a further prayer to set aside the judgment and decree of the lower Appellate Court and allow the appellant to lead additional evidence.
Even no substantial question of law has been raised by the appellant before this Court to challenge the order of lower Appellate Court, rejecting the application for leading additional evidence.
Still this Court has perused the photocopy of the aforesaid judgment dated 24.2.2007 passed in Criminal Appeal No.79 of 12.6.2006 with the help of counsel for the appellant.
The aforesaid judgment has been passed by the Additional Sessions Judge, Chandigarh accepting the appeal of the accused i.e.M/s Sahil Capital Services Limited against the order of conviction Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 10 passed under Section 138 of the Negotiable Instruments Act, 1881 on a complaint made by the respondent under the aforesaid provisions on the ground that cheque No.962453 for a sum of Rs.6 lacs issued by the complainant on 23.1.1996 was dishonoured.
The aforesaid judgment is in no manner relevant for deciding the controveRs.in hand.
In fact, counsel for the appellant could not show as to how the aforesaid judgment, which was entirely on a separate cause of action, was relevant in the instant case.
Thus, this Court is of the view that the lower Appellate Court rightly declined the application filed by the appellant to lead additional evidence.
Payment of Rs.12,50,000/- by plaintiff-appellant to defendant-respondents vide cheque dated 27.1.1996 has been admitted by the defendant-respondents.
Consequently, onus was on the defendant-respondents to prove that they had discharged their liability for the said amount.
The defendants' case is that they purchased shares worth Rs.12,50,000/- for the plaintiff-appellant and delivered the same along with transfer deeds to the plaintiff- appellant.
In the instant case, DW-1 Dinesh Kumar Sharma was appointed as Special Power of Attorney of the defendant- respondents vide Ex.D1.
While stepping into the witness box aforesaid DW-1 Dinesh Kumar Sharma stated that at the time of dealing, he was working as Executive with the defendant-firm.
Similarly, the defendant-respondents also examined DW-2 Manjit Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 11 Singh to prove the business dealings, if any, with the company.
Even DW-3 Tarlochan Singh specifically stated that they had purchased specific shares with specific number with specific amount for the plaintiff-company.
The appellant has failed to rebut the aforesaid evidence in any manner.
When specific shares with specific number have been brought on record and have been proved to be attributed to the plaintiff-company and the same stands proved on documentary evidence, it cannot be said that the defendant-respondents have not proved their plea taken.
At this stage, it may further be noticed that the averments made in the written statement have not been specifically denied by the appellant by filing any replication and thus, the plea taken by the defendant-respondents to the effect that they have not taken any loan and the amount was received by them for purchase of shares, has remained unrebutted.
Admittedly, the appellant had business dealings of purchasing shares with the respondent-firm.
DW-1 Dinesh Kumar Sharma has specifically stated that he was previously working with the defendant-respondents.
DW-2 Manjit Singh also claimed to be an ex-employee of the defendant-respondents.
He has stated that the defendant- respondents purchased five lacs shares of M/s Pam Raffia Company for the plaintiff-appellant and delivered the same to the authorized representative of the plaintiff-company.
Similarly, DW-3 Tarlocan Singh also stated that the shares of Pam Raffia Company were purchased for the plaintiff-company.
Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3823 of 2008 12 The appellant has failed to rebut the aforesaid evidence produced by the defendant-respondents.
Moreover, both the Courts below, on appreciation of evidence on record, have recorded a concurrent finding against the plaintiff-firm.
There is enough material to support the aforesaid finding.
Even if on re- appreciation of evidence on record, this Court may reach to a different conclusion than the view taken by the Courts below, the same shall not be substituted by this Court while exercising its jurisdiction under Section 100 CPC.
In view of the aforesaid, no fault can be found with the findings recorded by the Courts below.
Thus, no substantial question of law arises in this appeal.
Dismissed.
May 23, 2014 [RAKESH KUMAR GARG].ak JUDGE Kumar Ashwani 2014.05.30 11:37 I attest to the accuracy and integrity of this document High Court Chandigarh